Dr. Marcus further stated that private-sector health care providers have informed his wife that her cancer and his hypertension and severe allergies are npre-existing conditions [that] will make it impossible for them to obtain benefits comparable with those they presently have under the EPA-employee health plan." (C1. Mtn. at 3.) Further, Dr. Marcus asserted that should coverage under the health plan terminate, the Marcus family "will suffer irreparable harm caused by their inability to obtain adequate medical care" and that both he and his wife n face a potentially life threatening problem based on their inability to obtain adequate ongoing medical treatment." (C1. Mtn. at 3.)

   Dr. Marcus stated that fear of losing health coverage has caused his wife difficulty sleeping, loss of appetite, frequent stomach aches and headaches. (Affidavit of Elaine Marcus.) In addition, it has caused Dr. Marcus difficulty concentrating, frequent loss of temper, back pain, headaches, weight increase, and gastro-intestinal disturbance. (Affidavit of Dr. Marcus.)

   Before considering the merits of Dr. Marcus's motion, I must consider two threshold questions: whether I have jurisdiction to decide this matter, and if so, whether I have authority under the law to issue a temporary restraining order or an injunction in a whistleblower case.

   This is an issue of first impression. I can find only one instance of a court reviewing the authority of a federal administrative law judge to issue a temporary restraining order or an injunction. In 1976 the United States District Court for the District of Delaware examined whether an administrative law judge of the Federal Trade Commission "had the power to issue a preservation order (which was characterized as being in the nature of a preliminary injunction)." Exxon Corp. v. Federal Trade Commission, 411 F. Supp. 1362, 1367 (1976). In that case, the Administrative Law Judge issued an order requiring several major oil companies, which were under investigation for anticompetitive practices, "to refrain from the destruction of virtually all documents in existence at the time the order was issued." Id. at 1365. The Administrative Law Judge issued the order after a written motion asserting that the oil companies, document retention programs were likely to destroy what might be potentially relevant evidence. Id. at 1365.

   In that case, the court noted that the Administrative Law Judge issued the order "under a newly claimed power." Moreover, the court noted that the

Administrative Procedure Act did not specifically grant the power to issue such orders. See id., 1377-78. Consequently, the court held that "in making a determination of the existence and scope of such a power, the Court must be guided by the limitations Congress has placed on the exercise of specifically granted FTC powers." Id. at 1378. Thus, to determine whether administrative law judges have authority to order injunctive relief, courts should look to the powers granted by the agency' B organic acts and the other statutes made applicable to their operations. See id., 1377-78. The district court also noted that in FTC v. Dean Foods, 384 U.S. 597 (1966), the Supreme Court had found "that the FTC possesses "ancillary powers' to the degree that they are necessary for the preservation of granted powers." Exxon Corp., at 1378.

   On the issue of the existence and scope of an administrative law judge's power to order injunctive relief, the court found that "the question is a difficult one calling for the examination of constitutional rights as well as statutory powers. n Id. at 1378. The court declined to decide the issue. Instead, the court found that the Administrative Law Judge' B injunctive order did not provide sufficient information for the court to review the exercise of discretion. Id. at 1378-79 Therefore, the court vacated the order remanded the case to the agency for further findings. Id. at 1379.

   Applying the court's analysis to Dr. Marcus's request, neither DOL Procedures for Handling Discrimination Complaints under Federal Employee Protection Statutes, 29 C.F.R. Part 24, nor DOL Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18, specifically provide for the issuance of injunctions. In addition, the six employee protection statutes under which Dr. Marcus brought his claim do not "pacifically grant such authority. Furthermore, I find no prior instances of a DOL administrative law judge having ordered injunctive relief in a whistleblower case.

   In his motion, Dr. Marcus asserted that since 29 C.F.R. §18.1 (a) requires the administrative law judge to apply the Federal Rules of Civil Procedure in all matters not provided for in the DOL regulations, and since the Secretary of Labor has regularly applied this regulation to whistleblower proceedings, see e.g. Holder v. Kaiser Engineers, Inc., No. 84-ERA-5 (Sec'y June 28, 1985), the administrative law judge must therefore apply Rule 65 of the Federal Rules of Civil Procedure to this case. (C1. Mtn. at 4-5.) However, Dr. Marcus provided no precedent for this assertion. The regulations empower me to issue a recommended decision and order in this proceeding,

which is not enforceable in a court of law. The Secretary of Labor must issue the final and enforceable order in this case. Since an injunction must be enforceable to be effective, and I lack enforcement authority, as well as the authority to issue a final order in this case, and since I do not have the case before me, I refer this matter to the Secretary of Labor for resolution.

   Dr. Marcus may also wish to consider the federal courts as an appropriate forum, because

[t]here is a limited judicial power to preserve the jurisdiction of the reviewing court or maintain the status quo by injunction pending review of an agency action through the prescribed statutory channels, and such power is deemed merely incidental to the jurisdiction of the court to review final agency action.

73A C.J.S. Public Administrative Law and Procedure § 196 (citing United States--F.T.C. v. Dean Foods Co., 384 U.S. 597. See also National Fed'n of Fed. Employees v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987).

   In sum, the regulations state that the authority to issue final and enforceable orders rests with the Secretary of Labor. 29 C.F.R. § 24.6(b). In addition, the regulations state that the federal district courts enforce the Secretary' s final orders and grant injunctive relief. § 24.8. The regulations do not provide administrative law judges with the authority to perform these functions. Rather, the administrative law judge's authority extends to conducting hearings, making findings of fact, conclusions of law, and recommendations to the Secretary of Labor. § 24.6(a).

   Further, since on December 3, 1992, I issued a recommended decision and order and transferred the case to the Secretary of Labor for a final decision, fulfilling my regulatory duties, the entire matter is pending before the Secretary. Since the administrative file is in the Office of the Secretary, and since Dr. Marcus has asserted that he will suffer irreparable harm if the temporary relief is not ordered, this matter is referred to that Office for prompt resolution.

   WHEREFORE, it is ORDERED that Complainant's Motion for a Temporary Restraining Order and an Injunction is referred to the Secretary of Labor for appropriate consideration and resolution.

      DAVID A. CLARKE,
      Administrative Law Judge

Washington, D.C.
DAC/cal