DATE:  September 7, 1994
CASE NO. 90-ERA-6


IN THE MATTER OF

WILLIAM DAVID SIMMONS,

          COMPLAINANT,

     v.

ARIZONA PUBLIC SERVICE CO.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                   ORDER APPROVING SETTLEMENT AGREEMENT 
                            AND DISMISSING CASE

     Before me for review is the Recommended Decision and Order
(R.D. and O.) issued January 9, 1990, by the Administrative Law
Judge (ALJ) in the captioned case, which arises under the
employee protection provisions of the Energy Reorganization Act
of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988), and the
Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i)
(1988).
     The parties in this case have submitted a Settlement
Agreement dated January 5, 1990, and the ALJ has recommended that
their agreement, as modified to comply with the requirements of
29 C.F.R. § 18.9(b) (1993), be approved.  In reviewing the
case materials, I note that the settlement covers matters other
than claims arising under the ERA and the SDWA.  For the reasons
set forth in Poulos v. Ambassador Fuel Oil Co., Case No.
86-CAA-1, Sec. Ord., Nov. 2, 1987, slip op. at 2, I have limited
my review of the parties' Settlement Agreement to determining
whether it constitutes a fair, adequate and reasonable settlement
of Complainant's allegations that Respondent violated the ERA and
the SDWA.  The Settlement Agreement has been reviewed, I find
that it constitutes a fair, adequate and reasonable settlement of

[PAGE 2]
Complainant's claims under the above statutes, Macktal v.
Secretary of Labor, 923 F.2d 1150, 1153-1154 (5th Cir. 1991);
Thompson v. U.S. Department of Labor, 885 F.2d 551, 556
(9th Cir. 1989), and I approve it.
     In so doing, I do not adopt the ALJ's recommendation that
the parties' Settlement Agreement be modified to comply with the
requirements of 29 C.F.R. § 18.9(b).  Part 18, 29 C.F.R.,
sets forth the procedural rules for hearings before Labor
Department ALJs.  Section 18.9 contemplates two means of
disposing of a case prior to hearing -- by (1) "a settlement" or
(2) "an agreement containing findings and an order disposing of
the whole or any part of the proceeding."  29 C.F.R. §
18.9(a).  Subsection (b) of the regulation applies only to "[a]ny
agreement containing consent findings and an order disposing of a
proceeding or any part thereof," which presumably constitutes a
variety of agreement under the second category listed in
subsection (a).  Under subsection (b), an "agreement containing
consent findings and an order disposing of a proceeding or any
part thereof" must provide:

          (1) That the order shall have the same force
          and effect as an order made after full
          hearing; (2) That the entire record on which
          any order may be based shall consist solely
          of the complaint, order of reference or
          notice of administrative determination (or
          amended notice, if one is filed) as
          appropriate, and the agreement; (3) A waiver
          of any further procedural steps before the
          administrative law judge; and (4) A waiver of
          any right to challenge or contest the
          validity of the order entered into in
          accordance with the agreement.
29 C.F.R. § 18.9(b).  The distinction between "a settlement"
and "an agreement containing findings" also appears at 29 C.F.R. 
§ 18.9(c), which specifies that the parties may "submit the
proposed agreement containing consent findings and an order for
consideration by the [ALJ]" or "notify the [ALJ] that the
parties have reached a full settlement and have agreed to
dismissal of the action" or "inform the [ALJ] that
agreement cannot be reached." 
     I note that, as a general proposition, "[a] consent judgment
is a compromise between two parties . . . fixed by negotiation 
. . . and formalized by the signature of a . . . judge." 
Adams v. Bell, 711 F.2d 161, 195 n.123 (D.C. Cir. 1983),
cert. denied, 465 U.S. 1021 (1984).  Consent judgments may
or may not admit wrongdoing or incorporate consent findings,
i.e., stipulated 
[PAGE 3]
factual findings upon which legal conclusions may be based. 
United States v. ITT Continental Baking Co., 420 U.S. 223,
235-239 (1975); In Re Halpern, 810 F.2d 1061, 1064-1065
(11th Cir. 1987).
     In Re Halpern offers an example of such consent
findings.  There, a bankruptcy court concluded that Halpern, the
debtor, was collaterally estopped from relitigating factual
findings contained in a State court consent judgment entered into
by the plaintiff banking institution and defendant Halpern.  (The
State court complaint alleged that Halpern had engaged in a check
kiting scheme to defraud the bank.  The issue in the bankruptcy
proceeding was whether Halpern's debt to the bank was
nondischargeable because it was incurred by fraud.)  The consent
judgment included the following findings:  "that Halpern made
material misrepresentations of fact to [the bank]; that Halpern
knew the statements were false at the time they were made; and
that Halpern made the misrepresentations with the intent to
induce reliance by [the bank] in extending cash, bank obligations
and deposit credits to Halpern."  810 F.2d at 1062.  In addition,
"Halpern admitted that this conduct was 'wilful, malicious, and
intentional and designed solely for the purpose of fraudulently
deceiving [the bank].'"  Id.
     An examination of the instant parties' January 5 Settlement
Agreement reveals a general absence of stipulated factual
findings to support legal conclusions relevant to the issues in
the case.  While agreeing to relinquish certain rights in order
to gain certain benefits, the parties expressly intended that
their settlement "shall not be construed as an admission of any
wrongdoing by any of the parties, nor shall it be construed as an
adjudication on the merits for or against either party." 
Agreement, paragraph 3.  The Settlement Agreement otherwise
provides that Complainant voluntarily withdraws his complaints
and agrees not to file further claims against Respondent under
the employee protection provisions of the ERA and the SDWA
regarding preceding events; that Complainant is not precluded
from reporting safety concerns to government agencies; that
Complainant agrees to make up all deficient training courses;
that Respondent agrees not to retaliate against Complainant
because he filed the instant discrimination proceeding; and that
Respondent will take certain actions and make certain payments to
compensate for Complainant's discharge and to reimburse
Complainant for costs and expenses, including attorney fees.  The
sole provision even remotely resembling a factual finding appears
in paragraph five where the parties "acknowledge" that
Complainant was rehired shortly after the Assistant Secretary for
Employment Standards issued his investigation findings.  This
stipulation, however, does not bear on the issue of Respondent's 
[PAGE 4]
liability.
     Since the parties' Settlement Agreement resembles a standard
"settlement" under the first category listed in 29 C.F.R. 
§ 18.9(a), rather than an "agreement containing consent
findings" subject to subsection (b) of the regulation,
modification of the agreement appears unnecessary.  Accordingly, the
parties' January 5, 1990, Settlement Agreement is approved, and the
complaint in this case is dismissed.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.