Butler v. Neier, Inc. (agency decision, May 7, 2019)

Plain-English summary

An ALJ found that Neier violated the Surface Transportation Assistance Act and later awarded Michael Butler $52,620.30 in legal fees, costs, and expenses. Neier argued that the fee award was premature because the ALJ entered it while the merits appeal was pending before the Board. The Board subsequently affirmed Butler's merits victory, and the Seventh Circuit granted a joint voluntary dismissal of Neier's court appeal. Those events made the prematurity argument moot. Because Neier did not challenge the amount or substance of the award, the Board affirmed it as reasonable.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105(b)(3); 29 C.F.R. §§ 1978.109(d)(1) and 1978.110(d)
• Outcome: $52,620.30 award of legal fees, costs, and expenses affirmed.
• Key point: Final success on the merits made moot the employer's claim that the ALJ had awarded fees too early.

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:


  MICHAEL BUTLER,                                     ARB CASE NO. 2017-0027

                  COMPLAINANT,                        ALJ CASE NO. 2014-STA-00068

         v.                                           DATE: May 7, 2019

  NEIER, INC., et al,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Paul O. Taylor Esq. and Peter LaVoie, Esq; Truckers Justice Center;
        Burnsville, Minnesota

  For the Respondents:
        A. Jack Finklea, Esq.; Scopelitis, Garvin, Light, Hanson & Feary, P.C.;
        Indianapolis, Indiana

  Before: William T. Barto, Chief Administrative Appeals Judge, James A.
  Haynes, and Daniel T. Gresh, Administrative Appeals Judges


               ORDER AFFIRMING AWARD OF ATTORNEY’S FEES

         PER CURIAM. This case arises under the Surface Transportation Assistance
  Act of 1982, as amended and recodified (STAA), and its implementing regulations.1

  1      49 U.S.C. § 31105 (2007); 29 C.F.R. Part 1978 (2016); see 49 U.S.C. § 42121 (2000).




  In July 2016, a Department of Labor Administrative Law Judge (ALJ) concluded
  after hearing in this matter that Neier, Inc. (Neier) had violated the STAA, and the
  ALJ awarded damages to the Complainant, Michael Butler. See Butler v. Neier, Inc.
  et al, ALJ No. 2014-STA-00068 (July 29, 2016). In August 2016, Neier appealed the
  ALJ’s decision to the Administrative Appeals Board (ARB or Board). In February
  2017, while Neier’s appeal was pending before the ARB, the ALJ issued an order
  awarding Complainant a total of $52,620.30 in legal fees, costs, and expenses
  against Neier and over its objections. Butler v. Neier, Inc., et al, ALJ No. 2014-STA-
  00068 (Feb. 9, 2017) (Attorney Fee Order). Thereafter, in June 2018, the ARB
  affirmed the ALJ’s decision on the underlying merits of the case in Butler v. Neier,
  Inc., et al, ARB No. 2016-0084, ALJ No. 2014-STA-00068 (ARB June 22, 2018).
  Neier now appeals from the ALJ’s February 2017 Attorney Fee Order. In briefing
  filed prior to the Board’s June 2018 decision on the merits, Neier argued that the
  fee award must be set aside because the ALJ had prematurely issued it before the
  ARB had issued a final decision on the underlying merits of this case. Complainant
  responds in support of the fee award. We deny the relief requested and affirm the
  ALJ’s order awarding counsel fees, costs and expenses.

         The Secretary of Labor has delegated to the Board his authority to act on
  appeals from ALJ decisions arising under the STAA and issue final agency decisions
  in those matters.2

         The STAA and its implementing regulations authorize payment of reasonable
  costs and fees to a complainant who prevails on his claim.3 If the Secretary of Labor
  concludes that a respondent has violated the STAA and the complainant requests,
  the Secretary of Labor may assess against the person against whom the order is
  issued the costs reasonably incurred by the complainant in bringing the complaint,
  including reasonable attorney fees.4




  2     Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019).

  3      See 49 U.S.C. § 31105(b)(3)(A), (B); 29 C.F.R. §§ 1978.109(d)(1), 1978.110(d).

  4      Id.




        The ARB has endorsed the lodestar method for calculating attorney’s fees.5
  This method requires multiplying the number of hours reasonably expended in
  bringing the litigation by a reasonable hourly rate.6 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.7 In addition, the attorney must
  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.8

         Subsequent to the filing of Neier’s pleadings in this matter, the ARB affirmed
  the ALJ’s decision ruling in Complainant’s favor on the merits of this case, which
  became the final decision for the Secretary of Labor. Neier subsequently appealed
  the ARB’s decision to the United States Court of Appeals for the Seventh Circuit.
  We take official notice of the fact that the Court of Appeals has granted the parties’
  joint stipulated motion to voluntarily dismiss Respondent’s appeal. Neier, Inc. v.
  U.S. Dept. of Labor, No. 18-2800 (7th Cir. Oct. 16, 2018). The fact that Complainant
  has ultimately been successful before the ARB and the Court of Appeals renders
  moot Neier’s argument that the fee award must be reversed as premature.
  Consequently, we DENY Neier’s request that we set aside the fee award on that
  basis. As Neier does not challenge the amount or substance of the fee award,9 we
  hereby AFFIRM as reasonable the ALJ’s award to Complainant against Neier of
  $52,620.30 in legal fees, costs, and expenses.

         SO ORDERED.




  5       See, e.g., Smith v. Lake City Enters., ARB Nos. 12-112, 12-113; ALJ No. 2006-STA-
  032, slip op. at 3 (ARB Sept. 12, 2013).

  6      Id.

  7      Id., slip op. at 3-4.

  8      Id., slip op. at 4.

  9      Respondent’s Initial Brief at 1-3; Petition For Review at 2,