On January 22, 1990, Administrative Law Judge (ALJ) Paul H.
Teitler issued a Recommended Decision and order on Remand
Approving Settlement and Dismissing Complaint (R.D. and O. on
Remand) in this case which arises under the employee protection
provision of the Clean Air Act (the Act), 42 U.S.C. § 7622
(1982). The ALJ's R.D. and O. on Remand was issued in response
to the Secretary's Order of Remand of August 3, 1989, remanding
the case to the ALJ for the receipt of the actual settlement
agreement between the parties and for a recommendation by the ALJ
as to whether the agreement is fair, adequate and reasonable.
[Page 2]
See generally Fuchko and Yunker v. Georgia Power Co., Case Nos.
89-ERA-9, 10, Sec. Order, March 23, 1989, slip op. at 1-2.
The ALJ reviewed the terms of the settlement agreement,
embodied in a Release (Joint Exhibit 1) executed by the Plaintiff
on November 1, 1989, and found them to be fair, adequate and
reasonable. Upon review of the terms of the agreement, I concur
with the ALJ'S finding with the following qualifications.
As the ALJ's decision indicates, Plaintiff, in return for a
series of payments by Respondent, signed a release covering:
[a]ny and all claims arising from releasor[']s
termination of employment by 179 South Street Venture
which occurred on or about October 25, 1988 which
included, but is not limited to, the case of James
Tinsley vs. 179 South Street Venture, Docket No.: 89-
CAA-3, for [sic] the United States Department of Labor
and any and all further claims or other causes of
action arising out of the provisions of the Federal
Clean Air Act.
(Emphasis added). Although the printed terms on the release form
purport to limit its effect to "claims resulting from anything
which has happened up to now," Release ¶ 1, the underscored
language above might be construed as waiving Plaintiff's right to
file whistleblower claims under the Act based on future employer
actions. Because such a waiver would be contrary to public
policy, I interpret the release provision cited above as
releasing Respondent from liability under the Act only with
respect to Plaintiff's termination of employment by 179 South
Street Venture on or about October 25, 1988.
Review of the release agreement also reveals that it appears
to encompass the settlement of claims arising under various laws,
only one of which is the Clean Air Act. As stated in Poulos v.
Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Secretary's
Order, issued November 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 Decision and order on Remand, issued
November 3, 1986.
[Page 3]
I have, therefore, limited my review of the release to
determining whether the terms thereof are a fair, adequate and
reasonable settlement of Plaintiff's allegation that Respondent
violated the Clean Air Act.
Upon review of the release, as qualified above, I find that
it is fair, adequate and reasonable. I, therefore, accept the
ALJ's recommendation that the settlement be approved and the case
be dismissed.
