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MACKTAL v. GARDE

July 18, 2000

JOSEPH J. MACKTAL, JR., PLAINTIFF,
V.
BILLIE P. GARDE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John Garrett Penn, District Judge.

MEMORANDUM

Currently pending before the Court are defendants' Motion to Dismiss Plaintiff's Amended Complaint and plaintiff's Motion for Leave to File a Second Amended Complaint. For the reasons set forth in this memorandum, defendants' Motion to Dismiss Plaintiff's Amended Complaint is granted and plaintiff's Motion for Leave to File a Second Amended Complaint is denied.

BACKGROUND

In 1986 plaintiff was removed by his employer, Brown & Root, Inc. ("B & R"), from his position as an electrician at a nuclear power facility in Texas. Believing that he had been removed from the site in retaliation for raising safety concerns about the facility, plaintiff retained defendant Billie Garde of the Environmental Whistleblowers Protection Project ("EWPP") to advise him as to possible remedies against B & R. The EWPP, a non-profit organization that attempted to provide representation for indigent individuals whose employers had discriminated against them for raising or reporting safety concerns, was a joint project of two umbrella organizations, the Government Accountability Project ("GAP") and Trial Lawyers for Public Justice ("TLPJ").

Ms. Garde arranged for defendant Anthony Roisman to serve as co-counsel, and a complaint was filed with the Department of Labor against B & R on Mr. Macktal's behalf in February 1986. A hearing in this administrative action was scheduled for November 16. In lieu of the hearing, however, according to plaintiff's complaint in this case, Ms. Garde and Mr. Roisman entered into settlement negotiations with B & R, ultimately reaching a settlement agreement that was to pay Mr. Macktal $15,000 and his lawyers $20,000. This settlement agreement is at the heart of this case.

In this action, filed on September 8, 1989, plaintiff's principal allegation is that Ms. Garde and Mr. Roisman coerced him into accepting the settlement agreement by threatening him with liability for litigation costs in the event he did not settle the claim. See Amended Complaint at ¶¶ 19-21, 24, 26, 38. Plaintiff also alleges other acts of malfeasance by defendants*fn1 in connection with their representation of him, such as the mishandling of the proceeds of the settlement, see id. at ¶¶ 27, 30, 43, 77; failing to supervise Ms. Garde adequately in connection with the litigation, see id. at ¶¶ 75-78; and neglecting Mr. Macktal's claim before the Texas Employment Commission, see id. at ¶¶ 14, 36-37.

Prior to and throughout the initiation and vigorous prosecution of this action, the administrative action between plaintiff and B & R had been ongoing. On September 9, 1988, plaintiff filed a Request to the Secretary of Labor Not to Approve the Settlement and for Remand. In this request, plaintiff asserted that the Secretary should set aside the settlement on several grounds, including the ground that he entered into the settlement only as a result of fraud and duress by his counsel. On November 14, 1989, the Secretary issued an order concluding that plaintiff's claim of duress did not provide a ground for repudiating the settlement agreement. The Secretary also concluded that paragraph 3 of the Settlement Agreement, which purported to restrict plaintiff's ability to testify in other judicial and administrative proceedings was void as against public policy. Accordingly, the Secretary severed paragraph 3, but upheld the remainder of the agreement.

On appeal, however, the United States Court of Appeals for the Fifth Circuit vacated the Secretary's Order. Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991) ("Macktal I"). The court concluded that the Secretary did not have authority to sever a material provision of the Settlement Agreement entered into by the parties and impose a new redacted version on them without their consent. See id. at 1155-56.*fn2 Accordingly, the Fifth Circuit vacated the Secretary's order and remanded the matter to the Secretary for further consideration. Id. at 1151. Due to this remand, on May 11, 1992, the Court temporarily administratively dismissed this lawsuit pending resolution of the administrative action between plaintiff and B & R by the Department of Labor.

On remand, the Secretary issued a new order in October 1993 disapproving the settlement and remanding the case to an administrative law judge ("ALJ") for a hearing on the merits. Macktal v. U.S. Dept. of Labor, 171 F.3d 323, 326 (5th Cir. 1999) ("Macktal II"). The ALJ held a hearing on the merits in February 1996, and ruled that internal whistle blowing was not protected activity under section 210*fn3 and the prior rulings of the Fifth Circuit, and therefore Macktal's internal complaints could not be considered as support for his retaliation claim. Id. In November 1996, the ALJ issued a Recommended Decision and Order granting B & R's motion for summary judgment. Id. In January 1998, after further briefing, the Department of Labor's Office of the Administrative Review Board ("ARB") issued a Final Decision and Order dismissing Macktal's complaint, finding that Macktal had not engaged in any protected activity under ERA. Id.

Plaintiff appealed this decision to the Fifth Circuit. Although its reasoning differed somewhat from that of the ARB, the Fifth Circuit concluded that the ARB acted correctly in dismissing Macktal's complaint. Id. The Fifth Circuit considered two different activities which Macktal claimed were protected activities for the purpose of section 210. First, the court considered Macktal's complaints to SAFETEAM, a semi-independent program endorsed by the Nuclear Regulatory Commission ("NRC") designed to review whistle blower allegations. Following Fifth Circuit precedent, the court concluded that complaints to SAFETEAM "did not constitute either a complaint to an agency or commencement of a proceeding under [section 201.]" Macktal II, 171 F.3d at 328 (citing Ebasco Constructors v. Martin, 986 F.2d 1419 (5th Cir. 1993)).

Second, the court turned to Macktal's memorandum expressing his intention to file a complaint with the NRC. The court concluded that drafting such a memorandum was protected activity under section 210. Macktal II, 171 F.3d at 329. However, the court concluded that Macktal was unable to show that the evidence was sufficient to permit an inference that the protected activity was the likely reason for the adverse action, a required element for his retaliation claim. Id. The court went on to affirm the ARB's conclusion, finding that it was clearly, supported by substantial evidence, and that it was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Id. Macktal's case against B & R ended with the Fifth Circuit affirming the ARB's dismissal of his complaint.

The administrative matter and resulting appeals concerning Macktal's claim against B & R having been resolved, attention returned to the proceedings in this Court. On February 22, 2000, this Court granted plaintiff's motion to reinstate the case. The parties were given an opportunity to file supplemental memoranda on outstanding motions, particularly defendants' motion to dismiss and plaintiff's motion for leave to file a second amended complaint. The Court heard arguments on defendants' motion to dismiss at a status conference on March 16, 2000. Having considered the entire record herein, the Court is ready to rule on the pending motions.

DISCUSSION

I. Defendants' Motion to Dismiss Plaintiff's ...


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