DATE:     January 23, 1992
CASE NO. 87-ERA-17



IN THE MATTER OF

PATTY S. MIRIELLO,

            COMPLAINANT,

     v.

CAROLINA POWER AND LIGHT COMPANY,

            RESPONDENT,

     AND

CHARLESTON NAVAL SHIPYARD,

            RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                     DECISION AND ORDER TO SHOW CAUSE
     This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA), 
42 U.S.C. § 5851 (1988), and the implementing regulations at

29 C.F.R. Part 24 (1991).  Prior to the scheduled evidentiary
hearing, the Administrative Law Judge (ALJ) issued, on 
September 28, 1987, and November 17, 1987, respectively, the
[Recommended] Order Granting Motions to Dismiss (R.O.) and the
[Recommended] Order Vacating in Part Order Granting Motions to
Dismiss, which are now before me for review.  See 29
C.F.R. § 24.6(a).     In response to the Secretary's Order Establishing Briefing
Schedule, Respondent Carolina Power and Light Company (Carolina
Power) filed a brief in support of the R.O., reiterating the
arguments made before the ALJ in support of its motion to 
[PAGE 2]
dismiss.  Respondent Charleston Naval Shipyard (the Shipyard) and
Complainant did not submit briefs before the Secretary.
     Upon review of the entire record, I conclude that it was
proper for the ALJ to rule on Respondents' motions to dismiss
rather than proceed to an evidentiary hearing.  Further, although
I do not fully agree with the ALJ's rationale, I agree, on the
basis of the record before me, with his ultimate decision to
grant the motions and to dismiss the entire complaint.  The
circumstances require, however, that I provide the parties a
final opportunity to show cause, if any, why the case should not
be dismissed in accordance with this decision.
                             BACKGROUND
     Complainant was employed by Carolina Power as a health
physics technician from February 1985, until August 30, 1985.  In
November 1985, she was employed by the Navy as a nuclear engineer
at the Shipyard and, according to Complainant, was terminated on
July 25, 1986.  Subsequently, Complainant filed a complaint
alleging that both of these employers discriminated against her
in retaliation for protected whistleblowing activity.
     Complainant's allegation against the Shipyard was
investigated and determined by the Wage and Hour Division, U.S.
Department of Labor, Columbia, South Carolina, while her
allegation against Carolina Power was handled by the division in
Raleigh, North Carolina.  On February 17, 1987, the area director
in Columbia issued a notice of determination that Complainant's
allegations against the Shipyard were unprovable, and on 
February 24, Complainant timely requested a hearing.  On March 4,
the Raleigh area director determined that Complainant's
allegations against Carolina Power also could not be
substantiated.  The record, however, contains no request for a
hearing following issuance of this second letter of
determination.
     The case was assigned to the ALJ on or about March 11, 1987. 
At Complainant's request, the ALJ granted Complainant additional
time to secure counsel before scheduling the hearing.  Although
Complainant had been represented by an attorney during the
investigations, the attorney declined to continue.  Before
Complainant secured new counsel or the ALJ scheduled a hearing,
the Shipyard and Carolina Power each filed motions to dismiss,
dated April 28 and May 29, respectively.  The Shipyard asserted
that:  (1) the Act is inapplicable to the Navy and the Shipyard;
(2) Complainant did not engage in protected conduct while
employed at the Shipyard; and (3) the complaint was untimely
filed.  Carolina Power moved for dismissal as a party on the
following grounds:  (1) Complainant never appealed the
preliminary determination in Carolina Power's favor; (2) the
complaint was untimely filed; and (3) the Act is inapplicable to 
[PAGE 3]
Carolina Power because it was not Complainant's "employer" at the
time of the alleged retaliatory actions.  With regard to its
first argument, Carolina Power offered proof that the certified
letter of determination in its favor was returned unclaimed.  It
argued, however, that Complainant nonetheless received both
personal and constructive notice of the determination.
     On June 5, the ALJ issued an Order advising the parties that
Carolina Power's motion would not be considered until Complainant
either had obtained counsel or had sufficient time to obtain
counsel.  He ordered Complainant to list all her attempts to
obtain counsel or to provide the name of her counsel. 
Complainant responded by letter dated June 25, and intimated that
she was awaiting responses from two possible legal
representatives.  
     On July 23, the ALJ issued another Order, thoroughly
detailing all the events that had transpired in the case and
concluding that a hearing should be scheduled since Complainant
had been given a reasonable opportunity to obtain a
representative.  He ordered the parties to submit "avoid dates"
for the month of October and ordered Complainant to file a
response, if any, to the pending motions.
     Although Carolina Power and the Shipyard responded to the
ALJ's July 23 order, Complainant did not.  On August 12, the ALJ
issued a Notice of Hearing, certified mail/return receipt
requested, scheduling the hearing for October 27.  Although not
acknowledged by the ALJ, the return receipt on Complainant's
notice was signed by one Jimmy P. Obi as agent.  The receipt also
bore a new address for Complainant, presumably entered by the
postal officer.
     Subsequently, both Carolina Power and the Shipyard filed
motions, urging the ALJ to rule on the pending motions to dismiss
so that they might avoid the undue burden of preparing for
hearing.  On September 28, the ALJ granted the motions to
dismiss.  He found that Complainant failed to timely appeal the
adverse determination of her complaint against Carolina Power,
even though she received notice of the determination, both
constructively and actually.  The ALJ also concluded that he
lacked jurisdiction over the Shipyard because the Shipyard is not
subject to the Act.  Alternatively, he ruled that even if
jurisdiction existed, the claim against the Shipyard must be
dismissed as untimely filed.
     On October 13, the Shipyard advised the ALJ that while it
agreed with his decision to dismiss the claim, it had received
