(a) Generally. At any time after the commencement of a
proceeding, the parties jointly may move to defer the hearing for
a reasonable time to permit negotiation of a settlement or an
agreement containing findings and an order disposing of the whole
or any part of the proceeding. The allowance of such deferment
and the duration thereof shall be in the discretion of the
administrative law judge, after consideration of such factors as
the nature of the proceeding, the requirements of the public
interest, the representations of the parties and the probability
of reaching an agreement which will result in a just disposition
of the issues involved.
(b) Content. Any agreement containing consent
findings and an order disposing of a proceeding or any part
thereof shall also provide:
(1) That the order shall have the same force and effect
as an order made after full hearing;
(2) That the entire record on which any order may be
based shall consist solely of the complaint, order of reference
or notice of administrative determination (or amended notice, if
one is filed), as appropriate, and the agreement;
(3) A waiver of any further procedural steps before the
administrative law judge; and
(4) A waiver of any right to challenge or contest the
validity of the order entered into in accordance with the
agreement.
(c) Submission. On or before the expiration of
the time granted for negotiations, the parties or their
authorized representative or their counsel may:
(1) Submit the proposed agreement containing consent
findings and an order for consideration by the administrative law
judge, or
(2) Notify the administrative law judge that the parties
have reached a full settlement and have agreed to dismissal of
the action, or
(3) Inform the administrative law judge that agreement
cannot be reached.
(d) Disposition. In the event an agreement
containing consent findings and an order is submitted within the
time allowed therefor, the administrative law judge, within
thirty (30) days thereafter, shall, if satisfied with its form
and substance, accept such agreement by issuing a decision based
upon the agreed findings.
(e)(1) Settlement judge procedure; purpose. This
paragraph establishes a voluntary process whereby the parties may
use a settlement judge to mediate settlement negotiations. A
settlement judge is an active or retired administrative law judge
who convenes and presides over settlement conferences
and negotiations, confers with the parties jointly and/or
individually, and seeks voluntary resolution of issues. Unlike a
presiding judge, a settlement judge does not render a formal
judgment or decision in the case; his or her role is solely to
facilitate fair and equitable solutions and to provide an
assessment of the relative merits of the respective positions of
the parties.
(2) How initiated. A settlement judge may be
appointed by the Chief Administrative Law Judge upon a request by
a party or the presiding administrative law judge. The Chief
Administrative Law Judge has sole discretion to decide whether to
appoint a settlement judge, except that a settlement judge
shall not be appointed when-
(i) A party objects to referral of the matter to a
settlement judge;
(ii) Such appointment is inconsistent with a statute,
executive order, or regulation;
(iii) The proceeding arises pursuant to Title IV of the
Federal Mine Safety and Health Act, 30 U.S.C. 901 et seq., also
known as the Black Lung Benefits Act.
(3) Selection of settlement judge. (i) The selection
of a settlement judge is at the sole discretion of the Chief
Administrative Law Judge, provided that the individual
selected-
(A) is an active or retired administrative law judge, and
(B) is not the administrative law judge assigned to hear and
decide the case.
(ii) The settlement judge shall not be appointed to hear and
decide the case.
(4) Duration of proceeding. Unless the Chief
Administrative Law Judge directs otherwise, settlement
negotiations under this section shall not exceed thirty days from
the date of appointment of the settlement judge, except
that with the consent of the parties, the settlement judge may
request an extension from the Chief Administrative Law Judge. The
negotiations will be terminated immediately if a party
unambiguously indicates that it no longer wishes to participate,
or if in the judgment of the settlement judge, further
negotiations would be fruitless or otherwise inappropriate.
(5) General powers of the settlement judge. The
settlement judge has the power to convene settlement conferences;
to require that parties, or representatives of the parties having
the authority to settle, participate in conferences; and to
impose other reasonable requirements on the parties to
expedite an amicable resolution of the case, provided that all
such powers shall terminate immediately if negotiations are
terminated pursuant to paragraph (e)(4).
(6) Suspension of discovery. Requests for suspension
of discovery during the settlement negotiations shall be directed
to the presiding administrative law judge who shall have sole
discretion in granting or denying such requests.
(7) Settlement conference. In general the settlement
judge should communicate with the parties by telephone conference
call. The settlement judge may, however, schedule a personal
conference with the parties when:
(i) The settlement judge is scheduled to preside in other
proceedings in a place convenient to all parties and
representatives involved;
(ii) The offices of the attorneys or other representatives of
the parties, and the settlement judge, are in the same
metropolitan area; or
(iii) The settlement judge, with the concurrence of the Chief
Administrative Law Judge, determines that a personal meeting is
necessary for a resolution of substantial issues, and represents
a prudent use of resources.
(8) Confidentiality of settlement discussions. All
discussions between the parties and the settlement judge shall be
off-the-record. No evidence regarding statements or conduct in
the proceedings under this section is admissible in the instant
proceeding or any subsequent administrative proceeding before the
Department, except by stipulation of the parties. Documents
disclosed in the settlement process may not be used in litigation
unless obtained through appropriate discovery or subpoena. The
settlement judge shall not discuss any aspect of the case with
any administrative law judge or other person, nor be subpoenaed
or called as a witness in any hearing of the case or any
subsequent administrative proceedings before the Department with
respect to any statement or conduct during the settlement
discussions.
(9) Contents of consent order or settlement
agreement. Any agreement disposing of all or part of the
proceeding shall be written and signed by a parties. Such
agreement shall conform to the requirements of paragraph (b)
of this section.
(10) Report of the settlement. If a settlement is
reached, the parties shall report to the presiding judge in
writing within seven working days of the termination of
negotiations. The report shall include a copy of the
settlement agreement and/or proposed consent order. If a
settlement is not reached, the parties shall report this to the
presiding judge without further elaboration.
(11) Review of agreement by presiding judge. A
settlement agreement arrived at with the help of a settlement
judge shall be treated by the presiding judge as would be any
other settlement agreement.
(12) Non-reviewable decisions. Decisions concerning
whether a settlement judge should be appointed, the selection of
a particular settlement judge, or the termination of proceedings
under this section, are not subject to review by Department
officials.
[48 FR 32538, July 15, 1983, as amended at 58 FR 38498, July 16,
1993 and 64 FR 47087 (Aug. 27, 1999)]