Revised August 27, 2007
This memorandum describes the procedural requirements for dismissal of a whistleblower complaint under 29 C.F.R. Parts
24, 1978, 1979, 1980 and 1981 where a settlement agreement underlies the request for dismissal. In particular, this memorandum describes (1) when a
whistleblower settlement is required to be submitted to the ALJ or ARB for review, and (2) whether the ALJ's order is recommended or final.
Caselaw describing substantive requirements for review of settlements may be found in the following case Digests:
I. Settlement Reached Prior to Investigatory Finding and Appeal to ALJ
In general, settlements reached during the investigative stage must be reviewed and approved by the Secretary. See
generally 29 C.F.R. § 24.111(d)(1) (available at 72 Fed. Reg. 44956 (Aug. 10, 2007)) (settlements must be submitted to OSHA where
the complaint arises under the ERA, CAA, SDWA or TSCA; settlements under the
FWPCA, SWDA and CERCLA are encouraged to submit their settlements for
approval), 1978.111(d)(1) (STAA), 1979.111(d)(1) (AIR21), 1980.111(d)(1) (SOX),
1981.111(d)(1) (PSIA)); see also Beliveau v. U.S. Dept. of Labor,
170 F.3d 83 (1st Cir. 1999), reversing Beliveau v. Naval Undersea
Warfare Center, ARB No. 97-097, ALJ Nos. 1997-SDW-1 and 4 (ARB Aug. 14,
1997). OSHA investigators transmit settlements reached during the investigatory
stage to the Regional Administrator for approval on behalf of the Secretary.
Thus, ALJs are not involved in approving settlements reached prior to a request
for an ALJ hearing.
For additional information about the handling
of settlements at OSHA, see the Whistleblower Investigations Manual,
Chapter 6, Settlement Agreements (Aug. 22, 2003).
II. Settlements Reached After Appeal to ALJ or ARB
Aviation Investment and Reform Act
(AIR21)
Parties must submit the settlement to the ALJ or the ARB, and the ALJ or the ARB must approve the settlement. 29 C.F.R. §
1979.111(d)(2). Any settlement approved by the ALJ or the ARB constitutes the final order of the Secretary. 29 C.F.R. § 1979.111(e).
Clean Air Act; Energy Reorganization Act; Safe Drinking Water Act; and Toxic Substances Control Act
(CAA, ERA, SDWA, TSCA)
Where, after the filing of objections to the OSHA determination, the parties agree to a settlement of a complaint filed under the Energy Reorganization Act, the Clean Air Act, the
Safe Drinking Water Act, or the Toxic Substances Control Act, a copy of
the settlement must be filed with, and approved by, the administrative law judge or the ARB, as the case may
be. 29 C.F.R. § 24.111(d)(2) (available at 72 Fed. Reg. 44956 (Aug. 10, 2007)).
Any settlement approved by the ALJ or the ARB constitutes the final order of the Secretary. 29 C.F.R. § 24.111(e) (available at 72 Fed.
Reg. 44956 (Aug. 10, 2007)).
Fed. R. Civ. P. 41(a)(1)(i) or (ii) is not applicable where a CAA, ERA, SDWA or TSCA complaint was resolved by settlement.
The ARB requires that the parties provide settlement documentation for any other claims arising from the same factual circumstances
forming the basis of the federal claim, or a certification that the parties entered into no other
such settlement agreements. Beliveau v. Naval Undersea Warfare Center,
ARB Nos. 00-073, 01-017, 01-019, ALJ Nos. 1997-SDW-1, 4 and 6 (ARB Nov. 30,
2000), citing Biddy v. Alyeska Pipeline Service Co., ARB Nos. 96-109,
97-015, ALJ No. 1995-TSC-7 (ARB Dec. 3, 1996), slip op. at 3.
The ALJ must review the settlement to determine if it is fair, adequate and reasonable. If it is, the ALJ issues a recommended
order approving the settlement. McDowell v. Doyon Drilling Services, Ltd., 1996-TSC-8 (ARB May 19, 1997);
Darr v. Precise Hard Chrome, 1995-CAA-6 (Sec'y May 9, 1995); McGlynn v. Pulsair, Inc., 1993-CAA-2 (Sec'y June 8,
1993); Hoffman v. Fuel Economy Contracting, 1987-ERA-33 (Sec'y Aug. 4,
1989); Milewski v. Kansas Gas & Electric Co., 1985-ERA-21 (Sec'y
Jan. 15, 1988)(order), aff'd on recon, (Sec'y Apr. 23, 1990)(order); Glass
v. U.S. Environmental Protection Agency, ARB No. 96-153, ALJ No.
