The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 16, 2015 Decided April 19, 2016
No. 14-1260
CACTUS CANYON QUARRIES, INC.,
PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
AND SECRETARY OF LABOR,
RESPONDENTS
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Andy Carson was on the brief for petitioner.
Philip Mayor, Attorney, and W. Christian Schumann,
Counsel, U.S. Department of Labor, were on the brief for
respondents. John T. Sullivan, Attorney, Mine Safety and
Health Review Commission, entered an appearance.
Before: KAVANAUGH and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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EDWARDS, Senior Circuit Judge: Petitioner Cactus
Canyon Quarries, Inc. (“Cactus Canyon”) operates a surface
non-coal mine that is required to comply with safety and
health standards promulgated by the Secretary of Labor under
the Federal Mine Safety and Health Act of 1977 (the “Mine
Act”), 30 U.S.C. § 801 et seq. In May 2013, a mine inspector
for the Mine Safety and Health Administration (“MSHA”)
issued seven citations to Cactus Canyon for violations of
those standards. Cactus Canyon then sought to contest the
citations before the Federal Mine Safety and Health Review
Commission (“Commission”). After the case was assigned to
an Administrative Law Judge (“ALJ”), but before any
hearings were held, the Secretary decided to vacate the
citations and moved to have the ALJ dismiss the proceedings.
Over the objection of Cactus Canyon, the ALJ dismissed the
case without indicating whether the dismissal was with or
without prejudice. Following dismissal, Cactus Canyon filed
an application for the award of attorney’s fees under the Equal
Access to Justice Act (“EAJA”), which was opposed by the
Secretary. The ALJ denied the application for fees,
concluding that Cactus Canyon was not a “prevailing party.”
The Commission declined to review the ALJ’s decision.
Cactus Canyon now seeks review of the denial of attorney
fees.
The EAJA provides for the award of attorney’s fees in an
agency adjudication “to a prevailing party other than the
United States . . . unless the adjudicative officer of the agency
finds that the position of the agency was substantially justified
or that special circumstances make an award unjust.” 5 U.S.C.
§ 504(a)(1). The Secretary opposes the petition for review
principally on the ground that Cactus Canyon was not a
“prevailing party” within the meaning of the EAJA. In
advancing this position, the Secretary (as did the ALJ) cites
the Supreme Court’s interpretation of “prevailing party” in
3
Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598
(2001). Cactus Canyon contends that the ALJ should not have
applied Buckhannon’s interpretation of “prevailing party” to
Cactus Canyon’s fee application. Cactus Canyon further
contends, however, that it should be awarded fees even if
Buckhannon controls the disposition of its fee application.
We have made it clear that Buckhannon’s interpretation
of “prevailing party” controls in the application of fee-shifting
statutes, including the EAJA, unless there is some “good
reason” for doing otherwise. See Green Aviation Mgmt. Co. v.
FAA, 676 F.3d 200, 202-03 (D.C. Cir. 2012). Cactus Canyon
has offered no “good reason” to justify a different approach in
this case. Therefore, following this court’s precedent in
Turner v. National Transportation Safety Board, 608 F.3d 12
(D.C. Cir. 2010), we are constrained to hold that, because it is
not a “prevailing party,” Cactus Canyon is not eligible for
fees. Accordingly, the petition for review is denied.
I. BACKGROUND
Under the Mine Act, every surface coal or other mine,
such as the one operated by Cactus Canyon, must be
inspected at least twice a year to ensure compliance with the
Secretary’s mandatory safety and health standards. 30 U.S.C.
§ 813(a). On May 20, 2013, MSHA Inspector Michael
Sonney conducted an inspection of Cactus Canyon’s mine and
issued Cactus Canyon seven citations under section 104(a) of
the Mine Act, 30 U.S.C. § 814(a), for violations of the
Secretary’s standards. The MSHA proposed a $100 penalty
for each violation. Exercising its right under the Mine Act,
Cactus Canyon sought to challenge the seven citations and
accompanying penalties before the Commission.
