U. S. Department of Labor
Office of Administrative Law Judges
211 Main Street
San Francisco, California 94105
Suite 600
(415) 974-0514
FTS 8 454-0514
CASE NO. 84-ERA-6
In the Matter of
CHARLES STOKES
v.
PACIFIC, GAS & ELECTRIC CO./
BECHTEL POWER CORP.
Employer
ORDER GRANTING MOTION TO DISMISS
On March 19, 1984, PG&E/Bechtel Power Corporation
("respondents") filed a motion to dismiss this complaint under the
"whistleblower" provisions of the Energy Reorganization Act of
1974, 42 U.S.C. § 5851 ("the Act"), on the ground that the
complaint was untimely filed under the pertinent statutory and
regulatory provisions. 42 U.S.C. § 5851(b)(1), 29 C.F.R. § 24.3(b).
Complainant filed no response during the 10 days provided by
29 C.F.R. § 18.6(b) but requested and was granted an extension.1
On April 23, 1984, a response was filed, arguing inter alia: (1)
[Page 2]
1 Complainant also requested and was
granted a continuance of the
hearing previously scheduled for April 24, 1984, and expressly
waived the provisions of 29 C.F.R. § 24.5(a) requiring a hearing
within seven days following receipt of the request for hearing.
Further joint requests for extensions pending the outcome of
settlement negotiations were also granted. By letter dated July 6,
1984, complainant requested either withdrawal of his complaint or
dismissal without prejudice. Respondents, by letter dated July 13,
1984, opposed the motion to dismiss without prejudice. Because I
agree that withdrawal or dismissal without prejudice in this forum
is not warranted, I decide the respondents' pending motion.
2 In my judgment an example of
such an affirmative act would have
Seen a statement that he had no right to file under the Act, or
that he had 60 days rather than 30 in which to file a complaint.
An actionable omission would have been a failure to provide an
accurate response had complainant asked for an explanation of his
dismissal or for information concerning his rights under the Act.
See Meyer, supra at 308; compare Affidavit of Charles Stokes,
Attachment 1, of Brief on the Statute of Limitations Defense.
3See Affidavit of Charles
Stokes, supra, paragraph 6.
4 It is noted that when Congress
has intended that a tolling
period should be applied until "awareness" of certain facts occurs,
it has expressly so specified in the statutory framework. See
33 U.S.C. §§ 912(a), 913(a). It has not done so in the Energy
Reorganization Act.