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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

PROCEDURES AND PRACTICES IN SETTLEMENT PROCEEDINGS

BEFORE JUDGE JOHN B. GATTO

TABLE OF CONTENTS

I. Preamble 2

II. Contacting Chambers 3

III. Mandatory Electronic Filing; Email Service 3

IV. Pleadings; Corporate Disclosure; Joint Preliminary Settlement Report 

and Discovery Plan 4

V. Ex parte Confidential Memorandum 5

VI. Settlement Offers 7

VII. Participation Form 7

VIII. Status Report 7

IX. Citation Settlement Offers Chart 7
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I. Preamble

Any rule referenced in these procedures is to the Federal Rules of Civil Procedure, unless 

otherwise indicated.1 Any reference to a Commission Rule means the Commission’s Rules of 

Procedure, 29 CFR Part 2200, a copy of which is available on the Commission’s web page at 

https://www.oshrc.gov under the “Rules – Guides” tab. All motions shall be accompanied by a 

proposed order that would grant the relief requested in the motion. See 29 C.F.R. § 2200.40(e). 

As provided in the Commission’s Rules, the settlement proceedings are confidential. 29 

C.F.R. § 2200.120(d)(3). Confidentiality will permit an open discussion of the issues between the 

parties and will afford the parties greater privacy in resolving their dispute than is typically 

available in litigation. The Court will diligently work with the parties to amicably resolve the 

issues in controversy. All are expected to exert a good faith effort to resolve the issues. 

Any attorney or other representative who is expected to try the case for each party shall 

be present at the settlement conference. Each party's representative shall be accompanied by an 

official of the party having full settlement authority on behalf of the party at the conference. The 

parties and their representatives or attorneys are expected to be completely candid with the Court 

so that it may properly guide settlement discussions. The failure to be present at a settlement 

conference or otherwise to comply with the orders of the Court or the refusal to cooperate fully 

within the spirit of Commission Rule 120 may result in the imposition of sanctions under 

Commission Rule 101. 29 C.F.R. § 2200.120(d)(2). 

In the Court’s experience, the opportunity for a successful settlement conference is 

enhanced when the parties prepare beforehand, by filing the initial formal pleadings, learning the 

case facts and relevant law, exchanging documents, and frankly assessing the strengths and 

weaknesses of their case and of the other party’s case. Prior to the conference, the parties should 

identify and assess their true needs and interests and consider the needs and interests of the 

opposing party. With this document exchange and pre-conference preparation, the parties will be 

well prepared to intelligently evaluate settlement options discussed during the settlement 

conference. 

1 The Occupational Safety and Health Act of 1970 mandates that unless the Commission has adopted a 

different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. See 29 

U.S.C. 661(g).
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II. Contacting Chambers

The Court’s Legal Assistant is listed in Judge Gatto’s first order sent to the parties. The 

Court’s Legal Assistant is your primary point of contact on matters relating to your case and can 

be reached by e-mail or telephone number indicated in Judge Gatto’s first order sent to the 

parties. Neither the parties nor their counsel are permitted to discuss the merits of the case with 

any Court staff. Subpoenas may be requested ex parte through the Court’s Legal Assistant by 

email.

III. Mandatory Electronic Filing; Email Service

A. Mandatory Electronic Filing. ALL parties must file documents electronically in the 

Commission’s E-File System (unless you filed a written request to be exempt from electronic 

filing explaining specifically how and why it would be an undue burden to comply with the 

electronic filing and were granted an exemption from electronic filing by the Judge). If you have 

not yet registered, you must immediately do so and notify the Court’s Legal Assistant that

you have done so. If you have not registered but included your email address in your notice of

contest or notice of appearance, you will receive a one-time courtesy copy of the Court’s Initial 

Scheduling Order sent to your email address of record. Unless you have been granted an 

exemption from electronic filing by the Judge, you will not receive any future Court

orders/notices until you register and notify the Court’s Legal Assistant that you have done so. 

B. User Registration and Electronic Filing. User registration and electronic filing are 

accomplished at https://oshrc.entellitrak.com. You are responsible for reviewing and complying 

with the Commission’s Instructions for Electronic Filing link located on the Commission’s web 

page at https://www.oshrc.gov under the “Featured Resources” tab. Failure to comply with these 

Instructions may result in the rejection of your submission.

C. Email Service. Documents filed electronically must be served by email attachmenton 

all parties and intervenors. The Certificate of Service must not be filed as a separate document. 

The document submitted for filing to the Commission E-File System case file will be rejected if 

a Certificate of Service that conforms with the Commission Rules is not included with the 

document submitted. The Certificate of Service certifying simultaneous email service of the 

document to the other parties and intervenors in the case must be included as the final page of the 

document submitted for filing:

Certificate of Service

This is to certify that service of the [Document Name] filed in the Commission’s E-File 
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System was also simultaneous served by email attachment to the parties listed below on [Date of

Service].

[Name of Individual Served 

Address

Email Address]

 /s/

Name Title

Company / Firm Name / Office of the Solicitor

Street Address

City, State, Zip Code Email Address

IV. Pleadings; Corporate Disclosure; Joint Preliminary Settlement Report and 

Discovery Plan

A. Complaint. If the Complainant has not filed a complaint, the Complainant shall do so 

within 21 days from the date of the Court’s Initial Scheduling Order.

B. Answer. If the Respondent has not filed an answer, Respondent shall do so within 21 

days from the date of the Court’s Initial Scheduling Order, or service of the complaint,

whichever is later.

C. Sample Pleadings Forms. A sample Complaint and a sample Answer are available

on the Commission’s web page under the “Sample Documents” tab at https://www.oshrc.gov/sampledocuments/. 

