DATE:  June 29, 1993
CASE NO. 90-ERA-26


IN THE MATTER OF

DONALD W. BROWN,

          COMPLAINANT,

     v.

HOLMES & NARVER, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                 DECISION AND ORDER REINSTATING COMPLAINT

     Before me for review is Complainant's Request to Reinstate
this case, which arises under the Energy Reorganization Act, as
amended (ERA), 42 U.S.C. § 5851 (1988).  I will vacate the
August 31, 1992 Final Decision and Order in this case and
reinstate the complaint.  
     I. Procedural history
   Complainant Brown was employed by Respondent Holmes & Narver
(H&N), a contractor at the Yucca Mountain Project, a nuclear
waste disposal site under construction in Nevada.  In 1990, he
filed a complaint alleging that H&N subjected him to harassment
and laid him off for engaging in activities protected by the
employee protection provision of the ERA.  The Wage and Hour
Administrator found that Brown was laid off for budgetary
reasons, and Complainant requested a hearing before an
Administrative Law Judge (ALJ).
     H&N moved to dismiss the complaint on the ground that the
Department of Labor lacked jurisdiction over the subject matter. 
H&N argued that it is not an employer within the meaning of the 
[PAGE 2]
ERA's employee protection provision, which states that "employer"
"includ[es] a [Nuclear Regulatory] Commission licensee, an
applicant for a Commission license, or a contractor or a
subcontractor of a Commission licensee or applicant."  42 U.S.C.
§ 5851(a).  H&N pointed out that the Yucca Mountain Project
had neither applied for, nor received, an NRC license to operate. 
Rather, the Department of Energy (DOE) was constructing Yucca
Mountain and H&N contracted with DOE to aid in the construction. 
In its motion, H&N relied heavily upon Wensil v. B.F. Shaw
Co., Case Nos. 86-ERA-12 and 86-ERA-15, Final Dec. and Order,
March 29, 1990, aff'd sub nom. Adams v. Dole, 927
F.2d 771 (4th Cir. 1991), in which the Secretary ruled that the
ERA did not confer jurisdiction in the Department of Labor to
resolve whistleblower complaints of employees of contractors to
nuclear facilities owned by the Department of Energy. [1] 
     Brown opposed the motion to dismiss, arguing that the Yucca
Mountain Project is required to be licensed by the NRC before it
may operate, already had pre-licensing agreements with the NRC,
and that NRC inspectors were on the construction site.  The ALJ
distinguished the situation in Wensil because in that
case, the NRC had no present or future role in the DOE-owned
Savannah River project.  Construing the term "applicant" in the
statutory provision to include "those entities who must apply for
a [NRC] license before operation," the ALJ denied the motion to
dismiss.
     H&N asked the ALJ to reconsider his denial of the motion to
dismiss and also to certify the jurisdictional question to the
Secretary of Labor.  H&N argued that DOE solely controlled the
Yucca Mountain Project until such time as DOE characterized the
site, and only after the characterization could the Project apply
for an NRC license.  The ALJ denied reconsideration, noting that
the Waste Policy Act of 1982, 42 U.S.C. § 10101, et
seq., involves both DOE and the NRC in establishing the
Yucca Mountain Project and that both DOE and NRC were auditing
the Project.   In view of the uncertainty about the Department of
Labor's jurisdiction over the complaint, Brown agreed with H&N's
request to certify the jurisdictional issue to the Secretary of
Labor, or in the alternative, sought dismissal of the
administrative complaint without prejudice so that he could
pursue state law remedies for retaliatory discharge.  The ALJ
declined to certify the jurisdictional issue and recommended
dismissing the administrative complaint without prejudice,
conditioned on Brown reimbursing H&N's copying costs, answering
all interrogatories propounded by H&N in the administrative case,
and agreeing that all evidence H&N gathered in the administrative case may be used
in any other action it defended against Brown.
     While the recommended decision was pending a final
administrative decision by the Secretary, the state law statute 
[PAGE 3]
of limitations was approaching and Brown filed an action in state
court.  H&N removed the state law action to the United States
District Court for the District of Nevada.  Notwithstanding its
having sought dismissal of the administrative complaint, H&N
asked the District Court to dismiss the state law action for
retaliatory termination because the available federal
administrative remedies were adequate.  
     The District Court dismissed the state law cause of action
without prejudice to Brown's pursuing federal administrative
remedies.  On August 7, 1992, Brown filed with the ALJ a
Withdrawal of Motion to Dismiss Without Prejudice (Withdrawal),
so that he could pursue his federal administrative remedies as
the District Court had allowed.  On September 2, 1992, the ALJ's
Office forwarded the Withdrawal to the Secretary of Labor, before
whom the ALJ's recommended dismissal had been pending.  The
Secretary received the Withdrawal on September 10, 1992.
     In the meantime, unaware that Brown had withdrawn his motion
to dismiss, the Secretary of Labor issued on August 31, 1992, a
Final Decision and Order adopting and affirming the ALJ's
dismissal of the complaint without prejudice.  
     In February 1993, the District Court reheard the motion to
dismiss the state law claims, expressed concern that Brown might
be left without a remedy, and asked Brown to make sure that he
had exhausted all remedies before the Department of Labor prior
to the matter continuing in District Court.  In April 1993, Brown
moved the Secretary to vacate the Order dismissing the complaint,
to reinstate his administrative complaint, and to provide a
preliminary ruling on whether the Department of Labor has
jurisdiction over this complaint.  Respondent concurs in the
request to reinstate the administrative complaint.  
     II. Reinstatement of the Complaint
     At the time the Secretary affirmed the ALJ's recommendation
to grant Brown's motion for dismissal without prejudice, she was
unaware that Brown had withdrawn the motion.  Thus, contrary to
the premise of the Secretary's decision, dismissal was not
voluntary at the time the Secretary granted it.  Therefore, 
the Final Decision and Order issued by the former Secretary on
August 31, 1992, is VACATED.
     The complaint in this matter is REINSTATED.  I will REMAND
to the ALJ for further proceedings, including a hearing on the
merits.
     III. Preliminary Ruling on Jurisdiction
     The request for a preliminary ruling on jurisdiction is
similar in effect to an interlocutory appeal.  The Secretary long
has disfavored such requests because "they result in piecemeal
consideration of cases and tend to protract the process." 
Shusterman v. Ebasco Services, Inc., Case No. 87-ERA-27,
Sec. 
[PAGE 4]
Order Denying Remand, July 2, 1987, slip op. at 2; see
also, Corder v. Bechtel Group, Inc.., Case No. 88-
ERA-9, Oct. 3, 1988, Sec. Order, slip op. at 2.
     After the ALJ issues a recommended decision on the merits in
this case, any party aggrieved by the ALJ's assertion of
jurisdiction in the Department of Labor will have the opportunity
to brief the issue before the Secretary.
     Accordingly, I DENY the request for a preliminary ruling on
the issue of jurisdiction.
                                   ORDER
     This complaint is REINSTATED and the case is REMANDED to the
Administrative Law Judge for further proceedings, including a
hearing and a recommended decision on the merits.
     SO ORDERED.



                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   After this complaint was filed, Congress amended the ERA to
apply to "a contractor or a subcontractor of the Department of
Energy. . . ."  Pub. L. No. 102-486, 106 Stat. 2776, Oct. 24,
1992, § 2902(a)(5).  The amendment applies to claims filed
on or after its effective date.  Id. at § 2902(i).