Hoch v. Clark County Health District, 2000- CAA-12 (ALJ Dec. 27, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

DATE ISSUED: December 27, 2000

CASE NOS.: 2000-CAA-0012, 2000-CAA-0013, 2000-CAA-0017

In the Matter of:

DAVID F. HOCH,
    Complainant,

    v.

CLARK COUNTY HEALTH DISTRICT,
    Respondent.

   A hearing in these matters is currently set for January 10 through 12, 2001, in Las Vegas, Nevada, as noticed by a Notice of Hearing and Prehearing Order of November 13, 2000.

   On December 19, 2000, by facsimile (followed by a hard copy), the parties jointly filed a "Joint Stipulation and Request for Certification to the Administrative Review Board" (hereafter "Joint Stipulation.") In the Joint Stipulation, the parties request that I "certify the above-captioned cases to the Administrative Review Board ('ARB') for purposes of settlement." The Joint Stipulation further states:

    The parties are requesting this certification because they have reached a tentative, global settlement agreement, which would resolve all matters currently pending before this Court, as well as another case currently on appeal before the ARB, ARB Case No. 00-036. Certification of the matters before this Court to the ARB would allow the ARB to consider all pending matters in determining whether the global settlement agreement is fair, just and reasonable.

In support of the Joint Stipulation, no authority has been cited. It is unclear exactly what "certification" of a case (as opposed to a record) is supposed to mean.

   As an initial matter, I note that someone ostensibly acting on behalf of the Administrative Review Board has been discussing this issue by telephone with the Chief Judge's law clerk, apparently for the purpose of providing me with information concerning the appropriate action to take in the instant cases. While I have no doubt that this action has been taken for the purpose of being helpful, I do not find such informal action to be useful and I would request that any action by the ARB, or by the parties, be taken formally and in writing.

   My review of the pertinent statute and regulations has not revealed a basis for referring cases before me to the Administrative Review Board prior to my issuance of a ruling, nor have I found any provision for "certification" of a case. The Clean Air Act, 42 U.S.C. § 7622, charges the Secretary of Labor with the statutory responsibilities and does not address the roles of the administrative law judge or Administrative Review Board. See generally Beliveau v. U.S. Department of Labor, 170 F.3d 83 (1st Cir. 1999) (discussing responsibilities of Secretary under environmental statutes.) However, the implementing regulations appearing at 29 C.F.R. Part 24 provide that the administrative law judge may issue either a recommended decision and order dismissing a claim for cause or a recommended decision on the merits and that any party may seek review by the ARB of a recommended decision of the administrative law judge. The regulations do not, however, address referral of a case to the ARB prior to the issuance of a decision by the administrative law judge to whom the case has been assigned. Regulations relating to the Office of Administrative Law Judges appearing at 29 C.F.R. Part 18 address settlement (in section 18.9) and provide (in section 18.1(a)) that "[t]he Rules of Civil Procedure for th District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation." Administrative law judges have, in the past, relied upon Rule 41 of the Federal Rules of Civil Procedure to grant voluntary dismissal requests when there have been settlements (see, e.g., Sears v. Envirite Corp., 1995-CAA- 17 (ALJ Feb. 29, 1996; Sec'y, April 15, 1996); Glass v. U.S. Environmental Protection Agency, 1995-CAA-16 (ALJ July 9, 1996; ARB July 19, 1996). In Glass, the ARB approved the settlement and dismissed the complaint after it was dismissed and "remanded" by the administrative law judge to the ARB. (Although the term "remanded" was used, referral to the ARB was automatic at that time and it is unclear under what authority a case would be "remanded" to an appellate body.) It should be noted that now, in view of amendments to Part 24, a recommended decision by an administrative law judge becomes final unless appealed. There is no provision for certification of a "case" under Part 24 (or elsewhere), but 29 C.F.R. § 18.59 provides that "[u]pon timely receipt of either a notice or a petition, the Chief Administrative Law Judge shall promptly certify and file with the reviewing authorities, appellate body, or appropriate United States District Court, a full, true and correct copy of the entire record, including the transcript of proceedings." In the instant case, there is no formal record or transcript, as no hearing has been held and no decision has been issued.

   In view of the above, I will construe the request of the parties as a request for voluntary dismissal of the cases before me without prejudice to their reinstatement in the event that the parties are unable to reach either a "global settlement" or a settlement in the case pending before the ARB that would render the instant cases moot. Because appeal to the ARB is no longer automatic, it would appear that the parties will have to file a notice of appeal of my recommended dismissal order in the instant cases in the event that they specifically wish jurisdiction in the instant cases, in addition to the case already on appeal, to be assumed by the ARB. See generally 29 C.F.R. §§ 24.6, 24.7, 24.8. Accordingly,

   IT IS HEREBY ORDERED that the hearing in the above-captioned matters scheduled for January 10 to 12, 2001, in Las Vegas, Nevada is CANCELED; and

   IT IS HEREBY RECOMMENDED that the complaints in these matters be DISMISSED WITHOUT PREJUDICE.

      PAMELA LAKES WOOD
      Administrative Law Judge

Washington, D.C.

NOTICE: In accordance with Departmental regulations, as amended, this Recommended Order of Dismissal will automatically become the final order of the Secretary unless a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, DC 20210. Copies of the petition must also be served on the Chief Administrative Law Judge and on all parties. To be timely filed, a petition for review must be received by the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and Order of Dismissal. See 29 C.F.R. §§ 24.7, 24.8; 63 Fed. Reg. 6614 (February 9, 1998).