DATE: January 26, 1998

CASE NO.: 93-ERA-0046

In the Matter of:

KAREN D. BILLINGS, On Behalf Of
DOUGLAS E. BILLINGS, Deceased,
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent

BEFORE: Robert L. Hillyard
   Administrative Law Judge

   This action arises under the Energy Reorganization Act, Public Law 95-601, Section 210, 42 U.S.C. § 5851.

   Douglas E. Billings filed a complaint on June 22, 1993, under the Energy Reorganization Act, Public Law 95-601, Section 210, 42 U.S.C. § 5851. In his letter of complaint, Billings alleges:

During March of 1993, I became aware of a Sworn Affidavit of Mr. Gerald Brantley, a TVA Supervisory employee. This Affidavit was procurred [sic] by TVA's Office of the General Counsel, and was false and constitutes perjury by Mr. Brantley and subronation [sic] of perjury by the Office of General Counsel during the pendancy [sic] of another Energy Reorganization Act action, 92-ERA-53.

These actions by TVA and their employee, Mr. Brantly were specifically designed and executed by the Office of General Counsel and Mr. Brantley to deprive Douglas Billings of Federal Employee Compensation Act Benefits in violation of 42 U.S.C. 5851, Section 210(a).

This complaint does not constitute the complete facts in this matter and I specifically request that the Wage and Hour Division contact me as required in Part (2)(A) of Section 210.

It is our determination that you have not established a prima facie' case of discrimination. Your complaint does not offer any proof of facts that unlawful discrimination took place, i.e., proof that Mr. Gerald Brantley's affidavit was false. Nor does it offer evidence that the motivating factor for any such action was your involvement in protected activity. This letter is to inform you that we will not proceed with an investigation of our complaint.

   Upon review of the record and the Respondent's Motion, I find that the claim must be dismissed for the following reasons.

   The complaint fails to state a claim upon which relief can be granted under the Energy Reorganization Act. The controlling statute provides for dismissal of a complaint unless the complainant has made a prima facie showing of discrimination which contributed to unfavorable personnel action. 42 U.S.C. § 5851(b) (3)(A). The complainant must allege that the discriminatory behavior resulted in unfavorable personnel action. 42 U.S.C. § 5851(b)(3)(C). The complaint in this proceeding is silent and fails to meet these requirements. Litigation activities are not actionable personnel matters under the ERA. Smith v. TVA, No. 90-ERA-12, slip op. at 2-4 (Apr. 30, 1992). Billings does not allege that he is an employee and cannot make such an allegation since his employment with TVA terminated in

January 1989. The action of which Billings complains does not arise from an employer/employee relationship, but from an action for money damages. The complaint states that the purpose of the challenged activities was to deprive Billings of FECA benefits. Decisions concerning FECA benefits are committed by statute and regulation to OWCP and ECAB, not TVA. TVA has no authority to make determinations about, or to administer payment of, plaintiff's workmen's compensation benefits. 5 U.S.C. §§ 8120-28, 8149. Horton v. TVA, No. 79-W-5028, slip op. at 5-6 (N.D. Ala. May 19, 1980); citing Flippo v. Tennessee Valley Authority, 486 F.2d 612 (5th Cir. 1973).

   The complaint seeks review of matters which are outside the purview of the ERA. The Secretary has divested herself of authority to administer and decide FECA matters, delegating such functions to the Assistant Secretary for Employment Standards. See 36 Fed. Reg. 8755 (1971). The delegation has never been rescinded, and has, in turn, been re-delegated to OWCP. The Secretary has held that there is no review under the ERA of actions under FECA. Billings v. OWCP, No. 91-ERA-35 (Sept. 24, 1991), appeal dismissed as untimely sub nom. Billings v. Dole, No. 91-4124 (6th Cir. Feb. 25, 1992), order noted at 956 F.2d 268 (1992).

   There is no basis to dispute FECA decisions under the ERA. The action of the Secretary or her designee in allowing or denying a payment under FECA is final and not subject to review by another official of the United States. 5 U.S.C. § 8128(b) (1988). Courts have uniformly enforced this rule. See, e.g., Vilanova v. United States, 851 F.2d 1, 6 & n.20 (1st Cir. 1988).

   The Complainant has not filed an objection to the Motion To Dismiss and has failed to comply with the show cause order dated March 13, 1997, directing her to show cause why the complaint should not be dismissed due to her failure to state a claim upon which relief could be granted under the Energy Reorganization Act.

   For the foregoing reasons, it is therefore,

   ORDERED that Summary Judgment is hereby entered against the Complainant, Karen Billings, on behalf of Douglas Billings, deceased, and in favor of Tennessee Valley Authority, and this case is hereby DISMISSED WITH PREJUDICE.

      ROBERT L. HILLYARD
      Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C., 20210. See 61 Fed. Reg. 19978 and 19982 (1996).