USDOL/OALJ Reporter: ARB Decision Caselist - August 2017

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PROTECTED ACTIVITY; SUBJECTIVE AND OBJECTIVE REASONABLENESS OF COMPLAINANT’S BELIEF

In Johnson v. The Wellpoint Companies, Inc. , ARB No. 16-020, ALJ No. 2010-SOX-38 (ARB Aug. 31, 2017), the ARB summarily affirmed the ALJ’s decision that the Complainant failed to establish that she engaged in any protected activity under SOX.  The ARB focused on the Complainant’s “failure to establish that her belief that WellPoint’s activity of which she complained violated SOX was both subjectively and objectively reasonable.”  This question involved the Complainant’s understanding of the financial impact of the Respondent’s policy of not counting open claims as part of inventory.  The ARB found that substantial evidence supported the ALJ’s implicit crediting of the Complainant’s supervisor’s testimony that she and the Complainant had monthly meetings, and that allegations of closing cases prematurely were never discussed in terms of concerns about violations of SEC regulations, but instead as operational questions related to policy and procedure.  The supervisor testified that the management team remedied problems, and that the inventory reports had no direct tie to the Respondent’s financial systems. 

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ATTORNEY’S FEES AND EXPENSES; REDUCTION OF HOURLY RATE FOR INADEQUATELY DOCUMENTED TRAVEL TIME; REDUCTION FOR LIMITED SUCCESS; REQUEST FOR REMAND TO PROVIDE MISSING DOCUMENTATION OF EXPENSE; ATTORNEY’S FEES FOR APPEAL OF ATTORNEY’S FEE AWARD NOT AVAILABLE WHERE APPEAL IS NOT SUCCESSFUL

In Aymond v. National Railroad Passenger Corp. (AMTRAK) , ARB No. 16-029, ALJ Nos. 2014-FRS-20 and 21 (ARB Aug. 30, 2017), the ALJ found that the Complainants had been unlawfully discriminated against in violation of the FRSA and awarded each $5,000 in back pay and $1,000 in compensatory damages.  The Respondent did not appeal.  The ALJ subsequently issued a Supplemental Decision and Order awarding the Complainants’ counsel $50,056.28 in attorney’s fees and costs. The Complainants’ counsel (“counsel”), who had requested an attorney’s fee of $126,125, appealed.

Reduction of hourly rate for travel time documented only with vague and block billed entries

Counsel did not appeal the ALJ reduction of the hourly rate from $500 to $400. However, counsel appealed the ALJ’s 50% reduction of the approved $400 hourly rate for claimed travel time entries on the fee petition that did not itemize work tasks.  The ALJ had noted that in the Fifth Circuit, where the case arose, U.S. district courts “compensate travel time entries at 50 percent of an attorney’s hourly rate in the absence of documentation of any legal work accomplished during the travel time.”  USDOL/OALJ Reporter at 4 (footnote omitted).  Counsel contended that the ALJ should have reduced the hourly rate to half of the requested $500 rate, or a smaller percentage of the approved $400 rate.  The ARB found that the ALJ had not abused his discretion in reducing the hourly rate for travel time entries, citing its own decisions of Smith v. Lake City Enters., Inc ., ARB No. 11-087, ALJ No. 2006-STA-32, slip op. at 14 (ARB Nov. 20, 2012) and Pollock v. Cont’l Express , ARB Nos. 07-073, -051; ALJ No. 2006-STA-1, slip op. at 17 (ARB Apr. 7, 2010).

Reduction for limited success; burden is on counsel to establish that fees requested for related but unsuccessful claims were reasonable

Counsel also challenged the ALJ’s reduction of the hours requested by 65% based on the fact that the Complainants had only succeeded on one of the four retaliatory adverse actions alleged in their complaint. The ALJ had based the reduction on a 25% success rate, plus 5% success for each of the two complainants in obtaining compensatory damages.  Counsel contended that work on establishing all four retaliatory adverse actions was inextricably intertwined and, therefore, should not be reduced.   The ARB cited its recent decision in D’Hooge v. BNSF Rys , ARB Nos. 15-042, 15-066; ALJ No. 2014-FRS-2, slip op. at 13 (ARB Apr. 25, 2017), and found that Counsel had not met his burden of showing that the fees he requested for the related but unsuccessful claims were reasonable.