4
Shortly after the case was assigned to an ALJ, counsel for
the Secretary learned that Inspector Sonney was no longer
employed by the MSHA and was thus unavailable to testify at
a hearing. The Secretary pursued the possibility of a
settlement with Cactus Canyon, but settlement negotiations
failed. Because Inspector Sonney remained unavailable to
testify, the Secretary elected to vacate the citations rather than
litigate the matter before the ALJ.
The Secretary then filed a motion requesting that the ALJ
dismiss the proceedings. Cactus Canyon opposed the
Secretary’s motion by filing a “motion for judgment,” asking
the ALJ to render a judgment in Cactus Canyon’s favor.
Cactus Canyon requested, in the alternative, that the ALJ
dismiss the case with prejudice to the Secretary. On June 16,
2014, the ALJ denied Cactus Canyon’s motion for judgment
and entered an order of dismissal. The ALJ’s order was silent
regarding whether the dismissal was with prejudice.
After dismissal of the underlying proceedings, Cactus
Canyon filed an application for the award of attorney’s fees
under the EAJA, 5 U.S.C. § 504(a)(1). In its application for
fees, Cactus Canyon sought reimbursement for $11,250,
which represented 45 hours of legal work at the “enhanced”
rate of $250 per hour. The ALJ, citing the Supreme Court’s
decision in Buckhannon, denied the application for fees
because Cactus Canyon was not a “prevailing party” under
the EAJA. The ALJ’s judgment rested on two principal
findings: first, the dismissal of the underlying proceedings did
not involve any judicial consideration of the case; and,
second, the dismissal did not provide Cactus Canyon with any
court-ordered relief. Cactus Canyon petitioned the
Commission for discretionary review, see 30 U.S.C.
§ 823(d)(2)(A)(i), which was denied.
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II. ANALYSIS
We review de novo whether Cactus Canyon was a
“prevailing party” under 5 U.S.C. § 504(a)(1). No deference
is due to any agency’s interpretation of the EAJA because it is
a statute of general application. Green Aviation, 676 F.3d at
202.
A. The Court’s Decision in Buckhannon
In Buckhannon, the Supreme Court defined the term
“prevailing party” in fee-shifting statutes, as follows:
Numerous federal statutes allow courts to award
attorney’s fees and costs to the “prevailing party.” The
question presented here is whether this term includes a
party that has failed to secure a judgment on the merits or
a court-ordered consent decree, but has nonetheless
achieved the desired result because the lawsuit brought
about a voluntary change in the defendant’s conduct. We
hold that it does not. . . .
....
In designating those parties eligible for an award of
litigation costs, Congress employed the term “prevailing
party,” a legal term of art. Black’s Law Dictionary 1145
(7th ed. 1999) defines “prevailing party” as “[a] party in
whose favor a judgment is rendered, regardless of the
amount of damages awarded <in certain cases, the court
will award attorney’s fees to the prevailing party>. —
Also termed successful party.” This view that a
“prevailing party” is one who has been awarded some
relief by the court can be distilled from our prior
cases. . . .
6
....
. . . These decisions, taken together, establish that
enforceable judgments on the merits and court-ordered
consent decrees create the “material alteration of the legal
relationship of the parties” necessary to permit an award
of attorney’s fees.
We think, however, the “catalyst theory” falls on the
other side of the line from these examples. It allows an
award where there is no judicially sanctioned change in
the legal relationship of the parties. Even under a limited
form of the “catalyst theory,” a plaintiff could recover
attorney’s fees if it established that the “complaint had
sufficient merit to withstand a motion to dismiss for lack
of jurisdiction or failure to state a claim on which relief
may be granted.” This is not the type of legal merit that
our prior decisions, based upon plain language and
congressional intent, have found necessary. . . . A
defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial
imprimatur on the change. Our precedents thus counsel
against holding that the term “prevailing party”
authorizes an award of attorney’s fees without a
corresponding alteration in the legal relationship of the
parties.
532 U.S. at 600-05 (citations omitted).
Following Buckhannon, we “concluded that the phrase
‘prevailing party’ in [fee-shifting] statutes should be treated
the same . . . unless there is some good reason for doing
otherwise.” Green Aviation, 676 F.3d at 202 (ellipsis in
7
original) (citing Oil, Chem., & Atomic Workers Int’l Union,
AFL–CIO v. Dep’t of Energy, 288 F.3d 452, 455 (D.C. Cir.
