<DOC>
[DOCID: f:eaj96-3.wais]

 
CONTRACTOR'S SAND AND GRAVEL, INC.
October 28, 1996
EAJ 96-3

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3993/FAX 303-844-5268

                           October 28, 1996

CONTRACTOR'S SAND AND         :  EQUAL ACCESS TO JUSTICE
  GRAVEL, INC.,               :   PROCEEDING
               Applicant      :
                              :  Docket No. EAJ 96-3
           v.                 :
                              :  Formerly WEST 93-462-M
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :
               Respondent     :

            FINDINGS AND AWARD OF FEES AND OTHER EXPENSES
                UNDER THE EQUAL ACCESS TO JUSTICE ACT

     This case is before me on an Application for Award of Attorney's
Fees and Other expenses under the Equal Access to Justice Act ("EAJA"),
5 U.S.C.  504, et seq. filed with the Federal Mine Safety and Health
Review Commission ("FMSHRC") on April 24, 1996.

                                  I

                      The Underlying Proceedings

     On June 28, 1993, the Secretary filed a Proposal for the Assessment
of Civil Penalty with respect to Citation No. 3911909 (included in Docket
No. WEST 93-462-M).  The Secretary proposed a $7,000.00 penalty for the
alleged violation of the electrical grounding standard set forth at 30 
C.F.R.  12025. In addition, on July 8, 1994, the Secretary filed an 
action to assess a $6,000.00 penalty against corporate agent Eric 
Schoonmaker alleging a knowing violation of the same electrical grounding
standard 30 C.F.R.  12025 (Docket No. 94-409-M).  These matters were the
underlying action that was part of consolidated proceedings against the
Applicant which involved nine dockets and 29 total citations.

     In October 1995, the parties filed cross-motions for Summary Decision
agreeing that there were no material facts in dispute and seeking a 
Decision on the pleadings on Citation No. 3911909.  On March 25, 1996,
I issued my Summary Decision[1] vacating Citation 3911909 in both dockets
and dismissing the 110(c) action against Eric Schoonmaker.  In that
decision I vacated the $13,000 proposed penalties for Citation No.
3911909.

     On April 24, 1996, Contractors Sand and Gravel Supply, Inc.,
("Applicant") through its counsel Gregory Ruffennach, Esq., filed its
Application for an Award of Fees and Expenses Under the Equal Access to
Justice Act.

                                  II

              The April 24, 1996 Application under EAJA

     In the April 24, 1996 Application under the EAJA, Applicant, 
Contractor's Sand and Gravel, Inc., seeks to recover attorney fees and
other expenses from Respondent, Secretary of Labor, Mine Safety and 
Health Administration.  The attorney fees and other expenses were 
incurred by Applicant when it successfully challenged Citation No.
3911909 in the underlying civil penalty proceeding in Docket No. WEST
93-462-M.

     The Secretary does not dispute that Applicant "prevailed" in the
underlying proceedings when I issued a Summary Decision in favor of 
Applicant (then Respondent) on March 25, 1996.  The Summary Decision, 
which vacated Citation No. 3911909, resulted in the dismissal of a 
$7,000 assessment against Applicant and a $6,000 assessment against
Applicant's general manager.  The Summary Decision also enabled the 
parties to negotiate a settlement of the remaining eight consolidated 
civil penalty dockets.[2]

     In the Application, Applicant also seeks to recover attorney
fees and other expenses from the Secretary that were incurred in
connection with preparing and defending the Application in the 
instant EAJA proceeding, Docket No. EAJ 96-3. Periodically, during 
the course of this EAJA proceeding, Applicant moved to amend its
April 24, 1996, Application to reflect additional attorney's fees 
and other expenses that had been incurred as a result of the 
Secretary's opposition to the Application.  I granted each of the
motions to amend the April 24, 1996, Application.

     As a preliminary matter, I find, and the Secretary has not
disputed, that Applicant, having a net worth of less than $7 
million and fewer than 500 employees, is "eligible" for an award
of attorney fees under the EAJA.  29 C.F.R.  2704.104. I further
find, and the Secretary has not disputed, that the April 24, 1996,
Application meets all of the present requirements for an application 
for an award of attorney fees and other expenses set out by the
Commission Rules that presently implement the Equal Access to 
Justice Act, 29 C.F.R.  2704.204.

     In considering the remaining issues presented by the April 24, 
1996, Application, as amended, I am addressing the two dockets, for
which Applicant is requesting fees, separately.

     A.  Fees and Other Expenses for the Underlying Proceeding

     In its Application, as amended, Applicant seeks to recover
$19,669.72 in attorney fees in connection with the underlying
proceeding, Docket No. WEST 93-462-M, and $4,457.83 in total
expenses.  In his Answer, the Secretary  opposed such an award on
two basic grounds.  First, the Secretary argued that its position 
in the underlying proceeding was "substantially justified."
Second, the Secretary argued that Applicant's fee request was
excessive. I  address each of the Secretary's arguments in turn.

