airlock doors simultaneously. (EX-E at 11). It was further found that the Shift Operations Supervisor did not authorize complainants action nor was a work order prepared authorizing the disarming of the interlock which were the essential prerequisites to defeating the interlock under applicable procedures. (EX-E at 5). It was further found that complainant's evidence that he had been instructed by a technician (Mr. Bult) to open the doors was unworthy of belief. (EX-E at 6). These findings are sufficient to establish that complainant's actions were deliberate and done without the direction of complainant's employer or its agent and the remaining question is whether complainant's actions in disarming the interlock caused a violation of the Atomic Energy Act of 1954, as amended.

    The evidence establishing a violation of the Atomic Energy Act begins with the Notice Of Violation And Proposed Imposition Of Civil Penalty dated August 7, 1991 which is attached to the motion as Exhibit D. This notice shows that complainant's actions which is the gravamen of this proceeding as well as the proceeding before the Merit System Protection Board resulted in the notice charging respondent with violations of the Atomic Energy Act of 1954 and proposing a civil penalty of $75,000.00 for such violations. Since the MSPB Decision recites that respondent "was fined $75,000.00 as a result of the incident," (EX-E at 15) it is inferred that respondent did, in fact, pay the civil penalty proposed in the August 7, 1991 notice. Under 10 C.F.R. § 2.205, the payment of the proposed civil penalty establishes the violation alleged in the notice. Thus, the matters cited affirmatively show that complainant caused a violation of the Atomic Energy Act of 1954. Thus, respondent has shown that complainant is barred from maintaining this action under 42 U.S.C. § 5851(a) by virtue of the express provisions of subsection (g).

    Respondent's second ground for dismissal is that the complaint which was filed December 16, 1991, is untimely. The ERA explicitly requires that a complaint be filed within thirty days after a violation occurs. 42 U. S. C. § 5851 (b) (1) (1988). Here, it is undisputed that complainant was notified of his proposed termination on June 10, 1991 and that he was terminated on July 15, 1991. (See Exhibits A and B attached to respondent's motion).

    In his complaint, complainant requests waiver of the time requirement for filing his complaint for reasons which go to complainant's lack of proof to support his belief that he was

terminated by respondent because of his whistleblowing activities. Complainant's appeal of his termination before the MSPB which is dated July 24, 1991, shows that on that date, complainant believed his termination was the result of his whistleblowing activities. (Exhibit C, Item 27). Complainant attributed his inability to substantiate his claim for discriminatory discharge to respondent's "giv[ing] false and misleading information [at the MSPB] hearing..." and because respondent "neglected to identify evidence that can be considered primary cause for a violation of technical specifications during the incident investigation by the NRC." (December 16, 1991, complaint at 3). The scope of the equitable tolling doctrine was recently described by the Supreme Court in Irwin v. Veterans Admin., 111 S.Ct. 453, 457-58 (1990). There it is stated:

    Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant has failed to exercise due diligence in preserving his legal rights.

... [T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect [citations and footnotes omitted.]

    Here, complainant has manifestly failed to exercise due diligence in preserving his legal rights. First, while represented by counsel he failed to file an EPA complaint even though by July 24, 1991 he believed his discharge was the result of his whistleblowing activities. Had he timely done so and had he utilized the discovery available to him under these proceedings, he would have preserved his ERA claim and undoubtedly discovered the very information he now claims he has. Secondly, he failed to appeal the MSPB decision which found that his discharge was justified despite the claim made here that such decision was the result of respondent presenting false and misleading information before the MSPB. Thus, complainant sat on his rights and did not exercise the degree of due diligence which would entitle him to any

consideration here. Complainant's asserted reasons are manifestly insufficient to warrant the equitable tolling of the thirty day period of limitations which therefore should be enforced.

    In view of the foregoing it is recommended that the complaint upon which this proceeding is based be DISMISSED.

       QUENTIN P. MCCOLGIN
       ADMINISTRATIVE LAW JUDGE

Dated: MAR 17 1992

Metairie, Louisiana

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