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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 NOS. 96-175, 97-019
In the Matter of:
WILLIAM F. JOCHER
v.
TENNESSEE VALLEY
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
AND DISMISSING COMPLAINT These cases arise under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1988 and Supp. IV 1992). The parties submitted a Joint Motion for Dismissal and Memorandum of Understanding and Agreement to the Administrative Law Judge (ALJ) seeking approval of the settlement and dismissal of the complaints. The ALJ issued a Recommended Order of Dismissal on November 20, 1996 approving the settlement. 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 complaints. 29 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, Memorandum of Understanding and Agreement. 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. Paragraphs 4 and 5 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). Paragraphs 9 and 11 provide 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 these cases 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 these cases is made by a member of the public, that request must be responded to as provided in the FOIA. If an exemption is applicable [Page 3] to the record in these cases or any specific document in them, 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.
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
We find that the agreement, as so construed, is a fair,
adequate, and reasonable settlement of the complaints. Accordingly, we APPROVE the
agreement and DISMISS THE COMPLAINTS WITH PREJUDICE. See Settlement
Agreement ¶ 7.
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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