                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0504n.06

                                    Nos. 13-4342/15-3071


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

HARRY SMITH,                                  )                                   FILED
                                              )                              Aug 25, 2016
       Petitioner,                            )                          DEBORAH S. HUNT, Clerk
                                              )
v.                                            )
                                              )
THOMAS PEREZ, Secretary of Labor,             )
                                              )
                                                    ON PETITION FOR REVIEW FROM
       Respondent,                            )
                                                    THE UNITED STATES DEPARTMENT
                                              )
                                                    OF LABOR, ADMINISTRATIVE
and                                           )
                                                    REVIEW BOARD
                                              )
LAKE CITY ENTERPRISES, INC.,                  )
CRYSTLE MORGAN, and DONALD                    )
MORGAN,                                       )
                                              )
       Intervenors-Respondents                )


BEFORE:       DAUGHTREY, MOORE, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Harry Smith was a truck

driver for Lake City Enterprises who got into a dispute with the owner, Crystle Morgan, and was

terminated from his employment. Smith then filed a complaint with the Department of Labor

against Lake City, Crystle Morgan, and her husband, Donald Morgan, alleging violation of the

Surface Transportation Assistance Act. Smith was successful on his claims against Lake City

and Crystle Morgan but not against Donald Morgan. He now petitions for review of three

adverse decisions by the Secretary of Labor: (1) an order holding that Donald Morgan was not

liable under the Act; (2) an order awarding $8,056.13 in attorney’s fees and costs to Smith’s
Nos. 13-4342/15-3071, Smith v. Perez


attorney; and (3) an order denying Smith’s motion to reopen the record. Smith argues that

Donald Morgan was liable under the Act as a joint employer, that the fee award was inadequate

for various reasons, and that the record in this case should be reopened to allow the submission

of newly-discovered evidence. For the reasons set out below, we deny Smith’s petitions for

review.

                      FACTUAL AND PROCEDURAL BACKGROUND

          Petitioner Smith drove a truck and trailer for Lake City, a corporation that employed

drivers to make deliveries for CRST International, Inc., a national motor carrier. Smith had

applied to CRST for employment and was referred by CRST to Lake City. At the time of this

dispute, intervenor Donald Morgan was married to Crystle Morgan, Lake City’s president and

sole shareholder. Donald also worked at Lake City, but he was not a Lake City manager or

stakeholder. Instead, as an independent truck owner-operator, Donald parked and maintained his

truck on Lake City premises, and Crystle consulted with Donald about the business on occasion.

Although Donald was not involved in the decision to hire Smith, and neither Donald nor Crystle

communicated to Smith that Donald was a Lake City manager or operator, Smith assumed that

Crystle and Donald owned Lake City jointly.


          In November 2005, while Smith was making a delivery for Lake City, the trailer that he

was driving nearly flipped over when Smith turned into a fuel depot. After righting the trailer

and completing the delivery, Smith called Lake City’s terminal manager and said, “[E]ither

replace the equipment or replace [me].” The terminal manager promptly reported the incident

and Smith’s comment to Crystle. That same morning, Crystle also learned that Smith had told a

CRST employee that he was going to take the trailer to be inspected by the Department of

Transportation.

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       The next day, Crystle told Smith that she understood his comment to the terminal

manager to be a verbal threat, as well as an ultimatum, and that she “accepted his resignation.”

She also told Smith that she “was aware that he had made the threat that he was going to take our

equipment into [the Department of Transportation].” Crystle informed Smith that she “would

never choose a driver over equipment,” and she said that she already had replaced him. Crystle

did not consult with Donald regarding the decision to fire Smith, and Donald was not present at

Smith’s exit interview.


       A week later, Smith filed a complaint with OSHA, the Occupational Safety and Health

Administration of the Department of Labor, bringing a claim against Lake City, Crystle Morgan,

and Donald Morgan under the employee-protection provision of the Surface Transportation

Assistance Act, 49 U.S.C. § 31105(a)(1). Smith alleged that he was terminated wrongfully from

his employment at Lake City for “reporting information and objecting to unsafe equipment and

driving conditions, refusing to drive unsafe equipment, and reporting to management that he

intended to report unsafe equipment to the Department of Transportation.” In May 2008, an

administrative law judge (ALJ) found that Lake City and Crystle Morgan had violated the Act

but that Donald Morgan was not liable under the Act because his “relationship with [Lake City]

[wa]s too tenuous to be considered as co-ownership.” The Board affirmed the ALJ’s order and

remanded the case for reconsideration of damages, among other things. The proceedings on

remand concluded in November 2012, when the Board affirmed the ALJ’s award of damages.