ARB implicitly denies request for remand to provide documentation to ALJ on expenses not adequately described in the fee petition

The ALJ had declined to award any litigation expenses for legal research and writing performed by a hired outside attorney or travel expenses, because the requests were “wholly non-descriptive, unsupported, and vague.” USDOL/OALJ Reporter at 7 (quoting ALJ’s decision). On appeal, Counsel contended that he could document these expenses, and requested a remand to provide information to the ALJ.  The ARB found that the ALJ had not abused his discretion in rejecting these expenses “[b]ased on the facts in this case and the vagueness of Counsel’s requests,” id ., thereby implicitly denying the remand request.

Attorney’s fees for appeal of fee award are not available when the appeal is unsuccessful

Counsel had requested leave to file a fee petition with the ARB for his fees and costs in appealing the ALJ’s supplemental decision on the fee petition. The ARB denied the request, writing “We note that in federal discrimination and retaliation claims, a plaintiff is entitled to a reasonable attorney’s fee for services rendered in a successful appeal of the trial court’s fee award.  But an appellate court may not award attorney’s fees for work done on an unsuccessful appeal of a trial court’s award of attorney’s fees to an employee who prevailed below on such claims.” Id . at 8 (footnotes omitted).  The ARB found that because the ARB affirmed the ALJ’s supplemental decision, Counsel was not entitled to attorney’s fees for his appeal to the Board.

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TIMELINESS OF REQUEST FOR ARB REVIEW; EQUITABLE GROUNDS FOR TOLLING NOT PRESENT WHERE COMPLAINANT WAITED 83 DAYS AFTER ALJ’S ORDER OF DISMISSAL TO FILE A MOTION TO REOPEN WITH THE ALJ

In Maity v. E-Business International, Inc. , ARB No. 15-082, ALJ No. 2015-LCA-10 (ARB Aug. 30, 2017), the Complainant failed to file a timely appeal to the ARB from either the date of the ALJ’s order dismissing the complaint or the date of the ALJ’s order denying the Complainant’s request to reopen.   The Complainant alleged that OALJ failed to notify him timely of the order denying the request to reopen.  The ARB noted that the record did not show any evidence that Complainant had provided the ALJ with a forwarding address when he returned to India.  The ARB also noted the Complainant had waited 83 days before filing the motion to reopen with the ALJ and that the period for requesting ARB review was 30 days from the date of the ALJ’s order of dismissal.  The ARB thus found no equitable grounds for tolling the limitations period for requesting ARB review.

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EXTRATERRITORIAL APPLICATION OF SOX § 806 (18 U.S.C. § 1514A)

In Blanchard v. Exelis Systems Corp. , ARB No. 15-031, ALJ No. 2014-SOX-20 (ARB Aug. 29, 2017), the Complainant, a U.S. national, worked for the Respondent, a U.S. corporation, as a Security Supervisor under the Respondent’s contract with the DOD at Bagram Air Force Base, Afghanistan.  The Complainant filed a complaint alleging that Respondent violated SOX § 806 by retaliating against him because of several alleged protected activities.  The ALJ dismissed the complaint for failure to state a claim under FRCP 12(b)(6).  The ALJ’s principle findings were that “(1) SOX § 806 does not apply extraterritorially; (2) the facts of Blanchard’s complaint do not warrant domestic application of SOX § 806; and (3) Bagram AFB is not a U.S. territory for purposes of enforcing SOX § 806. “  USDOL/OALJ Reporter at 6.  The ARB reversed with a lead opinion, and two concurring opinions.

