Darrin Muenzberg v. APL Maritime, LTD (agency decision, May 13, 2022)

Plain-English summary

Darrin Muenzberg appealed after an ALJ rejected his Seaman's Protection Act retaliation complaint, and the parties settled while the appeal was before the Board. The Board reviewed only the SPA portion of the agreement because other covered claims fell outside its delegated settlement authority. It sealed the unredacted agreement's designated commercial information but explained that the record remained subject to FOIA and the parties retained pre-disclosure notice rights. It also read the confidentiality clause to preserve communications with enforcement agencies and the Maryland-law clause to preserve federal authority over SPA issues. The Board approved the agreement and dismissed the complaint with prejudice.

Decision snapshot

• Cited authorities: 46 U.S.C. § 2114; 29 C.F.R. §§ 70.26 and 1986.111(d)(2); 5 U.S.C. § 552
• Outcome: Settlement and limited sealing request approved; SPA complaint dismissed with prejudice.
• Key point: Confidential settlement terms may be sealed while remaining subject to FOIA procedures and cannot be read to bar lawful reports to government authorities.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

  In the Matter of:


  DARRIN MUENZBERG,                                  ARB CASE NO. 2021-0070

               COMPLAINANT,                          ALJ CASE NO. 2018-SPA-00001

        v.                                           DATE: May 13, 2022

  APL MARITIME, LTD,

               RESPONDENT.

  Appearances:

  For the Complainant:
        Cory A. Birnberg, Esq.; Birnberg & Associates; San Francisco,
  California

  For the Respondent:
        Renee Feldman, Esq.; Littler Mendelson, P.C.; Walnut Creek,
  California

  Before: James D. McGinley, Chief Administrative Appeals Judge and
  Thomas H. Burrell, Administrative Appeals Judge


              DECISION AND ORDER APPROVING SETTLEMENT
                 AND DISMISSING CASE WITH PREJUDICE

        PER CURIAM. This case arises under the whistleblower protection provision of
  the Seaman’s Protection Act (SPA),1 and the applicable implementing regulations.2
  Darrin Muenzberg (Complainant) filed a complaint alleging that APL Maritime,
  LTD (Respondent) retaliated against him in violation of SPA. On September 15,

  1     46 U.S.C. § 2114 (2010), as amended by Section 611 of the Coast Guard
  Authorization Act of 2010, P.L. 111-281.
  2     29 C.F.R. Part 1986 (2021).

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2021, an Administrative Law Judge (ALJ) issued a Decision and Order finding that Complainant did not establish by a preponderance of the evidence that his protected activity contributed in any way to any of Respondent’s adverse actions. Complainant timely appealed to the Administrative Review Board (Board).

   On May 9, 2022, the parties filed a Joint Request for Order Approving

Settlement and Partially Sealing Settlement Agreement, stating that the parties settled the SPA claim and agreed to dismiss the appeal with prejudice pursuant to the terms of the Confidential Settlement Agreement and Release of Claims (Settlement Agreement). The parties requested the Board to approve the Settlement Agreement and dismiss the action with prejudice. The parties attached two signed copies of the agreement to the motion, an unredacted version and a redacted version. The redacted version conceals the first paragraph of Section 3 of the Settlement Agreement.

   The SPA’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.3

   A review of the Settlement Agreement reveals that it encompasses the

settlement of matters under laws other than the SPA. 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.4 Therefore, we have restricted our review of the Agreement to ascertaining whether its terms fairly, adequately, and reasonably settle this SPA case over which we have jurisdiction.

   The parties asserted their pre-disclosure notification rights in accordance

with 29 C.F.R. § 70.26, designating the first paragraph of Section 3 of the unredacted Settlement Agreement as containing confidential commercial information. The parties move the Board to seal the unredacted version. We grant this request and have “sealed” the unredacted electronic Settlement Agreement by maintaining it as separate and confidential.

  With regard to the confidentiality of the unredacted Settlement Agreement,

the parties are advised, notwithstanding the confidential nature of the unredacted Settlement Agreement, that all of the parties’ submissions become part of the record and are subject to the Freedom of Information Act (FOIA).5 The FOIA requires federal agencies to disclose requested records unless they are exempt from

3 29 C.F.R. § 1986.111(d)(2).
4 Helgeson v. Soo Line R.R. Co., ARB No. 2019-0054, ALJ No. 2016-FRS-00084, slip op. at 2 (ARB Jan. 13, 2021). 5 5 U.S.C. § 552 (2016).

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disclosure under the Act.6 Department of Labor regulations set out the procedures for responding to FOIA requests and for appeals by requestors from denials of such requests.7 Should disclosure be requested, the parties are entitled to pre-disclosure notification rights under 29 C.F.R. § 70.26.

   Furthermore, the Settlement Agreement contains a confidentiality clause

that Complainant shall not disclose the agreement’s terms to a third party unless one of the listed exceptions applies. If the confidentiality clause was interpreted to preclude Complainant from communicating with federal or state enforcement agencies concerning alleged violations of law, it would violate public policy and therefore constitute an unacceptable “gag” provision.8 We construe such language as allowing Complainant, either voluntarily or pursuant to an order or subpoena, to communicate with, or provide information to, state and federal authorities about suspected violations of law involving Respondent.9

   The Agreement also provides that it shall be governed by the laws of the

State of Maryland. We construe this “Applicable Law” provision as not limiting the authority of the Secretary of Labor, the Board, and any federal court regarding any issue arising under SPA, which authority shall be governed in all respects by the laws and regulations of the United States.

   The Board concludes that the settlement between Complainant and

Respondent is fair, adequate, and reasonable, and does not contravene the public interest. Accordingly, the request to seal and keep the Settlement Agreement in its entirety confidential is GRANTED subject to the procedures requiring disclosure under FOIA. We APPROVE the settlement agreement and DISMISS the complaint with prejudice.

  SO ORDERED.

6 Ware v. BNSF Ry. Co., ARB No. 2014-0044, ALJ No. 2013-FRS-00028, slip op. at 3 (ARB June 24, 2014). 7 29 C.F.R. Part 70 (2017). 8 See Helgeson, ARB No. 2019-0054, slip op. at 3. 9 Id.