DATE: September 29, 1989
CASE NO. 87-ERA-41

IN THE MATTER OF

ED STITES,
    COMPLAINANT,

    v.

HOUSTON LIGHTING & POWER COMPANY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   On December 8, 1987, Administrative Law Judge Parlen L. McKenna issued a (Recommended) Decision and Order of Dismissal (D. and O.) in the above-captioned case, which arises Under Section 210 of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982), granting Complainant's Motion to Withdraw Complaint/Obtain Voluntary Dismissal Without Prejudice. Complainant's motion requested dismissal without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. The ALJ, however, dismissed the complaint pursuant to 29 C.F.R. § 24. 5 (e) (4) (i) (A) (1988).¹ The ALJ states as a basis for his action that, prior to the hearing, Complainant's counsel advised the ALJ that Complainant "did not wish to pursue his complaint and would not attend the scheduled hearing." D. and O.

   The ALJ erred in dismissing the complaint pursuant to 29 C.F.R. § 24. 5 (e)(4)(i)(A). Subsection (4) of 29 C.F.R. § 24.5 is labelled Dismissal for cause, and applies only to involuntary dismissals resulting from certain specified actions of a complainant or a complainant's representative which unnecessarily or unreasonably impede the conduct of the litigation, such as

   As has been already held, Rule 41(a) of the Federal Rules of civil Procedure is applicable to the voluntary dismissal of ERA complaints. Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op. at 6-7. Since the record indicates that Respondent neither filed an answer nor a motion for summary judgment, Rule 41(a) (1) (i) is the applicable rule² . Complainant, therefore, incorrectly sought dismissal under paragraph (a) (2) of Rule 41.

   It is not clear whether the ALJ meant to dismiss the case with prejudice or without prejudice. On the one hand, the ALJ granted Complainant's Motion to Dismiss which requested dismissal without prejudice. On the other hand, the ALJ's statement to the effect that, because of the limitation period for filing of an ERA complaint, "the grant of Complainant's Motion herein effectively precludes any future legal remedy", D. and O. n.1, suggests that the ALJ considered it immaterial whether the dismissal was with or without prejudice. However, where there is a dismissal with prejudice, not only is a Complainant barred from filing again under Section 210 of the ERA, but "the doctrine of res judicata would bar Complainant from ever bringing a claim of retaliation against Respondent based on these facts in [a] state or any other court." Nolder at 12, and cases cited therein at 10-12. Where there is dismissal without prejudice, expiration of the limitations period operates only as a bar to the filing of another complaint under Section 210. It is, therefore, necessary where the motion to dismiss is granted that it be clearly stated whether it is granted with or without prejudice.

   In view of the foregoing, I cannot adopt the ALJ's decision and order. Nevertheless, I do not remand this case to the ALJ for application of Rule 41(a)(1)(i). In the interest of judicial economy, this case is dismissed pursuant to Rule 41(a) (1) (i)

¹ The ALJ incorrectly cites to 24.5(e)(4)(A).

² 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. . . . " Nolder held that the filing of a request for hearing by the employer is the equivalent of an answer for purposes of Rule 41. See Nolder, slip op. at 8. Here, Complainant filed the request for a hearing.