U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: May 11, 1998
CASE NO: 97-STA-0020
In the Matter of
CHRISTOPHER P. FISHER
Complainant
v.
ABC TRAILER SALES & RENTAL, INC.
Respondent
RECOMMENDED DECISION AND ORDER APPROVING
SETTLEMENT AND APPROVING WITHDRAWAL OF COMPLAINT
This case arises under the employee protection provisions of the Surface
Transportation Assistance Act, 49 U.S.C. § 31105 (1994). A general release was executed
by Complainant and Respondent on August 20, 1997, respectively, and was submitted for my
review and approval on March 17, 1998 along with copies of three checks. The Settlement
Agreement provides that Complainant withdraws the complaint herein.
I must determine whether the terms of the agreement are a fair, adequate
and reasonable settlement of the complaint. 42 U.S.C. § 5851(b)(2)(A) (1988).
Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson
v. U.S. Dep't of Labor, 885 F.3d 551, 556 (9th Cir. 1989); Fuchko and Yunker v.
Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, Mar. 23, 1989, slip op.
at 1-2.
[Page 2]
The Settlement Agreement provides that Complainant releases Respondent
from claims arising under the Surface Transportation Act as well as under various other laws.
This review is limited to whether the terms of the settlement are a fair, adequate and reasonable
settlement of Complainant's allegations that Respondent violated the STA. Kidd v. Sharron
Motor Lines, Inc., 87-STA-2 (Sec'y July 30, 1987).
The Settlement Agreement states that Respondent will pay Complainant a
specified amount. In addition, the Secretary requires that all parties requesting settlement
approval of cases arising under environmental protection statutes provide the settlement
documentation for any other alleged claims arising from the same factual circumstances forming
the basis of the federal claim, or to certify that no other such settlement agreements were entered
into between the parties. Biddy v. Alyeska Pipeline Service Co., 95-TSC-7, ARB Case
Nos. 96-109, 07-015, Final Order Approving Settlement and Dismissing Complaint, Dec. 3,
1996, slip op. at 3. The general release states that it contains the entire agreement between the
parties concerning this matter. Accordingly, the parties have certified that the agreement
constitutes the entire and only settlement agreement with respect to Complainant's claims.
Finally, I note that the agreement makes no reference to a fee for
Complainant's attorney. Thus, it appears that Complainant will pay his attorney's fee, if any.
The Secretary has held:
Where attorney's fees are incorporated in an agreement, the ALJ
does not approve the fee amount. If, however, the parties submit
an agreement providing for Complainant to pay his attorney, the
ALJ must take into consideration whether the net amount to be
received by Complainant is faire, adequate and reasonable.
Tinsley v. 179 South Street Venture, 89 CAA-3, Sec. Order of Remand, Aug. 3,
1989, slip op. at 3. In more recent decisions, the Secretary has held that it is not necessary for a
settlement to specify the amount of an attorney's fee. Guity v. Tennessee Valley
Authority, 90-ERA-10, ARB Case No. 96-180, Aug. 28, 1996, Klock v. Tennessee
Valley Authority, 95-ERA-20, OAA May 1, 1996. Therefore, there is no requirement that
the settlement agreement in the instant case include the amount of the attorney's fee for which the
Complainant is responsible.
I find that the agreement, as construed above, is a faire, adequate, and
reasonable settlement of the complaint. Accordingly, I APPROVE the agreement and APPROVE
THE WITHDRAWAL OF THE COMPLAINT WITH PREJUDICE.
SO ORDERED.
PAUL
H. TEITLER
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative file in
this matter will be forwarded for review by the Administrative Review Board, U.S. Department
of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, D.C. 20210. See
29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).