                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to lst Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 03-1981

                            SYED M.A. HASAN,

                                Petitioner,

                                      v.

          SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR,

                                Respondent.


        APPEAL FROM THE UNITED STATES DEPARTMENT OF LABOR


                                   Before

                    Torruella, Circuit Judge,
              Cyr and Stahl, Senior Circuit Judges.


     Syed M.A. Hasan, on brief pro se.
     Mary J. Rieser, Attorney, Office of the Solicitor, Division of
Fair Labor Standards, Howard M. Radzely, Acting Solicitor of Labor,
Steven J. Mandel, Associate Solicitor and Paul L. Frieden, Counsel
for Appellate Litigation, on brief for respondent.



                             March 24, 2004
           Per Curiam. After carefully considering the briefs and

record on appeal, we affirm.

           The appellant argues that his complaint should not have

been dismissed because it contained the short, plain statement of

his claim required by Swierkiewicz v. Sorema, 534 U.S. 506

(2002).    However,    Swierkiewicz   is   inapposite.        First,     the

appellant's case was not dismissed solely on the basis of the

allegations    of   his   complaint.        Secondly,         the   Energy

Reorganization Act, unlike the statutes at issue in Swierkiewicz,

includes   a   gatekeeping   restriction.        See     42     U.S.C.    §

5851(b)(3)(A); 29 C.F.R. § 24.5(b); Trimmer v. Department of

Labor, 174 F.3d 1098 (10th Cir. 1999).

           Appellant's argument that he was entitled to additional

discovery is unavailing, as are his remaining arguments.                 The

requested discovery would not have tended to rectify the defect

in his case.

           Affirmed.   Loc. R. 27(c).




                                -2-
