<DOC>
[DOCID: f:eaj964x.wais]

 
LEO JOURNAGAN CONSTRUCTION COMPANY, INC.
March 19, 1999
EAJ 9604


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         March 19, 1999

JAMES M. RAY Employed by       :  EQUAL ACCESS TO JUSTICE
  LEO JOURNAGAN CONSTRUCTION   :  PROCEEDING
  COMPANY, INC.,               :
                  Applicant    :  Docket No.  EAJ 96-4
          v.                   :
                               :  Journagan Portable
SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :
                  Respondent   :

                  DECISION APPROVING SETTLEMENT

Before:  Judge Weisberger

Introduction

     This proceeding involves the recovery of attorneys' fees and
expenses under the Equal Access to Justice Act ("EAJA"), 5 U.S.C.
� 504 (1996).  James "Mike" Ray ("Ray"), who was employed by Leo
Journagan Construction Company, Inc. ("Journagan"), prevailed
over the Mine Safety and Health Administration ("MSHA") in the
underlying section 110(c) proceeding under the Federal Safety and
Health Act of 1977 ("Act"), 30 U.S.C. � 820(c) (1994).  18 FMSHRC
892 (June 1996).  Thereafter, Ray filed an application for fees
and expenses under the EAJA on the basis that the Secretary's
position on the two citations at issue was not substantially
justified.  Former Administrative Law Judge William Fauver denied
the application.  18 FMSHRC 2033 (Nov. 1996) (ALJ).  Ray filed a
petition for review with the Commission challenging the Judge's
determination that the Secretary's position was substantially
justified.  The Commission reversed Judge Fauver's determination
of substantial justification on the first citation,[1] but
affirmed as to the second.  (20 FMSHRC 1014 (1998)).

     The Commission remanded this proceeding ". . . in order to
allocate from the total amount of fees and expenses originally
applied for those attributable to Ray's defense of section 110(c)
liability arising from the first citation."  (20 FMSHRC supra at
1029.)

     The parties filed a Motion to Approve Settlement of the
issues raised in this case.  I have reviewed the motion and
representations of the parties along with the record in this
case.  I find that the settlement is proper under the terms of
the EAJA, and I approve It.

                              ORDER

     It is ORDERED that the motion is GRANTED.  It is further
ORDERED that the Secretary shall pay James M. Ray $27,000 within
40 days of this Decision.


                               Avram Weisberger
                               Administrative Law Judge


Distribution:

Lydia Tzagoloff, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Brad Hiles, Esq., Blackwell Sanders Peper Martin, 720 Olive
Street, Suite 2400, St. Louis, MO 63101 (Certified Mail)

/dcp


***FOOTNOTE***

     [1]  This Citation alleges a violation of 30 C.R.R. _
56.12016