Date: AUG 27 1991

IN THE MATTER OF

LARRY D HENDERSON
Complainant,

v.

TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 90-ERA-25

MICHAEL A. SMITH
Complainant, v. TENNESSEE VALLEY AUTHORITY
Respondent, Case No. 90-ERA-50

DEWEY RAY SMITH
Complainant

v.

TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-51

LARRY D. HENDERSON
Complainant

v.

TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-26

MICHAEL A. SMITH
Complainant

v.

TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-5

DEWEY RAY SMITH
Complainant

v.

TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-6

BEFORE: GILES J. MCCARTHY
Administrative Law Judge

   This is a proceeding under the Energy Reorganization Act of 1974 (ERA) as amended 42 U.S.C. 5851 et. seq. Pursuant to joint requests for consolidation of the cases appropriate orders directing consolidation have been issued. Time limitations have been waived by complainants.

   In case nos. 90-ERA-50 and 90-ERA-51, complaints were filed by Michael A. Smith and Dewey Ray Smith respectively on July 3, 1990 alleging that their jobs as Nuclear Inspectors, Grade SE-5, at the Sequoyah plant of TVA were abolished effective June 16, 1989 by notice given them on May 8, 1989. In their response to requests for admissions filed by TVA they so admitted.

   In case no. 90-ERA-25, Larry D. Henderson filed a complaint alleging his job as a Nuclear Inspector (NC) was abolished on June 16, 1989 by notice dated May 8, 1989.

   Henderson also alleged that he was discriminated against by TVA "in the selection of nuclear inspectors after the reduction in force to permanent positions. Many of the persons so selected having less seniority less certification and a lower position on the retention roster, with selections being made between June 16, 1989 and June 12, 1989 and continuing up to the date of the complaint".

   TVA has filed a motion for partial summary judgment in the above three cases on the grounds of res judicata and untimely filing.

   Specifically, TVA contends that all the parties, who were represented by counsel, participated in a hearing before the

Merit Systems Protection Board (MSPB) on September 28 & 29, 1989, that the A.L.J. in that case gave full opportunity for complainants to air their grievances.

   On November 2, 1989, the A.L.J. of the MSPB issued a decision finding that the Reduction in Force was correct for legitimate management reasons, that no nuclear inspector with less retention standing than complainants were retained in their competitive level and that complainants had not proved their affirmative defense of reprisal. The decision became final on failure of claimant to file an appeal with the U.S. Circuit Court.

   Answers to a Notice to Show Cause as to why the complaints should not be dismissed as a partial summary judgment be issued have been filed by counsel for complainants, alleging that the doctrine of res judicata is unavailable for agency decisions.

   I turn first to the issue of untimely filing. The Act and implementing regulations require that a complaint be filed within 30 days. (42 U.S.C. 5851(b); 29 C.F.R. 24.3(b)).

   In each of the three cited cases, the complainants received notice on May 8, 1989 of their RIF effective June 16, 1989. Complaints were filed on July 3, 1989.

   Under these facts, I find that the complaints were first notified of their reduction in force on May 8, 1989, and this notice triggered the thirty day period to file. When Congress spells out a strict time limit on filing a complaint, failure to adhere thereto is fatal (Federal Group Insurance Corporation v. Merrill, 332 U.S. 380 (1987).

    In Delaware State College v. Ricks, 449 v. 250 (1980), tenure was denied a faculty member. The Court noted that

"discrimination occurred --- and the filing period therefrom commenced by the time the tentative decision was communicated to Ricks. This is so, even though the eventual loss of a teaching position did not occur until later."

   The same position has been adopted by the Secretary of Labor, in a virtually similar case to the present case. (Riden

v. Tennessee Valley Authority, 89-ERA-89, final dec: C. July 18, 1989). The complainant a TVA employee, received notice of his reduction in force on May 12, 1989, to be effective June 16, 1989: Complaint was filed on July 11, 1989. The Secretary in her final decision and order accepted the recommended decision of the Administrative Law Judge who found

"The time limits run from the time of the discriminatory act. A complaint which is not filed within thirty days after the discriminatory act, is time barred.

Where the alleged discriminatory act is a reduction in force, the discriminatory act is the communication of notice of RIF to the plaintiff, as opposed to the last date of employment."