Extraterritorial application of Section 806; applies to all publicly traded domestic companies and their employees regardless of location, but only to conduct that affects the U.S. in some significant way; international comity and avoidance of conflict of laws must also be considered

Judge Royce wrote the lead opinion. She began with a detailed analysis of the law relating to extraterritorial application of SOX § 806.  The ARB’s finding was that “§ 806 contains a clear indication that it applies extraterritorially to cover all publically-traded domestic and foreign companies and their employees regardless of the location of the affected employer/employee. This is not to say, however, that § 806 covers all foreign conduct of publically-traded foreign companies. The misconduct of a foreign issuer/employer under the statute must still ‘affect in some significant way’ the United States.” USDOL/OALJ Reporter at 12 (footnote omitted).  The ARB noted that “even assuming a statute has extraterritorial scope, its authority to reach certain foreign conduct might nevertheless be constrained by principles of international comity or avoidance of conflict of laws.” Id. The ARB found that the facts of the instant complaint would not entail international discord or conflict of laws.

Enforcement of instant complaint would not require extraterritorial application of SOX

Judge Royce then turned to whether, assuming the ALJ properly applied the presumption against extraterritoriality to § 806, the complaint failed to state a claim under the purely domestic reach of the statute. The ARB noted that the ALJ had cited controlling and relevant precedent— Morrison, Villanueva, Dos Santos — but found that it misapplied that precedent.  The ARB noted:  “Blanchard’s protected activity allegations involved violations of domestic law covered under § 806(a)(1). As such, extraterritorial reach of the statute is not required to cover Blanchard’s protected activity despite the ALJ’s assertions that the alleged illegal activity occurred in Afghanistan, was discovered in Afghanistan and efforts to address the illegality were largely located in Afghanistan.”  The ARB noted that, importantly, § 806 not only has the purpose of protecting employees who suffer an adverse action for reporting allegations of financial fraud committed by their employer, but has an additional focus to detect and address financial fraud.  The ARB stated:

“this case has the United States written all over it.” Blanchard’s alleged disclosures—regarding a publically-traded, U.S.-based corporation engaged in submitting false claims to the U.S. government in connection with U.S. security and military operation on a U.S. air force base—fall squarely within the type of malfeasance that both SOX and § 806 aimed to deter. Although some recipients of his complaints were located in Afghanistan, others were in the U.S. The conduct that prompted Blanchard’s complaints, although located in Afghanistan, occurred on a U.S. air force base and directly implicated the security of the United States, U.S. military personnel, and U.S. contractors as well as Respondent’s revenue. And as the ALJ conceded, seven U.S. employees approved Blanchard’s termination. Further, neither the location of Blanchard’s job, nor the location of his direct supervisors is conclusive of the territoriality of his complaint. Because § 806 in not principally focused on regulating the terms and conditions of employment, the physical locations of employee and employer, while relevant are not conclusive.  Virtually all the key elements alleged in Blanchard’s complaint demonstrate a significant connection with the U.S. securities and fraud detection. Blanchard’s complaint does not require extraterritorial application of § 806.

USDOL/OALJ Reporter at 17-18 (footnote omitted; quotation at start of paragraph is from Justice Ginsburg’s separate opinion in RJR Nabisco, Inc. , 136 S. Ct. at 2099).

The ARB further found that

…assuming the ALJ correctly identified the labor aspect of § 806 as the “additional focus” of § 806, enforcement of Blanchard’s complaint does not require extraterritorial application of § 806. The ALJ’s error in this regard was two-fold. First, all but one of the labor factors of Blanchard’s case are domestic. Blanchard was a U.S. citizen terminated by a U.S. publically-traded corporation for reporting violations of U.S. criminal law in connection with U.S. military and security interests at Bagram AFB. Furthermore, an Exelis employee located in Colorado Springs, Colorado made the ultimate decision to terminate Blanchard’s employment. The sole material extraterritorial aspect of Blanchard’s complaint is the location of his work site at Bagram AFB within Afghanistan. But in light of the undisputed facts concerning (1) exclusive U.S. control over; (2) U.S. possession of; and (3) the application of U.S. law within the geographical territory of Bagram AFB, the location of Bagram within Afghanistan does not remove Blanchard from the domestic reach of § 806. See Exhibit 32 (Accommodation Consignment Agreement between U.S. and Afghanistan)). As the Supreme Court has explained “questions of extraterritoriality turn on objective factors and practical concerns” and one such factor is the “objective degree of control the [United States] asserts over foreign territory.”

