IN THE MATTER OF
CHARLES J. BOYTIN, CASE NO. 94-ERA-32
COMPLAINANT, DATE: May 31, 1996
v.
PENNSYLVANIA POWER & LIGHT COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD[1]
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the employee protection provision of
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 and Full and Final Release of
Claims seeking approval of the settlement and dismissal of the
complaint subsequent to the Administrative Law Judge's (ALJ)
Recommended Decision and Order on Remand (R.D. and O.) issued on
February 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. 42 U.S.C. §
5851(b)(2)(A) (1988). 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.
The agreement appears to encompass the settlement of matters
arising under various laws, only one of which is the ERA.
See ¶ 6. For the reasons set forth in Poulos v.
Ambassador Fuel Oil
[PAGE 2]
Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip
op. at 2, we have limited our review of the agreement to
determining whether its terms are a fair, adequate and reasonable
settlement of the Complainant's allegations that Respondent
violated the ERA.
Paragraph 7 contains language which provides that the
Complainant shall keep the terms of the Settlement Agreement
confidential unless disclosure is required by law, except to his
spouse, attorneys and professional tax advisor. We likewise
construe this confidentiality provision as not restricting any
disclosure where required by law. McGlynn v. Pulsair
Inc., Case No. 93-CAA-2, Sec. Final Order Approving
Settlement, June 28, 1993, slip op. at 3. The parties'
submissions including the agreement become part of the record of
the case and are subject to the Freedom of Information Act
(FOIA), 5 U.S.C. § 552 (1988). FOIA requires Federal
agencies to disclose requested records unless they are exempt
from disclosure under the Act.[2] See Debose v. Carolina
Power & Light Co., Case No. 92-ERA-14, Ord. Disapproving
Settlement and Remanding Case, Feb. 7, 1994, slip op. at 2-3 and
cases there cited.
We find that the agreement, as here construed, is a fair,
adequate and reasonable settlement of the complaint. Accordingly,
we APPROVE the agreement and DISMISS THE COMPLAINT WITH
PREJUDICE.
SO ORDERED.
___________________________
KARL J. SANDSTROM
Member
____________________________
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
[1] On October 23, 1995, the Secretary issued a Remand Order in
this case for the purpose of determining damages and other
appropriate relief for Complainant. On April 17, 1996, a
Secretary's Order was signed delegating jurisdiction to issue
final agency decisions under this statute and these regulations
to the newly created Administrative Review Board (ARB). 61 Fed.
Reg. 19978 (May 3, 1996)(copy attached). The ARB has reviewed
the entire record in this case in rendering this final order.
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. A
copy of the final procedural revisions to the regulations (61
Fed. Reg. 19982), implementing this reorganization is also
attached.
[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 will notify the submitter promptly, 29 C.F.R. §
70.26(c); the submitter will be given a reasonable amount 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 a suit is filed by the requester to
compel disclosure, the submitter will be notified, 29 C.F.R.
§70.26(h).