Date:  May 22, 1995
Case No. 95-ERA-3

In the Matter of

SHARYN EKLUND
     Complainant
 v.

NATIONAL INSTITUTES OF HEALTH
     Respondent


               RECOMMENDED ORDER OF DISMISSAL

     Complainant Sharyn Ecklund filed a complaint under the
employee protection provisions of the Energy Reorganization Act,
as amended (ERA), 42 U.S.C. §5851, on June 9, 1994.  After
withdrawing the complaint on June 17, 1994, she reinstated it by
letter of July 15, 1994.  On August 5, 1994, the District Direc-
tor, Wage and Hour Division, Baltimore, MD, dismissed her claim. 

     Complainant submitted a request for a hearing to the Office
of Administrative Law Judges on September 2, 1994.  By order of
November 7, 1994, I scheduled a hearing for November 29-30, 1994. 
Complainant requested a postponement.  By order of December 5,
1994, I rescheduled the hearing for April 3-4, 1995, and ordered
the parties to submit mutually acceptable alternative dates if
that date was not agreeable.  By letter of December 16, 1994,
respondent agreed to the April hearing dates.  By letter of
December 20, 1994, complainant stated that the April hearing date
was not acceptable, but failed to suggest alternate hearing
dates.  By letter of January 3, 1995, complainant stated that she
hoped "within the next week or two to have a definite date ... "
and would notify us accordingly.  Two months passed without any
further correspondence.

     On March 9, 1995, I issued an Order to Show Cause why the
case should not be dismissed for failure to prosecute, and
ordered complainant to submit a list of mutually acceptable
alternative hearing dates after consultation with counsel for the
respondent.  Complainant responded by letter of March 24, 1995,
but failed to show good cause for her failure to prosecute, or to
otherwise comply with my order.  She stated only that, because of

[PAGE 2]
alleged poor health and the demands of being enrolled in law
school, she "will not be free to consider [a hearing date] until
the third or fourth week in May."  She failed again to submit a
list of acceptable alternative hearing dates.

     On March 30, 1995, respondent filed a Motion to Dismiss for
failure to prosecute.  On April 10, 1995, my law clerk, attorney-
advisor Benjamin L. Siegel, wrote to complainant enclosing a copy
of the Motion, reminding her that the applicable regulations
required her to file a response by April 17, 1995.  Complainant
has failed to file any response.  

      Since complainant appealed the case to this Office, she has 
failed to comply with two court orders directing her to submit
acceptable hearing dates and has failed to demonstrate good cause
for doing so.  29 C.F.R. § 24.5(e)(4) authorizes the Admin-
istrative Law Judge to dismiss a claim for the complainant's
failure to comply with a lawful order. Gore v. CDI Corpora-
tion, 91-ERA-14, slip op. at 2 (Sec'y July 8, 1992).  This
case cannot continue to be held in abeyance indefinitely to suit
complainant's convenience, as she apparently desires.  The ERA
whistleblower provision was meant to be an expedited proceeding,
the respondent's ability to prepare a defense may be hampered by
continuing delay, and the Department of Labor has no obligation
to hold a case open in perpetuity. Compare Guity
v. Tennessee Valley Authority, 90-ERA-10, slip op. at 4, 7
(Sec'y Jan. 24, 1994)(Secretary orders dismissal of case where
complainant is unable to proceed with litigation because of
mental incompetence).    

                             RECOMMENDED ORDER

     The complaint is hereby DISMISSED WITH PREJUDICE.


                              ________________________________
                              EDITH BARNETT
                              Administrative Law judge

EB/BLS: bdw
Washington, D.C.
4747