Harry Smith v. Secretary of Labor, 659 F. App'x 296

Background

Harry Smith, a truck driver for Lake City Enterprises, was terminated after reporting unsafe equipment/conditions and stating he would have the trailer inspected by DOT; he filed an STAA whistleblower complaint.
OSHA/ALJ found Lake City and its president Crystle Morgan violated 49 U.S.C. § 31105; the ALJ and Board found Donald Morgan (Crystle’s husband) not individually liable.
Donald worked at Lake City as an independent owner-operator, maintained his truck on the premises, advised Crystle occasionally, but had no managerial title, ownership stake, hiring/firing authority, or direct control over Smith’s employment.
After final agency proceedings, the Board awarded Smith $7,280 in attorney fees and $440.13 expenses (later adjusted to $8,056.13); Smith sought additional fees and sought clarification about fees for appellate/bankruptcy work.
Smith discovered third-party testimony suggesting Donald was viewed as a co-owner, moved to reopen the agency record, and filed timely petitions for review challenging (1) Donald’s non-liability, (2) the fee award, and (3) denial of the motion to reopen.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Donald Morgan is liable under the STAA as a joint employer	Donald exercised central control / joint-owner role at Lake City and thus influenced employment decisions	Donald had only a tenuous involvement; no control over hiring, firing, or terms of Smith’s employment	Affirms non-liability: substantial evidence shows Donald lacked control over Smith’s employment; not a joint employer
Timeliness of Smith’s petition for review of the November 2012 Board order	60-day review period triggered later (e.g., fee order) or should be tolled; thus petition was timely	Final order issued Nov. 20, 2012, making Smith’s Nov. 12, 2013 petition untimely	Court assumes timeliness for merits but holds even if timely the non-liability determination is supported by substantial evidence
Adequacy and scope of attorney’s fee award	Award was inadequate; sought fees for Board, Sixth Circuit, bankruptcy work and additional time through Jan 2013	Board/ALJ limited award to certain periods and sought clarification on supplemental fee claims	Dismisses review of the Sept. 12, 2013 fee order as non-final; preserves Smith’s right to seek review after a final Board order
Denial of motion to reopen record based on newly discovered testimony	New testimony shows Donald was viewed as co-owner; should reopen record and reconsider liability	Motion filed while appeal pending; Board lacked jurisdiction and even on merits reopening unlikely	Denies review: Board properly refused to consider the motion during pending appeal and concluded reopening likely would be denied

Key Cases Cited

Moon v. Transp. Drivers, Inc., 836 F.2d 226 (6th Cir. 1987) (standard for substantial evidence review)
Richardson v. Perales, 402 U.S. 389 (U.S. 1971) (definition of substantial evidence)
Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994) (deference to agency legal conclusions and interpretations)