DATE: August 4, 1989
CASE NO. 87-ERA-33

IN THE MATTER OF

GARY M. HOFFMAN
    COMPLAINANT,

    v.

FUEL ECONOMY CONTRACTING,
    RESPONDENT,

    and

OMAHA PUBLIC POWER DISTRICT,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   On May 6, 1988, the Administrative Law Judge (ALJ) in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982), submitted a [Recommended] Order of Dismissal dismissing the case with prejudice under 29 C.F.R. §§ 18.39(b) and 24.5 (e) (4) (i) on the grounds that "the parties have amicably resolved their dispute." On August 10, 1988, the Secretary issued an Order to Submit Settlement Agreement so that the secretary could fulfill her obligation, derived from 42 U.S.C. § 5851(b)(2)(A), to determine whether the terns of the settlement are fair, adequate and reasonable. Respondents filed a Request for Reconsideration of Order to Submit Settlement Agreement and for Dismissal on September 7, 1988 (Request to Reconsider) Complainant responded to the Secretary's Order on September 13, 1988, stating that he did not submit a copy of the settlement because Respondents had filed their Request to Reconsider.

   Respondents asserted in their Request to Reconsider that Complainant has withdrawn and abandoned his complaint and request for a hearing and that therefore nothing is pending before the Secretary. in addition, Respondents argued that under 29 C.F.R. § 18.9(c) (2) (1982), the parties have entered into an agreement to dismiss the complaint and no review by the ALJ is required. Finally, Respondents argue that under Rule 41 of the Federal Rules of Civil Procedure, the parties have an unconditional right to enter into a stipulation dismissing the complaint. Respondents therefore requested that the Secretary reconsider the order to submit Settlement and enter an order dismissing this case. Respondents' request is denied for the reasons discussed below.

   I agree that in ordinary lawsuits brought by one private party against another private party, where the rights of other persons will not be affected, "settlement of the dispute is solely in the hands of the parties." United States v. City of Miami, 614 F.2d 1322, 1330 (5th Cir. 1980), aff'd in part and vacated and remanded in part on other grounds on rehearing en banc, 664 F.2d 435 (5th Cir. 1981). Thus, under Fed. R. Civ. P. 41 (a) (1) (ii), a stipulation signed by all parties who have appeared in the court action is effective automatically, without judicial involvement. Gardiner v. A.H. Robins Co., Inc., 747 F.2d 1180, 1189 (8th cir. 1984). The trial court judge must "'stand() indifferent,'" and not interfere with the parties' "unconditional right" to a dismissal by stipulation. Id. at 1189-1190 (citation omitted). See also Janus Films, Inc. v. Miller, 801 F.2d 578, 582, 585 (2d Cir. 1986); City of Miami, 614 F.2d at 1332.

   However, 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, for example in class actions, bankruptcy proceedings, shareholder derivative suits, or antitrust suits. The ERA requires the Secretary to issue an order resolving the case "unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation . . . " 42 U.S.C. § 5851(b) (2) (A).¹ The Secretary has held a number of times in ERA cases that the case cannot be dismissed on the basis of a settlement "unless the Secretary finds that the settlement is fair, adequate and reasonable." Fuchko and Yunker v. Georgia Power Co., Case Nos. 89-ERA-9, 10, Secretary's Order to Submit Settlement Agreement issued March 23, 1989, at 2, and cases cited therein. Although it is not necessary for the parties' settlement to be appended to an order approving a settlement and dismissing a case under the ERA, the Secretary has held that "it is error for the ALJ to dismiss a case without reviewing the settlement and making a recommendation of whether the settlement is fair, adequate and reasonable." Id. at 1-2.

   The Department of Labor does not simply provide a forum for private parties to litigate their private employment discrimination suits. Protected whistleblowing under the ERA may expose not just private harms but health and safety hazards to the public. The Secretary represents the public interest by assuring that settlements adequately protect whistleblowers. Cf. Virginia Electric and Power Co., 19 FERC para. 61,333 (Federal Energy Regulatory Commission 1982) ("[B]efore approving a settlement, regardless of whether it is contested or enjoys the unanimous support of the parties, the Commission is obliged to make an independent determination that the settlement is just and reasonable and in the public interest.")

   Accordingly, Respondents' request is DENIED. The parties are ordered to submit a copy of the settlement agreement to me within 30 days of receipt of this order. If a copy of the agreement has not been submitted at that time, this case will be remanded to the Administrative Law Judge for a hearing on the merits.

   SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

¹ The provisions of the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (1988), upon which Respondents rely in part, do not apply where they are inconsistent with specific statutes or regulations. 29 C.F.R. § 18.1(a).