Case No. 84-ERA-27

In the Matter of

HOWARD SAMUEL NUNN,
    Complainant

    v.

DUKE POWER COMPANY
    Respondent

    This proceeding under the "whistleblower" provision of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (the "Act") was initiated via the filing of a Complaint by Howard S. Nunn with the Department of Labor (DOL) on November 18, 1983. On December 20, 1983 Complainant's claim was denied. The DOL found that Complainant was not fired for discriminatory reasons, but rather was fired for excessive absenteeism. A copy of the decision was sent to Complainant and the same was informed of his right to appeal by transmitting a telegram within five days of receipt of Decision to the Chief Administrative Law Judge requesting a hearing.

    On May 22, 1984 Complainant, by and through his attorney,

inquired of this office as to why a hearing had not been scheduled since a telegram requesting an appeal of the decision of the DOL was sent on December 26, 1983. Attached to Complainant's letter was a copy of the telegram dated December 26, 1983. After reviewing the copy of the telegram, it appears that the telegram was sent to Complainant's counsel rather than to this Office. Although Complainant attempted to appeal the DOL's decision, the appeal was not timely made as required by 29 C.F.R. § 24.4(d)(2)(i). On May 31, 1984 this office issued an order to Show Cause which directed Complainant and Respondent to show cause within 20 days of the date of the order why the case should not be dismissed for failure to timely request a hearing.

    On June 13, 1984 Complainant responded to the order, asking that the order be "vacated" as a telegram requesting a hearing was timely sent to this Of,4ice and again attached a copy of the telegram. On June 21, 1984 Respondent filed a Memorandum which detailed its arguments in favor of the dismissal of the appeal of the Complaint. On June 25, 1984, after the 20-day time period had passed, Complainant again requested that the order to Show Cause be vacated and the case be set for a hearing.

    The Regulations at 29 C.F.R. § 24.4(d) (2) (i) state that:

    the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint.

Further, 18 C.F.R. 18.4 provides that a document is not deemed filed with the office of Administrative Law Judges until received. This office did not receive notice of appeal until 5 months, not 5 days, had passed.

    Establishing time limits and deadlines in many instances is a congressional, not judicial function. In another whistle- blower case under the Toxic Substances Control Act the Third Circuit stated:

...We may not ignore the legislative intent to grant the defendant a period of repose after the limitations period has expired.

...The choice of the appropriate time is not entrusted to the administrative agency or to the courts. it is the result of legislative determination made after weighing the various interests at stake .... It is not for us or the Secretary to casually ignore the statutory limitation.

School District of Allentown v. Marshall, 657 F.2d 16, 20 (3rd Cir. 1918).

    The only basis for less than strict adherence to the statutory limitation is the doctrine of "equitable tolling" which applies where:

[(1)] the defendant has actively misled the plaintiff respecting the cause of action,

[(2)] the plaintiff has in some extraordinary way been prevented from asserting his rights, or

[(3)] the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

Id.

    In applying the foregoing equitable tolling grounds to the case at bar, I find that Complainant has failed to place himself within the parameters of the grounds. The only basis even remotely available to Complainant is the "extraordinary" rationale in view of the fact that he attempted to appeal the case, but there was an error made in the transmission of the appeal. But as Respondent points out in its Memorandum, "Western Union 'cannot be burdened with the full blame' Baez v. S. S. Kresge Co., 518 F.2d 349, 350 (5th Cir. 1975), cert. denied, 425 U.S. 904 (1975) ... where 'rather minimal... procedural safeguards could and should have been established which would have prevented the [error].'" Id.

    Furthermore, Complainant has presented me with no justification for deviating from the procedural rules and applying the equitable tolling doctrine. Counsel for Complainant touts itself as experts in whistleblower cases and should have

immediately inquired of this Office as to why a hearing date had not been set within seven days of receipt of the appeal as required by 29 C.F.R. § 24.5, rather than waiting 5 months to inquire. While the transmittal error certainly creates sympathy for Complainant, I conclude that neither the Act nor the regulations gives me the discretion to ignore the clear statutory mandate. See Rice v. New England College, 676 F.2d 9 (1st Cir. 1982).

    Even if the interest of justice might be served in this particular case by [permitting this claim to be heard], in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.

    Accordingly, I hereby Order that the Complaint is DISMISSED.

       E. EARL THOMAS
       Deputy Chief Judge

Dated: 20 SEP 1984
Washington, D. C.

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