DOL Home > OALJ > Whistleblower > Haymes v. D.P. Associates, Inc., 94-SDW-1 (Sec'y Aug. 16, 1994) |
DATE: August 16, 1994 CASE NO. 94-SDW-00001 IN THE MATTER OF STEVEN HAYMES, COMPLAINANT, v. D.P. ASSOCIATES, INC., RESPONDENT. BEFORE: THE SECRETARY OF LABOR FINAL ORDER OF DISMISSAL On June 30, 1994, the Administrative Law Judge (ALJ) issued a [Recommended] Order of Dismissal in this case arising under the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i) (1988). The ALJ concluded that the case should be dismissed pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure based on Complainant's written request, dated June 25, 1994. I agree with the ALJ's ruling to grant Complainant's request for voluntary dismissal. Where a complainant in a case arising under 29 C.F.R. Part 24 (1993) has sought a voluntary dismissal, Rule 41(a) of the Federal Rules of Civil Procedure has been applied. See Driver v. Westinghouse Savannah River Co., Case No. 92-WPC-00004, Sec. Ord., May 29, 1992; Cornish v. Consolidated Edison Co. of New York, Inc., Case No. 88-CAA-5, Sec. Ord., Sept. 29, 1989, citing Nolder v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Dec., June 28, 1985, slip op. at 6-8. Since here, Respondent did not file the functional equivalent of either an answer to the complaint or a motion for summary judgment, Rule 41(a)(1)(i) is the applicable rule. Driver,
[PAGE 2] supra; Cornish, supra. Accordingly, this case IS DISMISSED without prejudice pursuant to Rule 41(a)(1)(i). [1] SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C. [ENDNOTES] [1] I note that under the regulations implementing the SDWA, disposition of complaints, including Rule 41(a)(1)(i) dismissals, can be effected only by final order of the Secretary. 29 C.F.R. § 24.6 (1993); see Brock v. Tennessee Valley Authority, Case No. 90-ERA-19, Sec. Ord., June 28, 1993, slip op. at 2; Avery v. B & W Commercial Nuclear Fuel Plant, Case No. 91-ERA-8, Sec. Ord., Oct. 21, 1991, slip op. at 3; Cornish, slip op. at 1 n.1.