U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-055
ALJ CASE NO. 96-ERA-21
DATE: January 28, 1998
In the Matter of:
I. M. MALIK,
COMPLAINANT,
v.
ENTERGY OPERATIONS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
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 submitted a Settlement
Agreement seeking approval of the settlement and dismissal of the complaint. The Administrative
Law Judge issued a Recommended Order of Dismissal on December 17, 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
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(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 ¶¶D, 12. 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 ERA.
Paragraphs 9 and 10 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 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 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
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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).