1 On April 17, 1996, a
Secretary's Order was signed delegating jurisdiction to issue final agency decisions under the
executive order and regulations involved in this case to the newly created Administrative Review
Board. 61 Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96 contains a comprehensive list
of the statutes, executive order, and regulations under which the Administrative Review Board
now
issues final agency decisions. Final procedural revisions to the regulations implementing this
reorganization were also promulgated on that date. 61 Fed. Reg. 19982.
2 Typed
incorrectly in the R. D. and O. at 2 as "41 C.F.R. § 6-30.13."
3 The Consent
Decree itself states that it "shall become final and effective when it has been signed by the
Administrative Law Judge," id. at 5, and "shall constitute the final
Administrative Order in this case," id. at 25.
4 We deny
OFCCP's motion to strike the Union's reply brief to OFCCP's and Cambridge's responses to the
Union's exceptions. OFCCP did not contend that the Union's reply brief was unfair or prejudicial
to OFCCP's interests. Review of this brief was necessary to ensure that the Board had a full
understanding of this case. See Billings v. TVA, Case No. 91-ERA-12, Sec. Ord. of
Rem., Apr. 9, 1992, slip op. at 4, n.5.
5OFCCP
v. Carolina Freight Carriers Corp., Case No. 93-OFC-15, Sec. Ord. Approv. Cons. Decr.,
Mar. 16, 1995, stated:
Since the ALJ's document is captioned as a recommended decision [under
Executive Order No. 11,246, as amended], I have treated it accordingly to ensure finality
and eliminate ambiguity. However, both paragraph 33 of the Revised Consent Decree and
the concluding paragraph of the ALJ's R. D. state that the Revised Consent Decree
constitutes the final administrative order in this case, and paragraph 3 of the Revised
Consent Decree states that it is negotiated and executed pursuant to 41 C.F.R. §
60-30.13. Under 41 C.F.R. § 60-30.13(d), an ALJ's decision approving such a consent
decree constitutes the final administrative order in the proceeding and no further action by
the Secretary is necessary to make the order final and effective.
Id., slip op. at 2, n.1. OFCCP v. USAIR, Inc., Case No. 88-OFC-17, Sec.
Ord. Approv. Cons. Decr., Jun. 30, 1992, adopted an ALJ's recommended order
approving a consent decree under Executive Order No. 11,246 and approved the decree.
However, the Secretary's decision in USAIR did not address her jurisdiction to review
the ALJ's order. Id., slip op. at 2.
1 For contested
consent decrees, seeLocal No. 93, Firefighters v. City of Cleveland, 478
U.S. 501, 528-30 (1986); Stotts v. Memphis Fire Dept., 679 F.2d 541, 552 (6th Cir.
1982), rev'don other grounds sub nom Firefighters Local Union No. 1784 v.
Stotts, 467 U.S. 561 (1984); Freeman v. City of Philadelphia, 751 F.Supp. 509,
516-19 (E.D.Pa. 1990), aff'd, 947 F.2d 935 (3rd Cir. 1991) (column dec.), cert
denied, 503 U.S. 984 (1992); Kirkland v. N.Y. State Dept. of Correctional
Services, 711 F.2d 1117, 1126 (2nd Cir. 1983), cert. denied, 465 U.S. 1005
(1984); OFCCP v. Carolina Freight Carriers Corp., Case No. 93-OFC-15, Rec. Dec.
Rem. Cons. Decr., Oct. 20, 1993, Rec. Dec. Approv. [Rev.] Cons. Decr., Apr. 7, 1994,
aff'd, Sec. Ord. Approv. [Rev.] Cons. Decr., Mar. 16, 1995; OFCCP v.
USAIR, Case No. 88-OFC-17, Rec. Ord. Approv. Cons. Decr., Mar. 26, 1992,
aff'd, Sec. Ord. Approv. Cons. Decr., Jun. 30, 1992. Significantly, the ALJ did not
adhere to this thirty-day limitation. The Consent Decree was received on March 7, 1995, and
the
ALJ's decision was issued on December 18, 1995.
2See
Edwards v. City of Houston, 37 F.3d 1097, 1102, 1106 (5th Cir. 1994); United Black
Firefighters Assn. v. City Akron, 976 F.2d 999, 1003 (6th Cir. 1992); Williams v. City
of New Orleans, 729 F.2d 1554, 1556 (5th Cir. 1984); Stotts v. Memphis Fire
Dept.., 679 F.2d 541, 552 (6th Cir. 1982), rev'don other grounds sub
nom Firefighters Local 1784 v. Stotts, 467 U.S. 561 (1984); Moore v. City San
Jose, 615 F.2d 1265, 1269 (9th Cir. 1980); EEOC v. McDonnell Douglas
Corp., 894 F.Supp. 1329, 1331 (E.D.Mo. 1995); Shuford v. Alabama State Bd. of
Education, 846 F.Supp. 1511, 1517 (M.D.Ala. 1994); EEOC v. Pan American World
Airways, Inc., 622 F.Supp. 633, 634-35 (N.D.Cal. 1985), appeal dismissed,
796 F.2d 314 (9th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); OFCCP v.
Carolina Freight Carriers Corp., Case No. 93-OFC-15, Rec. Dec. Rem. Cons. Decr., Oct.
20, 1993, at 1-2, Rec. Dec. Approv. [Rev.] Cons. Decr., Apr. 7, 1994, at 3; OFCCP v.
USAIR, Inc., Case No. 88-OFC-17, Rec. Ord. Approv. Cons. Decr., Mar. 26, 1992, at 4.