U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ALJ CASE NO. 86-ERA-23
DATE: January 6, 1998
In the Matter of:
JOSEPH J. MACKTAL, JR.
COMPLAINANT,
v.
BROWN AND ROOT, INC.
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
In 1992, Congress amended the whistleblower provisions of the Energy
Reorganization Act of 1974, among other things, to provide explicit protection for employees who
make internal safety or health complaints to their employer. Energy Reorganization Act of 1974
(ERA), 42 U.S.C. §5851 (Supp. IV 1992), as amended by the Comprehensive National
Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776, 3123. Prior to the
effective date of those amendments, the Secretary had repeatedly and consistently interpreted the
ERA to protect internal complaints and that
interpretation had been upheld in every United States Circuit Court of Appeals where it had been
addressed, but one. See Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926,
[Page 2]
931-933 (11th Cir. 1995), and cases discussed therein. The Fifth Circuit has refused to follow that
majority interpretation, holding instead that "employee conduct which does not involve the
employee's contact or involvement with a competent organ of government is not protected under
[the ERA] . . . ." Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984) In Ebasco Constructors Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993),
it emphatically rejected an explicit opportunity to reconsider Brown & Root, which
has been characterized as a "literal, hypertechnical and overly narrow reading" of the
ERA. Neal v. Honeywell, Inc. 826 F. Supp. 266, 271 (N.D. Ill. 1993).
Nevertheless, as the Secretary has recognized, "[An administrative
agency] is not a court nor is it equal to [a] court in matters of statutory interpretation."
Yellow Taxi Co. of Minneapolis v. NLRB, 721 F.2d 366, 382 (1983), quoting from
Allegheny General Hospital v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979), quoted in
Lockert v. Pullman Power Products Corp., Case No. 84-ERA-15, Sec'y. Dec. Aug.
19, 1985, slip op. at 3. We consider ourselves bound by the Fifth Circuit's interpretation of the
pre-1992 ERA in any case, such as this, arising in that Circuit.
BACKGROUND
The lengthy and somewhat tortured history of this case is described in
Macktal v. Secretary of Labor, 923 F.2d 1150, 1155 (5th Cir. 1991), and
Macktal v. Brown & Root, Inc., Case No. 86-ERA-23, Sec'y. Order Disapproving
Settlement and Remanding Case, Oct. 13, 1993. After over a decade of tangential disputes, we
have now reached the merits.
1 A
"Traveler" is a file folder that follows the work containing documents to be executed
to certify that work has been performed according to applicable procedures. T. 99.
2 Respondent offered these documents both to impeach Macktal's testimony and to limit damages
by showing he would have been fired when Brown & Root learned of his criminal record.
3 The
documents are contained in a folder marked "Rejected Exhibits."
4 We note
that even if these documents were included in the record and had been placed under
"seal" by the ALJ, whether they would be available to a member of the public in the
future would be determined under the Freedom of Information Act and applicable Department of
Labor regulations. See 29 C.F.R. Part 70; Bonanno v. Stone & Webster Eng.
Corp., Case No. 97-ERA-33, Board Dec. Jun. 27, 1997, slip op. at 2.
5 The
purpose of a motion for summary judgment is "to pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial." Fed. Rules of Civ. Pro. 56,
Advisory Committee Notes, 1963 Amendment. After a hearing at which testimony is heard and
evidence received, the case is ripe for a decision on the merits.
6 The Fifth
Circuit may draw a distinction between an employee who is walking in the door of the resident
NRC inspector's office when he is fired and one who only threatens to file a complaint with a
government agency sometime in the future, but that would not aid Macktal.
7 The
Secretary rejected Macktal's other claims at that time: that no valid, binding agreement existed;
that Macktal should not be bound by the agreement because he signed it under pressure from his
counsel and under economic duress; that the Secretary should not approve any part of the
settlement because of the illegal term; and that Macktal had the right to withdraw from the
settlement at any time up to the point the Secretary approved it. Macktal v. Brown & Root,
Inc., Nov. 14, 1989 Order, slip op. at 4-16. The court of appeals affirmed the Secretary
on each of these points except it held that the Secretary could not sever an illegal term from a
settlement and approve the remainder. Macktal v. Secretary of Labor, 923 F.2d at
1155-58. After remand from the court of appeals, the Secretary disapproved the settlement and
remanded this case to the ALJ for a hearing on the merits. Macktal v. Brown & Root,
Inc., Oct. 13, 1993 Order.
8 Although
we have reservations about entertaining a request for attorney's fees after a delay of eight years,
we note that some courts have held that such motions are not barred by mere passage of time.
Price v. Hawaii, 789 F. Supp. 330, 335 (D. Haw. 1992); Walker v.
Coughlin, 909 F. Supp. 872 (W.D.N.Y. 1995) (four year delay in seeking attorney's fees
not so unreasonable as to warrant denial of request). Our reservations are thus overcome by the
expansive language of the ERA regarding the recovery of attorney's fees and the resulting
incentive to pursue environmental whistleblower claims.
9 Respondent argued that Macktal is not entitled to attorney's fees for litigation of the legality of the
restrictive terms of the settlement because he already sought such an award in this case and it was
denied. Our review of the pleadings cited by Brown & Root indicates that Macktal
only requested that costs and fees be awarded as a sanction for Brown & Root's alleged improper
conduct and the Secretary denied that request. See Order Disapproving Settlement and
Remanding Case, Oct. 13, 1993, slip op. at 7-8. Neither the Secretary nor the Board has ruled
on whether Macktal is entitled to an award of fees under the statutory fee shifting provision, 42
U.S.C. §5851(b)(2)(B), for success on the merits of the legality of the restrictive terms of
the settlement.