Respondent timely requested a hearing on December 28, 1983. Previously, on November 2, 1983, Respondent had obtained a stay of complainant's companion action filed in California Superior Court for the County of Alameda pending the conclusion of the instant proceedings in the Department of Labor. A hearing was set for April 10, 1984 to be held in the San Francisco Office of Administrative Law Judges and a pre-hearing order requiring completion of discovery and mutual exchange of evidence at least ten days before the hearing was issued on January 30, 1984. On February 3, 1984, at the request of the parties showing good cause, the hearing was re-set for May 22, 1984 and the pre-hearing order was amended to take this change into account.

    On March 5, 1984 Complainant addressed a letter to the undersigned, with copies sent to Respondent and the Wage and Hour Division, purporting to withdraw the March 15, 1983 complaint. Complainant explained that she wished to be relieved of the burden of maintaining both state and federal actions, but she emphasized that she did not question the accuracy or thoroughness of the investigative findings to date. Respondent filed a motion opposing the withdrawal or, alternatively, to set conditions for withdrawal on March 7, 1984.

    Pursuant to a March 14, 1984 conference call Complainant was afforded until March 26, to file a formal motion of withdrawal supported by points and authorities. Respondent was allowed until April 2, 1984 to file a supplementary response to Complainant's formal motion. Argument on Complainant's withdrawal motion and all other pending motions was set for April 5, 1984. These other motions are treated below in Section III.

    The hearing was held on April 5, 1984 in San Francisco, California. Based on the arguments and representations of counsel, both oral and documentary, and on all the evidence presented, I make the following recommended findings of fact, conclusions of law and order.

II. Complainant's Motion to Withdraw Her Complaint or Dismiss It Without Prejudice

    Although 42 U.S.C. §5851 specifies some of the procedures to be followed after a complaint of discrimination is made, it does not mention what is to be done when a complainant requests that her

complaint be withdrawn or dismissed. 29 C.F.R. Part 24 implements Section 5851 and it provides for dismissals at Section 24.5(e)(4)(ii):

Division's findings by requesting a hearing in this office. Complainant correctly cites Thorp v. Scarne, (9th Cir. 1979) 599 F.2d 1169, for the proposition that the terms "answer" and "motion for summary judgment" as they appear in Rule 41(a)(1)(i) are to be strictly construed, but Thorp has little significance here. The defendant in Thorp could have answered or moved for summary judgment at any time, but choose not to. That choice allowed the plaintiff to dismiss the complaint at will, without court order. Here, Respondent never had a conventional civil law answer or a motion for summary judgment at its disposal. Since a rule of special application [29 C.F.R.§§24.3(d)(3)(i) and (ii)) covers the instant situation, Respondent is limited to filing a request for hearing in this office if it wishes to contest a complaint that has survived scrutiny by the Wage and Hour Division. Respondent did so file, an act which I find constitutes the equivalent of an answer under Rule 41(a)(1)(i) That act rendered Rule 41(a)(1)(i) inapplicable here. Consequently: Complainant may have her dismissal "... only with consent of the court and on such conditions as are just." (Wright & Miller, Federal Practice and Procedure, Vol. 9, section 2362, at p. 149.)

    Rule 41(a)(2) controls dismissal after an answer has been made. As noted in Spencer v. Moore Business Forms, (1980) 87 F.R.D. 118, a court's discretion under Rule 41(a)(2) is limited to making three determinations. First, it must decide whether to allow dismissal at all. If it allows dismissal, the court should next decide if dismissal should be with or without prejudice. Third, if dismissal without prejudice is allowed, the court must determine if any terms and conditions should be imposed. Guiding these determinations is the rule that dismissal without prejudice should be granted unless the defendant will suffer some legal harm, described variously:

"'manifestly prejudicial to the defendant,' Southern Maryland Agricultural Association of Prince George's County v. United States, 16 F.R.D. 100, 101 (D. Md. 1954); 'substantial legal prejudice' to defendant' Kennedy v. State Farm Mutual Automobile Insurance Company, 46 F.R.D. 12, of (E.D. Ark. 1969); and the loss of any 'substantial right,' Durham v. Florida East Coast Railway Company, supra, 385 F.2d at 368."