     B.  Substantial Justification

     Under the EAJA, a prevailing party may recover attorney fees 
"unless ... the position of the United States ... [is] substantially
justified."  5 U.S.C.  504(a)(1).  The Supreme Court has stated
that "substantially justified" means "justified to a degree that
could satisfy a reasonable person," or having a "reasonable basis
in both fact and law."  Pierce v. Underwood, 487 U.S. 552, 108 S.Ct.
2541, 2550, 101 L.Ed. 490 (1988).  To make a showing of substantial
justification, the Secretary bears the burden of proving that
his position was reasonable in law and fact.  29 C.F.R.  2704.105.

     In the underlying proceeding, I clearly indicated that the Secretary's
position was unreasonable.  The Secretary argued that the electric motors
at issue were not effectively grounded as required by the cited standard
(30 C.F.R.  56.12025) because they used crusher frame as a ground path.
Having considered both aspects of this argument, I again find that the
Secretary's legal theory was not reasonable and that there was no reasonable
connection between the Secretary's legal theory and the undisputed facts.

     I find the Secretary's legal interpretation, that the cited standard
prohibited frame grounding, an unreasonable one.  In my Summary Decision I
stated:

     The Secretary should not be permitted through interpretation to expand
     the regulation beyond its plain meaning.  The Secretary's purported
     longtime interpretation of the regulation to prohibit per se frame
     grounding constitutes an impermissible expansion of the plain meaning
     of the standard.

Summary Decision at p. 4-5.  Any interpretation that "impermissibly" 
ignores the plain meaning of a cited standard, is per se unreasonable. 
Lancashire Coal Co. v. Secretary of Labor, 968 F.2d 388, 393 (3rd.
Cir., 1992) ("We cannot conclude that the Secretary's interpretation 
is reasonable in this case insofar as it conflicts with the language
of the statute.")  Had the Secretary's legal interpretation been 
reasonable, I would have considered according it deference. Wamsley 
v. Mutual Mining, Inc., CA Nos. 95-1130 and 95-1212 (4th Cir. April 3,
1996) ("the Commission should have deferred to the Secretary's 
interpretation of the Act if it found that interpretation to be a 
reasonable one.")

     Again, on review of the record, I find that there is no reasonable
interpretation of the facts that supports the Secretary's theory that 
the motors were not effectively grounded.  I specifically held in my 
Decision that:

    the motors in question were connected with the ground to make the
    earth     part of the circuit.  There is no contrary evidence.

Summary Decision at p. 5 (emphasis added).  Because there was "no contrary
evidence," i.e. no evidence which could have supported the Secretary's 
theory that there was not an effective ground, the connection between the
facts alleged and the legal theory advanced by the Secretary was 
unreasonable.

     Moreover, in addressing Applicant's fair notice argument, I made a 
specific finding with respect to reasonableness of the connection between
the Secretary's facts and the law.  I found:

     With respect to the application of the reasonable, prudent person test,
     I find that a reasonable, prudent person familiar with the mining
     industry would have recognized that the two motors, which were
     connected to earth through a series of metal frame and wire connections,
     were grounded and were, thus, in compliance with requirement of the
     cited regulation.

Summary Decision at p. 5 (emphasis added).

     The Secretary offered nothing in this proceeding to persuade me 
that my findings of unreasonableness in the underlying proceeding were
incorrect.  The Secretary merely reiterates arguments that I have
previously considered and rejected.

     In this connection, I would point out that all the other 
administrative law judges that have considered the Secretary's legal 
theory have concluded that it is not reasonable.  See e.g. Mulzner 
Crushed Stone Company, 3 FMSHRC 1238 (Laurensen, May 1981), McCormick
Sand Corporation, 2 FMSHRC 21, 24 (Michaels, 1980); Tide Creek Rock, 
Inc., 18 FMSHRC 390, 396 (Manning, March 25, 1996). While the 
unappealed decisions of the other administrative law judges are 
not determinative on the issue of substantial justification, the
decisions are strong indicia that Secretary's litigation position 
was unreasonable.  Pierce, 487 U.S. 552, 567-572, 108 S.Ct. 2541,
2551-53, 101 L.Ed. 490 108.

     The unreasonableness of the Secretary's position is clearly 
evident from the plain language of the regulation in the underlying
proceeding.  Haitian Refugee Center, 791 F.2d 1489, 1497 (D.C. Cir.
1986)(citing Spencer v. NLRB, 712 F.2d 539, 559-60 (D.C. Cir. 1983);
see also Jean v. Nelson, 863 F.2d 759, 767 (11th Cir. 1988).  As I
emphasized in my Summary Decision, the Part 56 regulations, as well
as the National Electrical Code, clearly define "grounded" in a 
manner that does not support the Secretary's legal interpretation 
of the cited standard.  The Secretary's contrary interpretation was
never published in MSHA's Program Policy Manual.