   The Secretary, accordingly adopted the recommended decision that the claim was time barred and dismissed the claim (See also McGarvey v. EG & G Idaho and Earl A. Bradford, 87 ERA-31, final decision September 10, 1990).

   Nor do I find any allegation that the complainants were misled in any way by T.V.A. Each admitted he was notified on May 8, 1989 that he would be terminated effective June 16, 1989 in clearly unmistakable terms. Accordingly, it is recommended that the claims of the three complaints be dismissed for untimely filing. I find no allegation of equitable tolling.

   This case also involves the issue of whether res judicata (or collateral estoppel) is applicable in light of the MSPB final decision.

   The Deputy Secretary of Labor in the case of Vissi Corporation DBA National Security Services and Andrew Godbort issued a final Decision and order, case no. SCA-1233 affirming such procedures. In that case under the McNamara O'Hara Service Contract Act of 1965 as amended, the Solicitor introduced in evidence the CAB decision and argued that because the issue of identity of contractors had been previously litigated before an administrative judge acting in a judicial capacity, the decision of the agency on the issue must be given binding effect in the MSCA proceeding.

   The Deputy Secretary found it was error for the A.L.J. to refuse to give preclusive effoct as to issues decided in the CAB decision, citing the U.S. Supreme Court in the case of Federated Department Stores Inc. v. Moltie, 452 U.S. 394, 398-399 (1981).

   The Deputy Secretary also found that

"the CAB decision must be given preclusive effect in the present proceeding. It is well settled that an administrative decision may be given preclusive effect. The test, as stated by the Supreme Court, is when an administrative agency is acting in a judicial capacity and resolves disputed questions of fact properly before it which the parties have had an adequate opportunity to litigate the courts have not hesitated to apply res judicata to enforce repose" United States v. Utah Const. & Mining Co., 384 U.S. 394, 422 (1986).

   Citing Montana v. United States 440 U.S. 147, 153 (1979) the Deputy Secretary found that the test for preclusion involves three distinct tests. "(1) is the issue identical to that actually decided by another decision made (2) was the issue necessary to the earlier judgment? and (3) did the party against whom preclusion would operate have a full and fair opportunity to litigate the issue."

   In the MSPB proceeding, identical issues were involved. The MSPB was an administrative hearing in which claimants and their counsel fully participated and the issues presented here were issues necessary to the prior MSPB decision, and counsel for complainants was given full, fair opportunity to litigate the issues.

   As pointed out by the Deputy commissioner in the Nissi case

"If respondents were dissatisfied with the CAB decision, they could have sought a correction on direct appeal --- which they did not do. Accordingly the A.L.J. here erred in refusing to give preclusive effect to the issues litigated in the CAB decision --- "

   Accordingly, I find the complaints herein, based upon the prior decision in the MSPB case involving the same parties and issues, precluded further litigation thereto. Accordingly, I recommend that the cases 90-ERA-50 and 90-ERA-51 be dismissed on the grounds of res judicata; and that 90-ERA-50, 90-ERA-51 and 90-ERA-25 be dismissed as untimely.

   I note that complainants have, by telegram dated August 16, 1991 requested that the cases not be dismissed since their counsel has suddenly retired. However, I note that in the three cases where I have recommended dismissal, a Notice to Show Cause was issued and briefs were received from complainants' prior counsel. The remaining cases are not dismissed at this time.

   It is recommended that case nos. 90-ERA-25, 90-ERA-50 and 90-ERA-51 be DISMISSED.

   The Act grants an award of attorney's fees solely in cases where the claimant is adjudged to be entitled to benefits. Since benefits were not awarded in this case, the Act prohibits the charging of any fee to Claimant for representation services rendered in pursuit of this claim.

       GILES J. McCARTHY
       Administrative Law Judge

GJM/dle
Ft. Lauderdale, FL

NOTICE OF APPEAL RIGHTS: Any party dissatsified with this Decision and Order may appeal it to the Benefits Review Board within 30 days from the date of this decision by filing a Notice of Appeal with the Benefits Review Board, 1111 20th Street, N.W., Suite 757, Washington, D.C. 20036.