Hager v. Noveon Hilton-Davis, Inc., ARB No. 05-145, ALJ No. 2004-WPC-4 (ARB Dec. 31, 2007)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 05-145
ALJ CASE NO. 2004-WPC-004
DATE: December 31, 2007

In the Matter of:

CARL E. HAGER,

       COMPLAINANT,

    v.

NOVEON HILTON-DAVIS, INC.,

       RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Richard R. Renner, Esq., Tate & Renner, Dover, Ohio

For the Respondent:
    Cecil Marlowe, Esq., Lubrizol, Wickliffe, Ohio

FINAL DECISION AND ORDER
DISMISSING COMPLAINT AND APPEAL

    On August 19, 2005, a United States Department of Labor Administrative Law Judge issued a Recommended Decision and Order (R. D. & O.) in this case arising under the Federal Water Pollution Control Act (WPCA).¹ The Complainant, Carl E. Hager, filed a timely petition requesting this Board to review the R. D. & O.²

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[Page 2]

    On December 7, 2007, the parties filed a Joint Motion to Dismiss Appeal with Prejudice. The Joint Motion states that they have reached a private settlement and have agreed that the terms of their agreement, rather than the R. D. & O. should govern the disposition of the Complainant's claims. Accordingly, the parties jointly request the Board to dismiss Hager's complaint and this appeal.³

    Unlike the whistleblower protection provisions of the Clean Air Act⁴ , the Safe Drinking Water Act,⁵ and the Toxic Substances Control Act,⁶ the WPCA's whistleblower protection provision does not provide for the termination of a proceeding "on the basis of a settlement entered into by the Secretary." Therefore, as the Board held in Marcus v. Environmental Protection Agency, the WPCA does not require the Secretary to approve settlement agreements.⁷

    Federal Rule of Civil Procedure 41(a)(1)(ii) is applicable to cases in which the parties have reached a settlement under the WPCA and wish to voluntarily dismiss their appeal.⁸ Therefore, in accordance with the Joint Motion to Dismiss Appeal, we DISMISS Hager's complaint and this appeal with prejudice.

   SO ORDERED.

            M. CYNTHIA DOUGLASS
            Chief Administrative Appeals Judge

            OLIVER M. TRANSUE
            Administrative Appeals Judge

[ENDNOTES]

¹ 33 U.S.C.A. § 1367 (West 2001).

² The Secretary of Labor has delegated her authority to issue final administrative decisions in cases arising under the WPCA to the Administrative Review Board. Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. §§ 24.1, 24.8.

³ Joint Motion to Dismiss Appeal at 1; Biddle v. U.S. Dep't of the Army, 1993-WPC-015 (Sec'y Mar. 24, 1995).

⁴ 42 U.S.C.A. § 7622(b)(2)(A) (West 2003).

⁵ 42 U.S.C.A. § 300(j)-9(i)(2)(B)(i) (West 2003).

⁶ 15 U.S.C.A. § 2622(b)(2)(A) (West 1998).

⁷ ARB No. 99-027, ALJ Nos. 1996-CAA-003, 007, slip op. at 2 n.2 (Oct. 29, 1999).

⁸ Biddle, slip op. at 1. This rule provides in pertinent part, "[A]n action may be dismissed by the plaintiff without order of court . . . (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action."