DATE:  November 13, 1992
CASE NO. 90-ERA-15

IN THE MATTER OF

STEVEN P. CABLE,

          COMPLAINANT,

      v.


ARIZONA PUBLIC SERVICE CO.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                          FINAL DECISION AND ORDER
                                      
    Before me for review is the Recommended Order of Dismissal
(R.O.D.) issued by the Chief Administrative Law Judge (CALJ) on
September 20, 1991, in this case arising under the employee
protection provision of the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C. § 5851 (1988).  The CALJ recommended
dismissal without prejudice on the ground that the requirements
for voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(i) had been
satisfied.[1]  R.O.D. at 4-5.  The CALJ also considered the
1


possibility of imposing sanctions against Complainant's counsel
pursuant to Fed. R. Civ. P. 11, but decided against assessing
sanctions in this case.  R.O.D. at 5-6.
     Respondent opposes the CALJ's recommended order, contending 
[PAGE 2]
that there are two bases on which the case should be dismissed
with prejudice.  Respondent's Brief in Opposition (Br. Opp.) at 7. 
First, Respondent notes that ALJ Holmes dismissed this case with
prejudice on February 21, 1990.  Br. Opp. at 4.  Although ALJ
Holmes stayed the dismissal for ninety days by order dated April
2, 1990, Respondent argues that Complainant failed to comply with
the April 2 order and the stay expired before Complainant filed
this motion to dismiss on July 6, 1990, [2] thereby bringing
into effect the original order dismissing the case with prejudice. 
Br. Opp. at 4, 7.
     When documents are filed by mail, as the motion to dismiss
was in this case, five days are added to the prescribed period. 29
C.F.R. § 18.4(c)(1), (3).  Accordingly, Complainant's
response to ALJ Holmes' April 2 order was within the allotted
time. Moreover, the April 2, 1990, order stated that failure to
comply within ninety days "will be grounds for sending a
recommendation of dismissal to the Secretary."  This language
clearly contemplates additional action to reinstate the earlier
order of dismissal.  Because ALJ Holmes took no further action,
the expiration of the stay, by itself, would not have led to a
recommended order of dismissal subject to my review.  See
29 C.F.R. § 24.6.
    Respondent next contends that while a strict reading of Rule
41(a)(1)(i) seems to indicate that a complainant has a right to
dismiss without prejudice when no answer or summary judgment
motion has been filed, under the facts of this case, with its
procedural and factual history, the rule makes no sense.  Br.
Opp. at 5-6.  While noting that, under the ERA, a request for
hearing is considered the equivalent of an answer, Nolder
v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5,
Sec. Dec., June 28, 1985, slip op. at 8, Respondent contends it
was precluded from requesting a hearing because the
Administrator's notice of determination was in its favor.  Br.
Opp. at 5.  See 29 C.F.R. § 24.4(d)(3)(i). 
Respondent also states that filing a summary judgment motion
before having an opportunity to depose Complainant, which
Respondent claims was foreclosed because Complainant refused to
appear for his deposition, would not have been prudent.  Br. Opp.
at 5.
    Initially, I note that the fact a respondent is unable to
request a hearing does not render Rule 41(a)(1)(i) inapplicable 
[PAGE 3]
in ERA proceedings.  See Hendrix v. Duke Power Co.,
Case No. 90-ERA-32, Sec. Dec., Sept. 25, 1990, slip op. at 2 n.2.
(Rule 41(a)(1)(i) dismissal available where complainant requested
hearing).  I am also unpersuaded that a Rule 41(a)(1)(i)
dismissal should be unavailable to a complainant where a
respondent decides that filing a summary judgment motion would
not be prudent.  Many litigation decisions require the exercise
of judgment [3] and the application of Rule 41(a)(1)(i)
depends on what a respondent does in response to a complaint, not
what it would have done given different circumstances.  Aside
from what may have been the preferred litigation strategy,
Respondent could have foreclosed Complainant's unilateral right
to dismissal by the simple expedient of filing before the ALJ the
equivalent of a motion for summary judgment.  Mosbauqh v.
Georgia Power Co., Case No. 90-ERA-58, Sec. Dec., Sept. 23,
1992, slip op. at 4-5.
     Citing Harvey Aluminum. Inc. v. American Cyanamid
Co., 203 F.2d 105 (2d Cir.), cert. denied, 345
U.S. 964 (1953), Respondent argues that other courts [4]
have refused to apply a strict interpretation of Rule 41 when, as
Respondent asserts is the situation here, a case has reached an
advanced stage.  Br. Opp. at 6-7.  Harvey, however, has
received a "cool reception" and, because of its extreme facts, is
the only decision in which the Court of Appeals for the Second
Circuit has rejected a strict construction of Rule 41(a)(1)(i).
Johnson Chem. Co. v. Home Care Prod., 823 F.2d
28, 30 (2d Cir. 1987).  In fact, the only exceptions to a literal interpretation
of Rule 41(a)(1)(i) are where the merits have been raised [5] or a
suit has reached an advanced stage as in Harvey where an
evidentiary hearing was held and the record consisted of 420
pages.  Hamilton v. 
[PAGE 4]
Shearson-Lehman Am. Express. Inc., 813 F.2d 1532, 1534
(9th Cir. 1987).
     In the instant case, although there has been considerable
procedural posturing, the merits of the complaint have not been
addressed.  Nor has this case reached an advanced stage as in
Harvey.  Accordingly, for these and the foregoing reasons,
I adopt the CALJ's conclusion that Complainant is entitled to a
voluntary dismissal without prejudice under Rule 41(a)(1)(i).
     On a separate issue, Respondent contends that Rule 11
sanctions against Complainant and his counsel are appropriate in
this case.  Br. Opp. at 8-10.  The regulations governing ALJ
proceedings provide that the Federal Rules of Civil Procedure
apply "in any situation not provided for or controlled by these
rules, or by any statute, executive order or regulation." 29
C.F.R. § 18.1(a).  Because Section 18.36 of the ALJ
regulations provides a remedy for conduct which is dilatory,
unethical, unreasonable, and in bad faith, the situation addressed
in Rule 11 is "provided for or controlled" and Rule 11
does not apply. [6]  See Stack v. Preston Trucking
Co., Case No. 89-STA-15, Sec. Dec., Apr. 18, 1990, slip op. at
7-9.
     Accordingly, the complaint is dismissed without prejudice and
no sanctions will be imposed against Complainant or his counsel.

