Niagara's hearsay allegations; and, the finding of " Clear and Conclusive Evidence'" appears to be clearly and conclusively erroneous." Finally, he argues dismissal would "serve no end of justice and would fail to achieve the purposes of this tribunal."

Administration following its investigation of a covered employee's complaint. However, the implementing regulations, found in 29 C.F.R. Part 24 do. The Act does establish specific time frames in which a "complaint" must be filed, investigated, for the issuance of a final order by the Secretary, and for appellate review of the matter. 42 U.S.C. § 5851(b) and (c). The regulations say the procedures are established for the purpose of "expeditious handling of complaints by employees . . . of discriminatory action by employers." 29 C.F.R. 24.1(b).

29 C.F.R. § 24.4(d)(3).

   Part 18, 29 C.F.R., Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, states:

These rules of practice are generally applicable to adjudicatory proceedings before the Office of Administrative Law Judges, United States Department of Labor . . . To the extent these rules may be inconsistent with a rule of special application as provided by statute, executive order, or regulation, the latter is controlling. The Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation.

29 C.F.R. § 18.1(a). Since Part 24, 29 C.F.R. contains rules of special application concerning service of copies of hearing requests it governs over Part 18. However, Part 18 contains useful definitions. It states that a "complaint" means:

any document initiating an adjudicatory proceeding, whether designated a complaint, appeal or an order for proceeding or otherwise.

29 C.F.R. § 18.2(d). The complaint is also a "pleading." 29 C.F.R. § 18.2(i). An "adjudicatory proceeding" means "a judicial-type proceeding leading to the formulation of a final order." 29 C.F.R. § 18.2(a). Part 18 has separate definitions of the terms "complaint" and the terms

(1) be timely;
(2) inform the parties of the time, place, and nature of the hearing;
(3) inform the parties of the legal authority and jurisdiction under which the hearing is to be held; and,
(4) inform the parties of the matters of fact and law asserted.

5 U.S.C. § 554(b). "When private persons are the moving parties, other parties to the proceedings shall give prompt notice of issues controverted in fact or law . . ." 5 U.S.C. § 554(b). The purpose of these "notice" provisions, to inform the parties of matters of fact and law asserted, is satisfied when the respondent understands the issues and is given the full opportunity to defend itself. Golden Grain Macaroni Co. v. FTC, 472 F.2d 882 (9th Cir. 1992) cert. den. 93 S.Ct. 2730, 412 U.S. 918, 37 L.Ed. 2d 144.

   Constitutional "due process" requires parties to any final agency proceeding affecting constitutionally protected interests be given notice of such proceedings which not only informs them proceedings have been instituted, but also contains sufficient information to allow preparation and presentation of objections. Stein, Mitchell, & Mezines, Administrative Law, Vol. 4, Section 33.03[2] (1990). "Alleged procedural irregularities in the pleadings will not invalidate the proceedings unless the irregularities were so serious as to prejudice a party." Stein, Mitchell, & Mezines, Administrative Law, Vol. 4, Section 33.03[3] (1990) citing Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977).

   Other than the United States Supreme Court, every other federal court or administrative tribunal draws its jurisdiction wholly from Congress. 32 Am Jur 2d, Organization of Federal Courts, Section 3, citing Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226. It is well settled that federal jurisdiction cannot be extended or abridged by rule of a court, such as a rule related to pleadings. 32 Am Jur 2d, Organization of Federal Courts, Section 6, citing Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed 1148. The law authorizing the Supreme Court to prescribe rules of civil procedure do not authorize it to alter jurisdiction: no substantive rights are to be abridged, modified or enlarged. Rules Enabling Act, 28 U.S.C. § 2072 and Alley v. Federal Nat. Bank, 124 F.2d 995 (10th Cir.). In fact, Federal Rules of Civil Procedure (FRCP) Rule 82 states that "[T]hese rules shall not be construed to extend or limit the jurisdiction of the United States District Courts or the venue of actions therein."

   Congress has the exclusive power to regulate practice in federal courts and may legislate the form and effect of process. 32 Am Jur 2d, Organization of Federal Courts, Section 6, citing Keary v. Farmers & Merchant's Bank, 41 U.S. 89, 10 L.Ed. 897; Wayman v. Southard, 23 U.S. 1, 6 L.Ed 253; and, Riggs v. Johnson County, 73 U.S. 166, 18 L.Ed. 768. The test of whether a procedural rule violates the Rules Enabling Act, authorizing the Federal Rules, is whether it really regulates procedure; that is, the

judicial process for enforcing rights and duties recognized by substantive law. 32 Am Jur 2d, Applicability of the Federal Rules of Civil Procedure, Section 505.

Black's Law Dictionary, (Fifth Edition 1979), page 258.

respondents with copies of the employee's complaint and the results of the Administrator's investigation along with a notice of determination the latter employers are fully apprised of issues controverted in fact or law. Due process, the APA, and the ERA require no more.

   Finally, at the time the complainant filed his hearing request with the Chief Administrative Law Judge, it appears he was not represented by counsel. A balancing of the purposes of the Act, i.e., whistleblower protection, and regulatory procedures, i.e., expeditious processing of complaints, versus any potential prejudice to the respondents, under these circumstances, compels a ruling in favor of the complainant on this matter.

   The requirement of 29 C.F.R. § 24.4(d)(3) for a complainant to serve a copy of the request for a hearing on respondents the same day it is filed with the Chief Administrative Law Judge is merely directive and not jurisdictional. There is no explicit support for the requirement in the ERA or APA. Although lamentable, the initially pro se complainant's failure to adhere to the requirement does not deprive this tribunal of jurisdiction nor deprive the respondents of either due process or any statutory right. The respondents have not alleged prejudice nor do I find any.

   WHEREFORE, the respondents' Motions are DENIED. The hearing will begin at 9:00 a.m. on Tuesday, October 6, 1998, and continue, if necessary, through Friday, October 9, 1998, at the location specified below:

       RICHARD A. MORGAN
       Administrative Law Judge

RAM:DMR