Date: January 9, 1991
CASE NO. 91-ERA-12

In the Matter of

DOUGLAS E. BILLINGS
    Plaintiff

    v.

TENNESSEE VALLEY AUTHORITY
    Defendant

   This action involves a complaint by Douglas Billings (Billings), plaintiff, against ten individuals and "Others not yet discovered" who are alleged to have conspired against Billings to deprive him of compensation benefits. Plaintiff states that this information came to light in a prehearing submission dated July 30, 1990 filed in another case. The Wage and Hour Division of the Department of Labor investigated this complaint and on November 26, 1990 filed a report that "Our investigation revealed no evidence that the efforts by TVA to reduce and/or terminate your OWCP payments were due to discrimination under the ERA. TVA had an obligation to notify OWCP of possible improper payments." Billings appealed from the decision of Wage and Hour and requested a hearing and the matter was referred to the undersigned Administrative Law Judge for hearing and decision.

   A Notice of Hearing and Prehearing Order was issued on December 12, 1990, scheduling a hearing to commence on January 9, 1991 in Knoxville, Tennessee, and ordering the parties to submit prehearing submissions no later than December 28, 1990. On December 21, 1990, the defendant, Tennessee Valley Authority (TVA), filed a Motion to Dismiss or, alternatively, for Summary Judgment. On December 28, 1990, TVA filed its prehearing submission. On December 28, 1990, Billings filed a Motion to Recuse or, alternatively, for remand. Billings has not filed a prehearing submission or an opposition to the defendant's motion for dismissal and/or summary judgment.

   TVA argues in its motion to dismiss and/or summary judgment that:

   1. Plaintiff's sole basis for relief is his objections to contacts and discussions between TVA employees and various officials in the United States Department of Labor's Office of Workers' Compensation Programs (OWCP) regarding the payment of statutory compensation benefits to Billings. TVA argues that these matters are unquestionably within the official responsibilities of the OWCP officials and that plaintiff is absolutely barred by the Constitution from obtaining statutory sanctions against TVA for those contacts and discussions with OWCP officials, or for any actions that those officials chose to take based upon the petition of TVA. TVA argues that the Federal courts have held that the First Amendment absolutely protects defendant herein from the sort of sanctions that plaintiff seeks to impose on TVA here. TVA argues that no legal basis for statutory sanction is stated in the complaint, since clear constitutional infirmities cannot be overcome.

   2. TVA also argues that plaintiff's action is barred by principles of res judicata inasmuch as it attempts to "plow the same ground" as that which was the subject of previous complaints filed by the plaintiff in Nos. 89-ERA-16 and 90-ERA-18. These two complaints were previously dismissed by this Administrative Law Judge.

   I find that the defendant's motion is meritorious on both grounds and dismissal of the complaint is warranted for each of the following reasons:

1. The basis of the complaint concerns contacts and discussions between TVA employees and other officials which come within First Amendment protections.

2. The basis of the complaint was previously litigated in Nos. 89-ERA-16 and 90-ERA-18. These two complaints were previously litigated and the complaints dismissed. Any further litigation of these same complaints is barred by the principle of res judicata.

3. The plaintiff has failed to comply with an Order directing him to file a prehearing statement on or before December 28, 1990. The Order provided notice to the parties that failure to comply may result in dismissal of the proceeding. The plaintiff has ignored the Order since he has not filed a prehearing statement or requested an extension of time for compliance.

   For these reasons, it is therefore,

   ORDERED that Summary Judgment is hereby entered against the plaintiff, Douglas Billings, and in favor of the defendant, Tennessee Valley Authority, and this case is hereby DISMISSED WITH PREJUDICE.

       ROBERT L. HILLYARD
       Administrative Law Judge