Macktal v. Brown & Root, Inc., ARB No. 98-112, ALJ No. 1986-ERA-23 (ARB Jan. 9, 2001)
U.S. Department of Labor | Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 |
ARB CASE NO. 98-112
98-112A
ALJ CASE NO. 86-ERA-23
DATE: January 9, 2001
In the Matter of:
JOSEPH J. MACKTAL, JR.,
COMPLAINANT,
v.
BROWN AND ROOT, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
Appearances:
For the Complainant:
Stephen M. Kohn, Esq., Michael D. Kohn, Esq., David
K. Colapinto, Esq.,
Kohn, Kohn & Colapinto, P.C.
Washington, DC
For the Respondent:
Richard K. Walker, Esq., Thomas D. Arn, Esq.,
Streich Lang, Phoenix, AZ
This case has a long and tortured history, including numerous decisions by Department of Labor Administrative Law Judges, several Secretarial and Administrative Review Board (ARB) decisions, and two decisions of the United States Court of Appeals for the Fifth Circuit. We now finally decide the last remaining issue: whether Complainant Joseph J. Macktal, Jr. is entitled to attorneys fees and costs for proceedings before the Department of Labor and the Court of Appeals related to his successful challenge to a settlement agreement to which he had previously agreed. In light of intervening precedent we conclude that Macktal is not entitled to such fees and costs.
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In 1986 Macktal filed a complaint with the Secretary of Labor alleging that his employer, Brown & Root, had discharged him in violation of the employee whistleblower protection provision of the Energy Reorganization Act of 1974. 42 U.S.C.A. §5851 (West 1983). Thereafter, Macktal and Brown & Root entered into an agreement purporting to settle Macktal's complaint. Pursuant to that agreement Brown & Root paid Macktal $35,000. However, when the Secretary sought to review the settlement pursuant to §5851(b)(2)(A) of the ERA, Macktal, with new legal representation, disavowed it and requested that the case be remanded to the ALJ for a hearing "to determine whether fraud and duress render the settlement void." In the event that a new settlement could not be reached, Macktal requested a hearing on merits.
The Secretary: 1) ruled that Macktal could not repudiate his settlement because of alleged fraud or duress by his own attorneys; 2) determined that one paragraph of the agreement was contrary to public policy; and 3) severed that paragraph, approved the settlement in other respects, and dismissed the case. Macktal v. Brown & Root, Inc., Case No. 86- ERA-23, Sec. Ord., Nov. 14, 1989.2 Macktal appealed and argued to the Fifth Circuit that the Secretary did not have the authority to eliminate a material term of the agreement and force Macktal and Brown & Root to accept the rewritten settlement. The Fifth Circuit agreed, holding that "the Secretary cannot take the negotiated settlement, strike terms she does not like, and then impose it on the parties" Macktal v. Secretary of Labor, 923 F.2d 1150,1155 (5th Cir. 1991). However, the Court rejected Macktal's argument that the settlement was void. "Macktal and Brown & Root have drafted and agreed to a settlement. . . . [T]he Secretary may either enter into the settlement by approving it, or refuse to enter into it by rejecting it." Id. at 1158. The Court vacated the Secretary's order and remanded the case for further proceedings.
On remand the Secretary disapproved the settlement, stating that the Fifth Circuit's "view of the narrow scope of my authority to review settlements under the ERA leaves me no choice but to disapprove any settlement containing terms I find repugnant to law or public policy." Ord. Disapproving Settlement and Remanding Case, Oct 13, 1993, slip op. at 6. The Secretary remanded the case to the ALJ for further proceedings. Following further appeals and a hearing on the merits, on November 25, 1996, the ALJ issued a Recommended Decision and Order Dismissing Complaint (RD&O), in which he found that Macktal had not engaged in activity protected by the ERA.
On review, Macktal urged the Administrative Review Board3 to reject the ALJ's recommended decision, and, in his brief before the Board, Macktal sought an award of attorney's fees and costs for "substantially prevailing on his claim that the settlement agreement in this case violated the ERA." Complainant's Brief in Opposition to Recommended Decision and Order Dismissing Complaint, May 5, 1997 at 49. The Board agreed with the ALJ on the merits and
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dismissed the complaint on the ground that Macktal's internal safety complaints were not protected activities under the Fifth Circuit's interpretation of the ERA in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (1984).4 Final Dec. and Ord., Jan. 6, 1998. The Board also found, however, that Macktal was entitled to attorney's fees for time spent on successful litigation of the issue whether the restrictive term in Macktal's settlement agreement violated the ERA and was contrary to public policy. The Board remanded the case to the ALJ to consider a petition for attorney's fees and costs.
