IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-60195
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JOSEPH J. MACKTAL, JR.,
Petitioner,
VERSUS
ELAINE CHAO,
Secretary, United States Department of Labor,
Respondent.
_________________________
Petition for Review of a Final Order of
the United States Department of Labor
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April 8, 2002
Before SMITH and DeMOSS, Circuit Judges, and LAKE,* District Judge.
SIM LAKE, District Judge:
This is the last chapter in a long saga between petitioner
Joseph J. Macktal, Jr., his former employer, Brown & Root, and the
United States Department of Labor. In this appeal Macktal
petitions the Court to review and vacate a decision and order of
the Administrative Review Board of the Department of Labor (ARB)
*
District Judge of the Southern District of Texas, sitting by designation.
denying Macktal’s Petition for Attorney’s Fees and Costs because
the ARB did not have authority to reconsider its earlier decision
awarding him fees and costs. Because we conclude that the ARB had
such authority, and that the ARB’s exercise of that authority was
reasonable, we deny the petition for review and affirm the decision
of the ARB.
I.
To put the current issue in context a brief history of the
case is necessary. In 1986 Macktal filed a complaint with the
Secretary of Labor alleging that his resignation as an electrician
at Brown & Root's Comanche Peak Nuclear Power Plant was a
constructive discharge in retaliation for protected whistleblower
activities under the Energy Reorganization Act (ERA), 42 U.S.C.
§ 5851. After an investigation the Department of Labor Wage and
Hour Division found that Brown & Root did not retaliate against
Macktal.
Macktal and Brown & Root later entered into a settlement
agreement. Macktal agreed to dismiss his whistleblower complaint
with prejudice and not to appear voluntarily as a witness or party
in any judicial or administrative proceeding involving Brown &
Root. In return, Brown & Root agreed to pay $35,000 to Macktal and
his attorneys. Brown & Root paid the agreed amount following the
execution of a joint motion to dismiss. Although the administra-
tive law judge (ALJ) recommended that the Secretary grant the
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motion, Macktal, now represented by new counsel, asked the
Secretary not to approve the settlement and to remand the case for
a determination on the merits.
The Secretary approved the settlement agreement except for the
restriction on Macktal's participation as a witness or party in
other proceedings involving Brown & Root. Macktal appealed the
Secretary’s order to this Court, and we vacated the order and
remanded it to the Secretary. Macktal v. Secretary of Labor, 923
F.2d 1150 (5th Cir. 1991). We held that the Secretary could either
approve the settlement agreement or reject it, but that the
Secretary could not modify a material term of the agreement without
the consent of the parties. On remand the Secretary issued an
order disapproving the entire settlement agreement and remanding
the case to the ALJ for further proceedings.
In 1996, after a hearing on the merits, the ALJ recommended
that the complaint be dismissed because Macktal failed to prove all
the elements of his case. On January 6, 1998, the ARB issued a
Final Decision and Order. The ARB found against Macktal on the
merits, concluding that he had not engaged in protected activity
when he indicated that he intended to file complaints with
government agencies or when he asked to be relieved of his duties.
But the ARB concluded that Macktal was nevertheless entitled to
attorney's fees and costs for his successful litigation over the
restrictive terms of his settlement agreement. The ARB remanded
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the case to the ALJ to determine the amount of fees and costs.1
Macktal petitioned this court to review the ARB’s denial of his ERA
claim.
On March 30, 1998, the ALJ issued an Initial Decision and
order recommending the attorney's fees and costs to be awarded to
Macktal. Both Brown & Root and Macktal timely filed challenges to
the Initial Decision and order. The ARB then issued a briefing
schedule. On October 16, 1998, the ARB, noting that Brown & Root
had not filed a brief, accepted the ALJ's recommended amounts and
ordered Brown & Root to pay Macktal’s attorney's fees and costs.
On October 26, 1998, Brown & Root filed a motion for
reconsideration. The motion established that Brown & Root had
filed a brief, addressed to Tom Shepherd, Clerk of the ARB,
opposing the ALJ's award of attorney's fees. Shepherd was the
clerk for the Benefits Review Board, however, a different
adjudicatory body within the Department of Labor. As a result,
Brown & Root's brief was delivered to Mr. Shepherd, not to the ARB.
Brown & Root’s brief complained of the amount of attorney’s fees
and costs awarded and the ARB’s lack of authority under the ERA to
award fees and costs to Macktal for his successful challenge of the
1
Because the January 6, 1998, order did not establish the
amount of fees and costs owed, it was not final for purposes of
appellate review. When a district court awards attorney’s fees,
that order is not final for appellate review until the court sets
the amount of the award. Southern Travel Club, Inc. v. Carnival
Air Lines, Inc., 986 F.2d 125, 130-131 (5th Cir. 1993). In this
respect, agency orders are analogous to court orders, and we thus
apply the same rule.
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settlement agreement.
On November 20, 1998, the ARB entered an Order Granting
Reconsideration. The ARB concluded that it had the inherent
authority to reconsider its decision within a reasonable time as
long as the reconsideration would not interfere with the purposes
of the ERA. The ARB determined that reconsideration was appro-
priate because it would give the ARB an opportunity to correct an
error (misdelivery of a brief), and because Brown & Root had
requested reconsideration within a reasonable time. The ARB
allowed Macktal and Brown & Root to file additional reply briefs
not provided for in the original briefing schedule.
While the ARB was reconsidering the issue of attorney’s fees
and costs, this Court denied Macktal’s petition for review and
affirmed the ARB's January 6, 1998, Final Decision and Order.
