ARB CASE NO. 05-144
ALJ CASE NO. 2005-CAA-008
DATE: October 31, 2007
In the Matter of:
WALTER R. BRICKLEN,
COMPLAINANT,
v.
GREAT LAKES CHEMICAL
CORPORATION,
RESPONDENT.
Appearances:
For the Petitioner:
Walter R. Bricklen, pro se, Mount Holly, Arkansas
FINAL
DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
This
case arises under the Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 1994), and
implementing regulations at 29 C.F.R. Part 24 (2006)[1]. The Complainant,
Walter R. Bricklen, has filed a petition for review of an Administrative Law
Judge’s (ALJ’s) Order Approving Settlement.[2] We
approve the ALJ’s Order with the reservations noted below and dismiss this complaint
with prejudice.
Bricklen
filed a complaint with the
Occupational Safety and Health Administration (OSHA) alleging that the
Respondent, Great Lakes Chemical Corporation (Great Lakes), violated the
employee protection section of the CAA. OSHA denied Bricklen’s CAA complaint on January 25, 2005,
and he timely requested a hearing
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pursuant to 29 C.F.R. § 24.4(d). Prior to
the scheduled hearing, the parties negotiated and executed a Settlement
Agreement and Release, which both Bricklen and Terry Steen, Great Lakes Human
Resource Manager, signed. The parties filed the Settlement Agreement with the
ALJ along with the parties’ Joint Motion to Approve Settlement and Dismiss
Proceeding with Prejudice. On August 15, 2005, the ALJ issued an Order Approving Settlement. He determined that the terms of the
Settlement Agreement were fair, adequate, and reasonable. He therefore granted
the parties’ Joint Motion To Approve Settlement and dismissed the complaint.[3] On August 23, 2005, Bricklen filed a timely petition for review
of the ALJ’s Order Approving Settlement with the Administrative Review Board
(ARB or Board).
The Secretary of Labor has delegated
authority to the ARB to review an ALJ’s recommended decision in cases arising
under the CAA’s whistleblower protection provision and to issue the final
agency decision.[4]
Under the Administrative Procedure Act, the ARB, as the Secretary’s designee,
acts with all the powers the Secretary would possess in rendering a decision
under the whistleblower statutes. The Board reviews the ALJ’s recommended decision
de novo.[5]
It is not bound by an ALJ’s findings of fact and conclusions of law because the
recommended decision is advisory in nature.
1. Bricklen’s Request for Damages
Bricklen seeks damages for
Great Lakes’s alleged breach of the settlement agreement. The issue of whether
a settlement agreement has been breached is not a matter for the Board to
determine. “A settlement is a contract. Its construction and
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enforcement are
dictated by principles of contract law.”[6]
The CAA whistleblower section provides for enforcement of settlement agreements
in the appropriate United States district court.[7]
Thus, the federal district courts, not this Board, have jurisdiction to
consider actions based on alleged settlement breaches.[8]
Bricklen also seeks damages for Great Lakes’s alleged failure
to comply with discovery in this
case, attorney misconduct, blackmail, extortion, mental anguish, and
emotional stress.[9] He does not seek to repudiate the Settlement Agreement and
proceed with his CAA claim. In fact, he has already elected to treat the ALJ’s
approval of the settlement of his CAA complaint as final by agreeing to
dismissal of his CAA complaint, accepting a check for $29,321.68 in settlement
of his claim, and now claiming that Great Lakes has breached the agreement. The Board’s
authority in this case is limited to the statutes within its jurisdiction and
is defined by the applicable statutes.[10] None
of these statutes authorizes the Board to award damages for the issues Bricklen
raises. Therefore, we
restrict our review in this case to ascertaining whether the ALJ properly
approved the Settlement Agreement.
2. Review of the Settlement Agreement
We have reviewed
the Settlement Agreement and concur with the ALJ’s determination that it is fair,
adequate and reasonable. But we note that the agreement encompasses the
settlement of matters under laws other than the CAA. The Board’s authority
over settlement agreements is limited to the statutes that are within the
Board’s jurisdiction as defined by the applicable statute. Thus, our approval
is limited to this case, and we approve the Agreement only insofar as it
pertains to Bricklen’s CAA claim in ARB No. 05-144.
