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USDOL/OALJ Reporter Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 DATE: September 25, 1998 CASE NO. 97-ERA-59 In the Matter of
GARY L. FISER,
v.
TENNESSEE VALLEY AUTHORITY
This case arises under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851. On September 15, 1998, the parties submitted a joint motion seeking approval of the settlement agreement and dismissal of the claim. The settlement agreement was signed by counsel for both parties, as well as the complainant. This recommended decision and order will constitute the final order of the Secretary of Labor unless appealed to the Administrative Review Board. Procedures for the Handling of Discrimination Complaints Under Federal Employee Protection Statutes, 63 Fed. Reg. 6614, 6620 (February 9, 1998)(to be codified at 29 C.F.R. § 24.7). Therefore, it is my responsibility to determine whether the terms of the settlement agreement are a fair, adequate and reasonable settlement of the complaint. See 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, March 23, 1989, slip op. at 1-2. [Page 2] My review of the settlement agreement leads me to conclude that it may encompass the settlement of matters under laws other than the ERA. See settlement ¶¶ 10, 11 and 13. As explained by the Administrative Review Board in Poulos v. Ambassador Fuel Co. Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2:
I have therefore limited my review of the agreement to determine whether the terms are a fair, adequate and reasonable settlement of Complainant's allegations that the Respondent violated the ERA and other Federal employee protection statutes under my jurisdiction. Paragraphs 10, 11 and 13 of the settlement agreement essentially provide that the terms of the agreement shall be kept confidential, except as required by subpoena, court order or agreement by the parties. Moreover, the parties acknowledge in paragraphs 10, 11 and 13 of the agreement that the settlement agreement will become part of the administrative record before the Secretary of Labor and that they agree to request the Secretary to treat this settlement agreement pursuant to 29 C.F.R. § 70.26. That regulatory section pertains to predisclosure notification to submitters of confidential commercial information. The Administrative Review Board has held in a number of proceedings with respect to the confidentiality provisions and 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 Agreement 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, Secretary 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, Secretary 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, Secretary Final Order Approving Settlement and Dismissing Complaint with Prejudice, Jun. 25, 1993, slip op. at 2. As explained by the Administrative Review Board in Paine v. Saybolt, Inc., ARB Case No. 97-136, Final Order Approving Settlement and Dismissing Complaint, Sept. 5, 1997, slip op. at 2:
[Page 2]
I therefore recommend approval of the settlement agreement with the understanding the Department of Labor will address the parties' request under 29 C.F.R. § 70.26, in the event a Freedom of Information Request is filed. The Administrative Review Board requires that all parties seeking approval of a settlement agreement arising under ERA provide the settlement documentation for any other alleged claim arising from the same factual circumstances forming the basis of the federal claim or to certify that no other settlement agreements were entered into by the parties. Biddy v. Ayleska Pipeline Service Co., ARB Case Nos. 96-109, 97-1015, Final Order Approving Settlement and Dismissing Complaint, Dec. 3, 1996, slip op. at 3. Therefore, the parties have acknowledged that the settlement agreement constitutes the only agreement between the parties. Agreement, ¶ 8. I find that the settlement agreement is a fair, adequate and reasonable settlement of the complaint involved in this proceeding. Therefore, IT IS HEREBY RECOMMENDED that the joint motion for dismissal together with the settlement agreement, be granted.
THOMAS F. PHALEN, JR.
NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998). |
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