DATE: 4-23-91

CASE NO: 91-ERA-0035

IN THE MATTER OF

Douglas Billings,
    Complainant,

    v.

Office of Workers' Compensation Programs,
    Respondent

Counsel:

Before: CHARLES P. RIPPEY
    Administrative Law Judge

    The Complainant filed a claim which he said was under the Energy Reorganization Act of 1974, 42 U.S.C. Sec. 5851 against Ms. Stephanie Fenton, an employee of the Office of Workers' Compensation Programs, U.S. Department of Labor.

    Under that Act complaints may be made only by employees of Nuclear Regulatory Commission licensees and their contractors and subcontractors.

    Neither the United States Department of Labor nor its Office of Workers' Compensation Programs is a licensee of the Nuclear Regulatory Commission or a contractor or subcontractor of the Commission. On its face, the complaint against Stephanie Fenton is in her capacity as a Senior Claims Examiner for the Office of Workers' Compensation Programs. No one, by virtue of holding that position, is a licensee of the Nuclear Regulatory Commission or a contractor or subcontractor of the Commission.

    In his complaint, the Complainant states that he believes that this case is "cognizable under the law" and he cites Vera M. English v. Dennis E. Whitfield, Deputy Secretary of Labor, United States Department of Labor, 858 F. 2d 957, C.A. 4, 1988 in support of his position. That case does not support the Complainant's position. The issue in that case involved the question of whether or not the complaint was time barred under the limitation provisions of the Act. In that case the complainant was an employee of an operator of a nuclear fuel production facility licensed by the Nuclear Regulatory Commission.

    Since the assertions contained within the Complaint, if totally accepted as true, demonstrate unambiguously that there could be no jurisdiction under the Energy Reorganization Act, the complaint of Douglas Billings under that Act is hereby dismissed as failing to state a cause of action.

       CHARLES P. RIPPEY
       Administrative Law Judge
       Voice Phone 202-653-5120
       Fax Number 202-653-8682

Washington, D.C.

CPR:bdw