ARB CASE NO. 98-142
ALJ CASE NO. 97-CER-0001
DATE: July 28, 1998

In the Matter of:

TAMMY ANN ANDERSON,
   COMPLAINANT,

    v.

DeKALB PLATING COMPANY,
INCORPORATED,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

   In this case arising under the employee protection provision of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9610 (1994), the Administrative Law Judge (ALJ) issued an Order Recommending Dismissal of Complaint, dated January 27, 1998, and received by the Administrative Review Board on July 14, 1998. The ALJ's recommendation is based on Complainant's request to withdraw, which was

made prior to any hearing. Respondent has not objected to Complainant's request to withdraw the complaint.

   The ALJ's recommendation to dismiss this case is consistent with prior decisions of the Secretary and the Board, holding that voluntary dismissals of environmental whistleblower cases are governed by Rule 41 of the Federal Rules of Civil Procedure. See Seetharaman v. Massachusetts Water Resources Auth., ARB Case No. 98-021, ALJ Case No. 97-CAA-17, Nov. 18, 1997; Lorenz v. Law Eng'g, Inc., Case No. 90-CAA-1, Sec. Order, Mar. 12, 1991, slip op. at 3. However, in the absence of a request for dismissal with prejudice, we reject the ALJ's recommendation to dismiss the case with prejudice. See F. R. Civ. P. 41(a)(1)(i); Thompson v. U.S. Dept. of Labor, 885 F.2d 551, at 556, 557 (9th Cir. 1989).

   Accordingly, the complaint in this case is DISMISSED without prejudice.

   SO ORDERED.

       KARL J. SANDSTROM
       Chair

       PAUL GREENBERG
       Member

       CYNTHIA L. ATTWOOD
       Acting Member