DATE: September 24, 1991
CASE NO. 91-ERA-0035

IN THE MATTER OF

DOUGLAS BILLINGS,
    COMPLAINANT,

    v.

OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the [Recommended] Decision and Order -- Dismissal of Claim issued April 23, 1991, by the Administrative Law Judge (ALJ) in this case arising under the Energy Reorganization Act of 1974, as amended (ERA or the Act), 42 U.S.C. § 5851 (1988).¹ The ALJ recommended that the cases be dismissed for lack of jurisdiction under the ERA.²

   The record shows that Complainant filed his complaint under

   I agree with the ALJ that subject matter jurisdiction under the ERA is lacking in this case. It is well established that a necessary element of a valid ERA claim under Section 5851 is that the party charged with discrimination be an employer subject to the Act. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983). Employers under the ERA are licensees, or applicants for a license, of the Nuclear Regulatory Commission (NRC), and their contractors and subcontractors. 42 U.S.C. § 5851(a); Wensil v. B.F. Shaw Co., Case Nos. 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34, Sec. Order, Mar. 29, 1990, slip op. at 11, aff'd sub nom. Adams v. Dole, 927 F.2d 771, 776 (4th Cir. 1991), petition for cert. filed sub nom. Adams v. Martin, No. 90-8210 (June 3, 1991). Because it is clear that Respondent is not an employer subject to the Act, the complaint lacks subject matter jurisdiction.³ See Fed. R. Civ. P. 12(h)(3).

   Accordingly, I agree with the ALJ that the case must be, and it hereby is, DISMISSED.

   SO ORDERED.

       LYNN MARTIN
       Secretary of Labor Washington, D.C.

¹The ALJ's decision is a recommended decision forwarded to the Secretary for review and issuance of a final order. See 29 C.F.R. § 24.6(a) (1990).

² The parties were afforded an opportunity to file briefs in support of or in opposition to the ALJ's decision but no briefs have been filed before me.

³ I agree with the ALJ that the case of English v. Whitfield, 858 F.2d 957 (4th Cir. 1988), cited in Complainant's complaint, is to no avail as not involving any question of the employer's status as an employer subject to the Act. The employer in English operated an NRC licensed fuel production facility in North Carolina. 858 F.2d at 958.