U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street - Suite 2100
San Francisco, CA 94105
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
RECOMMENDED DECISION AND ORDER OF DISMISSAL
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
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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
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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.
ORDER
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).