Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-041
ALJ CASE No. 95-STA-4
DATE: January 22, 1997
In the Matter of:
JOSEPH A. CAIMANO,
COMPLAINANT,
v.
BRINK'S, INCORPORATED,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
On January 10, 1997, Brink's, Incorporated filed Respondent's Motion to
Withdraw Orders in this case, which is currently pending on appeal before the United States
Court of Appeals for the Second Circuit. The Secretary issued a decision in this case, which
arises under the employee protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. § 31105 (1994), on January 26, 1996. In that Decision and
Order of Remand, the Secretary held that Brink's had violated the STAA when it terminated
the complainant, Joseph A. Caimano, on April 21, 1994. Following remand to the
Administrative Law Judge for a determination concerning Caimano's complete remedy, the
parties submitted a joint stipulation concerning the amount of damages, attorney's fees and
costs due Caimano. On August 14, 1996, the Board issued a Final Decision and Order that
ordered Brink's to pay Caimano damages, interest, attorney's fees and costs in the amounts
stipulated by the parties.2 See
generally Brock v. Roadway Express, Inc., 481 U.S. 252, 258-59 (1987)(discussing Section
405 purpose of protecting whistleblowers from devastating financial consequences of
termination by employer). Subsequently, Brink's appealed the decisions in this case to the
United States Court of Appeals for the Second Circuit. Brink's motion seeks withdrawal with
prejudice of the Secretary's Decision and Order of Remand and the Board's Final Decision
and Order in this case. Specifically, Brink's requests that the Board issue a decision
voiding the Secretary's January 26, 1996 Decision and Order of Remand, withdrawing its
August 14, 1996 Final Decision and Order and dismissing Caimano's complaint in its entirety.
Brink's urges that granting the relief sought is necessary to "effectuate the prompt
resolution of the instant matter without further resort to litigation." Motion at 1.
As further support for its motion, Brink's suggests that
the parties have agreed to a settlement of this case, contingent upon the vacating of the
aforesaid decisions of the Secretary and this Board. Brink's states that, during a pre-argument
conference held by Staff Counsel for the Second Circuit Court of Appeals with the
respective counsel for Brink's, Caimano and the Department of Labor, Staff Counsel advised
the parties that "appellate litigation would be wasteful of resources and extremely
costly, particularly to Complainant, for it would likely consume his entire remedy even if he
ultimately were successful."3
Motion at 8. In the Motion, Brink's also states that the respective counsel for Caimano and
the Department of Labor concur in Brink's agreement that its Petition for Review now
pending before the Second Circuit court be placed on the court's suspended calendar to
provide an opportunity for Brink's to file and "the ARB to consider and rule upon, the
within motion." Id.
When parties agree to the settlement of a case that is
pending on appeal, the parties may seek the vacating of the judgment of the lower tribunal
through the filing of a motion pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S.Ct. 386,
393, 1994 U.S. LEXIS 7982,*21 (1994); Agee v. Paramount Communications, Inc., 932
F.Supp. 85 (S.D.N.Y. 1996); Aetna Casualty and Surety Co. v. Home Insurance Co., 882
F.Supp. 1355 (S.D.N.Y. 1995); see also 29 C.F.R. §§ 18.1,
1978.106(a)(1996).4 This Board may not
effectively entertain such motion, however, while jurisdiction of the case rests with an
appellate tribunal. See U.S. Bancorp Mortgage Co., 115 S.Ct. at 393, 1994
U.S. LEXIS 7982, *21; Nestle Co. v. Chester's Market, Inc., 756 F.2d 280, 281 (2d Cir.
1985); Agee, 932 F.Supp. at 87 and cases cited therein. Furthermore, consideration
of such motion requires submission of a settlement agreement that meets the criteria for
approval by this Board, as required by Section 29 C.F.R. § 1978.111(d)(2), and which is
binding on the parties should we grant the motion to vacate the decisions issued in this
case by the Secretary and this Board. See generally Davis v. Kimstock, Inc., Case
No. 90-STA-08, Sec. Order, Nov. 30, 1990, slip op. at 1-2 (approving terms of settlement
agreement as fair, adequate and reasonable and dismissing complaint).