     Based on all of the foregoing, I conclude that the Secretary's
litigation position in this matter was not substantially justified.

     Given the unreasonableness of the Secretary's litigation position
under the established facts of this case, I do not find it necessary to
address the reasonableness of the Secretary's pre-litigation positions. 
5 U.S.C.  504(b)(1) (E).  I would point out, however, that I have some 
difficulty with MSHA's decision not to test the effectiveness of the
ground path during the original inspection and the Secretary's subsequent
decision to ignore post-citation test results that showed the ground
paths in place were effective.

     C.  Fee Request

     Having determined that the Secretary's position is not substantially
justified, I address the Secretary's arguments that Applicant's fee and
expense request is "excessive."  The Secretary identified three grounds 
on which I could find that Applicant's request for fees and expenses is
excessive.  First, the Secretary argued that Applicant improperly sought
to recover attorney fees for work associated with the other consolidated
dockets. Second, the Secretary argued that the rate at which Applicant 
sought to recover attorney fees was "too high.  Third, the Secretary 
argued that Applicant is not entitled to recovery expenses. I address 
the Secretary's arguments in the order that they were presented.

     D.  Apportionment of Work Related to Other Dockets

     The Secretary's primary argument against the amount of the fee
request is that Applicant sought to recover attorney fees for work that
can be attributed, in part, to the other consolidated dockets.  Although 
Applicant has not sought recovery for work that it categorized as "Other
Fees," i.e. work completely attributable to the other consolidated 
dockets, Applicant has sought recovery for some work related to Docket
No. WEST 93-462-M that overlaps with the work on the other dockets.

     Before addressing the Secretary's argument, I would first point 
out that the Secretary has not questioned any specific time entries
for which Applicant has sought recovery of attorney fees in connection
with Docket No. WEST 93-462-M. The legal invoices that support the 
Application carefully and meticulously document the work that counsel
for Applicant performed in connection with Docket No. WEST 93-462-M.
I find that the work performed by counsel for Applicant was reasonable 
and led to an efficient resolution of the underlying civil penalty 
proceeding and the other consolidated dockets. I further find that 
the hours dedicated to the work performed were also reasonable and
reflect counsel's proficiency in handling safety and health cases 
before the FMSHRC.

     In this connection, the Secretary has not challenged the work 
that Applicant has categorized as "Direct Fees."  Applicant has 
requested reimbursement of 96.15 hours for work that was directly
attributable to the contest of Citation No. 3911909.  I conclude that
these Direct Fees, totaling 96.15 hours, were  reasonable and hereby 
award these hours to Applicant.

     The Secretary's first point of contention is with the work categorized
by Applicant as "Necessary Fees."  The Secretary does not apparently dispute
that this work would have been performed regardless of the existence of the
other consolidated dockets.  Rather the Secretary argues that because this
work incidentally advanced the other consolidated dockets, Applicant should
only received partial recovery for this work.  The Secretary's contention is
rejected.  I credit Applicant's representation and find this work was
necessary for Applicant to achieve summary decision in Docket No. WEST 93-
462-M.  The fact that this work incidentally advanced other dockets is
irrelevant.  See Jean v. Ellen, 863 F.2d 759, 772 (11th Cir. 1988) ("fee
award should exclude time spent on unsuccessful claims except to the extent
that such time overlapped with related successful claims.") (quoting
Trezevant v. City of Tampa, 741 F.2d 336, 341 (111th, Cir. 1984).  I
conclude that these Necessary Fees, totaling 38.26 hours, were reasonable
and hereby award these hours to Applicant.

     The Secretary's second point of contention is with the work categorized
by Applicant as "Proportional Fees."  Although this work advanced all of the
consolidated dockets (similar to the so-called "Necessary Fees"), it took
more time for counsel for Applicant to complete due to the number of citations
(27 in all) in the other consolidated dockets.  Although the parties agree
that some type of proportional recovery may be appropriate with respect to
this work, they disagree markedly on the formula for making the apportionment.

     The Secretary has proposed a 3 percent apportionment based on a
mathematical count of citations in all of the consolidated dockets.  The
Supreme Court, however, has expressly rejected the method of apportionment 
advocated by the Secretary.  Hensley v. Eckerhart, 461 U.S. 424, 435 n. 11,
103 S.Ct 1933, 1940 n. 11,76 L.Ed.2d 40, 52 n.11 (1983)("We agree with the
District Court's rejection of a mathematical approach computing the total
number of issues in the case with those actually prevailed upon.); see e.g.
Naekel v. Department of Transportation, 884 F.2d 1378, 1379 (Fed.Cir. 1989);
Brandeis School v. NLRB, 871 F.2d 5, 7 (2nd Cir. 1989).  Given the extent
of the arguments submitted in the consolidated dockets, I find it highly 
unlikely that counsel for Applicant dedicated equal time to each of the 28
citations at issue.  Therefore, I do not adopt the Secretary's formula for
apportionment.

