USDOL/OALJ Reporter: ARB Decision Caselist -- August 2009

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Summary :

ATTORNEY FEE PETITION; DOCUMENTATION REQUIREMENTS

In Evans v. Miami Valley Hospital , ARB Nos. 08-039, 08-043, ALJ No. 2006-AIR-22 (ARB Aug. 31, 2009), the ARB summarized the documentation requirements for petition for attorney's fees and costs in an AIR21 case:

    A successful AIR 21 complainant is entitled to receive all costs and expenses, including attorney's fees, reasonably incurred in bringing the complaint. A prevailing party is entitled to reimbursement for attorney's fees and legal expenses and costs, including expert witness fees.

    The ARB has endorsed the lodestar method to calculate attorney's fees. This requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate. As the Supreme Court explained in Hensley v. Eckerhart , unreasonably expended hours include those that are (1) excessive in relationship to the task performed, (2) redundant or duplicative because multiple attorneys performed the same task, or (3) unnecessary or inappropriate because the task is not properly billed to clients.

    An attorney seeking a fee award must submit evidence documenting the hours worked and the rates claimed, as well as records identifying the date, time, and duration necessary to accomplish each specific activity and all claimed costs. The burden of proof is also on the attorney to demonstrate the reasonableness of his hourly fee by producing evidence that the requested rate is in line with fees prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. If the documentation of hours is inadequate, the award may be reduced accordingly. Further, hours that are not properly billed to a client are also not properly billed to an adversary.

USDOL/OALJ Reporter at 2-4 (footnotes omitted).

ATTORNEY FEE PETITION; ALJ'S DISCRETION IN SETTING HOURLY RATES

In Evans v. Miami Valley Hospital , ARB Nos. 08-039, 08-043, ALJ No. 2006-AIR-22 (ARB Aug. 31, 2009), the ARB found that the ALJ acted within his discretion in awarding an hourly rate to the Complainant's attorney at the higher end of the spectrum suggested by an expert for one of the Respondents. Although the Respondents objected to the setting of the rates at the high end of the spectrum, the ARB noted that the ALJ had thoroughly discussed the hourly rates of the two principal attorneys and their associates, and the arguments of the Respondents; that he relied on the affidavits of two other attorneys who practiced in the relevant legal community; that the Respondent had suggested no alternative rates; that the aforementioned expert of the Respondent had provided evidentiary support for the hourly rates the ALJ set; and that the ALJ actually presided at the hearing and had the opportunity to evaluate the ability and expertise of the attorneys.

ATTORNEY FEE PETITION; RATE FOR ATTORNEY WHO HAD GRADUATED BUT HAD NOT YET BEEN LICENSED

In Evans v. Miami Valley Hospital , ARB Nos. 08-039, 08-043, ALJ No. 2006-AIR-22 (ARB Aug. 31, 2009), a Respondent argued for a reduction in the fee rate assigned to an attorney who had graduated, but who was not yet licensed. The Respondent argued that the rate should be the local rate for law school clerks. The ARB, however, found that the evidence supported the ALJ's findings with regard to local prevailing rates and his selection of an hourly rate was within his discretion.

ATTORNEY FEE PETITION; BLOCK BILLING AND TIME-AND-TASK ENTRIES; SUFFICIENT DETAIL

In Evans v. Miami Valley Hospital , ARB Nos. 08-039, 08-043, ALJ No. 2006-AIR-22 (ARB Aug. 31, 2009), the ARB faulted the ALJ for not elaborating sufficiently on why he found the Complainants' attorneys' time-and-task entries to be sufficiently detailed and to represent time reasonably expended in furtherance of Complainant's case. Specifically, the ARB found that the ALJ's decision was deficient because he failed to make specific findings of fact regarding the reasonableness of the block-billed, time-and-task entries for services. The ARB therefore examined the records itself. In regard to block billing and charges for conferencing, the ARB wrote:

    Block billing is a time-keeping method by which a lawyer enters "the total daily time spent working on a case, rather than itemizing the time expended on specific tasks." Such billing can make it difficult to determine the reasonableness of the hours expended, but the use of block billing does not justify an across-the-board reduction or rejection of all hours. Rather, a fixed reduction can be appropriate if a significant number of entries lack adequate detail or are not properly billable to clients.

