Beliveau v. Naval Undersea Warfare Center, 97-SDW-6 (ALJ Sept. 9, 1997)

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USDOL/OALJ Reporter
Beliveau v. Naval Undersea Warfare Center, 97-SDW-6 (ALJ Sept. 9, 1997)

UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
800 K STREET, NW, SUITE 400N
WASHINGTON, DC 20001-8002

Dated: September 9, 1997

Case No.: 97-SDW-6

In the Matter of

JOHN J. BELIVEAU JR.
Complainant

NAVAL UNDERSEA WARFARE CENTER
Respondent

Sarah L. Levitt, Esq.
Richard E. Condit, Esq.
Washington, DC
For the Complainant

Andrea Heffernan, Esq.
Washington, DC

Neaclesa Anderson, Esq.
Arlington, VA
For the Respondent

Before: JEFFREY TURECK
Administrative Law Judge

RECOMMENDED ORDER OF DISMISSAL

a. Background

On December 3, 1996 and April 18, 1997, I was assigned cases 97-SDW-1 and 97-SDW-4 respectively. These cases concerned complaints brought by Complainant John Beliveau against the Naval Undersea Warfare Center (NUWC) under the employee protection provisions of several environmental statutes. Complainant had previously filed another complaint against NUWC, on February 15, 1995. The parties entered into a settlement agreement resolving that complaint on June 15, 1995, and on the same day complainant orally requested that this complaint be withdrawn due to the settlement. Also on June 15, 1995, the Assistant District Director for Wage and Hour in Providence, Rhode Island acknowledged complainant's request to

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withdraw his complaint due to the settlement and closed DOL's investigation. Wage and Hour had not made any findings in connection with the February 15, 1995 complaint prior to closing its investigation.

On April 28, 1997, complainant filed a motion under Case No. 97-SDW-1 to reopen the 1995 complaint, contending that the settlement agreement is void because it was not approved by the Secretary of Labor. On May 13, 1997, I held that this Office did not have jurisdiction over the 1995 complaint since Wage and Hour had not made any findings and accordingly no request for hearing had been filed. See 29 C.F.R. §24.4(d). Accordingly, complainant then filed his motion to reopen the 1995 complaint with Wage and Hour.¹ He also filed this motion with the Administrative Review Board ("ARB") which, since April 17, 1996, is the Secretary's delegatee to issue final agency decisions in environmental whistleblower cases.²

On May 28, 1997, the Assistant District Director for Wage and Hour in Providence denied the motion to void the settlement and reopen the 1995 investigation. Complainant then requested a hearing on Wage and Hour's denial of relief. That hearing request was docketed as 97-SDW-6, and was assigned to me for decision. Now that I had jurisdiction over complainant's motion to void the 1995 settlement, I ordered the parties to file briefs on the issue of whether the settlement was void and, if it is, whether complainant is obligated to make restitution to NUWC of the financial benefits received pursuant to the settlement. Finally, on August 14, 1997, the ARB, considering its copy of complainant's motion to void the settlement to be a motion for an interlocutory appeal, declined to accept the appeal. See Order Denying Interlocutory Appeal (ARB Aug. 14, 1997) ("ARB Order"). Although the ARB referred the "Complainant's submissions" to OSHA to start the investigatory process (see ARB Order, slip op. at 4), it appears that the ARB was unaware that complainant, at my suggestion, already had filed its motion to reopen the 1995 investigation with both OSHA and Wage and Hour and both had refused to take any action, prompting complainant's request for hearing and the docketing of 97-SDW-6. Accordingly, I believe that the purpose of the remand has already been accomplished, and that I have jurisdiction of the complainant's motion to reopen the 1995 complaint and void the settlement agreement. For the reasons stated below, the motion is denied.

b. Discussion

It is complainant's position that the settlement agreement executed on June 15, 1995 is void ab initio because it was not approved by the Secretary of Labor. But approval of the settlement agreement by the Secretary was neither necessary nor appropriate. When the Assistant District Director for Wage and Hour dismissed the 1995 complaint pursuant to the parties' settlement agreement and motion by the complainant to withdraw the complaint, he was acting in accordance with DOL policy. DOL's Field Operations Handbook, which was cited by the Assistant District Director in advising the parties of the appropriate settlement

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procedure, creates a dichotomy between whistleblower settlements reached before a request for an ALJ hearing and settlements reached after a hearing has been requested. It states, at §67i04(a), that if a settlement is reached before a request for hearing, no order is issued by DOL, but if the settlement is reached after a request for hearing, the ALJ must submit the settlement to the Secretary for approval. Although the complainant cites McClure v. Interstate Facilities, 92-WPC-2 (Sec'y June 19, 1995), to show that the Secretary has reviewed at least one settlement agreement entered into prior to a request for hearing, that case is distinguishable for two reasons. First, it appears that the parties in McClure submitted the settlement to DOL for the purpose of having it approved, whereas the parties to this proceeding did not. Rather, they simply asked for the complaint to be withdrawn. Second, Wage and Hour refused to approve the settlement as drafted, adding a finding of culpability that had been disclaimed by the parties. Once that occurred, the settlement had to be considered by the ALJ and then the Secretary.

In its order declining to take jurisdiction of the interlocutory appeal to void the settlement, the ARB stated:

Complainant also argues that the Board should now assume jurisdiction over this matter because the Board, acting for the Secretary of Labor, "is specifically required under several of the environmental statutes referenced in [Complainant's] 1995 complaint to be a party to any settlement resulting in the dismissal of a [complaint]." .... It is true that the Secretary and the Board are specifically charged with being a party to settlement agreements under certain of the Acts. However, this authority is exercised only under the circumstances where a settlement is reached between parties after an appeal of a Department of Labor investigative agency (Wage and Hour or OSHA) finding to the Office of Administrative Law Judges, or where a settlement is entered after issuance of an ALJ's recommended order and such matter is before the Board for review. Complainant has cited no authority to support the proposition that either an ALJ or this Board may reopen and void a settlement agreement reached during the administrative investigation stage of a whistleblower complaint.

ARB Order, slip. op at 3 (emphasis added). This clear and concise statement by the ARB in an order in this very case closes the door on further inquiry.

Therefore, I hold that there is no authority to reopen the 1995 complaint or declare the settlement agreement between the parties void, and

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IT IS RECOMMENDED that this case, 97-SDW-6, be dismissed.

JEFFREY TURECK
Administrative Law Judge

[ENDNOTES]

¹In order to cover all his bases, complainant filed a similar motion with OSHA, since under DOL's current regulations whistleblower complaints are filed with OSHA rather than Wage and Hour. OSHA took no formal action on this motion, simply referring the matter to Wage and Hour since the 1995 complaint was filed with that Administration in accordance with the then-applicable procedures.

²For the sake of simplicity, "Secretary" will be used to refer to the entity having the authority to issue the final agency action in this case regardless of whether that authority vests in the Secretary or the ARB.