NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up to date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.

[Nuclear & Environmental Digest III A 2]
SUMMARY DECISION; TIMELINESS FAILURE TO RAISE AFFIRMATIVE DEFENSE OR ANSWER MOTION FOR SUMMARY DECISION

Where Complainant sought partial summary decision on the issue of timeliness of his complaint -- arguing that by failing to raise the affirmative defense that the Complaint was untimely, Respondents waived that defense -- and where Respondents did not raise this defense in their answer to Complainant's amended complaint or to the motion for summary decision on this issue, the ALJ granted the Complainant's motion for partial summary decision. Mourfield v. Frederick Plaas & Plaas, Inc., 1999-CAA-13 (ALJ June 1, 1999)

[Nuclear & Environmental Digest III B 2]

[Nuclear & Environmental Digest VIII C 1]
EXHAUSTION OF ADMINISTRATIVE REMEDIES; ISSUE OF UNDERLYING JURISDICTION; GENERAL REQUIREMENT THAT AGENCY BE GIVEN INITIAL OPPORTUNITY TO DETERMINE WHETHER IT HAS JURISDICTION

In Martin Marietta Energy Systems, Inc. v. Martin, 909 F. Supp. 528 (E.D. Tenn. 1993) (related administrative case 1993-CAA-4), plaintiffs [Respondents in the administrative action] moved in Federal district court for a preliminary injunction against further processing of Complainant's whistleblower complaint based on the theory that exhaustion of administrative remedies was not necessary because there had been a patent violation of DOL's authority, to wit: the complaint is not subject to DOL jurisdiction because Complainant was never an employee of any of the plaintiffs, and Complainant's activities investigating the etiology of certain diseases is not protected activity. The district court rejected this argument, noting authority to the effect that even when the jurisdiction of the agency is at issue, the exhaustion doctrine generally requires that the agency have the opportunity to determine initially whether it has jurisdiction.

[Nuclear & Environmental Digest IV A]
TIMELINESS; ALLEGATIONS OF REASONABLE RELIANCE ON PROMISE TO FIND ALTERNATIVE EMPLOYMENT AND ESTOPPEL RAISE TRIABLE ISSUES

In Whitaker v. CTI-Alaska, Inc., ARB No. 98-036, ALJ No. 1997-CAA-15 (ARB May 28, 1999), the ALJ recommended a grant of summary decision based on lack of timeliness of the complaint. The ALJ based this recommendation on the conclusion that there was no genuine issue of material fact that Complainant knew that he had not been offered his position as General Manager/Quality Control Supervisor after a new inspection company had gotten the inspection services contract, but had not filed his complaint until more than 30 days after that date. The ARB, however, reviewing the grant of summary decision de novo, concluded that, viewing the evidence in the light most favorable to Complainant and in view of Respondent's failure to present plausible rebuttal evidence, there were triable issues of fact concerning two valid theories: (1) reasonable reliance on a promise to find alternative employment and (2) estoppel. Complainant alleged that he was repeatedly assured that he would be placed with the new contractor and that he had nothing to fear in terms of supervisory or financial loss; he had been called for an interview with the new contractor; the interview with the new contractor had focused entirely upon supervisory and managerial issues; both officials of the new contractor who interviewed Complainant told him that the interview had gone extremely well; Complainant was never told that the two positions that were offered him (one not supervisory and one half-time and one level below his current position) were final offers.

[Editor's note: In his recommended decision, the ALJ had concluded that "Complainant knew of facts which would support the discrimination complaint such that a reasonably prudent person would have been placed on notice.... If, as alleged, [the new contractror] discriminated against Complainant by not hiring him on that date, [the new contractor's] hiring of him for a similar position in a different locality would not have negated the earlier, allegedly retaliatory decision not to hire him." The ALJ noted that Complainant had written to an attorney shortly after not being offered the General Manager position indicating knowledge of the possibility that he had been discriminated against. Whitaker v. CTI-Alaska, Inc., ARB No. 98-036, ALJ No. 1997-CAA-15 (ALJ Nov. 17, 1997).]

