DATE:  May 3, 1995
CASE NO. 90-ERA-10


IN THE MATTER OF

MANSOUR GUITY,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR

                               REMAND ORDER
    This case arises under the employee protection provision of
the Energy Reorganization Act (ERA), 42 U.S.C. § 5851
(1988).  Complainant Mansour Guity alleges that Respondent
Tennessee Valley Authority (TVA) included him in a reduction in force in
retaliation for his engaging in activities protected under the
ERA.  Although the complaint was filed more than five years ago,
no hearing has been held because of Guity's mental condition,
which precluded him from assisting in prosecuting his case.  The
case was stayed on September 5, 1990, for that reason.
     In 1993, the Deputy Chief Administrative Law Judge (ALJ)
ordered the parties to show cause why the case should not be set
for hearing.  Guity requested that the case remain "in suspense." 
Comp. Brief Pursuant to Order of Feb. 17, 1993 at 2.  The Deputy
Chief ALJ denied the request and afforded Guity 60 days to submit
a physician's report stating that he was competent to participate
in prosecution of the complaint.  In response, Guity submitted
the affidavit of his treating psychologist, who stated that Guity
was "emotionally not able to continue" prosecuting his complaint
"without increasing his psychological problems."  Affidavit of
William Berez, Ph.D., attached to Comp. Response to May 19, 1993
Order.  Guity again asked that the case remain open.

[PAGE 2]
     The Deputy Chief ALJ recommended dismissing the complaint
without prejudice and with leave to file a motion to reopen
within 30 days of the treating psychologist's declaration that
Guity is competent to litigate this case.  The Deputy Chief ALJ
further recommended that there be a one year limit on leave to
file the motion to reopen.  The Secretary so ordered in a January 24,
1994 Decision and Order, which required that the "motion shall
demonstrate by a preponderance of the medical evidence that
Complainant has been mentally incompetent throughout this
proceeding, that his attorney was unable to prosecute this case
without his assistance, which was precluded by his incompetence,
and that such motion was filed within 30 days of his achieving
competence."  Jan. 24, 1994 Dec. and Order. at 9-10.
                       1995 Request to Reopen
     Just prior to the expiration of the year's time, Guity moved
to reopen the case.  Guity's psychologist and psychiatrist stated
that he had been so psychologically impaired in the past that he
could not proceed with this complaint, that his welfare depends
on concluding the legal matters involving the TVA, and that they
now recommend that Guity "proceed slowly" and at a "cautious
pace" with this case.  See Jan. 20, 1995 Aff. of Lane M. Cook,
M.D. and Jan. 18, 1995 Aff. of William Berez, Ph.D., attached to
Motion to Reopen.    
     TVA opposed the motion on the ground that Guity's
prosecution of a court action, Guity v. Burpee, Docket No.
L-5072 (Tenn. Cir. Ct. Blount County) shows that Guity was not
mentally incompetent throughout the pendency of this complaint. 
During the period of the stay in this case, Guity gave a
deposition, executed two affidavits, and assisted his counsel in
the Burpee case with preparation and review of discovery
requests and responses and review of transcripts of depositions. 
Exs. 2-6 to TVA Response.  Shortly after the January 1994
dismissal of this complaint due to Guity's mental condition, he
entered into a settlement agreement in the Burpee case
that resulted in its dismissal on March 1, 1994.  Ex. 7 to TVA
Response. 
     TVA also contends that reopening is not warranted because
none of the submitted affidavits shows when Guity achieved
competency to proceed with this complaint, or that he filed the
request to reopen within 30 days of achieving competency. [1]   
                                 ANALYSIS
     The 1994 Decision and order gave Guity two options:  submit,
within one year, medical evidence documenting his ability to go
forward with this complaint, or else suffer dismissal with
prejudice.  The Motion to Reopen and the affidavits of Guity's
psychologist and psychiatrist request a third option, to proceed
with the complaint at a cautious or slow pace.  Dr. Berez states
that "Mr. Guity's depression and his proneness to being re-
[PAGE 3]
traumatized by these legal matters, require that he proceed at a
cautious pace."  Berez Aff. par. 8. 
     Both the psychologist and psychiatrist have opined that
Guity's welfare is dependent on his concluding the legal matters
involving TVA.  Berez Aff. at Par. 6, Cook Aff. at par. 6.  I
accept these statements as indicating that the preponderance of
the medical evidence demonstrates that Guity is competent to
proceed with this complaint. [2] 
     More than five years have elapsed since Guity filed this
complaint.  The Department of Labor has made every reasonable
accommodation in awaiting Guity's return to an emotional state
that would permit him to assist in prosecuting the complaint. 
The five year delay has been more than fair in view of the fact
Guity was emotionally able to prosecute the Burpee case
while this complaint languished for want of prosecution.  I find 
that this Department has reached the limits of its ability to
delay the prosecution of this case to preserve Mr. Guity's "day
in court."  The rights of a respondent to have claims against it
resolved in a timely fashion must also be considered.
     It is now time to proceed so that TVA may have resolution of
this case.  I will remand to the Deputy Chief ALJ for further
proceedings, including a hearing and a recommended decision on
the merits of this complaint.  The assigned ALJ shall handle the
scheduling of this case like any other ERA case.  Mr. Guity
should not receive any further significant postponements or
enlargements of time based upon his emotional or psychological
state.  If Mr. Guity, at some future time, becomes unable to
prosecute this complaint because of his emotional or
psychological state, the assigned ALJ shall issue a recommended
decision and order dismissing the complaint with prejudice. 
See Mack v. Malone and Hyde, Inc., 1994 U.S. App. LEXIS
8131, No. 93-5814 (6th Cir. Apr. 15, 1994) (affirming District
Court's dismissal for failure to prosecute Title VII case after
seven years, notwithstanding plaintiff's mental illness).  
                                CONCLUSION
     The complaint is remanded to the Deputy Chief ALJ for
further proceedings consistent with this order.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   TVA filed a motion to strike Guity's reply to its response 
to the motion to reopen.  In the alternative, TVA asked the
Secretary to consider its response to Guity's reply.  Both
Guity's reply and TVA's response to it have been considered.

[2]   The 1994 Decision and Order required that in seeking
reopening, Guity was to demonstrate that he had been "mentally
incompetent" throughout this proceeding.  I accept as meeting the
required demonstration the psychiatrist's statement that Guity
had been "psychologically impaired" such that "he could not have
proceeded with his litigations against TVA so far."  Lane Aff. at
¶ 5; see also Berez Aff. at ¶ 4.  
     I will not require a statement of the precise date on which
Guity became emotionally able to proceed with this complaint.  I
find sufficient his psychiatrist's and pscyhologist's January
1995 statements that they advise that Guity may now proceed with
the complaint.