additional information which could prove that Complainant's
complaint was timely filed.  The ALJ agreed, and by order dated
November 17, he vacated that portion of the September 28 order
setting forth his alternative holding on the timeliness of the 
[PAGE 4]
claim against the Shipyard.  The ALJ emphasized that his
conclusion regarding jurisdiction remained in force. [1]                                DISCUSSION
      First, I agree with the ALJ that Complainant's claim
against the Shipyard must be dismissed for lack of subject matter
jurisdiction.  It is well established that a necessary element of
a valid ERA claim under the employee protection provision is that
the party charged with discrimination be an employer subject to
the Act.  Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984); DeFord v. Secretary of
Labor, 700 F.2d 281, 286 (6th Cir. 1983).  Employers under
the ERA are licensees, or applicants for a license, of the
Nuclear Regulatory Commission, and their contractors and
subcontractors.  42 U.S.C. § 5851(a); Billings v.
OWCP, Case No. 91-ERA-0035, Sec. Final Dec. and Order, Sept.
24, 1991, slip op. at 2; Wensil v. B.F. Shaw Co., Case
Nos. 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34, Sec. Order, Mar.
29, 1990, slip op. at 11, aff'd sub nom. Adams v.
Dole, 927 F.2d 771, 776 (4th Cir. 1991), cert. denied,
60 U.S.L.W. 3260 (U.S. Oct. 7, 1991).  Because the Shipyard is a
Department of Defense utilization facility, exempt from the Act's
licensing requirement, see 42 U.S.C. §§ 2140,
2121 (1988), the complaint against the Shipyard lacks subject
matter jurisdiction, and consequently, dismissal is mandatory. 
Fed. R. Civ. P. 12(h)(3); Sullivan v. Afftrex, Ltd., Case
No. 91-ERA-15, Sec. Order to Show Cause, Aug. 30, 1991, slip op.
at 2, Sec. Final Order of Dismissal, Oct. 30, 1991.
     I also agree with the ALJ's decision to grant Carolina
Power's motion for dismissal on the basis of Complainant's
failure to request a hearing following the preliminary
determination of her complaint against it.  29 C.F.R.
§ 24.4(d)(2)(i). [2]   While I disagree with Carolina
Power's assertion that the five-day regulatory period for filing
a request for a hearing is jurisdictional, see Ward v.
Bechtel Construction Inc., Case No. 85-ERA-9, Sec. Final
Order, July 11, 1986, slip op. at 2; cf. Flener v.
Julius Kolesar, Inc., Case No. 86-STA-26, Sec. Final Dec. and
Order, Mar. 10, 1987, slip op. at 2, dismissal is nonetheless
proper here because the record taken as a whole raises no genuine
issue of material fact so as to warrant a hearing.  See 29
C.F.R. §§ 18.40, 18.41.  See also
generally Celotex Corp. v. Catrett, 477 U.S. 316,
322-24 (1986).  The ALJ afforded Complainant ample time to secure
legal counsel and to counter Carolina Power's argument on this
critical issue, but she failed to do so.  Id.    
     Specifically, the ALJ found that Complainant received actual
notice and two forms of constructive notice of the adverse
determination, yet failed to file an appeal.  While I agree that
on this record Complainant must be charged with constructive 
[PAGE 5]
notice of the letter of determination, I do not accept the ALJ's
findings that Complainant received constructive notice through
notice to her attorney and that she received actual notice from
Area Director, Jerry Stuckey.  
     First, with regard to the sufficiency of notice to
Complainant's counsel, the ERA expressly provides that "the
Secretary shall notify in writing the complainant (and any
person acting in his behalf) . . . of the results of the
[preliminary] investigation."  42 U.S.C. § 5851(b)(2)(A)
(emphasis supplied).  The provision is not written in the
disjunctive as the ALJ stated, R.O. at 3.  Furthermore, the
record proves that at the time the letter of determination was
issued, the attorney-client relationship did not exist. 
See Complainant's letter to Stephanie Glyder, dated March
1, 1987.  Consequently, the ALJ's reliance on Harper v.
Burgess, 701 F.2d 29 (4th Cir. 1983), in finding that notice
to Complainant's counsel constituted notice to Complainant, is
misplaced.  Cf. also Decker v. Anheuser-
Busch, 632 F.2d 1221, 1222 n.3 and 1223-24 (5th Cir. 1980).
     Secondly, the record does not establish that Complainant
received actual notice of the determination letter from Stuckey. 
The only source of this information is counsel for Carolina
Power, who made the assertion and argument in his motion for
dismissal.  Carolina Power and Light Company's Motion to Dismiss
at 4-5, 7-8.  Consequently, there is no "evidence" to support the
ALJ's finding.  See Peoples v. Brigadier Homes,
Inc., Case No. 87-STA-30, Sec. Dec. and Order, June 16, 1988,
slip op. at 4-5.
     I agree, however, that Complainant received constructive
notice of the determination letter upon the certified mailing of
the letter to her.  The applicable regulation requires only that
notice of the preliminary determination be given to the
complainant by certified mail.  29 C.F.R. § 24.4(d)(1).  The
letter of determination at issue here was sent by certified mail
to Complainant's correct home address; the post office notified
Complainant twice of attempted delivery, on March 9 and again on
March 19; but the letter was eventually returned "unclaimed" on
March 24.  Although the regulations at 29 C.F.R. Part 24 do not
address the circumstance of an unclaimed determination letter,
the ALJ's conclusion finds support in the regulations at 
29 C.F.R. Part 18 (1991), which are generally applicable to
adjudicatory proceedings conducted before the Office of
Administrative Law Judges.  See 29 C.F.R. § 18.1(a). 
Section 18.3(d) provides that if a complaint is served by
certified mail, service is complete upon mailing to the last
known address.  In addition, 29 C.F.R. § 18.1(a) provides
that the Federal Rules of Civil Procedure apply in the absence of
any other controlling provision, and Fed. R. Civ. P. 5(b)
provides that service of pleadings and other papers by mail is
"complete upon mailing."  
[PAGE 6]
Accord Anderson v. United States, 724 F.2d 608, 611
(8th Cir. 1983); Anthony v. Marion County Gen. Hosp., 617
F.2d 1164, 1168 n.5 (5th Cir. 1980), citing 4A C. Wright & A.
Miller, Federal Practice & Procedure:  Civil 2d § 1148
(1987). [3]   Since Complainant has not proffered any explanation
for her failure to request a hearing on the determination,
dismissal is appropriate.  See Ward, slip op. at 2.

