                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0122n.06
                           Filed: November 22, 2004

                                      Nos. 03-4074, 03-4115

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ROADWAY EXPRESS, INC. (03-4074);                  )
                                                  )
LARRY EASH (03-4114),                             )
                                                  )
       Petitioners,                               )    ON APPEAL FROM THE
                                                  )    ADMINISTRATIVE REVIEW BOARD
v.                                                )    OF THE DEPARTMENT OF LABOR
                                                  )
ADMINISTRATIVE REVIEW BOARD,                      )
U.S. DEPARTMENT OF LABOR,                         )
                                                  )
       Respondent.



       Before: SILER, BATCHELDER and ROGERS, Circuit Judges.

       Rogers, Circuit Judge. Larry Eash, a commercial truck driver, and Roadway Express,

Inc. (Roadway), his employer, each appeal adverse rulings from a final decision of the

Administrative Review Board of the Department of Labor (the Board). Mr. Eash appeals the

Board’s affirmation of summary judgment in favor of Roadway on his claim Roadway violated §

31105(a)(B)(i) of the Surface Transportation Assistance Act (STAA) by issuing Mr. Eash a

warning letter after he stopped driving due to fatigue. Roadway appeals both the Board’s

affirmation of the Administrative Law Judge’s (ALJ) determination that Roadway violated §

31105(a)(B)(ii) of the STAA by issuing Mr. Eash a warning letter for refusing to drive in

inclement weather, and the Board’s affirmation of an award of attorney’s fees based on Mr.

Eash’s partial success in administrative litigation.
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

          Because the Board failed to explain its reasoning in affirming the grant of summary

judgment on Mr. Eash’s STAA claim based on fatigue, we grant the Board’s request for

voluntary remand for further proceedings in connection with Mr. Eash’s petition for review.

Because the ALJ’s finding that Roadway violated the STAA is supported by substantial evidence

and the ALJ’s determination of attorney fees was not an abuse of discretion, we deny Roadway’s

petition for review.

                                                  I.

          A.     The STAA

          Congress enacted the STAA to “encourage employee reporting of noncompliance with

safety regulations governing commercial motor vehicles.” Roadway Express v. Brock, 481 U.S.

252, 258 (1987) (plurality opinion). The STAA protects employees from retaliation for

reporting safety violations or refusing to operate a commercial motor vehicle because of safety

concerns. The provisions of the STAA relevant to this appeal are set out in 49 U.S.C. § 31105(a)

(2000):

          (1)    A person may not discharge an employee, or discipline or discriminate
                 against an employee regarding pay, terms, or privileges of employment,
                 because –
                 ...

                 (B)    the employee refuses to operate a vehicle because--

                 (i)    the operation violates a regulation, standard, or order of the United
                        States related to commercial motor vehicle safety or health; or

                 (ii)   the employee has a reasonable apprehension of serious injury to
                        the employee or the public because of the vehicle's unsafe
                        condition.

                                                -2-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

       (2)     Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension
               of serious injury is reasonable only if a reasonable individual in the
               circumstances then confronting the employee would conclude that the
               unsafe condition establishes a real danger of accident, injury, or serious
               impairment to health. To qualify for protection, the employee must have
               sought from the employer, and been unable to obtain, correction of the
               unsafe condition.

Employees are protected from retaliatory action by their employer for refusal to operate a

commercial vehicle under § 31105(a)(1)(B)(i) (the “actual violation” prong) if operating the

vehicle would violate relevant regulations. Under § 31105(a)(1)(B)(ii) (the “reasonable

apprehension” prong) an employee need only have a reasonable apprehension of serious injury

to himself or the public, based on the objective standard set out in § 31105(a)(2), for a refusal to

operate a commercial motor vehicle to be protected.

