CASE NO. 87-ERA-23

In the Matter of

CHARLES HILL, ET AL.,
    Complainants,

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent.

   On October 2, 1989, Tennessee Valley Authority (TVA) filed a motion for summary decision pursuant to 29 CFR 18.40, seeking dismissal of the complaint on the ground of untimeliness. On November 2, 1989, Complainants filed their opposition to the motion. on November 16, 1989, TVA filed a reply brief. Upon consideration of the motion, supporting and opposing briefs, and various attachments to the motion and briefs of both parties, I have concluded that TVA's motion for summary decision should be denied.

   The complaint charges discrimination in violation of the employee protection provision of the Energy Reorganization Act, 42 U.S.C. § 5851 (the Act). One issue in the case is whether the 30-day limitations period prescribed in the Act should be tolled on equitable grounds. TVA asserts that there is no genuine issue of material fact as to the untimeliness of the complaint, and that it is entitled as a matter of law to have the complaint dismissed. Complainants argue that summary decision procedure is

not appropriate for deciding issues of equitable tolling.

   Several considerations persuade me to the conclusion that, under the circumstances of this case, the motion for summary decision must be denied. I begin by noting that under 29 CFR 18.41 summary decision is not a matter of right, but calls for the sound exercise of discretion. While the regulation requires denial of summary decision where a genuine issue of material fact is shown, it only permits summary disposition in the absence of such a showing. "Where a genuine question of material fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing." 29 C.F.R. 18.41(b).

   While the case was before the Secretary of Labor, on appeal from a summary decision based on the conclusion that Complainants are not protected by the statute, the Secretary declined to consider the alternative issue of timeliness primarily because no hearing had been held on the issue. The Secretary went on to say that, on remand, Complainants would have the burden of proving that the facts justify application of the Doctrine of equitable tolling. Thus, if the Decision and order of Remand is not exactly a mandate for an evidentiary hearing, it strongly suggests it. The suggestion is only reinforced by other decisions of the Secretary on the same issue arising under related legislation. See McGough v. United States Navy, Case No. 86-ERA-18 (Secr. Dec., 1988); In the Matter of Charles Kent, Case No. 84-WPC-2 (Secr. Dec., 1987)

   There is another consideration which, to my mind, is almost controlling by itself. The Act requires an expedited decision. It contemplates a decision by the Secretary within 90 days of the receipt of a complaint. In this case more than three years has elapsed since the filing of the complaint in October, 1986. I have not overlooked the important policy underlying Fed. Rules Civ. Proc. Rule 56, 28 U.S.C.A., which provides for summary judgment procedure. See Celotex Corp, v. Catrett, 477 U. S. 317, 327, 106 S. Ct. 2548, 2555 (1986). But under the circumstances of this case, I believe it is more important to proceed to a full trial of all the issues, so as to make a record which will permit a determination of the case by the Secretary even if I should

sustain the timeliness objection and my ruling should be reversed on appeal.

   TVA's Motion for Summary Decision on Timeliness is denied. The issue of timeliness will be addressed in the recommended decision to be issued after the hearing.

       NICODEMO DE GREGORIO
       Administrative Law Judge

Dated:
Washington, D. C.

NDG/bac