DATE:  June 28, 1993
CASE NO. 90-ERA-4


IN THE MATTER OF

LILLARD W. BLEVINS,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL ORDER OF DISMISSAL

     This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988), and is before me pursuant to the
[Recommended] Order of Dismissal issued by the Administrative Law
Judge (ALJ) on January 31, 1990. The ALJ's order dismisses the
case without prejudice on the basis of Complainant's written
request of January 22, 1990.  Under the regulations which
implement the ERA, the ALJ's order [1]  is now before me for
review.  29 C.F.R. § 24.6 (1991).
     Section 5851(b)(2)(A) of the ERA provides that "the
Secretary shall, unless the proceeding on the complaint is
terminated by the Secretary on the basis of a settlement entered
into by the Secretary and the person alleged to have committed
such violation, issue an order either providing the relief
prescribed by subparagraph (B) or denying the complaint."
     In this case, the ALJ cites no authority for his recommended
dismissal but notes that he is acting pursuant to Complainant
Blevins's letter of January 22, 1990, indicating his desire to
withdraw his November 1, 1989 appeal. [2]   Complainant's effort
to voluntarily withdraw his complaint was done with the express 
[PAGE 2]
approval of the Respondent, see Respondent's letter of 
January 24, 1990, from its Assistant General Counsel to the ALJ. 
Both the regulations implementing the ERA and the Rules of
Practice and Procedure for Administrative Law Judges, 29 C.F.R.
Part 18 (1991), are silent with regard to voluntary dismissals of
this nature.  However, it is well established that voluntary
dismissals of ERA complaints are covered by Rule 41 of the
Federal Rules of Civil Procedure. [3]   Mark E. Kleinman v.
Florida Power and Light Company, Case No. 91-ERA-00050; Sec.
Final Order of Dismissal, Feb. 21, 1992, slip op. at 2.
     Respondent's written response indicating that it does not
object to Complainant's voluntary dismissal, together with
Complainant's notice of voluntary dismissal, may be deemed
sufficient to constitute a stipulation of dismissal by the
parties satisfying the requirements of Rule 41(a)(1)(ii). 
Id. (and cases cited therein).
     Accordingly, pursuant to Rule 41(a)(1)(ii), the complaint in
this case is DISMISSED WITHOUT PREJUDICE.
     SO ORDERED.



                              ROBERT B. REICH 
                              Secretary of Labor


Washington, D.C.



[ENDNOTES]
           
[1]  The ALJ's order is not entitled "Recommended Decision." 
However, under the ERA's implementing regulations, 29 C.F.R. 
Part 24 (1991), except in limited circumstances, see 29
C.F.R. § 24.5(e)(4), an ALJ's decision is a recommended decision
and final orders must be issued by the Secretary.  29 C.F.R. §
24.6.

[2]  By telegram on this date, Complainant appealed the adverse
determination on his complaint issued by the District Director
(Nashville) of the Wage and Hour Division, Employment Standards
Administration on October 27, 1989.  It appears from the record
that Complainant filed two other ERA complaints against
Respondent, in August of 1985 and June of 1989.  However, the
case before me involves only the complaint of October 17, 1989.

[3]  Rule 41(a)(1)(ii) provides for dismissal of an action "by
filing a stipulation of dismissal signed by all parties who have
appeared in the action.  Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without 
prejudice . . . ."