The parties have submitted to me a Memorandum of
Understanding and Agreement together with a Joint Motion for
Dismissal and a draft Recommended Order of Dismissal (annexed
hereto and incorporated by reference herein.) The Memorandum of
Understanding and Agreement would result in the settlement of the
instant case; Case No. 95-ERA-34, a case involving the same
parties which is also pending before the undersigned
administrative law judge; and a complaint docketed in the United
States District Court for the Eastern District of Tennessee as
Civil Action No. 3-87-843, relating to the enforcement of an
August 15, 1986 settlement agreement pertaining to a prior case
involving the same parties before the Office of Administrative
Law Judges, Case No. 86-ERA-16. Although I agree that the
instant case should be dismissed, I have also considered the
merits of the underlying settlement and recommend that the
settlement be approved as resolving both Case No. 95-ERA-34 and
the instant case.
The parties have requested that I recommend to the Secretary
(acting through the Administrative Review Board) that this case
be dismissed. However, a stipulated dismissal many not be
applicable to the instant case in view of the settlement of the
case by the parties, even though the settlement provides that it
will take effect in District Court even if it is not approved by
the Labor Department. Compare Gergans v. Edward Hines,
Jr., Hospital, 94-ERA-26 (Sec'y Dec. 7, 1994)
(disposition of complaints under Rule 41 can only be effected by
final order of the Secretary) with Hoffman v. Fuel Economy
Contracting, 87-ERA-33 (Sec'y Aug. 4, 1989) (finding
unconditional right to dismissal by stipulation under Rule 41
inapplicable to ERA proceedings when a settlement is involved,
based upon 42 U.S.C. § 5851(b)(2)(A)). Recent authority by
the Administrative Review Board has made clear that before a
matter may be dismissed, an ALJ must determine whether the dollar
amount received by the Complainant is fair, adequate and
reasonable. See Klock v. Tennessee Valley
Authority, 95-ERA-20 (ARB May 30, 1996).
This case has a lengthy and convoluted procedural history,
which need not be fully recounted here. By Decision and Order of
January 24, 1994, the Secretary of Labor dismissed the
Complainant's complaint without prejudice and gave the
Complainant a period of one year to file a motion to reopen,
provided certain criteria related to the Complainant's
psychological competence to litigate the case were satisfied. A
motion to reopen was filed and by Remand Order of May 3, 1995,
the Secretary remanded this case to the Deputy Chief
Administrative Law Judge for further proceedings, including a
hearing and a recommended decision on the merits, and directed
that the scheduling of the case be handled in the same manner as
any other ERA case.
The case was then assigned to the undersigned administrative
law judge, and a Notice and Prehearing Order was issued on May
25, 1995, to which the parties jointly responded. Thereafter,
the case was noticed for hearing commencing on November 15, 1995,
to continue until completed. On August 17, 1995, the Respondent
filed a Motion for Summary Judgment, and the Complainant moved to
continue the hearing so that additional discovery could be
conducted and also sought additional time to respond to the
Respondent's Motion. A conference call was held on September 27,
1995, the hearing was continued, the Complainant was granted
additional time to respond to Respondent's Motion, and the
parties were advised to propose a scheduling order. The parties
were unable to reach an agreement on scheduling due to the
federal case set to begin on January 18, 1996. Another telephone
conference was held on February 28, 1996, following which a
scheduling order was issued, which required the Complainant to
respond to the Respondent's motion by May 1, 1996 and which
advised that the trial would be held some time in July.
In a conference call of April 25, 1996, the parties provided
the undersigned administrative law judge with a status report
concerning the pending litigation between the Complainant and the
Respondent and asked for a stay of proceedings so that settlement
negotiations in the instant case could be completed. The parties
indicated that the district court trial had been conducted.
Because of an apparent overlap, I asked the parties to confer and
advise what issues are currently pending before me and what
issues were before the district court. I requested that the
parties try to work out all pending issues in both cases before
me (Case No. 95-ERA-34 and the instant case),1 but that if they were
unable to do so, they should define the issues prior to trial. I
commend the parties for having amicably resolved the pending
issues in all three matters.
