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 and a Joint Motion to the Administrative Law Judge (ALJ)
seeking approval of the settlement and dismissal of the complaint. The ALJ issued a
Recommended Decision and Order on October 8, 1996 approving the settlement and dismissing
the complaint.
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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 (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 Settlement Agreement
¶ 1, Appendix A ¶ 6. 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 allegation
that Respondent violated the ERA.
Paragraph 7 provides that the agreement will be governed by the
laws of Connecticut. We construe this to except the authority of the Secretary of Labor and
any Federal court which shall be governed in all respects by the laws and regulations of the
United States. See Phillips v. Citizens' Ass'n for Sound Energy, Case No. 91-ERA-25, Final Ord. of Dismissal, Nov. 4, 1991, slip op. at 2.
Paragraph 3 provides that the Complainant shall keep the terms
of the settlement confidential, with certain specified exceptions. We have held 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 Service 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,
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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 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 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).