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[DOCID: f:eaj20014od.wais]

 
PRONGHORN DRILLING COMPANY
March 1, 2002
EAJ 2001-4


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          March 1, 2002

PRONGHORN DRILLING COMPANY,   : EQUAL ACCESS TO JUSTICE
               Applicant      :   PROCEEDING
                              :
               v.             : Docket No. EAJ 2001-4
                              :
SECRETARY OF LABOR,           : Formerly WEST 2000-537-M/538-M
   MINE SAFETY AND HEALTH     : A. C. Nos. 48-00837-05501 N5Y
   ADMINISTRATION (MSHA),     :            48-00837-05502 N5Y
               Respondent     :
                              : Smith Ranch Project

           ORDER DENYING MOTION TO RECONSIDER DECISION

     A decision on the merits of this case was issued January 15,
2002, holding that the prevailing party below, Pronghorn Drilling
Company  (Pronghorn),  was  entitled  to  an  award of  fees  and
expenses pursuant to the Equal Access to Justice  Act, 5 U.S.C. 
504, the "EAJ Act."  That decision was interlocutory  awaiting  a
final  application  for  fees and expenses.  On February 1, 2002,
the Secretary filed a motion  for  reconsideration of the January
15  decision.  The Applicant filed a  response  on  February  19,
2002.

     The  Secretary first alleges in her motion that the decision
did  not  "address   the   Secretary's   evidence   and  argument
demonstrating   the   Secretary   had   a  reasonable  basis  for
interpreting the statute to cover the milling  of  uranium at the
Smith  Ranch  Project."   The  form  and  content required  of  a
Commission judge's decision in an EAJ Act case  is  set  forth in
Commission  Rule  307, 29 C.F.R.  2704.307.  That rule provides,
in relevant part, as follows:

          In   all   decisions    on    applications,    the
     administrative law judge shall include written findings
     and  conclusions on the applicant's eligibility, and an
     explanation  of  the reasons for any difference between
     the amount requested  and  the  amount  awarded.  As to
     applications  filed  pursuant  to    2704.105(a),  the
     administrative law judge shall also include findings on
     the  applicant's  status  as  a  prevailing  party  and
     whether the position of the Secretary was substantially
     justified;  if  at  issue, the judge  shall  also  make
     findings on whether the  applicant unduly protracted or
     delayed the underlying proceeding  or  whether  special
     circumstances make the award unjust.

     The material issues presented in this EAJ Act case  were (1)
whether  the Secretary's position in the underlying civil penalty
proceeding  was  substantially  justified and (2) whether special
circumstances existed to make an  award  unjust.   The January 15
decision  provided  the requisite findings, conclusions  and  the
reasons  for  those  findings  and  conclusions  regarding  those
material  issues.  A party  may  reasonably  infer  that  if  its
arguments  have  not  been  adopted  in  a  decision  then  those
arguments have been rejected.

     The Secretary  next alleges that the January 15 decision did
not  address  her  purported  argument  that  fees  and  expenses
incurred prior to November  1,  2000,  should  be  denied because
Pronghorn  did  not  challenge  MSHA's  jurisdiction before  that
date.[1]   She argues that even if her position  "was  ultimately
found to have  been  unjustified,  it was reasonably justified at
least  until  the defendant pointed out  to  the  government  the
evidence or defense  that  made it justified."  The Secretary now
claims that this argument was  presented  in footnote 3 on page 7
of its "Answer" filed December 5, 2001.  That  footnote  reads as
follows:

          As  late  as  October 2000, Pronghorn admitted, in
     its  answer to the Petition  for  Assessment  of  Civil
     Penalty,  that  the  Smith Ranch "mine" was "subject to
     the provisions of the  Act."  See Petition, Paragraph 2
     (September 20, 2000), and  Answer, Paragraph 2 (October
     13,  2000)  (West  2000-537-M)  (see  also  Pronghorn's
     Answer, Paragraph 4  in  WEST  2000-538-M)  (October 3,
     2000).  The entire first year of the fees and  expenses
     listed in the application therefore had nothing  to  do
     with the rationale for the decision and the position of
     the  Secretary  that  Pronghorn  now claims was without
     substantial justification.

     This somewhat ambiguous statement, secreted in a footnote to
the Secretary's "Answer," was not previously  understood  to have
raised  the  precise  assertion  now  presented,  i.e.,  that her
position in the civil penalty case was reasonably justified until
the  jurisdictional  issue  was  raised  by  Pronghorn  and  that
therefore  Pronghorn  is  not, in any event, entitled to fees and
expenses of $26,718.00, incurred  before  that  date.   This  is,
however,  essentially  the  same  argument  --  i.e.,   that  the
Secretary   was  "substantially  justified"  to  proceed  in  the
underlying  case   because   Pronghorn   did  not  challenge  her
jurisdiction  until  litigation  had  commenced   --   that   was
specifically rejected in the January 15 decision.

     In  any  event,  the Secretary's argument is without  merit.
The EAJ Act does not on  its  face  limit  the  award of fees and
expenses to only periods after the government has  been  formally
notified by the opposing party that the government's position  is
not  substantially justified.  Nor does the EAJ Act require, as a
condition  precedent  to an award, that the prevailing party must
raise a specific objection  in  the underlying proceedings on the
grounds  that  the  government's position  is  not  substantially
justified.  The cases  cited by the Secretary for the proposition
that partial awards under  the  EAJ  Act  may  be  appropriate in
certain circumstances, Lion Uniform, Inc. v. NLRB, 905  F.2d, 125
(6th Cir. 1990) and Leeward Auto Wreckers, Inc. v. NLRB, 841 F.2d
1143,  1148-49  (D.C.  Cir. 1988) are clearly distinguishable  in
that  they involved the withholding  by  the  opposing  party  of
specific  defenses and evidence, exclusively within the knowledge
of the opposing  party  until the late stages of the proceedings.
The Lion Uniform case did  not,  moreover,  result  in  a partial
award -- the principle it was cited for.

     The  underlying  civil  penalty  cases  herein, on the other
hand,  involved  only  a  question of whether the  Secretary  had
jurisdiction to proceed under the fundamental organic  statute --
an issue the Secretary must  always  examine herself to determine
whether she can proceed with litigation.   In  the  civil penalty
cases below there was never any doubt that the mineral  at  issue
was  being  mined in liquid form with no workers underground and,
because of the  clear  statutory  language,  that  well know fact
should  have  led  the  Secretary  to  immediately  question  her
jurisdictional authority.

     Pronghorn  also  notes  that  even  if  it  had  raised  the
jurisdictional issue from the beginning, the requested  fees  and
expenses  would  in  any  event  have  reasonably  been incurred.
Pronghorn  argues that it could not have known the outcome  of  a
jurisdictional  challenge  in  any  event  and it was prudent and
necessary therefore to take prompt measures to defend the case on
the merits and thereby incur the noted expenses.

                              ORDER

     The Secretary of Labor's Motion  to  Reconsider  Decision is
hereby  denied.  A final decision awarding fees and expenses will
accordingly be issued forthwith.


                              Gary Melick
                              Administrative Law Judge
                              (703) 756-6261


Distribution: (Certified Mail)

Sean P. Durrant,  P.C.,  Palmerlee  & Durrant, LLC, 11 North Main
Street, Buffalo, WY 82834

Edward Falkowski, Esq., Office of the  Solicitor,  U.S.  Dept. of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80201-6550

\mca


**FOOTNOTES**

     [1]: The  Secretary  does not claim for this reason that  an
award for periods before November  1,  2000,  would  be unjust or
that  Pronghorn  unduly  protracted  or  delayed  the  underlying
proceedings.