     After detailed review of the record, however, it appears
that Complainant may not have been properly notified of the ALJ's
recommended decisions and, thus, may have been deprived of an
opportunity to respond.  Id.  Neither the ALJ's
recommended decisions nor the Secretary's Order Establishing
Briefing Schedule were mailed to Complainant's "last known
address," as specified in the regulations.  29 C.F.R. §
18.3(c); see 29 C.F.R. § 24.6(a).  Although the
record contains no direct communication from Complainant
regarding a change in her address, the return receipt on the
Notice of Hearing indicated a new address for Complainant at
least as of August 19, 1987.  The record does not reflect that
the ALJ's decisions and the briefing schedule were mailed to this
new address. [4]   While it is incumbent upon a party to keep the
Department of Labor directly apprised of his or her current
mailing address, I cannot ignore evidence of a new address which
enters the record indirectly.  Accordingly, in order to ensure a
fair opportunity for response, this order, with the ALJ's
recommended decisions attached, is served by certified mail to
the "last known address" of the parties.  See Mullane
v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314
(1950).  The parties are ordered to show cause within ten
days of receipt hereof why this case should not be dismissed in
accordance with this decision.  If the parties fail to show cause
as prescribed herein, an order will be issued dismissing the
case.
     SO ORDERED.


                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.

OAA:JOJOYCE:kmp:12/3/91
Room S-4309:FPB:523-9728


[ENDNOTES]
           
[1]  The ALJ did not discuss the remaining arguments raised by
the parties in their motions to dismiss, see supra
at 3, nor did he rely on 29 C.F.R. § 24.5(e)(4)(b), as later
urged by Carolina Power.  In light of my conclusions regarding
disposition of this case, I also decline to address these
arguments.  

[2]  Section 24.4(d)(2)(i) provides that the determination shall
become the final order of the Secretary denying the complaint
unless within five calendar days of its receipt, the complainant
files by telegram a request for a hearing.  

[3]  In accordance with Section 24.4(d)(2)(i), the notice of
determination properly informed Complainant of her right of
appeal and the consequences of inaction, and it clearly explained
that the determination involved only her allegation
against Carolina Power.

[4]  The R.O. was returned to the ALJ unclaimed, marked "NOTIFY
SENDER OF NEW ADDRESS," and reflecting the same new address
indicated on the return receipt for the Notice of Hearing.  While
the return receipt for the Order Establishing Briefing Schedule
was signed by Obi as agent, I am reluctant to accept his
authority to act in that capacity in light of the evidence
indicating Complainant's change in address and Complainant's 
June 25 letter in which she expressly disapproved of receipt by
an agent.