    The “driving force” of Blanchard’s complaint is domestic regardless whether one considers the focus of § 806 as primarily directed at detecting financial fraud or employee protection.  Our decision in this regard is bolstered by the lack of any allegations that enforcement of Blanchard’s complaint would implicate foreign governments, laws, or actors.  Because enforcing Blanchard’s rights will not conflict with Afghani laws, one of the principal policy concerns behind extraterritorial restraint is absent.

Id. at 18-19 (footnotes omitted).

Bagram Airforce Case as a U.S. Territory under § 806

Although, in view the findings above, Judge Royce proffered that the question of whether Bagram AFB is an U.S. territory was premature or tangential, and stated that the ARB would decline to rule on the question, the ARB vacated the ALJ’s finding that Bagram AFB is not a territory of the U.S. where United States laws apply, and then analyzed the question.  The ARB found that the cases relied on by the ALJ involved the holding in Boumediene v. Bush , 553 U.S. 723, 754, 764 (2008).  However, each of those cases pertained to the constitutional rights and concomitant constitutional restrictions on governmental power exercised extraterritorially and with respect to noncitizens. The ARB stated that the “facts and line of reasoning in these cases are not relevant to the question of whether § 806 applies to the conduct of U.S. citizens at Bagram. “ Id . at 19.   Even assuming this caselaw applies, the ARB found that the ALJ misapplied it by focusing only on the status of the detention site, and failing to consider that the Complainant was a U.S. citizen and that Bagram was a U.S. “possession.”

Chief Judge Igasaki’s concurrence

Chief Administrative Appeals Judge Igasaki issued a concurring opinion in which he stated that --   because he and Judge Royce agreed that the ALJ was incorrect in holding that the location of Bagram Air Force Base, within the boundaries of another country, made the case extraterritorial as to SOX § 806 --  and there were no other foreign characteristics of this case—it was not necessary to  define the general extraterritoriality of § 806.  Judge Igasaki indicated that he did not necessarily disagree with the reasoning of Judges Royce and Brown on the extraterritorial application question, and acknowledged that it might be considered in a future case in which questions of extraterritoriality are presented.

Judge Brown’s concurrence

Judge Brown joined the holding that Section 806 applies extraterritorially, but wrote separately is to make clear that “it is only with respect to certain applications of SOX’s whistleblower protection provision that the presumption against extraterritoriality has been rebutted.” Judge Brown stated that “It is by analyzing the Sarbanes-Oxley Act as a whole that one finds Congress’s intent to protect both domestic and foreign-based employees of U.S. domestic or foreign publicly traded companies who ‘blow the whistle’ on activity the employee reasonably believes violates one or more of the ‘predicate’ acts or provisions of Section 806, provided the alleged wrongdoing of which the employee complains involves U.S. domestic violations of the ‘predicate’ act or provision unless the ‘predicate’ act/provision itself extends its reach extraterritorially.”  Id . at 22 (footnote omitted).  Judge Brown also emphasized that the ARB’s decision was not a rejection of Villanueva v. Core Laboratories, NV , ARB No. 09-108, ALJ No. 2009-SOX-006 (ARB Dec. 22, 2011).

