DATE: September 4, 1996

CASE NUMBER: 96-ERA-32

In the Matter of

SAMUEL J. ING, M.D.,
   Complainant

   V.

JERRY L. PETTIS VETERANS AFFAIRS MEDICAL CENTER,
   Respondent

Bruce M. Stark, Esq. 219 Seal Beach Blvd., Suite A Seal Beach, CA 90740
   For the Complainant

Cerene Macklin, Esq. U.S. Dept. of Veterans Affairs 11000 Wilshire Blvd. Los Angeles, CA 90024
    For the Respondent

Before: Henry B. Lasky
    Administrative Law Judge

   This case arises under the Energy Reorganization Act of 1974, as amended, 42 USC §5851 (hereinafter referred to as "the Act") and its implementing regulations found in 29 CFR §24. The matter came on for trial on August 21, 1996 in Long Beach, California

following the issuance of a Notice of Trial dated July 10, 1996.

   At the outset of the proceeding, Counsel for Respondent moved to dismiss the matter for lack of jurisdiction. It appears that a prior case involving the same Complainant and Respondent bearing case number 95-ERA-6 resulted in a settlement and Judge David Dinardi issued a Recommended Decision and Order approving settlement and dismissing the complaint in that matter on April 4, 1995. A Final Order Approving Settlement and dismissing case number 95-ERA-6 with prejudice was issued by the Secretary of Labor on May 9, 1995.

   In the motion for dismissal argued by the Respondent in the case herein,the parties stipulated that the prior settlement agreement in 95-ERA-6 contained no provision or clause for retention of jurisdiction by the Department of Labor. Counsel for Complainant further acknowledged in open court that the proceeding herein before the undersigned was in essence a claim of violation of the prior settlement agreement in case 95-ERA-6 and that this matter was an enforcement proceeding instituted as a result of the violation of the aforesaid settlement agreement in the previous case.

   Complainant's counsel in open court was offered the opportunity to show good cause why the motion for dismissal for lack of jurisdiction should not be granted and acknowledged that he did not oppose the motion or have any good cause or otherwise why the motion for dismissal should not be granted.

   It appears that the statute and the implementing regulations are controlling herein and 42 USCA 5851(e) and 29 CFR 24.8(b)(1) provide that any person on who's behalf an order was issued under paragraph (2) of subsection (b) of this section may commence a civil action against the person for whom such order was issued to require compliance with such order. The appropriate United States District Court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order.

   In addition the case of Williams v. Public Service Electric and Gas Company, 94-ERA-2 issued by the Secretary of Labor on April 10, 1995 specifically provides that where a final order approving settlement and dismissing a complaint involves a settlement agreement containing a clause that the Department of Labor shall retain jurisdiction of this matter for purposes of enforcement of the settlement agreement, the Department of Labor is authorized to hold further administrative proceedings prior to either the department or a party seeking enforcement in a U.S. District Court. Thus by clear implication if a settlement agreement does not contain a retention of jurisdiction clause the Department of Labor does not have jurisdiction to hear proceedings seeking to enforce the settlement agreement as a result of claimed violations of said agreement but rather jurisdiction would be in the appropriate

United States District Court pursuant to the statute and implementing regulations previously cited.

   Clearly, based upon the Final Order Approving Settlement and dismissal with prejudice of case number 95-ERA-6 issued May 9,1995 by the Secretary of Labor and the stipulation of the parties that there was no retention of jurisdiction clause in the prior settlement, this forum has no jurisdiction to hear the matter herein involving claimed violations of the prior settlement agreement and the effort to seek the agreement's enforcement. Complainant, as previously stated, does not oppose the motion to dismiss. Based on the foregoing it is clear that this matter must be dismissed for lack of jurisdiction.

   The recommended order herein is that this matter be dismissed with prejudice.

       HENRY B. LASKY
       Administrative Law Judge

HBL:mw

NOTICE: This Recommended Decision and Order of Dismissal and the administrative file in this matter willl be forwarded for review by the Secretary of Labor to the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee prrotection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).