FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
These cases arise under the Energy Reorganization Act of 1974 (ERA), as amended, 42
U.S.C. § 5851 (1988 and Supp. IV 1992). The parties submitted a Joint Motion for
Dismissal and Memorandum of Understanding and Agreement to the Administrative Law
Judge (ALJ) seeking approval of the settlement and dismissal of the complaints. The ALJ
issued a Recommended Order of Dismissal on November 20, 1996 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 complaints. 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 ERA. See ¶ 4,
Memorandum of Understanding and Agreement. As stated in Poulos v. Ambassador
Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2:
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[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.
Paragraphs 4 and 5 could be construed as a waiver by
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).
Paragraphs 9 and 11 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 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 these cases 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 these cases is made by a member of the public,
that request must be responded to as provided in the FOIA. If an exemption is applicable
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to the record in these cases or any specific document in them, 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 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
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).