Milar Elevator Co. v. District of Columbia Department of Employment Services

GALLAGHER, Senior Judge,

concurring and dissenting:

Several months after oral argument in this proceeding, and at a time when the court’s opinion was back from the printer and awaiting mailing by the Clerk of the Court, a letter (not a motion) was received from counsel for petitioners (Milar Elevator Company and Zurich Insurance Company) advising the court that “the parties” had entered into a settlement. This was at a time when the parties could well be expecting an opinion of this court (being the court of last resort in the jurisdiction) at any time. As is apparent from the court’s order here, over three months after the letter to the court, the government, with all its institutional experience, has incredibly not bestirred itself to file a document notifying the court of its position on a settlement, which would be a final disposition of this public interest proceeding; nor does even an initialing by the government appear on the petitioners’ moving document.

The court’s order here now notifies the parties that unless within twenty (20) days the parties proceed properly before the court in reference to a settlement agreement, the court will issue its opinion (which printed opinion has been resting in the clerk’s office more than three months). I would have issued our printed opinion months ago.¹ That opinion would remand to the Agency for further proceedings, with guidance to the Agency from the court in its opinion in relation to future proceedings before the Agency on similar issues. Settlement proceedings could commence before the Agency.

In the final analysis, issuance of the court’s printed opinion would by its terms remand to the Agency for further proceedings; and the court’s order herein now remands to the Agency though for settlement proceedings. Where I depart from the court is I would also issue the court’s printed opinion which is still languishing in our clerk’s office, and I would have issued it long ago.

The court’s opinion contains guidance to the Agency in future proceedings involving the same issue. So, I see no need to waste the court’s opinion since the proceeding is being remanded to the Agency. Nevertheless, I am in agreement that in any event the proceeding must now be remanded for settlement proceedings, under D.C.App. R. 42(b).

1 . This proceeding involved a management-labor issue before a governmental agency, and contains a certain guidance for the governmental agency in all similar proceedings. It has a public interest. Appellate courts around the country often disfavor parties awaiting settlement proceedings until after these litigants have exhausted all judicial resources (up to and including oral argument before the last appellate court). See, e.g., Riesenecker v. Arkansas Best Freight Systems, 110 N.M. 451, 796 P.2d 1147 (1990); Berrios v. Rybacki, 236 Ill.App.3d 140, 177 Ill.Dec. 589, 603 N.E.2d 659 (1992); Marino v. Marino, 411 Pa.Super. 424, 601 A.2d 1240 (1992); California Insurance Guarantee Ass’n v. Liemsakul, 193 Cal.App.3d 433, 238 Cal.Rptr. 346 (1987); California ex rel. State Lands Comm’n v. Superior Court, 11 Cal.4th 50, 44 Cal.Rptr.2d 399, 405, 900 P.2d 648, 654 (1995); see also 15 James W. Moore, Moore’s Federal Practice § 101.99[3], at 101-191 (3d ed.1997).