USDOL/OALJ Reporter: ARB Decision Caselist - August 2015

CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT COMPLAINANT FAILED TO ESTABLISH CONTRIBUTING FACTOR BY A PREPONDERENCE OF THE EVIDENCE

In Mercier v. Union Pacific R.R. , ARB No. 13-048, ALJ No. 2008-FRS-4 (ARB Aug. 26, 2015), the ARB summarily affirmed the ALJ’s decision denying Complainant’s claim of a violation of FRSA for disciplining and terminating him. The ARB found that the ALJ’s decision that Complainant failed to prove that his protected activity was a contributing factor to the adverse action was supported by substantial evidence. Judge Brown concurred.

STAY OF ARB ORDER: FRAP 18(A) (2) (A); FILING OF PETITION FOR REVIEW WITH COURT OF APPEALS OF ARB DECISION DIVESTS ARB OF JURISDICTION TO RULE ON REQUEST FOR STAY UNLESS REQUEST MADE TO ARB PRIOR TO FILING PETITION FOR REVIEW WITH COURT

LAW OF THE CASE DOCTRINE PRECLUDES ARB FROM GRANTING STAY RELIEF AND RELIEF OF SUPERSEDEAS BOND WHICH WAS PREVIOUSLY DETERMINED BY A HIGHER COURT

Rule 18(a)(a) of the Federal Rules of Appellate Procedure requires that a petitioner must ordinarily move first before the agency for a stay pending review of its decision or order. In Gunther v. Deltek, Inc. , ARB No. 15-074, ALJ No. 2010-SOX-49 (ARB Aug. 20, 2015), the ARB had affirmed the ALJ’s decision finding a violation of the whistleblower provision of SOX, and affirmed with modification the ALJ’s award of injunctive and monetary relief . The Complainant moved for reconsideration and clarification. Before the ARB ruled on the motion, the Respondent appealed to the Fourth Circuit. The Respondent did not request a stay from the ARB prior to filing the appeal. After the appeal was accepted, the Respondent petitioned the court for a stay of decision and leave to post a supersedeas bond. The court denied the petition for a stay. The Respondent returned to the ARB moving for a partial stay, and leave to post a supersedeas bond. The Respondent contended that it had already expunged the Complainant’s records and provided a neutral job reference, and thus, the motion to stay was almost exclusively directed to an order for monetary relief. The ARB found that it was without authority to entertain the motion. The ARB wrote: “The motion for a stay of decision must be made to the ARB prior to the filing of a petition for review in the court of appeals, as the ARB’s jurisdiction divests at that point. ” USDOL/OALJ Reporter at 3. The ARB also noted: “Even if we had jurisdiction, the law-of-the-case doctrine would preclude us from granting the requested relief . ... Here, the parties fully briefed the motion for stay before the Fourth Circuit and the appellate court reviewed those submissions and denied the stay. ” Id . at 3, n.7.

[Nuclear and Environmental Digest IX B 4]
PRO SE LITIGANTS: MERE CONCLUSORY ASSERTIONS BEFORE ARB EVEN BY PRO SE LITIGANT ARE INSUFFICENT; EVEN PRO SE PETITIONER HAS OBLIGATION TO IDENTIFY ALLEGED ERRORS BY ALJ AND SUBSTANTIATE WITH LEGAL ARGUMENT

In Fleming v. Shaw Group , ARB No. 14-070, ALJ No. 2013-ERA-14 (ARB Aug. 19, 2015), the ARB dismissed pro se Complainant/Appellant’s petition for review which consisted of a one-paragraph petition for review and one page brief containing merely conclusory assertions of ultimate fact without identifying specific errors or legal argument in support thereof. Below, at his hearing before the ALJ, the pro se Complainant neither put forth any evidence nor testified with regard to his allegations that Respondents has retaliated against him by a RIF and denial of a foreman position for filing a complaint against his employer.

[STAA Digest II J]
TIMELINESS OF PETITION FOR REVIEW; EQUITABLE TOLLING DID NOT APPLY WHERE PRO SE COMPLAINANT’S MEDICAL CONDITION WAS NOT SHOWN TO HAVE BEEN SO COMPLETELY INCAPACITATING AS TO PREVENT TIMELY FILING OF PETITION OR TO REQUEST AN EXTENSION

