Gillilan v. Tennessee Valley Authority, 89-ERA-40 (Sec'y Nov. 29, 1994)

USDOL/OALJ Reporter
Gillilan v. Tennessee Valley Authority, 89-ERA-40 (Sec'y Nov. 29, 1994)
DATE:  November 29, 1994
CASE NO. 89-ERA-40


IN THE MATTER OF

GEORGE M. GILLILAN,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                 ORDER DENYING MOTION FOR RECONSIDERATION

     On April 12, 1994, the Secretary issued an Order
Disapproving Settlement and Remanding Case in this case, which
arises under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  On July 11, 1994, Respondent filed with the
Secretary a Motion to Recall and Vacate the Remand Order and to
Dismiss, seeking reconsideration of the Secretary's April 12
order.
     Assuming, without deciding, that the Secretary's April 12
order is a final, appealable order, neither the ERA nor the
implementing regulations specifically provides for
reconsideration of final orders, and I have questioned whether
the Secretary has the authority under the Federal Rules of Civil
Procedure.  See Bartlik v. Tennessee Valley
Authority, Case No. 88-ERA-15, Sec. Order, Jul. 16, 1993,
slip op. at 3-4.  Recently, the United States Court of Appeals
for the Sixth Circuit dismissed the petitions for review in
Bartlik and held that the Secretary has no statutory or
inherent authority to reconsider his decisions under the ERA. 
Bartlik v. United States Dep't of
[PAGE 2]
Labor, Nos. 93-3616/3834, slip op. at 6-8 (6th Cir. Sept. 12,
1994).  Since this case arises within the appellate jurisdiction
of the Sixth Circuit, Respondent's motion must be denied.
     Even if I had the authority to accept Respondent's motion, I
would deny it on substantive grounds.  Respondent claims that the
settlement agreement contains language permitting disclosures "as
required by law," and thus, contrary to the Secretary's April 12
order, does not prohibit disclosures required under the Freedom
of Information Act.  As written, however, the agreement permits
the parties to disclose the terms of the agreement under various
circumstances, including where required by law, but improperly
binds the Secretary to "seal" the files.  Paragraph 4, at page 3;
see Webb v. Quantum Resources, Inc., Case No. 93-
ERA-42A, Sec. Order, June 29, 1994, slip op. at 2-3.  The
agreement treats these two issues separately and expressly
provides that should the Secretary refuse to "seal" the record,
then the agreement shall be void.  I cannot seal the record,
consequently, I would affirm my earlier decision to disapprove
the settlement agreement.
     Accordingly, Respondent's motion for reconsideration IS
DENIED.  The motion, together with this order, will be
transmitted to the Office of Administrative Law Judges where the
case currently is pending.
     SO ORDERED.

                              ROBERT B. REICH            
                              Secretary of Labor


Washington, D.C.