Coates v. Grand Trunk Western Railroad Co. (Board decision, August 12, 2015)

Plain-English summary

Coates had prevailed on his Federal Rail Safety Act retaliation complaint against Grand Trunk Western Railroad. The railroad appealed the judge's award of $190,272.50 in attorney fees and $5,840.93 in litigation costs. The Board found that the judge adequately explained the hourly rates, approved hours, and total award, and it found no abuse of discretion despite the substantial number of hours. It affirmed the award for work before the judge and gave Coates time to submit a separate request for appeal-related fees and costs.

Decision snapshot

• Cited authorities: Federal Rail Safety Act fee provision, 49 U.S.C. § 20109(e)(2)(C); appeal fee rule, 29 C.F.R. § 1982.110(d).
• Outcome: $190,272.50 in attorney fees and $5,840.93 in costs for proceedings before the judge affirmed; appellate fees reserved for a separate request.
• Key point: The judge's explained fee calculation survived abuse-of-discretion review.

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:

DENNIS COATES,
ARB CASE NO. 14-067

COMPLAINANT,
ALJ CASE NO. 2013-FRS-003

v. DATE: August 12, 2015

GRAND TRUNK WESTERN RAILROAD
CO.,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
Robert E. Harrington, III, Esq.; Harrington, Thompson, Acker & Harrington, Ltd.;
Chicago, Illinois

For the Respondent:
Joseph D. Weiner, Esq.; Littler Mendelson, P.C.; Minneapolis, Minnesota

Before: Paul M. Igasaki, Chief Administrative Appeals Judge; Joanne Royce, Administrative Appeals Judge; Luis A. Corchado, Administrative Appeals Judge

ORDER AFFIRMING THE ADMINISTRATIVE LAW JUDGE’S ATTORNEY’S FEE AND COSTS ORDERS

This case arises under the employee protection provisions of the Federal Rail Safety Act

USDOL/OALJ REPORTER
PAGE 1
of 1982 (FRSA). 1 On July 17, 2015, the Administrative Review Board (ARB or Board) issued a decision affirming an Administrative Law Judge (ALJ) decision that Grand Trunk Western Railroad Co. (GTW) violated the FRSA because Coates’s protected activity was a contributing factor in GTW’s refusal to return Coates to work and in the termination of his employment. 2

The issue before us is GTW’s appeal of the ALJ’s attorney’s fees and costs awards. 3 Having prevailed on the merits of his whistleblower complaint, Coates is entitled to a monetary award that includes his “litigation costs, expert witness fees, and reasonable attorney fees.” 4 The ALJ awarded a total of $190,272.50 in fees 5 and $5,840.93 in costs. We review an ALJ’s attorney’s fees award under an abuse of discretion standard. 6 Here, over the course of two years of litigation, Complainant (1) filed a complaint on September 19, 2011, which OSHA dismissed; (2) requested a hearing; (3) successfully opposed a motion for summary decision; (4) prevailed after a two-day evidentiary hearing and submitting a post-hearing brief, among other litigation efforts. The ALJ provided sufficient reasons and bases for the hourly rates he applied, the hours approved, and the total amount awarded in fees and costs. While the number of hours awarded is significant, we cannot say that the ALJ abused his discretion in the fee award. We affirm. Coates is also entitled to fees and costs associated with this appeal. 7

1
49 U.S.C.A. § 20109 (Thomson Reuters Supp. 2015), as amended by Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. No. 110- 53, and as implemented by federal regulations at 29 C.F.R. Part 1982 (2014) and 29 C.F.R. Part 18 Subpart A (2014).

2
For the ARB’s authority, see Secretary’s Order No. 2-2012 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012); 29 C.F.R. § 1982.110(a).
3
The ALJ issued an order awarding attorney’s fees on June 4, 2014, and an amended order awarding litigation costs, on June 30, 2014.
4
49 U.S.C.A § 20109(e)(2)(C).
5
The ALJ’s June 4, 2014 Attorney Fee Order reflects that total fees for Thompson equaled $105,882.50, and total fees for Harrington equaled $84,390.00. It is not clear how Thompson’s fees went from $105,882.50 to $105,821.00 (a difference of $61.50). As the ALJ found that the total fees were $190,272.50, and there is nothing to account for a reduction, we conclude that the latter number was a mistake, and Thompson’s fees were in fact, $105,882.50.
6
Luder v. Cont’l Airlines, Inc., ARB No. 13-026, ALJ No. 2008-AIR-009, slip op. at 2 (ARB Jan. 7, 2015).
7
29 C.F.R. § 1982.110(d).

USDOL/OALJ REPORTER
PAGE 2

CONCLUSION

Accordingly, we AFFIRM the ALJ’s attorney’s fees and costs awards for services performed before the ALJ.

Coates shall have thirty (30) days from receipt of this Order in which to file a fully supported statement with the ARB for costs and fees incurred opposing GTW’s petition for review (appealing the ALJ’s award of fees and costs), with simultaneous service on opposing counsel. Thereafter, GTW shall have thirty (30) days from its receipt of the statement to file a response.

SO ORDERED.

LUIS A. CORCHADO
Administrative Appeals Judge

PAUL M. IGASAKI
Chief Administrative Appeals Judge

JOANNE ROYCE
Administrative Appeals Judge

USDOL/OALJ REPORTER
PAGE 3