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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

THE ESTATE OF DANIEL A. AYRES

BY KIMBERLY AYRES,

ADMINISTRATOR,

COMPLAINANT,

WEATHERFORD U.S., L.P.,

RESPONDENT.

ARB CASE NOS. 2018-0006,

2018-0074

ALJ CASE NO. 2015-STA-00022

ALJ JOHN P. SELLERS, III

ON REMAND FROM SIXTH

CIRCUIT COURT OF APPEALS

CASE NOS. 20-4343, 21-3017

AND 21-3282

DATE: January 11, 2024

Appearances:

For the Complainant:

Martin S. Hume, Esq.; Martin S. Hume Co., L.P.A.; Youngstown, Ohio

For the Respondent:

David A. Campbell, Esq., Donald G. Slezak, Esq.; Lewis Brisbois

Bisgaard & Smith, LLP; Cleveland, Ohio

Before HARTHILL, Chief Administrative Appeals Judge, and ROLFE and

WARREN, Administrative Appeals Judges

DECISION AND ORDER AWARDING ATTORNEY FEES AND COSTS

ROLFE, Administrative Appeals Judge:

This case arises under the Surface Transportation Assistance Act (STAA) as

amended, and is before the Administrative Review Board (ARB or Board) following

the United States Court of Appeals for the Sixth Circuit’s remand to determine the

merits of a request by Complainant Daniel A. Ayres (Ayres or Estate) for an

additional award of attorney fees and costs for work performed before the Sixth

Circuit. 1 For the reasons that follow, we deny the request for attorney fees

Complainant generated in filing an unsuccessful petition to reinstate punitive

damages and further deny the Estate’s request for an interest enhancement on its

attorney fees and costs. But we otherwise award all remaining attorney fees and

costs at issue. 2

BACKGROUND

Complainant Daniel A. Ayres filed a complaint with the Occupational Safety

and Health Administration (OSHA) alleging that Respondent Weatherford U.S.,

L.P. (Respondent or Weatherford) violated the STAA by reducing his hours of work

and by terminating his employment in retaliation for raising safety concerns. 3

OSHA dismissed the complaint and Ayres requested a hearing before the Office of

Administrative Law Judges (OALJ). 4

Following that hearing, an ALJ concluded in September 2017 that

Weatherford violated the STAA, and he awarded back pay, compensatory damages,

and punitive damages. 5 The ALJ also issued an Attorney Fee Order awarding

$36,219.01 for fees incurred at a $350 hourly rate in addition to the other costs

generated before him. 6

On appeal, the ARB affirmed the statutory violation and the resulting order

for back pay, compensatory damages for emotional distress, and attorney fees and

costs. 7 The Board, however, reversed the ALJ’s award of punitive damages. 8 On

January 22, 2021, the ARB issued an order awarding an additional $12,670.00 for

attorney fees incurred for work performed in the ARB proceeding, at the same

hourly rate as applied by the ALJ, plus costs. 9

49 U.S.C. § 31105(a); see also 29 C.F.R. Part 1978 (2023) (the STAA’s implementing

regulations).

Complainant regrettably passed away in 2016 during the pendency of this litigation

and his estate has been pursuing the litigation on his behalf.

ALJ Decision and Order (ALJ D. & O.) at 1 (ALJ Sept. 25, 2017).

Id. at 2.

Id. at 82-91.

ALJ Attorney Fee Order at 6 (ALJ Aug. 22, 2018).

ARB Decision and Order (ARB D. & O.) at 12 (ARB Nov. 18, 2020).

Id. at 11.

ARB Order Awarding Attorney Fees at 3 (ARB Jan. 22, 2021).

