DATE: April 9, 1992
CASE NO. 91-ERA-12


IN THE MATTER OF

DOUGLAS E. BILLINGS,

          PLAINTIFF,
v.


TENNESSEE VALLEY AUTHORITY,

DEFENDANT.


BEFORE:  THE SECRETARY OF LABOR


                         ORDER OF REMAND

     This matter is before me pursuant to the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C.  5851
(1988), and regulations at 29 C.F.R. Part 24 (1991).
     On August 18, 1991, Douglas E. Billings (Billings) filed a
complaint with the Office of the Administrator of the Wage and
Hour Division, Employment Standards Administration, United States
Department of Labor, which stated in pertinent part:

      The identified persons [[1]] have conspired to deprive Douglas E.
     Billings of benefits as afforded under Title 5 U.S.C.  8101-8151.
     In doing so the persons named have caused Douglas Billings to
     suffer great mental and physical stress.


[PAGE 2]

     On August 2, 1990, Douglas Billings became aware that the
     Tennessee Valley Authority [TVA] through their Inspector
     Generals Office had contacted the Office of Workers'
     Compensation Programs [OWCP] Chief of Claims in Jacksonville,
     Florida.

     Mr. George T. Prosser for the IG's office begged the Chief of Claims
     to terminate Douglas Billings compensation payments that he-was
     receiving for permanent total disability.

     Mr. Bennett, the Chief of Claims co-operated and terminated Douglas
     Billings benefits illegally.

    This evidence came to light in a prehearing submission [for another
    Billings v. TVA case] submitted to Administrative Law Judge,
    Robert L. Hillyard [also the ALJ in this case] dated July 30, 1990
    and transmitted by telecopier.  A service copy was mailed to Douglas
    Billings making him aware of the conspiracy.

On November 26, 1990, the District Director of the Nashville office of the Wage and Hour
Division notified Billings that its investigation "did not verify that discrimination [under] the
statute could be substantiated . . . . Our investigation revealed no evidence that the efforts by
TVA to reduce and/or terminate your OWCP payments were due to discrimination
under the ERA.  TVA had an obligation to notify OWCP of possible improper payments.
Billings appealed this finding by requesting a hearing on November 29, 1990, before an
Administrative Law Judge (ALJ).
   Ruling upon Billings' compliance with the ALJ's December 12, 1990, Notice of Hearing and
Prehearing Order, and TVA's December 20, 1990, Motion to Dismiss or, in the Alternative, for
Summary Judgment, the ALJ entered a [Recommended] Order of Dismissal (R.O.), dismissing
the case with prejudice on January 9, 1991. [2]  The ALJ's dismissal of Billings' complaint was
based upon the following reasons:

     1.  The basis of the complaint concerns contacts and discussions 
[PAGE 3]
    between TVA employees and other officials which come within First 
    Amendment protections.

    2.  The basis of the complaint was previously litigated in Nos.
    89-ERA-16 and 90-ERA-18. These two complaints were previously
    litigated and the complaints dismissed by the ALJ in the instant
    case]. [[3]]  Any further litigation of these same complaints is
    barred by the principle of res judicata.

   3.  The plaintiff has failed to comply with an Order directing him
   to file a prehearing statement on or before December 28, 1990.  The
    Order provided notice to the parties that failure to comply may
    result in dismissal of the proceeding.  The plaintiff has ignored
    the Order since he has not filed a prehearing statement or requested
    and extension of time for compliance.

R.O. at 2.

    The final paragraph of the ALJ's December 12, 1990, Notice of
Hearing and Prehearing Conference stated:  "NOTICE:  Failure
to timely comply with this prehearing order, without good cause
shown, may result in the dismissal of the proceeding or of other
appropriate sanctions against the offending party."  This
notice of possible dismissal is inconsistent with the procedure set
forth in ERA regulations at 29 C.F.R.  24.5(e)(4), which
provides that an ALJ's dismissal of a claim
requires a prior "order to show cause why the
dismissal should not be granted and afford all parties a
reasonable time to respond to such order."  As stated in
Billings v. 
[PAGE 4]
Tennessee Valley Authority, Case Nos. 89-ERA-16,
89-ERA-25, 90-ERA-2, 90-ERA-8, 90-ERA-18, Secretary's Order
of Remand, January 9, 1992, [4] slip Op. at 2-3, "Because
dismissal is a drastic sanction, strict compliance with
the applicable regulation is required," especially since
the Plaintiff in this proceeding lacks professional legal
representation and is appearing pro se. [5] Accordingly,
consistent with my January 9, 1992, Order of Remand in the
aforementioned cases involving Billings and TVA, this case
is remanded to the ALJ for compliance with the procedures
established in 29 C.F.R.  24.5(e)(4).                      
      SO ORDERED.
                        LYNN MARTIN
                        Secretary of Labor                 
      


Washington, D.C.

[ENDNOTES]

[1]  Billings' complaint named various employees of TVA, the
Department of Labor's Office of Worker Compensation Programs and
Employees' Compensation Appeals Board, and "Others not yet
discovered."
[2]  On January 9, 1991, the ALJ also issued a separate Order denying
Billings' request for the ALJ's recusal or remand to the
Wage and Hour Division for investigation.

[3] The ALJ's res judicata holding for
dismissing Billings' complaint in this proceeding,
item#2, quoted supra, is predicated on his
prior dismissal of two other cases involving
Billings and TVA, Case Nos. 89-ERA-16 and
90-ERA-18, for failure to comply with his orders
and failure to prosecute.  These cases were
recently remanded to the ALJ in Billings v.
TVA, Case Nos. 89-ERA-16, 89-ERA-25, 90-ERA-2,
90-ERA-8, 90-ERA-18, Secretary's Order of Remand,
January 9, 1992, discussed infra.                                         

[4]  See n.3.
                         
[5]  Procedural rules can be relaxed, modified or waived in a proper
case when the ends of justice so require.  Schacht v. United
States, 398 U.S. 58, 63-64 (1970); American Farm Lines v.
Black Ball Freight Service, 397 U.S. 532, 538-39 (1970);
Papago Tribal Utility Authority v. Federal Energy Regulatory
Commission, 610 F.2d 914, 917-20, n.20 (D.C. Cir. 1980); Boston
Gas Company v. Federal Energy Regulatory Commission, 575
F.2d 975, 979 (lst Cir. 1978); Canfield v. United States, 14
Cl.Ct. 687, 691-92 (1988), 28 WH Cases 969, 972-73.  However, the
ALJ's failure to adhere to 29 C.F.R.  24.5(e)(4) is
detrimental to the ends of justice, thereby precluding waiver of
the regulation in this case.