Complainant responded by Opposition filed August 13, 1997. Complainant has argued Respondent Alyeska's Motion can not be granted as it presents a "factual attack" on the grounds for subject matter jurisdiction. See Opposition, p. 2. Complainant proceeds to argue Respondent Alyeska may be properly determined to be Complainant's employer pursuant to the right to control test as set forth in Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344 (1992), which standard is applicable to whistleblower claims, and/or that Respondent Alyeska may be properly determined to be a joint employer.

   Neither the rules governing hearings in whistleblower cases, 29 C.F.R. Part 24, nor the rules governing hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18, provide for dismissal of a complaint for failure to state a claim upon which relief may be granted. Therefor, the analogous Federal Rule of Civil Procedure governs a motion to dismiss based on failure to state a cause of action under a federal employee protection provision. 29 C.F.R. Part 18. I (a).

   In considering dismissal under Fed. R. Civ. P. 12(b)(6), all reasonable inferences are made in favor of the non-moving party. Tyndall v. U.S Envtl. Protection Agency, 93-CAA-6/95-CAA-5 (ARB 6/14/96); Studer v. Flowers Baking Co. of Tennessee, Inc., 93-CAA-11 (Secy 6/19/95); Helmstetter v. Pacific Gas & Elec. Co.,91-TSC-1 (Sec'y 1/13/93). Such a motion should be denied unless it appears beyond doubt that the complainant can prove no set of facts in support of his or her claim which would entitle him or her to relief Studer, supra; Helmstetter, supra. Whether the burden of proof on each element can be satisfied depends on the evaluation of evidence presented at the hearing. See Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y 7/9/86).

   This Judge, having applied this standard to the case at hand, concludes that Respondent Alyeska's Motion shall be and the same is hereby DENIED. The Motion and Opposition place the issue of Respondent Alyeska's status as Complainant's employer directly in controversy and the result of this controversy is resolved by a factual determination. The affidavits and documents which have been submitted by both parties in regards to this Motion make it clear that the parties assume polar positions on the result commissioned by the application of the relevant tests, i.e., the right to control test and/or the joint employer test. On the one hand, representative of Respondent Alyeska attests a lack of a right to do a hiring, firing or disciplining of VECO employees; a lack of the right to determine wages, hours or working conditions; and the fact that Respondent Alyeska did not pay Complainant wages, withheld no taxes or benefits, and maintained no insurance coverage for Complainant. On the other hand, Complainant attests to various specified ways in which Respondent Alyeska retained control over the manner and means of Complainant's work. See Opposition, pp. 46.

   Based upon the foregoing factual issue, it would be inappropriate to grant Respondent Alyeska's Motion to Dismiss. The parties should continue to prepare for hearing of this matter, scheduled to begin on November 3, 1997. In addition, this Judge notes Complainant has filed an Amended Complaint by document dated August 5, 1997. Respondent VECO Engineering

has submitted an Answer to Amended Complaint by document filed August 27, 1997. This Judge awaits an Answer by Respondent Alyeska.

      DAVID W. DI NARDI
      Administrative Law Judge

DATED: AUG 28 1997
Boston, Massachusetts
DWD:jw