       B.       The Disciplinary Action Taken Against Mr. Eash

       Mr. Eash has worked for Roadway since 1988 as a commercial truck driver, operating

out of Roadway’s Copley, Ohio, terminal. After some years, relations between Mr. Eash and his

employer deteriorated. Since late 1997, Mr. Eash has received a total of nine warning letters for

various infractions. The first two warning letters, relating to fatigue, were the subject of prior

litigation between the parties. See Eash v. Roadway Express, ARB No. 00-061, ALJ No. 98-

STA-28, slip. op. (Dec. 31, 2002). The instant appeal involves a challenge by Mr. Eash to an

additional seven disciplinary letters. Mr. Eash alleged that five of the letters were issued in

retaliation for filing the earlier litigation. The remaining two letters were issued for: 1) a failure

to complete a trip in the allotted time due to fatigue; and 2) a refusal to drive in inclement

weather. In order to resolve this appeal we need to consider only the facts surrounding the

                                                 -3-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

warning letter for the refusal to drive based on inclement weather.

         Most of the eastern United States experienced a significant winter storm on January

14th and 15th, 1999. Substantial amounts of snow and freezing rain fell in the area surrounding

Roadway’s Copley, Ohio terminal. On the evening of January 13, 1999, Mr. Eash departed the

Copley terminal and arrived in Pittsburgh, Pennsylvania, in the early morning hours of January

14. Mr. Eash was dispatched to make the return trip to Copley, but on arrival was not dispatched

to make another run to Pittsburgh because of inclement weather. He went to his home

approximately twenty-six miles from Roadway’s terminal and slept. Mr. Eash awoke in the late

afternoon and called Roadway’s dispatch center asking to be excused from his dispatch that

evening because of the weather. Mr. Eash observed freezing rain near his home and saw a

television report advising the public not to drive unless it was an emergency because of unsafe

road conditions. The Roadway dispatcher advised Mr. Eash that other drivers were reporting for

work and that he would be on call that evening.

       Mr. Eash called the Roadway terminal again at around 7:30 p.m. asking to be excused

from his dispatch, stating conditions near his home had become worse. He stated that based on

his experience, including a prior accident in icy conditions, he felt it was unsafe to drive to

Pittsburgh that night. Again, the dispatcher refused to relieve him and informed Mr. Eash that he

should consider their conversation a work call. Mr. Eash attempted to drive to the Copley

terminal, but called Roadway dispatch a quarter of the way there and again asked to be relieved.

Mr. Eash stated he nearly lost control of his personal vehicle twice and believed that conditions

were too dangerous to operate a commercial vehicle. The dispatcher told Mr. Eash to, “do what

                                                -4-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

you have to do and I’ll do what I have to do.” On January 19, 1999, Mr. Eash received a

warning letter for failure to show up for work after accepting a dispatch.

       C.      Procedural History

       Mr. Eash challenged all of the warning letters he received, claiming retaliation by

Roadway in violation of the STAA.1 A partial summary decision in favor of Roadway was

issued on Mr. Eash’s claim that a October 16, 1998, warning letter relating to fatigue violated the

STAA. The ALJ found that, as to Mr. Eash’s claim based on fatigue, summary judgment was

warranted because Mr. Eash had become fatigued through no fault of the employer, citing Sec’y

of Labor & Porter v. Greyhound Bus Lines, ARB No. 98-116, ALJ No. 96-STA-23, 1998 DOL

Ad. Rev. Bd. LEXIS 67 (June 12, 1998).

       The ALJ then held a one-day hearing dealing with Mr. Eash’s remaining claims,

including the January 19, 1999, letter based on Mr. Eash’s refusal to drive in inclement weather.

As to the January 19, 1999, letter, the ALJ concluded in a Recommended Decision and Order

that Mr. Eash had not established a claim under the actual violation prong of the STAA, but was

entitled to relief under the reasonable apprehension prong. The ALJ determined that Mr. Eash’s

testimony was not sufficiently credible to establish that the weather conditions were actually


       1
         As noted above, Mr. Eash received a total of seven warning letters related to this
litigation. Of the seven letters, five were cited in support of a claim of retaliation in violation
another provision of the STAA, not at issue in this appeal, which prohibits disciplining
employees for asserting their rights under the STAA or cooperating with government
investigations. See 49 U.S.C. § 31105(a)(1)(A) (2000). This claim was based on litigation
between Roadway and Mr. Eash over a prior warning letter based on fatigue, discussed below.
Mr. Eash dropped his challenge to one of these letters. The ALJ eventually found in favor of
Roadway on the remaining four that formed the basis of Mr. Eash’s § 31105(a)(1)(A) claim.

