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USDOL/OALJ Reporter Office of Administrative Law Judges John W. McCormack Post Office and Courthouse Boston, Massachusetts 02109 Room 507 (617) 223-9355 (617) 223-4254 (FAX) Dated: January 13, 1999 Case No.: 1998-ERA-25
IN THE MATTER OF:
John J. Degostin, Jr. v. Northeast Utilities and
Bartlett Nuclear, Inc.
APPROVING SETTLEMENT AGREEMENT AND GENERAL RELEASE AND DISMISSING COMPLAINT WITH PREJUDICE This is a proceeding arising under the Energy Reorganization Act, 42 U.S.C. §5851, and its implementing regulations found at 29 C.F.R. Part 24. The undersigned is in receipt of a Joint Motion for a Recommended Decision and a Final Order Approving Settlement Agreement and Dismissing the Complaint With Prejudice. Attached to that Joint Motion is a Confidential Settlement Agreement and a Release and signed by all parties of record. [Page 2] The regulation cited above does not contain any provision relating to a dismissal of a complaint by a voluntary settlement. Therefore, it is necessary to refer to the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18, which Rules are controlling in the absence of a specific provision at Part 24. Part 18.9 allows the parties in a proceeding before an administrative law judge to reach agreement on their own. 29 C.F.R. Part 18.9(a)-(c). Once agreement has been reached by the parties, the regulation permits the parties to "[n]otify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action." 29 C.F.R. Part 18.9(c)(2). Once such notification occurs, the administrative law judge is then directed by Part 18.9(d), which states in pertinent part:
For the reasons set forth in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, (Sec'y 11/2/87), I have limited my review of the agreement to determining whether its terms are a fair, adequate and reasonable settlement of Complainant's allegation that Respondents violated the ERA. Upon careful review, this Judge has reached the determination that the Settlement Agreement and General Release fully comport with precedent established by the Secretary and/or Administrative Review Board. This Judge notes the parties have designated the Settlement Agreement and General Release as confidential commercial information, as defined at 29 C.F.R. Part 70.26, and thereby attempt to preclude disclosure pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. §552. In this vain, the parties request this Judge issue a finding that the Settlement Agreement and General Release constitute confidential commercial [Page 3] and financial information.
FOIA, however, requires agencies to
disclose requested documents unless they are exempt from
disclosure. See Klock v. Tennessee Valley Auth., 95-ERA-20
(ARB 5/30/96), at p. 2; Darr v. Precise Hard Chrome, 95-CAA-
6 (Sec'y 5/9/95), at p. 2; Webb v. Consolidated Edison Co.,
93-CAA-5 (Sec'y 11/3/93) at p. 2. Since no FOIA request has been
made, "it would be premature to determine whether any of the
exemptions in 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."
Darr, supra, at pp. 2-3 See Also DeBose v.
Carolina Power and Light Co., 92-ERA-14 (Sec'y 2/7/94), at p.
3. The appropriate procedure for a FOIA request may be found at 29
C.F.R. Part 70.26.1
See Generally Biddy v. Alyeska Pipeline Service Co., 95-TSC-
7 (ARB 12/3/96), at n. 1.
Accordingly, it is hereby RECOMMENDED that
the Settlement Agreement and General Release between Complainant,
John J. Degostin, Jr., and Respondents, Northeast Utilities and
Bartlett Nuclear, Inc., be APPROVED and that the matter be
DISMISSED WITH PREJUDICE. It is FURTHER RECOMMENDED
that the Settlement Agreement and General Release be designated as
confidential commercial information and be handled in accordance
with 29 C.F.R. Part 70.26.
DAVID W. DI NARDI
Boston, Massachusetts
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, DC 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 23 C.F.R. §§ 24.8
and 24.9, as amended by 63 Fed.Reg. 6614 (1998).
1I will note for the record that
Respondents have submitted the necessary affidavits, as is preferred by 29 C.F.R. Part 70.26(b),
from corporate representatives.
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