The parties
have submitted a Memorandum of Settlement seeking approval of the settlement and dismissal
of the complaint. No copy of the settlement agreement was submitted to the Administrative
Law Judge (ALJ) and therefore, it was not reviewed prior to the issuance of his January 13,
1997 Recommended Order. We issued an Order on March 7, 1997 instructing the parties to
submit their settlement to the Board for review.
The parties responded to our Order, claiming that submission of the
settlement agreement would constitute a de facto waiver of the confidentiality
provision of the agreement. This claim is without merit. 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.
The TSCA provides in pertinent part:
(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall
conduct an investigation of the violation alleged in the complaint. Within 30
days of the receipt of such complaint, the Secretary shall complete such
investigation and shall notify in writing the complainant (and any person acting
on behalf of the complainant) and the person alleged to have committed such
violation of the results of the investigation conducted pursuant to this paragraph.
Within ninety days of the receipt of such complaint the Secretary shall, unless
the proceeding on the complaint is terminated by the Secretary on the basis of
a settlement entered into by the Secretary and the person alleged to have
committed such violation, issue an order either providing the relief prescribed
by subparagraph (B) or denying the complaint. An order of the Secretary shall
be made on the record after notice and opportunity for agency hearing. The
Secretary may not enter into a settlement terminating a proceeding on a
complaint without the participation and consent of the complainant.
15 U.S.C. § 2622(b)(2)(A). The CAA contains a similar provision:
(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall
conduct an investigation of the violation alleged in the complaint. Within thirty
days of the receipt of such complaint, the Secretary shall complete such
investigation and shall notify in writing the complainant (and any person acting
in his behalf) and the person alleged to have committed such violation of the
results of the investigation conducted pursuant to this subparagraph. Within
ninety days of the receipt of such complaint the Secretary shall, unless the
proceeding on the complaint is terminated by the Secretary on the basis of a
settlement entered into by the Secretary and the person alleged to have
committed such violation, issue an order either providing the relief prescribed
by subparagraph (B) or denying the complaint. An order of the Secretary shall
be made on the record after notice and opportunity for public hearing. The
Secretary may not enter into a settlement terminating a proceeding on a
complaint without the participation and consent of the complainant.
42 U.S.C. § 7622(b)(2)(A). Approval by the Secretary, or her designee, the Board, is
a necessary component of an enforceable settlement. We simply cannot approve a settlement
that we have never seen. Since the parties have not complied with our March 7, 1997 Order,
we cannot affirm the ALJ's Recommended Order.
With respect to the parties' request that the March 7, 1997 Order be
amended to direct submittal of the settlement agreement "under seal," we note that
the parties' submissions in whistleblower cases under 29 C.F.R. Part 24 (1996) become part
of the record in the case and the Freedom of Information Act, 5 U.S.C. § 552 (1988),
requires federal agencies to disclose requested records unless they are exempt from disclosure
under that Act. 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. We must
therefore deny the parties' request that the Settlement remain under seal. Mitchell v.
Arizona Public Service Co. , Case Nos. 92-ERA-28, 29, 35, 55, Sec'y. Final Order
Approving Settlement Agreement and Dismissing Cases, Jun. 28, 1993, slip op. at 2 (request
to place settlement agreement under seal denied).
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 (1995). 2
The Board requires that all parties requesting settlement approval of
cases arising under the employee protection provisions of the whistleblower statutes 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. Additionally, if the settlement involves
any monetary distribution to the Complainant, the Board must know the amount the
Complainant will receive in order to determine if the settlement agreement is fair, adequate
and reasonable. This amount affects not only the Complainant's individual interest, but
impacts on the public interest as well, because if the amount is not fair, adequate and
reasonable, other employees may be discouraged from reporting safety violations. See
Plumlee v. Alyeska Pipeline Service Co., 92-TSC-7, Sec. Dec. and Order, Aug. 6,
1993, slip op. at 5; Biddy v. Alyeska Pipeline Service Company , ARB Case Nos.
96-109, 97-015, Order, May 31, 1996, slip op. at 1-2.
CONCLUSION
Accordingly, this case is REMANDED to the ALJ in order to give the
parties opportunity to submit their settlement documentation consistent with the instructions
in this order.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
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