DATE: March 14, 1990
CASE NO.: 90-ERA-19

IN THE MATTER OF

ROBERT D.BROCK,
FRANK C. SMITH, JR.,
JAMES A. THOMPSON, AND
WALTER H. WALLACE,
    COMPLAINANTS,

    v.

TENNESSEE VALLEY AUTHORITY,
    RESPONDENT.

   On March 2, 1990, Complainants filed a Notice Dismissal signed by their counsel. Respondent has no objection to a dismissal of this proceeding.

   As the Secretary held in Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op. at 6-7, Rule 41(a) of the Federal Rules of Civil Procedure is applicable to the voluntary dismissal of ERA complaints. Rule 41 (a) (1) (i) provides for dismissal "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs. . . . Unless otherwise stated in the notice of dismissal . . . the dismissal is without prejudice. . . ." Since the record indicates that Respondent neither filed an answer nor a notion for summary judgment, Rule 41(a) (1) (i) is the applicable rule. Complainants have requested to dismiss this case with prejudice.

   Accordingly, it is hereby recommended that the above-captioned case be dismissed with prejudice.

       DANIEL A. SARNO, JR.
       Administrative Law Judge

DAS/JRW/jbm