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). On August 6, 1996, the Board issued a
Supplemental
Preliminary Order and Order Establishing Briefing Schedule. On September 9, 1996 the Board
received a
Motion for Approval of Settlement Agreement and Dismissal With Prejudice in support of the
parties'
request for dismissal of the complaint with prejudice.
[Page 2]
The request for approval is based on a Settle Agreement (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. 24 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 ERA. See Agreement, ¶ 1.1. 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 allegation that Respondent violated the
ERA.
Paragraph 1. 1 of the Agreement could be construed as a waiver by the
Complainant
of any causes of action he may have which arise in the future. As the Secretary has
held in prior
cases, see Johnson v. Transco Products, Inc., Case No. 85-ERA-7, Sec. Ord., Aug. 8,
1985, such a
provision must be interpreted as limited to the right to sue in the future on claims or causes of
action arising
out of facts or any set of facts occurring before the date of the agreement. See also Alexander
v.
Gardner-Denver Co., 415 U.S. 36, 51-52 (1974); Rogers v. General Electric Co., 781
F.2d 452,
454 (5th Cir 1986).
Paragraph 8.1 of the Agreement provides that the agreement will be
governed
by the laws of Connecticut. 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.
Paragraphs 1.1 and 3.1 of the Agreement provide that the Complainant
shall keep
the terms of the settlement confidential, with certain specified exceptions. Paragraphs 3.3 and
4.1 of the
Agreement provide that Complainant shall not be prohibited or restricted from reporting or
providing
information to any Federal or state governmental agency. The parties' Memorandum of Points
and
Authorities in Support of the Motion requests that the Board regard the record in this case as
confidential
pursuant to predisclosure notification rights under 29 C.F.R. § 70.26. 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...... Plumlee v. Alyeska Pipeline Service Co., Case Nos.
92-TSC-7,
[Page 3]
10; 92WPC-6, 7, 8, 10, Sec. Final Order Approving Settlements and Dismissing Cases with
Prejudice, Aug.
6, 1993, slip op. at 6. See also 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 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
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 requesters from denials of such requests, and for protecting the interests
of
submitters of confidential commercial information. See 29 C.F.R. Part 70 (1995).
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. Agreement, ¶¶ 1.1, 1.2.
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.