The threshold issue is whether Respondent is a "person" within the meaning of the Employee protection provisions of the FWPCA and TSCA. I find that Respondent is not a "person" within the meaning of the FWPCA and TSCA's Employee protection provisions and therefore has not waived sovereign immunity.

   1. Federal Water Pollution Control Act

   Under the FWPCA's employee protection provision, "no person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee..." 33 U.S.C. § 1367(a) (emphasis added). Under the FWPCA, a "person" is expressly defined as "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C. § 1362(5). It does not include "the United States Government." Thus, a strict interpretation of the plain statutory language, as well as the jurisprudence discussed below indicates that Complainant has no authority to file a cause of action against Respondent. In the absence of an express and unequivocal provision waiving immunity, I conclude that the legislators' express intent was not to waive the sovereign immunity of the United States.

   It has been held that various branches of the United States Armed Forces are not considered "persons" within the meaning of the employee protection provision of the FWPCA. For example, in Conley v. McClellan Air Force Base, Case No. 84-WPC-1 (Sec'y September 7, 1993), an administrative law judge found that the United States Air Force was not a "person" within the meaning of the employee protection provision of the FWPCA. Moreover, in U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627 (1992), the Court observed that the express omission of the United States from the FWPCA definition of the term "person" "has to be seen as a pointed one when so many other governmental entities are specified."

   However, the inquiry does not end here. In some instances, the FWPCA can apply to the Federal Government if, for example, Respondent falls within the "Federal facilities" provision of the FWPCA, which specifically provides that:

"Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions

respecting control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges."

33 U.S.C. § 1323. Thus, the question here centers on whether Respondent's facility or base falls within the "Federal facilities" provision.

   Neither the statutory language nor jurisprudence clarifies whether Respondent's military base in Okinawa is considered a Federal facility for purposes of the FWPCA.

   By way of background, the United States came into possession of Okinawa and the rest of the Ryukyu archipelago following World War II. Subsequently, Japan agreed to concur in any proposal of the United States to the United Nations to place the Ryukyu Islands under its trusteeship system, but as of September 1955, no trusteeship arrangement existed. Thus, Okinawa remained "under the provisional administration of the United States Government." See e.g., Burna v. United States, 240 F.2d 720, 721 (4th Cir. 1957) (in which the Fourth Circuit, in interpreting whether Okinawa was subject to the Federal Torts Claim Act, concluded that "while the Treaty conferred certain authority upon the United States over Okinawa, it by no means made the island a part of the United States, and it remains a foreign country..."); Fuji Photo Film Company, Inc. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591 (5th Cir. 1985) (in which the Fifth Circuit concluded that occupation of Okinawa by the United States did not render Okinawa a part of the United States).

   Notwithstanding the foregoing jurisprudence, I find that Okinawa falls within the Federal facility definition of "each department, agency or instrumentality of the executive, legislative and judicial branches of the Federal Government."

   Having found that Respondent's military base in Okinawa, Japan is a Federal facility within the provisions of the aforementioned environmental statutes, I find further that Respondent is not subject to the FWPCA in light of the clear and unambiguous language of Executive Order 12088, signed by President Carter on October 13, 1978. It states in pertinent part:

"The head of each Executive Agency that is responsible for the construction or operation of "Federal facilities" outside the United States shall ensure that such constructions or operation complies with the environmental pollution control standards of general applicability in the host country or jurisdiction." (emphasis added)

Executive Order 12088, paragraph 1-801, (Oct. 13, 1978; 43 FR 47707, 3 CFR, 1978 Comp., p. 243; Amended by Executive Order 12580, Jan. 23, 1987, 52 FR 2923, 3 CFR, 1987 Comp., p. 193).

   Although Respondent's activity at a Federal facility may otherwise be regulated by the applicable environmental statutes, when located in a host country, as here, Okinawa, Japan, environmental pollution control standards of Japan must be applied. Thus, I find that sovereign immunity under the auspices and extension of Executive Order 12088 has not been waived.

