(a) The decision of the administrative law judge will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in paragraph (c) of this section, as appropriate. In
cases arising under the ERA, a determination that a violation has
occurred may only be made if the complainant has demonstrated by a
preponderance of the evidence that the protected activity was a
contributing factor in the unfavorable personnel action alleged in the
complaint. In cases arising under the other six statutes listed in
Sec. 24.100(a), a determination that a violation has occurred may only
be made if the complainant has demonstrated by a preponderance of the
evidence that the protected activity was a motivating factor in the
unfavorable personnel action alleged in the complaint.
(b) In cases under the Energy Reorganization Act, if the
complainant has demonstrated by a preponderance of the evidence that
the protected activity was a contributing factor in the unfavorable
personnel action alleged in the complaint, relief may not be ordered if
the respondent demonstrates by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the absence
of any protected activity. In cases under the other six statutes listed
in Sec. 24.100(a), even if the complainant has demonstrated by a
preponderance of the evidence that the protected activity was a
motivating factor in the unfavorable personnel action alleged in the
complaint, relief may not be ordered if the respondent demonstrates by
a preponderance of the evidence that it would have taken the same
unfavorable personnel action in the absence of any protected activity.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
24.104(d) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the administrative law judge,
and a complaint may not be remanded for the completion of an
investigation or for additional findings on the basis that a
determination to dismiss was made in error. Rather, if there otherwise
is jurisdiction, the administrative law judge will hear the case on the
merits.
(d)(1) If the administrative law judge concludes that the
respondent has violated the law, the order shall direct the respondent
to take appropriate affirmative action to abate the violation,
including reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. In cases arising under the Safe Drinking Water Act or the
Toxic Substances Control Act, exemplary damages may also be awarded
when appropriate. At the request of the complainant, the administrative
law judge shall assess against the respondent, all costs and expenses
(including attorney fees) reasonably incurred.
(2) In cases brought under the Energy Reorganization Act, when an
administrative law judge issues a decision that the complaint has merit
and orders the relief prescribed in paragraph (d)(1) of this section,
the relief ordered, with the exception of compensatory damages, shall
be effective immediately upon receipt, whether or not a petition for
review is filed with the Administrative Review Board.
(3) If the administrative law judge determines that the respondent
has not violated the law, an order will be issued denying the
complaint.
(e) The decision will be served upon all parties to the proceeding.
Any administrative law judge's decision issued under any of the
statutes listed in Sec. 24.100(a) will be effective 10 business days
after the date of the decision unless a timely petition for review has
been filed with the Administrative Review Board. An administrative law
judge's order issued under the Energy Reorganization Act will be
effective immediately upon receipt, except for that portion of the
order awarding any compensatory damages.
