DATE:  October 4, 1993
CASE NO. 90-ERA-10

IN THE MATTER OF

MANSOUR GUITY,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            ORDER TO SHOW CAUSE

     The Administrative Law Judge (ALJ) issued a Recommended
Order of Dismissal in this case on August 19, 1993.  Complainant
filed a complaint under the employee protection provision of the
Energy Reorganization Act, as amended (ERA), 42 U.S.C. §5851
(1988), in 1989.  The District Director of the Wage and Hour
Division determined that the allegations in the complaint could
not be substantiated and Complainant requested a hearing before
an ALJ.  The case largely has been held in abeyance since
September 1990 because of Complainant's mental condition, which
has precluded his prosecution of the complaint.  No hearing has
been held.
     Pursuant to an earlier order to show cause, Complainant
submitted to the ALJ in July 1993 the affidavit of his treating
psychologist, who stated that Complainant was "emotionally not
able to continue" prosecuting his complaint "without increasing
his psychological problems," and opining that "[t]here is little
question that [Complainant] will eventually be able to conclude
his case with the Department of Labor against TVA."  Complainant
requested that the complaint remain open until such time as he is
able to proceed with a related action in Federal court [1]  and
subsequently with this case.  

[PAGE 2]
     The ALJ noted that no action progressing the matter toward
hearing has occurred since prior to September 1990 and the
psychologist's affidavit did not provide any reasonably
foreseeable date when the hearing in this case might be held. 
R.O.D. at 4-5.  The ALJ has recommended that the Secretary
"dismiss the complaint without prejudice and with leave to
file a motion to reopen within 30 days of Complainant's treating
psychologist's declaration of competence to litigate this case." 
R.O.D. at 5 [emphasis in original].  The ALJ further recommends,
id., 
     that the leave to file a motion to reopen be limited to
     one year from the date of the Secretary's order and be
     conditioned on the understanding that a granting of the
     motion is not [to] be a foregone conclusion but must be
     supported by argument and any appropriate evidence, and
     a showing that the psychologist's declaration of
     competence was not unduly delayed after the date of
     recovery.  In addition, it is recommended that the
     Secretary hold that any such motion be filed with the
     Secretary (via the Office of Administrative Appeals,
     which then could determine whether any finding of fact
     by an administrative law judge is necessary or whether
     he could rule on the motion directly.  Finally, in the
     interest of judicial finality, it is recommended that
     the Secretary hold that in the event a motion to reopen
     is not filed within one year of the date of the
     Secretary's order, the Secretary's order will
     automatically become a final order of dismissal
     with prejudice. [Emphasis in original] 

     Within 30 days of receipt of this Order, Complainant shall
show cause why the Secretary should not issue a final order of
dismissal conditioned according to the ALJ's recommended order.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C. 





[ENDNOTES]
           
[1]  Complainant attached an order of the court that
administratively terminates the action, subject to reopening upon
motion of the plaintiff within 30 days of his physician declaring
that he is competent to proceed.