                                                -5-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

hazardous under relevant Department of Transportation regulations. By contrast, however,

although Mr. Eash’s testimony as to the weather conditions on the 14th was “entitled to less

weight,” the ALJ nonetheless found “ a reasonable person in [Mr. Eash’s] situation could have

determined” that there was a danger to himself or the public due to the weather. Based on the

“reasonable apprehension” prong of the STAA, the ALJ ordered that the January 19, 1999,

warning letter be expunged from Mr. Eash’s file.

       The ALJ also issued a Supplemental Recommended Decision and Order awarding

$17,774.25 in fees and costs to Mr. Eash and his counsel. The ALJ used the lodestar method set

out in Hensley v. Eckerhart, 461 U.S. 424, 440 (1983), and reduced the amount of the fee

requested by one half for time billed on the case prior to the summary judgment decision and by

two thirds for time billed afterwards. This calculation was based the following factors: 1) half of

the warning letters were no longer at issue after summary judgment; and 2) Mr. Eash prevailed

on one of the three remaining legal issues following the hearing.

       In the Board’s Final Decision and Order, the Board affirmed the ALJ’s decisions in their

entirety. The Board noted and affirmed the ALJ’s grant of summary judgment in favor of

Roadway on Mr. Eash’s STAA claim based on fatigue without discussing the ALJ’s reasoning.

The Board recognized that the ALJ had properly distinguished between the actual violation and

reasonable apprehension prongs of the STAA in finding for Mr. Eash on his claim related to the

January 19, 1999, warning letter. Finally, the Board affirmed the award of attorney fees, noting

that the ALJ had correctly applied relevant Supreme Court and Board precedent in calculating

the fee award in this case. Both Mr. Eash and Roadway now petition this court for review of the

                                               -6-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

Board’s decision.

                                                II.

       A.      Standard of Review

       In reviewing decisions of the Board, the court will uphold the Board’s findings of fact so

long as they are supported by substantial evidence in the record as a whole. Yellow Freight Sys.

v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transp. Drivers, Inc., 836 F.2d 226, 229

(6th Cir. 1987). Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion; a court may not re-litigate the case de novo, resolve

conflicts in evidence, or decide questions of credibility. Moon, 836 F.2d at 229. The court

reviews the legal conclusions of the board de novo, with the proper deference due an agency

interpreting the statute it is charged with administering. Am. Nuclear Res., Inc. v. Dep’t of

Labor, 134 F.3d 1292, 1294 (6th Cir. 1998).

       B.      The Board’s Decision to Grant Summary Judgment Against Mr. Eash on His
               Fatigue Claim

       The Board has requested a remand to correct a possible misapplication of the statute it is

charged with enforcing, and such requests should be granted absent clearly articulated

countervailing reasons. Citizens Against the Pellissippi Parkway Extension v. Mineta, 375 F.3d

412, 416 (6th Cir. 2004). In Eash v. Roadway Express, ARB No. 00-061, ALJ No. 98-STA-28,

slip. op. (Dec. 31, 2002) (Eash I), the ALJ granted a motion for summary judgment in favor of

Roadway on a claim by Mr. Eash that Roadway violated the STAA by disciplining him for

refusing to operate a commercial motor vehicle due to fatigue. The Board in Eash I reversed the



                                               -7-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

ALJ’s grant of summary judgment in favor of Roadway and held that a genuine issue of material

fact is raised at the summary judgment stage when a driver disputes whether he deliberately

made himself unavailable for work due to fatigue. In the instant case, the Board admits that it

did not address Eash I in its decision and requests a remand to explain the different results in

nearly identical cases. Roadway opposes remand on the ground that Board is not bound to

follow Eash I as precedent because the facts between the two cases are distinguishable.

