Date: February 12, 1999

Case No.: 1989-ERA-22

In the Matter of:

SHANNON T. DOYLE
    Complainant,

    against

HYDRO NUCLEAR SERVICES,
    Respondent.

   On August 14, 1998, Hydro Nuclear Services ("Respondent") filed a "Motion for Stay Pending Appeal of the Money Judgment of this Administrative Law Judge by Posting Supersedeas Bond" ("Motion for Stay"). Both Respondent and Shannon Doyle ("Complainant') have filed memoranda addressing the standards each asserts this court should apply to decide the motion. However, both parties have neglected to discuss whether this court has the authority to grant such a "Motion to Stay." For the reasons discussed below, I conclude that I do not.

   The employee whistleblower provision of the Energy Reorganization Act ("ERA") was amended in several respects by Section 2902 of the Comprehensive National Energy Policy Act of 1992 ("CNEPA") Pub. L. No. 102-486, 106 Stat. 2776, 3123. In sum, the amendments allow the Secretary of Labor to issue a Preliminary Order pursuant to the ERA, through which certain relief can be granted immediately, pending further review by the Secretary or any judicial appeal. See 42 U.S.C. § 5851(b)(2). The Secretary delegated this power to the Administrative Review Board. See Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May 3, 1996). Further changes delegated this responsibility to the Administrative Law Judges ("ALJ"). 29 C.F.R. § 24.7 (1998).

   However, the amended provisions authorizing Preliminary Orders are not applicable to a case filed prior to the effective date of the CNEPA: "[t]he amendments made by this section shall apply to claims filed under section 211(b)(1) of the Energy Reorganization Act of 1974 (42 U.S.C. § 5851(b)(1)) on or after the date of the enactment of this Act." CNEPA, Pub.L. 102-486, 106 Stat. 2776 (Oct. 24, 1992), § 2902(i).

   Prior to the amendments of the CNEPA, an ALJ only issued a Recommended Decision, which required review by the Secretary of Labor before becoming final.¹ Since I have found that the new amendments do not apply to this case, my authority is therefore limited to issuance of Recommended Decisions to the Secretary of Labor. There is no authority or reason for me to stay enforcement of a mere recommendation. The proper venue for seeking a stay is with the Secretary of Labor through the Administrative Review Board. 29 C.F.R. § 24.8(a).

    So ORDERED.

      RICHARD D. MILLS
      Administrative Law Judge

¹ As discussed above, in cases filed after the effective date of the amendments, the ALJ will issue a Recommended Decision and a Preliminary Order. This Order constitutes the Preliminary Order of the Secretary of Labor, and is effective immediately. Additionally, the Recommended Decision will become the Final Decision of the Secretary of Labor unless a timely petition for review is filed with the Administrative Review Board. 29 C.F.R. § 24.7 (1998).