DATE:  April 12, 1994
CASE NO. 89-ERA-40


IN THE MATTER OF

GEORGE M. GILLILAN,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                       ORDER DISAPPROVING SETTLEMENT
                             AND REMANDING CASE

     On February 26, 1990, pursuant to the parties' request under
Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, the
Administrative Law Judge (ALJ) recommended dismissal of this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  Upon review, however, the Secretary found
indications that the parties' request for dismissal may have been
based on a settlement agreement.  Under the ERA, a settlement
negotiated and agreed to by the parties also must be "entered
into," i.e., approved by the Secretary as fair, adequate,
and reasonable to settle the employee's allegations that the
employer violated the ERA.  42 U.S.C. § 5851(b)(2)(A);
Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th
Cir. 1991); Porter v. Brown & Root, Inc., Case No. 91-ERA-
4, Sec. Ord., Feb. 25, 1994, slip op. at 6-7; see
Poulos v. Ambassador Fuel Oil Co., Case No. 86-CAA-1, Sec.
Ord., Nov. 2, 1987, slip op. at 2.  The Secretary, therefore,
ordered the parties to submit the settlement agreement for the
Secretary's approval, if indeed a settlement prompted the request
for dismissal.  See Order to Submit Settlement dated
January 2, 
[PAGE 2]
1991.
     In response, the parties filed a Conciliation Agreement
which they had executed on January 31, 1990.  While the agreement
was pending review by the Secretary, Complainant moved to
disapprove the proposed settlement and to remand the action to
the ALJ.  Respondent filed a brief opposing Complainant's motion.
     The Secretary repeatedly has held that a party cannot
withdraw from a settlement after agreeing to it, or oppose
approval of it, at any time up to the time the Secretary approves
it.  E.g., Porter, slip op. at 5; McFarland v.
City of New Franklin, Missouri, Case No. 86-SWD-00001, Sec.
Ord., Aug. 17, 1993, slip op. at 5; Macktal v. Brown & Root,
Inc., Case No. 86-ERA-23, Sec. Ord., Nov. 14, 1989, slip op.
at 14-16, rev'd on other grounds sub nom., Macktal v.
Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991). 
Complainant argues that he is not now repudiating the settlement
but is requesting the Secretary to review its terms under current
conditions.  Complainant maintains that the settlement agreement
should be disapproved because it is no longer fair, adequate, and
reasonable in view of changed circumstances.  According to
Complainant, Respondent has taken unilateral action to disable
itself from performing the obligations it voluntarily undertook
in the settlement agreement and Complainant will not realize all
the benefits of his settlement for which he gave consideration.
[1] 
     Respondent counters that Complainant knew of the purported
"changed circumstances" at the time he submitted the agreement to
the Secretary for approval and that he complains now only as a
litigation tactic.  Respondent adds that Complainant voluntarily
consented to the agreement and accepted and retains its benefits
and has not provided a valid basis to disapprove the settlement.
     Complainant is not denying that in January 1990, he
knowingly and voluntarily negotiated and agreed to the agreement,
nor is he claiming that its terms are unfair, or that Respondent
engaged in fraud.  Rather, I view Complainant's claim as simply a
premature assertion that Respondent has breached the agreement,
which is an insufficient reason to disapprove the settlement. 
O'Sullivan v. Northeast Nuclear Energy Co., Case Nos. 90-
ERA-35, 36, Sec. Ord., Dec. 10, 1990, slip op. at 3.  A
settlement under the ERA is an executory contract, which is
binding on the parties until the Secretary acts on it. 
McFarland, slip op. at 5.  But until the Secretary
approves the settlement, the parties are not obligated to fulfill
its terms for purposes of the ERA.  Macktal v. Brown & Root,
Inc. (Macktal II), Case No. 86-ERA-23, Sec. Ord., Oct.
13, 1993, slip op. at 6 n.3. 
     In any event, this settlement agreement cannot be approved. 
The agreement specifically provides:
     Should the Administrative Law Judge and/or Secretary of
     
[PAGE 3]
     Labor determine that this agreement cannot be reviewed in camera,
     that the files related hereto cannot be sealed and/or that any
     term of this agreement cannot remain confidential in accordance
     with this agreement, then this entire agreement shall be null and
     void, and the parties will proceed with a hearing.
Conciliation Agreement at 3, Paragraph 4.  See also
Letter on behalf of both parties, dated January 17, 1991, from
Justin M. Schwamm, Sr., Assistant General Counsel, Tennessee
Valley Authority (requesting that the agreement be kept
confidential and that all files concerning it be sealed).
     As more fully explained in Corder v. Bechtel Energy
Corp., Case No. 88-ERA-9, Sec. Ord., Feb. 9, 1994, slip op.
at 3-5; Debose v. Carolina Power and Light Co., Case No.
92-ERA-14, Sec. Ord., Feb. 7, 1994, slip op. at 2-5; and
Mitchell v. Arizona Public Service Co., Case Nos. 92-ERA-
28, 29, 35, 55, Sec. Ord., June 28, 1993, slip op. at 2, the
files related to this agreement cannot be sealed.  The case
record, including the settlement agreement, are agency records
which are subject to the Freedom of Information Act, 5 U.S.C.
§ 552 (1988), and the procedures in 29 C.F.R. Part 70
(1993).  Unless exempt, such records must be made available for
public inspection and copying.  Given the express terms of the
agreement, making a sealed record essential and not severable, I
cannot approve this settlement.  Macktal, 923 F.2d at
1155; Macktal II, slip op. at 6. [2] 
     Accordingly, this case IS REMANDED to the ALJ for further
proceedings consistent with this order, the ERA, and its
implementing regulations at 29 C.F.R. Part 24.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.







[ENDNOTES]
           
[1]   Specifically, Respondent discontinued certain training
courses that had been promised to Complainant as part of the
settlement agreement.  Complainant also notes that other disputes
have arisen concerning Respondent's implementation of certain
provisions of the settlement agreement.

[2]   In addition, I note that Paragraph 6 of the Conciliation
Agreement, which pertains to enforcement of the agreement, would
be interpreted as not limiting the authority of the Secretary or
the United States district court under the statute and
regulations.  42 U.S.C. § 5851(d); 29 C.F.R. § 24.8(a)
(1993); Porter, slip op. at 11 n.7.