In his decision the ALJ finds that Respondent violated the ERA, states that he
subsequently will issue a supplemental order concerning fees and costs, and recommends that the
Secretary issue an order providing for reinstatement and other relief. R. D. and O. at 34-37.
[Page 2]
Regulations effective March 11, 1998, specify that the ALJ who issues a
recommended decision that the complaint has merit is also to issue a preliminary order granting
relief under Section 211:
(2) In cases
brought under the Energy
Reorganization Act, when an
administrative law judge issues a
recommended order that the complaint
has merit and containing the relief
prescribed in paragraph (c)(1) of this
section, the administrative law judge
shall also issue a preliminary order
providing all of the relief specified in
paragraph (c)(1) of this section with the
exception of compensatory damages.
This preliminary order shall constitute
the preliminary order of the Secretary
and shall be effective immediately,
whether or not a petition for review is
filed with the Administrative Review
Board. Any award of compensatory
damages shall not be effective until the
final decision is issued by the
Administrative Review Board.
63 Fed. Reg. 6624 (Feb. 19, 1998), to be codified at 29 C.F.R. §24.7 (c)(2).
Accordingly, this case is remanded to the ALJ for issuance of a preliminary
order awarding the relief specified in the R. D. and O. other than compensatory damages.2 The ALJ's preliminary order
should be issued within 20 days of the date of this order and shall constitute the preliminary order
of the Secretary. When the ALJ has issued his supplemental order on attorney's fees and costs
(See R. D. and O. at 37), he shall include that relief in his preliminary order.
See Varnadore v. Oak Ridge National Laboratory and Lockheed Martin Energy
System , Case Nos. 94-CAA-2, 94-CAA-3, Sec. Order, Sept. 11, 1995. Respondent's
Petition for Review will be held in abeyance pending the ALJ's order on remand.
[Page 3]
SO ORDERED .
KARL J. SANDSTROM
Member
PAUL GREENBERG
Member
[ENDNOTES]
1 The amendments to the ERA
contained in the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776
(Oct. 24, 1992), apply to this case in which the complaint was filed on January 15, 1997, after the effective
date of the amendments.
2 We emphasize that we
are not requiring any changes to the R. D. and O., merely assuring that the Administrative Law
Judge's responsibility to issue preliminary orders is carried out.