2002)). We have “joined other circuits in acknowledging that
the burden of establishing ‘good reason[]’ not to apply
Buckhannon is not easily met.” Id. (alteration in original)
(citation omitted).
Cactus Canyon concedes that we have applied
Buckhannon’s interpretation of the phrase “prevailing party”
to the EAJA administrative adjudication provision, 5 U.S.C.
§ 504(a)(1), that is at issue in this case. We did so in Turner
without “determin[ing] whether the understanding of
‘prevailing party’ in Buckhannon necessarily or always
applies to that phrase in § 504(a)(1).” Turner, 608 F.3d at 15
n.3. And we did so again in Green Aviation, in which we
rejected the petitioner’s efforts to establish “good reason” not
to apply Buckhannon. Green Aviation, 676 F.3d at 203. In the
present case, Cactus Canyon has also failed to present “good
reason” not to apply Buckhannon’s interpretation of
“prevailing party.”
Cactus Canyon first argues that there is “good reason”
based on certain statutory provisions of the Mine Act, which
allegedly differ from the civil rights statutes at issue in
Buckhannon. Cactus Canyon notes that the Mine Act requires
the Secretary to issue citations for violations, makes citations
and accompanying penalties binding until terminated, and
provides separate prosecutorial and adjudicatory functions for
the Secretary and the Commission. But Cactus Canyon never
explains why these purported differences matter. The only
remotely discernable explanation given by Cactus Canyon is
that applying Buckhannon to the administrative adjudication
provision of the EAJA would allow the Secretary to avoid
paying attorney’s fees in certain cases by vacating citations.
This concern is insufficient to prevent the application of
8
Buckhannon to 5 U.S.C. § 504(a)(1). Indeed, in Green
Aviation, we found no merit in an argument that was nearly
identical to the one advanced here by Cactus Canyon. See
Green Aviation, 676 F.3d at 203. The court noted that “in
Buckhannon, the Supreme Court rejected the relevance of
such policy arguments . . . given its view of the ‘clear
meaning’ of the phrase ‘prevailing party.’” Id. (quoting
Buckhannon, 532 U.S. at 610); see also Alegria v. District of
Columbia, 391 F.3d 262, 265 (D.C. Cir. 2004) (recognizing
that Buckhannon had given “short shrift” to similar policy
arguments).
Cactus Canyon argues further that there is “good reason”
based on certain statutory differences between the EAJA’s
administrative adjudication provision and the civil rights
statutes at issue in Buckhannon. Cactus Canyon notes that 5
U.S.C. § 504(a)(1) prohibits fee recovery by the government
and entitles a “prevailing party” other than the government to
recover fees unless the agency’s position was substantially
justified. Again, however, Cactus Canyon neglects to put
forth any rationale for why these purported differences are
significant. We see none.
Finally, Cactus Canyon contends that the legislative
history of the EAJA clearly demonstrates that a defendant
who obtains a voluntary dismissal is entitled to “prevailing
party” status. Tellingly, Cactus Canyon cites as its principal
support a Seventh Circuit decision that expressly rejected this
argument. See Jeroski v. Fed. Mine Safety & Health Review
Comm’n, 697 F.3d 651, 654-55 (7th Cir. 2012). As the
Seventh Circuit noted, despite particular statements in the
EAJA’s legislative history that favor the position advocated
by Cactus Canyon, the legislative history does not make clear
that a voluntary dismissal necessarily entitles a defendant to
“prevailing-party status.” Id. Furthermore, “similar language
9
appeared in the legislative history of the fee-shifting
provisions at issue in Buckhannon, and the Court was
unmoved by it.” Id. at 654 (citing Buckhannon, 532 U.S. at
607-08). Like Cactus Canyon’s other arguments, the EAJA’s
legislative history does not provide “good reason” not to
apply Buckhannon in this case.
B. Cactus Canyon’s Alternative Claim Fails Under
the Law of the Circuit
Cactus Canyon’s alternative claim, that it was a
“prevailing party” under Buckhannon, is foreclosed by this
court’s precedent in Turner.