     Applicant, on the other hand, originally proposed a 60 percent 
apportionment based on the proportion of civil penalties attributable to
Citation No. 3911909.  Of the approximately $21,000 in civil penalties at
issue in the consolidated dockets, $13,000 or roughly 60 percent, were
attributable to Citation No. 3911909.  Applicant subsequently amended its 
Application to request an 85 percent apportionment.  Applicant, citing
Hensley, based the additional 15 percent increase on the overall success
achieved by Applicant in negotiating a favorable settlement in the 
remaining consolidated dockets  based on the strength of its victory in
the underlying proceeding.

     In determining the appropriate apportionment in this case, note that
the determination in the first instance is committed to my discretion.
Hensley v. Eckerhart, 461 U.S. at 437, 103 S.Ct at 1941, 76 L.Ed.2d at 
(1983); See Pierce, 487 U.S. at 571, 108 S.Ct. at , 101 L.Ed. at 508. I find
that Applicant's motivation in contesting Citation No. 3911909 and the other
citations was based, at least in part, on the total amount of the fines
assessed by MSHA.  As I noted in my Summary Decision, "Citation No. 3911909
is the most significant of the citations" among the consolidated dockets in
that it resulted in $13,000 in civil penalty assessments.  Summary Decision
at p. 3. I further find that when I vacated Citation No. 3911909 it provided
Applicant with leverage to expeditiously negotiate a 75 percent reduction
in the remaining civil penalty assessments, thereby further demonstrating
its importance.  Given the relative importance of Citation No. 3911909 and
its relation to Applicant's overall success, I find that it is reasonable to
assume that counsel for Applicant, having a firm grasp of the stakes involved,
dedicated 85 percent of his attention and efforts to Citation No. 3911909
when working on tasks that involved multiple citations.  Therefore, I adopt
the 85 percent apportionment proposed by Applicant.  I conclude that these
Proportional Fees, totaling 27.48 hours (85 percent of 32.33 hours), were
reasonable and hereby award these hours to Applicant.

     E.  Rate For Recovery of Attorney Fees

     Applicant requested that attorney fees be reimbursed at a rate of $121.50
per hour.  The Secretary argued that the EAJA and the Commission Rules
limit the attorney fee rate to a maximum of $75.00 per hour.  Although
Applicant acknowledges that both the EAJA and the Commission Rules establish
a maximum rate of recovery of $75.00 per hour, Applicant argues that both
the statute and the Rules authorize the Commission, through rulemaking, to
adjust the maximum attorney fee rate based on increases in the cost of living.

     The EAJA does not expressly authorize the Commission to promulgate a
legislative type regulation that would have a retroactive effect.  I
therefore address only Applicant's request for adjudicatory rulemaking.

     The EAJA expressly authorizes the Commission to increase the maximum
attorney  fee rate where "justified."  The EAJA provides:

     attorneys fees shall not be awarded in excess of $75.00 per hour unless
     the agency determines by regulation that an increase in the cost of
     living or a special factor justifies a higher fee.

5 U.S.C.  504(b)(1)(A) (ii) (emphasis added).  The EAJA does not specify 
whether the agency is required to announce such a "regulation" in an 
adjudicatory or  legislative type rulemaking proceeding.

     Similarly, the Commission Rules do not specify how such a "regulation" 
is to be announced.  The Rules merely reiterate the statutory provision:

     If warranted by an increase in the cost of living or by special
     circumstances (such as limited availability of attorneys qualified
     to handle certain types of proceedings), the Commission may adopt
     regulations providing that attorney fees may be awarded at a rate 
     higher than $75 per hour in some or all of the types of proceedings
     covered by these rules.

29 C.F.R.  2704.107 (emphasis added).  By setting out procedures for 
filing a petition for legislative type rulemaking, however, the Commission
Rules appear to contemplate quasi-legislative rulemaking, 29 C.F.R. 
S 2704.107(b).  On the other hand, there is nothing in the Commission Rules
that specifically requires that such "regulations" be promulgated through 
quasi-legislative rulemaking pursuant to the Administrative Procedures 
Act ("APA").  See 29 C.F.R. S 2704.107(a). Absent an express statement 
that formal legislative type rulemaking proceedings are required, I am not 
inclined to curtail the Commission's discretion to announce such a 
regulation in an adjudicatory proceeding.

