, ARB No. 99-070, ALJ No. 1997-SDW-6 (ARB June 30, 1999) (corrected, see
errata)
U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 99-070
(Formerly 98-032)
(Corrected)
DATE: June 30, 1999
ALJ CASE NO. 97-SDW-6
In the Matter of:
JOHN J. BELIVEAU, JR.
COMPLAINANT,
v.
NAVAL UNDERSEA WARFARE
CENTER,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant
Sarah L. Levitt, Esq., Richard E. Condit, Esq.
The Project on Liberty & the Workplace, Washington, D.C.
For the Respondent
Andrea Heffernan Brisbin, Esq., Neaclesa P. Anderson, Esq.
Department of the Navy, Washington, D.C.
ORDER
This case arose under the Toxic Substances Control Act of 1986, 15 U.S.C.A.
§2622 (1998); the Water Pollution Control Act, 33 U.S.C.A. §1367 (1998); the Solid Waste
Disposal Act, 42 U.S.C.A. § 6971 (1998); the Comprehensive Environmental Response,
[Page 2]
Compensation and Liability Act, 42 U.S.C.A. §9610 (1998); the Resource Conservation and
Recovery Act, 42 U.S.C.A. §6971 (1998); the Clean Air Act, 42 U.S.C.A. §7622 (1998)
[the environmental statutes]; and the regulations implementing these statutes at 29 C.F.R. Part 24. On
February 15, 1995, Complainant John Beliveau, filed a whistleblower complaint with the U.S. Department
of Labor's Wage and Hour Division alleging that he had been subjected to unlawful retaliation by his
employer, Naval Undersea Warfare Center (NUWC), in response to engaging in activities protected under
the statutes. On June 15, 1995, prior to the completion of the Wage and Hour Division's investigation,
Beliveau and NUWC entered into a settlement agreement and Beliveau withdrew his complaint.
On April 28, 1997, Beliveau filed a Motion to Reopen the 1995 complaint and
declare the settlement void on the grounds that the Secretary had not approved the settlement. This Board
disagreed, reasoning that because Beliveau and the NUWC settled the complaint before either party filed
an appeal of the Wage and Hour Division's finding by requesting a hearing before the Labor Department's
Office of Administrative Law Judges, the Secretary was not required to enter into a settlement to terminate
the action initiated by the complaint. Beliveau v. Naval Undersea Warfare Center, ARB Case
No. 97-097, Order Denying Interlocutory Appeal (Aug. 14, 1997); ARB Case No. 98-032, Final
Decision and Order (June 26, 1998).
By order dated March 10, 1999, the U. S. Court of Appeals for the First Circuit
reversed the Administrative Review Board's decision and remanded the case to the Secretary of Labor
"for her review of the Settlement Agreement, to be followed by such further proceedings as may be
called for on completion of that review." Beliveau v. U. S. Department of Labor, 170
F.3d 83 (1st Cir. 1999).
Before the Administrative Review Board, Beliveau argued that the settlement should
be considered void because the Secretary had not approved it. In essence, Beliveau argued that he had
the right to withdraw from the settlement until the Secretary approved it. However, assuming that Beliveau
participated in and consented to the settlement at the time it was negotiated, he is bound by his initial
negotiated consent to settle the complaint until such time as the Secretary approves or rejects the
settlement. Macktal v. Brown & Root, 86-ERA-23 (Sec'y Nov. 14 1989).1
1 The U.S. Court of Appeals for the Fifth
Circuit reversed the Secretary's determination in Macktal that, in the absence of a severability
provision in the settlement, she could nevertheless sever settlement terms that violate public policy and
otherwise enforce the remainder of the settlement. Macktal v. Secretary of Labor, 923 F.2d
1150, 1153-1156 (5th Cir. 1991). However, in dicta, the court upheld the Secretary's
determination that as long as the Complainant initially consented to the settlement, he may not withdraw
from it prior to the Secretary's consideration of the settlement. 923 F.2d at 1156-1157.
2 The parties' Memorandum of
Agreement and Settlement, ¶ 16, provides, "Any provisions of this Settlement Agreement
declared or determined by any court, administrative tribunal, or agency to be illegal or invalid will not affect
the validity of the remaining provisions."