, 1997-CAA-5, 1997-ERA-57 and 1998-ERA-18 (ALJ Jan. 22,
1999)
U.S. Department of Labor Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, OH 45202
DATE: January 22, 1999
CASE NOS. 1997-CAA-0005
1997-ERA-0057
1998-ERA-0018
In the Matter of
ANN WALZER,
Complainant,
v.
LOCKHEED MARTIN ENERGY SYSTEMS, INC.
and LOCKHEED MARTIN CORPORATION,
Respondent,
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provisions of the Clean Air
Act (CAA), 42 U.S.C. §7622 (1988); the Toxic Substances Control Act (TSCA), 15
U.S.C. §2622; the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), 42 U.S.C. §9601; the Safe Drinking Water Act (SDWA), 42 U.S.C.
§300j-9(i); the Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971; and the
Energy Reorganization Act (ERA), 42 U.S.C. §5851. On December 30, 1998, the parties
submitted a joint motion seeking approval of the settlement agreement and to protect its
confidentiality and to dismiss the claim. Attached to the motion is the settlement agreement and
release which is signed by counsel for both parties, as well as the complainant.
This recommended decision and order will constitute the final order of the
Secretary of Labor unless appealed to the Administrative Review Board. Procedures for the
Handling of Discrimination Complaints Under Federal Employee Protection Statutes, 63
Fed. Reg. 6614, 6620 (February 9, 1998)(to be codified at 29 C.F.R. § 24.7). Therefore, it
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is my responsibility to determine whether the terms of the settlement agreement are a fair,
adequate and reasonable settlement of the complaint. See 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, March 23, 1989, slip op. at 1-2.
My review of the settlement agreement and release leads me to conclude
that it may encompass the settlement of matters under laws other than the ERA. See
settlement and release agreement ¶ 4. As explained by the Administrative Review Board
in Poulos v. Ambassador Fuel 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 Co. 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.
I have therefore limited my review of the agreement to determine whether the terms are a
fair, adequate and reasonable settlement of Complainant's allegations that the Respondent
violated the ERA and other Federal employee protection statutes under my jurisdiction.
Paragraph 6 of the settlement agreement and release essentially provide
that the terms of the agreement shall be kept confidential, except as required by law. This
settlement agreement will become part of the administrative record before the Secretary of Labor
and the Secretary will treat this settlement agreement pursuant to 29 C.F.R. § 70.26. That
regulatory section pertains to predisclosure notification to submitters of confidential commercial
information. The parties stipulate that this settlement agreement and release is privileged and
confidential commercial and financial information within the meaning of Exemption Four to the
Freedom of Information Act, 5 U.S.C. § 552(b)(4).
The Administrative Review Board has held in a number of proceedings
with respect to the confidentiality provisions and 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 Agreement 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, Secretary Final Order Approving Settlements and Dismissing Cases
with Prejudice, Aug. 6, 1993, slip op. at 6; Davis v. Valley View Ferry Authority, Case
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No. 93-WPC-1, Secretary 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, Secretary Final Order Approving Settlement
and Dismissing Complaint with Prejudice, Jun. 25, 1993, slip op. at 2. As explained by the
Administrative Review Board in Paine v. Saybolt, Inc., ARB Case No. 97-136, Final
Order Approving Settlement and Dismissing Complaint, Sept. 5, 1997, slip op. at 2:
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 in 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 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). [endnote omitted.]
I therefore recommend approval of the settlement agreement and release
with the understanding the Department of Labor will address the parties' request under 29 C.F.R.
§ 70.26, in the event a Freedom of Information Request is filed.
The Administrative Review Board requires that all parties seeking
approval of a settlement agreement arising under ERA provide the settlement documentation for
any other alleged claim arising from the same factual circumstances forming the basis of the
federal claim or to certify that no other settlement agreements were entered into by the parties.
Biddy v. Ayleska Pipeline Service Co., ARB Case Nos. 96-109, 97-1015, Final Order
Approving Settlement and Dismissing Complaint, Dec. 3, 1996, slip op. at 3. Therefore, the
parties have acknowledged that the settlement agreement and release constitutes the only
agreement between the parties.
I find that the settlement agreement and release is a fair, adequate and
reasonable settlement of the complaint involved in this proceeding. Therefore,
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IT IS HEREBY RECOMMENDED that the joint motion to approve
settlement agreement and protect confidentiality and order of dismissal, together with the
settlement agreement and release, be granted.
THOMAS F.
PHALEN, JR.
Administrative Law
Judge
NOTICE: This Recommended Decision and Order
will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §
24.8, a petition for review is timely filed with the Administrative Review Board, United States
Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210. Such a petition for review must be received by the Administrative
Review Board within ten business days of the date of this Recommended Decision and Order,
and shall be served on all parties and on the Chief Administrative Law Judge. See 29
C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).