ILNews

Attorneys not entitled to fees after agency drops order

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

ADVERTISEMENT