Both parties appealed the ARB decision to the Sixth Circuit: Weatherford

sought to overturn the ARB decision in its entirety (the Weatherford appeal); Ayres’

Estate sought reinstatement of the ALJ’s punitive damages award (the Ayres

appeal). 10 The Sixth Circuit consolidated the appeals and, in May 2023, denied

them both outright—wholly affirming the previous ALJ and Board attorney fee

awards in the process. 11

10F

Following the Sixth Circuit’s ruling, the Estate filed a motion to remand the

case to the ARB to determine the attorney fees and costs incurred before the circuit,

or in the alternative, for an award of attorney fees from the circuit itself as costs

pursuant to Federal Rule of Appellate Procedure 39 and Sixth Circuit I.O.P. 39. 12

Weatherford did not contest the Estate’s request to remand the matter to the

ARB. 13 The Sixth Circuit denied the motion under the federal rule and its internal

rule of procedure, opting instead to remand the case to the ARB to determine “the

merits of the Estate’s request for an additional award of attorney fees” incurred on

appeal. 14

11F

12F

13F

On July 6, 2023, the Estate filed before the ARB a Supplemental Petition For

an Award of Attorney Fees and Costs incurred before the Sixth Circuit requesting

an additional fee award of $53,637.50, plus additional costs in the amount of

$1,043.38, for the 153.25 additional hours spent at the circuit. 15 The Estate also

requests a pre-judgment interest enhancement from the date of the fee petitions

filed in this matter, and a post-judgment interest enhancement from the date of the

Board’s decisions, both at the statutory rate found at 26 U.S.C. § 6621(a)(2). 16

14F

15F

Weatherford U.S., L.P. v. U.S. Dep’t of Lab., Admin. Rev. Bd., 68 F.4th 1030, 1035

(6th Cir. 2023).

Id. at 1034, 1042-43.

Motion to Remand to the Administrative Review Board for the Determination of a

Supplemental Award of Attorney Fees and Costs to the Estate of Daniel A. Ayres as the

Prevailing Party in this STAA Whistleblower Case, or in the Alternative, Motion for an

Award of Attorney Fees as Costs Pursuant to the Federal Rule of Appellate Procedure 39

and 6th Circuit I.O.P. 39.

Weatherford U.S., L.P.’s Opposition to the Estate of Daniel A. Ayres’ Motion for

Attorney Fees and Costs.

Weatherford U.S., L.P. v. U.S. Dep’t of Lab., Admin. Rev. Bd., Nos. 20-4342, 21-3017,

21-3282, at *2 (6th Cir. July 3, 2023) (order remanding matter to ARB).

Supplemental Petition for an Award of Attorney Fees and Costs at 2; see also

Affidavit of Attorney Martin S. Hume Exhibit D.

Id. at 3.

Weatherford filed an opposition on July 12, 2023, in which it solely argues

fees should not be awarded for the Estate’s unsuccessful Ayres appeal and for an

unsuccessful motion to dismiss, which the Estate filed in the Weatherford appeal. 17

Weatherford further takes issue with the sufficiency of documentation for some of

the specific remaining time entries. 18 In its reply, the Estate argues it is entitled to

fees incurred in litigating both the Ayres appeal and the motion to dismiss in the

Weatherford appeal given its success on seven out of eight issues before the Sixth

Circuit. 19

16F

17F

18F

DISCUSSION

1. The Board Grants the Estate’s Request for Fees and Costs Related to Its

Motion to Dismiss in the Weatherford Appeal and Denies Its Request

Related to the Ayres Appeal

The STAA provides that, when an order is issued in favor of a complainant,

the Secretary may assess attorney fees and costs reasonably incurred by the

complainant in bringing the complaint. 20 Under longstanding ARB precedent, the

Board may award those fees even where the work was performed before a United

States Court of Appeals, including in the Sixth Circuit. 21

19F

20F

Significantly, by its plain language, the STAA does not adhere to the

“prevailing party” standard for awarding fees, but instead, permits assessments of

fees and costs “against the person against whom the order [of violation] is issued.” 22

Weatherford was found to have violated the STAA at both the ALJ and ARB levels,

and thus the analysis turns to whether the Estate’s fees and costs were reasonably

incurred defending the resulting agency order at the Sixth Circuit. 23

21F

22F

Respondent’s Opposition to Complainant’s Supplemental Petition for an Award of

Attorneys [sic] Fees and Costs at 4-5.

Id. at 5-7.

Reply Memorandum in Support of Ayres’ Supplemental Petition for an Award of

Attorney Fees and Costs at 4-5.