[Nuclear & Environmental Digest VIII B 2 d]
SUMMARY DECISION; ARB'S SCOPE OF REVIEW IS DE NOVO

An ALJ's recommendation to grant summary judgment is reviewed by the ARB de novo. Whitaker v. CTI-Alaska, Inc., ARB No. 98-036, ALJ No. 1997-CAA-15 (ARB May 28, 1999).

[Nuclear & Environmental Digest VIII B 5]
ALLEGATION OF POSSIBLE EX PARTE COMMUNICATION BY ARB MEMBER; NO APPEARANCE OF IMPROPRIETY WHERE ALLEGATION IS BASELESS

In Williams v. Lockheed Martin Corp., ARB Nos. 99-054 and 99-064, ALJ Nos. 1998-ERA-40 and 42 (ARB July 13, 1999), Complainants filed an objection to one member of the ARB deciding any case involving the Department of Energy, OSHA, or Complainants' counsel, based on an memorandum written by OSHA's Director of the Directorate of Compliance Programs to an OSHA Regional Director, apparently in reference to correspondence from Complainants' counsel raising concerns about the Regional Office's performance. The memorandum states, inter alia, that Complainants' counsel had made charges against the ARB member. Complainants' counsel contended that the memorandum's reference to the ARB member "raises a clear question as to whether there was any an [sic] ex parte communication between [the Director of Directorate Compliance Programs] and a member of the ARB or its staff on matters being litigated before them."

The ARB noted that it must consider the allegation carefully, but strongly disagreed that there was a "clear" question as to the existence of any direct or indirect ex parte communication between the Board member and the Director of Directorate of Compliance Programs. The ARB stated that no Board member had communicated with the Director, and it was not aware that any member of its staff had made such a communication. Finding that the allegation of a possible ex parte communication was baseless, the ARB concluded that the objected to member's consideration of Complainants' case would not create an appearance of impropriety.

[Nuclear & Environmental Digest XVI E 3 c]
ATTORNEY'S FEES; JUDICIAL NOTICE OF ALTMAN WEIL SURVEY

In Sayre v. Alyeska Pipeline Service Co., 1997-TSC-6 (ALJ May 18, 1999), the ALJ recommended a finding on the merits in favor of the Complainant. Respondent raised objections to an attorney fee application, one of which involved the 1998 Altman Weil Survey, requesting in essence that the ALJ take judicial notice of the survey as to the hourly rates for attorneys in the applicable jurisdiction. The ALJ stated that he may take judicial notice of the survey, and permitted briefs by Complainants' counsel, and rebuttal by Respondents, prior to the issuance of a supplemental recommended decision and order addressing the attorney fee awards.

[Nuclear & Environmental Digest XVI F]
PUNITIVE DAMAGES

In Sayre v. Alyeska Pipeline Service Co., 1997-TSC-6 (ALJ May 18, 1999), the ALJ recommended an award of $5,000 in punitive damages where he found that both Respondents intentionally discriminated against Complainant because she engaged in protected activity, and Complainant was harassed, lost her job, and suffered mental and emotional stress as a result. The ALJ moderated the recommended punitive damage award because he found that that the alleged statements concerning future discrimination were unclear at best, and because of the mitigating fact that Complainant was eventually rehired.

[Nuclear & Environmental Digest XVII B 2 a]

[Nuclear & Environmental Digest XVII F]
SETTLEMENT; COMPLAINANT IS NOT NECESSARILY ENTITLED TO WITHDRAW PRIOR TO SECRETARIAL APPROVAL; MAY NOT BE VOIDED BASED ON ALLEGED FRAUD OR DURESS OF COMPLAINANT'S OWN ATTORNEY'S, BUT MAY BE VOIDED BASED ON MISCONDUCT OF OPPOSING PARTY (SUCH AS COLLUSION WITH COMPLAINANT'S ATTORNEY); DOL MAY STRIKE PROVISION AS AGAINST PUBLIC POLICY WHERE SETTLEMENT CONTAINS SAVINGS CLAUSE

In Beliveau v. Naval Undersea Warfare Center, ARB No. 98-032, ALJ No. 1997-SDW-6 (ARB June 26, 1998), the ARB had ruled that a whistleblower complaint could be terminated based on a settlement without the Secretary's entering into the settlement, if the settlement occurred prior to a request for a hearing before an ALJ. The U.S. Court of Appeals for the First Circuit, however, reversed this decision and remanded the case. Beliveau v. USDOL, No. 98-1786 (1st Cir. Mar. 10, 1999).

