DATE: July 26, 1988
CASE NO. 84-ERA-6

IN THE MATTER OF

CHARLES STOKES,
    COMPLAINANT,

    v.

PACIFIC GAS & ELECTRIC CO./
BECHTEL POWER CORP.,
    RESPONDENTS.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is the [recommended] Dismissal Order on Remand issued by Administrative Law Judge (ALJ) Alfred Lindeman on April 27, 1987, in this case which arises under th employee protection provisions of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. SS 5851(a) (1982), and implementing regulations at 29 C.F.R. Part 24 (1987).

    By the Secretary's February 19, 1987, Order of Remand, the case was returned to the ALJ who initially had recommended that it be dismissed as untimely filed in a ruling dated July 27, 1984.

    The issue on remand was Complainant's request of July, 1984, to withdraw his complaint without prejudice. Since Respondents did not oppose the request for a voluntary dismissal without prejudice, the only question was what conditions, if any, would attach to dismissal under the guidelines set forth by the Secretary's remand decision in Nolder v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5, issued June 28, 1985. See ALJ's order to show Cause, issued March 13, 1987. After receiving written responses from both parties, the ALJ granted Complainant's request for dismissal without prejudice and without conditions and the case was forwarded for my final review.¹

    One of the principal holdings of the Nolder remand decision is that the ALJ's discretion to attach conditions to an order of [voluntary] dismissal without prejudice should be exercised only to protect a respondent's legitimate interest in the avoidance of legal harm or prejudice.² Complainant, on remand, correctly pointed out that tactical disadvantage, such as the possibility (or, as here, the reality) of defending a second lawsuit on the same issue(s) generally is not sufficient in and of itself to constitute legal harm or prejudice. See Nolder remand decision, slip op. at 10 and cases cited therein.

    In exercising his discretion in this case, it is clear that the ALJ (1) offered the parties an opportunity to make their respective cases for or against the imposition of conditions and (2) considered their responses. While Respondents fairly argued their right to be compensated for "unnecessary expenses" caused by this litigation which is now to be dismissed, Respondents did not present the ALJ with any particularized evidence which would distinguish necessary from unnecessary work. Thus, Complainant argued that in the face of Respondents' failure to prove that any of its efforts (which Complainant characterized as fact gathering and witness interrogation, i.e., discovery) would be rendered useless in the defense of the state court action, Respondents had not established any unnecessary expenses. Any harm or prejudice in this case would be represented by the difference between Respondent's expenses incurred only on account of the Department of Labor litigation, and those which Respondents would have incurred had the Complainant filed his action only in the forum where the litigation will proceed. See McLaughlin v. Cheshire, 676 F.2d at 857.

    On the record which was before the ALJ and now is before me, I find that there is no basis for accepting Respondents'

¹ At several points in his [recommended] Dismissal order on Remand the ALJ refers to the post-hearing, Secretarial review phase of these proceedings as an "appeal." Proceedings under Section 5851 of the ERA are governed by 29 C.F.R. Part 24, which authorizes Administrative Law Judges to issue recommended decisions after the termination of hearing proceedings. Section 24.6(b) of 29 C.F.R. requires that the final order be issued by the Secretary of Labor upon review of the case record and the recommended decision of the ALJ. Since every ALJ recommended decision under the ERA is automatically reviewed, there are, technically speaking, no appeals from such decisions.

² See, McLaughlin v. Cheshire, 676 F.2d 855, 857 (D.C. Cir. 1982) (Cited in Nolder at 17), which holds that harm is not suffered where expenses are incurred by the non-moving party for work which is of use in continuing litigation in another forum.