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TIMELINESS OF FRSA COMPLAINT; WHERE DISCHARGE NOTICE INFORMED COMPLAINANT THAT HE WAS NOT ELIGIBLE FOR REEMPLOYMENT LIMITATIONS PERIOD COMMENCED ON THAT DATE RATHER THAN ON DATE THAT COMPLAINANT ATTEMPTED REEMPLOYMENT AND WAS DENIED; DENIAL OF REEMPLOYMENT APPLICATION WAS CONSEQUENCE OF ADVERSE ACTION AND NOT A NEW ADVERSE ACTION; ACCRUAL OF DAMAGES IS NOT A PREREQUISITE FOR A FRSA CAUSE OF ACTION

In Dugger v. Union Pacific Railroad Co. , ARB No. 16-079, ALJ No. 2016-FRS-36 (ARB Aug. 17, 2017), the Complainant resigned from a management position with the Respondent.   A week later, August 18, 2015, the Respondent gave the Complainant a letter terminating his employment and stating in pertinent part that the Complainant was “disqualified from returning to any agreement craft where you may retain seniority and will not be considered for any future employment with the Union Pacific Railroad Company or any related companies.”  On September 9, 2015, the Complainant attempted to return to work by exercising his union seniority rights in a locomotive engineer position, but Respondent denied his request.  The Complainant filed a FRSA complaint on March 1, 2016.  Under the FRSA limitations provision, the complaint was untimely if the alleged violation occurred on the date of the termination letter, but timely if the relevant violation was the date the Respondent denied the request to return to work.  The ALJ found that the relevant violation occurred on the date of the termination letter and the denial of the return to work was only a consequence of the adverse action and not a new one.  The ARB affirmed the ALJ’s decision.  The ARB began by summarizing the law on the FRSA limitations period:

               Within 180 days after an alleged FRSA violation occurs, any employee who believes that he or she has been retaliated against in violation of the FRSA may file a complaint alleging such retaliation.  “[The] limitations period begins to run from the time that the complainant knows or reasonably should know that the challenged act has occurred.” Thus, an employer violates the FRSA on the date that it communicates to the employee its intent to take an adverse employment action, rather than the date on which the employee experiences the adverse consequences of the employer’s action.

               In whistleblower cases, statutes of limitation, such as section 20109(d)(2)(ii), run from the date an employee receives “final, definitive, and unequivocal notice” of an adverse employment decision.  “Final” and “definitive” notice is a communication that is decisive or conclusive, i.e., leaving no further chance for action, discussion, or change. “Unequivocal” notice means communication that is not ambiguous, i.e., free of misleading possibilities.

USDOL/OALJ Reporter at 2 (footnotes omitted). The Complainant argued on appeal that “only once his bid for a position was denied did he have the requisite damages to pursue a cause of action.”  The ARB rejected this argument, writing:

               [G]iven the public policy of the whistleblower laws, the issue of whether a complainant has sustained damages has never been a prerequisite to a finding of retaliation; “the absence of a tangible injury goes only to remedy, not to whether the employer committed a violation of the law.”  Further, the August notice not only terminated Dugger’s employment, but denied him the right to bid upon the job he subsequently was denied, so Dugger did, in fact sustain a compensable damage by virtue of this notice and the Secretary could have ordered reinstatement and reversal of Respondent’s order that Dugger was forbidden to “mark up.”

Id . at 5 (footnote omitted). The ARB also held that the ALJ’s conclusion that the Respondent’s refusal to allow the Complainant to “mark up” was a consequence of the August 15, 2015 adverse action rather than a new one was  consistent with Board precedent in Johnsen v. Houston Nana, Inc. JV, ARB No. 00-064, ALJ No. 1999-TSC-4 (ARB Feb. 10, 2003).  

