Mr. Macktal's representatives in the above-captioned action . . .
hereby agree that they will not call Mr. Macktal as a witness or join
Mr. Macktal as a party in any administrative or judicial proceeding
in which [Macktal's attorneys] are now, or in the future may be,
counsel or parties opposing any of the Comanche Peak companies,
organizations, programs or individuals as defined above; nor will
[Macktal's attorneys] do anything to suggest or otherwise to induce
any other attorney, party, or administrative agency, or
administrative or judicial tribunal to call Mr. Macktal as a witness
or to join Mr. Macktal as a party in such a proceeding. Further,
Mr. Macktal hereby agrees that he will not voluntarily appear as a
witness or a party in any such proceeding; and Mr. Macktal further
agrees that if served with compulsory process seeking to compel
his appearance or joinder in such a proceeding, he will immediately
notify the undersigned representative of Brown & Root, or his
successor, in writing and thereafter take all reasonable steps,
including any such reasonable steps as may be suggested by the
representatives of Brown & Root, to resist such compulsory
process.
3 In April 1996, the Secretary
delegated authority to issue final agency decisions under the ERA and similar statutes to this
Board. Sec. Ord. 2-96, 61 Fed.Reg. 19,978.
4 Prior to its amendment in
1992 the ERA did not explicitly include internal complaints among the actions which were
protected. See, 42 U.S.C. 5851(a) (1988). In Brown & Root v. Donovan,
supra, the Fifth Circuit ruled that the ERA did not protect such complaints.
5 The ALJ expressed
significant doubt as to whether attorneys fees could be awarded in the circumstances of this case,
but ruled that he was bound by the Board's remand order. ID&O at 3 n.1
6 Brown & Root also asserts
that Macktal is not entitled to attorney's fees because he has not proven that he
"incurred" a liability for payment of fees as required by the ERA, and that, if the
Board finds that attorney's fees are due, the amount recommended by the ALJ should be reduced
by $35,000, the sum paid Macktal under the settlement agreement which he abrogated and which
he has not repaid. In light of the result reached in this Decision, it is unnecessary to address these
arguments.
7 We note that the "law
of the case" doctrine does not preclude us from revisiting the attorney's fees issue where
there has been an intervening change in the law. The doctrine is a prudential rather than a
jurisdictional restriction on a court's authority to reconsider an issue. See Messenger v.
Anderson, 225 U.S. 436, 444, 32 S.Ct. 739 (1912). "When intervening legal authority
makes clear that a prior decision bears qualification, that decision must yield."
Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990). See
also, Crocker v. Piedmont Aviation, Inc., 49 F.3d 735,738-741 (D.C. Cir. 1995).
8 References to ALJ
Recommended Decisions and Orders are to opinions as published on the Department of Labor's
World Wide Web site www.oalj.dol.gov. We use the OALJ citation format set forth at
www.oalj.dol.gov/cite.htm.