Tovar v. U.S. Postal Serv.

4 OCAHO 650 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER OLIMPIA TOVAR, Complainant, v. UNITED STATES POSTAL SERVICE, ET AL. Respondents. 8 U.S.C. 1324b Proceeding ) CASE NO. 90200006 ERRATA On June 20, 1994, I issued an Order of Dismissal-Settled in this case. By this Order, the date August 31, 1993 found in the first sentence on page 1, paragraph 2, shall be deleted.

The sentence shall now read: "The aggrieved Complainant filed a timely appeal with the United States Court of Appeals, Ninth Circuit, and after argument before the Circuit Court, the matter was remanded to the Chief Administrative Hearing Officer, Executive office for Immigration Review, and ultimately assigned to me for additional evidentiary hearing, if necessary." SO ORDERED this 22 day of June , 1994, at San Diego, California.

E. MILTON FROSBURG

Administrative Law Judge 524 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER 4 OCAHO 650 OLIMPIA TOVAR, Complainant, v. UNITED STATES POSTAL SERVICE, ET AL., Respondents. 8 U.S.C. §1324b Proceeding ) Case No. 90200006 ORDER OF DISMISSAL-SETTLED This matter came before the undersigned Administrative Law Judge, by way of a Complaint which was filed on January 2, 1990, by the Complainant, Olympia Tovar, against the Respondent, United States Postal Service (USPS). After oral argument, upon cross-motions for decision filed by the parties, the undersigned on November 19, 1990, filed a Decision and Order Granting Respondent's Motion for Summary Decision. On August 31, 1993, the aggrieved Complainant filed a timely appeal with the United States Court of Appeals, Ninth Circuit, and after argument before the Circuit Court, the matter was remanded to the Chief Administrative Hearing Officer, Executive Office for Immigration Review, and ultimately assigned to me for additional evidentiary hearing, if necessary.

After several prehearing telephonic conferences, the parties agreed to settle the matter, and on June 13, 1994, they filed a Settlement Agreement properly executed by the attorneys of record, pursuant to 28 C.F.R. § 68.14(a)(2). Paragraph No. 1 of the Settlement Agreement states that upon execution of this Settlement Agreement, and payment by USPS as described in paragraph 2, Tovar agrees to dismiss, with prejudice, her Complaint against the USPS. In this case, I find that the parties have complied with the requirements of 28 C.F.R. § 68.14(a)(2) which does not require a review 525 4 OCAHO 650 of the settlement. However, it should be noted that I am not precluded from conducting such a review and have done so in this case.

I find that the terms of said agreement in this case are proper and appropriate pursuant to 28 C.F.R. § 68.14(a)(2) except for paragraph No. 10 in said agreement, which calls for the enforcement of this agreement by the Administrative Law Judge, Executive Office for Immigration Review, Department of Justice. The Administrative Law Judge has no jurisdiction for enforcement of this agreement under appropriate Rules and Regulations and case law of the Office of Chief Administrative Hearing Officer. It is suggested that any enforcement as to the terms of this agreement will have to be filed with the proper United States District Court and not with OCAHO or the Administrative Law Judge. See 28 C.F.R. § 68.53.

I further find that under the terms of the Settlement Agreement, the inferred Joint Motion to Dismiss in the Settlement Agreement and pursuant to 28 C.F.R. § 68.14: (1) that parties have waived their right for hearing on the merits; (2) (3) that the hearing to be scheduled in or around San Diego, California, is canceled; this matter is dismissed with prejudice in that Respondent will pay the sum of one hundred and sixty thousand dollars ($160,000.00) in full satisfaction and compromise for all or any monetary claims, including attorneys' fees, against the USPS, its officers, agents or employees; (4) that the settlement agreement filed with this court is approved with the omission of paragraph No. 10; and (5) this matter is dismissed with prejudice. SO ORDERED this 20th day of June , 1994, at San Diego, California.

E. MILTON FROSBURG Administrative Law Judge 526