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Attorneys not entitled to fees after agency drops order

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Addressing for the first time what qualifies as a “prevailing party” under the Equal Access to Justice Act, the 7th Circuit Court of Appeals sided with several other appellate courts that have ruled on the issue.

In Edward Jeroski, doing business as USA Cleaning Service and Building Maintenance v. Federal Mine Safety and Health Review Commission and U.S. Secretary of Labor, 11-3687, the Circuit Court was asked to review the denial by the Federal Mine Safety and Health Review Administration for attorney fees paid fighting an order imposed by the agency that janitors employed by USA Cleaning at the Essroc Cement Corp. cement plant in Logansport, Ind., undergo 24 hours of safety training. The agency forbade USA Cleaning to allow the janitors to reenter the plant until they completed the training.

Essroc stepped in and hired attorneys on behalf of USA Cleaning. Those attorneys racked up $22,000 in legal bills while contesting the order, arguing that the cement plant doesn’t constitute a mine and therefore isn’t subject to the order. The agency vacated the order, and the Federal Mine Safety and Health Review Commission dismissed, without prejudice, USA Cleaning’s contest proceeding. The commission also denied attorney fees.

Judge Richard Posner authored the 12-page opinion, in which the 7th Circuit agreed with the Secretary of Labor that USA Cleaning was not a “prevailing party” in the aborted agency proceeding.

All eight federal appellate courts to have considered this issue have found that USA Cleaning would not be considered a “prevailing party” under the Equal Access to Justice Act. Although those cases have dealt with the section of the act on judicial adjudication, the judges found no reason to deviate from the rulings pertaining to an administrative adjudication, as is the case here.

“And while not all the decisions involve voluntary dismissals, all hold that a ‘prevailing party’ is a party that obtains relief which determines or affects its legal status, as would have happened in this case had the review commission, rather than dismissing the contest proceeding without prejudice, ruled that USA Cleaning’s employees were not ‘miners’ within the meaning of the mine-safety act and the regulations under it,” Posner wrote in dismissing the petition for review.

Posner also noted the court’s disapproval of USA Cleaning’s denunciation of the Secretary of Labor’s brief as “vitriolic.” The company’s reply brief is “bumptious, hyperbolic — even vitriolic — an angry Essroc speaking through Essroc’s lawyers. We realize there’s no love lost between mine operators and their federal regulators, but we expect the lawyers to be temperate,” the court concluded in denying the petition for review.

 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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