     In this connection, I note that it is well established that an 
agency, such as the Commission, can opt to announce a regulation through 
adjudicatory rulemaking during ad hoc litigation instead of pursuing 
legislative type rulemaking under the Administrative Procedures Act 
(APA).  SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580,
91 L.Ed 1995 (1947); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-93, 
94 S.C.t 1757,    , 40 L.Ed. 134, 153 (1974). Given that cost of living
adjustment is a determination that is "varying in nature," in that the 
cost of living continually changes, I conclude that it is well within 
the Commission's discretion to announce a regulation increasing the
maximum attorney fee rate in an EAJA proceeding.  Chenery, 332 U.S.
at 202-03, 67 S.Ct. at 1580, 91 L.Ed. at 2002.

     Although it is clear the announcement of a retroactive rule is not
generally permitted in legislative type rulemaking, it is permitted in 
an adjudicatory rulemaking.  In Motion Pictures Ass'n of America Inc. 
v. Oman, 969 F.2nd 1154  (1992), the D.C. Circuit noted:

     In adjudication, retroactivity is the norm; in legislation it is
     the exception.

969 F.2d at 1155, see also Bowen, 488 U.S. 204, 221, 109 S.Ct. 468,    , 
102 L.Ed. 492, 508 (1988) (J. Scalia concurring) (in agency adjudications
"retroactivity is not only permitted by the standard.").  Thus, the absence
of an express statutory grant of retroactive rulemaking authority in the
EAJA does not prohibit the Commission from announcing a retroactive rule 
in an adjudicatory EAJA proceeding.

     It is noteworthy that the federal courts routinely make retroactive 
cost of living adjustments to the maximum attorney fee rate in EAJA cases
involving civil actions.  See e.g. Wilkett v. I.C.C., 844 F.2d 867, 875
(D.C. Cir. 1988); Perales  v. Casillas, 950 F.2d at 1076 (5th Cir. 1992);
Chiu v. United States, 948 F.2d 711, 718 (Fed. Cir. 1991); Garcia v. 
Schweiker, 829 F.2d 396, 3rd Cir. 1987); Compare Hoffman v. C.I.R., 978 
F.2d 1139, 1150 (9th Cir. 1992) (authorizing COLA increase under statute
modeled after EAJA which permits recovery of attorney fees in tax cases).
These courts have reasoned that in enacting the cost of living provision,
Congress intended the EAJA to be "self updating in light of the modern
realities of inflation."  Perales, 950 F.2d at 1076.  There is nothing
in the EAJA which would indicate to me that Congress intended the statute
to be "self-updating" with respect to participants in "civil actions" but
not with respect to participants in "agency adjudications."  Compare 28
U.S.C.  2414(d)(2)(A)(ii) and 5 U.S.C.  504(b)(1)(A)(ii).

     It would appear that any holding to the contrary would, for all 
practical purposes, make the cost of living provision superfluous.  As
set out above, the EAJA unambiguously authorizes cost of living 
adjustments to the maximum rate. 5 U.S.C.  504(b)(1)(A)(ii).  The cost
of living provisions was specifically  included by Congress to protect
the EAJA's maximum attorney fee rates from inflationary pressures.  See
Action on Smoking and Health v. C.A.B., 724 F.2d 211, 217 (D.C.Cir. 1984)
("The cost of living language reflected congressional awareness that,
with inflation, the fee limiting provision could defeat the purpose of
the statute.").  Since the enactment of the EAJA in 1981, the Commission
has not undertaken legislative type rulemaking to adjust the maximum
attorney fee rate for increases in the cost of living.  Were I to hold
that the Commission did not have authority to announce a retroactive 
rule in this EAJA proceeding, Applicant, having incurred legal expenses
at 1995 and 1996 attorney fee rates, would be reimbursed at the attorney
fee rate established in 1981. Such a holding would effectively read the
cost of living provision out of the statute.

     To construe the statute in a manner that gives no effect to the 
cost of living provision would defeat the purpose of the EAJA.  The 
central objective of the EAJA "was to encourage relatively impecunious
private parties to challenge unreasonable or oppressive governmental
behavior by relieving such parties of the fear of incurring large 
litigation expenses."  Spencer v. N.L.R.B., 712 F.2d 539, 549-50 (D.C.
Cir. 1983) (citations to the legislative history omitted).  In this 
case, an award at $75 per hour would not satisfy the Congressional 
objective. Applicant, a relatively impecunious private party as 
indicated by its net worth statement, successfully challenged an 
unreasonable MSHA policy.  In so doing, Applicant incurred legal fees
totaling approximately $20,878.50.  If Applicant is compensated for
attorney fees at $75 per hour, the award for attorney fees in Docket
No. WEST 93-462-M would only reach $12,144.  The difference of 
$8,734.50 is what I consider "a large litigation expense" that 
Congress did not intend Applicant, being an impecunious operator, 
to bear.

