DATE:  March 31, 1994
CASE NO. 90-ERA-56


IN THE MATTER OF

URSULA KOSCIUK,

          COMPLAINANT,

     v.

CONSUMERS POWER COMPANY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND
     The [Recommended] Order Granting Motion to Dismiss Complaint
(R.O.) issued by the Administrative Law Judge (ALJ) on January 9,
1992, is before me for review in this case arising under Section
210 (employee protection provision) of the Energy Reorganization
Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988).  The
ALJ has recommended that the Complainant's complaint be
dismissed.  I disagree.
     Complainant Ursula Kosciuk alleges that she was unlawfully
discharged by Respondent Consumers Power Company (Consumers)
because she raised safety concerns about practices at its
Palisades Power Plant located in Covert, Michigan.  In addition
to filing the instant ERA Section 210 complaint with the United
States Department of Labor, Complainant also filed an action
against Consumers in the State of Michigan Circuit Court
alleging, inter alia, that her discharge violated public policy. 
Complainant's State court action was submitted to mediation
pursuant to Michigan Court Rule 2.403 (1985).  The parties
subsequently accepted the mediation panel's evaluation, and on
August 28, 1991, judgment was entered in favor of Complainant. 
In his January 9, 1992, R.O. in the instant case, the ALJ found
that, due to the State court disposition, Complainant now is 
[PAGE 2]
precluded by res judicata from proceeding administratively under
ERA Section 210. [1] 
     The term "res judicata" encompasses two distinct doctrines. 
The first is the doctrine of "claim preclusion" or true res
judicata.  As described generally in the Reinstatement (Second)
of Judgments, Section 24(1) (1982):

     When a valid and final judgment rendered in an action
     extinguishes the plaintiff's claim pursuant to the
     rules of merger and bar, [[2] ] the claim extinguished
     includes all rights of the plaintiff to remedies
     against the defendant with respect to all or any part
     of the transaction . . . out of which the action arose.
See Young Engineers v. U.S. Intern. Trade Comm'n,
721 F.2d 1305, 1314-1315 (Fed. Cir. 1983).  Consequently, the
judgment precludes litigation of any issue relevant to the same
claim between the parties, whether or not actually litigated
previously.  The Restatement contains important qualifying
language, however.

          (1) When any of the following circumstances
          exists, the general rule of [Section] 24 does
          not apply to extinguish the claim, and part
          or all of the claim subsists as a possible
          basis for a second action by the plaintiff
          against the defendant:

                    *         *         *

               (c) The plaintiff was unable to
               rely on a certain theory of the
               case or to seek a certain remedy or
               form of relief in the first action
               because of the limitations on the
               subject matter jurisdiction of the
               courts . . . .
Restatement, Section 26. [3]   As noted in Mosely v. United
States, 15 Cl. Ct. 193, 194 (1988), the Supreme Court applied
this principle in Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 382 (1985).  Additionally, as
Complainant points out, this principle is consistent with
Michigan precedent. [4]  Lud v. Howard, 161 Mich. App.
603, 411 N.W.2d 792, lv. app. den., 430 Mich. 872 (1987);
Admiral Merchants v. Dep't of Labor, 149 Mich. App. 344,
386 N.W.2d 193, lv. app. den., 426 Mich. 866 (1986);
Stolaruk Corp. v. Dep't of State Hwys. and Transp., 114
Mich. App. 357, 319 N.W.2d 581 (1982).
     Complainant's State court action alleged breach of an
employment contract made actionable because Consumers' grounds 
[PAGE 3]
for termination of the contract contravened public policy, with
recovery limited to monetary damages. [5]   The instant ERA
proceeding would not encompass a breach of contract claim.  Here,
Complainant complains that she was discharged in violation of ERA
Section 210, an issue reserved to this forum, and seeks
injunctive relief and compensation not routinely available in a
State court action for retaliatory discharge. [6]   Accordingly,
because Complainant could not successfully have raised her ERA
Section 210 complaint in the State court action, she comes within
the above exception and is not barred under the doctrine of claim
preclusion from proceeding here.
     The second doctrine encompassed by the term "res judicata"
is that of "issue preclusion" or collateral estoppel which

