FINAL ORDER APPROVING SETTLEMENT
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 have submitted a
Confidential Settlement Agreement and Release, seeking approval
[Page 2]
of the settlement and dismissal of the case.
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. 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.
Paragraph 1 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
ERA. 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
[Page 3]
violated the ERA.
Paragraph 9 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 the 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 the 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
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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
The Board requires that all parties requesting
settlement approval of cases arising under the ERA provide the
settlement documentation for any other alleged claims arising
from the same factual circumstances forming the basis of the
federal claim, or to certify that no other such settlement
agreements were entered into between the parties. Biddy v.
Alyeska Pipeline Service Company , ARB Case Nos. 96-109, 97-015, Final Order Approving Settlement and Dismissing Complaint,
Dec. 3, 1996, slip op. at 3. Accordingly, the parties have
certified that the agreement constitutes the entire and only
settlement agreement with respect to the complainant's claims.
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 ¶ 7.
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.
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).