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| September 21, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210
ARB CASE NO. 97-013
In the Matter of:
REGINO R. DIAZ-ROBAINAS
v.
FLORIDA POWER & LIGHT COMPANY
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
AND DISMISSING COMPLAINT This case arises under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1988 and Supp. IV 1992). The parties submitted a Settlement Agreement seeking approval of the settlement and dismissal of the complaint. The Administrative Law Judge issued a Recommended Decision and Order on October 23, 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. Review of the agreement reveals that it may encompass the settlement of matters under laws other than the ERA. See § 4. As stated in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2:
[Page 2] 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 ERA. Section 14 provides that the agreement will be governed by the laws of Florida. We construe this to except the authority of the Secretary of Labor and any Federal court which shall be governed in all respects by the laws and regulations of the United States. See Phillips v. Citizens' Ass'n for Sound Energy, Case No. 91-ERA-25, Final Ord. of Dismissal, Nov. 4, 1991, slip op. at 2. Section 7 provides that the Complainant shall keep the terms of the settlement confidential, with certain specified exceptions. We have held in a number of cases with respect to confidentiality provisions in settlement agreements that the Freedom of Information Act, 5 U.S.C. § 552 (1988)(FOIA) "requires agencies to disclose requested documents unless they are exempt from disclosure. . . ." Coffman v. Alyeska Pipeline Services Co. and Arctic Slope Inspection Services, ARB Case No. 96-141, Final Order Approving Settlement and Dismissing Complaint, June 24, 1996, slip op. at 2-3. See also Plumlee v. Alyeska Pipeline Services Co., Case Nos. 92-TSC-7, 10; 92-WPC-6, 7, 8, 10, Sec. Final Order Approving Settlements and Dismissing Cases with Prejudice, Aug. 6, 1993, slip op. at 6; Davis v. Valley View Ferry Authority, Case No. 93-WPC-1, Sec. Final Order Approving Settlement and Dismissing Complaint, Jun. 28, 1993, slip op. at 2 n.1 (parties' submissions become part of record and are subject to FOIA); Ratliff v. Airco Gases, Case No. 93-STA-5, Sec. Final Order Approving Settlement and Dismissing Complaint with Prejudice, Jun. 25, 1993, slip op. at 2 (same). The records in this case are agency records which must be made available for public inspection and copying under the FOIA. In the event a request for inspection and copying of the record of this case is made by a member of the public, that request must be responded to as provided in the FOIA. If an exemption is applicable to the record in this case or any specific document in it, the Department of Labor would determine at the time a request is made whether to exercise its discretion to claim the exemption and withhold the document. If no exemption were applicable, the document would have to be disclosed. Since no FOIA request has been made, it would be premature to determine whether any of the exemptions in FOIA would be applicable and whether the Department of Labor would exercise its authority to claim such an exemption and withhold the requested information. It would also be inappropriate to decide such questions in this proceeding.
[Page 3]
Department of Labor regulations provide specific procedures for
responding to FOIA requests, for appeals by requestors from denials of such requests, and for
protecting the interests of submitters of confidential commercial information. See 29
C.F.R. Part 70 (1995). 2
Sections 4 and 5 of the Settlement 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).
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 § 2.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
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.
2 Pursuant to 29 C.F.R. §
70.26(b), submitters may designate specific information as confidential commercial information to be
handled as provided in the regulations. When FOIA requests are received for such information, the
Department of Labor shall notify the submitter promptly, 29 C.F.R. § 70.26(e); and the submitter
will be given a reasonable period of time to state its objections to disclosure, 29 C.F.R. § 70.26(e);
and the submitter will be notified if a decision is made to disclose the information, 29 C.F.R. §
70.26(f). If the information is withheld and suit is filed by the requester to compel disclosure, the
submitter will be notified, 29 C.F.R. § 70.26(h).
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