In Turner, the Federal Aviation Administration (“FAA”)
suspended the certifications of two pilots, who then appealed
to the National Transportation Safety Board (“NTSB”). 608
F.3d at 13. Prior to the scheduled hearing, the FAA withdrew
its complaints and the ALJ issued an order terminating the
proceedings. Id. The ALJ’s order did not specify whether the
dismissal was with or without prejudice. Id. The two pilots
then sought to recover attorney’s fees under the EAJA, 5
U.S.C. § 504(a)(1). Id. The Turner court explained that this
circuit “has distilled from Buckhannon a three-part test for
determining whether a party has ‘prevailed’: (1) there must be
a court-ordered change in the legal relationship of the parties;
(2) the judgment must be in favor of the party seeking the
fees; and (3) the judicial pronouncement must be
accompanied by judicial relief.” Turner, 608 F.3d at 15
(citation omitted). Applying this test, the court held that the
pilots were not “prevailing parties” because they had failed to
obtain judicial relief. Id. at 16.
The court concluded that although the ALJ’s order was
silent on the subject, the ALJ had dismissed the pilots’
10
complaints without prejudice. Id. at 15. The court reasoned
that such a conclusion was consistent with the rule in civil
proceedings that, in situations such as those posed in Turner,
the dismissal is presumed to be without prejudice. Id. (citing
FED. R. CIV. P. 41(a)(2)). Furthermore, treating the silent
order as a dismissal without prejudice was consistent with
NTSB practice. Id. at 15-16.
Ultimately, the court in Turner explained:
Because the ALJ dismissed the cases without
prejudice, there was nothing in th[e] case analogous to
judicial relief. . . . For all practical purposes, the FAA had
unilaterally ended the adversarial relationship between
the parties, leaving them where they were before the
complaint was filed. . . . Had the ALJ done nothing, the
pilots would have been in essentially the same position as
they were after the ALJ dismissed th[e] case. These
circumstances do not make them prevailing parties
according to the criteria of Buckhannon . . . .
Id. at 16 (citations omitted).
The material facts in the present case are nearly identical
to those at issue in Turner. The Secretary issued citations to
Cactus Canyon, who then appealed to the Commission. Prior
to the scheduled proceedings, the Secretary withdrew the
citations and the ALJ issued an order terminating the case.
And although the ALJ’s order was silent on the subject, it is
properly viewed as a dismissal without prejudice. See 29
C.F.R. § 2700.1(b) (“On any procedural question not
regulated by the [Mine] Act, these Procedural Rules, or the
Administrative Procedure Act . . . , the Commission and its
Judges shall be guided so far as practicable by the Federal
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Rules of Civil Procedure and the Federal Rules of Appellate
Procedure.”).
In USA Cleaning Service & Building Maintenance v.
Secretary of Labor, 33 FMSHRC 2264 (2011), aff’d sub nom.
Jeroski, 697 F.3d 651, which is similar to this case, the ALJ
issued an order granting the Secretary’s motion to dismiss the
underlying proceeding. The order was silent on whether
dismissal was with prejudice. The employer subsequently
sought fees under EAJA. In a decision relying heavily on
Turner, the ALJ found that the employer was not a
“prevailing party” because the underlying proceeding had not
been dismissed with prejudice. Id. at 2268. The same
conclusion follows from the facts here. The Secretary
unilaterally ended its relationship with Cactus Canyon,
leaving the parties where they were before the citations were
issued. And the order of dismissal was not with prejudice.
Therefore, we are bound by our previous determination in
Turner that, given these circumstances, Cactus Canyon is not
a “prevailing party.”
Cactus Canyon attempts, unsuccessfully, to distinguish
Turner. Cactus Canyon notes that in this case the MSHA
sought civil penalties, whereas in Turner the FAA sought
injunctive-type relief. This is true, but irrelevant. Nothing in
Turner suggests that the type of remedy was germane to the
court’s “prevailing party” analysis, nor has Cactus Canyon
identified a basis for according this factual difference any
significance. Cactus Canyon also claims that more time
elapsed in this case between the initiation of the
administrative proceedings and the termination of the case
than in Turner. Again, nothing in Turner suggests that the
amount of time elapsed is relevant to determining whether the
EAJA applicant is a “prevailing party,” nor has Cactus
Canyon provided a reason why it is relevant.
