Brandon T. Hopper v. Marten Transport, Ltd. (Board decision, June 29, 2016)

Plain-English summary

Brandon Hopper alleged that Marten Transport fired him for protected activity under the Surface Transportation Assistance Act. An administrative law judge found a violation and awarded damages, and Marten sought Board review. After mediation, the parties submitted a settlement agreement and asked the Board to dismiss the appeal and vacate the judge's decision. The Board approved the agreement for the transportation whistleblower claim and dismissed the complaint. It declined to vacate the judge's decision, as the agreement permitted, and explained that the agreement's Arkansas law clause could not limit federal authority.

Decision snapshot

• Cited authorities: Transportation whistleblower protection under 49 U.S.C. § 31105 and settlement approval under 29 C.F.R. § 1978.111(d)(2).
• Outcome: Settlement approved and complaint dismissed; ALJ decision left in place.
• Key point: The Board reviewed only the portion of the agreement within its jurisdiction and did not vacate the underlying ALJ decision.

Full text (DOL official public release)

U.S. Department of Labor
Administrative Review Board
200 Constitution Ave., N.W.
Washington, DC 20210

In the Matter of:

BRANDON T. HOPPER,
ARB CASE NO. 16-043

COMPLAINANT,
ALJ CASE NO. 2014-STA-069

v. DATE: June 29, 2016

MARTEN TRANSPORT, LTD.,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
Paul O. Taylor, Esq.; Taylor & Associates, Ltd.; Burnsville, Minnesota

For the Respondents:
Carolyn B. Witherspoon, Esq. and J. E. Jess Sweere, Esq.; Cross, Gunter, Witherspoon & Galchus, P.C.; Little Rock, Arkansas

BEFORE: Paul M. Igasaki, Chief Administrative Appeals Judge; E. Cooper Brown, Administrative Appeals Judge; and Joanne Royce, Administrative Appeals Judge

FINAL DECISION AND ORDER APPROVING SETTLEMENT AND DISMISSING COMPLAINT

The Complainant, Brandon T. Hopper, filed a complaint under the Surface Transportation Assistance Act of 1982 1 alleging that his employer, Marten Transport, Ltd., violated the STAA’s

whistleblower protection provisions by terminating his employment because he engaged in

1
49 U.S.C.A. § 31105 (Thomson/West 2007 & Supp. 2015 (STAA), as implemented by federal regulations at 29 C.F.R. Part 1978 (2015).

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protected activity. On February 22, 2016, a Department of Labor Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.) concluding that Marten violated the STAA’s employee protection provisions and awarding damages. 2

Marten timely petitioned the Administrative Review Board for review of the ALJ’s D. & O. 3 But shortly after Marten filed the petition, the parties jointly requested a remand to the

Office of Administrative Law Judges so that they could engage in mediation. The Board granted the motion and remanded the case for mediation. On June 21 2016, Marten filed Respondent’s Unopposed Motion for Approval of Settlement, Dismissal of Appeal and Vacation of ALJ Decision and a Settlement Agreement and Release of Claims (Agreement) for the Board’s review and approval.

The STAA’s implementing regulations provide that at any time after a party has filed objections to the Assistant Secretary’s findings or order, the case may be settled if the participating parties agree to a settlement and if the Board has accepted the case for review, the Board approves the settlement agreement. 4

Review of the Agreement reveals that it may encompass the settlement of matters under laws other than the STAA. Agreement, ¶¶ I, IV. The Board’s authority over settlement agreements is limited to the statutes that are within the Board’s jurisdiction as defined by the applicable delegation of authority. Therefore, we have restricted our review of the Agreement to ascertaining whether its terms fairly, adequately, and reasonably settle this STAA case over which we have jurisdiction. 5

Paragraph IV of the Agreement requests the Board to vacate the ALJ’s D. & O., but provides that the Board’s refusal to do so will not alter the parties’ obligations under the Agreement. It is not our practice to vacate underlying Administrative Law Judge decisions when considering whether to approve a settlement under the whistleblower acts, and we do not do so in this case. 6

2
Hopper v. Marten Transp. Ltd., ALJ No. 2014-STA-069 (Feb. 22, 2016).
3
See Secretary’s Order No. 2-2012 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012); 29 C.F.R. § 1978.110(a).
4
29 C.F.R. § 1978.111(d)(2).
5
Accord Carter v. Marten Transp. Inc., ARB No. 13-050, ALJ No. 2009-STA-031, slip op. at 4 (ARB July 24, 2013); Bhat v. District of Columbia Water & Sewer Auth., ARB No. 06-014, ALJ No. 2003-CAA-017, slip op. at 2 (ARB May 30, 2006).
6
Accord Kirk v. Rooney Trucking, Inc., ARB No. 14-035, ALJ No. 2013-STA-042, slip op. at 2 (ARB Mar. 24, 2016).

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Paragraph XII of the Agreement provides that the Agreement shall be construed and interpreted in accordance with the laws of the state of Arkansas. We interpret this “choice of law” provision as not limiting the authority of the Secretary of Labor and any Federal courts, which shall be governed in all respects by the laws and regulations of the United States. 7

The parties have certified that the Agreement constitutes the entire settlement with respect to Hopper’s STAA complaint. Agreement, ¶ XV. Accordingly, consistent with the settlement provisions, as construed, 8 we find that the Settlement Agreement and Release of

Claims is fair, adequate, and reasonable, and we APPROVE the Agreement and DISMISS Hopper’s STAA complaint.

SO ORDERED.

PAUL M. IGASAKI
Chief Administrative Appeals Judge

E. COOPER BROWN
Administrative Appeals Judge

JOANNE ROYCE
Administrative Appeals Judge

7
See Carter, ARB No. 13-050, slip op. at 3.
8
See ¶ XII (Severability provision).

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