DATE:  August 21, 1995
CASE NO. 94-TSC-5


IN THE MATTER OF

JUDY K. STEPHENSON,

          COMPLAINANT,

     v.

NATIONAL AERONAUTICS & SPACE
ADMINISTRATION,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND

     Before me for review is the Recommended Order Granting
Motion to Dismiss (R. O.) issued on August 4, 1995, by the
Administrative Law Judge (ALJ) in this case arising under the
employee protection provision of the Clean Air Act (CAA), 42
U.S.C. § 7622 (1988).  Respondent moved for dismissal under
Rule 12(b)(1), Fed.R.Civ.P., arguing that Complainant was not an
"employee" of Respondent employer within the meaning of the CAA
whistleblower provision.  The ALJ found dispositive the decision
in Reid v. Methodist Medical Center of Oak Ridge, Case No.
93-CAA-4, Sec. Dec., Apr. 3, 1995, appeal docketed, No.
95-3648 (6th Cir. June 1, 1995), and ordered the case
dismissed.[1]   Complainant now moves for summary reversal and
remand to a different ALJ.  Also pending is Complainant's motion
to vacate discovery restrictions.  Respondent has opposed the
motions.
     Motions to dismiss are not governed under 29 C.F.R. Part 18
(1994), the rules of practice and procedure applicable to
administrative hearings in whistleblower cases.  Accordingly, the
Federal Rules of Civil Procedure apply.  29 C.F.R. §
18.1(a).  
[PAGE 2]
Two dismissal options, Rule 12(b)(1) and Rule 12(b)(6)
respectively provide for dismissal due to lack of jurisdiction
over the subject matter and failure to state a claim upon which
relief can be granted.  Rule 12(g) provides:
     Consolidation of Defenses in Motion.  A party
     who makes a motion under this rule may join with it any
     other motions herein provided for and then available to
     the party.  If a party makes a motion under this rule
     but omits therefrom any defense or objection then
     available to the party which this rule permits to be
     raised by motion, the party shall not thereafter make a
     motion based on the defense or objection so omitted . .
     . .

See California Int'l Chem. Co. v. Neptune Pool Serv.,
Inc., 770 F. Supp. 1530, 1532 (M.D. Fla. 1991) (A second
motion was denied when the defendant, in making his first motion,
was required to join all defenses and objections then available
to him.  "Having failed to so do, Rule 12(g) provides that he may
not thereafter make a motion based on the defense or objection so
omitted.").  
     Respondent previously moved for dismissal under Rule
12(b)(6),[2]  without including the Rule 12(b)(1) jurisdictional
defense that Complainant was not an "employee" under the CAA.
Accordingly, under the explicit language of Rule 12(g),
Respondent may not now advance the defense in another Rule 12(b)
motion.  This is not to say that Respondent may not argue for
dismissal on this ground after a hearing on the complaint, only
that it may not do so here.  Under Rule 12, parties are required
to consolidate all attempts to gain judgment by means of these
preliminary motions to promote ordered and expeditious hearing of
the complaint.  The object is to avoid piecemeal consideration of
a case and discourage dilatory tactics.  Because Respondent is
now precluded from raising the defense under Rule 12, the ALJ's
recommended decision is rejected, and this case IS REMANDED to
the ALJ for a hearing.
     I have reviewed the case record and find no basis for
recusing the ALJ or disturbing his discovery orders.  These
motions therefore ARE DENIED.  Complainant also has filed a
motion to take judicial notice and preserve evidence.  A ruling
on this motion is reserved for the ALJ on remand.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1]    Complainant failed to counter a "factually based" motion
for summary disposition with affidavits of his own, virtually
ensuring a favorable decision for Respondent on the merits of the
motion.  Reid v. Methodist Medical Center of Oak Ridge,
Case No. 93-CAA-4, Sec. Dec., Apr. 3, 1995, slip op. at 20-23.

[2]    Respondent argued that Complainant failed to make a
specific showing that the CAA was applicable to the facts at
issue and failed to state a claim under the CAA upon which relief
could be granted.  I found that because the complaint concerned
substances reasonably perceived as subject to CAA regulation, it
came within the purview of the Act.  Complainant thus had stated
a claim upon which relief could be granted.  Sec. Rem. Dec., July
3, 1995, slip op. at 2-3.