Before me for review is an Order Granting motion to vacate
and Dismissal of Complaint issued by Administrative Law Judge
(ALJ) Robert J. Shea, on January 25, 1988, in the above-captioned
case, which arises under Section 210 of the Energy Reorganization
Act of 1974, 42 U.S.C. § 5851 (1982). The basis of the ALJ's
dismissal of the case was that the parties have entered into a
settlement resolving all issues in this case. See Respondent's
letter of January 9, 1988.
No copy of the settlement agreement is in the record, and it
appears that the agreement was not submitted to or reviewed by
the ALJ. In whistleblower cases under the ERA which are settled,
it is error for an ALJ to dismiss a case without reviewing the
settlement and making a recommendation of whether the settlement
is fair, adequate and reasonable. 42 U.S.C. § 5851(b)(2)(A);
29 C.F.R. § 24.6(a). Fuchko and Yunker v. Georgia Power Co.,
Case Nos. 89-ERA-9 and 10, Order to Submit Settlement Agreement
issued March 23,, 1989, slip op. at 1 and 2. The Secretary has
held that such a case cannot be dismissed unless the Secretary
finds that the settlement is fair, adequate and reasonable.1Macktal v. Brown & Root, Inc., No. 86-ERA-23, Order to Submit
[Page 2]
1 Section 5851(b)(2)(A) of the ERA
provides in pertinent part
for termination of a proceeding "on the basis of a settlement
entered into by the Secretary. . . . " In lieu of being a
signatory to the settlement, it has been the Secretary's practice
to review the terms of the settlement entered into by the private
parties.