Spencer, supra, at pp. 119-120; see also Hamilton v. Firestone Tire & Rubber Co., (9th Cir. 1982) 679 F.2d 143. The Complainant's

desire to proceed with her parallel state court action is of no concern in this determination. (Spencer supra, at p. 119, citing Home Owners Loan Corporation v. Hoffman, (8th Cir 1943) 134 F.2d 314, 317-318). No reason has been advanced against permitting dismissal and upon reflection none appears. It remains to be determined whether mere dismissal, dismissal with prejudice or dismissal upon condition is the most appropriate.

    Respondent argues that a dismissal without prejudice will harm it in the following ways. First, Kaiser would suffer delay in vindicating its position at the earliest possible occasion. Second, such dismissal will sanction forum-shopping, permitting Complainant to proceed in a forum that possesses less expertise than this office has in hearing claims of retaliatory employment termination involving nuclear regulatory matters. Third, dismissal without prejudice would leave standing the adverse finding of the Wage and Hour Division which could be used by Complainant in the parallel proceeding.

    In making its first and second contentions Respondent relies on/ Spencer v. Moore Business Forms, Inc., supra. As far as delay is concerned, Respondent has not faced delay of the magnitude the Spencer court or other courts, whose opinions it cites at pp. 120-124, found significant enough to impose hardship on defendants. For example, in Spencer the case had been pending for four years. (At p. 120.) Respondent concedes that the instant claim has been pending only since March of 1983. Delay alone, however, was not the compelling factor in Spencer. There, discovery had been completed; the case was ready to proceed to trial; and, all parties had expended a great deal of time, money and energy in preparation. (At p. 122.) The instant case is far from being that ready for hearing. Also, in Spencer the court had already granted summary judgment to one defendant and partial summary judgment to the others, facts which heightened the unfairness of plaintiff's " ... attempt to wipe the slate clean and start over after having suffered legal reverses ...". (Id.) Having prevailed in the Wage and Hour Division, Complainant is in a position opposite to that of the plaintiff Spencer.

    Respondent's misplaced reliance on Spencer notwithstanding, the time limits contained in Section 5851 an its implementing regulations suggest that prompt resolution of employee complaints is an important goal of the law. A complaint must be filed within thirty days after the alleged violation. [42 U.S.C. §5851(b)(1), 29

C.F.R. §24.3(b).] Within thirty days of the receipt of a complaint the Administrator of the Wage and Hour Division must complete an investigation to determine whether the alleged violation has occurred and must inform the parties of its results in writing. [42 U.S.C. §5851(b)(2)(A); 29 C.F.R. §24.4(d)(1).] The party aggrieved by the findings has only five days to contest them by filing a notice of hearing. [29 C.F.R. §24.4(d)(3)(1).] Twenty days after the hearing the administrative law judge must issue his recommended decision and order, which becomes final ninety days after the date the complaint was originally filed. [42 U.S.C. §5851(2)(A), 29 C.F.R. §24.6(a) & (b).] The Secretary of Labor recognized the need for swift resolution of employee discrimination complaints in proclaiming at 29 C.F.R. §24.1(b) that the 29 C.F.R. Part 24 procedures were established "... for the expeditious handling ..." of employee complaints.

    Delaying resolution of the complaint would harm Respondent in ways other than mere passage of time. While the complaint is pending, Respondent is at risk for an ever increasing amount of back pay that may be found due and owing to Complainant. Prompt resolution, even if adverse to Respondent would reinstate Complainant to her former position where she could earn her pay. Finally, delay will hamper the gathering of evidence necessary for the defense as witnesses memories fade and documentary evidence is lost or misplaced.

