[3822 Federal Register/ Vol. 58, No. 6 / Monday, January 11, 1993 / Proposed Rules]

DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290-AA12

Use of Settlement Judges In
Proceedings Before the Office of
Administrative Law Judges

AGENCY: Office of the Secretary, Labor.

ACTION: Notice of proposed rulemaking.

SUMMARY: The purpose of this proposal is to permit the appointment of settlement judges in proceedings before the Office of Administrative Law Judges. The procedure would use informal conferences to encourage claim settlement without adjudication. This is a voluntary procedure intended to reduce the costs to parties of filing and defending complaints and to expedite the resolution of complaints pursuant to Executive Order No. 12778 (Oct. 23, 1991) and the Department of Labor's Alternative Dispute Resolution Interim Policy, 57 FR 7292 (1992).

DATES: Comments must be received on or before February 25, 1993.

ADDRESSES: Submit comments to John M. Vittone, Deputy Chief Administrative Law Judge, room 4150, Office of Administrative Law judges, 800 K Street, NW., suite 400, Washington, DC 20001-8002.

FOR FURTHER INFORMATION CONTACT:

John M. Vittone, Deputy Chief Administrative Law Judge, Office of
Administrative Law Judges. Telephone: (202)633-0341.

SUPPLEMENTARY INFORMATION: In furtherance of its Alternative Dispute Resolution Interim Policy, 57 FR 7292 (1992), the Department is studying and implementing alternative dispute resolution methods appropriate to agency adjudications. This rule proposes use of settlement judges in certain proceedings before the Office of Administrative Law Judges. It is modeled on Recommendation 88-5 of the Administrative Conference of the United States, 1 CFR 305.88-5, and the settlement judge procedures of other agencies. See 18 CFR 385.603 (FERC); 24 CFR 104.620 (HUD); 29 CFR 2200.101 (OSHRC); 47 CFR 1.244 (FCC); 48 CFR 6302.30 (DOT). The procedure supplements rather than supplants settlement techniques traditionally used by administrative law judges. See, e.g., 29 CFR 18.8 (discussion of negotiation, compromise or settlement at prehearing conferences); 29 CFR 18.9 (deferment of hearing for settlement negotiations by the parties). It is expected that the Office of Administrative Law Judges would train a group of judges in mediation techniques. This group would be the pool from which settlement judges would be chosen.

The regulation permits appointment of a settlement judge by the Chief Administrative Law Judge upon motion by the parties or the presiding judge. Any party could veto use of the procedure. The settlement judge would be an active or retired administrative law judge other than the presiding judge. The settlement judge would direct settlement negotiations, assess the relative merits of the case for the parties, and consult with the parties either jointly or individually. The duration of the procedure would be limited because it is meant to quicken rather than delay dispute resolution, and because an exigent hearing motivates serious negotiation. The settlement judge would be prohibited from discussing any aspect of the case with the presiding judge. Any statements or conduct by the parties or the settlement judge at settlement negotiations would not be admissible in later proceedings before the Department.

Settlement judges would not be available in Black Lung or Longshore cases. The Benefits Review Board has found that the Black Lung Benefits Reform Act prohibits settlements. See Gerzarowski v. Lehigh Valley Anthracite, Inc., 12 BLR 1-62 (1988); Ladigan v. Central Industries, Inc., 7 BLR 1-192 (1984). Even without the prohibition, settlement judge procedures are not appropriate where entitlement to a benefit is an all-ornothing question, as in Black Lung cases, since a settlement judge could do nothing except convince one party to concede.

Longshore cases are often settled; but neither the Department nor the public would benefit from a formal settlement judge procedure. The Longshore bar is comfortable with techniques used by the Office of Administrative Law judges for many years, such as early preheating exchanges, calendar calls in which settlement possibilities are discussed; and opportunities for discussion immediately prior to a hearing. See Notice of Amendment to Interim ADR Policy, 57 FR 28701, 28702-3 (June 26, 1992). See also Joseph & Gilbert, Breaking the Settlement Ice: The Use of Settlement judges in Administrative Proceedings 2 Administrative L.J. 571, 594-595 (1989/1990) (indicating that if large numbers of cases are currently settled without the use of settlement judges, imposing the procedure is not advised).

Procedural Matters

This is not a major rule as defined by Executive Order 12291. The Agency Head has certified that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The rule does not contain any information collection or recordkeeping requirements as defined in the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

List of Subjects in 29 CFR Part 18

Administrative practice and procedure.

Accordingly, part 18 of title 29 of the Code of Federal Regulations is proposed to be amended as follows:

PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

1. The authority citation for part 18 is revised to read:

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 581; E.O. 12778; 57 Fed. Reg. 7292.

