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Legal Memorandum: Recovery of Attorney's Fees

Issue: Are attorney’s fees recoverable in cases involving retaliation against aviation employees who report safety violations?

Area of Law: Aviation & Transportation Law, Employee Law, Litigation & Procedure
Keywords: Attorney's fees; Aviation employees; Retaliation claim for reporting safety violations
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: 42 U.S.C. § 42121; 42 U.S.C.A. § 42121(b)(6)(A) ; § 42121(b)(6)(B)
Date: 03/01/2004

       

A claim for retaliation by an aviation employer is filed under 42 U.S.C. § 42121, giving employment protection to aviation employees who provide air safety information.  That section does not provide for attorney’s fees at the administrative level.  Rather, it states that a party who has prevailed by obtaining an order by the Secretary of Labor may seek compliance with the order in a U.S. district court, 42 U.S.C.A. § 42121(b)(6)(A) (West 2004), and “[t]he court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorney . . . fees) to any party whenever the court determines such award is appropriate,” id., § 42121(b)(6)(B) (West 2004) (emphasis added).  Thus, while a complainant may be entitled to an award of attorney’s fees at some point in a case, there is no statutory support for an award of attorney’s fees at the administrative stage of the proceedings.  Attorney’s fees may be awarded only if the matter proceeds to the courts, and if the complainant prevails.  See Troy v. Bay State Computer Group, Inc., 141 F.3d 378, 384 (1st Cir. 1998) (remanding for the district court to “make a fresh determination of the award of attorneys’ fees” after the court of appeals required entry of a “greatly reduced back pay award.”).

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