Accordingly, and inasmuch as it appears that the parties
have not sought and the United States Court of Appeals for the Second Circuit has not
granted a remand of this case to the Administrative Review Board for the purpose of
entertaining such motion, and inasmuch as the Motion before us provides no substantiation
that Caimano, as the party who prevailed in this matter before the Secretary of Labor and
the Administrative Review Board, has agreed to the settlement resolution suggested by the
Motion,5 we hereby order the parties to
show cause within thirty (30) days why Respondent's Motion to Withdraw Orders should not
be denied.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
1 On April 17, 1996, the
Secretary of Labor delegated authority to issue final agency decisions under, inter alia,
the Surface Transportation Assistance Act and the implementing regulations, 29 C.F.R. Part
1978,
to the newly created Administrative Review Board. Secretary's Order 2-96 (Apr. 17, 1996), 61
Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order, and regulations under which the ARB now issues final agency
decisions. 61 Fed. Reg. 19982.
2 The joint
stipulation signed by the parties that is referred to in the Board's Final Decision and Order
provides:
3 There is
currently no controlling precedent in the Second Circuit regarding the question of whether the
Secretary of Labor may award attorney's fees to a prevailing whistleblower complainant for
services rendered before a United States Court of Appeals. Relevant pronouncements by the
United States Courts of Appeals for the Fourth and Sixth Circuits, in Blackburn v. Reich,
79 F.3d 1375, 1379 (4th Cir. 1996) and DeFord v. Secretary of Labor, 715 F.2d 231,
232-33 (6th Cir. 1983), are in conflict. See Delcore v. W.J. Barney Corp., Case No.
96-161, ARB
Order, Oct. 31, 1996.
4 The
regulations at 29 C.F.R. Part 1978 govern the adjudication of Section 405 complaints within the
Department of Labor. 29 C.F.R. § 1978.100(b)(1996). Those regulations, as well as the
regulations governing hearings before Department of Labor Administrative Law Judges, 29
C.F.R.
Part 18, which are referenced in Section 1978.106(a), are silent in regard to the procedure
applicable to a motion such as that filed by Brink's. But see 29 C.F.R. § 1978.115
Special circumstances; waiver of rules. When the pertinent statute and implementing
regulations are silent in regard to a procedural issue, we look to the Federal Rules of Civil
Procedure for guidance in reaching a result that will be fair to the parties and serve the
purpose of the statute. See, e.g., Timmons v. Mattingly Testing Servs., Case No.
95-ERA-40, ARB Dec., June 21, 1996, slip op. at 2-3 (citing Nolder v. Kaiser Engineers,
Inc., Case
No. 84-ERA-5, Sec. Dec., June 28, 1985, slip op. at 5-6); Spearman v. Roadway Express,
Inc.,
Case No. 92-STA-1, Sec. Order, Oct. 27, 1992, slip op. at 1-2. This approach is consistent
with Section 18.1(a), which provides for resort to the Federal Rules as persuasive authority. 29
C.F.R. § 18.1(a).
5 Section 405 of
the STAA creates a private right of action for complainants. Martin v. Yellow Freight
System,
Inc., 793 F.Supp. 461, 465-67 (S.D.N.Y. 1992)(citing, inter alia, Brock v. Roadway
Express,
Inc., 481 U.S. at 258-59). The statutory scheme under the STAA thus contrasts with,
e.g., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.,
which
is also administered by the Department of Labor. Compare Reich v. Contractors Welding of
Western N.Y., Inc., 996 F.2d 1409 (2d Cir. 1993)(ordering OSHA Commission to vacate
decision
following withdrawal of citation by Secretary and approval by appellate court of settlement
between Secretary and employer respondent) with Martin, 793 F.Supp. at 465-68.
[Page 2]
[Page 3]
Chair
Member
Alternate Member