    While block billing does not necessarily deprive a court of a basis upon which to determine the reasonableness of the hours an attorney expended on specific tasks, such bundled or batch billing does impede a court's ability to discern the time spent on tasks that are properly billable and discount the time spent on those that are vaguely described, duplicative, or not compensable at all. For example, entries that describe the service rendered as "office conference" may involve duplication of attorney work or training time and, without justifying detail, are not normally billable to private clients. Also, an unusually large amount of time billed as telephone conferences or internal meetings is not recoverable. In Welch , the Sixth Circuit affirmed the district court's reduction of 5.75 hours spent in intra-office conferences as unnecessary given counsel's experience and the petition's lack of justification for such conferences.

    Finally, while the mere fact of attorneys conferring with each other does not necessarily constitute duplication of services, the number of hours requested may be reduced when two or more attorneys work on a case because their involvement necessarily tends to generate a certain amount of overlap. For example, a local rule for the Maryland district court provides that only one lawyer is to be compensated for intra-office conferences except those that are reasonably necessary for proper management of the litigation. Thus, a party may only recover time that a single, participating attorney spent at intra-office conferences, client and third-party meetings, and in hearings.

 

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    [A]s we have said, the attorney seeking fees bears the burden of proof to show that the claimed hours of compensation are adequately demonstrated and reasonably expended. Where the billing descriptions do not provide sufficient documentation to determine the reasonableness of the hours claimed, a reviewing body need not engage in an item-by-item reduction of the hours, but may instead reduce the lodestar fee by a set percentage. ...

USDOL/OALJ Reporter at 8-10 (footnotes omitted). In the instant case, the ARB found that most time entries were, in context, sufficiently specific, but found enough lack of detail or apparent duplication between the two attorneys, to merit an across-the-board reduction of five percent for one of the attorneys, and fifteen percent for the other.

ATTORNEY FEE PETITION; EVIDENTIARY HEARING ON USUAL HOURLY RATE IS NOT MANDATED BECAUSE DOL USES LODESTAR METHOD

In Evans v. Miami Valley Hospital , ARB Nos. 08-039, 08-043, ALJ No. 2006-AIR-22 (ARB Aug. 31, 2009), the Respondents argued that the ALJ erred when he denied their requests for an evidentiary hearing to determine the customary billing rates of the Complainant's attorneys, arguing that a hearing is mandated when the facts regarding a fee petition and an hourly rate are disputed. The ARB rejected this argument, writing: "While an attorney's usual hourly rate can constitute evidence of the prevailing market rate, we have held that the prevailing market rate, as established by the attorney seeking a fee, is the key factor in determining a reasonable billing rate under the lodestar method, not the attorney's usual hourly rate or his fee arrangement with other clients." USDOL/OALJ Reporter at 15 (footnotes omitted).

 

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Summary :

COVERED EMPLOYER; NON-PUBLICLY TRADED SUBSIDIARY, LIABILITY BASED ON AGENCY RELATIONSHIP IN REGARD TO FIRING OF COMPLAINANT

In Klopfenstein v. PPC Flow Technologies Holdings, Inc. , ARB Nos. 07-021, 07-022, ALJ No. 2004-SOX-11 (ARB Aug. 31, 2009), the ARB affirmed the ALJ's holding that the non-publicly traded subsidiary of a publicly traded parent company had acted as the parent's agent for the purpose of discharging the Complainant, and therefore was properly named as a Respondent in the Complainant's SOX complaint. The Complainant was vice president of a division of a subsidiary of the aforementioned subsidiary. A revenue recognition policy, on which basis the Complainant was discharged, was a policy of the parent company; an employee in the parent's finance department had learned of the violation; the official who fired the Complainant was both president of the subsidiary and executive vice president of the parent; that official conferred with other senior managers from both the subsidiary and the parent following an investigation of and report on the violation of the policy. However, the vice president of finance for the subsidiary at which the Complainant was employed was not an agent and was not proper Respondent under SOX. He had investigated the issue and prepared a report, but was not a decision maker in the termination of the Complainant's employment.

CONTRIBUTING CAUSE NOT SHOWN

In Klopfenstein v. PPC Flow Technologies Holdings, Inc. , ARB Nos. 07-021, 07-022, ALJ No. 2004-SOX-11 (ARB Aug. 31, 2009), the ARB affirmed the ALJ's holding that the Complainant failed to prove that his complaints about an overstatement of revenue were a contributing factor in the decision to discharge the Complainant. The evidentiary value of the temporal proximity of the alleged protected activity (neither the ALJ or the ARB reached the issue of whether the Complainant had actually engaged in protected activity under SOX) was defeated in part by the intervening event that the Complainant had been found to have violated a company policy on revenue recognition. Although other employees were not disciplined over the revenue recognition issue, the ALJ had accepted the testimony of officials making a distinction between the Complainant - who had directed and fostered an atmosphere that allowed a violation of the policy - and others who did not understand the implications of the actions (which involved shipping items off premises so that revenue would be recognized before title and risk of loss had passed to the customer). The ALJ relied on testimony of the Complainant's subordinates that he directed them to move inventory and post close-outs to find that the Complainant had not established pretext. The ARB found no evidence to support the Complainant's contention that the Respondent had provided shifting explanations for the discharge.

