The withdrawal of the complaint was opposed by respondents, who stated that they had been forced by Rainey to undertake "extensive pretrial preparation." Along with the opposition to the withdrawal, respondents moved for the imposition of their costs and attorney fees as a condition for allowing Rainey to withdraw his complaint.

   In a letter addressed to Rainey's attorney on July 6, 1990,

the notice of intent to withdraw the complaint was acknowledged, and he was advised:

    [I] cannot approve a withdrawal or dismissal of the action brought by Doctor Rainey. That authority rests with the Secretary of Labor. My function is these matters is limited to considering a motion for withdrawal by Rainey, supported by an explanation and reasons, and a recommendation to the Secretary for or against the motion.

    In filing your motion for leave to withdraw the complaint, address the motion for imposition of costs and attorney fees against Rainey filed by Wayne State University.

   Rainey filed an answer to the motion for imposition of costs and attorney fees, but he offered no explanation, or reason for his withdrawal.

   The procedures for handling of discrimination complaints under the Act provide:

Dismissal for cause. (i) The administrative law judge may, at the request of any party, or on his or her own motion, dismiss a claim.

20 CFR 24.5(e)(4).

   The administative law judge's authority to dismiss is qualified by 20 CFR 524.6(a), which limits his action to a recommendation. Authority for final adjudication of the case rests with the Secretary of Labor. See Bidwell v. Pullman Power Products Corp/Georgia Power Co., 86-ERA-1 (Secretary of Labor 1989).

   Complainant's withdrawal of his complaint is, in effect, a voluntary dismissal. In such case, the regulations place no conditions on complainant's option, and they contain no grant of authority to the judge to impose conditions.

   As authority for imposition of costs and attorney fees, the respondents cite 29 CFR Subtitle A §18.1, Rules of Practice and

Procedure for Administrative Hearings before the Office of Administrative Law Judges, and Rule 41(a)(2) of the Federal Rules of Civil Procedure, but neither citation is accompanied by an explanation of how these rules apply to the case at hand. The Rules of Practice contain no provisions under which to consider respondents' request, and are relevant only insofar as they incorporate the Federal Rules by reference in situations not covered by the rules, statute, executive order, or regulation. 29 CFR §18.1(a).

   Cauley v. Wilson, 754 F.2d 769 (7th Cir. 1985) cited by the respondents in support of their request holds that Rule 41(a)(2) permits the court to condition a voluntary dismissal without prejudice on payment of attorney fees to defendant. But, that case is distinguishable from this: in Cauley, the plaintiff intended to refile the action in a state court because he failed to maintain jurisdiction in the district court, and so put the defendant to additional expense in defending the same action in another court. This is not the case here. There is no indication that Rainey will refile the same complaint.

   Rule 41(d) authorizes an allowance of costs of a previously dismissed action: "If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order."

   This rule has no application to this case. Rainey's claim is not one that had been previously been dismissed against these respondents. Indeed, respondents resisted consolidation of this case with a previous complaint filed by Rainey on the grounds that the parties and subject matter were different.

   Neither the Act nor the regulations contains even an arguable basis for an award of costs and attorney fees against a complainant. Indeed, such a provision is unthinkable for a statute designed to encourage reporting of violations of the Act. Public policy expressed by the Act to insure safety in the nuclear industry would be frustrated if a complainant undertook a risk of penalties when engaging in activities protected by the Act.

   Complainant should be allowed to withdraw his complaint, and the case should be dismissed. Moreover, under the circumstances of this case, an award of costs and attorney fees is not warranted.

   It is recommended that the Secretary of Labor take the following actions:

   A. Allow the complainant to withdraw his complaint, and enter an Order dismissing the complaint.

   B. Enter an Order denying he respondents request for costs and attorney fees.

       GEORGE A. FATH
       Administrative Law Judge