The opinion of the court was delivered by: John Garrett Penn, District Judge.
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
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,
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.
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.
I. Defendants' Motion to Dismiss Plaintiff's ...