In the Matter of                           Date Issued: Aug. 7, 1995
                                   
WALTER C. STACK,                     Case No. 92-STA-21
                                       
     Complainant,                  
                                       vs.                                                                      
PRESTON TRUCKING                
COMPANY, INC.,                   
                                   
     Respondent.                        
                                  
ORDER APPROVING SETTLEMENT AGREEMENT


  On July 6, 1990, complainant, Walter C. Stack, filed a complaint with the
Secretary of Labor alleging that the respondent, Preston Trucking Company, Inc.,
terminated his employment on January 17, 1990, in violation of Section 405 of the
Surface Transportation Assistance Act of 1982 (hereinafter "the STAA"), 49 U.S.C. 2305. 
Specifically, complainant alleged that respondent terminated him in reprisal for complaints
he had filed with the U.S. Department of Labor and the U.S. Department of
Transportation between 1981 and 1986.  Following an investigation of this matter, the
Secretary of Labor (hereinafter "the Secretary") determined on April 9, 1992, that
respondent's termination did not violate the STAA.  (Administrative Law Judge Exhibit
1) (hereinafter "ALJ __").  Although complainant appealed this determination, the parties
subsequently submitted a proposed settlement agreement, accompanied by a joint motion
to dismiss this case with prejudice, before it could be heard by an Administrative Law
Judge.  (ALJ 6).
     On August 17, 1992, Administrative Law Judge Glenn Lawrence issued an order
recommending that the proposed settlement be approved and that the matter be dismissed
with prejudice.  (ALJ 8).[1]   On November 25, 1992, the Secretary ordered both parties
to show cause why a provision contained in the proposed settlement should not be found
void as against public policy and severed from the settlement agreement.[2]   (ALJ 9). 
Neither party responded.  On March 25, 1995, the Secretary issued an order disapproving
the entire settlement and remanding the case to the Administrative Law Judge on grounds
that the provision in question was contrary to public policy.  (ALJ 10).
     On March 29, 1995, Administrative Law Judge John Vittone ordered the parties
to file statements of position regarding whether a new or modified settlement could be
agreed upon and submitted to an Administrative Law Judge for approval; whether this
matter should be scheduled for a hearing on the merits; or whether some other action
should be taken.  (ALJ 11).  In a response filed on April 6, 1995, respondent requested 
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that the offending provision be struck from the agreement and that the agreement be
approved and enforced as amended.  (ALJ 12).  When complainant failed to respond to
the order, Judge Vittone issued an order on April 25, 1995, in which he directed
complainant to submit a position statement regarding respondent's suggestion by May 24,
1995.  The order stated that if no response was received by that date, it would be assumed
that respondent's suggestion was satisfactory and the modified settlement agreement would
be deemed fair, adequate and reasonable, and would be approved.  (ALJ 14).
     On May 9, 1995, this office received a pro se, ex parte letter from
the complainant.  In the letter, which was vaguely worded, complainant appears to object
to approval of the settlement agreement on grounds that respondent, with the assistance
of a data base company, had spread misleading information about complainant's criminal
record in the state of Pennsylvania in an effort to blacklist him from future employment. 
Complainant also states that he entered into the settlement agreement under duress, insofar
as he was unemployed, his wife was ill with cancer, and he was "broke and being
hounded by collection agencies with bogus accidents [sic] reports and the false
information on my record about the assault charge."  (ALJ 15).
     This matter has been referred to the undersigned Administrative Law Judge for
disposition upon the Secretary's remand.  At the outset, I find that the scope of my review
in this case, as determined by the Secretary's orders of November 25, 1992, and March
25, 1995, is limited to determining whether the proposed settlement agreement, to which
both parties have consented, is fair, adequate and reasonable.  Consistent with this finding,
I conclude that I am not required to adjudicate the merits of the underlying claim, absent
a finding that the proposed settlement agreement is not fair, adequate and reasonable.[3] 
     I also note that the regulations applicable to these proceedings provide that a case
may be settled at any time after the filing of objections to the Secretary's initial findings
if the parties agree to a settlement and such settlement is approved by the Secretary or the
Administrative Law Judge.  29 C.F.R. § 1978.111 (d)(2).  Neither the regulations
nor the governing statute grant either party the right to a hearing to examine the fairness
of a proposed settlement agreement, even where, as here, an Administrative Law Judge's
initial approval of the agreement has been disapproved by the Secretary.  The parties have
had ample opportunity, pursuant to the Secretary's November 25, 1992, order, and Judge
Vittone's March 29, 1995, and April 25, 1995, orders, to submit position statements
regarding whether the settlement agreement, as amended by the Secretary, should be
approved.  On these grounds, I conclude that I am not required to conduct a hearing
regarding the fairness of the agreement, and I shall evaluate the agreement on the basis
of the record before me.
     Judge Vittone's April 25, 1995, order explicitly directed complainant to submit a
position statement on whether he objected to respondent's position that the settlement
agreement be approved and enforced as amended.  Complainant's May 9, 1995, letter is
not responsive to this directive, but instead apparently sets forth new allegations that the
respondent violated the Act[4] , and claims that the complainant signed the agreement
under duress.  Given that the complainant has failed to object to respondent's position, I
conclude, consistent with Judge Vittone's order, that complainant does not object to the 
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respondent's suggestion that the proposed settlement agreement may be adopted upon the
striking of the offensive provision.
     Having resolved this issue, I am left with complainant's heretofore unaddressed
allegations that the settlement agreement is void on grounds that he entered the agreement
under duress.  As noted, complainant alleges that at the time he agreed to the settlement,
he was financially insolvent, hounded by creditors, unemployed, and his wife was ill with
cancer.  It is well established, however, that a settlement agreement is not voidable on
grounds of economic or other duress in the absence of a wrongful act by the opposing
party to create and take advantage of an untenable situation.  See, e.g., McGavock
v. Elbar, Inc., 86 STA-5 (ALJ, May 5, 1988), aff'd, (Sec'y, August 29, 1988). 
In the instant case, the record reveals that, rather than take advantage of complainant's
unfortunate situation, the respondent agreed to settle this claim even after the Secretary
had found that respondent's discharge did not violate the STAA, but rather was justified
on grounds that complainant had committed an assault while on duty and had failed to
divulge his criminal record prior to being hired by the respondent.  In the absence of any
allegation that the respondent created or took advantage of complainant's circumstances,
complainant's reservations regarding the agreement that he himself has already signed
would not be sufficient grounds upon which to reject this agreement.  See, e.g.,
Champlin v. Florilli Corp., 91-STA-7 (Sec'y, May 20, 1992) (rejecting
complainant's post hoc allegation that he signed settlement agreement under duress
brought on by fear of exposure of his past criminal record, on grounds that complainant
signed the agreement, accepted consideration for it, and remained silent despite subsequent
orders issued by an ALJ questioning the fairness of the agreement); Tankersley v.
Triple Crown Services, Inc., 92-STA-8 (Sec'y, October 17, 1994) (rejecting challenge
of settlement agreement where "[a]t most, complainant appears to have had second
thoughts about the level of his recovery, which does not justify setting aside an otherwise
valid agreement").  Accordingly, I find that these allegations are without merit, and I
conclude that the settlement agreement, as amended by the Secretary's order of November
25, 1992, should be approved as fair, adequate and reasonable.
     On the basis of the foregoing, it is hereby ORDERED that the settlement
agreement entered into by the parties on July 22, 1992, and as amended by the Secretary
on November 25, 1992, is APPROVED, and that this matter be dismissed with
prejudice.