To perfect a timely appeal from an ALJ’s STAA decision, a party must file a petition for review with the ARB within 14 days of the date on which the ALJ issued his or her decision. In Mascareñas v. Interstate Hotels & Resorts , ARB No. 15-068, ALJ No. 2014-STA-47 (ARB Aug. 14, 2015), the pro se Complainant failed to file a petition for review within the 14 days period for petitioning for review. Instead, she filed an “Initial Brief in Appeal,” which even if considered a petition for review was also untimely. Later, the Complainant filed an untimely petition for review, and the Respondent filed a Motion to Strike. The ARB issued a show cause order. The Complainant argued that the short time period for petitioning for review, plus stress due to her personal medical conditions and family situation prevented her from complying with the deadline. The Board granted the Respondent’s motion to strike, stating

While the Board has held that a medical condition that prevents a complainant from timely pursuing his or her legal rights may qualify as an “extraordinary” circumstance that justifies equitable tolling, we do not find that Mascareñas has established that her condition precluded timely completion of her petition. While the Board is sympathetic to the stresses caused by Mascareñas’s medical condition, she has failed to establish that she was so completely incapacitated that she could neither file a petition for review, or at the very least, file a motion for enlargement of time to file a petition.

USDOL/OALJ Reporter at 3 (footnote omitted).

ATTORNEY’S FEES AND COSTS; ARB REVIEWS ALJ AWARD UNDER ABUSE OF DISCRETION STANDARD; NO ABUSE OF DISCRETION WHERE NUMBER OF ATTORNEY HOURS SIGNIFICANT BUT ALJ PROVIDED SUFFICIENT BASES FOR RATES APPLIED, HOURS APPROVED, AND TOTAL AMOUNT AWARDED

In Coates v. Grand Trunk Western RR Co. , ARB No, 14-067, ALJ No. 2013-FRS-3 (ARB Aug. 12, 2015), the Respondent appealed from the ALJ’s award of attorney’s fees and costs. Litigation of the case took two years and included filing a complaint; requesting a hearing before the OALJ; successfully opposing a summary decision; prevailing after a two-day evidentiary hearing; and submitting a post-hearing brief. The ALJ awarded total of $190,272.50 in fees and $5,840.93 in costs. The ARB stated that it reviews an ALJ’s attorney’s fees award under an abuse of discretion standard. The ARB found in the instant case that the ALJ had provided sufficient reasons and bases for the hourly rates he applied, the hours approved, and the total amount awarded in fees and costs, and while the number of hours awarded was significant, the ARB could not say that the ALJ abused his discretion in the fee award. The ARB also found that the Complainant was entitled to fees and costs associated with the appeal of the attorney fee award.

JURISDICTION OF ARB OVER WAGE DETERMINATIONS REQUIRES FINAL DECISION OF WAGE AND HOUR & H ADMINISTRATOR

FAILURE TO EXHAUST WITH WAGE AND HOUR & H ADMINISTRATOR NOT WAIVED BY FALURE OF ADMINISTRATOR TO TIMELY ISSUE RECONSIDERATION DECISIONS AND NOTICES AS REQUIRED BY REGULATION

In Yates Construction Co. , ARB No. 1056 (ARB Aug. 12, 2015), Petitioner filed a petition seeking review of a wage determination. Petitioner argued that having failed to receive a response from the Wage and Hour Administrator of an initial request for review and reconsideration of wage rates and receiving no response to a subsequent letter it filed after six months except an e-mail stating that it would hear from a Contracts Enforcement Specialist “in the very near future, ” in the absence of such decision, the ARB had authority to hear his appeal.

The ARB held that pursuant to 29 C.F.R. Part 1, it has jurisdiction to hear and decide appeals from “final” decisions of the Administrator after reconsideration has been sought [from the Administrator] and been denied. The Administrator is required to respond to a motion for reconsideration within 30 days or notify the requester within the 30-day period that additional time is necessary. The Administrator failed to comply with these applicable regulations.

Distinguishing two cases, In re: Hanford Atomic Metal Trades Council , ARB No. 98-138 (ARB Sept. 23, 1998) and In re: Diversified Collection Servs., Inc. , ARB No. 98-062 (ARB May 8, 1998), the ARB found that it had no jurisdiction over this matter. In that Petitioner also failed to successfully argue that the delay was “so unreasonable as to render the decision final,” given the length of the delay and Administrator’s assurances when it would issue a final decision, the ARB dismissed the case without prejudice.

BRIEFING; UNTIMELINESS: UNTIMELY BRIEF NONRESPONSIVE TO ARB’s SHOW CAUSE ORDER RESULTS IN DISMISSAL OF CASE BEFORE ARB

In Phillips v. Norfolk Southern Railway Co. , ARB No. 15-059, ALJ No. 2014-FRS-133 (ARB Aug. 11, 2015), the ARB issued a dismissal after Complainant failed to timely file opening brief and, then, in response to ARB’s Show Cause Order, filed a brief responding to the merits of the case and not the Order to Show Cause.

Order approving settlement agreement.