49 U.S.C. § 31105(b)(3)(B).

Cefalu v. Roadway Express, Inc., ARB Nos. 2004-0103, -0161, ALJ No. 2003-STA00055, slip op. at 3 n.4, 3-4 (ARB Jan. 6, 2010) (quoting 49 U.S.C. 31105(b)(3)(B)); Tipton v.

Ind. Mich. Power Co., ARB No. 2004-0147, ALJ No. 2002-ERA-00030, slip op. at 4 (ARB

Dec. 18, 2008).

49 U.S.C. § 31105(b)(3)(B).

Id.; see also Cefalu, ARB Nos. 2004-0103, -0161, slip op. at 3-4.

In reviewing attorney’s fees, the Board follows the fee-shifting precedents of

the Supreme Court, which outline the lodestar analysis to be used when a

complainant has succeeded on only some of his claims for relief. 24 To determine

whether the requested compensable hours were reasonably incurred under this

standard, courts consider the “degree of success obtained [by the complainant].” 25

Where a complainant “has obtained excellent results, his attorney should recover a

fully compensatory fee,” consisting of “all hours reasonably expended on the

litigation,” even if the complainant “failed to prevail on every contention raised in

the lawsuit.” 26 Thus, where a complainant’s claims “involve a common core of facts

. . . [a]ttorney’s fees may be awarded for unsuccessful claims as well as successful

ones.” 27 Litigants in good faith unquestionably “may raise alternative legal grounds

for a desired outcome, and the court’s rejection of or failure to reach certain grounds

is not a sufficient reason for reducing a fee.” 28 “The result is what matters.” 29

23F

24F

25F

26F

27F

28F

And the result here dictates an award of all fees the Estate incurred

defending the ARB decision in the Weatherford appeal, including litigating the

motion to dismiss. While the Sixth Circuit denied the motion, the Estate undeniably

filed it in good faith seeking the same outcome it eventually secured after merits

briefing and oral argument. Indeed, despite the initial denial, the Estate ultimately

received precisely the same relief it would have received had its initial motion been

granted. The Estate’s motion to dismiss, in our view, thus is sufficiently intertwined

with and shares “a common core of facts” with the other pleadings filed and actions

taken in defending the ARB decision before the Sixth Circuit. 30 That defense was

wholly successful. We therefore grant the fees and costs incurred in filing the

motion to dismiss.

29F

But the same cannot be said for the Ayres appeal, which sought to amend the

ARB decision, reinstate the award of punitive damages, and enlarge the Estate’s

rights. 31 It has been settled in the federal courts since at least the 1920s that a

party, without filing a separate appeal, “may not attack the decree [below] with a

view either to enlarging his own rights thereunder or of lessening the rights of his

30F

Pollock v. Cont’l Express, ARB Nos. 2007-0073, 2008-0051, ALJ Case No. 2006-STA00001, slip op. at 18 (ARB Apr. 7, 2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 433

(1983)).

Hensley, 461 U.S. at 434-36.

Id. at 435.

Id.; see also Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004) (citation omitted).

Hensley, 461 U.S. at 435.

Id.

See id. at 448.

Supplemental Petition for an Award of Attorney Fees and Costs at 6.

adversary,” whether “to correct an error or to supplement the decree with respect to

a matter not dealt with[.]” 32 On the other hand, the Court may consider arguments

to support the judgment as entered without requiring a separate appeal. 33

31F

32F

Unlike the motion to dismiss defending the ARB decision—which did not

require a separate appeal to assert—the Estate’s attempt to reinstate punitive

damages sought to enlarge the Estate’s rights under the order and lessen

Weatherford’s, and it therefore required a separate action to commence. That action

arguably did not share the same “common core” of facts as the Weatherford appeal

given the ARB decision. Regardless, the separate petition was entirely unsuccessful.

We therefore deny the fees and costs incurred in pursuing the Ayres appeal.