2. Section 18.9 is amended by revising the section heading and by adding new paragraph (e) to read as follows:

§ 18.9 Consent order or settlement; settlement judge procedure.

(e)(1) Settlement judge procedure; purpose. This paragraph establishes a voluntary process whereby the parties may use a settlement judge to mediate settlement negotiations. A settlement judge is an active or retired administrative law judge who convenes and presides over settlement conferences and negotiations, confers with the parties both jointly and individually, and seeks voluntary resolution of issues. Unlike a presiding judge, a settlement judge does not render a formal judgment or decision in the case; his or her role is solely to facilitate fair and equitable solutions and to provide an assessment of the relative merits of the respective positions of the parties.

(2) How initiated. A settlement judge may be appointed by the Chief Administrative Law Judge upon a request by a party or the presiding administrative law judge. The Chief Administrative Law Judge has sole discretion to decide whether to appoint a settlement judge, except that a settlement judge shall not be appointed where-

(i) A party objects to referral of the matter to a settlement judge;

[Federal Register / Vol. 58, No. 6 / Monday, January 11, 1993 / Proposed Rules 3823]

(ii) Such appointment is inconsistent with a statute, executive order, or regulation;

(iii) The proceeding arises pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., and associated acts such as the District of Columbia Workmen's Compensation Act, 36 DC Code 501 et seq.; or

(iv) The proceeding arises pursuant to Title IV of the Federal Mine Safety and Health Act, 30 U.S.C. 901 et seq., also known as the Black Lung Benefits Act.

(3) Selection of settlement judge. The selection of a settlement judge is at the sole discretion of the Chief
Administrative Law Judge, provided that the individual selected

(i) Is an active or retired administrative law judge, and

(ii) Is not the administrative law judge assigned to hear and decide the case.

The settlement judge shall not be appointed to hear and decide the case.

(4) Duration of proceeding. Unless the Chief Administrative Law Judge directs otherwise, settlement negotiations under this section shall not exceed thirty days from the date of appointment of the settlement judge, except that with the consent of the parties, the settlement judge may request an extension from the Chief Administrative Law judge. The negotiations will be terminated immediately if a party unambiguously indicates that it no longer wishes to participate, or if in the judgment of the settlement judge, further negotiations would be fruitless.

(5) General powers of the settlement judge. The settlement judge has the power to convene settlement conferences; to require that parties, or representatives of the parties having the authority to settle, participate in conferences; and to impose other reasonable requirements of the parties to expedite an amicable resolution of the case, provided that all such powers shall terminate immediately if negotiations are terminated pursuant to paragraph (e)(4).

(6) Suspension of discovery. Requests for suspension of discovery during the settlement negotiations shall be directed to the presiding administrative law judge who shall have sole discretion in granting or denying such requests.

(7) Settlement Conference. In general the settlement judge should communicate with the parties by telephone conference call. The settlement judge may, however, schedule a personal conference with the parties where:

(i) A conference may be scheduled in a place and on a day that the settlement judge is scheduled to preside in other proceedings;

(ii) The offices of the attorneys or other representatives of the parties, and the settlement judge, are in the same metropolitan area; or

(iii) The settlement judge, with the concurrence of the Chief Administrative Law Judge, determines that a personal meeting is necessary for a resolution of substantial issues, and represents a prudent use of resources.

(8) Confidentiality of settlement discussions. All discussions between the parties and the settlement judge shall be off-the-record. No evidence regarding statements or conduct in the proceedings under this section is admissible in the instant proceeding or any subsequent administrative proceeding, except by stipulation of the parties. Documents disclosed in the settlement process may not be used in litigation unless obtained through appropriate discovery or subpoena. The settlement judge shall not discuss any aspect of the case with any administrative law judge or other person, nor be subpoenaed or called as a witness in any hearing of the case or any subsequent administrative proceedings with respect to any statement or conduct during the settlement discussions.

(9) Contents of consent order or settlement agreement. Any agreement disposing of all or part of the proceeding shall be written and signed by all parties. Such agreement shall conform to the requirements of paragraph (b) of this section.

(10) Report of the settlement. The parties shall report to the presiding judge in writing within seven working days of the termination of negotiations. The report shall include a copy of the settlement agreement and/or proposed consent order.

(11) Review of agreement by presiding judge. A settlement agreement arrived at with the help of a settlement judge shall be treated by the presiding judge as would be any other settlement agreement.

(12) Non-reviewable decisions. Decisions concerning whether a settlement judge should be appointed, the selection of a particular settlement judge, or the termination of proceedings under this section, are not subject to review by Department officials.

Signed at Washington, DC this 5th day of January, 1993.

Lynn Martin,
Secretary of Labor.
[FR Doc. 93-536 Filed 1-8-93; 8:45 am)
BILLING CODE 4510-23-M