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USDOL/OALJ Reporter Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210
ARB CASE NO. 98-039
In the Matter of:
BOBBY W. WRIGHT,
v.
TENNESSEE VALLEY AUTHORITY
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
AND DISMISSING COMPLAINT This case arises under the Clean Air Act, 42 U.S.C. §7622 (1988), the Toxic Substances Control Act, 15 U.S.C. §2622 (1988), the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §6971 (1988), the Safe Drinking Water Act, 42 U.S.C. §300j-9(i) (1988), the Water Pollution Control Act, 33 U.S.C. §1367 (1988), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9610 (1988), the Toxic Substances Control Act, 15 U.S.C. §2622 (1988), and the Energy Reorganization [Page 2] Act of 1974, as amended, 42 U.S.C. §5851 (Supp. V 1993) ("the whistleblower acts") and the applicable regulations at 29 C.F.R. Part 24 (1997). The parties submitted a Joint Motion for Dismissal and a Memorandum of Understanding and Agreement (Agreement) to the Administrative Review Board seeking an order dismissing the complaint in this case. The Administrative Law Judge had held a hearing in the case and submitted a Recommended Decision and Order. The matter was pending final decision before the Board. 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. The Agreement provides for the settlement of matters under laws other than the whistleblower acts. See Agreement ¶ 1. As stated in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, Nov. 2, 1987, slip op. at 2:
We have therefore limited our review of the Agreement to determining whether its terms are a fair, adequate and reasonable settlement of Complainant's allegations that Respondent violated the whistleblower acts. The Agreement provides that the Complainant shall keep the terms of the settlement confidential, with certain specified exceptions. ¶ 4. 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 the 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). [Page 3]
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 the 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 70.1
The Board requires that all parties requesting settlement approval in
cases arising under the whistleblower acts provide the settlement documentation for any other
alleged claims arising from the same factual circumstances forming the basis of the federal
claim, or to certify that no other such settlement agreements were entered into between the
parties. Biddy v. Alyeska Pipeline Service Company, ARB Case Nos. 96-109, 97-015, Final Order Approving Settlement and Dismissing Complaint, Dec. 3, 1996, slip op. at 3.
Accordingly, the parties have certified that the Agreement constitutes the entire and only
settlement agreement with respect to the Complainant's claims. See Agreement,
¶ 9
We find that the Agreement, as so construed, is a fair, adequate, and
reasonable settlement of the complaint. Accordingly, we APPROVE the
Agreement and grant the motion to DISMISS THE COMPLAINT WITH
PREJUDICE. See Joint Motion for Dismissal.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
1 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); 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).
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