   I find that the plain and unambiguous language classifications contained in the TSCA does not include the United States and by extension, Respondent. Any other construction would require a clearer statement of intent than appears in the statute at issue. Thus, I find and conclude that only "employers" are subject to the employee protection provisions of the TSCA, which does not include Respondent. See e.g. Judy K. Stephenson v. NASA, Case No. 94-TSC-5 (ALJ June 27, 1994) (in which the administrative law judge found that NASA was not considered an "employer" for purposes of the TSCA and thus, did not waive sovereign immunity).

15 U.S.C. § 2619(a)(1). It is clear that the employee protection provision does not appear in this list of provisions enforceable by citizen suit. Thus, the reference to the "United States" as a "person" for purposes of the citizen suit would appear insufficient to constitute an unequivocal waiver of sovereign immunity for the purpose of the separate employee protection provision. See U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627 (1992).

   Although Complainant does not advance any argument in favor of denying Respondent's Motion to dismiss due to lack of subject matter jurisdiction as applied to the TSCA, in

light of the foregoing, I find and conclude that the TSCA does not define the term "person" to include the United States, nor does it contain a "Federal facilities" provision subjecting Respondent generally to Federal requirements regarding the control of toxic substances. I further find and conclude that sovereign immunity has not been waived for purposes of the TSCA employee protection provision and Respondent is entitled to dismissal of Complainant's complaint. Accordingly, Respondent's Motion is hereby GRANTED.

B. Timeliness/Equitable Tolling

   Respondent also contends that Complainant did not file his complaint within the statutory and regulatory time frame, nor does he have any basis which warrants the equitable tolling of the statute of limitations for filing his complaint and therefore, his complaint should be dismissed.

   Complainant, on the other hand, alleges that the late filing of his complaint warrants equitable tolling of the statutory time limitations because (1) he worked under extraordinary conditions and (2) he filed his claim in the wrong forum.

   1. The Filing Period

   The issue presented here is whether Complainant's complaint against Respondent is time-barred under 33 U.S.C § 1367 and 15 U.S.C. § 2622, which are set forth below. I find and conclude that Complainant failed to file his complaint before the administrative agency, the U.S. Department of Labor (DOL), in a timely manner and thus, his complaint is time-barred.

Complainant appealed the untimely filing issue in his April 16, 1999 letter, but failed to address this issue in his formal Complaint dated May 20, 1999.

   In light of the foregoing evidence, I find that the February 24, 1997 termination notice constituted a final and unequivocal decision, which was not ambiguous or capable of misleading possibilities. I further find that Complainant acknowledged and understood the terms and conditions of the termination notice, which was decisive and conclusive, leaving no further chance for action, discussion or change. Moreover, there is no indication that the employment decision was subject to appeal, review or revocation. Thus, I find and conclude that February 24, 1997, the date that Complainant was given final and unequivocal notice of Respondent's employment decision, constitutes the date of the alleged discrimination and the commencement of Complainant's filing period.

   The language of the statutory and regulatory employee protection provisions further supports my conclusion that Complainant failed to file his complaint in a timely manner. Complainant was required to file his complaint with the DOL within thirty days following the discriminatory action. As noted hereinabove, the time period within which to file the complaint with the DOL commenced on February 24, 1997 and tolled on March 26, 1997, thirty days after Respondent's final and unequivocal notice of its employment decision. Consequently, I find and conclude that Complainant failed to file his Complaint with the DOL in a timely manner.

