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 thе Court to review and vacate a decision and order of the Administrative Review Board of the Department of Labor (ARB) 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
Macktal and Brown & Root later entered into a settlement agreement. Mack-tal 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 administrative law judge (ALJ) recommended that the Secretary grant the 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,
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 а 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 agenciеs 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 аgreement. The ARB remanded 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 Oсtober 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 clеrk 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 award
On Novembеr 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 appropriate because it would give the ARB an opportunity to correct an error (misdeliv-ery of a brief), and because Brown & Root had requested reconsideration within a reasonable time. The ARB allowed Mack-tal and Brown & Root to file additional reply briefs not provided for in the original briefing schedule.
While the ARB wаs 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,
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.
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,
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,
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 prоhibited 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 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
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),
B.
The reasonableness of an agency’s reconsideration implicates two opposing policies: “the dеsirability 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 Air Lines, Inc.,
The Court is persuaded that the ARB’s decision to reconsider in this case based on the circumstances surrounding the misdelivery 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 allowеd 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 thе 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.
Notes
. Because the January 6, 1998, order did not establish the amount of fеes and costs owed, it was not final for purposes of appellate review. When a district court awards attorney's fees, that order is not finad for appellate review until the court sets the amount of the award.
Southern Travel Club, Inc. v. Carnival Air Lines, Inc.,