 

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Summary :

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING NOT AVAILABLE WHERE COMPLAINANT REPRESENTED BY AN ATTORNEY OR BASED ON IGNORANCE OF THE FILING PERIOD

In McCrimmons v. CES Environmental Services , ARB No. 09-112, ALJ No. 2009-STA-35 (ARB Aug. 31, 2009), the ARB agreed with the ALJ that the Complainant was not entitled to equitable tolling of the limitations period for filing an STAA complaint where the Complainant had been represented by an attorney. Moreover neither the Complainant's own lack of awareness of the filing period, or his inability to discover it, justified equitable tolling.

 

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Summary :

PROTECTED ACTIVITY; CONCERNS ABOUT PERFORMANCE OF COWORKERS

LIMITATION ON DISCOVERY WHERE COMPLAINT DOES NOT ALLEGE PROTECTED ACTIVITY SUFFICIENT TO SURVIVE 12(b)(6) MOTION

In Neuer v. Bessellieu , ARB No. 07-036, ALJ No. 2006-SOX-132 (ARB Aug. 31, 2009), the Complainant filed a SOX complaint alleging that he had been fired for disclosing concerns about the performance of two managers. The ALJ granted dismissal under FRCP 12(b)(6) on the ground that the complaint did not allege protected activity under SOX. The ARB affirmed, writing:

    A SOX complaint "should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations." A failure to comply with the indicated level of specificity could subject the complainant to dismissal. As we have already noted, according to his OSHA complaint, Neuer disclosed to Dvash that one manager was overworked, and the other was incompetent and redundant. Neuer did not allege that he believed, at the time he made disclosures of his concerns to Dvash, that the two managers, or anyone else, engaged in mail fraud, wire fraud, bank fraud, or securities fraud. Likewise, he did not allege that the managers violated any SEC rules and regulations, which regulate the issuance of, and transactions involving, the securities of publicly traded corporations. A mere possibility that a challenged practice could adversely affect the financial condition of a corporation, and that the effect on the financial condition could in turn be intentionally withheld from investors, is not enough. For example, although a company that tolerates incompetence or poor management may not be acting in the best interests of its shareholders, a SOX-protected activity must involve an alleged violation of a federal law directly related to fraud or securities violations. "SOX protects shareholders from inaccurate reporting of a publicly held corporation's financial condition . . . . Providing information to management about questionable personnel actions, racially discriminatory practices, executive decisions or corporate expenditures with which the employee disagrees, or even possible violations of other laws . . . standing alone, is not protected conduct under the SOX."

USDOL/OALJ Reporter at 5-6 (footnotes omitted). On appeal, the Complainant argued that he could have had a better chance of proving protected activity if OSHA had done a full investigation and the ALJ had allowed follow-up discovery and an evidentiary hearing. The ARB dismissed this argument:

But he was not entitled to an investigation and a full bearing [sic] because his OSHA complaint does not allege any facts that, if true, would establish that he engaged in SOX-protected activity. OSHA will not conduct an investigation of a complaint unless the complainant "makes a prima facie showing" that protected activity was a contributing factor in the adverse action that the complainant suffered. Therefore, OSHA did not err in declining to investigate his complaint, and the ALJ did not err in denying him discovery and an evidentiary hearing.

USDOL/OALJ Reporter at 6 (footnote omitted).

 

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Summary :

DEFAULT JUDGMENT BASED ON FAILURE TO FILE TIMELY PRE-HEARING STATEMENT

In Sisfontes v. International Business Software Solutions, Inc. , ARB Nos. 07-107, 07-114, ALJ No. 2007-LCA-14 (ARB Aug. 31, 2009), the ARB found that the ALJ did not abuse his discretion in finding that the Respondents had not shown good cause for the late filing of a pre-hearing statement.

