On April 14, 1987, the Administrative Law Judge (ALJ) in
this case arising under the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§ 5851 (1982), issued a [Recommended] Order of Dismissal With
Prejudice pursuant to 29 C.F.R. § 18.39(b) (1988) on the basis
that "the parties have agreed to a settlement of the claims
herein." On October 28, 1987, Secretary Brock issued an Order to
submit Settlement Agreement so that he could fulfill his
obligation, derived from 42 U.S.C. § 5851 (b) (2) (A), to determine
whether the terms of the settlement are fair, adequate and
reasonable. Respondent filed a Motion for Reconsideration and for
Dismissal (Motion to Reconsider). Respondent represented that
Complainant did not oppose Respondent's motion. Complaint has
not responded directly to the order to Submit.
Respondent asserted in its Motion to Reconsider that there
is nothing in the regulations implementing the ERA, 29 C.F.R.
Part 24, which prohibits dismissal by settlement or which
requires such settlements to be submitted to the Secretary for
review. In addition, Respondent argued that under 29 C.F.R.
§ 18.9 (c) (2) (1988), the parties have entered into an agreement
to dismiss the complaint which is final upon issuance of an
by the ALJ. Finally, Respondent argued that under Rule 41 of
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the Federal Rules of Civil Procedure, the parties have an
unconditional right to enter into a stipulation dismissing the
complaint. Respondent therefore requested that the Secretary
reconsider the Order to Submit Settlement, withdraw it, and that
this case be closed. Respondent's request is denied for the
reasons discussed below.
I agree that in ordinary lawsuits brought by one private
party against another private party, where the rights of other
persons will not be affected, "settlement of the dispute is
solely in the hands of the parties." United States v. City of
Miami, 614 F.2d 1322, 1330 (5th Cir. 1980), aff'd in part and
vacated and remanded in part on other grounds on rehearing en
banc, 664 F.2d 435 (5th Cir. 1981). Thus, under Fed. R. Civ. P.
41(a)(1)(ii). a stipulation signed by all parties who have
appeared in the court action is effective automatically, without
judicial involvement. Gardiner v. A.H. Robins Co., Inc., 747
F.2d 1180, 1189 (8th Cir. 1984). The trial court judge must
"'stand[] indifferent,'" and not interfere with the parties'
"unconditional right" to a dismissal by stipulation. Id. at
1189-1190 (citation omitted). See alsoJanus Films, Inc. v.
Miller, 801 F.2d 578, 582, 585 (2d Cir. 1986); City of Miami,
614 F.2d at 1332.
1 The provisions of the Rules of
Practice and Procedure for
Administrative Hearings before the Office of Administrative Law
Judges, 29 C.F.R. Part 18 (1988), upon which Respondent relies
in part, do not apply where they are inconsistent with specific
statutes or regulations. 29 C.F.R. § 18.1(a).