1995-CAA-16 (ARB July 19, 1996); Beliveau v. Naval Undersea Warfare Center,
ARB Nos. 00-073, 01-017, 01-019, ALJ Nos. 1997-SDW-1, 4 and 6 (ARB Nov. 30,
2000).
Once the ALJ has issued a recommended decision
and forwarded the case to the ARB for review, the ARB is the appropriate body
to review a subsequent settlement agreement. Ass't Sec'y & Zurenda v.
Corporate Express Delivery Systems, Inc., ARB No. 00-041, ALJ No.
1999-STA-30 (ARB Mar. 31, 2000). If the parties submit a settlement agreement
to the ARB for approval, the ARB does not need to vacate the ALJ's decision on
the merits when approving the settlement because 29 C.F.R. §24.8(a) (2000) [now 29 C.F.R. § 24.110(b) (available at 72 Fed. Reg. 44956 (Aug. 10, 2007))]
renders the ALJ's recommended decision inoperative by law. Pawlowski v.
Hewlett-Packard Co., ARB No. 99-089, ALJ No. 1997-TSC-3 (ARB May 5, 2000).
In an ERA case, however, an ALJ's preliminary order of relief is still
effective during the period that the ARB is conducting its review.
If a settlement judge is used in negotiating a
settlement, it is still the presiding judge (or the ARB if the case is pending
before that office), rather than the settlement judge, who is responsible for
conducting review of the settlement to determine if it is fair, adequate and
reasonable. See 29 C.F.R. § 18.9(e)(11) (2006).
Historical note The Part 24
regulations were revised on August 10, 2007 to implement the Energy Policy Act,
and to better harmonize Part 24 with DOL’s other whistleblower regulations.
The major change to the procedure for approval of settlements is that the ALJ’s
approval automatically becomes the final decision of the Secretary. 29 C.F.R.
§ 24.111(e) (available at 72 Fed. Reg. 44956 (Aug. 10, 2007)). Prior to August
10, 2007, the ALJ’s approval of a settlement was not final until the 10-day
period for petitioning for ARB had expired. See 29 C.F.R. §§
27.6(f)(1), 24.8(d) (2006). Prior to March 11, 1998, the Secretary or the ARB
issued the final order in all Part 24 cases.
Comprehensive Environmental Response, Compensation and Liability Act; Federal Water Pollution Control Act; and Solid
Waste Disposal Act
(CERCLA; FWPCA; SWDA)
The Part 24 regulations were revised on August
10, 2007 to implement the Energy Policy Act, and to better harmonize Part 24
with DOL’s other whistleblower regulations.
Prior to those revisions, the parties were not
required to submit the settlement to the ALJ for complaints grounded in the
CERCLA, FWPCA and SWDA, but could simply submit a letter stipulating resolution
of their dispute and requesting dismissal of the complaint. The ALJ did not
approve the underlying settlement, but rather issued a recommended order of
dismissal pursuant to Fed. R. Civ. P. 41(a). See Dorsey v. Greenbriar County
Public Service District #2, 1996-WPC-3 (ARB Sept. 29, 1997); James v.
Ketchikan Pulp Co., ARB No. ARB No. 97-128, ALJ No.1994-WPC-4 (ARB July 23,
1997); Biddle v. United States Dept. of the Army, ARB No. 97-034, ALJ
No. 1993-WPC-15 (Sec'y Mar. 29, 1995), adopting (ALJ May 6, 1994); Beliveau
v. Naval Undersea Warfare Center, ARB Nos. 00-073, 01-017, 01-019, ALJ Nos.
1997-SDW-1, 4 and 6 (ARB Nov. 30, 2000). Where the parties jointly requested a
dismissal, the ALJ did not need to issue an order to show cause pursuant to 29
C.F.R. § 24.6(e)(ii) (2000), prior to ruling on the motion for dismissal. Balog
v. Med-Safe Systems, Inc., ARB No. 99-034, ALJ No. 1995-TSC-9 (ARB Sept.
13, 2000). The ALJ's recommended order of dismissal became final unless a
party timely petitioned for review by the ARB. See 29 C.F.R. §§ 24.7(d)
and 24.8(a) (2000).