On March 30, 1998, the ALJ issued his Initial Decision and Order Granting Attorney's Fees (ID&O).5 Both Macktal and Brown & Root appealed that decision. However, Brown & Root's brief to the Administrative Review Board was mistakenly delivered to the Labor Department's Benefits Review Board and was not received by the ARB. Under the impression that Brown & Root had abandoned its appeal, the ARB issued an order adopting the ALJ's recommended decision. Brown & Root immediately moved for reconsideration. In light of the fact that Brown & Root had filed a brief with the Department, albeit with the wrong review board, the Board granted reconsideration and gave the parties an opportunity to file reply briefs.
Brown & Root argues that the Board has no authority to award attorney's
fees because Macktal's complaint was dismissed on the merits, and the ERA only provides for
award of attorney's fees where a violation has been found and affirmative relief has been ordered.
See 42 U.S.C. § 5851(b)(2)(B).6 We conclude that the Board's authority to award attorney's fees and costs in this
case is controlled by our decision in Harris v. Tennessee Valley Authority, ARB Case
No. 99-004, ALJ Case Nos. 97-ERA-26, 97-ERA-50, Ord. Vacating Orders and Remanding
Case, Nov. 29, 2000. The reasoning in Harris precludes an award of attorney's fees in
this case.
Prior to its amendment in 1992, Section 210 of the ERA, 42 U.S.C.A.
§5851 (West 1983) provided in relevant part:
Emphasis added. In Harris the parties entered into a no-fault settlement agreement,
which provided that TVA would be responsible for attorney's fees in an amount to be determined
by the ALJ. The parties presented the agreement to the ALJ and moved to dismiss the case. The
ALJ approved the settlement, dismissed the case, and called for briefing on the amount of
attorney's fees Harris was due. TVA then opposed Harris' request for fees on the ground, among
others, that the ERA did not provide for the award of fees where there had been no determination
that "a violation" of the ERA has occurred and where there is no "person
against whom the order is issued. . . ." We agreed. We ruled that a statutory fee shifting
provision such as that contained in the ERA must be read in light of the "American
Rule" that absent express statutory authorization each party in a law suit must bear its own
attorney's fees. Alyeska Pipeline Serv. Co. v. The Wilderness Soc'y, 421 U.S. 240, 247
(1975). We determined that the ERA's attorney's fees section is not a typical "prevailing
party" attorney's fees provision. Instead, we concluded that the ordinary, common meaning
of this provision is that attorney's fees shall be awarded where there has been a determination that
"respondent has violated the ERA anti-retaliation provision," and where an order has
been issued "against" that respondent. Harris, slip op. at 7. We emphasized
that Congress "knows how to enact a 'prevailing party' attorneys' fees provision when it has
that in mind . . . ," and pointed to statutes in which Congress had provided for attorney's
fees awards to "prevailing parties" in one section while using the more restrictive
language contained in the ERA in the statute's whistleblower protection provision. Id. at
9.
Under Harris it is irrelevant whether Macktal was the
"prevailing party" with respect to his challenge to the original settlement
agreement.7 Unless Macktal can meet the
ERA's preconditions to a fee award, such an award cannot be made. First, the complainant must
have filed a complaint alleging discrimination. 42 U.S.C.A. §5851(b)(1). Although
Macktal filed a complaint, it related to his alleged discriminatory discharge; he did not file a
complaint regarding the restrictive terms of the settlement agreement. Second, the Secretary
must have issued "an order . . . providing the relief prescribed by subparagraph (B) . . .
." 42 U.S.C.A. §5851(b)(2)(A). The Secretary has not issued such an order. Third,
the order "shall be made on the record after notice and opportunity for public
hearing." Id. There has been no notice or opportunity for public hearing on the
issue whether Brown & Root discriminated against Macktal by proposing restrictive settlement
terms. Fourth, attorney's fees may only be assessed: (1) "at the request of the
complainant;" (2) "against the person against whom the order is issued;" and
(3) "incurred . . . by the complainant for, or in connection with, the bringing of the
complaint upon which the order was issued." 42 U.S.C.A. §5851((b)(2)(B).
