Attorney Colapinto moves to intervene in the present proceeding to protect his interest in receiving attorney's fees for his prior representation of the Complainant. While a number of cases are cited in support of his motion, only one, Pogue v. U.S. Department of the Navy, 87-ERA-21 (Sec'y April 14, 1994) (Final D&O on Remand), arose under the Act.

   In Pogue, the Secretary of Labor permitted intervention by a former attorney to preserve his rights to collect supplemental attorney's fees. The former attorney in Pogue had been previously awarded attorney's fees in March 1988 after fully litigating the case through trial and successfully securing the rights of his client. The former attorney ended his representation of the client during the appellate process, and, upon motion, wanted to supplement the original award of fees for partial appellate representation.

   The facts of the present case are clearly distinguishable. First and most importantly, the present claim never reached litigation, and no administrative determination has been rendered on the merits of the Complainant's allegations under the Act. Rather, the Complainant and the Respondent arrived at a settlement before the case ever proceeded to hearing, and they now seek to have their agreement approved as a full, fair and complete settlement of Complainant's claims under the Act. Further, Attorney Colapinto voluntarily withdrew from this case before the parties came to any resolution, and he was not involved in the negotiation of the proposed settlement. Finally, at no time did Attorney Colapinto secure an award of statutory fees in this forum, whereas the former attorney in Pogue merely sought to supplement a prior award of fees.

   These differences, particularly the fact that the instant case was not litigated to any administrative decision but rather was settled based on the parties' negotiations in which Attorney Colapinto did not participate, render the rationale of Pogue inapplicable herein. More on point is Tinsley v. 179 South Street Venture, 89-CAA-3 (Aug. 3, 1989) (order of remand), where the Secretary held that, in a case where parties negotiate a private resolution of a complaint brought under an environmental whistleblower protection statute and incorporate a provision for payment of attorney's fees in the settlement agreement, the administrative law judge does not have authority to approve the fee amount, only whether the net amount to be received by the complainant (i.e., after deduction of the agreed-upon attorney's fees) is fair, adequate and reasonable. Compare Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB January 6, 1998) (attorney entitled to fees based on successful litigation before the Secretary to establish that terms of a settlement agreement were illegal). Thus, the reasoning in Pogue can not be applied in the present case.

   Moreover, the other cases cited by Attorney Colapinto to buttress his attempt to intervene in this forum are also distinguishable. In Ashley v. Atlantic Richfield Company, 794 F.2d 128 (3rd Cir.1986), a sex discrimination case litigated under Title VII, the court held that a complainant's entry into a settlement agreement with her employer does not extinguish her right to seek payment of attorney's fees by the employer. Kalywongsa v. Moffett, 105 F.3d 283 (6th Cir. 1997) dealt with the importance of resolving fee disputes

when an express written agreement for fees exists), and Novinger v. E.I. Dupont de Nemours & Co., 809 F.2d 212 (3rd Cir.1987) held that a federal district court has proper jurisdiction to resolve dispute between plaintiffs and their former counsel over counsel's contractual entitlement to attorney's fees based on contingent fee agreement. While Novinger would at first glance appear to lend some support to Attorney Colapinto's intervention efforts, it must be noted that an administrative law judge's jurisdiction is not coextensive with that of a federal district judge. As discussed above, an administrative law judge lacks authority under the Act to adjudicate any attorney's entitlement to fees in the context of a privately settled case.

   Accordingly, I find and conclude that I lack jurisdiction in the circumstances of the instant case to adjudicate the matter of Attorney Colapinto's alleged entitlement to attorney's fees. Consequently, his motion to intervene must be denied.

   In response to my April 2, 1999 order, the Complainant has stated that he knowingly accepted the terms of the present settlement despite Attorney Colapinto's lien. It is inherent in the requirement that a settlement agreement be fair, adequate and reasonable that a complainant knowingly and voluntarily executed it. Federal courts have created a "totality of circumstances" test which involves the balancing of a number of factors in determining whether execution of a contract/agreement was knowing and voluntary. Stroman v. West Coast Grocery Co., 884 F.2d 458 (9th Cir. 1989). To determine the atmosphere under which the agreement was executed, the court in Stroman identified the following elements to be considered: (1) the clarity and unambiguous language of the agreement; (2) the plaintiff's education and business experience; (3) the amount of time complainant had access to the agreement before signing it; (4) the role of complainant in negotiating the terms; (5) whether complainant consulted counsel; and (6) whether consideration was given in exchange for the release. See also Bormann v. AT & T Communications, Inc., 875 F.2d 399 (2d Cir. 1989).

   The language of the proposed settlement agreement and corresponding release are very clear and unambiguous. In his April 8, 1999 response to the April 2, 1999 Order to show cause, the Complainant states that, "[d]uring the course of settlement negotiations, Mr. Gaballa always contemplated that if Mr. Colapinto felt he were entitled to any additional compensation, that would be a matter to be determined after a full trial in another forum based on a claim in quantum meruit." Complainant's Response at 7. I also note that the Complainant is experienced in litigation under the Act; see Gaballa v. Arizona Public Service Co. and The Atlantic Group, 94-ERA-9 (Sec'y January 18, 1996) (prior case where the Complainant prevailed on a whistleblower complaint); that the record reflects that the Complainant participated in the settlement negotiations in which he was represented by counsel; and that substantial monetary consideration was given by the

Respondent in exchange for the Complainant's release. Based on these factors, and incorporating by reference the findings in my March 23, 1999 recommended decision and order, and considering all of the pleadings, I am convinced that the Complainant entered into the settlement agreement with full understanding of the potential consequences of his actions. Accordingly, I reaffirm my prior finding that the parties' agreement constitutes a fair, adequate and reasonable settlement of the complaints.