       The agency proceedings were stayed for several months while Crystle Morgan was tied

up in bankruptcy proceedings. After the stay was lifted, Smith filed a petition for attorney’s fees

for legal services rendered from June 2008 through April 2012. The ALJ did not award fees and

costs for proceedings that occurred before other tribunals (the Board, Sixth Circuit, and

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bankruptcy court), but he did award Smith $7,280 in attorney’s fees and $440.13 in litigation

expenses. The Board affirmed this award (including the ALJ’s decision not to award fees and

costs for proceedings before other tribunals) but increased the hourly fee-rate to account for

delayed payment of the awarded fees. The adjusted award totaled $8,056.13.


       Smith then filed a second supplemental petition before the Board in January 2013,

requesting a total award of $61,086.43 in fees and expenses for legal services rendered from May

2012 through January 2013. This petition also requested compensation for attorney hours and

expenses that had been included in the earlier fee petition. The Board issued an order requesting

clarification as to “what services [Smith’s] attorney . . . performed, when they were performed,

or for which appeals related to this case services were provided,” as well as whether the fees

sought included proceedings before the Sixth Circuit or the bankruptcy court. But, because of a

change in Smith’s attorney’s address, the order for clarification was not received promptly.

To date, neither Smith nor his attorney has received any of the monies that they were awarded.

       Smith petitioned for our review of the September 2010 order holding that Donald Morgan

was not liable under the Act and the September 2013 order awarding $8,056.13 in attorney’s

fees. After filing this petition, Smith discovered testimony indicating that a former CRST

employee thought that Donald was a co-owner at Lake City, and Smith filed before the Board a

motion to reopen the record based on newly-discovered evidence, which the Board denied.

Smith then filed a second petition for review in this court, challenging the Board’s denial of the

motion to reopen. We have consolidated the two petitions for review.

                                         DISCUSSION

       Under the employee-protection provision of the Surface Transportation Assistance Act,

“A person may not discharge an employee, or discipline or discriminate against an employee . . .

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because the employee . . . has filed a complaint or begun a proceeding related to a violation of a

commercial motor vehicle safety or security regulation, standard, or order . . . or . . . the person

perceives that the employee has filed or is about to file a complaint or has begun or is about to

begin a proceeding related to the violation of a commercial vehicle safety or security regulation,

standard, or order.” 49 U.S.C. § 31105(a)(1)(A)(i)-(ii).

       A petitioner bringing a claim under this provision first files a complaint with OSHA,

which conducts an initial investigation and issues findings and a preliminary order. 49 U.S.C.

§ 31105(b)(1); 29 C.F.R. §§ 1978.103, 1978.105. If the petitioner objects to OSHA’s initial

findings and preliminary order, he may bring his complaint before an ALJ and request an

administrative hearing. 49 U.S.C. § 31105(b)(2); 29 C.F.R. 1978.107. The ALJ’s decision is

subject to review by the Administrative Review Board, which is the appeals section of the

Department of Labor. 29 C.F.R. § 1978.110. Within 60 days after the issuance of a final order

by the Secretary of Labor, any person adversely affected by the order may file a petition for

review of that order in a federal appeals court. 49 U.S.C. § 31105(d); 29 C.F.R. § 1978.112.

       In reviewing the Secretary’s decision, we affirm the decision if it is supported by

substantial evidence, i.e., “‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Moon v. Transp. Drivers, Inc., 836 F.2d 226, 229 (6th Cir.

1987) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).             We must uphold the

Secretary’s legal conclusions “unless they are arbitrary, capricious, involve an abuse of

discretion, or otherwise are not in accordance with law.” Yellow Freight Sys., Inc. v. Reich,

27 F.3d 1133, 1138 (6th Cir. 1994) (internal quotation marks and citation omitted). We also

“accord deference to the Secretary’s interpretations of the [Surface Transportation Assistance




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Act], and will uphold such interpretations if ‘reasonable, consistent with the statutory mandate,

and persuasive.’” Id.

Donald Morgan’s Liability Under the Act

       The Act permits judicial review of an adverse order by the Secretary “not later than

60 days after the order is issued, in the court of appeals of the United States . . . .”

49 U.S.C. § 31105(d). In this case, the Secretary argues that the final order on the substantive

claims was issued on November 20, 2012, when the Board affirmed the ALJ’s decision on the

remanded issue of damages, rendering Smith’s November 12, 2013, petition for review untimely.

Smith, on the other hand, argues that the 60-day period was not triggered until the Board issued

the fee award on September 12, 2013. In the alternative, Smith argues that the 60-day period

should be tolled for various reasons, including the fact that “the Department of Labor has not

considered the November 20, 2012 Order to be a final order.” However, for the reasons set forth

below, we conclude that even if Smith’s November 12 petition for review was timely, the

petition fails on the merits because substantial evidence supports the Secretary’s conclusion that

Donald was not liable under the Act.