________________________________
CHRISTINE M. MOORE
Administrative Law Judge




[ENDNOTES]

[1] 
 As Judge Vittone noted in his March 29, 1995, order, it seems clear that Judge Lawrence should
have issued a final order, rather than a "recommended" order, to approve the settlement and
dismiss the case.  See 29 C.F.R. § 1978.111 (d)(2) (stating that the case may be settled
upon approval of the agreement by the Secretary of Labor or the Administrative Law
Judge); Thompson v. G & W Transportation Co., Inc., 90-STA-25 (Sec'y, October 24,
1990) (holding that the ALJ erred in issuing a recommended order of dismissal, but rather should
have reviewed the settlement and issued a final order of dismissal).  In practice, however, it is not
unusual for the Secretary to review an Administrative Law Judge's approval of a settlement
agreement.  See, e.g., Tankersly v. Triple Crown Services Inc., 92-STA-8 (Sec'y, October
17, 1994), slip op. at 2 n.1 (noting that "[o]rdinarily, under the applicable regulations, an ALJ
may issue a final order of dismissal where the parties agree to an adjudicatory settlement," but
accepting jurisdiction and reviewing the ALJ's order "[i]n view of the circumstances and
disagreement here"); McGavock v. Elbar, Inc., 86-STA-5 (Sec'y, January 25,
1988) (holding that the Secretary has the authority to reopen a case for purpose of considering
whether a settlement agreement is proper).

[2]  The text of this provision stated:

          Complainant agrees not to testify or serve as a consultant in any
          proceeding held under the auspices of any city, county, state or
          federal agency or court relating to an allegation of discrimination
          involving Preston [Trucking Company Inc.], its parent or
          affiliates, or their directors, officers, employees or agents, except
          as required by law.

[3] 
 I reach this conclusion notwithstanding complainant's apparent attempt, in his May 9, 1995
letter, to withdraw his consent from this agreement.  See, e.g., Macktal v. Secretary of
Labor, 923 F.2d 1150, 1157 (5th Cir. 1991) (holding that, where the governing statute does
not explicitly require a second affirmation of consent at the time of the Secretary's approval, the
Secretary may bind complainant and the respondent to their initial consent to a proposed
settlement agreement until she has time to approve or reject the agreement ).

[4]  As noted, complainant states in the letter that an unspecified Pennsylvania assault charge
remains on his record "despite numerous protests" by the complainant, and implies that the
respondent has blacklisted him even after he agreed to settle the case.  These allegations, which I
shall not address further in this order, are not relevant to the fairness or reasonableness of the
settlement agreement, but would seem instead to constitute the basis for a new, independent
claim under the Act.  To the extent that complainant alleges that respondent has violated the
settlement agreement, these allegations would be unfounded insofar as this agreement has yet to
be approved as final and enforceable.