U.S. Department of Labor
Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, Ohio 45202
Date: January 9, 1991
CASE NO. 91-ERA-12
In the Matter of
DOUGLAS E. BILLINGS
Plaintiff
v.
TENNESSEE VALLEY AUTHORITY
Defendant
ORDER OF DISMISSAL
This action involves a complaint by Douglas Billings
(Billings), plaintiff, against ten individuals and "Others not
yet discovered" who are alleged to have conspired against Billings
to deprive him of compensation benefits. Plaintiff states that
this information came to light in a prehearing submission dated
July 30, 1990 filed in another case. The Wage and Hour Division
of the Department of Labor investigated this complaint and on
November 26, 1990 filed a report that "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 from the decision of Wage and Hour and requested
a hearing and the matter was referred to the undersigned
Administrative Law Judge for hearing and decision.
[Page 2]
A Notice of Hearing and Prehearing Order was issued on
December 12, 1990, scheduling a hearing to commence on January 9,
1991 in Knoxville, Tennessee, and ordering the parties to submit
prehearing submissions no later than December 28, 1990. On
December 21, 1990, the defendant, Tennessee Valley Authority
(TVA), filed a Motion to Dismiss or, alternatively, for Summary
Judgment. On December 28, 1990, TVA filed its prehearing
submission. On December 28, 1990, Billings filed a Motion to Recuse
or, alternatively, for remand. Billings has not filed a
prehearing submission or an opposition to the defendant's motion for
dismissal and/or summary judgment.
TVA argues in its motion to dismiss and/or summary judgment
that:
1. Plaintiff's sole basis for relief is his objections to
contacts and discussions between TVA employees and various officials
in the United States Department of Labor's Office of
Workers' Compensation Programs (OWCP) regarding the payment of
statutory compensation benefits to Billings. TVA argues that
these matters are unquestionably within the official responsibilities
of the OWCP officials and that plaintiff is absolutely
barred by the Constitution from obtaining statutory sanctions
against TVA for those contacts and discussions with OWCP officials,
or for any actions that those officials chose to take
based upon the petition of TVA. TVA argues that the Federal
courts have held that the First Amendment absolutely protects
defendant herein from the sort of sanctions that plaintiff seeks
to impose on TVA here. TVA argues that no legal basis for
statutory sanction is stated in the complaint, since clear
constitutional infirmities cannot be overcome.
2. TVA also argues that plaintiff's action is barred by
principles of res judicata inasmuch as it attempts to "plow the
same ground" as that which was the subject of previous complaints
filed by the plaintiff in Nos. 89-ERA-16 and 90-ERA-18. These
two complaints were previously dismissed by this Administrative
Law Judge.
I find that the defendant's motion is meritorious on both
grounds and dismissal of the complaint is warranted for each of
the following reasons:
[Page 3]
1. The basis of the complaint concerns contacts
and discussions 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. 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
an extension of time for compliance.
For these reasons, it is therefore,
ORDERED that Summary Judgment is hereby entered against
the
plaintiff, Douglas Billings, and in favor of the defendant,
Tennessee Valley Authority, and this case is hereby DISMISSED
WITH PREJUDICE.