<DOC>
[DOCID: f:ej963co.wais]

 
CONTRACTORS SAND AND GRAVEL, INC.
March 28, 2000
EAJ 96-3


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                         March 28, 2000

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
     v.                         : Docket No. EAJ 96-3
                                :
CONTRACTORS SAND AND            :
  GRAVEL, INC.                  :


BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
        Commissioners


                              ORDER

BY THE COMMISSION:

     In this proceeding under the Equal Access to Justice Act, 
5 U.S.C. � 504 et seq. (1996) ("EAJA"), Contractors Sand and
Gravel, Inc. ("Contractors"), sought recovery of attorney's 
fees and expenses following the decision in Contractors Sand 
and Gravel, Inc., 18 FMSHRC 384 (Mar. 1996) (ALJ), in which
Contractors prevailed over the Mine Safety and Health
Administration ("MSHA") in a proceeding under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act").  Administrative Law Judge August Cetti
ordered the Secretary to pay attorney's fees and expenses because
her position in the merits proceeding was not substantially
justified.  Contractors Sand and Gravel, Inc., 18 FMSHRC 1820
(Oct. 1996) (ALJ).  The Secretary filed a petition for review
with the Commission.  Following the direction for review,
Contractors challenged the Commission's jurisdiction to review
the judge's award.  On review, the Commission ruled against
Contractors on the issue of jurisdiction, and a majority further
concluded that the Secretary's position in the underlying Mine
Act adjudication was substantially justified, thereby reversing
the judge.  Contractors Sand and Gravel, Inc., 20 FMSHRC 960,
967-76 (Sept. 1998) (Chairman Jordan and Commissioners Marks and
Beatty).  The dissenting Commissioners held that the Secretary's
position was not  substantially justified.  Id.at 978-85
(Commissioners Riley and Verheggen).

     Contractors subsequently petitioned for review of the
Commission's decision to the United States Court of Appeals for
the District of Columbia Circuit.  The court affirmed the
Commission's disposition of the jurisdictional issue.
Contractor's Sand and Gravel, Inc. v. FMSHRC, 199 F.3d 1335,
1339-40 (D.C. Cir. 2000).  The court agreed with the dissenting
Commissioners that the Secretary's position before the
administrative law judge in the Mine Act proceeding lacked
substantial justification because the Secretary's interpretation
and application of the regulation at issue had no reasonable
basis in law or fact.  Id. at 1340-42.  The court ordered that
the award of fees and expenses granted by the administrative law
judge be restored, and remanded the case to the Commission for
further proceedings to determine the amount of an award to
compensate Contractors for pursuing review before the court. Id.
at 1343.

     Subsequently, the Secretary and Contractors each filed with
the court a motion for clarification.  The Secretary requested
that the court clarify its decision to permit the Commission to
consider on remand several issues that it did not reach because
it reversed the judge.  Those issues included whether the judge
properly awarded Contractors attorney's fees at an hourly rate
that was higher than the maximum rate specified in EAJA, and
properly ordered interest on the award that accrued as a result
of Contractors' failure to pay its bills for attorney's fees on
time.  Contractors requested that the court clarify that on
remand the Commission should award, in addition to fees and
expenses accrued in pursuing court review, those attorney's fees
and expenses that were incurred in defending the administrative
law judge's decision before the Commission.

     The court issued an order in which it granted Contractors'
motion and denied the Secretary's.  Contractor's Sand and Gravel,
Inc. v. FMSHRC, No. 98-1480, slip op. at 1 (D.C. Cir. Mar. 3,
2000).  With regard to the Secretary, the court stated that the
issues she raised in her motion "were not raised before the court
at any time" and therefore the motion could not be granted.  Id.
With regard to Contractors' motion, the court stated that it was
not the court's intent "to foreclose such fees and expenses
otherwise awardable."  Id. (citation omitted).

      Pursuant to the court's orders, we reinstate the judge's
original EAJA award and remand the case to the judge for further
proceedings on attorney's fees and expenses incurred in defending
the judge's decision before the Commission and those incurred in
seeking review of the Commission's decision before the court.


                              Mary Lu Jordan, Chairman
                              
                              James C. Riley, Commissioner
                              
                              Theodore F. Verheggen, Commissioner
                               
                              Robert H. Beatty, Jr., Commissioner


Distribution

Ronald E. Meisburg, Esq.
Heenan, Althen & Roles
1110 Vermont Avenue, N.W., Suite 400
Washington, D.C.  20005

C. Gregory Ruffennach, Esq.
Ruffennach Law Offices
450 East 3rd Avenue
Durango, CO 81301

Jack Powasnick, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204