U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
CASE NO. 95-TSC-7 DATE: AUG 1, 1996
In the Matter of:
WILLIAM C. BIDDY,
COMPLAINANT,
v.
ALYESKA PIPELINE SERVICE COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER OF REMAND
This case arises under the employee protection provisions of the Toxic Substances
Control Act, 15 U.S.C. § 2622 (1988), the Water Pollution Control Act, 33 U.S.C.
§ 1367 (1988), the Clean Air Act, 42 U.S.C. § 7622 (1988) and the Solid Waste
Disposal Act, 42 U.S.C. § 6971 (1988).
BACKGROUND
The Administrative Law Judge in this case forwarded his April 22, 1996, Recommended
Decision and Order to the Board for review, recommending that the settlement between the
parties
be approved and the complaint be dismissed with prejudice. The Board found upon its review of
the
settlement agreement that it could not determine the actual amount of money to be paid to the
Complainant pursuant to the proposed settlement. The Board issued an Order on May 31, 1996,
requiring the parties to provide that information.
Counsel for the parties responded on June 10, 1996, and advised the Board that no part of
the
settlement amount provided for in the settlement of the federal cause of action would be
used
to pay attorneys' fees or costs. Counsel noted that there was a second settlement between the
parties
which pertained to state law claims the Complainant may have against the Respondent.
Counsel further stated that "all of [Complainant's] attorneys' fees and cost reimbursements
due
his attorney, including fees and costs relating to this [federal]matter, will be paid
out of the proceeds of that separate payment." (Emphasis supplied). Joint Response to
May 31,
1996 Order (First Response) at 3.
[Page 2]
The Board issued a Second Order on June 19, 1996, restating the requirement that the
parties
advise it as to the amount the Complainant will ultimately receive pursuant to the settlement of
his
federal whistleblower complaint, regardless of the ultimate source of the payment of attorneys'
fees
and costs. Second Order at 2. The parties submitted their Joint Response to Second Order
(Second
Response) on July 3, 1996, reiterating that none of the federal case settlement would be used for
attorneys' fees or costs, and that information regarding the details of the settlement of the
state-law
based claim was beyond the purview of the Board's authority.
1The relevant portions of the statutes
provide as follows:
(2)(A) Upon receipt of a complaint . . . the Secretary shall conduct an
investigation
of the violation alleged . . . . [T]he Secretary shall complete the investigation and shall
notify
... the complainant . . . and the person alleged to have committed such violation of the
results
of the investigation . . . . [T]he Secretary shall, unless the proceeding on the complaint is
terminated by the Secretary on the basis of asettlement entered into by the
Secretary and the person alleged to have committed such violation, issue an order
either
providing the relief prescribed . . . or denying the complaint. . . . The Secretary may not
enter
into a settlement terminating a proceeding on a complaint without the participation and
consent
of the complainant. (Emphasis supplied).
Neither the Water Pollution Control Act nor the Solid Waste Disposal Act contain a provision
visa vis the Secretary's responsibility when the parties settle a case.
2Because of the parties' request for
confidentiality, we are not at this time specifying the amounts of the settlement as revealed to us
and because of attorney-client privilege concerns, we are not forwarding copies of the materials
referenced below.