DATE:  August 7, 1995
CASE NO. 94-ERA-22


IN THE MATTER OF

STEFAN K. TELES,

          COMPLAINANT,

     v.

U.S. DEPARTMENT OF ENERGY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Order of Dismissal
issued on February 28, 1995, by the Administrative Law Judge
(ALJ) in this case arising under section 211 (employee protection
provision) of the Energy Reorganization Act, as amended (ERA), 42
U.S.C. § 5851 (1988 & Supp. V 1993).  The ALJ has
recommended that the complaint against Respondent, an agency of
the United States, be dismissed because sovereign immunity has
not been waived under ERA section 211, and Respondent thus is not
subject to suit.  I agree.
     Section 2902 of H.R. 776, Energy Policy Act of 1992, Pub. L.
No. 102-486, 106 Stat. 2776 (Oct. 24, 1992), amended former ERA
section 210.  The conference version of H.R. 776, which differed
in many respects from earlier versions of the bill,[1]  passed
both the House of Representatives and the Senate in early October
1992 and was enacted later that month.  This final version
proscribed discrimination by "employer[s]" and "person[s]" for
enumerated protected activity.  The term "person" is not defined
in section 211.  The term "employer" expressly includes (1)
licensees of the Nuclear Regulatory Commission or of an agreement
State under a 
[PAGE 2]
designated section of the Atomic Energy Act of 1954; (2)
applicants for a license from the Commission or an agreement
State; (3) contractors or subcontractors of licensees or
applicants; and (4) contractors or subcontractors of the
Department of Energy (DOE) indemnified under another section of
the Atomic Energy Act.  42 U.S.C.A. § 5852(A)(2).  Deleted
from the definition is a fifth category of employer that appeared
in earlier drafts, i.e., "any other employer engaged in
any activity licensed under the Atomic Energy Act of 1954."  
     An examination of the legislative history suggests that the
deleted category may have included the DOE.  See, e.g.,
H.R. Rep. No. 474, 102d Cong., 2d Sess., pt. 8, at 78 (1992),
reprinted in 1992 U.S.C.A.A.N. 1953, 2296 (legislation
"broadens the coverage of existing whistleblower protection
provisions to include . . . the Department of Energy ").  Thus,
not only is the United States not named expressly in
section 211 as subject to whistleblower proscriptions, the
legislative development shows an agency of the United States to
have been excluded in the final analysis.
     As for Complainant's argument that section 211's term
"person" should be defined under 42 U.S.C. § 2014 to mean
"any . . . Government agency," I note that the definitions set out in
section 2014 apply expressly to terms used in chapter 23 of Title
42 (Development and Control of Atomic Energy), rather than to
terms used in chapter 73 (Development of Energy Sources) which
contains ERA section 211.  Similarly, the definition appearing at
42 U.S.C. § 6202(2) applies to the term's usage in chapter
77 (Energy Conservation) rather than in chapter 73.  Reference to
the United States as a "person" for purposes of separate
legislation is insufficient to constitute an unequivocal waiver
of sovereign immunity under section 211.
     Accordingly, I adopt the ALJ's Recommended Order of
Dismissal, copy appended.  This case IS DISMISSED.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1] 
   For example, amendments to former ERA section 210 were
included in earlier versions of H.R. 776 reported by the House
Committee on Energy and Commerce (H.R. Rep. No. 474, 102d Cong.,
2d Sess., pt. 1 (March 30, 1992)) and the House Committee on
Interior and Insular Affairs (H.R. Rep. No. 474, 102d Cong., 2d
Sess., pt. 8 (May 5, 1992)).