DATE: May 11, 1994
CASE NO. 90-ERA-26
IN THE MATTER OF
DONALD W. BROWN,
COMPLAINANT,
v.
HOLMES & NARVER, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
Before me for review is the Recommended Order for Dismissal
with Prejudice issued by the Administrative Law Judge (ALJ) in
this case arising under the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§ 5851 (1988). The parties submitted a Settlement Agreement
(Agreement) and General Release of Claims and requested dismissal
of the complaint with prejudice. See Agreement at Par. 4.
The ALJ approved the Agreement and recommended dismissal of the
complaint with prejudice.
The Agreement appears to encompass the settlement of matters
arising under various laws, only one of which is the ERA. For
the reasons set forth in Poulos v. Ambassador Fuel Oil Co.,
Inc., Case No. 86-CAA-1, Sec. Ord., Nov. 2, 1987, slip op. at
2, I have limited my review of the agreement to determining
whether its terms are a fair, adequate, and reasonable settlement
of Complainant's allegation that Respondent violated the ERA.
The ALJ noted that "the terms of the settlement have been
separately filed in a sealed envelope and are considered to be
confidential commercial or financial information which have not
[PAGE 2]
been disclosed to the public." The Secretary has concluded that
settlement agreements, which are part of the record in a case,
are subject to the provisions of the Freedom of Information Act
(FOIA), 5 U.S.C. § 552 (1988). The FOIA requires agencies
to disclose requested documents unless they are exempt from
disclosure. Richter, et al. v. Baldwin Assoc., et al.,
Case Nos. 84-ERA-9 through 84-ERA-12, Final Order Approving
Settlement and Dismissing Complaints, Feb. 22, 1994, slip op. at
4 and cases there cited. In accord with earlier decisions, I
decline to place the Agreement under seal. See,
e.g., Porter v. Brown & Root, Inc., Case No. 91-
ERA-4, Sec. Final Ord. Disapproving Settlement and Remanding
Case, Feb. 24, 1994, slip op. at 9-10; Corder v.
Bechtel Energy Corp., Case No. 88-ERA-9, Sec. Ord., Feb. 9,
1994, slip op. at 2-5; Debose v. Carolina Power & Light
Co., Case No. 92-ERA-14, Sec. Ord. Disapproving Settlement
and Remanding Case, Feb. 7, 1994, slip op. at 2-4.
No one has requested a copy of the Agreement pursuant to the
FOIA, and therefore it would be premature for me to determine if
it contains commercial or financial information that comes within
the "trade secrets" exemption to the FOIA, 5 U.S.C. §
552(b)(4), or any other exemption. See, Corder,
slip op. at 5.
As the ALJ noted, the Respondent has requested predisclosure
notification pursuant to 29 C.F.R. § 70.26 should anyone
file a FOIA request that encompasses the Agreement. [1] As
custodian of the documents, the Office of Administrative Law
Judges is directed to place a notice prominently displayed in the
record of this case referring to Respondent's request and
directing that the procedures in 29 C.F.R. § 70.26 be
followed if an FOIA request is received that encompasses the
settlement agreement.
Paragraph 7 of the Agreement appears to prohibit the parties
from voluntarily discussing the facts surrounding the complaint
with government agencies. It provides in relevant part:
Except to carry out the specific covenants of
this Agreement or unless specifically
required by court order or government agency
order, none of the parties shall
directly or indirectly, or by any means or
manner whatsoever disclose, urge,
encourage, cooperate in, cause or permit the
disclosure of dissemination to any person
or entity the contents or substances
of this Agreement, any consideration
given or received hereto, the claims or
demands released herein, and all matters
arising therefrom or relating thereto. *
* * PROVIDED further that H&N, Inc. may discuss the terms of the settlement
with the United States Department of Energy.
[PAGE 3]
(Emphasis added.)
In Wampler v. Pullman-Higgins Co., Case No. 84-ERA-
13, Fin. Ord. Disapproving Settlement and Remanding Case, Feb.
14, 1994, slip op. at 4, a provision in the settlement
agreement stated that "[n]either party will discuss or disclose
the facts of this case except if ordered to do so by [a] court,
tribunal or agency of competent jurisdiction." The Secretary
found that "[t]o the extent that this provision could be
construed as restricting Complainant from voluntarily
communicating and providing information to any federal or state
government agencies, it is void as contrary to public policy and
unenforceable." Id.
Likewise, the provisions of Paragraph 7 of this Agreement
are void as contrary to public policy and unenforceable to the
extent that they could be construed as restricting Complainant
from communicating voluntarily with, and providing information
to, any Federal or state government agencies.
In Paragraph 12, the parties agreed to sever any part of the
Agreement "held, determined or adjudicated to be invalid,
unenforceable or void for any reason whatsoever" and that
severance shall not affect the validity or enforceability of the
remaining portions. The severance provision permits me to
approve the remainder of the Agreement without the offending
language prohibiting the parties from discussing the facts
surrounding the complaint with government agencies.
CompareMacktal v. Secretary of Labor, 923 F.2d
1150, 1155-1156 (5th Cir. 1991) ("Severing paragraph 3 eliminated
a material term of the agreement. This the Secretary cannot do
without the consent of the other two parties." (emphasis
added)).
The Agreement provides that it shall be construed and
interpreted in accordance with the laws of the State of Nevada.
See Par. 11. I interpret this statement as not limiting
the authority of the Secretary of Labor or a Federal court under
the ERA and implementing regulations. SeePhillips v.
Citizens Ass'n for Sound Energy, Case No. 91-ERA-25, Final
Order of Dismissal, Nov. 4, 1991, slip op. at 2.
I find that the Agreement, as construed in this decision, is
a fair, adequate and reasonable settlement. Accordingly, the
Agreement is approved as here construed and the complaint is
DISMISSED with prejudice.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Under the Department's regulation implementing the FOIA,
submitters of information may designate specific information as
confidential commercial information, 29 C.F.R. § 70.26(b)
(1993), as Respondent has done here. When an FOIA request for
such information is received, the Department of Labor will notify
the submitter promptly, 29 C.F.R. § 70.26(c), 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).