Being mindful of the Supreme Court’s admonition not to “become greeneyeshade accountants” and mandate to do “rough justice” rather than “achieve

auditing perfection” 34 in calculating fees, we thus cut the following billing entries

related to the Ayres petition: 2.5 hours on 1/5/21 to “Prepare and File Ayres Petition

for Review”; 0.75 of the 1.5 hours billed on 1/6/21 to “Prepare and File Notice of

Appearance and Motion to Consolidate”; 1.5 hours billed on 3/2/21 to “Draft and File

Motion for Bond”; 1.0 hours billed on 7/11/21 for “Memo to USDOL re: Punitive

Damages”; 2.0 hours billed on 6/17/22 for “Research Re: Survival Claims”; 5.2 hours

of the 37.75 hours billed on various dates to “Draft Second Brief” (11 pages of the 79

page brief (13.9%) were devoted to the Estate’s punitive damages argument); and

1.5 hours of the 8.5 hours billed on 10/12/22 and 10/13/22 to “Draft Fourth Brief”

and “Finalize and File Fourth Brief” (5 pages of the 27 page brief (18.1%) were

devoted to punitive damages). In total, we cut 14.45 hours of the 153.25 hours

requested leaving a total of 138.8 hours. In terms of costs associated with filing the

Ayres appeal, we deny the request for the $500.00 filing fee and $38.30 incurred for

postage for service of the petition, for a total reduction of $538.30 in costs.

33F

2. Counsel’s Entries for the Estate’s Invoices are Adequately Detailed

The lodestar method further requires multiplying the number of hours

reasonably expended by a reasonable hourly rate. 35 The parties do not dispute that

34F

United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924); see also Olympic

Fastening Sys., Inc. v. Textron, Inc., 504 F.2d 609, 617 (6th Cir.1974) (“When an appellee

seeks to have findings of a trial court revised, a cross appeal is required if such revision

‘carries with it as an incident a revision of the judgment.’”).

Am. Ry. Express Co., 265 U.S. t 435 (“[T]he appellee may, without taking a crossappeal, urge in support of a decree any matter appearing in the record . . . .”).

Fox v. Vice, 563 U.S. 826, 838 (2011).

Roadway Express, Inc. v. U.S. Dep’t of Lab., Admin. Rev. Bd., 116 F. App’x 674, 681

(6th Cir. 2004).

counsel is entitled to $350 per hour, a rate previously upheld by the ALJ and the

ARB and affirmed by the Sixth Circuit. We find no reason to disturb that rate.

Weatherford argues, however, that the Estate’s counsel’s entries are

insufficiently documented. 36 The ARB requires that an attorney’s time-and-task

entries be sufficiently detailed to demonstrate their reasonableness. 37 Weatherford

contends that the entries entitled “research re: jurisdictional Issues” and “Research

re: jurisdiction” do not adequately describe the specific type of work performed

because they do not describe the purpose of the research. 38 Weatherford also argues

that the billing entries entitled “draft second brief,” “finalize and file second brief”

and “draft fourth brief” are similarly vague. 39

35F

36F

37F

38F

Upon review of the Estate’s counsel’s billing entries, however, the Board finds

them contemporaneous with records of counsel’s time and work and concludes the

entries correspond with the timeline of the litigation. In that context, the entries are

sufficiently documented to support their reasonableness.

Weatherford also argues counsel’s billing entries impermissibly constitute

block billing. 40 The ARB “disfavor[s] the use of block billing” which is “the practice

of grouping multiple tasks into a single time entry.” 41 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. 42 On the

other hand, the Sixth Circuit has held that even some degree of block billing “can be

sufficient” as long as the description of the work performed “is adequate.” 43

39F

40F

41F

42F

Regardless, while Weatherford generally argues counsel improperly block

billed, it fails to cite a single specific entry of the practice. Upon our independent

review, we find that counsel has not submitted billing entries that impermissibly

Respondent’s Opposition to Complainant’s Supplemental Petition for an Award of

Attorney’s Fees and Costs at 5-7.

Clemmons v. Ameristar Airways, Inc., ARB No. 2011-0061, ALJ No. 2004-AIR-00011,

slip op. at 7 (ARB Apr. 27, 2012) (citations omitted).

