Saban v. Morrison Knudsen, 2003-PSI-1 (ALJ July 25, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue Date: 25 July 2003

Case No. 2003-PSI-1

In the Matter of

MARK G. SABAN,
    Complainant,

    v.

MORRISON KNUDSEN,
    Respondent.

   This proceeding arises under the Pipeline Safety Improvement Act of 2002, P. L. No. 107-355, H.R. 3609, 116 Stat. 2985, 49 U.S. Code § 60129, et seq., (hereinafter referred to as "the Act"). This matter is before me on Respondent's Motion for Dismissal with briefs filed by both parties. Included with the briefs are affidavits and exhibits offered in support of the motions and objections of the parties. These exhibits are hereby accepted into the record.

Background:

   In 1999, the Respondent, Morrison Knudsen, was the successful bidder to act as the contract manager on a project to build a natural gas liquids processing plant for Aux Sable Liquid Products L.P. The Respondent requested subcontractor bids to install temporary power and underground electrical power to work on the project located in Channahon, Illinois. Saban Electric Co., owned solely by the Complainant, was awarded the subcontract to perform this work. A construction agreement was entered into by Saban Electric and Morrison Knudsen on May 6, 1999.

   Pursuant to the terms of the subcontract, the temporary power was to have been completed by June 4, 1999. Shortly thereafter, the Respondent alleged that the work performed by Saban Electric was not up to code standards and notified the Complainant that the subcontract was discontinued.

   On January 14, 2003, the Complainant filed a claim with the Department of Labor alleging numerous charges, including wrongful termination in July of 1999. On April 24, 2003, Department of Labor Area Director, Gary Anderson, dismissed the complaint. Specifically, the Area Director concluded that the complaint could be dismissed without an investigation because the charge was filed in excess of 180 days after the alleged violation and § 60129 of the Act does not apply retroactively to incidents occurring before December 17, 2002, the effective date of the Act. The Complainant appealed this decision and this matter was referred to the undersigned on May 8, 2003.

Motion to Dismiss:

   By Motion dated June 6, 2003, the Respondent seeks dismissal of the complaint filed by the Complainant, Mark Saban. The Complainant filed a response to this motion on July 3, 2003.

   Initially, the Respondent argues that the complaint must be dismissed on the basis of untimeliness. The Act provides:

A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, not later than 180 days after the date on which such violation occurs, file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging such discharge or discrimination.

§ 60129(b)(1).

The Complainant filed his complaint on January 14, 2003. He alleges that he was wrongfully terminated by the Respondent in July, 1999. As January of 2003 is clearly outside of 180 day window following the alleged violation, I find that this complaint is untimely as a matter of law.

   Moreover, the Respondent asserts that the complaint must be dismissed as the Act does not address actions occurring before December 17, 2002. Generally, retroactivity is not favored in the law and, accordingly, legislation will be construed to operate only prospectively unless Congress has clearly expressed a contrary intention. See Landgraf v. USI Film Prods., 511 U.S. 244, 264, 268 (1994).

   Before looking at congressional intent, one must first determine whether application of legislation to certain facts constitutes a retroactive application of that law. Deciding if application of legislation would be retroactive is not a simple or mechanical task but is instead one that "comes at the end of a process of judgment." Id. at 268-70. Although there is no bright-line rule for this analysis, I am persuaded by prior case law which has focused on the interrelationship between the new law and past conduct. The First Circuit has adequately summarized the prevailing analysis as follows:

The determination of whether a statute's application in a particular situation is prospective or retroactive depends upon whether the conduct that allegedly triggers the statute's application occurs before or after the law's effective date. Hence, a statute's application is usually deemed prospective when it implicated conduct occurring on or after the effective date.

McAndrews v. Fleet Bank of Mass., 989 F.2d 13, 16 (1st Cir. 1993). See also Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 857 n. 3 (l990) (explaining that the inquiry "depends upon what one considers to be the determinative event by which retroactivity or prospectivity is to be calculated") (Scalia, J., concurring); Travenol Laboratories, Inc. v. U.S., 118 F.3d 749 (Ca. Fed. 1997).

   The alleged unlawful personnel action occurred in July, 1999. Such action would trigger the statute. However, the action occurred well before the Act's effective date, December 17, 2002. As such, enforcement of the Act under these facts would constitute retroactive application of the statute. The Act cannot be enforced retroactively against the Respondent unless Congress has clearly expressed that such application is permitted.

   There is no express provision in the Pipeline Safety Improvement Act for retroactive application of § 60129. Additionally, the analysis of the Act as recorded in the Congressional Record (November 14, 2002 (Senate)) does not evince any Congressional intent that the statute is to apply retroactively. As the express language of the statute and the congressional history of the Act is devoid of any evidence indicating that Congress wanted the Act to be applied retroactively, I find that the Act does not address the alleged actions of the Respondent occurring in 1999.

   The Respondent's Motion for Dismissal argues three additional grounds warranting dismissal. As I have found that the case must be dismissed on the above grounds, it is unnecessary to make further findings relating to these contentions.

   The Respondent has also moved for an award of attorney's fees under § 60129(b)(3)(c) of the Act averring that the complaint is frivolous or based on bad faith. Upon review of the motions and responses in this case, I cannot conclude that the Complainant is engaging in intended frivolity or is motivated by bad faith in the filing of his complaint. On the contrary, it appears to me that the Complainant feels that his complaint comes within the purview of the Act and that he is entitled to some redress. His pursuit of this action seems to be on a misunderstanding of what wrong the Act is designed to prevent rather than on those motions proscribed by the Act. Accordingly, the Respondent's request for attorney's fees is denied.

   THEREFORE, IT IS HEREBY ORDERED that the Respondent's Motion for Dismissal is GRANTED. The Complainant's claim for discrimination under the Act is DISMISSED with prejudice.

   IT IS FURTHER ORDERED, that the Respondent's request for attorney's fees is DENIED.

      DANIEL J. ROKETENETZ
      Administrative Law Judge

Notice of Appeal Rights: The Department of Labor has not yet issued regulations governing the appeal of ALJ decisions under the Pipeline Safety Improvement Act of 2002, 49 U.S.C. § 60129. Accordingly, pursuant to the Administrative Procedure Act, 5 U.S.C. § 557(b), this is an Initial Decision that "becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule." Pursuant to Secretary's Order 1-2002, ¶ 4.c.(44), Delegation of Authority and Assignment of Responsibility to the Administrative Review Board, 67 Fed. Reg. 64272 (Oct. 17, 2002), the Administrative Review Board is delegated review authority over "[a]ny laws or regulation subsequently enacted or promulgated that provide for final decisions by the Secretary of Labor upon appeal or review of decisions, or recommended decisions, issued by ALJs." Accordingly, this matter will be referred to the Administrative Review Board, which may set a time period in which any petition for review must be filed. Compare Greenwald v. UBS Paine Webber, Inc., ARB No. 03-090, ALJ No. 2003-SOX-2 (ARB Apr. 25, 2003) (ARB order setting period for filing of petition of review prior to publication of Sarbanes-Oxley Act employee protection regulations).