     recognizes that suits addressed to particular claims
     may present issues relevant to suits on other claims. 
     [I]ssue preclusion bars the relitigation of issues
     actually adjudicated, and essential to the judgment, in
     a prior litigation between the same parties. . . .   It
     is insufficient for the invocation of issue preclusion
     that some question of fact or law in a later suit was
     relevant to a prior adjudication between the parties;
     the contested issue must have been litigated and
     necessary to the judgment earlier rendered.  
Kaspar Wire Works, Inc. v. Leco Engineering & Mach., 575 F.2d
at 535.  The record in the instant case does not disclose which,
if any, issues were "litigated" as the result of the mediation. 
Complainant's State court complaint alleged four counts in
addition to "violation of public policy" as bases for recovery,
and the judgment disposing of the action is silent as to any
mediation findings or conclusions.  Cf. Cream Top
Creamery v. Dean Milk Co., 383 F.2d 358, 363 (6th Cir. 1967)
(collateral estoppel did not apply when prior State court action
was dismissed with prejudice without findings of fact or merits
adjudication).  As a result, this doctrine does not affect
Complainant's ERA complaint.  Restatement (Second) of Judgments,
Section 27 at 250 (1982).     Accordingly, I find that Complainant is not precluded from
proceeding administratively under ERA Section 210.  This case IS
REMANDED to the ALJ for a hearing.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.

[ENDNOTES]
           
[1]   The ALJ correctly noted that the full faith and credit
statute, 28 U.S.C. § 1738, requires Federal courts to give
the same preclusive effect to State court judgments that those
judgments would be given in the courts of the State that rendered
them, Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466
(1982); and the statute applies by implication to agency
decisions reviewable in the Federal courts.  Graybill v.
United States Postal Serv., 782 F.2d 1567 (Fed. Cir. 1986),
cert denied, 479 U.S. 963 (1986).

[2]  "When the plaintiff obtains a judgment in his favor, his
claim 'merges' in the judgment; he may seek no further relief on
that claim in a separate action.  Conversely, when a judgment is
rendered for a defendant, the plaintiff's claim is extinguished;
the judgment then acts as a 'bar.'"  18 C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure:  Jurisdiction § 4402
at 7, quoting Kaspar Wire Works, Inc. v. Leco
Engineering & Mach., 575 F.2d 530, 535 (5th Cir. 1978).

[3]  Restatement Section 26 comment c, quoted in Young
Engineers, 721 F.2d at 1315, explains that where formal
barriers prevented a litigant from presenting his entire claim in
the first action, it is unfair to preclude him from proceeding on
the remaining theories in a second action.  "The formal barriers
referred to may stem from limitations on the competency of the
system of courts in which the first action was instituted, or
from the persistence in the system of courts of older modes of
procedure 
. . . ."

[4]  Under Marrese, Federal courts must look first to
State law in determining the preclusive effects of judgments of
State courts.

[5]  Kovacs v. Electronic Data Systems Corp., 762 F. Supp.
161, 167 (E.D. Mich. 1990); Valentine v. General American
Credit, Inc., 420 Mich. 256, 362 N.W.2d 628, 630 (1984);
Mourad v. Automobile Club Ins. Ass'n, 186 Mich. App. 715,
465 N.W.2d 395, lv. app. den., 478 N.W.2d 443 (Mich.
1991); Lopus v. L. & L. Shop-Rite, Inc., 171 Mich. App.
486, 430 N.W.2d 757, lv. app. den., 431 Mich. 884 (1988).

[6]  Upon a finding of violation, "the Secretary [of Labor] shall
order the person who committed such violation to (i) take
affirmative action to abate the violation, and (ii) reinstate the
complainant to his former position together with the compensation
(including back pay), terms, conditions, and privileges of his
employment . . . ."  42 U.S.C. § 5851(b)(2)(B). 
Compensatory damages, including damages for mental distress, also
are available.  Deford v. Secretary of Labor, 700 F.2d
281, 288 (6th Cir. 1983).  ERA Section 210 is a fee shifting
statute.  A complainant may recover all costs and expenses
reasonably incurred in bringing a complaint, including attorney
and expert witness fees.