DATE: JUL 26 1988
CASE NO. 88-TSC-3 (Pogue II)

IN THE MATTER OF

BARBARA POGUE
    Complainant

    v.

U.S. DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
    Respondent

Roy Gorman, Esq.
Alan C. Waltner, Esq.
    For the Claimant

Joseph Smith, Esq.
Anthony Alfano, Esq.
    For the Respondent

BEFORE: ELLIN M. O'SHEA
    Administrative Law Judge

    This Office is in receipt of Barbara Pogue's telegrammed July 14, 1988 29 C.F.R. §24.4 appeal, through counsel Gorman and Waltner, of the July T, 1999 adverse determination by the Acting Area Director, ESA, U.S. Department of Labor. This July 7, 1988 Director's determination on Ms. Pogue's May 6, 1988 complaint against the Navy is based on a time period subsequent to the period considered in my recommended decisions issued January 15, 1988 and February 23, 1988, in Barbara Pogue v. U.S. Department of Navy, Case. 87-ERA-21, presently on appeal to the Secretary of Labor. By the Secretary's April 25, 1988 Order Establishing Briefing

Schedule, the parties are presently in the period for submission of reply briefs in 87-ERA-21.

    The Secretary in 87-ERA-21 will be deciding the threshold jurisdiction issue here. That is, whether the Secretary of Labor has jurisdiction under the Solid Waste Disposal Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act and the Toxic Substance Control Act and their implementing 29 C.F.R. §24.4 regulations to adjudge a remedy for aggrieved federal civil service employees who, based on contended environmental whistleblowing, claim these Acts' applicability as protected employees. While to date no Motion for Stay of the hearing schedule mandates of 29 C.F.R. §24.5 has been received by the Office of Administrative Law Judges in this case, this Office has received from the Navy, through Navy Counsel's courtesy copies of his submissions to the Secretary in 87-ERA-21, knowledge of his Motion for Stay of the Department of Labor's Investigation of Ms. Pogue's May 6, 1988 Complaint pending the Secretary's decision. Even without such a Motion to this Office, the determination below would be made in the circumstances here. While this determination delays decision on Complainant's petitioned May 6, 1988 relief, expenditure of her resources until the Secretary rules appears contraindicated by the particular circumstances of this appeal.

    Until the Secretary rules on the threshold jurisdiction issue, to be decided in 87-ERA-21 (Pogue I), judicial efficiency requires any further proceedings here on Ms. Pogue's July 14, 1988 appeal to this forum (Pogue II), be held in abeyance and this order to stay proceedings in 88-TSC-3 be issued. It is so ORDERED, further action here to await the Secretary's decision.

       ELLIN M. O'SHEA
       Administrative Law Judge

EMO:mm