(R.D. and O.) of the
Administrative Law Judge (ALJ) in this case arising under the
Water Pollution Control Act (WPCA), 33 U.S.C. §1367 (1988), and
the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1988).
Previously, I remanded this case to the ALJ for further
consideration of the merits of allegations raised by Complainant
in an amended complaint. Jenkins v. City of Portland, Case No.
88-SWD-4, Sec. Dec. and Order of Remand, May 22, 1991. By letter
dated July 2, 1991, Respondent's counsel notified the ALJ that
the parties had reached a settlement, submitted a copy of the
agreement for review and requested an order dismissing the case
with prejudice. Finding the agreement reasonable, the ALJ
dismissed the complaint with prejudice.
Preliminarily, I note that the terms of the Settlement Hold
Harmless Agreement and Release in Full of All Claims encompass
matters arising under various laws, other than the WPCA and SWDA.
See Settlement at 1. Because my authority over settlement
agreements is limited to matters arising under statutes within my
jurisdiction, I have limited my review of the agreement to
determining whether its terms are a fair, adequate and reasonable
[Page 2]
settlement of Complainant's allegations that Respondent violated
the WPCA and SWDA. See Poulos v. Ambassador Fuel Oil Co., Inc.,
Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2.
Except as indicated below, I find the terms of the settlement to
be fair, adequate and reasonable.
On review, the settlement agreement and the record raise
several questions that require clarification by the parties
before I can approve this agreement and dismiss the complaint.
The settlement agreement is signed and dated June 26, 1991, by
Liana Colombo (not otherwise identified) on behalf of
Respondent's counsel and by Respondent's personnel director.
Complainant also signed the agreement, but the date of his
signature is illegible. Further, although Respondent's counsel
indicated in the July 2 letter that Peter O. Hansen was
Complainant's new counsel, Mr. Hansen did not sign the settlement
agreement, and the R.D. and O. dismissing the case with prejudice
was not served him. David Hooten, who signed the agreement on
behalf of Complainant's attorneys, is not identified in the
record, no address is provided for him, his signature is undated
and the R.D. and O. was not served on him either. In addition,
the record is devoid of notification from Complainant, or from
any counsel on his behalf, indicating the status of his
representation by counsel, or concerning the settlement agreement
and Respondent's request for dismissal of the complaint.
Finally, although Respondent has requested a dismissal "with
prejudice," the terms of the agreement do not indicate the
parties' intent to have the case dismissed "with prejudice."
In light of the decision in Thompson v. U.S. Department of Labor,
885 F.2d 551 (9th Cir. 1989), I deem it appropriate that the
parties clarify the mode of dismissal sought.
Accordingly, the parties shall promptly clarify the matters
questioned herein, so that I may proceed with the disposition of
this settlement. See generally Macktal v. Secretary of Labor,
923 F.2d 1150 (5th Cir. 1991). Specifically, Complainant's
counsel and the person signing on behalf of Respondent, shall be
fully identified; the date of Complainant's signature shall be
confirmed; and whether both parties seek dismissal "with
prejudice" shall be clarified. The parties shall submit their
filing(s) in response to this order within 15 days of receipt of
this order.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
1 The ALJ's decision is a
recommended decision forwarded to the
Secretary for review and issuance of a final order. See 29
C.F.R. § 24.6(a) (1990).
