Date: August 4, 1995


CASE NO.  94-TSC-5

IN THE MATTER OF

     JUDY K. STEPHENSON,
               Complainant


        v.

     NATIONAL AERONAUTICS & SPACE
     ADMINISTRATION; (NASA)
               Respondent

              RECOMMENDED ORDER GRANTING MOTION TO DISMISS

     NASA, the sole remaining respondent in this proceeding has
moved to dismiss this action under Rule 12(b)(1), Fed. R. Civ. P.
on the basis that complainant is not an employee of NASA within the
meaning of the employee protection provisions of the Clean Air Act
(CAA) codified as 42 U.S.C. § 7622(a).[1]   NASA relies on the
Secretary's decision in Reid v. Methodist Medical Center of Oak
Ridge, 93-CAA-4 (Sec'y April 3, 1995), (Reid), wherein
the Secretary interpreted the term "employee" as that term is used
in CAA as well as in five other environmental whistleblower
statutes.  More particularly NASA relies on the Secretary's
announcement in Reid that he would apply the common law
definition of that term in the six specified environmental
whistleblower statutes in accordance with holding in Nationwide
Mutual Ins. Co. v. Darden, 112 S. Ct. 1344 (1992).

     NASA offers proof, in the form of affidavits, that complainant
was not hired, employed, supervised, managed, assigned work,
evaluated or paid by NASA nor did she receive employee or other
benefits from NASA.  Thus, the proof offered supports the
conclusion that complainant has never been an employee of NASA.

     Complainant's substantive response to this motion is that
Reid 
[PAGE 2]
is an independent contractor case that is sui generis
and does not represent a reversal of Hill & Ottney v. TVA,
87-ERA-23/24 (Sec'y D&O on Remand May 24, 1989) and Adams v.
Coastal Production Operators, Inc., 89-ERA-3 (Sec'y August 5,
1992) which complainant characterizes as joint employer cases.

     The former case being an ERA case is distinguished on the
basis of its legislative history.  Indeed, ERA cases were expressly
distinguished from the environmental whistleblower provisions
involved in Reid.  Reid slip. op at 18-19.  The
latter case simply does not support complainant's argument as the
only party respondent there was, in fact, the complainant's
employer.

     Complainant also argues that her claim should not be dismissed
on motion before she secures discovery.  This argument is without
merit.  Complainant concedes that she was not a NASA employee and
that she was an employee of Martin Marietta.  This circumstance
alone is sufficient to resolve the pending motion without regard to
the outstanding discovery.

     Contrary to the arguments advanced by complainant, I find the
holding in Reid to control the disposition of the pending
motion.  I find that complainant has failed to meet her burden to
present a prima facie showing that she was an
employee of NASA as the term "employee" is used in the CAA
whistleblower provision.  I further find in view of complainant's
concessions, that she is not a NASA employee.  Accordingly, her
complaint against NASA should be dismissed.


                               ORDER

     NASA's motion to dismiss is GRANTED and the complaint is
hereby DISMISSED.




                              ___________________________________
                              QUENTIN P. MCCOLGIN
                              ADMINISTRATIVE LAW JUDGE



Metairie, Louisiana
QPMC:daq



[ENDNOTES]
           
[1]   Five individuals who were initially named as respondents
herein have been dismissed.  Additionally, a settlement between
complainant and the Martin Marietta respondents has been
approved.  Finally, the allegation that NASA violated the
whistleblower provision of the Toxic Substance Control Act has
also been dismissed.