Leiva v. Union Pacific Railroad Co., Inc. (Board decision, September 4, 2015)

Plain-English summary

The Board had affirmed a finding that Union Pacific Railroad retaliated against Daniel Leiva under the Federal Rail Safety Act and sent the case back for a decision on punitive damages. Leiva's lawyer then requested $6,670 for work on the Board appeal. Union Pacific did not object to the amount. The Board found the request documented and reasonable and ordered the railroad to pay $6,670. The punitive damages issue remained pending before the judge.

Decision snapshot

• Cited authority: Federal Rail Safety Act, 49 U.S.C. § 20109; fee remedy under 29 C.F.R. § 1982.110(d).
• Outcome: $6,670 in attorney fees awarded for the Board appeal; punitive damages remained pending.
• Key point: The Board granted an unopposed, documented fee request following its earlier liability ruling.

Full text (DOL official public release)

U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

In the Matter of:

DANIEL LEIVA,
ARB CASE NOS 14-016
14-017
COMPLAINANT,
ALJ CASE NO. 2013-FRS-019 v.
DATE: September 4, 2015
UNION PACIFIC RAILROAD
COMPANY, INC.,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
Jerry Easley, Esq.; Rome, Arata & Baxley, L.L.C.; Pearland, Texas

For the Respondent:
Fred S. Wilson, Esq.; Union Pacific Railroad Company, Inc.; Houston, Texas

BEFORE: Paul M. Igasaki, Chief Administrative Appeals Judge; E. Cooper Brown, Deputy Chief Administrative Appeals Judge; and Joanne Royce, Administrative Appeals Judge

ORDER AWARDING ATTORNEY’S FEES

This case arises under the Federal Railroad Safety Act of 1982 (FRSA). 1 On May 29, 2015, the Administrative Review Board (ARB or Board) issued a decision affirming an Administrative Law Judge (ALJ) decision that Union Pacific violated the STAA when it took adverse action against Leiva, because his protected activity contributed to Union Pacific’s decision to take that adverse action. We remanded the case for the ALJ to consider punitive damages.

1
49 U.S.C.A. § 20109 (Thomson/West Supp. 2015). See also 29 C.F.R. Part 1982 (2014).

USDOL/OALJ REPORTER
PAGE 1
 The FRSA regulations state that if the Board decides that an employer has violated the statute, we shall order the employer “to take appropriate affirmative action to make the employee whole, including, where appropriate . . . compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney’s fees.” 2

On July 1, 2015, Leiva’s counsel filed a petition for fees with exhibits requesting $6,670.00 in attorney’s fees for litigation before the Board. Union Pacific has not objected to the amount of this request. We have examined the petition and find the attorney’s fee request to be well documented, reasonable, and not excessive. Accordingly, we GRANT Leiva’s request and order Union Pacific to pay attorney’s fees in the amount of $6,670.00 for services provided by Leiva’s counsel before the Board.

SO ORDERED.

JOANNE ROYCE
Administrative Appeals Judge

E. COOPER BROWN
Deputy Chief Administrative Appeals Judge

PAUL M. IGASAKI
Chief Administrative Appeals Judge

2
29 C.F.R. § 1982.110(d).

USDOL/OALJ REPORTER
PAGE 2