DATE:  March 10, 1994
CASE NO. 89-ERA-36


IN THE MATTER OF

SYED M. A. HASAN,

          PETITIONER,

     v.

SYSTEM ENERGY RESOURCES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                                   ORDER

     On September 23, 1992, the Secretary of Labor issued a final
decision and order in this case, dismissing Petitioner Hasan's
claim that he had been discharged by his employer, System Energy
Resources, Inc. (SERI) in violation of the employee protection
provisions of the Energy Reorganization Act of 1974, as amended,
42 U.S.C. § 5851 (1988).   Hasan appealed that decision to
the United States Court of Appeals for the Fifth Circuit.
Hasan v. Reich, Docket No. 92-5170 (1993).  On May 4,
1993, the Court issued an unpublished decision affirming the
decision of the Secretary of Labor.  Hasan v. Reich. 
Thereafter, Hasan filed a letter with me, with service upon
counsel for SERI, requesting that I re-open this case.  Hasan
alleges that certain relevant documents were wrongfully withheld
from him while his case was pending before the Secretary, and
that these documents demonstrate SERI's "animosity and
retaliation."  Hasan Letter at 1-2.  SERI filed a reply to
Hasan's letter ("Reply").  For the reasons that follow, I have
determined not to reopen this case.  
     First, it is by no means clear that I have the authority to
reopen this case.  See Bartlik v. Tennessee Valley
Authority,  Case No. 88-ERA-15, Sec. Dec. and Ord., July 16,
1993.  Not only has there been a final Secretarial Decision and
Order, Mr. Hasan 
[PAGE 2]
has appealed that decision and the Court of Appeals has entered
an order affirming it.  Mr. Hasan did not pursue his right to
file a petition for a writ of certiorari from that decision with
the United States Supreme Court. 
     Second, even if I did have authority to reopen this case, 
I would not do so under the circumstances presented here.  
Mr. Hasan's request is in the nature of a motion for a new trial
under Rule 60(b) of the Federal Rules of Civil Procedure, which
provides in pertinent part:
          On motion and upon such terms as are just,
          the court may relieve a party . . . from a
          final judgment, order, or proceeding for any
          of the following reasons:  (1) mistake,
          inadvertence, surprise or excusable neglect;
          (2) newly discovered evidence which by due
          diligence could not have been discovered in
          time to move for a new trial under Rule
          59(b); (3) fraud. . . , misrepresentation, or
          other misconduct of an adverse party . . . .

          The motion shall be made within a reasonable
          time, and for reasons (1), (2), and (3) not
          more than one year after the judgment, order,
          or proceeding was entered or taken . . . . 
     The Fifth Circuit has held that "[a] motion for a new trial
under Rule 60(b) is an extraordinary motion" which courts should be cautious in granting.  Washington v. Patlis, 916 F.2d
1036, 1038 (1990).  In addition, the Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges, 29 C.F.R. Part 18, provide that
"[o]nce the record is closed, no additional evidence shall be
accepted into the record except upon a showing that new and
material evidence has become available which was not readily
available prior to the closing of the record."  29 C.F.R. §
18.54(c) (1993).  Mr. Hasan has met none of these requirements. 
First, Hasan filed his request to reopen this case more than four
years after the issuance of the Administrative Law Judge's
decision. [1]   Thus, Hasan does not meet the explicit time
limits set in Rule 60(b). [2] 
     Second, Mr. Hasan has not demonstrated that the two
documents in question were withheld from him in 89-ERA-36 for 
any of the reasons articulated in Rule 60(b).  The two documents
are copies of internal Bechtel Power Corporation telephone
conversation records.  Hasan has made no attempt to show that
these documents were in the possession of the Respondent in 
89-ERA-36 (SERI).  Obviously, if SERI did not possess the
documents, it was under no obligation to disclose them.

[PAGE 3]
     Third, even if I were to give consideration to these
documents, I would determine that they are irrelevant to the
issue presented in the case, because, as the Fifth Circuit noted,
"SERI's decision to let Hasan's employment expire after the end
of the refueling outage had been made before SERI learned [in
March] of Hasan's complaints to the NRC."  Hasan v. Reich,

slip op. at 6.  Certainly SERI's determination to let Hasan's
employment expire occurred prior to April 19, 1989, the date 
of the two Bechtel telephone compensation records submitted by
Hasan.  
     There is no other possible basis upon which I might grant
Mr. Hasan's request.  Therefore the request to reopen this case
is denied.  
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1] 
  The ALJ issued his decision on August 2, 1989.  Hasan filed his
letter requesting reopening of the case on August 23, 1993.  

[2] 
  Although Mr. Hasan filed his request within one year of the
Secretary's Final Decision and Order, his request focuses on
evidence that he alleges should have been available to the ALJ. 
Thus, it is appropriate to measure the time elapsed from the date
of the ALJ's Recommended Decision and Order.