U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 98-047
ALJ CASE NO. 97-ERA-40
DATE: August 28, 1998
In the Matter of:
FLETCHER TRICE,
COMPLAINANT,
v.
BARTLETT NUCLEAR, INC.
and
BATTELLE MEMORIAL INSTITUTE,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
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 (1994). The parties submitted a settlement agreement to the
Administrative Law Judge (ALJ) seeking approval of the settlement and dismissal of the
complaint.
The ALJ issued a Recommended Decision and Order on December 9, 1997 approving the
settlement.
[Page 2]
The request for approval is based on an agreement entered into by the
parties.
We review it to determine whether the terms are a fair, adequate and reasonable settlement of the
complaint. 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 ¶¶2,3. 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 allegations that Respondent
violated
the ERA.
Paragraph 7 provides that the agreement will be governed by the laws of
Ohio.
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.
Paragraph 5 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 (1994) (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).
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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 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
(1998).1
1 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).
2 The Board is in receipt of a
letter
from Complainant personally alleging that Respondents incorrectly have designated the
settlement
payment on Complainant's Internal Revenue Service Form 1099-MISC as income generated
through
self-employment. Complainant believes that this will affect his tax liability and therefore the
Board
should "consider [his] total expenses" in its determination. It is unclear whether
copies
of the letter were served on Respondent or Complainant's attorney.
The Board will not amend the settlement amount or disapprove the
agreement
based on this collateral issue. A settlement is a contract, and its construction and enforcement
are
governed by principles of contract law. United States v. ITT Continental Baking Co., 420
U.S. 223, 238 (1975). When consent to a settlement is voluntary and knowing, a settlement is
binding, final and conclusive and a party is bound by it even though he subsequently believes the
agreement is disadvantageous or he changes his mind. Macktal v. Brown & Root, Inc.,
86-ERA-23 (Sec'y Nov. 14, 1990) at 4-5.