     Given that the Commission has authority to announce a regulation
increasing the maximum attorney fee rate in this EAJA proceeding, I 
find that increases in the cost of living between September 1981, when 
the EAJA was enacted, and December 1994, when legal services were first
rendered to Applicant, "justify" an increase  in the maximum attorney 
fee rate.  Oklahoma Aerotronics, Inc. v. United States, 943 F.2d 1344,
1349 (D.C. Cir. 1991) (citing Wilkett v. I.C.C., 844 F.2d 867, 875
(D.C. Cir. 1988).  The Consumer Price Index ("CPI") when counsel for
Applicant was first retained in December 1994 was 149.7.  United States 
Department of Labor Bureau of Labor Statistics, CPI Detailed Report,
Data for December 1994:  Consumer Price Index for All Urban Consumers
(CPI-U), All Expenditures at p.7.  The CPI when the EAJA went into 
effect in September of 1981 was 92.2.  Id.  By dividing  the CPI for 
December 1994 by the CPI for September 1981, I find that the cost of
living increased by a multiplier of 1.62.  This undisputed increase 
in the cost of living justifies a higher rate of $121.50 which is
the statutory maximum of $75 per hour adjusted by the 1.62 multiplier.

     In light of the foregoing, I find that in connection with the 
attorney fees incurred in Docket No. WEST 93-462-M, Applicant is 
entitled to recover the hours awarded above at the rate of $121.50.

F.  Expenses

     Applicant seeks to recover "other expenses" in addition to the
attorney  fees. The Secretary opposes an award of expenses to Applicant,
arguing that such expenses are not authorized under the EAJA.

     The EAJA states that "fees and other expenses" can be recovered. 
5 U.S.C. 504(a)(1).  Although the EAJA does not provide an exhaustive
list of expenses that can be included in an award, the examples included
the definition of "fees and other expenses" indicate that a large 
category of expenditures are reimbursable. Jean v. Nelson, 863 F.2d
759, 777 (11th Cir. 1988).  The EAJA provides:

     "fees and other expenses" includes the reasonable expenses of expert
     witnesses, the reasonable cost of any study, analysis, engineering
     report, test, or project which is found by the court to be necessary
     for the preparation of the parties' case, ...

5 U.S.C.  504 (b)(1)(A).

     The Commission, through legislative type rulemaking, has interpreted
the statutory language to permit recovery of expenses of the type sought
by Applicant. The Commission Rules provide:

       an award may also include the reasonable expenses of the attorney,
       agent, or witness as a separate item, if the attorney, agent or
       witness ordinarily charges clients separately for such expenses.

29 C.F.R.  2704.106 (emphasis added); see also 46 Fed. Reg. 15895, 
15897-8 (March 10, 1981)("'Reasonable expenses' is intended to include 
the types of expenses customarily charged to clients, such as travel
expenses or photocopying, but not items ordinarily included in hourly
fees, such as secretarial services.")

     The interpretation set out in the Commission's Rules is consistent
with the weight of authority in the federal circuit courts of appeal.
The majority of federal courts have construed "fees and other expenses"
language in the EAJA to encompass "costs that are ordinarily billed to
a client."  International Woodworkers of America v. Donovan, 769 F.2d 
1388, 1392 (9th Cir. 1985)(telephone, air courier, attorney travel 
expenses are recoverable); See e.g. Alston v. Secretary of Health and 
Human Services, 808 F.2d 9,12 (2d. Cir. 1986) (telephone, postage, travel
and photocopying expenses are recoverable); Jean v. Nelson, 863 F.2d 759,
777 (11th Cir. 1988)(litigation expenditures recoverable): but see
Massachusetts Fair Share v. Law Enforcement, 776 F.2d 1066, 1069-70 
& nt.2 (D.C. Cir., 1985).

     In this case, Applicant seeks to recover two categories of expenses:
"additional charges" and "interest."  Both categories of expenses  are
separately  and prominently itemized on the legal invoices that support 
the Application.

     With respect to the "additional charges," I find that long distance
calls, postage, duplication, photocopies, fax, express mail, court 
reporter, and Westlaw are the type of expenses that would ordinarily be
billed separately to clients. Counsel for Applicant represented that
these charges are ordinarily billed separately to clients and the 
Secretary has not argued to the contrary.  I further find that these 
additional charges are reasonable expenses of counsel.  None of the 
additional charges appear to be excessive and all of the additional
charges were necessary to enable counsel to advance Applicant's case. 
Therefore, I award $2,118.81 for the expenses identified as additional 
charges.