    Although Respondent's reliance on Spencer is misplaced, I conclude that the statute and regulations evince an intent that Section 5851 complaints be resolved quickly. A mere dismissal will frustrate that goal, harming Respondent by obliging it to await resolution at some future date while its liability increases and necessary evidence becomes stale or althogether unavailable. The only way to protect Respondent from such harm is by dismissing this complaint with prejudice. As noted in Wainwright Securities, Inc. v. Wall St. Transcript, (1978) 80 F.R.D. 103:

"'A dismissal of an action with prejudice is a complete adjudication of the issues presented by the pleadings and bars further action between the parties.' Glick v. Ballentine Produce, Inc., 397 F.2d 590, 593 (8th Cir. 1968); accord, Smoot v. Fox, 340 F.2d 301, 303 (6th Cir. 1964); Slotkin v. Brookdale Hospital Center, 377 F.Supp. 275, 277 (S.D.N.Y. 1974); Hudson Engineering Co. v. Bingham Pump Co., 298 F.Supp. 387, 389 (S.D.N.Y. 1969); see Lawlor v. National Screen Service Corp., 349 U.S. 322, 327, 75 S.Ct. 865, 99 L.Ed. 1122 (1955)."

In this case dismissal with prejudice will bar Complainant from again bringing any action based on the specific violations of 42 U.S.C. §5851 and its implementing regulations alleged in the March 15, 1983 complaint in this forum or in any other. I conclude dismissal with prejudice is appropriate.

    Respondent's second contention also has force, but again, its reliance on Spencer is misplaced. The forum-shopping the Spencer court disapprove of is described at p. 123:

"A plaintiff will sometimes have a choice between suing in federal court and suing in state court. Plaintiff in this case sued defendants in both courts. Unhappy with rulings of law in this Court, plaintiff now seeks to dismiss without prejudice and hope for better in the state court; this, after over four years of litigation and with the case very nearly ready for trial. This type of forum shopping also has no sanction. It is wasteful to prosecute two cases in two courts on the same or similar causes of action; it is wholly unfair to defendants to attempt to dismiss without prejudice the one in which plaintiff has suffered setbacks and proceed with the other."

    The other thrust of Respondent's forum-shopping argument, however, is that dismissal without prejudice will permit Complainant to bring her 42 U.S.C. §5851 claim in the state court, a forum with less congressionally-recognized expertise in adjudicating such claims than the Department of Labor. This part of the argument is persuasive. The decision to place responsibility for adjudicating Section 5851 claims with the Department of Labor, coupled with the several other employee protection statutes the Department is charged with enforcing and adjudicating [e.g., Safe Drinking Water Act, 42 U.S.C. §300j-a(i); Water Pollution Control Act, 33 U.S.C. §1367; Toxic Substances Control Act, 15 U.S.C. §2622; Solid Waste Disposal Act; 42 U.S.C. §6971; and, Clean Air Act, 42 U.S.C. §7622] do evince congressional recognition that this Department possesses expertise in hearing retaliatory firing claims that arise under the

enumerated statutes. The Secretary of Labor recognized this and responded to the various charges of authority by promulgating 29 C.F.R. Part 24 because he "... determined that uniform procedures are required for the orderly resolution of the complaints now being filed with the Secretary pursuant to these several statutory provisions." (See: "Supplementary Information" at Federal Register Vol. 45, No. 5, p. 1836, January 8, 1980.)

    I conclude that Respondent would suffer prejudice by being forced to defend Complainant's action based on the specific alleged violations of 42 U.S.C. §5851 in another forum that lacks the congressionally-recognized expertise that the Department of Labor posseses. The only way to protect Respondent from such harm is by dismissing this complaint with prejudice. See: Wainwright Securities, Inc. v. Wall St. Transcript, supra.

employment practices on the part of Respondent in violation of 42 U.S.C. §5851 of the Energy Reorganization Act, 42 U.S.C. §5801 et seq. and the implementing regulations found at 29 C.F.R. Part 24 dismissal with prejudice will protect Respondent from such harm. I conclude that dismissal with prejudice is appropriate.

