IN THE MATTER OF
AJMAL A. ABBASI, CASE NO. 96-ERA-4
COMPLAINANT, DATE: May 31, 1996
v.
BECHTEL POWER CORP. and
TENNESSEE VALLEY AUTHORITY,
RESPONDENTS.
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 Memorandum of Understanding and Settlement Agreement
seeking approval of the settlement and dismissal of the
complaint. The Administrative Law Judge (ALJ) issued a decision
on April 10, 1996, recommending that the settlement be approved.
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
¶¶ 1, 3 and 4. For the reasons set forth in
Poulos v. Ambassador Fuel Oil 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
[PAGE 2]
determining whether its terms are a fair, adequate and reasonable
settlement of the Complainant's allegations that Respondents
violated the ERA.
Paragraphs 8 and 9 provide that the Complainant shall keep
the terms of the Agreement confidential, but do not prohibit him
from reporting any suspected nuclear safety concern to the
proper governmental authority, from participating in any
proceeding or investigation pertaining thereto, or in restricting
any disclosure by him where required by law. Complainant and his
counsel are required to timely notify the Respondents' legal
counsel in the event they receive legal process or an order
purporting to require disclosure of the agreement. We do not
find this notification requirement violative of public policy,
since it does not restrict or impinge upon the Complainant or his
counsel from such disclosure after appropriate legal process.
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, Order
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. See ¶ 3.
SO ORDERED.
___________________________
KARL J. SANDSTROM
Presiding 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)(copy attached).
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).