DATE: July 21, 1998

CASE NO.: 97-JTP-15

In the Matter of

INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
    Complainant

    versus

UNITED STATES DEPARTMENT OF LABOR
    Respondent

   This case was called for hearing on June 30, 1998 in Indianapolis, Indiana. At that time, Michael White appeared on behalf of the complainant and represented that an administrative resolution of this matter had been reached. Additional time was requested in order to submit appropriate settlement documents. The record was left open until July 10, 1998 for that purpose. On July 8, 1998, I received a two sentence statement captioned Stipulation of Dismissal. The document simply notes that an amicable resolution of this matter has taken place and that the parties stipulate to a dismissal with prejudice.

   On July 13, 1998, Scott Glabman, who is counsel for respondent, submitted a written statement concerning the nature of the settlement document required to finally dispose of this case. Mr. Glabman suggests that the Department's procedural rule found at 29 C.F.R. § 18.9(c)(2) gives authority to the Administrative Law Judge to dismiss this case based strictly upon the stipulation of the parties. He also cites as authority Fed. R. Civ. P. 41(a)(1)(ii). Mr. Glabman writes that his office routinely disposes of settled cases under the Job Training Partnership Act by stipulation of dismissal of the parties.

   The Job Training Partnership Act provides for a hearing before an Administrative Law Judge and that the Judge's Decision constitutes the final action of the Secretary unless exceptions are filed. 29 U.S.C.A. § 1576(a)(b). The statute also authorizes the Secretary to prescribe rules and regulations for the administration of the program. 29 U.S.C.A. § 1579(a). The transmittal letter for the Grant Officer's Final Determination notes the applicability of 20 C.F.R. § 627.801 et seq. and/or 29 C.F.R. § 96.603(b). Those regulations define procedural rules to be followed in administering cases under the Act. The regulations specifically direct that the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges are applicable. The Rules are found at 29 C.F.R. Part 18.

   Section 18.9(a)(b)(c) and (d) provides guidance for the entry of Consent Findings and an appropriate Order disposing of the whole or a part of the proceeding. The Rules define the necessary content of any agreement. They also provide that the Consent Findings and Order are to be submitted to the Administrative Law Judge for consideration and review, and if the Administrative Law Judge is satisfied with the form and substance of the agreement, then he may accept the agreement by issuing a Decision based upon the agreed findings.

   I disagree with Mr. Glabman's interpretation of the procedural regulations. Twenty-nine C.F.R. § 18.9(c) deals with the subject of the "submission" of Consent Findings and Order for the consideration of the Administrative Law Judge. Paragraph 1 states exactly that. Paragraph 2 indicates that the Administrative Law Judge should be notified in the event that the parties have reached a full settlement and agreed to a dismissal of the action but that the Consent Findings and accompanying Order are not prepared, and therefore, additional time is necessary. Subpart (d) of this same paragraph provides for the "Disposition" of cases where the Consent Findings and accompanying Order are submitted in a timely fashion and the judge if satisfied with the form and substance, accepts the agreement. The whole tenor of § 18.9 is to provide for the settlement of cases with Consent Findings and accompanying Order. The Secretary has rejected Mr. Glabman's contention under similar circumstances in cases settled under the Energy Reorganization Act. Hoffman v. Fuel Economy Contracting, 87-ERA-33 (Sec. Aug. 4, 1989) In Hoffman, the Secretary dismissed a contention that the parties have a right to enter into a stipulation dismissing a complaint without review by the Department of Labor. Similarly, I believe the Administrative Law Judge is required to review the settlement of a Job Training Partnership Act case since that is what our procedural rules require.

   Mr. Glabman's reference to Fed. R. Civ. P. 41 is erroneous in that the Federal Rules are not applicable to this case since our own procedural rules provide guidelines for disposition. Regardless, by its terms, Rule 41 does not apply where "any statute of the United States" establishes other procedures for dismissal of actions pursuant to settlements. In our situation, the procedural rules to be followed were authorized by statute and thus take precedence to the exclusion of the Federal Rules. Attached to Mr. Glabman's comments was a copy of a Decision and Order of Dismissal which had been entered in another Job Training Partnership case. The entry of the Decision and Order was based upon dismissal under authority of Rule 41. However, the circumstance was different since in that case the complainant withdrew his complaint which distinguishes the disposition from a settled case and made Rule 41 applicable.

   The Stipulation of Dismissal presented by counsel for the Complainant and Respondent wholly fails to comply with the applicable rules. The public interest demands disclosure of the basis of the settlement of this case. No final decision will be entered prior to the receipt of appropriate Consent Findings which support the basis for the agreed settlement by the parties.

   In view of the above, IT IS ORDERED that the Stipulation of Dismissal received on July 8, 1998 is hereby rejected. The parties will have until August 21, 1998 within which to submit Consent Findings consistent with the demands of the Secretary's regulations.

       Rudolf L. Jansen
       Administrative Law Judge