       “[W]hen an agency seeks a remand to take further action consistent with correct legal

standards, courts should permit such a remand in the absence of apparent or clearly articulated

countervailing reasons.” Citizens Against the Pellissippi Parkway Extension v. Mineta, 375 F.3d

412, 416 (6th Cir. 2004). Even if there is no allegation that there is new evidence or a change in

the law, an agency should be allowed to reconsider its own decision if the agency has doubts

about the correctness of that decision. Id. at 417. The conclusion is strengthened by the

deference a court is required to give to an agency interpreting an ambiguous statute that it is

charged with enforcing. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837,

844 (1984); Yellow Freight Sys. v. Reich, 8 F.3d 980, 984 (4th Cir. 1993).

       Here, the agency clearly has doubts about the correctness of its decision and Roadway

has not articulated a reason not to allow the Board to reconsider its decision; all of the arguments

Roadway has made against remand are better resolved by the Board interpreting its own statute

and relevant regulations. We reject, however, Mr. Eash’s suggestion at oral argument that this

court remand the case directly to the ALJ. By doing so the court would implicitly make a

finding on the appropriateness of summary judgment in this case, the issue which the Board has

                                                -8-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

requested remand to consider.

       C.      The Board’s Determination Roadway Violated the STAA

       Roadway’s petition for review is denied because substantial evidence supports the ALJ’s

determination that Roadway violated the STAA by disciplining Mr. Eash for refusing to drive on

January 14, 1999. To be entitled to relief under the STAA, the employee must prove: 1) the

employee engaged in protected activity; 2) the employer was aware of the protected activity; 3)

the employee suffered adverse employment action; and 4) there is a causal nexus between

adverse employment action and the protected activity. Reich, 8 F.3d at 983; Moon v. Transp.

Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).

       Protected activity under the STAA encompasses a refusal to drive in hazardous weather

conditions, based on either the actual violation prong or the reasonable apprehension prong of §

31105(a)(1)(B). Department of Transportation regulations prohibit the operation of a

commercial vehicle in snow, ice or sleet if the weather is sufficiently severe. 49 C.F.R. § 392.14

(2004). Under the STAA, the reasonable apprehension prong applies because weather

conditions can make driving hazardous and thus render the condition of the vehicle unsafe. See

49 U.S.C § 31105(a)(1)(B)(ii); Robinson v. Duff Truck Line, 1986-STA-3 (ARB March 6, 1987),

aff’d sub nom. Duff Truck Line v. Brock, 848 F.2d 189 (6th Cir. 1988) (unpublished table

decision).2 This appeal centers on whether substantial evidence supports the Board’s


       2
         The parties do not dispute the application of §31105(a)(1)(B)(ii) to a refusal to drive in
adverse weather conditions, despite the fact that this conclusion is not obvious from the language
of the statute, and we do not comment on the correctness of this interpretation here. The
Secretary of Labor has consistently interpreted the reasonable apprehension prong of the STAA

                                               -9-
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

determination that Mr. Eash engaged in protected activity under the reasonable apprehension

prong of the STAA by refusing to drive in hazardous weather.

       Roadway’s argument that the ALJ’s decision was not supported by substantial evidence

is based almost exclusively on the ALJ’s statement, “It is within the province of the court to

determine the credibility of witnesses. After observing [Mr. Eash] at the time of the hearing in

this matter, I do not find [his] testimony to be credible.” Roadway also relies on similar

rejections of weather reports and newspaper articles submitted by Mr. Eash in support of his

challenge to the January 19, 1999 warning letter. Roadway argues that because the ALJ rejected

all of Mr. Eash’s evidence, the finding that Mr. Eash engaged in protected activity under the

reasonable apprehension prong of the STAA is not supported by substantial evidence.

       In this case, the ALJ evaluated Mr. Eash’s claims separately under the actual violation

and reasonable apprehension prongs of the STAA. The fact that the ALJ found Mr. Eash’s

testimony and evidence not credible for one purpose does not mean it was rejected outright. The

ALJ found that Mr. Eash’s testimony was not credible and the evidence did not support a claim

under the actual violation prong of the STAA, i.e., his evidence could not establish that, in fact,

the weather was so severe that operating a commercial vehicle on January 14, 1999 would

violate 49 C.F.R. § 392.14. However, this does not mean that the same evidence could not

support the ALJ’s finding that Mr. Eash had met the lesser standard of an objectively reasonable

apprehension of danger to himself or the public because of the weather conditions.



to encompass more than just the mechanical condition of the vehicle. Stauffer v. Wal-Mart
Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21, 2001 DOL Ad. Rev. Bd. LEXIS 54 (Nov.
30, 1999).
                                            - 10 -
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

       It is not questioned that there was, in fact, a severe winter storm in Ohio and

Pennsylvania on January 14th and 15th, 1999. Mr. Eash testified that he saw weather reports

indicating freezing rain and warning that drivers should stay off the roads if at all possible. Mr.