Macktal v. United States Department of Labor, 171 F.3d 323 (5th Cir.
1999). Although the Court concluded that Macktal’s expression of
intent to file a complaint was protected activity under the ERA,
the court concluded that this protected activity was not the likely
reason for Macktal’s termination.
On January 9, 2001, the ARB issued its Decision and Order on
Reconsideration. The ARB concluded that the ERA did not permit
Macktal to recover attorney's fees and costs related to his
successful challenge to the settlement. Macktal filed a timely
Petition for Review of the ARB's decision and order.
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II.
Macktal argues that the ARB erred in reconsidering its earlier
order granting him attorney’s fees and costs. The question of the
ARB’s inherent authority to reconsider its decisions is an issue of
law, which we review de novo. See Harris v. Railroad Retirement
Board, 3 F.3d 131, 133 (5th Cir. 1993).
Macktal also argues that the ARB abused any authority it may
have had to reconsider its earlier order granting him attorney’s
fees and costs. Review on the merits is governed by the standard
of review established in the Administrative Procedure Act, 5 U.S.C.
§ 706(2). Under that standard we will affirm the ARB’s decision
and order unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law, or unless it is not
supported by substantial evidence.” 5 U.S.C. § 706(2)(A); Macktal,
171 F.3d at 326.
III.
The ERA does not mention reconsideration by the ARB of its
orders. From this statutory silence Macktal argues that allowing
the ARB to reconsider its order would be contrary to Congress’s
delegation of authority to the Secretary of Labor.
The Secretary acknowledges that the ERA is silent as to the
ARB’s right to reconsider, but argues that since reconsideration is
not prohibited by the statute, the ARB has inherent authority to
reconsider its decisions. The Secretary argues that the ARB
correctly determined that reconsideration of its earlier order
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would not frustrate the goals of the whistleblower provision of the
ERA and would give the ARB an opportunity to protect the integrity
of the review process by correcting errors.
A.
Although this Court has never expressly so held, it is
generally accepted that in the absence of a specific statutory
limitation, an administrative agency has the inherent authority to
reconsider its decisions. See, e.g., Belville Mining Co. v.
United States, 999 F.2d 989, 997 (6th Cir. 1993); Dun & Bradstreet
Corp. v. United States Postal Service, 946 F.2d 189, 193 (2d Cir.
1991); Gun South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989);
Iowa Power & Light Co. v. United States, 712 F.2d 1292, 1297 (8th
Cir. 1983); Trujillo v. General Electric Co., 621 F.2d 1084, 1086
(10th Cir. 1980); United States v. Sioux Tribe, 616 F.2d 485, 493
(Ct. Cl. 1980); Albertson v. FCC, 182 F.2d 397, 399 (D.C. Cir.
1950).
This is not a case in which the agency acted contrary to a
statutory mandate limiting further review of an agency order. In
Brennan v. Occupational Safety & Health Review Commission (OSHRC),
502 F.2d 30 (5th Cir. 1974), which Macktal urges us to follow, we
held that the OSHRC did not have authority to reconsider an order
that had become final under the Occupational Safety and Health Act.
That Act provided that a hearing examiner’s report shall become the
final order of the Commission unless within thirty days after the
report is issued a member of the Commission directs that the
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Commission review the report. Under that statutory scheme we held
that once the thirty-day review period had expired and the order
had become final, no further consideration by the Commission was
allowed. Unlike the statute at issue in Brennan, however, the ERA
does not contain any limitation on discretionary review; the ERA is
silent on the matter. See 42 U.S.C. § 5851(b). In this case we
are persuaded that the ARB correctly concluded that it had the
inherent authority to reconsider its earlier ruling awarding
attorney’s fees and costs.
B.
The reasonableness of an agency’s reconsideration implicates
two opposing policies: “the desirability of finality on one hand
and the public’s interest in reaching what, ultimately, appears to
be the right result on the other.” Civil Aeronautics Board v.
Delta Airlines, Inc., 367 U.S. 316, 321, 81 S.Ct. 1611, 1617
(1961). An agency’s inherent authority to reconsider its decisions
is not unlimited. An agency may not reconsider its own decision if
to do so would be arbitrary, capricious, or an abuse of discretion.
5 U.S.C. § 706(2)(A). Reconsideration must also occur within a
reasonable time after the first decision, and notice of the
agency’s intent to reconsider must be given to the parties. See
Dun & Bradstreet Corp., 964 F.2d at 193; Bookman v. United States,
453 F.2d 1263, 1265 (Ct. Cl. 1972).
The Court is persuaded that the ARB’s decision to reconsider
in this case based on the circumstances surrounding the misdelivery
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of Brown & Root’s brief was reasonable. The ARB also acted
promptly and allowed additional briefing by the parties. On
October 16, 1998, the ARB accepted the ALJ’s recommendation
regarding attorney’s fees only after noting that Brown & Root had
not filed a brief. Ten days later, on October 26, 1998, Brown &
Root filed its Motion for Reconsideration. On November 20, 1998,
the ARB notified the parties of its intent to reconsider the case
and allowed additional briefing from both parties.
IV.
We conclude that the ARB had the inherent authority to
reconsider its decision and order awarding Macktal attorney’s fees
and costs. We also conclude that the ARB did not abuse its
discretion in reconsidering its decision and order. Macktal’s
Petition for Review is DENIED, and the ARB’s Decision and Order on
Reconsideration is AFFIRMED.
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