   2. Equitable Tolling

   Courts have held that time limitation provisions in like statutes are not jurisdictional, in the sense that a failure to file a complaint within the prescribed period is an absolute bar to administrative action, but rather analogous to statutes of limitation and thus may be tolled by equitable consideration. Donovan v. Hakner, Foreman & Harness, Inc., 736 F.2d 1421 (10th Cir. 1984); School District of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Coke v. General Adjustment Bureau, Inc., 654 F.2d 584 (5th Cir. 1981). The Allentown court warns, however, that the restrictions on equitable tolling must be scrupulously observed; the tolling exception is not an open invitation to the court to disregard limitation periods simply because they bar what may be an otherwise meritorious cause. Accord, Rose v. Dole, 945 F.2d 1331, 1336 (6th Cir. 1991).

   In Allentown, the court, relying on Smith v. American President Lines, Ltd., 571 F.2d 102 (2nd Cir. 1978), which interpreted Supreme Court precedent, observed that tolling might be appropriate only (1) where a respondent actively misled the complainant respecting the cause of action; (2) where the complainant has in some extraordinary way been prevented from asserting his rights; or (3) where a complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Allentown, 657 F.2d at 19-20; see also Prybys v. Seminole Tribe of Florida, Case No. 95-CAA-15 (ARB November 27, 1996).

   Complainant cites two circumstances which he contends support an equitable tolling of the 30-day time limit: (1) by reason of his attachment to a small civilian United States Marine Corps component in Okinawa, Japan, he could not have known about his rights under United States federal law regarding environmental protection laws and the violations of such laws and (2) he filed his complaint in the wrong forum.

   In light of the evidence presented and based on the foregoing jurisprudence, I find that the circumstances which Complainant cites as bases for equitable tolling are not persuasive. Consequently, I conclude that Complainant is not entitled to equitable tolling and Respondent's Motion to Dismiss due to lack of timeliness is GRANTED.

      a. Did Respondent Mislead Complainant?

   Complainant contends that Respondent told him that the only forum available within which to file his claim was before the MSPB. Complainant relied on that alleged representation by Respondent in the administrative process of his termination, thereby alleging that Respondent actively misled him regarding his cause of action.

   However, a nonmoving party who relies on conclusory allegations which are unsupported by factual data or sworn affidavit, as here, cannot thereby create an issue of material fact. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); Rockefeller v. U.S. Department of Energy, 98-CAA-10 (Sept. 28, 1998); Lawrence v. City of Andalusia Waste Water Treatment Facility, 95-WPC-6 (Dec. 13, 1995). Consequently, Complainant may not oppose Respondent's Motion to Dismiss based on mere allegations. Such responses must set forth specific facts showing that there is a genuine issue of fact for a hearing. 29 C.F.R. § 18.40(c).

   In the present case, Complainant has offered no proof in support of his argument that he was actively misled by Respondent and relies solely on his unsupported allegation. Such an unsupported allegation is insufficient to defeat summary decision and Complainant's argument regarding being actively misled by Respondent must therefore be rejected. Thus, I find and conclude that Complainant was not actively misled and therefore, equitable tolling of his complaint is not warranted under this requirement.

      b. Complainant's "Extraordinary Circumstances"

   Complainant also alleges that due to residence in Okinawa at the time the complaint should have been filed, he has been prevented from asserting his rights. Additionally, he argues that he was not aware of the appropriate legal avenue under which to proceed.

   It should be noted that lack of knowledge of applicable filing deadlines is not a basis for tolling. Larson v. American Wheel & Brake, Inc., 610 F.2d 506, 510 (8th Cir. 1979). Neither is a plaintiff's unfamiliarity with the legal process nor his lack of representation during

the applicable filing period. James v. United States Postal Service, 835 F.2d 1265, 1267 (8th Cir. 1988). Finally, ignorance of legal rights does not toll a statute of limitations, despite the fact the plaintiff is illiterate or is ignorant of the law for some other reason. Larson, 610 F.2d at 510. See also Barrow v. New Orleans Steamship Association, 932 F.2d 473 (5th Cir. 1991).