     In considering Applicant's request for "interest," I am mindful 
that as a general rule, interest awards are not available against the 
United States.  See Library of Congress v. Shaw, 478 U.S. 310, 106
S.Ct. 2957, 2961, 92 L.Ed. 250 (1960).  Applicant, however, is not
seeking an award of interest against the United States. Specifically,
Applicant is not asking for compensation from the United States for
delay in payment by the United States.  Rather, counsel for Applicant
seeks compensation from Applicant for delay in its payment of legal
invoices in the form of "interest on overdue balances."  I find that
the interest expense, which has resulted from Applicant's delay in 
payment, is a reasonable cost of providing legal or any type of 
service.  I further find, as Counsel has represented and the Secretary
has not disputed, that such interest is ordinarily billed separately 
to clients.  Although it is true that Applicant could have avoided 
the interest expense by paying its legal invoices in a timely manner,
I note that Applicant would not have had to pay any legal invoices
whatsoever but for the Secretary's unreasonable attempt to enforce 
the underlying citation. Therefore, I award $2,339.02 for the
expenses identified as interest.

                                 III

                 Fees and Other Expenses for EAJ 96-3

     In addition to seeking fees and expenses incurred in connection 
with the underlying civil penalty proceeding, Applicant has also sought
to recover fees and expenses incurred in presenting and defending its
Application.  In this connection, Applicant has moved to amend its 
original Application to request reimbursement for fees and expenses 
incurred in preparing, defending the Application.  I have granted the
motions to amend the Application.  In the Application, as amended, 
Applicant seeks to recover $17,027.50 in attorney fees in connection
with its preparation and defense of the Application in this proceeding,
Docket No. EAJA 96-3.

A.  Fees for Fees

In considering Applicant's unopposed request, I adopt the position of D.C.
Circuit and hold that a victorious EAJA applicant is entitled to recover fees
and expenses incurred in connection with its EAJA application in an EAJA
proceeding, regardless of whether the Secretary's opposition to the
application was substantially justified or not.  Cinciarelli v. Reagan, 729
F.2d 801, 810 (D.C. Cir. 1984); see also Trichilo v. HHS, 823 F.2d 702, 707
(2nd Cir. 1987); Jean v. Nelson, 148, 155 (3rd Cir. 1987); but see Rawlings
v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984).  As the D.C. Circuit pointed
out:

     if we require every victorious EAJA plaintiff to make a separate claim
     for fees for bringing the first EAJA suit, and permit the government to
     claim that its first EAJA defense was substantially justified on the
     merits, we face the distinct possibility of an infinite regression of
     EAJA litigation.

729 F.2d at 810.  Given that the Commission Rules are silent on the issue
of fees for fees, I view Applicant's fees and expenses incurred presenting 
and defending its Application "as part of the government's cost of taking
positions that are not substantially justified."  Trichilo, 823 F.2d at 707.
I note that my holding appears to be consistent with the Secretary's position
set out in his July 15, 1996, Prehearing response.  ("The Secretary agrees 
that if the Court finds that the Secretary's position in the underlying
proceeding was not substantially justified, Respondent can recover reasonable
attorney fees including those incurred in the presentation of its [sic]
application for fees.")

     By so holding, however, I do not exempt Applicant's request for fees 
and expenses associated with this docket from review. The EAJA provides:

     The adjudicative officer of the agency may reduce the amount to be
     awarded, or deny an award, to the extent that the party during the
     course of the proceedings engaged in conduct which unduly and
     unreasonably protracted the final resolution of the matter in 
     controversy.

5 U.S.C.  504(a)(3); cf. 29 C.F.R.  2704.105(b).  Thus, I review Applicant's
request for fees and expenses in connection with this EAJA proceeding under a
standard of reasonableness.

     In this proceeding alone, counsel for Applicant has expended over 128
hours of legal work.  Although at first blush, it would seem that these hours
are excessive, particularly considering that Counsel spent only 162 hours 
getting the citation vacated in Docket No. WEST 93-462-M, I nonetheless find 
that hours expended by counsel were reasonable.

     First, I note that much of the work performed by counsel for Applicant
focused on the substantial justification issue.  Given that the Secretary 
argued that his position was substantially justified despite my summary 
decision in Docket No. WEST 93-462-M, I think that it was reasonable for
counsel for Applicant to fully rebut the Secretary's arguments on this 
essential threshold issue.

     Second, the instant proceeding raised numerous issues of frst impression
before the Commission.  It appears that in the 15 years since the EAJA's
enactment no other mine operator has ever won an award of attorney's fees
and expenses against MSHA.  I am aware of only one other EAJA decision issued
by the Commission. Russell Collins and Virgil Kelley v. Secretary of Labor 
(MSHA), 5 FMSHRC 1339 (July 1983).  The Collins case involved Section 110(c) 
proceedings and did not reach the issues of apportionment, rate, and expenses 
raised by the Secretary in this proceeding.  Because of the numerous issues 
of first impression raised by the Secretary in this proceeding, counsel for 
Applicant acted reasonably in thoroughly researching and briefing these issues.
I additionally note that the research focused on complex issues of federal
administrative law and conflicting federal circuit law.