       The Act imposes liability on “a person” who discharges or otherwise disciplines an

employee engaged in a protected activity. 49 U.S.C. § 31105(a)(1). Although the Act itself does

not define the term “person,” the statute’s implementing regulations define “person” as “one or

more individuals, partnerships, associations, corporations, business trusts, legal representatives,

or any other organized group of individuals.” 29 C.F.R. § 1978.101(k). And even though

Donald Morgan himself did not discharge Smith, Smith nevertheless argues that Donald is liable

because of his “central role” and involvement with Lake City. In particular, Smith contends that

Donald and Crystle Morgan were “joint employer[s]” at Lake City.


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       The Board affirmed the ALJ’s conclusion that Donald Morgan was not liable for Lake

City’s violations under the Act. In concluding that Donald was not a joint employer of Smith,

the Board applied a test that examined “whether the entity exercised control over the

complainant’s employment . . . . Such control includes the ability to hire, transfer, promote,

reprimand, or discharge the complainant, or to influence another employer to take such actions

against a complainant.” Since the Board issued its decision in this case, it has held that a joint

employer must “jointly control[] the terms and conditions of employment” in order to be liable

under the employee-protection provision of the Act. Myers, No. 10-144, 2012 WL 3876171, at

*6 (Dep’t of Labor August 3, 2012). Because the purpose of the Act is to “protect[] employees

from retaliation,” 29 C.F.R. § 1978.100, the Secretary’s interpretation that a person liable under

the Act must exercise control of the employee’s employment is reasonable. Therefore, the

Secretary’s control-over-employment test is entitled to deference.

       Substantial evidence supports the Secretary’s conclusion that “while Donald Morgan

advised his wife about her business, stored and maintained his truck at the [Lake City] facility,

and helped with equipment issues, he exercised no control over Smith’s employment.” Donald

did not hire or fire Smith. He did not hold any managerial, supervisory, or ownership position at

Lake City, and neither he nor Crystle told Smith that Donald was a manager. There is no

evidence in the record that Donald exercised any influence over Smith’s employment.

       Smith protests that Donald exercised control over Smith’s employment because Donald

talked with Smith over the phone regarding Smith’s experience in driving prior to Smith’s job

interview at Lake City; Donald inventoried Smith’s truck and trailer on the day that Smith was

hired; Smith’s colleague understood that Donald was in charge of equipment; and Smith spoke

with Donald regarding equipment during a breakfast meeting. However, none of these facts



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indicates that Donald exercised control over Smith’s employment, despite his involvement with

Lake City operations. Because substantial evidence supports the Secretary’s order declining to

hold Donald individually liable under the Act, we deny Smith’s petition for review of the non-

liability order.

Fee Award

        In his petition for review, Smith also challenged the ALJ’s order awarding attorney’s fees

and expenses based on Smith’s initial fee petition and disputed the ruling that the ALJ could not

award fees or expenses for legal services rendered in connection with proceedings before the

Board, the Court of Appeals, and the bankruptcy court. Smith later filed before the Board a

second supplemental fee petition, requesting additional fees and expenses, including

compensation for legal services rendered in connection with Board proceedings, in addition to

the fees and expenses that Smith had requested in the initial petition. In response, the Board

issued an order asking Smith’s attorney to clarify “what legal fees and costs, and for what legal

services before the [Board] [Smith] seeks award” in the supplemental fee petition. The Board

also asked whether any portion of Smith’s fee request was for legal services rendered before the

Sixth Circuit or the bankruptcy court.

        Based on the record before us, we assume that the fee issue still is pending before the

Board and, therefore, that the September 12, 2013, order awarding fees is not a final order.

We therefore dismiss Smith’s petition to review that order, without prejudice to his ability to

seek review after the Board issues a final order.

Order Denying Motion to Reopen the Record

        Lastly, Smith petitions for review of the Board’s order denying his motion to reopen the

record. During a hearing in a companion case, a former CRST employee testified that he


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understood that “Donald and Crystle were essentially partners . . . with Lake City Enterprises”

and that “[t]hey were essentially equal as far as ownership of the enterprise or of the agency.”

Smith moved the Board to reopen the record to submit this testimony, but he filed his motion

after he petitioned for our review of the Board’s decision finding that Donald Morgan was not

liable under the Act. The Board accordingly denied Smith’s motion to reopen, concluding that

the Board did not have jurisdiction to hear the motion while the appeal was pending before this

court.

          Although Federal Rule of Appellate Procedure 12.1 allows the district court to consider a

motion for relief that is barred by a docketed and pending appeal, that rule is not applicable to

agency proceedings. See Fed. R. App. P. 12.1, 20. In any event, even if the Board had

jurisdiction to review the motion to reopen, the Board concluded that the motion “would not

likely be granted.” We therefore deny Smith’s petition to review the denial of his motion to

reopen.

                                          CONCLUSION

          For the reasons set out above, we conclude that substantial evidence in the record

supports the Secretary’s order declining to assess liability against Donald Morgan and that the

order of September 12, 2013, awarding fees and costs was not a final order. We also conclude

that the Board did not err in denying the motion to reopen the record. Therefore, Smith’s

petitions for review are DENIED.




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