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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