     Third, I further note that the "fees for fees" and the "adversary
adjudication" issues addressed in this section also required counsel for
Applicant to undertake considerable research and analysis.

     In summary, I find that Applicant has not unduly or unreasonably 
protracted these EAJA proceedings.  I hold that an award for the 136.22 
hours requested in  the Amended Application, pertaining to Docket
No. EAJ 96-3, is just.

B.  Adversary Adjudication

The final issue that I must address is the rate at which fees will be awarded
for the hours requested in connection with the instant EAJA proceeding.  On
March 29, 1996, Congress amended the EAJA to raise the statutory maximum
attorney fee rate to $125 per hour.  Pub.L. 104-121.  The Amendments apply to
"adversary adjudications commenced on or after the date of the enactment of
this subtitle."  Id.  Although both parties agree that the new rate does not
apply to the underlying proceeding, Docket No. WEST 93-462-M, Applicant argued
that the new rate does apply to the instant EAJA proceedings while the
Secretary argued that it does not apply.

I find that the instant EAJA proceeding is an "adversary adjudication" as
defined by the EAJA.  5 U.S.C.  504(b)(1)(c).  An "adversary adjudication"
is an adjudication "required by statute to be determined on the record after
opportunity for an agency hearing."  5 U.S.C.  554(a); see Escobar Ruiz v.
INS, 838 F.2d 1020, 1023 (9th Cir. 1988).  The EAJA requires EAJA proceedings,
such as Docket No. EAJ 96-3, to be determined on the record after an
opportunity for a hearing.  5 U.S.C.  504(a); 29 C.F.R.  2704 et seq.

I find no merit to the Secretary's arguments to the contrary.  Although the
instant EAJA proceeding, Docket No. EAJ 96-3, is admittedly related to the
underlying civil penalty proceeding, Docket No. WEST 93-462-M, it is,
nonetheless a separate and distinct adjudication.  Compare 5 U.S.C.  504(a)
and 30 U.S.C.  815; compare 29 C.F.R.  2700 et seq. and 29 C.F.R.  2700
et seq. and 29 C.F.R.  2704 et seq.  Moreover, because I have al-ready
decided that the substantial justification defense is not available with
respect to a request for fees for fees, my treatment of the instant EAJA
proceeding as an adversary adjudication, as that term is defined in the EAJA,
will not create "an endless litigation loop" as the Secretary argues.

Given that the instant adversary adjudication, Docket No. EAJ 96-3, was
commenced on April 24, 1996, after the effective date of the EAJA Amendments,
I hold that the $125 per hour rate applies to all fees incurred by Applicant
in connection with Docket No. EAJ 96-3.

                             IV

                    CALCULATION OF AWARD

Based on the foregoing, I calculate the Applicant's award as follows:

Fees:  $36,697.22

     WEST 93-462-M:  $19,669.72
          Direct:  $11,682.25 (reflects 96.15 hours @ $121.50)
          Necessary:  $4,648.59 (reflects 38.26 hours @ $121.50)
          Proportional:  $3,338.88 (reflects 85% of 32.33 hours @ $121.50

     EAJ 96-3:  $17,027.50 (reflects 128.38 hours @ $125.00)

Expenses:  $4,457.83
     Additional Charges:  $2,118.81
     Interest:  $2,339.02

Total Award:  $41,155.05

                                ORDER

     In view of the foregoing, Applicant is AWARDED $41,155.05 in attorney
fees and other expenses in connection with Docket Nos. WEST 93-462-M and
EAJ 96-3.  Pursuant to 29 C.F.R.  2704.310, the Secretary of Labor is
hereby ORDERED TO PAY $41,155.05 to Ruffennach Law Offices COLTAF c/o
Contractor's Sand and Gravel, Inc., 1675 Broadway, Suite 1800, Denver, CO
80202 within 15 days of the date of this Order.

                                 August F. Cetti
                                 Administrative Law Judge

**FOOTNOTES**

     [1]: My Decision of March 25, 1996, is attached as Appendix A.

     The May 28, 1996 "Decision after Remand Approving Settlement" of  the
remaining eight consolidated penalty dockets is attached as Appendix B.

Distribution:

Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department of Labor,
71 Stevenson Street, Room 1110, San Francisco, CA 94105-2999 (Certified Mail)

C. Gregory Ruffennach, Esq., RUFFENNACH LAW OFFICES, 1675 Broadway, Suite 1800,
Denver, CO 80202  (Certified Mail)

/lm

STEVEN R DESMITH ESQ., OFFICE OF THE SOLICITOR, U S DEPARTMENT OF LABOR, 
71 STEVENSON ST #1110, SAN FRANCISCO, CA 94105-2999

C GREGORY RUFFENNACH, ESQ., RUFFENNACH LAW OFFICES, 1675 BROADWAY #1800,
DENVER, CO 80202