Eash testified he lost control of his personal vehicle on the way to report to work, and concluded

it was unsafe to operate a commercial vehicle based on his familiarity with the route and

experience, including a prior accident, in winter storms. Mr. Eash submitted newspaper reports

and weather data regarding the size of the storm. Roadway did not dispatch Mr. Eash on a

return trip to Pittsburgh on the morning of January 14th due to the weather. While the ALJ

stated that Mr. Eash’s testimony is entitled to “less weight,” it was not rejected outright. Thus,

based on Mr. Eash’s testimony and the fact of a severe winter storm, there is substantial evidence

in the record as a whole to support the ALJ’s conclusion that Mr. Eash had an objectively

reasonable apprehension of a danger to himself or the public such that he would conclude that it

was unsafe to operate a commercial vehicle.

       Roadway briefly makes a second argument that the ALJ applied the wrong standard in

finding for Mr. Eash. In the Recommended Decision and Order, the ALJ concluded, “I find that

a reasonable person in [Mr. Eash’s] situation could have determined that a bona fide danger of

accident or injury to his person existed” (emphasis added). The STAA states, “an employee's

apprehension of serious injury is reasonable only if a reasonable individual in the circumstances

then confronting the employee would conclude that the unsafe condition establishes a real danger

of accident, injury, or serious impairment to health.” 49 U.S.C. § 31105(a)(2) (2000) (emphasis

added). Roadway states this discrepancy without elaboration. The Board cited the correct legal

                                               - 11 -
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

standard in its final decision, as does the ALJ elsewhere in the recommended decision. The

Board and the ALJ applied the correct legal standard despite this slight discrepancy in language.

       D.      The Board’s Award of Attorney Fees

       Roadway’s petition for review of the attorney fees awarded by the ALJ is denied. The

fee awarded was reasonable and in accordance with applicable law. The STAA provides that a

successful complainant may recover reasonable costs, including attorney fees, incurred in

bringing a complaint. 49 U.S.C. §31105(b) (2000). The Board has adopted the lodestar method

of calculating attorney fees, which requires multiplying the number of hours reasonably

expended by a reasonable hourly rate. See Hensley v. Eckerhardt, 461 U.S. 424, 435 (1983);

Scott v. Roadway Express, ARB No. 01-065, ALJ No. 98-STA-8, 2003 DOL Ad. Rev. Bd.

LEXIS 41 (May 29, 2003). A reduction is appropriate where a complainant achieves limited

success. Cf. Hensley, 461 U.S. at 435.

       Roadway argues that Mr. Eash should be awarded only nominal fees because Mr. Eash

challenged seven disciplinary letters and was successful in having only one removed from his

file. The Supreme Court has rejected a mathematical approach comparing the number of issues

in the case with those actually prevailed upon. Hensley, 461 U.S. at 435 n. 11. Mr. Eash

successfully challenged the January 19, 1999 warning letter, prevailing on the most substantial

of the claims made. Even if fees may be reduced to account for limited success in the litigation,

the ALJ took this into account during the fee determination and reduced the fee awarded

appropriately. Therefore, the ALJ’s determination of fees was made in accordance with relevant

Supreme Court and Board precedent.

                                              - 12 -
Nos. 03-4074, 03-4115
Roadway Express, Inc. & Larry Eash v. Administrative Review Board

                                              III.

       With respect to Mr. Eash’s petition for review, the Board’s request for voluntary remand

for further proceedings consistent with its decision in Eash v. Roadway Express, ARB No. 00-

061 ALJ No. 98-STA-28, slip. op. (Dec. 31, 2002) is GRANTED. Roadway’s petition for

review is DENIED.




                                             - 13 -