Complainant had filed a motion to reopen his complaint, despite a settlement reached prior to completion of the Wage and Hour Division's investigation, on the theory that he could withdraw from the settlement any time prior to the Secretary's approval of the settlement. The ARB, however, observed in Beliveau v. Naval Undersea Warfare Center, ARB No. 99-070, ALJ No. 1997-SDW-6 (ARB June 30, 1999), an order remanding the case to the ALJ for further proceedings, that "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." Slip op. at 2 (citation omitted). The ARB found a remand to the ALJ necessary to consider Complainant's allegation that Respondent colluded with Complainant's attorney, or otherwise engaged in improper conduct in negotiating the settlement agreement. The ARB observed that "A complainant may not repudiate a settlement because of alleged fraud or duress by his own attorneys. .... However, an opposing party's improper conduct may render a settlement agreement voidable." Slip op. at 2 (citations omitted). The ARB directed the ALJ to conduct a hearing on the merits if he found that improper conduct did occur, and that if he found lack of evidence of improper conduct, he should consider Complainant's alternative argument that certain settlement terms constituted "gag" provisions in violation of public policy. The ARB noted that, unlike Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-1156 (5th Cir. 1991), in which it was held that in the absence of a severability provision in the settlement, the Secretary could not sever terms that violate public policy and otherwise enforce the remainder of the agreement, the instant settlement did contain a savings provision, and therefore the ALJ could strike provisions that violate public policy and uphold the remainder of the settlement.

[Nuclear & Environmental Digest XVII G 1]
MOTION TO INTERVENE IN SETTLEMENT BY FORMER ATTORNEY

In Gaballa v. Carolina Power & Light Co., 1996-ERA-43 and 1998-ERA-24 (ALJ May 27, 1999), Complainant's former counsel filed a motion to intervene to protect his interest in receiving attorney's fees for his prior representation of Complainant, who had subsequently entered into a settlement with Respondent represented by new counsel. The former counsel cited Pogue v. U.S. Department of the Navy, 1987-ERA-21 (Sec'y April 14, 1994), in which the Secretary of Labor permitted intervention by a former attorney to preserve his rights to collect supplemental attorney's fees. The ALJ distinguished Pogue on a number of grounds, but primarily because the instant case was not litigated to any administrative decision on the merits whereas in Pogue, the attorney merely sought to supplement a prior award of fees after a full litigation of the case. The ALJ found applicable the decision in "Tinsley v. 179 South Street Venture, 1989-CAA-3 (Sec'y Aug. 3, 1989), where the Secretary held that, in a case where parties negotiate a private resolution of a complaint brought under an environmental whistleblower protection statute and incorporate a provision for payment of attorney's fees in the settlement agreement, the administrative law judge does not have authority to approve the fee amount, only whether the net amount to be received by the complainant (i.e., after deduction of the agreed-upon attorney's fees) is fair, adequate and reasonable." Slip op. at 3. On this basis, the ALJ found that he lacked jurisdiction to adjudicate the former attorney's alleged entitlement to attorney's fees, and therefore denied the motion to intervene.

[Nuclear & Environmental Digest XVII G 1]
SETTLEMENT; EFFECT OF PRESENCE OF ATTORNEY'S LIEN

In Gaballa v. Carolina Power & Light Co., 1996-ERA-43 and 1998-ERA-24 (ALJ May 27, 1999), Complainant's former counsel had filed a notice of lien for attorney's fees. Neither the settlement agreement nor the parties'joint motion for approval of the settlement agreement, however, contained any reference to the lien. The ALJ recommended approval of the agreement, but vacated the order of approval after Respondent pointed out the issue of the lien.

After giving all interested parties an opportunity to respond to several orders on the matter, and concluding that the former attorney did not have a right to intervene, the ALJ applied a totality of the circumstances test to determine if the agreement was knowing and voluntary,. The ALJ concluded that Complainant entered into the settlement agreement with full understanding of the potential consequences of his actions. Thus, the ALJ reaffirmed his prior finding that the parties' agreement constituted a fair, adequate and reasonable settlement of the complaints.