Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 27 April 2004
CASE NO.: 2003-ERA-15
In the Matter of:
MOSHE GAI,
Complainant,
v.
UNIVERSITY OF CONNECTICUT,
Respondent.
RECOMMENDED ORDER OF DISMISSAL
The above-captioned case arises under Section 5851 of the Energy Reorganization Act of 1974 ("ERA" or "Act"), 42 U.S.C. § 5851, and the implementing regulations found at 29 C.F.R. Part 24. On June 22, 2003, Moshe Gai ("Complainant") filed with the Office of Administrative Law Judges ("OALJ") a request for hearing in which he appealed the dismissal of his complaint against the University of Connecticut ("Respondent") by the Occupational Safety and Health Administration ("OSHA"). On June 27, 2003, I issued a notice of docketing and order temporarily staying these proceedings pending the filing by Respondent of either a request for injunctive and declaratory relief in federal district court or a motion to dismiss in this matter. On November 14, 2003, I issued an order granting the parties' joint request to extend the temporary stay in this case until January 12, 2004, in light of the parties' ongoing efforts to effectuate a global settlement of all disputes between them, including the present matter. By orders dated January 14 and February 27, 2004, I extended that stay based on the parties' representation that they had reached an agreement regarding a settlement and needed additional time to secure the signatures of all the parties involved in this and other proceedings and to exchange the agreed-upon consideration which is part of that settlement agreement. On April 16, 2004, the parties filed with OALJ an executed stipulation of dismissal of the present matter, along with a copy of the settlement agreement between Complainant and Respondent. Copies of these documents are attached.
In ERA cases, when parties file a request for dismissal, an ALJ must "review[] the settlement and mak[e] a recommendation of whether the settlement is fair, adequate and reasonable." Hoffman v. Fuel Economy Contracting, 87-ERA-33 at 4 (Sec'y Aug 4, 1989) (citing Fuchko and Yunker v. Georgia Power Co., 89-ERA-9 and 10, 1-2 (Sec'y Mar. 23, 1989)). I note that under 29 C.F.R. § 24.6 of the regulations implementing the ERA, an ALJ is authorized to issue only a recommended decision, which must be reviewed by the Secretary before it becomes final. See 42 U.S.C. § 5851(b)(2(A). In fact, the Secretary has repeatedly held that an ERA case cannot be dismissed on the basis of a settlement "unless the Secretary finds that the settlement is fair, adequate and reasonable." Hoffman, 87-ERA-33 at 3 (citing Fuchko
[Page 2]
and Yunker, 89-ERA-9 and 10, Secretary's Order to Submit Settlement Agreement issued March 23, 1989, at 2). Having reviewed the parties' stipulation and settlement agreement, I find the terms contained therein to be fair, adequate and reasonable. Therefore,
IT IS HEREBY RECOMMENDED, based on the foregoing, that the complaint filed by Moshe Gai in this matter be DISMISSED WITH PREJUDICE.
