U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-053 ALJ CASE NO. 96-TSC-0008 DATE: August 6, 1997
In the Matter of:
DANIEL MCDOWELL,
COMPLAINANT,
v.
DOYON DRILLING SERVICES, LTD,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the Clean Air Act (CAA), 42 U.S.C. §7622,
Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971, Toxic Substances Control Act
(TSCA), 15 U.S.C. § 2622, and Water Pollution Control Act (WPCA), 33 U.S.C.
§1367 (collectively, the "whistleblower acts."). The parties have submitted a
Memorandum of Settlement seeking approval of the settlement and dismissal of the complaint.
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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, 89-ERA-10, Sec. Order, Mar. 23, 1989, slip op. at 1-2.
Review of the agreement reveals that it may encompass the settlement of
matters under laws other than the whistleblower acts. See ¶8. As stated in
Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987,
slip op. at 2:
[The Secretary's] authority over settlement agreements is limited to such statutes
as are within [the Secretary's] jurisdiction and is defined by the applicable statute.
See Aurich v. Consolidated Edison Company of New York, Inc., Case No.
[86-]CAA-2, Secretary's Order Approving Settlement, issued July 29, 1987;
Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Secretary's Order
on Remand, issued November 3, 1986.
We have therefore limited our review of the agreement to determining whether the terms thereof
are a fair, adequate and reasonable settlement of Complainant's allegations that Respondent
violated the whistleblower acts.
Paragraph 20 provides that the agreement will be governed by the laws of
Alaska. We construe this to except the authority of the Secretary of Labor and any Federal court
which shall be governed in all respects by the laws and regulations of the United States. See
Phillips v. Citizens' Ass'n for Sound Energy, Case No. 91-ERA-25, Final Ord. of Dismissal,
Nov. 4, 1991, slip op. at 2.
Paragraph 6 provides 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 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 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.1 (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
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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).1
1 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).