Carolina Power and Light Co. v. U.S. Dept. of Labor

• Decision Date: 10 January 1995
• Docket Number: No. 94-1459,94-1459
• Citation: 43 F.3d 912
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: 129 Lab.Cas. P 11,273 CAROLINA POWER AND LIGHT COMPANY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, James DeBose, Intervenor.

Page 912

43 F.3d 912

129 Lab.Cas. P 11,273

CAROLINA POWER AND LIGHT COMPANY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, James DeBose, Intervenor.

No. 94-1459.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 27, 1994.

Decided Jan. 10, 1995.

ARGUED: Richard Kenneth Walker, Streich Lang, P.A., Phoenix, AZ, for petitioner. Edward Dean Sieger, Senior Appellate Atty., U.S. Dept. of Labor, Washington, DC, for respondent. Stephen Martin Kohn, Kohn, Kohn & Colapinto, P.C., Washington, DC, for intervenor. ON BRIEF: Thomas D. Arn, Elliot S. Isaac, Streich Lang, P.A., Phoenix, AZ; Rosemary G. Kenyon, Carolina Power & Light Co., Raleigh, NC, for petitioner. Thomas S. Williamson, Jr., Sol. of Labor, Allen H. Feldman, Associate Sol. for Special Appellate and Supreme Court Litigation, Steven J. Mandel, Deputy Associate Sol., U.S. Dept. of Labor, Washington, DC, for respondent.

Before ERVIN, Chief Judge, WILLIAMS, Circuit Judge, and CHASANOW, United States District Judge for the District of Maryland, sitting by designation.

Dismissed for lack of jurisdiction by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge ERVIN and Judge CHASANOW joined.

OPINION

WILLIAMS, Circuit Judge:

This is an appeal from an order of the Secretary of Labor remanding to the Administrative Law Judge for further negotiation a settlement agreement entered into under Sec. 211 of the Energy Reorganization Act (ERA), 42 U.S.C.A. Sec. 5851 (West 1983 & Supp.1994). ¹ Section 211 gives absolute immunity from on-the-job retaliation to "whistleblowing" employees who report safety violations of their employers to the Nuclear Regulatory Commission. In October 1991, James B. DeBose filed a complaint pursuant to Sec. 211 with the Department of Labor against his employer, Carolina Power and Light (CP & L), claiming that CP & L had demoted him because he had engaged in activities protected under the ERA. After DeBose filed the complaint, but before the Secretary of Labor (Secretary) took any action, DeBose and CP & L entered into a settlement agreement, which they submitted for the Secretary's approval pursuant to Sec. 211(b)(2)(A). Following the recommendation of an Administrative Law Judge, the Secretary refused to approve the agreement because he determined that the agreement not only swore the parties to secrecy, but also bound the Department of Labor to the same promise of confidentiality. This promise, the Secretary concluded, would violate his duties under the Freedom of Information Act, 5 U.S.C.A. Sec. 552 (West 1983 & Supp.1994). Therefore, the Secretary refused to "enter into" the agreement, as mandated by Sec. 211, and remanded the agreement to the Administrative Law Judge for further negotiation. CP & L appealed to this Court to overturn the Secretary's rejection of the agreement and to delineate the Secretary's authority to review settlement agreements under Sec. 211. Because we find the Secretary's remand order was neither a "final order" meriting appellate review under the ERA nor a collateral order within the scope of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and its progeny, we dismiss this appeal for lack of jurisdiction.

I.

In response to the increasing production and consumption of nuclear power in the private sector, Congress passed the Energy Reorganization Act of 1974. Among the many goals of this legislation, Congress intended to promote nuclear safety by encouraging employees at nuclear power facilities to report any safety violations to the Nuclear Regulatory Commission. To remove any disincentive to reporting, Congress added Sec. 211 to the Energy Reorganization Act in 1978 to prevent employers from engaging in on-the-job retaliation against employees who report safety violations. If an employer does so discriminate, Sec. 211 provides the employee relief through administrative process in the Department of Labor.

Once a disgruntled employee files a complaint under Sec. 211(b)(2)(A) Within ninety days of the receipt of such complaint the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subparagraph (B) or denying the complaint.... The Secretary may not enter into a settlement terminating a proceeding on a complaint without the participation and consent of the complainant.