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ARB RECONSIDERS ITS STRATES SHOWS, INC. DECISION, AND EXPUNGES THE STATEMENT IN ITS ORIGINAL DECISION THAT A DISTRICT COURT INJUNCTION RENDERED DOL’S LEGAL AUTHORITY FOR PURSUING H-2B ENFORCEMENT ACTIONS NULL AND VOID

In Administrator, Wage and Hour Division v. Strates Shows, Inc. , ARB No. 15-069, ALJ No. 2014-TNE-00016 (June 30, 2017) (“Strates”), the ARB held that the injunction issued by the United States District Court for the Northern District of Florida (“District Court”) vacating and permanently enjoining the U.S. Department of Labor (“DOL”) from enforcing the H-2B regulations promulgated at 73 Fed. Reg. 78020 (“2008 Rule”), Perez v. Perez , No. 3:14-cv-00682 (N.D. Fla. Mar. 4, 2015), “rendered [DOL’s] legal authority for pursing [H-2B enforcement] action[s] null and void” and that an ALJ had “no choice but to dismiss the action” for want of subject matter jurisdiction. The Office of the Solicitor filed an emergency motion requested that the ARB reconsider its decision because in a September 4, 2015 order the District Court had clarified that the Injunction “was not intended to, and does not, apply retroactively.” See Perez (Doc. No. 62).

In Administrator, Wage and Hour Div., USDOL v. Strates Shows, Inc. , ARB No. 16-069, ALJ No. 2014-TNE-16 (ARB Aug. 16, 2017), the ARB granted the motion for reconsideration and vacated its June 30, 2017 decision. The ARB also issued an Amended Final Decision and Order in which it omitted “the characterization of the 2008 H-2B regulations as unenforceable.”

[Editor’s note: Based on the foregoing, it appears that DOL may enforce the 2008 Rule for labor certifications issued before the injunction took effect on April 29, 2015. Cases involving a labor certification issued on or after April 29, 2015 are governed by the 2015 interim final rule and do not involve the Strates Shows case.]

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This is an ARB order granting reconsideration of its earlier decision in this matter. See the casenote for the Amended Final Decision and Order for the context.

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The ARB summarily affirmed the ALJ’s dismissal of the Complainant’s FRSA complaint where the Complainant failed to show by a preponderance of the evidence that his injury report contributed to his termination, and there was clear and convincing evidence to show that his injury report did not contribute to the termination decision. The Complainant had failed to complete a required Criminal Investigative Training Program.

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PROTECTED ACTIVITY; REFUSAL TO PERFORM ASSIGNED DUTY DUE TO A HAZARDOUS SAFETY CONDITION; REQUIREMENT THAT EMPLOYEE NOTIFY THE RAILROAD WHERE POSSIBLE OF THE EXISTENCE OF THE HAZARDOUS CONDITION AND THE EMPLOYEE’S INTENTION NOT TO PERFORM FURTHER WORK UNLESS CONDITION IS CORRECTED IMMEDIATELY; REMAND WHERE ALJ FAILED TO RECONCILE CONFLICTING TESTIMONY

In Laidler v. Grand Trunk Western Railroad Co. , ARB No. 15-087, ALJ No. 2014-FRS-99 (ARB Aug. 3, 2017), the Complainant filed a complaint with OSHA alleging that the Respondent violated the FRSA, 49 U.S.C.A. § 20109(b)(1), by terminating his employment in retaliation for his refusal to perform a roll-by inspection of an oncoming train from the ground, due to a hazardous safety condition.  Both OSHA and the ALJ found that the Respondent violated the FRSA retaliation provision. The ALJ awarded damages, including back pay with interest, punitive damages, and other relief.

On appeal, the Respondent contended that the Complainant’s refusal to perform the on-the-ground roll-by inspection as required the Respondent’s “Rule 523” was not protected activity under 49 U.S.C.A. § 20109(b)(1)(B) because the Complainant failed to prove that he had no reasonable alternative to the refusal and failed to establish that it was not possible to notify the Respondent of the existence of the hazardous condition and his intention not to perform the roll-by inspection. The Respondent argued that the ALJ’s holding that no reasonable alternative “sanctioned and explained” by the Respondent was available to the Complainant was inconsistent with the FRSA, which only requires the complainant to establish that no “reasonable alternative” was available.  The Respondent contended the ALJ improperly placed the burden on the employer to establish that a “sanctioned and explained” reasonable alternative was available.

