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Exxon Chems. Am. v. Chao

ELR Citation: 33 ELR 20004
Nos. No. 00-60569, 298 F.3d 464/(5th Cir., 07/30/2002)

The court dismisses a company's petition for review of a U.S. Department of Labor (DOL) Administration Review Board (ARB) order remanding for further fact-finding and consideration an employee's claim that the company violated the Clean Air Act's (CAA's) and Toxic Substances Control Act's (TSCA's) whistleblower provisions. An administrative law judge (ALJ) concluded that the employee failed to establish that the company had retaliated against him for engaging in protected activities under the CAA and TSCA and dismissed his claim. On appeal, the ARB vacated the ALJ's decision on the merits and remanded the case. The company then appealed the remand order in federal court. The court first holds that it lacks jurisdiction because the ARB's remand order was not a final agency action. The action was not the consummation of the DOL's decisionmaking process because the ARB has not issued a decision definitively resolving the merits of the company's case. Moreover, the ARB's remand order does not have a substantial effect on the company's rights such that they cannot be altered by subsequent action by the ARB. Nor does the court have jurisdiction under the exception set forth in Leedom v. Kyne, 358 U.S. 184 (1958). The focus of the Kyne exception is whether "an agency exceeds the scope of its delegated authority or violates a clear statutory mandate." In enacting the CAA and TSCA, Congress delegated the authority to the Secretary to remand cases to the ALJ for further consideration. Here, the ARB, instead of the Secretary of Labor, issued the remand order. Thus, the agency itself has not exceeded the scope of its congressionally delegated authority or its clear statutory mandate. The court then holds that even if the Kyne exception applies to internal agency delegations of authority, the company's claim lacks merit because the ARB clearly acted within the scope of its authority.

Counsel for Petitioner
F. Walter Conrad Jr.
Baker & Botts
98 San Jacinto Blvd., Ste. 1500, Austin TX 78701
(713) 229-1230/(512) 322-2500

Counsel for Respondents
Gary K. Sterman
U.S. Department of Labor
Washington DC 20001
(202) 219-8247