42 U.S.C.A. Sec. 5851(b)(2)(A). Under this section, the Secretary must take one of three actions: he must grant relief, deny relief, or enter into a settlement with the parties. Macktal v. Secretary of Labor, 923 F.2d 1150, 1153 (5th Cir.1991). After the Secretary takes action, Sec. 211(c) stipulates that "[a]ny person adversely affected or aggrieved by an order issued under subsection (b) of this section may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred." 42 U.S.C. Sec. 5851(c)(1). Pursuant to this provision, CP & L challenges the Secretary's remand of its settlement agreement with DeBose.

II.

The Department of Labor argues that the Secretary's order of remand does not constitute an appealable order under Sec. 211(c). We agree. The Supreme Court has noted "[t]he strong presumption ... that judicial review [of agency decisions] will be available only when agency action becomes final." Bell v. New Jersey, 461 U.S. 773, 778, 103 S.Ct. 2187, 2191, 76 L.Ed.2d 312 (1983). Because federal courts are constitutionally courts of limited jurisdiction, the statute must overcome this presumption by providing an explicit basis for appealing a non-dispositive order. Nothing in Sec. 211 directs us to entertain appeals of non-final orders.

Compared to many other statutes using approximately the same language, Sec. 211(c) is noteworthy in that it does not explicitly limit appeals to "final orders" as do many similar statutes. See Stevedoring Servs. of Am. v. Director, Office of Workers' Compensation Programs, 29 F.3d 513, 515-16 n. 2 (9th Cir.1994) (Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(c)); Trans Fleet Enter. Inc. v. Boone, 987 F.2d 1000, 1004-05 (4th Cir.1992) (Surface Transportation Assistance Act, 49 U.S.C.App. Sec. 2305(d)); Spruill v. Merit Systems Protection Bd., 978 F.2d 679, 683 (Fed.Cir.1992) (Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7703(a)(1)); In re Perry, 882 F.2d 534, 537 (1st Cir.1989) (Occupational Safety and Health Act, 29 U.S.C. Sec. 660(a)). Section 211, instead, discusses appeals from "order[s] issued under" Sec. 211(b) (emphasis added). One might argue that this distinction requires us to hold that the omission of the word "final" means that non-final orders are appealable under Sec. 211.

The Eleventh Circuit confronted this question in Jim Walter Resources, Inc. v. Federal Mine Safety and Health Review Comm'n, 920 F.2d 738, 743 (11th Cir.1990): "Although the statute uses the term 'order' rather than 'final order,' this omission alone is insufficient to overcome the general presumption that judicial review of administrative actions is available only when such decisions have become final." We agree with this reasoning. The Congressional decision to use general language rather than specific language, in and of itself, will not rebut the strong judicial presumption in favor of the appealability of final orders only.

Moreover, Congress wrote the ERA in such a way that the Secretary of Labor's only option is to issue an order that is inherently "final" in nature. Assuming that a complaint is not terminated by virtue of a settlement, the Secretary must either issue an order providing relief to the complainant or an order denying the complaint. 42 U.S.C. Sec. 5851(b)(2)(A). Whichever decision is made by the Secretary will have the effect of being the final administrative action taken on the matter. The ERA makes no allowances for appellate review other than in those instances when a person has been "adversely affected or aggrieved by an order issued under subsection (b)." Id. at Sec. 5851(c). There is no statutory basis upon which we can review an action taken by the Secretary that was neither an order providing relief or a denial of a complaint.

Therefore, any order issued by the Secretary is, in effect, a final one, "end[ing] the litigation on the merits and leav[ing] nothing for the court to do but execute the judgment." Jim Walter Resources, 920 F.2d at 744 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). The order here does not satisfy this very clear test. The Secretary explicitly "remand[ed the dispute] to the ALJ for further proceedings," and "encourage[d] the parties to reconsider ... the settlement ... and to submit an amended settlement to the ALJ." (J.A. at 62.)

We have held that administrative remand orders similar to this one are not final orders under statutory language almost identical to that contained in Sec. 211(c). For instance, the Federal Mine Safety and Health Act (the "FMSHA") grants appellate review to "[a]ny person adversely affected or aggrieved by an order of the Commission." Monterey Coal Co. v. Federal Mine Safety and Health Review Comm'n, 635 F.2d 291, 292 (4th Cir.1980) (quoting 30 U.S.C. Sec. 816(a)(1)). In Monterey Coal, we found that this language did not grant us jurisdiction to review a Commission order that reversed and remanded an ALJ decision finding Monterey Coal guilty of a safety violation. Relying on this Court's earlier opinion in Fieldcrest Mills, Inc. v. Occupational Safety and Health Review Comm'n, 545 F.2d 1384 (4th Cir.1976) (finding that an OSHRC order vacating and remanding an administrative proceeding was not a final order and therefore not ripe for appellate court review), the court held that...