Although Macktal succeeded in having the settlement into which he entered disapproved by the
Secretary, there was no "complaint upon which the order was issued," no
"notice and opportunity for public hearing," and no order issued
"against" Brown & Root within the meaning of the ERA.
It is these distinctions which make inapposite the case upon which Macktal
relies: Connecticut Light & Power Co. v. Secretary of Labor, 85 F.3d 89 (2d
Cir. 1996) (CL&P). In CL&P, complainant Delcore filed a complaint with the
Secretary of Labor alleging that the respondent had violated the ERA by offering him a
settlement agreement which contained illegal "gag provisions." The Secretary
determined that "regardless of whether Respondents violated ERA Section 210 by making
the settlement offer, they clearly discriminated against Delcore in violation of the Act by
breaking off settlement negotiations because he refused to relinquish his Section 210(a)
participation rights." Delcore v. W.J. Barney Corp., Case No. 89-ERA-38 @ 6-7
(Apr. 19, 1995).8 The Court of Appeals
affirmed on slightly different grounds, holding that "proffering a settlement agreement,
whereby an employer attempts to restrict an employee's ability to cooperate with administrative
and judicial bodies, violates Section 210 of the ERA." CL&P, 85 F.3d at 94.
Thus, CL&P stands for the proposition that proposing a settlement agreement that
contains certain types of restrictive language may violate the ERA whistleblower provision, and
may therefore be the basis for a whistleblower complaint. What we decide today is that because
Macktal did not file a complaint regarding the restrictive provision, the Secretary did not
determine that Brown & Root had discriminated against him when proffering the settlement
agreement, and did not issue an order after notice and opportunity for public hearing providing
relief. Therefore, there is no occasion for us to apply CL&P in this case.
No one disputes that the later proceedings on the merits of Macktal's
complaint ultimately resulted in a determination that Brown & Root had not discriminated
against Macktal in violation of the ERA whistleblower provision when it discharged him. Under
these circumstances no award of attorneys fees is appropriate.
For the foregoing reasons we deny the petition for attorneys fees and costs.
SO ORDERED.
PAUL
GREENBERG
CYNTHIA L.
ATTWOOD
1 This case has been assigned to a
panel of two Board Members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978
§5 (May 3, 1996).
2 The offending paragraph
provided:
3 In April 1996, the Secretary
delegated authority to issue final agency decisions under the ERA and similar statutes to this
Board. Sec. Ord. 2-96, 61 Fed.Reg. 19,978.
4 Prior to its amendment in
1992 the ERA did not explicitly include internal complaints among the actions which were
protected. See, 42 U.S.C. 5851(a) (1988). In Brown & Root v. Donovan,
supra, the Fifth Circuit ruled that the ERA did not protect such complaints.
5 The ALJ expressed
significant doubt as to whether attorneys fees could be awarded in the circumstances of this case,
but ruled that he was bound by the Board's remand order. ID&O at 3 n.1
6 Brown & Root also asserts
that Macktal is not entitled to attorney's fees because he has not proven that he
"incurred" a liability for payment of fees as required by the ERA, and that, if the
Board finds that attorney's fees are due, the amount recommended by the ALJ should be reduced
by $35,000, the sum paid Macktal under the settlement agreement which he abrogated and which
he has not repaid. In light of the result reached in this Decision, it is unnecessary to address these
arguments.
7 We note that the "law
of the case" doctrine does not preclude us from revisiting the attorney's fees issue where
there has been an intervening change in the law. The doctrine is a prudential rather than a
jurisdictional restriction on a court's authority to reconsider an issue. See Messenger v.
Anderson, 225 U.S. 436, 444, 32 S.Ct. 739 (1912). "When intervening legal authority
makes clear that a prior decision bears qualification, that decision must yield."
Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990). See
also, Crocker v. Piedmont Aviation, Inc., 49 F.3d 735,738-741 (D.C. Cir. 1995).
8 References to ALJ
Recommended Decisions and Orders are to opinions as published on the Department of Labor's
World Wide Web site www.oalj.dol.gov. We use the OALJ citation format set forth at
www.oalj.dol.gov/cite.htm.
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Chair
Member