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Date: May 2, 1995 Case No. 95-ERA-25 In the Matter of: Anthony J. Ross Complainant v. Northeast Nuclear Energy Company, Respondent Before: DAVID W. DI NARDI Administrative Law Judge RECOMMENDED ORDER OF DISMISSAL This matter arises under the Energy Reorganization Act of 1974 (herein "ERA") , 42 U.S. C. §5851, and the implementing regulations issued thereunder at 29 C.F.R. Part 24. Anthony J. Ross (herein "Complainant") filed a complaint on January 18, 1995 alleging discrimination and retaliation by Northeast Nuclear Energy Company (herein "Respondent") in violation of so-called "whistleblower protection' provisions of the ERA. The complaint was dismissed by Kenneth W. Jackson, Assistant District Director, Wage and Hour Division, U.S. Department of Labor on February 10, 1995. The dismissal notice stated that Complainant had failed to make a prima facie showing that he had suffered an unfavorable personnel action as a result of having engaged in protected activity. Complainant then filed an appeal of said dismissal, and this matter was forwarded to the Office of Administrative Law Judges as Case No. 95-ERA-25, and was assigned to the undersigned Administrative Law Judge. On March 13, 1995, an ORDER TO SHOW CAUSE was issued by the undersigned, giving Complainant twenty (20) days to show cause why the complaint should not be dismissed based upon the failure to show that Complainant had not been the subject of any adverse personnel action, or had otherwise been discriminated against by Respondent. Counsel for Respondent was also provided the opportunity to file a brief and proposed findings of fact and conclusions of law in support of the position that the complaint should be dismissed. On March 19, 1995, by facsimile
[PAGE 2] transmission, Complainant served upon this court a letter stating that, because of his misunderstanding of Section 211 of the ERA, he was withdrawing his complaint in the instant matter. As of that time, and to date, no reply had or has been received from Respondent, either in support of the initial ORDER TO SHOW CAUSE, or in opposition to Complainant's withdrawal request. On the basis of the totality of the record, this Administrative Law Judge has determined that dismissal of this complaint is appropriate. The only issues remaining are a determination of the proper procedures for such dismissal, and whether these procedures have been followed by the parties. The regulations, at 29 C.F.R. §24.5(e)(4), discuss dismissal of ERA cases for cause. This case does not fall within the provisions of the cited section because, inter alia, Complainant, the prosecuting party, has requested dismissal of the action on his own motion, and Respondent has interposed no objection to the withdrawal. The dismissals contemplated in the cited regulations are those granted in spite of some party being adverse to such an action. Voluntary dismissals of ERA complaints are governed by Rule 41 of the Federal Rules of Civil Procedure. See Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Decision, June 28, 1985, slip op. At 6-8. In pertinent part, Rule 41 states: [A]n action may be dismissed by the [Complainant]...(i) by filing a notice of dismissal at any time before service by the adverse party of an answer...Unless otherwise stated in the notice of dismissal..., the dismissal is without prejudice. Fed. R. Civ. P. 41(a)(1)(i). Because there has been no answer or objection filed by Respondent in the case at hand, Complainant's notice of withdrawal requires no further action on the part of either of the parties. Accordingly, it is RECOMMENDED that this matter be DISMISSED without prejudice pursuant to Rule 41(a)(1)(i). DAVID W. DI NARDI Administrative Law Judge