U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NOS. 98-112
98-122A
ALJ CASE NO. 86-ERA-23
DATE: November 20, 1998
In the Matter of :
JOSEPH J. MACKTAL, JR.
COMPLAINANT,
v.
BROWN AND ROOT, INC.
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
For the Complainant: Stephen M. Kohn, Esq., Michael D. Kohn, Esq., David K.
Colapinto, Esq.
Kohn, Kohn & Colapinto, P.C., Washington, DC
For the Respondent: Richard K. Walker, Esq., Thomas D. Arn., Esq.
Streich Lang, Phoenix, AZ
ORDER GRANTING RECONSIDERATION
On January 6, 1998, the Administrative Review Board determined that
Complainant, Joseph J. Macktal (Macktal), was entitled to attorney fees and costs in connection with
his successful abrogation of a 1987 settlement agreement with Brown and Root, Inc. The settlement
1 Macktal's complaint was filed
in 1985. The ERA was amended in 1992. See n. 4, infra. However, this case was
decided under the pre-1992 law.
2 Brown and Root's brief,
forwarded via U.S. Postal Service Express Mail, specifically was addressed to "Tom
Shepherd, Clerk, U.S. Department of Labor, Administrative Review Board." Mr. Shepherd
is the Clerk of the BRB, and never has been associated with the Administrative Review Board. It
is apparent that the brief was delivered to Mr. Shepherd, because a copy of the brief was returned
to Brown and Root's attorney with a BRB date stamp.
The BRB is located in the same building as the Administrative Review Board,
and ordinarily such misdelivered mail would be re-routed to this Board. However, the transfer of
the brief did not take place in this instance.
3 In a few isolated instances, it has
been suggested that "inherent authority" to reconsider final adjudicative orders cannot
exist, because adjudicative agencies have only such power as is expressly delegated to them by
Congress. See, e.g., Bartlik v. United States Dept. of Labor, 1994 WL 487174, *3 (6th Cir.
1994), and vacating order, 34 F.3d 368 (1994), and en banc decision, 62 F.3d 163
(1995). Viewing the case law in its totality, however, it is clear that this reasoning is incorrect.
Although adjudicative agencies have only the powers delegated to them and
do not carry the full complement of equitable powers of Article III courts, it simply does not follow
that adjudicative agencies have no inherent authorities whatever. It is beyond dispute, for example,
that adjudicative agencies have inherent authority to correct inadvertent ministerial errors.
American Trucking Ass'n v. Frisco Transp. Co., 358 U.S. 133, 145 (1958) ("[T]he
presence of authority in administrative officers and tribunals to correct such [inadvertent ministerial]
errors has long been recognized--probably so well recognized that little discussion has ensued in the
reported cases"). Nor can there be any doubt that administrative tribunals have inherent
authority to bar persons from appearance before them on grounds of improper conduct.
Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926). Similarly, agencies
have inherent authority to set and enforce standards of conduct for attorneys while appearing before
them. Touche Ross & Co. v. SEC, 609 F.2d 570, 581 (2d Cir. 1979). Indeed, it has even
been said that "[i]f the powers exercised by the agency constitute a legitimate reasonable and
direct adjunct to the Commission's explicit statutory power,' Trans Alaska Pipeline Rate
Cases, 436 U.S. 631, 655 (1978), quoting from United States v. Chesapeake & Ohio
Railway Co., 426 U.S. 500, 512 (1976), then an express grant of authority is not necessary to
sustain the validity of the challenged rule or regulation." Touche Ross, 609 F.2d
supra at 579 - 580.
It is also clear that Congress' omission of any reference to reconsideration
authority in the Energy Reorganization Act must be construed in light of the truism that Congress
may be presumed to know the law. Cannon v. University of Chicago, 441 U.S. 677, 698-699
(1979). The decisional law is substantial and long standing for the proposition that agency power
to consider includes inherent power to reconsider -- absent contrary congressional intent. A Congress
that wanted to preclude, limit or otherwise regulate an agency's power to reconsider would do so
expressly, knowing that silence on the matter would be construed to leave the agency's inherent
authority intact. In short, there is simply no support for the proposition that unless Congress
itemizes reconsideration authority in an adjudicative agency's enabling legislation, the agency has
none.
4CAB does not stand for
the proposition that agencies lack inherent authority to reconsider, as the complainant asserts.
Complainant's Opposition to the Motion for Reconsideration at 4. Rather, it holds that when a
statute prescribes specific terms and conditions for reconsideration, the agency cannot act beyond
those terms and conditions by invoking a broader inherent authority.
Nor does the Secretary's comment in Bartlik v. TVA, 88-ERA-15,
supra, questioning whether the Federal Rules of Civil Procedure could be a basis for
reconsideration, amount to an admission in support of Complainant. Id. The Secretary was
merely referring to the fact that the Rules are not themselves a grant of substantive authority. 28
U.S.C. § 2072(b) (the federal rules of procedure "shall not abridge, enlarge or modify
any substantive right"). The procedural rules for reconsideration set out in the Rules apply only
when and if the reconsidering forum is exercising the right to reconsider based on statutory or
inherent powers. Cf.Brennan v. OSHRC, 502 F.2d 30, 33 (5th Cir. 1974)
("To allow the Commission to avail itself of Rule 60(b), F.R.Civ.P. in the situation here
present would be to extend the limits of statutorily conferred jurisdiction through the expediency of
a procedural rule, a result we cannot countenance").
5 The whistleblower provisions
of the Energy Reorganization Act were amended in 1992. Comprehensive National Energy Policy
Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776. However, the 1992 amendments to the Act did
not address the Board's authority to reconsider its decisions.
6 We do not hold Brown and Root
blameless: the company had several opportunities to detect the error, not the least of which was its
own service copy of the brief containing the date stamp of the BRB. However, given the importance
of the opportunity to be heard and the fact that errors were made within the Department, we conclude
that justice is best served in this case by allowing Brown and Root to place its arguments before us.