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“[T]he precedential value of a decision is defined by the
context of the case from which it arose.” UC Health v. NLRB,
803 F.3d 669, 683 (D.C. Cir. 2015) (Edwards, J., concurring).
“If, in light of that context, the decided case is materially or
meaningfully different from a superficially similar later case,
the holding of the earlier case cannot control the latter.” Id.
Here, there is no material or meaningful difference between
the facts at hand and the facts in Turner. Turner is thus
controlling. We do not say this lightly. “For judges, the most
basic principle of jurisprudence is that we must act alike in all
cases of like nature because [i]nconsistency is the antithesis of
the rule of law.” Id. at 681 (citing LaShawn A. v. Barry, 87
F.3d 1389, 1393 (D.C. Cir. 1996) (alteration in original) (en
banc)).
In an effort to avoid Turner, Cactus Canyon cites the
Commission’s decision in Secretary of Labor v. Black
Diamond Construction, Inc., 21 FMSHRC 1188 (1999). In
that case, the Commission awarded attorney’s fees under
EAJA after the Secretary had vacated citations. Id. at 1188.
But, as Cactus Canyon acknowledges, “[t]he Secretary did not
try to advance a ‘prevailing party’ defense in Black
Diamond.” Br. of Petitioner at 45. And, more importantly,
Black Diamond was decided before the Supreme Court’s
decision in Buckhannon, and before this court’s decision in
Turner. It thus carries no weight here.
Cactus Canyon also argues that the Commission’s
dismissal following the Secretary’s decision to vacate the
citations has res judicata effect, and because the Secretary is
prohibited from re-issuing the citations, Cactus Canyon is a
“prevailing party.” This argument is likewise baseless. In
District of Columbia v. Straus, we noted that “[r]es judicata
effect would certainly qualify as judicial relief where, for
13
example, it protected the prevailing [party] from having to
pay damages or alter its conduct.” 590 F.3d 898, 902 (D.C.
Cir. 2010). In Green Aviation, we applied this principle to
find that the petitioner was a “prevailing party” under 5
U.S.C. § 504(a)(1). There, the FAA brought and then
withdrew a complaint against a chartered flight operator for
allegedly violating the FAA’s safety regulations. 676 F.3d at
201. Following the FAA’s withdrawal of the complaint, the
ALJ dismissed the proceedings with prejudice. Id. In a
subsequent proceeding for attorney’s fees under the EAJA,
we reversed the FAA Administrator’s determination that the
petitioner was not a “prevailing party” under Buckhannon. Id.
at 205. We explained that the petitioner had sufficiently
obtained judicial relief because “the dismissal with prejudice
has res judicata effect” and the agency was therefore barred
from re-filing a complaint based on the same set of facts. Id.
at 204-05. We noted that, unlike in Turner, the parties were
“not where they were before the complaint was filed.” Id. at
204 (citing Turner, 608 F.3d at 16). Instead, the petitioner was
“protected . . . from having to pay damages” because of the
dismissal with prejudice. Id. (ellipsis in original) (citation
omitted).
Nothing in the record before us suggests that the ALJ’s
dismissal in this case has res judicata effect or bars the
Secretary from re-issuing the citations against Cactus Canyon.
Unlike in Green Aviation, the ALJ’s dismissal in this case
was without prejudice. “Dismissal without prejudice is a
dismissal that does not operate as an adjudication upon the
merits, and thus does not have a res judicata effect.” Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)
(alterations, ellipsis, and citation omitted). The Commission
can, as it has done in the past, dismiss proceedings with
prejudice when the Secretary vacates a citation. See, e.g.,
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Sec’y of Labor v. N. Am. Drillers, LLC, 34 FMSHRC 352,
355 (2012). But it did not do so here.
III. CONCLUSION
For the foregoing reasons, Cactus Canyon is not a
“prevailing party,” and we deny the petition for review.