ARB CASE NO. 99-090
ALJ CASE NOS. 96-ERA-43
98-ERA-24
DATE: May 23, 2000
IN THE MATTER OF
MAGED F. GABALLA,
COMPLAINANT,
v.
CAROLINA POWER AND LIGHT COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Petitioner: David K. Colapinto, Esq.,
 Kohn, Kohn & Colapinto, P.C., Washington, D.C.
For the Complainant:
M. Travis Payne, Esq.,
Edelstein and Payne, Raleigh, North Carolina
For the Respondent:
Rosemary G. Kenyon, Esq., Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L. L. P., Raleigh,
North Carolina
FINAL ORDER GRANTING MOTION TO STRIKE THE
PETITION FOR REVIEW AND DISMISSING THE COMPLAINT
Complainant's former counsel, David Colapinto, requests this Board to review
a settle-ment agreement submitted by the parties and approved by the Administrative Law Judge
("ALJ"). Colapinto argues that the settlement agreement is invalid because it fails to
address his claim for attorney's fees. Complainant moved to strike the petition for review. We grant
Complainant's motion to strike and close the case.
[Page 2]
BACKGROUND
In 1996 and again in 1997, Maged Gaballa filed with the U. S. Department of
Labor whistleblower complaints against his employer, Carolina Power & Light Company
("CP&L"). Gaballa alleged that CP&L violated the employee protection provisions of
the Energy Reorgani-zation Act of 1974 ("ERA") by harassing and retaliating against
him because he engaged in pro-tected activity. 42 U.S.C.A. §5851 (1995); 29 C.F.R. Part 24
(1999). After investigating the complaints, the Department of Labor determined that CP&L had not
violated the ERA. Gaballa requested a hearing, and the ALJ consolidated the two claims.
On June 5, 1998, attorney David Colapinto, who had represented Gaballa in
the ERA matter since April 1996, asked the ALJ to allow him to withdraw as counsel. Over
Gaballa's objection, the ALJ approved the withdrawal by order dated July 7, 1998. On August 3,
1998, Colapinto filed with the ALJ a Notice of Lien for $65,000, Colapinto's estimate of his fees and
costs for representing Gaballa before the withdrawal. In October 1998, Gaballa hired a new attorney
and began preparation for the hearing on his ERA claims.
On March 18, 1999, the parties submitted a signed settlement agreement to
the ALJ for approval. The terms of the agreement primarily pertain to a workers' compensation
action brought by Gaballa against CP&L pursuant to the North Carolina Workers' Compensation
Act, but the agreement also includes Gaballa's waiver of all his ERA whistleblower claims against
CP&L. Finding that the agreement constituted a fair, adequate and reasonable settlement, the ALJ,
by order of March 23, 1999, recommended approval of the agreement and dismissal of the case.
After receiving notice that the agreement had been approved, CP&L reminded
the ALJ that the agreement had failed to address Colapinto's Notice of Lien. In response, the ALJ
vacated his March 23 order and requested that the parties inform him of the amount to be paid to
Colapinto from the proceeds of the agreement. CP&L and Gaballa responded that Colapinto has no
legal basis to assert a lien against the settlement, and that he should be paid nothing under the
agreement because Gaballa had waived his ERA claims, and the monies to be paid under the
agreement were for the workers' compensation claim on which Colapinto did no work.
Thereafter, the ALJ ordered Colapinto to show cause why approval of the
agreement should not be reinstated with a finding that the asserted lien for attorney's fees is not
actionable in the administrative forum. Colapinto responded to the show cause order and also moved
to intervene in the case. After a flurry of letters, motions, responses and replies from Colapinto,
Gaballa and CP&L, on May 27, 1999, the ALJ denied Colapinto's motion to intervene and reinstated
the March 23, 1999 order recommending approval of the settlement agreement.
[Page 3]
Colapinto timely petitioned this Board for review of the March 23 and May
27, 1999 recommended decisions. Gaballa moved to strike the petition for review. Pursuant to our
order, Colapinto, Gaballa and CP&L filed briefs.
DISCUSSION
An ALJ's recommended decision under the Federal environmental
whistleblower statutes becomes the agency's final decision unless a petition for review is timely filed
with the Adminis-trative Review Board. 29 C.F.R. §24.7(d). As neither Complainant nor
Respondent requested review, this case is before us based solely on Colapinto's petition. Thus, the
question before us is whether Colapinto is eligible to petition for review.
Causes of action under the ERA's employee protection provisions are
controlled by the implementing regulations found at 29 C.F.R. Part 24 and the procedural regulations
of the Office of Administrative Law Judges at 29 C.F.R. Part 18.1
1 Part 18 of Title 29 of the Code of Federal
Regulations is titled Rules of Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges. Section 18.1(a) provides in relevant part:
These rules of practice are generally applicable to adjudicatory proceedings
before the Office of Administrative Law Judges, United States Department
of Labor . . . . To the extent that these rules may be inconsistent with a rule
of special application as provided by statute, executive order, or regulation,
the latter is controlling.
2 "Any party desiring
to seek review, including judicial review, of a recommended decision of the administrative law judge shall
file a petition for review with the Administrative Review Board . . . ." 29 C.F.R.
§24.8(a)(emphasis added).
3 The decision to participate as a
party is left to the Assistant Secretary's discretion, can occur at any time in the proceedings, and includes the
right to petition for review of an ALJ's recommended decision. 29 C.F.R. §24.6(f)(1).
4 The Part 18 regulations define
party -- with some circularity -- as "a person or agency named or admitted as a
party" to the proceeding. 29 C.F.R. §18.2(g) (emphasis added).
5 Such a person must submit a
petition to the administrative law judge 15 days after the person has knowledge of or should have known
about the proceeding. Id. at §18.10(c). The petition must concisely state: (1) the petitioner's
interest in the proceeding; (2) how his participation as a party will contribute materially to the disposition
of the proceeding; (3) who will appear for the petitioner; (4) the issues on which the petitioner wishes to
participate; and (5) whether the petitioner intends to present witnesses. Id.
6 There is an additional reason to
dismiss Colapinto's petition for review. The ERA's attorneys' fees provision -- which accords prevailing
complainants attorneys' fees as part of costs and expenses -- promotes a laudable statutory goal:
complainants will be able to afford adequate representation by counsel when they successfully bring ERA
employee protection complaints. However, the dispute between Colapinto and Gaballa regarding Colapinto's
fees is essentially contractual in nature, and is beyond our adjudicatory authority under the ERA.
7 Board Member E. Cooper Brown
did not participate in the consideration of this case.