Date Issued: January 6, 1998
Case No. 94-TSC-5

In the Matter of:

   JUDY K. STEPHENSON
      Complainant

       v.

   NATIONAL AERONAUTICS
   & SPACE ADMINISTRATION
      Respondent

BEFORE: LEE J. ROMERO, JR.
Administrative Law Judge

   This case arises under the employee protection provision of the Clean Air Act, 42 U.S.C. § 7622 and the pertinent regulations at 29 C.F.R. Part 24. The undersigned issued a Recommended Decision and Order on November 13, 1997. On November 21, 1997, the Administrative Review Board issued an order establishing a briefing schedule which allowed Complainant to file a brief by December 31, 1997.

   On December 20, 1997, Complainant filed a Motion for Reconsideration by

facsimile with the Office of Administrative Law Judges. Complainant contends that the undersigned failed to follow the Administrative Review Board's "mandate" to apply Hill, et al v. TVA, Case No. 87-ERA-24 and Ottney v. TVA, Case No. 87-ERA-23 (Sec'y May 24, 1989) to her case. ¹ On December 24, 1997, Respondent filed a memorandum opposing Complainant's motion for reconsideration. Respondent argued that the undersigned has no jurisdiction over the matter once the recommended decision and order was issued and transmitted to the Administrative Review Board. In addition, Respondent argued that Hill and Ottney is not applicable to Complainant because those matters involved the Energy Reorganization Act unlike the present matter which involved the Clean Air Act.

   The Clean Air Act nor the implementing regulations at 29 C.F.R. Part 24 expressly authorize the reconsideration of a recommended decision and order by an administrative law judge. The case law indicates that, in the absence of an order staying the Board's action on review, an administrative law judge does not have jurisdiction over the matter once the recommended decision and order has been issued. See Dutile v. Tighe Trucking, Inc., Case No. 93-STA-31 (Sec'y Mar. 16, 1995); Smith v. Tennessee Valley Authority, Case No. 89-ERA-12 (Sec'y June 2, 1994); Tankersley v. Triple Crown Services, Inc., Case No. 92-STA-8 (Sec'y Feb. 18, 1993); Roberts v. Battelle Memorial Institute, Case No. 96-ERA-24 (ALJ Jan. 15, 1997); Rex v. Ebasco Services, Inc., Case No. 87-ERA-6 & 40 (ALJ Mem., April 13, 1994).

   Thus, absent authorization from the implementing statute and regulations, or an order stay of the Board's action on review, I find that subsequent to the issuance of the Recommended Decision and Order on November 13, 1997, jurisdiction over this matter passed from the undersigned to the Administrative Review Board.

   Accordingly, Complainant's Motion for Reconsideration is DENIED.

   Ordered this 5th day of January, 1998, in Metairie, Louisiana.

      LEE J. ROMERO, JR.
      Administrative Law Judge

¹ Unlike Complainant's case, in Hill and Ottney the legislative history of the employee protection provision of the Energy Reorganization Act indicated it was legislative intent that certain contractor and subcontractor employees, such as Hill and Ottney, were protected under the provision without an analysis of whether Respondent specifically acted as an "employer." H.R. Conf. Rep. No. 95-1796, 95th Cong., 2nd Sess. 16 (1978); reprinted in 1978 U.S.C.C.A.N. 7304, 7309. See Reid v. Methodist Medical Center of Oak Ridge, Case No. 93-CAA-4 (Sec'y Apr. 3, 1995). The legislative history for the employee protection provision of the Clean Air Act did not provide such a detailed description clarifying who was protected under the provision. See 1977 U.S.C.C.A.N. 1077 at 1404, 1502. Nevertheless, the analysis undertaken in the Recommended Decision and Order is clearly more exhaustive and specific than the limited Hill-Ottney decisional approach.