Marcus v. U.S. Environmental Protection Agency, 1996-CAA-3 and 7 (ALJ Aug. 24, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-5330 (202) 565-5325 (FAX)

DATE ISSUED: August 24, 1999

CASE NOS.: 1996-CAA-03
    1996-CAA-07

In the Matter of:

WILLIAM MARCUS,
    Complainant,

   v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
   Respondent.

Appearances:

Stephen M. Kohn, Esq., David K. Colapinto, Esq.
Kohn, Kohn & Colapinto, P.C., Washington, DC
    For Complainant

Bridget Shea, Esq., Joanne M. Hogan, Esq., Melissa Marquez, Esq.
Office of General Counsel, Environmental Protection Agency, Washington, DC
    For Respondent

Before: PAMELA LAKES WOOD
    Administrative Law Judge

   A Recommended Decision and Order was issued in the above- captioned matter on December 15, 1998, in which, inter alia, I ordered the Respondent Environmental Protection Agency to pay to Complainant compensatory damages, as well as attorney fees and costs in an amount to be determined. With respect

to affirmative relief requested, I further ordered:

The parties shall enter into a consent agreement providing for affirmative relief within sixty (60) days of the date of issuance of this decision and order, consistent with the above discussion, provided, that if the parties are unable to reach an agreement, each party shall submit a proposed Order addressing the same matters.

Thereafter, Respondent Environmental Protection Agency appealed my recommended decision and order to the Administrative Review Board.

   At the request of the parties, a settlement judge was appointed and, following settlement proceedings presided over by Judge Michael Lesniak, the parties reached a settlement. See 29 C.F.R. § 18.9(e). The parties have requested that I enter a Recommended Decision and Order approving the settlement and dismissing the claims, by a Joint Motion to Approve Settlement and Dismiss Complaint dated August 17, 1999, with an annexed Settlement Agreement signed by Dr. Marcus, counsel for both parties, and Judge Lesniak. A Settlement Agreement for Attorneys' Fees and Costs signed by the same persons is also attached. The Settlement Agreement provides that Complainant will withdraw his complaints in the above-captioned matters with prejudice and that the Respondent will withdraw its request for appeal before the Administrative Review Board upon approval of the Settlement Agreement. Copies of the Settlement Agreement and the Settlement Agreement for Attorneys' Fees and Costs are annexed hereto and incorporated by reference herein.

   Although the extent of my authority to approve the settlement is not entirely clear (as I retained jurisdiction only over the affirmative relief and attorneys' fees/costs issues, and as the Settlement Agreement effects a settlement of issues which I found to be outside of the jurisdiction of the Office of Administrative Law Judges), I will nevertheless approve the settlement to the extent of my authority to do so.

   I have considered the Settlement Agreement and I find that it constitutes a fair, adequate, and reasonable disposition of the above-captioned matters, and I also find that the Settlement Agreement is not contrary to the public interest.

   I further find that the Settlement Agreement for Attorneys' Fees and Costs is fair, adequate, and reasonable, as well as not contrary to the public interest, given the complexity of issues and the high degree of skill with which Complainant's attorneys have handled these cases. While the paragraph (number 5) of the Settlement Agreement for Attorneys' Fees and Costs relating to Complainant's acknowledgment that he is voluntarily entering into and signing the agreement is missing the last few words, it is clear from the context what the paragraph means and I do not find this omission to be a basis for disapproving the agreement. Accordingly,

   IT IS HEREBY RECOMMENDED that the annexed Settlement Agreement and Settlement Agreement for Attorneys' Fees and Costs be APPROVED and that the complaints of Dr. William L. Marcus in case numbers 1996-CAA-3 and 1996-CAA-7 be DISMISSED WITH PREJUDICE.

       PAMELA LAKES WOOD
       Administrative Law Judge

Washington, D.C.

NOTICE: In accordance with Departmental regulations, as amended January 30, 1998, this Recommended Decision and Order will 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, 200 Constitution Avenue, NW, Washington, DC 20210. Copies of the petition must also be served on the Assistant Secretary, Occupational Safety and Health Administration, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, D.C. 20210. To be timely filed, a petition for review must be filed within ten (10) business days of the date of this Recommended Decision and Order. See 29 C.F.R. §§ 24.7, 24.8, 24.9; 63 Fed. Reg. 6614 (February 9, 1998).