that the 30 day complaint-filing period was tolled due to the employer's failure to post a notice required by 10 C.F.R. § 19.11(c); (2) that the period was tolled for two weeks until complainant learned that certain statements made to him on October 14, 1983, were misleading or false; (3) that application of the doctrine of "equitable modification" would be consistent with the remedial purposes of the Act; and (4) that the one day delay in filing in this case should be distinguished from those cases where longer delays were found to support dismissals of the actions.

    The salient facts for purposes of the subject motion are: that complainant was personally informed by Lead Pipe Engineer Leonard B. Mangoba on October 14, 1983, that he was being terminated that day due to a reduction in force; that no mention was made of any rights to file a claim under the Act; that complainant did not learn for approximately two weeks of the possible falsity of statements made to him on October 14, 1983; that the employer had a properly posted notice pursuant to 10 C.F.R. § 19.11(c) but complainant ant did not observe it; and that complainant filed "a complaint pursuant to 42 U.S.C. § 5851" by letter dated November 14, 1983, stating that "I was prevented from returning to work on October 17 because I had disclosed serious violations of Atomic Energy Act requirements...."

The Law

    The Act provides in relevant part:

    (b) Complaint, filing and notification

    (1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the "Secretary") alleging such discharge or discrimination.

(emphasis added) 42 U.S.C. § 5851(b)(1). The implementing regulation at 29 C.F.R. § 24.3(b) provides:

    (b) Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

(emphasis added).

    Another regulation applicable to cases subject to hearings within the Department of Labor states that:

    (c) Computation of time for delivery by mail. (1) Documents are not deemed filed until received by the Chief Clerk at the Office of Administrative Law Judges. However, when documents are filed by mail, five (5) days shall be added to the prescribed period.

    (2) Service of all documents other than complaints is deemed effected at the time of mailing.

    (3) Whenever a party has the right or is required to take some action within a prescribed period after the service of a pleading, notice, or other document upon said party, and the pleading, notice or document is served upon said party by mail, five (5) days shall be added to the prescribed period.

29 C.F.R. § 18.4(c). Further, 29 C.F.R. § 18.1(a) provides in relevant part:

    To the extent that these rules may be inconsistent with a rule of special application as provided by statute, executive order, or regulation, the latter is controlling.

Issues

    The questions presented are thus: (1) what is the date on which the alleged "violation occurred," thereby starting the 30-day period for filing complaints pursuant to 42 U.S.C. 5851(b)(1); (2) whether the above-quoted provision at 29 C.F.R. 18.4(c) served to extend the filing period to 35 days; (3) whether the complainant's failure to see the notice required by 10 C.F.R. § 19.11(c) tolled the filing period; and (4) whether any late filing should be excused based on equitable considerations.

    The gravamen of the violation alleged by complainant is that he was fired or terminated because he engaged in protected activities. Based on the affidavits of Mssrs. Mangoba and Nocito, it is established that complainant was informed that he was terminated on October 14, 1983, and that he did not and was not scheduled to work thereafter. Therefore, regardless of the fact that October 17 was the first workday he did not work, it is concluded that it is the former date that triggers the 'running of the 30-day period for filing complaints under the Act. See Chardon v. Fernandez, 454 U.S. 6 (1981); Delaware State College v. Ricks, 49 U.S. 250 (1980).

    On its face, the regulation at 29 C.F.R. § 18.1 clearly precludes extending the statutory 30-day complaint filing requirement to 35 days. Since the specific regulation applicable to "whistleblower" complaints, 29 C.F.R. § 24.3(b), is inconsistent with the Part 18 provision, the complaint, dated November 14, 1983, must be "deemed filed" on that date at the earliest, which was the 31st day after the alleged violation occurred.

    Although complainant asserted in his affidavit that to the best of his knowledge there was no notice posted, as required by 10 C.F.R. § 19.11(c), the employer, through the affidavit of Craig A. Monn, has established that the subject notice was posted at a location where complainant was observed on several occasions. Thus, the affidavits do not give rise to a disputed issue which would preclude summary decision before a full hearing. Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3rd Cir. 1977), cert. denied 439 U.S. 821 (1978). While they do support a finding that complainant did not see the posted notice, such finding does not of itself serve to require a tolling of the 30-day limitations period. Id.

    The gist of complainant's position regarding equitable modification, tolling and estoppel is that he was misled by Mr. Mangoba's October 14, 1983, statements and did not learn the basis for his

cause of action until two weeks later; that the employer was not prejudiced by a mere one day delay in filing; and that the Act's remedial purposes would be served by excusing the late filing.

late filing and that the Act's purposes would be served by excusing the delay, it has been clearly held that lack of prejudice "is simply irrelevant when Congress has drawn a line at a point where it believed claims should be barred." School District of City of Allentown v. Marshall, 657 F.2d 16, 20 (3rd Cir. 1981). Also, although it is elf-evident that excusing a slight delay of one day would further the Act's remedial purposes, I cannot ignore the principle that "Congress did not leave to courts the decision as to which delays might or might not be 'slight.'" International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 240 (1976). As the Third Circuit stated in another whistleblower case under the Toxic Substances Control Act:

...We may not ignore the legislative intent to grant the defendant a period of repose after the limitations period has expired.

...The choice of the appropriate time is not entrusted to the administrative agency or to the courts. It is the result of legislative determination made after weighing the various interests at stake .... It is not for us or the Secretary to casually ignore the statutory limitation.

School District of City of Allentown v. Marshall, supra at 20. In effect, the only basis for less than strict adherence to the statutory limitation in this case is the doctrine of "equitable tolling' which applies where:

[(1)] the defendant has actively misled the plaintiff respecting the cause of action,

[(2)] the plaintiff has in some extraordinary way been prevented from asserting his rights, or

[(3)] the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

Id. However, applying the restrictions on equitable tolling which must be "scrupulously observed," Id. at 19, I find as stated above that complainant here has not established that he was actively misled by respondents, that he was prevented in any way from filing his complaint, or that he did raise the same claim in the wrong forum.

    Finally, there remains the question whether the instant case should not be distinguished from Allentown and the other cases cited therein on the ground that the complaint here was filed only one day late, not 3-1/2 weeks late as in Allentown. The authorities cited herein require a negative answer regardless of whether the delay is one day, 3-1/2 weeks, or longer. While the one-day delay in this case certainly creates sympathy for complainant, I conclude that notwithstanding the beneficent nature of the legislation, neither the Act nor its regulations gives me discretion to ignore the clear statutory mandate. See Rice v. New England College, 676 F.2d 9 (lst Cir. 1982); cf. Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 101 S.Ct. 509 (1980). Congress has seen fit to impose an arbitrarily short period of 30 days for filing complaints under a special statute, and I find no basis for applying the doctrine of equitable tolling. In such circumstances,

[e]ven if the interest of justice might, be served in this particular case by [permitting this claim to be heard], in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).

    In view of the foregoing:

    1. The motion to dismiss is granted;

    2. The complaint is dismissed.

       ALFRED LINDEMAN
       Administrative Law Judge

Dated: JUL 27 1984
San Francisco, California

AL:scm