D. Corporate Disclosure. Respondent’s answer shall not be accepted for filing, or if it 

has been filed it shall be stricken from the record, unless Respondent complies with Commission 

Rule 35’s corporate disclosure requirements. Respondent may be held in default pursuant to 

Commission Rule 35(b) and (d) if it fails to file an adequate disclosure declaration or an amended 

disclosure.

E. Joint Preliminary Settlement Report and Discovery Plan. The parties are required 

to file a Joint Preliminary Settlement Report and Discovery Plan within 14 days from the date of 

the Initial Scheduling Order, which shall include the following:

1. The date the Complainant has or shall provide to Respondent a copy of the 

complete, redacted, OSHA investigative files, including OSHA Forms 1-A and 1-B, documents, 

photographs, videos, and any exculpatory evidence.

2. The date the Respondent has or shall notify the Complainant if Respondent is
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claiming a financial inability to pay the proposed penalty. If so, the date the Complainant shall 

notify Respondent regarding the financial documents that the Complainant will need to receive 

and review prior to the settlement proceedings, regarding the claim of financial distress.

3. The date the Respondent has or shall provide to the Complainant:

a. Documents supporting Respondent’s defenses and affirmative defenses, 

including photographs and videos;

b. Any proof of abatement documentation regarding the citations issued in these

cases;

and

c. If Respondent is claiming a financial inability to pay the proposed penalties,

the date Respondent will provide to the Complainant the requested financial documents 

regarding Respondent’s claimed financial distress.

4. The date prior to the settlement conference that any additional discovery will be 

completed, if needed, to intelligently evaluate settlement options.

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5. The date the parties propose the settlement conference shall take place,2 which

shall be no later than 75 days from the date of assignment of the case to voluntary settlement

proceedings or 120 days from the date of assignment of the case to mandatory settlement 

proceedings. See Commission Rules 120(a)(2) and 120(b)(3)(iv). Generally, the settlement 

conference will be conducted remotely via Zoom video conference. However, for large and 

complex cases the settlement conference may be scheduled in-person, depending on courtroom 

availability and the Court’s scheduling availability.

V. Ex Parte Confidential Memorandum

All statements made and information presented during the settlement proceedings are 

confidential and shall not be divulged to the opposing party or outside of the settlement 

proceedings except with the advance permission of the parties. Commission Rule 120(c)(d)(e).

The parties’ ex parte confidential memorandum shall NOT be electronically filed or served. 

Within 14 days before the conference, each party shall prepare and submit to the Court’s Legal 

Assistant an ex parte Confidential Memorandum, which shall be marked “CONFIDENTIAL” 

and sent to the Court’s Legal Assistant by e-mail attachment with the following in the subject 

2 The Settlement Judge only schedules one day for settlement conferences but will be available for one 

additional consecutive day if necessary.
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line: Docket No. [Docket#] Complainant or Respondent’s Ex parte Confidential Memorandum. 

The ex parte confidential memoranda shall include:

1. Describe the circumstances that gave rise to the litigation, including an analysis of the 

factual and legal issues, a discussion of the factual predicate for the party’s position on each 

issue, and any other information the party believes will be helpful to an understanding of its

position;

2. Describe any matters pending in any related litigation;

3. Describe any recent developments that may affect the resolution of the case;

4. Describe the important factors(factual, legal, and practical) you believe affect the terms 

and conditions upon which the case may be settled;

5. Describe any efforts to settle the issues, including offers or demands before and since 

the citation(s) were issued;

6. Provide a candid assessment of the strengths and weaknesses of the major points of 

error of each party’s case;

7. Describe the necessary terms in any settlement (i.e., confidentiality, date by which 

settlement must close, scope of release, disposition of related litigation, etc.);

8. Describe any additional information your client or the other party needs to settle the 

case and whether it is needed before the settlement conference;

9. State whether you and your parties will participate in the settlement conference in good 

faith with the intention of using your best efforts to settle the case and explain if "no" as to any

party;

10. State whether you and your parties will maintain confidentiality with respect to 

settlement communications made and received during and after the settlement conference and 

explain if "no" as to any party;

11. If the settlement proceedings are not successful, describe the realistic range of 

outcomes upon further trial or disposition, including monetary remedies;

12. A copy of all settlement offers and counteroffers made by each party prior to the 

scheduled conference; and

13. A completed Citation Settlement Offers Chart as set forth in the attachment to this 

procedure.
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VI. Settlement Offers

The Respondent is required to make at least one reasonable settlement offer prior to the 

settlement conference related to the citation(s) at issue (a reasonable offer is not the vacation of 

all or most citation items and proposed penalties or the reclassification of all citation items). The 

Complainant is required to make at least one reasonable counter settlement offer prior to the 

settlement conference related to Respondent’s offer (a reasonable counteroffer is not the 

affirmance of all or most citation items, classifications, and proposed penalties). Each party shall 

include a copy of their offer/counteroffer with the ex parte Confidential Memorandum. If either 

party fails to make a reasonable offer, the Settlement Judge may deem further negotiations 

to be fruitless and terminate the settlement proceedings.

VII. Participation Form

Within 14 days before the conference, the parties must jointly complete and file with the 

Court the Participation Form, which is available under Judge Gatto’s area of the Administrative 

Law Judge Practices tab on the Commission’s web page at 

https://www.oshrc.gov/about/administrative-law-judge-practices.

VIII. Status Report

The parties shall file a joint status report of their intent to proceed to conference, settle, or 

withdraw the citation(s) or notice of contest no later than 14 days before the conference.

SO ORDERED.

Dated: April 10, 2024

Atlanta, GA
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CITATION SETTLEMENT OFFERS CHART

Citation Number, 

Item

Characterization Penalty Amount Respondent’s 

Offer

Complainant’s

Offer

Cit. 1, I Citation 1, Item 1