The ARB found that substantial evidence supported the ALJ finding that there was no reasonable alternative available to the Complainant to refusing to perform a roll-by inspection from the ground to comply with Rule 523. The Rule provided for no other alternative when the terrain does not permit a roll-by inspection from the ground.  The Complainant also had not been provided with notice of the oncoming train.

The ARB, however, found that the ALJ’s decision failed to show that he had reconciled seemingly conflicting testimony on whether it would have been possible for the Complainant to notify the Respondent that he would not be conducting the roll-by inspection.   The FRSA “requires an employee to notify the railroad carrier ‘ where possible . . . of the existence of the hazardous condition’ and of the employee’s ‘intention not to perform further work . . . unless the condition is corrected immediately.’” USDOL/OALJ Reporter at 9-10, quoting 49 U.S.C.A. § 20109(b)(2)(C) (emphasis as added by the ARB).  The ARB stated:  “Absent discussion in the decision of the evidence and an explanation by the ALJ for why he disregarded the testimony, this Board is unable to fulfill its appellate responsibility to determine whether substantial evidence of record supports the ALJ’s factual finding that it was impossible for Laidler to notify GTW of the existence of the hazardous condition that prevented him from performing the on-the-ground roll-by inspection.” Id . at 11.  The ARB thus vacated the ALJ’s decision and remanded for the ALJ to reconsider.

CALCULATION OF INTEREST ON BACK PAY AWARDS IN FRSA CASES; ARB HOLDS THAT THE REGULATION PROMULGATED IN 2015 PROVIDING FOR DAILY COMPOUNDING APPLIES TO CASES IN WHICH NO FINAL ORDER HAD YET BEEN ISSUED; ARB NOTES ARGUMENT THAT FEDERAL COURTS CALCULATE INTEREST ANNUALLY BUT FINDS THAT IT IS REQUIRED TO APPLY THE SECRETARY’S REGULATIONS; NEW REGULATION ESSENTIALLY MOOTS APPLICATION OF ARB’S DOYLE DECISION WHICH PROVIDED FOR QUARTERLY COMPOUNDING

In Laidler v. Grand Trunk Western Railroad Co. , ARB No. 15-087, ALJ No. 2014-FRS-99 (ARB Aug. 3, 2017), The ALJ awarded back pay, with both pre- and post-judgment interest and awarded “prejudgment interest on back pay” based on the interest rate set out in 26 U.S.C.A. § 6621(a)(2), compounded quarterly in accordance with the Board’s holding in Doyle v. Hydro Nuclear Servc ., ARB Nos. 99-041, 99-042, 00-12; ALJ No. 1989-ERA-022, slip op at 18-19 (ARB May 17, 2000).  On appeal, the Respondent noted that the FRSA has a kick-out provision that permit FRSA cases to be brought in district court, and that in district court interest on back pay awards is determined in accordance with 29 U.S.C.A. § 1961, which provides that interest be compounded annually.  The Respondent argued that “’make whole’ relief under the FRSA should not and cannot be different depending on whether the case is brought before the DOL or the U.S. District Court and urges that interest compounded annually in accordance with 29 U.S.C.A. § 1961….” Id . at 12.  The ARB rejected this argument finding that in 2015 rulemaking, OSHA promulgated a regulation providing that “’[i]nterest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.’ See 29 C.F.R. §§ 1982.105(a)(1), 1982.109(d)(1), 1982.110(d); 80 Fed. Reg. 69,115, 69,124 (Nov. 9, 2015).”  The ARB further found that because no final order had been issued in the case (the ARB’s having ordered a remand on the question of protected activity) § 1982.109(d) should be applied and interest on any back pay award should be compounded daily.  The ARB noted that it is required to follow the Secretary’s regulations.  The ARB found that any possible error in the Doyle procedure for calculation of interest on a quarterly basis was harmless given that DOL now has a governing regulation that provides for daily compounding.