FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C. § 5851 (1988 and Supp. IV 1992). The parties have submitted a
Settlement Agreement seeking approval of the settlement and dismissal of the complaint. The
ALJ issued a Recommended Decision and Order on February 12, 1997 approving the settlement.
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, 89ERA-10, Sec. Order, Mar. 23, 1989, slip op. at 1-2.
Sections 4, 7, 8, 9, 11, and 12 of the agreement provide that the
Complainant shall keep the terms of the settlement confidential, with certain specified
exceptions. We have held in a number of cases with respect to confidentiality provisions in
[Page 2]
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
. . . ." Coffinan 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; Davis v. Valley View Ferry Authority,
Case No. 93-WPC-1, Sec. Final Order Approving Settlement and Dismissing Complaint,
Jun. 28, 1993, slip op. at 2 n. l (parties' submissions become part of record and are subject to the
FOIA); Ratliff v. Airco Gases, Case No. 93-STA-5, Sec. Final Order Approving
Settlement and Dismissing Complaint with Prejudice, Jun. 25, 1993, slip op. at 2 (same).
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 ERA 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. Accordingly, the parties have
certified that the agreement constitutes the entire and only settlement agreement with respect to
the complainant's claims.
We find that the agreement, as so construed, is a fair, adequate, and
reasonable settlement of the complaint. Accordingly, we APPROVE the agreement and
DISMISS THE COMPLAINT WITH PREJUDICE. See Settlement Agreement § 2.
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
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). 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. Final procedural
revisions to the regulations implementing this reorganization were also promulgated on that date. 61
Fed. Reg. 19982.
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 shall notify the submitter promptly, 29 C.F.R. §
70.26(e); and the submitter will be given a reasonable period 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 suit is filed
by the requester to compel disclosure, the submitter will be notified. 29 C.F.R. § 70.26(h).