III. Discovery motions

    A. Factual Background

    The parties embarked upon discovery in January 1984 by exchanging interrogatories and requests for production of documents. On February 2, 1984 a deposition schedule was agreed upon. Thereafter responses and objections to the interrogatories and requests for the production of documents were made and some of the requested documents were exchanged. Both sides lodged motions to compel production of additional documents, but Respondent withdrew its request at the hearing. On February 28, the day before Complainant's depositions of two Kaiser employees were to be taken, Complainant's attorney informed Respondent that Ms. Nolder was withdrawing her claim and was therefore cancelling the scheduled depositions. Respondent subsequently moved for sanctions for Complainant's "eleventh hour" cancellation of her depositions of the Kaiser employees arguing that Respondent's counsel incurred expenses in and billed Respondent for its services travelling from counsel's Washington, D.C. offices to Oakland, California, to prepare the deponents and attend the depositions. To resolve the disputes which had arisen during discovery a March 14 conference call was held between the undersigned and the attorneys for Complainant and Respondent. An order was issued on March 15 directing in relevant part: (1) Complainant to file a formal motion to withdraw her complaint with supporting authorities; (2) Each party to make documents available to the other according to the terms of each party's previous response to the other's request for production of documents; and, (3) Complainant to appear for Respondent's deposition of her according to the February 2, 1984 agreed discovery schedule. Thereafter, Respondent moved to compel Complainant's presence on April 4 as well as on April 3 for the purposes of deposing her. Respondent withdrew this motion at the hearing also. (Tr. P. 68.)

    Now pending are the following motions: (1) Complainant's motion to compel the production of additional documents; and, (2) Respondent's motion for sanctions for Complainant's February 28 cancellation of the February 29 depositions of the Kaiser employees.

    B. Complainant's Motion to Compel Production of Additional Documents

    I must decline to rule on this motion because the dismissal for cause has rendered it moot. This motion is more appropriately lodged in the state forum where relief is now sought. Because different legal theories will be involved in the state action ruling on this motion now would necessitate my ruling on matters beyond my jurisdiction and expertise. I decline the opportunity to do so.

    C. Respondent's Motion For Sanctions for Complainant's Cancellation of Her Disposition of the Kaiser Employees

    Since this dismissal is with prejudice, I lack the power to require an attorney's fee to be paid. (9 Wright and Miller, Federal Practice and Procedure, Section 2366, at pp. 180-181 and cases cited therein.) The sanctions requested consist entirely of attorneys' fees and expenses, they may not be awarded here. Nevertheless, cancelling the depositions of the Kaiser employees the day before they were scheduled was unfortunate behavior on the part of Complainant's attorney. The situation was anomalous. Because the deposition was Complainant's, Respondent did not have occasion to seek an order that the deposition take place. No order having issued, I do not have power to impose sanctions for the actions of Complainant's attorney, no matter how unfortunate or anomalous his behavior was. [29 C.F.R. §18.29(b).]

    1. It is ordered that Sherrill J. Nolder's complaint filed March 15, 1983 under the Energy Reorganization Act, specifically under 42 U.S.C. §5851 and the implementing regulations found at 29 C.F.R. Part 24, is dismissed with prejudice according to 29 C.F.R. §24.5(e)(4)(ii). Nothing in this decision and order is to be construed to impair Complainant's right to bring and prosecute any claims she may have based on state law or other federal law besides 42 U.S.C. §5851 and its implementing regulations.

    2. The findings of the Wage and Hour Division of the Employment Standards Administration as embodied in the December 22, 1983 letter of Area Director Frank A. Conte are vacated.

    3. Complainant's motion to compel production of additional documents is denied.

    4. Respondent's motion for sanctions for complainant's attorney's cancellation of the deposition of the Kaiser employees is denied.

    HENRY B. LASKY

    Administrative Law Judge

Dated: 25 MAY 1984
San Francisco, California

HBL:csw