Respondent’s Opposition to Complainant’s Supplemental Petition for an Award of

Attorney’s Fees and Costs at 6.

Id. at 6-7.

Id. at 7.

Cefalu, ARB Nos. 2004-0103, -0161, slip op. at 4.

Yates v. Superior Air Charter LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028,

slip op. at 6 (ARB May 28, 2021) (citation omitted).

Smith v. Serv. Master Corp., 592 F. App’x 363, 371 (6th Cir. 2014).

include multiple tasks in one entry. We therefore reject Weatherford’s argument

and award $48,580.00 in attorney fees for work at the circuit (138.8 x 350 =

$48,580.00).

3. The Board Denies the Estate’s Request for Pre and Post-Judgment

Interest Enhancement

Citing Cefalu v. Roadway Express, Inc., the Estate summarily argues the

ARB should order “Weatherford to pay pre-judgment interest from the date of the

fee petitions filed in this matter, and post-judgment interest from the date of the

Administrative Review Board Decisions[.]” 44

43F

Based on the facts of this case, however, we decline to do so. Although the

applicable provision of the STAA provides for the Secretary’s discretionary

assessment of fees and costs reasonably incurred by complainant in bringing the

complaint, that provision does not provide for interest. 45 In contrast, in the

preceding provision, Congress expressly provided for “back pay with interest.” 46

44F

45F

Nevertheless, the United States Supreme Court has allowed for interest as

an enhancement to the lodestar figure for a reasonable attorney fee under feeshifting statutes in certain limited circumstances. But it has specifically reserved

that allowance for cases with “exceptionally protracted” litigation or where “the

attorney’s performance involves exceptional delay in the payment of fees.” 47 And

because the attorneys who take on this type of work should generally recognize the

inherent risks in payment, the Court has further held the enhancement is most

appropriate in those cases “where the delay is unjustifiably caused by the

defense.” 48

46F

47F

In our view, this is not a case that warrants any further enhancement. The

fees at issue on remand from the circuit were all incurred in roughly the last two

and a half years—a time period that does not suggest any intrinsic delay—after the

Sixth Circuit wholly affirmed the fees previously awarded by the ALJ and Board,

Without citing any authority, the ARB in Cefalu noted the “history of this case is

now quite lengthy” and thus awarded interest simply “[b]ecause of the delay in the award

and payment” without any further discussion. See Cefalu, ARB Nos. 2004-0103, -0161, slip

op. at 2, 6-7.

49 U.S.C. § 31105(b)(3)(B).

49 U.S.C. § 31105(b)(3)(A)(iii) (emphasis added). This same provision authorizes

attorney fees but does not similarly authorize interest on those fees.

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 555-56 (2010) (discussing

enhancements to the lodestar figure under 42 U.S.C. Section 1988).

Perdue, 559 U.S. at 556.

without contemplating an interest enhancement of them. Moreover, with regard to

those previously affirmed fees, the Estate has not attempted to establish any

exceptional delay in the litigation, other than to simply state in its Reply Brief that

this case has been “pending for over ten (10) years.” 49 Nor has it attempted to tie

any of Weatherford’s conduct to any alleged delay.

48F

No matter. Regardless of any delay, we find counsel for the Estate has

already been adequately compensated for the time value of his money for the length

of time it has taken to litigate this case to completion: he has been awarded his

current rate (as of 2023 when he filed his latest petition) of $350 an hour at every

level of the litigation. 50

49F

CONCLUSION

The Board thus awards the Estate $48,580.00 in attorney fees and $505.08 in

costs for its appeal before the Sixth Circuit in accordance with this order. Accordingly,

the Board orders Weatherford to pay $49,085.08 directly to counsel for Ayres’ estate.

SO ORDERED.

__________________________________________

JONATHAN ROLFE

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

IVEY S. WARREN

Administrative Appeals Judge

Reply Memorandum in Support of Ayres’ Supplemental Petition for an Award of

Attorney Fees and Costs at 6.

See Perdue, 559 U.S. at 556 (recognizing that compensation for delay may be made

“by basing the award on current rates[.]”).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.