     SO ORDERED.



                         LYNN MARTIN
                         Secretary of Labor
Washington, D.C.


[ENDNOTES]

1/  Neither the regulations applicable to the conduct of
ALJ hearings, 29 C.F.R. Part 18, nor the regulations implementing
the ERA, 29 C.F.R. Part 24, makes any provision for voluntary
dismissals.  Under these circumstances, the Federal Rules of Civil
Procedure apply.  29 C.F.R. § 18.1(a); Scott v. Am.
Protective Serv., Inc. Case No. 89-ERA-35, Sec. Order, Apr.
26, 1990, slip op. at 2-3; Nunn v. Duke Power Co., Case No.
84-ERA-27, Sec. Order, Sept. 29, 1989, slip op. at 3-4.

2/ The motion was dated July 2, 1990, but it is not
considered "filed" until July 6, 1990, the date received by the
Office of Administrative Law Judges.  See 29 C.F.R. §
18.4(c)(1).

3/ In this case, Respondent could have filed a motion to
compel discovery, see 29 C.F.R. § 18.21, after
Complainant failed to appear for his deposition. (Complainant's
brief before me asserts that Respondent's deposition notice to
Complainant, who then was proceeding pro se, did
not afford the requisite notice period under 29 C.F.R. §
18.22(c).  Complainant's Reply Brief at 10-11).

4/ Respondent also cites Lake at Las Vegas Investors
Group. Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724
(9th Cir. 1991), which addressed when there can be an exception
to Rule 41(a)(1)(i)'s requirement that a second voluntary
dismissal "operates as an adjudication on the merits."  That case
is inapposite to the question of what can preclude an initial
voluntary dismissal.

5/ A request for hearing, considered in Nolder to be
equivalent to an answer, is like an answer in that it joins issue on the
merits.

6/ The remedy under Section 18.36 is to suspend the
attorney from participation in the particular proceeding, an issue
which at this point is moot.