 

INA "WHISTLEBLOWER" PROVISION DOES NOT EMPOWER ADMINISTRATOR TO IMMUNIZE A COMPLAINANT FROM A LAWSUIT BY THE RESPONDENTS

In Sisfontes v. International Business Software Solutions, Inc. , ARB Nos. 07-107, 07-114, ALJ No. 2007-LCA-14 (ARB Aug. 31, 2009), the ALJ entered a default judgment against the Respondents, and ordered them to pay the Complainant back wages and reimbursement for the filing fees associated with processing the LCA. On appeal the Complainant argued that the ALJ should have granted him immunity grounded in whistleblower protection under the Immigration and Nationality Act and a state employee protection law because the default decision left open the possibility that the Respondents would sue him for disclosing information about illegal activity and for cooperating with the Wage and Hour investigator. The ARB rejected this argument because (1) it had no jurisdiction in regard to the state law, (2) the Wage and Hour Administrator had not made a finding on an INA whistleblower claim, (3) the Complainant did not ask for imposition of civil money penalties or reinstatement under the INA, and (4) the clause of the INA whistleblower law giving the Administrator discretion to impose "such other administrative remedies as the Administrator determines to be appropriate" does not permit the Administrator to order immunity from a lawsuit. Thus, the ALJ did not err in limiting remedies to back pay and a refund of the filing fee.

 

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Summary :

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON FILING IN WRONG FORUM

In Bedwell v. Spirit Miller NE, LLC , ARB No. 09-094, ALJ No. 2009-STA-29 (ARB Aug. 27, 2009), the ARB affirmed the ALJ's finding that the Complainant had not shown equitable grounds for tolling his untimely STAA complaint. The Complainant had presented a notice of an IRS case determination, but did not show that he had filed an STAA complaint with the IRS within the STAA limitations period.

 

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Summary :

Approval of settlement agreement

 

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Summary :

Approval of settlement agreement

 

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Summary :

[STAA Digest XI A 1]
WITHDRAWAL OF OBJECTIONS TO ALJ DECISION; SATISFACTION OF OBLIGATIONS UNDER ALJ'S ORDER AND PAYMENT OF ALL FEES AND COSTS, RESULTING IN RELEASE BY COMPLAINANT

In Bess v. J.B. Hunt Transport, Inc. , ARB Nos. 08-034, 08-069, ALJ No. 2007-STA-34 (ARB Aug. 26, 2009), the ALJ found in favor of the Complainant. On automatic review by the ARB, the Respondent informed the ARB that it opposed the ALJ's decision. The Complainant's attorneys filed a fee petition with the ALJ. However, about a month later, the Complainant's attorney sent a letter to the ALJ reporting that the Respondent had fully satisfied all of its obligations pursuant to the ALJ's recommended decision, and had paid all attorney's fees and costs. In turn the Complainant had released all claims against the Respondent, and now requested that the ALJ dismiss the matter with prejudice. The ALJ dismissed the attorney fee petition with prejudice, and forwarded the letter to the ARB. When neither party responded to the ARB's notice of review or a subsequent order to show cause, the ARB found that the Respondent had withdrawn its objections to the ALJ's decisions, and therefore affirmed those decisions.

 

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Summary :

Approval of settlement agreement

 

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Summary :

Approval of withdrawal

 

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Summary :

Dismissal for failure to prosecute appeal before the ARB

 

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Summary :

Dismissal based on Complainant's removal of complaint to federal district court pursuant to 49 U.S.C. � 31105(c) (complaint may be filed in district court if DOL does not issue a final decision within 210 days after filing of complaint)

 

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Summary :

Because no regulations have yet been promulgated to govern FRSA whistleblower complaints, the ALJ forwarded his decision to the ARB for possible review. The ARB issued an order notifying that if a party wanted review, it must file a petition. When neither party filed a petition, the ARB closed the case and stated that the ALJ's decision became the Secretary's final order.

 

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Summary :

[STAA Digest IV C 5]
PRETEXT NOT SHOWN; RESPONDENT'S POLICY THAT DRIVERS MUST REPORT WHEN THEN WILL NEXT BE AVAILABLE TO DRIVE

In Madden v. Midwest Transport, Inc. , ARB No. 08-004, ALJ No. 2006-STA-42 (ARB Aug. 8, 2009), the ARB affirmed the ALJ's findings that, although the Complainant engaged in protected activity when he reported to his supervisor that he was over hours and could not make the next day's 9:00 am run, he failed to comply with the Respondent's policy that he report when he could next drive, and failed to prove that his termination for this failure was a pretext for retaliation.

 

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