   In light of the foregoing jurisprudence, I find Complainant's first argument in support of equitable tolling is unpersuasive and conclude that Complainant's ignorance or lack of knowledge of the law cannot be considered justification for warranting equitable tolling of his complaint. I further find that Complainant's residence in Okinawa, Japan did not create such an extraordinary hardship which totally prevented him from asserting his rights or inquiring through different channels regarding how to proceed.

      c. Wrong Forum

estoppel has been invoked in administrative adjudications. See N.L.R.B. v. Master Slack and/or Master Trousers Corp., 773 F.2d 77, 81 (6th Cir. 1985). Complainant contends that an administrative law judge's decision is not entitled to precedential value.

   Collateral estoppel has the dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party and promoting judicial economy by preventing needless litigation. Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 649 (1979). Collateral estoppel may apply in an administrative proceeding only after entry of a final order that terminates the litigation between the parties on the merits of the case. Astoria Federal Savings and Loan Association v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 2168 (1991); Montana v. United States, 440 U.S. 153, 99 S.Ct. 970, 973 (1979); United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 1560 (1966).

   I conclude that it is unnecessary to determine whether the essential prerequisites of collateral estoppel have been presented since a final judgment has not been entered by the MSPB. Thus, an administrative law judge's decision can not act as a conclusive determination in a MSPB proceeding. Therefore, Judge Tapp's decision is not entitled to any weight or preclusive effect in disposing of subsequent suits based on the same or a different cause of action involving the same parties to the prior litigation. Accordingly, Respondent's motion to dismiss based on collateral estoppel is DENIED.

D. Motion For Summary Decision

   Respondent argues that summary decision is appropriate here since no genuine issue of material fact exists, in that, Complainant has failed to allege that he engaged in any protected activity listed in 29 C.F.R. § 24.2. It is acknowledged that Complainant allegedly "sent an e-mail to the Chief of the Human Resources office" and was thereafter terminated in retaliation for such e-mail. However, Respondent contends that the e-mail "fails to qualify as a protected activity" since Complainant "was not attempting to bring environmental concerns to the attention of the Chief of HRO."

   Complainant argues that his e-mail to the Chief of Human Resources is protected activity. According to Complainant, the question of whether his e-mail is a protected communication is one of law, and not fact, over which the DOL is entitled to exercise its own independent judgment.

   The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d) (1994). See Webb v. Carolina Power & Light Co., Case No. 93-ERA- 42 (Sec. Dec., July 17, 1995, slip op. at 4-6). This section, which is derived from the Federal Rules of Civil Procedure, Rule 56, permits an administrative law judge to recommend summary decision for either party where "there is no genuine issue as to any material fact and...a party is entitled to summary decision." The determination of whether a genuine issue of material fact exists must be

made viewing all evidence and factual inferences in the light most favorable to Complainant. Trieber v. Tennessee Valley Authority, Case No. 87-ERA-25 (Sec. Dec., Sept. 9, 1993). Thus, for Respondent's motion to be granted, there must be no disputed material facts and Respondent must be entitled to prevail as a matter of law. Gillilan v. Tennessee Valley Authority, Case No. 91-ERA-31, 91-ERA-34 (Sec. Dec., August 18, 1995, slip op. at 3).

   In addition to the e-mail allegation, which construes Complainant's case too narrowly, Complainant's complaint filed with the undersigned alleges activity in the performance of his official duties which arguably constitute protected conduct. See Part III, Wrongful Acts. The issues have been joined by Respondent's answer to Complaint and clearly present material facts which are in dispute. Accordingly, Respondent's motion for summary decision is inappropriate and, therefore, DENIED.

   Based upon the foregoing, Respondent's Motions to Dismiss Due to Lack of Subject Matter Jurisdiction and Untimely Filing are hereby GRANTED. Respondent's Motions to Dismiss Due to Collateral Estoppel and for Summary Decision are hereby DENIED.

   IT IS HEREBY ORDERED that the hearing presently scheduled for July 20, 1999, be and it is hereby cancelled.

   ORDERED this 13th day of July, 1999, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review is timely filed with the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and/or order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).