ORDER DENYING MOTION FOR RECONSIDERATION AND
TO DISMISS, AND TO SUBMIT SETTLEMENT AGREEMENT
OR OTHER EXPLANATION FOR JOINT MOTION BELOW
By order of January 15, 1988, the parties were informed
that, if they desired to resolve this matter by mutual agreement,
they should submit an explanation of the basis for their joint
motion for withdrawal, and, if the basis of that notion were an
agreement between the parties, they should submit a copy of the
settlement agreement. Sec. Order To Submit Information (Order to
Submit), January 15, 1988. Respondent moved for reconsideration
of this order and for dismissal of the complaint on the ground
that, under Rule 41(a)(1) of the Federal Rules of Civil
[Page 2]
Procedure, the parties to this proceeding have an unconditional
right to a final order of dismissal based upon the withdrawal of
the complaint by Complainant and Respondent's withdrawal of its
request for hearing through the Joint Motion to Dismiss.
Respondent's Motion for Reconsideration of Secretary's Order to
Submit Information and for Dismissal of Proceedings (Respondent's
Motion) at 3.
Specifically, Respondent argues that, because the
regulations at 29 C.F.R. Part 24 (1989), which implement the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§ 5851 (1982), and under which this case arises, do not address
the withdrawal of complaints, Rule 41(a)(1) of the Federal Rules
of Civil Procedure applies. In Respondent's view, therefore, the
ALJ properly ordered dismissal of the case based solely on the
joint motion of withdrawal. Respondent further argues that,
because section 24.6(a) of Part 29, which authorizes review of an
ALJ's decision by the Secretary, refers only to recommended
decisions issued after the termination of the proceeding at which
evidence was submitted, the ALJ'S Order of Dismissal is not
reviewable, there having been no evidentiary hearing on the
complaint in this case. Finally, Respondent argues that,
"[s]ince the Secretary is not a party to resolution of this
dispute, Respondent believes that the Secretary has no statutory
obligation to determine the fairness, adequacy and reasonableness
for the parties filing of the Joint Motion to Dismiss."
Respondent's Motion at 8.
Although Rule 41(a) is generally applicable to the voluntary
withdrawal of ERA complaints, see Nolder v. Kaiser Engineers,
Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op.
at 6-7, it is not applicable where the parties request dismissal
on the basis of a settlement. See Hoffman v. Fuel Economy
Contracting and Omaha Public Power District, Case No. 87-ERA-33,
Sec. Order Denying Request to Reconsider, Aug. 4, 1989, slip op.
at 2-3 (copy appended). In cases where the employer has filed a
request for hearing, as this Respondent has done, Rule
41(a)(1)(ii) would be the applicable rule. See Nolder, slip op.
at 8, holding that the filing of a request for hearing by
employer is the equivalent of an answer for purposes of Rule 41.
I do not, however, agree with Respondent that the ALJ's
order of Dismissal thus becomes unreviewable. I have ruled
previously that "under the regulations implementing the ERA,
29 C.F.R. Part 24 (1988), except in limited circumstances, see
29 C.F.R. § 24.5(e) (4), an ALJ's decision is only a recommended
decision. Final orders are issued by the Secretary. 29 C.F.R.
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§ 24.6." Cowan v. Bechtel Construction Co., Case No. 87-ERA-29,
Aug. 8, 1989, Sec. Decision and order of Remand, slip op. at 1,
n.1. See also Samodurov v. Niagara Mohawk Power Corporation,
Case No. 89-ERA-20, Sec. Order to Submit Settlement, Feb. 22,
1990, ruling that, inasmuch as the ALJ's dismissal of the
complaint in that case "purported to finally dispose of the
actions against Niagara, it . . . constituted a recommended
decision under the provisions of 29 C.F.R. § 24.6(a)." Slip op.
at 2, n.2. Thus the ALJ's Order of Dismissal here, although not
labeled a "recommended" order, is not a final order and is
subject to my review and issuance of a final order.
Furthermore, because the parties have not disclosed the
basis for their request that the claim be dismissed, it is not
clear whether Rule 41(a) (1) (ii) is applicable under the
circumstances of this case. As stated in the Order to Submit,
the procedural history of this case suggests that a settlement
between the parties underlies the parties' Joint Motion to
Dismiss. Order to Submit at 2. Where an ERA complaint has been
settled, Rule 41(a)(1) is inapplicable.
[B]y its terms Rule 41 does not apply where
"any statute of the United States"
establishes other procedures for dismissal of
actions pursuant to settlements, for example
class actions, bankruptcy proceedings,
shareholder derivative suits, or antitrust
suits. The ERA requires the Secretary to
issue an order resolving the case "unless the
proceeding on the complaint is terminated by
the Secretary on the basis of a settlement
entered into by the Secretary and the
person alleged to have committed such
violation. . . " 42 U.S.C.
§ 5851(b)(2)(A).1/
____________
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
Respondents rely in part, do not apply where
they are inconsistent with specific statutes
or regulations. 29 C.F.R. § 18.1(a).
[Page 4]
Hoffman v. Fuel Economy etc., slip op. at 3-4. The fact that the
Secretary may not be a signatory of the settlement agreement does
not, as Respondent contends, relieve the Secretary of the
statutory obligation to determine the fairness, adequacy or
reasonableness of an ERA settlement. The Secretary fulfills the
statutory obligations of protecting the public interest by
reviewing the terms of the settlement agreed upon by the private
parties. Scott v. American Protective Service, Case No. 89-ERA-35,
Sec. Order to Submit Settlement, Feb. 15, 1990, at 2; Hoffman
v. Fuel Economy etc., slip op. at 3-4. In this connection, I
have held that "it is error for the ALJ to dismiss a case without
reviewing the settlement and making a recommendation of whether
the settlement is fair, adequate and reasonable." Fuchko and
Yunker v. Georgia Power Company, Case Nos. 89-ERA-9 and 10, Sec.
Order to Submit Settlement Agreement, Mar. 23, 1989, slip op.
at 2. The United States Court of Appeals for the Ninth Circuit
in Thompson v. Dept. of Labor, 885 F.2d 551 (1989), has
recognized that in ERA cases "[t]he Secretary must approve all
settlement agreements . . . . " 885 F.2d at 556.
Accordingly, Respondent's request is DENIED. The parties
are ordered to submit, within 30 days from receipt of this order,
an explanation of the basis for their Joint Motion, and, if the
basis of that motion is an agreement between the parties, a copy
of the settlement agreement signed by both parties, including
Complainant individually, and setting forth all the terms and
conditions agreed to. Failure to comply with this order will
result in the case being remanded to the ALJ for a hearing on the
merits.