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In the Matter of GARY L. PHIPPS, DATE: NOVEMBER 30, 1995 Complainant, CASE No.: 95-ERA-53 v. FLORIDA POWER & LIGHT CO. Respondent. ORDER CANCELLING HEARING AND RECOMMENDED ORDER OF DISMISSAL The hearing in the above-captioned matter, an action brought under the employee protection provisions of the Energy Reorganization Act (ERA), scheduled for January 16-17, 1995 in Port St. Lucie, Florida, before the undersigned administrative law judge, is CANCELLED. On October 30, 1995, the parties submitted a Stipulation of Voluntary Dismissal with Prejudice signed by the Complainant and by counsel for both parties (ATTACHED). The Stipulation provides that the parties stipulate to dismissal of this proceeding, with prejudice, in its entirety with each party to bear its own attorney's fees and costs. I have reviewed the Stipulation and am satisfied that it complies with the requirements of Rule 41(a)(1)(ii), Federal Rules of Civil Procedure, which is applicable to these proceedings pursuant to 29 C.F.R. § 18.1(a). See generally Rainey v. Wayne State University, 90-ERA-40 (Sec'y Feb. 27, 1991); Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985). Because the hearing request was filed by the Respondent, it is deemed to be the functional equivalent of an answer. The parties have agreed that the dismissal should be with prejudice. Accordingly, I am recommending that this case be dismissed pursuant to the stipulation of the parties. See Gergans v. Edward Hines, Jr., Hospital, 94-ERA-26 (Sec'y Dec. 7, 1994) (disposition of complaints under Rule 41 can only be effected by
[PAGE 2] final order of the Secretary). But cf. Hoffman v. Fuel Economy Contracting, 87-ERA-33 (Sec'y Aug. 4, 1989) (finding unconditional right to dismissal by stipulation under Rule 41 inapplicable to ERA proceedings when a settlement is involved, based upon 42 U.S.C. § 5851(b)(2)(A)). In view of the above, IT IS ORDERED, that the hearing scheduled in this matter for January 16-17, 1995 is hereby CANCELLED; and IT IS HEREBY RECOMMENDED that the Secretary of Labor issue an Order dismissing this case with prejudice, with each party to bear his or its own attorney's fees and costs. __________________________ PAMELA LAKES WOOD Administrative Law Judge Washington, D.C.