Furthermore, the agreement includes a confidentiality
agreement, prohibiting Bricklen from disclosing any of the terms of the
agreement with certain specified exceptions.[11] If the confidentiality agreement were interpreted to preclude Bricklen from
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communicating with federal or state enforcement agencies concerning alleged
violations of law, it would violate public policy and therefore constitute an
unacceptable “gag” provision.[12]
Paragraph 11 of the Agreement states that
the laws of the state of Arkansas shall govern the agreement.[13]
We construe this choice of law provision as not limiting the authority of the
Secretary of Labor and any Federal court, which shall be governed in all
respects by the laws and regulations of the United States. [14]
Accordingly, with the reservations noted above, we APPROVE
the ALJ’s Order Approving Settlement and DISMISS the complaint with
prejudice.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] These regulations have been amended since Bricklen
filed his complaint, but the amended regulations are not implicated in this
case. 72 Fed. Reg. 44,956 (Aug. 10, 2007).
[2] Bricklen
appears pro se before the Board but was represented by counsel before
the ALJ and during settlement negotiations.
[3] Bricklen v. Great Lakes Corp., ALJ No. 2005-CAA-008 (ALJ Aug.
15, 2005).
[4] See 29 C.F.R. § 24.8. See also Secretary’s Order
1-2002 (Delegation of Authority and Responsibility to the Administrative Review
Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the
Secretary’s authority to review cases arising under, inter alia, the statutes
listed at 29 C.F.R. § 24.1(a)).
[5] See 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone
& Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir.
1997); Berkman v. U.S. Coast Guard Acad., ARB No. 98-056, ALJ No.
97-CAA-2, 97 CAA-9, slip op. at 15 (ARB Feb. 29, 2000). The CAA’s amended
regulations provide for substantial evidence review of the ALJ’s factual
findings. 29 C.F.R. § 24.110(b) (2007). Substantial evidence is that which is
“more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Clean Harbors
Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)). As indicated above, even if the
Board applied a substantial evidence review to the ALJ’s findings in this case,
such review would not change the outcome of our decision, because even applying
the less restrictive de novo review standard, we agree with the ALJ’s ultimate
recommendation that Bricklen’s complaint be dismissed.
[6] Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No.
1988-ERA-033, slip op. at 8 (ARB Nov. 10, 1997).
[7] 42 U.S.C.A. § 7622(e)(1).
[8] Taylor v. Greyhound Lines, ARB No. 06-137, ALJ No.
2006-STA-019, slip op. at 4 (ARB Apr. 30, 2007).
[9] Bricklen Brief at 16.
[10] See Pawlowski v. Hewlett-Packard Co.,
ARB No. 99-089, ALJ No. 1997-TSC-003, slip op. at 2 (ARB May 5, 2000).
[11] Settlement Agreement at 2-3, para. 6.
[12] Ruud, supra, slip op. at 5; Conn. Light & Power Co. v.
Sec’y, U.S. Dep’t of Labor, 85 F.3d 89, 95-96 (2d Cir. 1996). The Board
notes that the parties’ submissions, including the Settlement Agreement, become
part of the record of the case and are subject to the Freedom of Information
Act (FOIA). 5 U.S.C.A. § 552 (West 2006). FOIA requires Federal agencies to
disclose requested records unless they are exempt from disclosure under the
Act. Coffman v. Alyeska Pipeline Serv. Co. & Arctic Slope Inspection
Serv., ARB No. 96-141, ALJ No. 1996-TSC-005, -006, slip op. at 2 (ARB June
24, 1996). Department of Labor regulations provide specific procedures for
responding to FOIA requests, for appeals by requestors from denials of such
requests, and for protecting the interests of submitters of confidential
commercial information. 29 C.F.R. § 70 et seq. (2006).
[13] Id. at 4, para. 11.
[14] Nason v. Maine Yankee Atomic Power Co., ARB No. 99-091, ALJ No.
1997-ERA-037, slip op. at 2 (Mar. 20, 1998); see also 42 U.S.C.A. §
7622(b)(2)(A).
