<DOC>
[DOCID: f:eaj96-5.wais]

 
SAMUEL J. MCLAUGHLIN, employed by CONSOLIDATION COAL COMPANY
November 14, 1996
EAJ 96-5


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          November 14, 1996

SAMUEL J. MCLAUGHLIN, Employed     :  EQUAL ACCESS TO JUSTICE
  by CONSOLIDATION COAL COMPANY    :    PROCEEDINGS
                    Applicant      :
                                   :  Docket No. EAJ 96-5
          v.                       :
                                   :  Formerly WEVA 94-366
SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :
                    Respondent     :

               ORDER REQUIRING FURTHER SUBMISSIONS

     This proceeding arises under the Equal Access to Justice
Act (28 U.S.C.  2412, et seq.) (EAJA).  The Applicant, Samuel
J. McLaughlin, seeks an award of legal fees and expenses
resulting from his defense of the Secretary of Labor's
allegation that McLaughlin "knowingly, authorized, ordered,
or carried out" a violation of 30 C.F.R.  75.1101-23, a
mandatory safety standard for underground coal mines.  The
allegation was the subject of a civil penalty proceeding
filed by the Secretary pursuant to section 110(c) of the
Federal Mine Safety and Health Act of 1977 (30 U.S.C. 
 820(c); Secretary of Labor, Mine Safety and Health
Administration (MSHA) v. Samuel J. McLaughlin, employed by
Consolidation Coal Company, Docket No. WEVA 94-366).  The
proceeding was consolidated with other civil penalty proceedings
(Consolidation Coal Company, Docket No. WEVA 94-57,  J.T.
Straface employed by Consolidation Coal Company, Docket No.
WEVA 94-368, and Robert Welch, employed by Consolidation
Coal Company, Docket No. WEVA 94-384), and the cases were
tried together at a duly noticed hearing.

     After the hearing, the Secretary moved to dismiss the
section 110(c) allegation against McLaughlin.  I granted the
motion in a decision on the merits of the consolidated
cases.  I stated, "[T]he Secretary [has] moved to dismiss
the section 110(c) allegation against McLaughlin . . . .
The case is the Secretary's to bring and the Secretary's to
prosecute.  I do not question the Secretary's judgement in
this regard" (Consolidation Coal Company, 16 FMSHRC 1189,
1238-39, (July 1996)).

     The decision was appealed to the Commission, which 
granted review on August 28, 1996.  Because review does not
encompass that portion of the decision dismissing the
section 110(c) allegation against McLaughlin, I regard the
dismissal as final for the purpose of this proceeding (See
29 C.F.R.  2704.204(c)).

                   NEED FOR FURTHER SUBMISSIONS

     The Commission's rules require determination of an EAJA
award to be based on the record of the proceeding for which
fees and expenses are sought, except that the judge may
order such further proceedings or submissions as are
necessary for full and fair resolution of issues arising
from the application (29 C.F.R.  2704.306(B)).

     The first prerequisite for EAJA entitlement is that the
award be made to a "prevailing party."  McLaughlin meets
this requirement.  He was a "party" to the underlying civil
penalty proceeding, and the Secretary's case against him was
dismissed on the Secretary's motion.

     Second, if a prevailing party is an individual, he or she
must have a net worth of no more than $2 million; or, if a
business, must have a net worth of no more than $7 million
with no more than 500 employees (28 U.S.C.  1412(d)(2)(B)).
McLaughlin is an individual and his net worth is less than
$2 million.  (The Secretary does not dispute McLaughlin's
sworn statement that his net worth (assets less liabilities)
is $115,302.51 (Application for Award of Fees, Exh. A; see
Sec.'s Response to Application).

     Thus, McLaughlin meets two of the prerequisites for
entitlement, and, under the Commission's rules, the burden
shifts to the Secretary to establish that the position taken
against McLaughlin was "substantially justified" (29 C.F.R.
 2704.105(a)).  However, before the issue of justification
can be considered, there is a question that requires further
submissions from McLaughlin.

     McLaughlin seeks attorneys fees of $19,695 and costs and
expenses of $13,044.97.  He claims this represents "his
attorney's fees and expenses in defending the . . . section
110(c) proceeding brought against him by the Secretary" (Id.
4, emphasis added).  Appendix B, which is attached to
McLaughlin's application, details his claims, but as the
Secretary's counsel notes, McLaughlin has not submitted any
evidence that "he actually incurred the costs and expenses 
listed" (Sec.'s Response to Application 15).

     The principal purpose of the EAJA is to "to avoid the
deterring effect which liability for attorney fees might
have on parties' willingness and ability to litigate
meritorious civil claims or defenses against the Government"
(U.S. v. Paisley, 957 F.2d 1161,ll64 (4th Cir. 1992)).
Obviously, if another party pays the claimed fees and
expenses; or, if the claimant knows, through a formal
agreement or otherwise, that another party will pay them,
the claimant may not be hindered in the ability to litigate.
Obviously, as well, the claimant may subvert the "net worth"
prerequisite of  2412(d)(2)(B), by "standing in" for a
business worth more than $7 million and with more than 500
employees.  The claimant may not have "incurred" the costs
within the meaning of  2412(d)(1)(A) (S.E.C. v. Comserv
Corp, 908 F2d 1407, 1413-1416 (8th Cir. 1990)).

     In such instances, the party seeking reimbursement may have
to establish that he or she actually paid or was otherwise
responsible for the claimed amounts and was not reimbursed,
or was not entitled to reimbursement.

     ACCORDINGLY, it is ORDERED that within 15 days of the date
of this order McLaughlin submit the following:

     l.  A copy of the bill for each fee and expense claimed;

     2.  A copy of the check or receipt showing the identity of
         the payee, the amount of the payment and the date of
         Payment for each fee and expense claimed;

     3.  A copy of any written contract or other written
         agreement entitling McLaughlin to reimbursement for
         payment of any fee and expense claimed, or a sworn
         Written description of any such oral agreement;

     4.  If McLaughlin has paid any of fees or expense claimed,
         and has been reimbursed, a sworn statement
         specifying the fee or expense paid, the date of
         payment, the amount and date of reimbursement and the
         identity of the reimbursing entity;

     5.  If another entity or person has paid any claimed fee or
         Expense, a sworn statement specifying the fee or expense
         paid, the identity of the payer and when such payments
         Were made;

     6.  If another entity or person has promised or otherwise
         entered into an obligation to pay any of the claimed
         amounts but has not yet paid them, a sworn statement
         Explaining the details of said promise or obligation,
         include the identity of the entity or person obligated
         to pay and any contingencies attending the promise or
         obligation.


                                   David Barbour
                                   Administrative Law Judge


Distribution:

Stephen D. Williams, Esq., Steptoe & Johnson, P.O. Box 2190,
Clarksburg, WV 26302-2190 (Certified Mail)

James B. Crawford, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., 4th Floor, Arlington, VA 22203
(Certified Mail)

/lt