FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
These consolidated cases arise under the employee protection
provision of the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988). The parties notified
the Administrative Law Judge (ALJ) that they resolved all matters in the complaint and
submitted a Settlement Agreement seeking dismissal of the complaint. The ALJ issued a
Recommended Order Approving Settlement and Dismissal of Complaint on September 17,
1996.
The request for approval is based on an agreement entered into
by the parties, therefore, we must review it to determine whether the terms are a fair, adequate
and reasonable settlement of the complaint. 24 C.F.R. § 24.6. Macktal v.
Secretary of Labor , 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't
of Labor , 885 F.2d 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]
Paragraph 7 at page 3 of the Agreement could be construed as a
waiver by Complainant of any causes of action he may have which arise in the future. As the
Secretary has held in prior cases, see Johnson v. Transco Products, Inc. , Case No.
85-ERA-7, Sec. Ord., Aug. 8, 1985, such a provision must be interpreted as limited to the
right to sue in the future on claims or causes of action arising out of facts or any set of facts
occurring before the date of the agreement. See also Alexander v. Gardner-Denver
Co. , 415 U.S. 36, 51-52 (1974); Rogers v. General Electric Co. , 781 F.2d 452,
454 (5th Cir 1986).
Review of the agreement reveals that it may encompass the
settlement of matters under laws other than the CAA. See Settlement Agreement ¶ 7.
As stated in Poulos v. Ambassador Fuel Oil Co., Inc. , Case No. 86-CAA-1, Sec.
Order, Nov. 2, 1987, slip op. at 2:
[The Secretary's] authority over settlement agreements is limited to such
statutes as are within [the Secretary's] jurisdiction and is defined by the applicable
statute. See Aurich v. Consolidated Edison Company of New York, Inc. , Case
No. [86-]CAA-2, Secretary's Order Approving Settlement, issued July 29, 1987;
Chase v. Buncombe County, N.C. , Case No. 85-SWD-4, Secretary's Order on
Remand, issued November 3, 1986.
We have therefore, limited our review of the agreement to determining whether the
terms thereof are a fair, adequate and reasonable settlement of Complainant's allegation that
Respondent violated the CAA.
We find that the agreement, as so construed, is a fair, adequate,
and reasonable settlement of the complaint. Accordingly, we APPROVE the agreement and
DISMISS THE COMPLAINT WITH PREJUDICE. See Settlement Agreement ¶ 3.
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate
Member
[ENDNOTES]
1 On April 17, 1996, a
Secretary's Order was signed delegating jurisdiction to issue final agency decisions under this
statute to the
newly created Administrative Review Board. 61 Fed. Reg. 19978 (May 3, 1996).
Secretary's Order 2-96 contains a comprehensive list of the statutes,
executive order, and regulations under which the Administrative Review Board now issues final
agency
decisions. Final procedural revisions to the regulations implementing this reorganization were
also
promulgated on that date. 61 Fed. Reg. 19982.