The August 10, 2007 revisions included a new
provision at section 24.111(c) (available at 72 Fed. Reg. 44956 (Aug. 10, 2007))
that is to similar on the AIR21, SOX and STAA model, which does not allow a
simple dismissal of a complaint under Rule 41. Rather, when a complainant
seeks to dismiss a complaint under this regulatory structure, the ARB has found
that the proper procedure is to find that the complainant has withdrawn
objections to OSHA's findings, and to reinstate and affirm the OSHA findings. See,
e.g., Vodicka v. Dobi Medical International, Inc., ARB No. 06-037, ALJ No. 2005-SOX-111
(ARB May 30, 2007); Thompson v. Inland Northwest Dairies, LLC, ARB No.
07-085, ALJ No. 2007-STA-31 (ARB July 31, 2007). The AIR21, SOX and STAA
regulations, however, all require the submission of a settlement agreement for
review and approval by the ALJ or ARB, with such approval becoming the final
decision of the Secretary. Thus, section 24.111(c) (available at 72 Fed. Reg.
44956 (Aug. 10, 2007)) has a slightly different context than the AIR21, SOX and
STAA model, and it is clear as of the date of this memorandum how an ALJ should
treat a voluntary dismissal based on a settlement under the Part 24 revisions.
Sarbanes-Oxley Act (Corporate and Criminal Fraud Accountability Act)
(SOX)
The parties must submit the settlement to the ALJ. 29 C.F.R. § 1980.111(d)(2).
The Sarbanes-Oxley Act incorporates by reference portions of AIR21 procedure, including this language: "At any
time before issuance of a final order, a proceeding under this subsection may
be terminated on the basis of a settlement agreement entered into by the
Secretary of Labor, the complainant, and the person alleged to have committed
the violation." The "entered into by the Secretary" language
puts SOX settlements into the category of cases in which the settlement must be
submitted to the ALJ for approval. See 29 C.F.R. § 1980.111(d)(2).
Pursuant to 29 C.F.R. § 1980.111(e), an ALJ's order approving the settlement of a Sarbanes Oxley Act employee protection
complaint constitutes the final order of the Secretary.
Pipeline Safety Improvement Act Whistleblower
(PSIA)
The parties must submit the settlement to the
ALJ. 29 C.F.R. § 1981.111(d)(2). The Pipeline Security whistleblower statute
uses the "entered into by the Secretary" phrase in regard to
settlements, so it is in the category of cases requiring that a settlement be
submitted to, and approved by, the ALJ. See, e.g., Heffley v. NGK Metals
Corp., 1989-SDW-2 (Sec'y Mar. 6, 1990) (order to submit settlement).
Any settlement approved by the Assistant
Secretary, the administrative law judge, or the ARB constitutes the final order
of the Secretary. 29 C.F.R. § 1981.111(e).
Surface Transportation Assistance Act
(STAA)
The parties must submit the settlement to the
ALJ. 29 C.F.R. § 1978.111(d)(2); Tankersley v. Triple Crown Services, Inc.,
1992-STA-8 (ALJ Oct. 20, 1992); Faust v. Chemical Leaman Tank Lines,
1992-SWD-2, 1993-STA-15 (ARB June 13, 1996). The ALJ must review the settlement
to determine if it is fair, adequate and reasonable. If it is, the ALJ may
approve the settlement; however, the ARB still must issue the final order of
dismissal pursuant to 29 C.F.R. § 1978.109(c). See Howick v.
Experience Hendrix, LLC, ARB No. 02-049, ALJ No. 2000-STA-32 (ARB Sept. 26,
2002); Monroe v. Cumberland Transportation Corp., ARB No. 01-101, ALJ
No. 2000-STA-50 (ARB Sept. 26, 2001); Cook v. Shaffer Trucking Inc., ARB
No. 01-051, ALJ No. 2000-STA-17 (ARB May 30, 2001).
The Howick, Monroe, and Cook
decisions appear to overrule earlier ARB and Secretary of Labor orders
indicating that an ALJ issues the final order approving an STAA settlement. See,
e.g., Thompson v. G & W Transportation, Co., Inc., 1990-STA-25
(Sec'y Oct. 24, 1990); Fisher v. ABC Trailer Sales & Rental, Inc.,
ARB No. 98-123, ALJ No. 1997-STA-20 (ARB May 29, 1998); see also 29
C.F.R. § 1978.111(d)(2) (settlement is submitted to and approved by ARB or the
ALJ, as the case may be).
Once the ALJ has issued a recommended decision
and forwarded the case to the ARB for review, the ARB is the appropriate body
to review a subsequent settlement agreement. Ass't Sec'y & Zurenda v.
Corporate Express Delivery Systems, Inc., ARB No. 00-041, ALJ No.
1999-STA-30 (ARB Mar. 31, 2000).
