DATE:  July 16, 1993
CASE NO. 88-ERA-15


IN THE MATTER OF

ANDREW BARTLIK,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                                   ORDER

     The Secretary issued a Final Decision and Order (F. D. and
O.) in this case on April 7, 1993 dismissing the complaint. 
Complainant filed a 67 page Motion for Reconsideration of [the
Secretary of Labor's] Final Decision and Order, or Alternatively,
Motion to Reopen the Record, with attachments (Complainant's
Motion) on April 21, 1993, purportedly under Rule 60(b) of the
Federal Rules of Civil Procedure. [1]   Respondent moved to
strike Complainant's motion on May 6, 1993, and requested an
opportunity to respond on the merits if the Secretary ruled he
had the authority to entertain such a motion.  Complainant filed
an opposition to Respondent's Motion to Strike on May 25, 1993.
     Complainant cites several United States Courts of Appeals
cases on the scope of a federal court's power to relieve a party
from a final judgment under Fed. R. Civ. P. 60(b).  One of the
cases cited by Complainant observes that "[t]he courts have been
reluctant to allow agencies to expand their powers of
reconsideration without a solid foundation in the language of the
statute.  Civil Aeronautics Board v. Delta Air Lines,
Inc., 367 U.S. 316, 321-22 (1961)."  Marshall v. Monroe &
Sons, Inc., 615 F.2d 1156, 1158 (6th Cir. 1980).  The Sixth
Circuit held that the 
[PAGE 2]
Occupational Safety and Health Act explicit reference to the
Federal Rules provides the necessary "solid statutory foundation"
for application of Rule 60 by the Occupational Safety and Health
Review Commission.  Id. at 1159; 29 U.S.C. § 661(f)
(1988).   Complainant cited only one case for the Secretary's
authority under the ERA to entertain a motion for
reconsideration, Young v. CBI Services, Inc., Case No. 88-
ERA-0008, Sec'y. Dec. Dec. 8, 1992, slip op. at 4.  Complainant
there moved for reopening of the record to give him an
opportunity to supplement his testimony.  Rather than "follow the
provisions of" Rule 60(b), as Complainant asserts, the Secretary
said "[f]or purposes of discussion, I will assume without
deciding that Rule 60(b)(6) relief is available" in cases
under the ERA.  (Emphasis added.)  The Secretary noted that "Rule
60(b)(6) should be used sparingly in situations where exceptional
circumstances are demonstrated."  Id.   Similarly, in
DeFord v. TVA, Case No. 81-ERA-1, Sec'y. Dec. Aug. 16,
1984, the Secretary held that "there is no provision in either
[the ERA] or Department of Labor implementing regulations for
reconsideration of a final order of the Secretary."  Id.,
slip op. at 1.  Nevertheless, for purposes of discussion, the
Secretary "assum[ed] that Congressional silence . . . [did] not
indicate an intent to prohibit motions [for reconsideration],"
and treated the request as a motion for a new trial or amended
judgment under Fed. R. Civ. P. 59, or relief from a judgment or
order under Rule 60.  Id. at 2. Cf. Gundersen v.
Nuclear Energy Services, Inc., Case No. 92-ERA-48, Sec'y.
Dec. Jan. 19, 1993, slip op. at 6.
     I have considerable doubt, therefore, that in the absence of
statutory authority, the Secretary has the authority under the
Federal Rules of Civil Procedure to reconsider a final decision.
Assuming, however, that the Secretary has inherent authority to
reconsider his decisions as any other agency, see Dun &
Bradstreet v. U.S. Postal Service, 946 F.2d 189, 193 (2d Cir.
1991), and cases cited therein, I am not persuaded that the April
7 Final Decision and Order erred in any material respect. 
Cf. Immigration and Naturalization Service v.
Doherty, 112 S. Ct. 719, 724 (1992) (motion for reopening of
deportation proceeding disfavored for reasons similar to
petitions for rehearing and motions for a new trial).  Therefore,
Complainant's motion for reconsideration will be denied. 
Respondent's motion to strike is denied as moot.
     Complainant claims the Secretary failed to address in the
April 7 decision two claims raised by Complainant.  Assuming
these claims are sufficiently separate and distinct from the
matters dealt with in the April 7 decision and are in some sense
still pending before the Secretary, they will be disposed of
here.

[PAGE 3]
     Complainant claims Respondent blacklisted him, causing him
to lose an employment opportunity, and that one of Respondent's
manager's threatened him, leading to the circulation of a
newspaper article about him, amounting to an attempt to blacklist
him and causing damage to his professional reputation.
     In 1988, Complainant had an interview for a job but did not
receive a job offer.  Complainant tape recorded a telephone
conversation with a former supervisor who worked for the
prospective employer, without that person's knowledge.  This
person told Complainant he thought Complainant "sunk [himself]
with the lawsuit."  T. 226.  This evidence, which barely requires
a response, and which the ALJ characterized as "rank hearsay," T.
257, has virtually no probative value.  If it shows anything at
all, it may indicate improper action by the prospective employer,
not by Respondent.
     In one paragraph in his initial brief in support of the
ALJ's first decision in this case, in the section on damages
allegedly suffered, Complainant asserted that one of Respondent's
managers threatened Complainant during a deposition.  Shortly
thereafter, a newspaper article about Complainant's "lawsuit
against [Respondent]" was circulated at another nuclear power
plant.  Complainant's Memorandum of Points and Authorities . . .
in Support of the Decisions and Recommended Orders of [the ALJ],
May 31, 1990, at 35.  There is nothing to show any connection
between the asserted threat, or any other action by Respondent,
and circulation of the newspaper article.  Nor has Complainant
explained the logic of why circulation of a newspaper article,
available to the public, in itself constitutes blacklisting or
interference with Complainant's employment relationship at that
power plant.

     For the reasons discussed above, Complainant's motion for
reconsideration is DENIED.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor


Washington, D.C.



[ENDNOTES]
           
[1]   After the Administrative Law Judge (ALJ) issued his Revised
Recommended Decision (R. R. D.) in this case, a briefing schedule
was issued on July 2, 1992, granting each party 60 days in which
to file briefs not to exceed 30 double-spaced typed pages in
support of or in opposition to the R. R. D., and 30 days
thereafter to file reply briefs not to exceed 20 pages. 
Complainant requested and received two extensions of time to file
his initial brief and one extension of time to file his reply
brief.  The page limits in the original briefing schedule,
however, were not changed in any of these extensions.
     If any party can file a pleading substantially exceeding the
limits established for briefs in the case in chief, the authority
delegated by the Secretary to the Director of the Office of
Administrative Appeals to regulate procedure in whistleblower
cases would be significantly frustrated.  I note that the United
States Court of Appeals for the District of Columbia Circuit
limits motions and responses to 20 pages, and replies to 10
pages, D.C. Cir R. 7(a)(2), and the United States District Court
for the District of Columbia requires a memorandum of points and
authorities accompanying any motion to include "a concise
statement of facts," D.D.C. R. 108(a), and limits such memoranda
and oppositions to 45 pages, with replies not to exceed 25 pages. 
D.D.C. R. 108(e).  However, in view of my ruling on Complainant's
motion, I need not address what action, if any, would be
appropriate when a party files voluminous post-briefing pleadings
substantially exceeding the limits established in the briefing
schedule.  For the same reason, it would unnecessarily add to an
already lengthy record to accept a response on the merits by
Respondent to Complainant's motion.