DATE:  August 31, 1992
CASE NO. 90-ERA-26

IN THE MATTER OF

DONALD W. BROWN,

          COMPLAINANT,

     v.

HOLMES & NARVER,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Order to Dismiss
Without Prejudice (R.O.D.) issued by the Chief Administrative Law
Judge (ALJ) in this case under the employee protection
(whistleblower) provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988).  The ALJ
recommends that the complaint be dismissed without prejudice,
subject to certain conditions.  Complainant expressly agrees with
the R.O.D. and Respondent opposes it "only to the extent"
Complainant is not required to pay all the fees and costs
Respondent incurred in this case.
     Complainant filed a complaint with the Department of Labor
alleging that Respondent subjected him to harassment and laid him
off in retaliation for his engaging in activities protected by
the whistleblower provision of the ERA.  After Respondent raised
the possibility that the Department of Labor lacked jurisdiction
over the subject matter of this complaint, Complainant filed a
state court action concerning the alleged harassment and unlawful
layoff.  The state court stayed its proceeding pending final
resolution of this case.  Complainant then sought dismissal of 
[PAGE 2]
this case without prejudice.  
     The ALJ conditioned dismissal without prejudice on
Complainant's paying $242.35 to reimburse copying costs incurred
by Respondent, answering all interrogatories propounded by
Respondent in this case, and agreeing that all evidence gathered
by Respondent in this case may be used in any further action by
Complainant against Respondent.
     The ALJ correctly stated the law governing a decision
maker's discretion to impose conditions on the grant of a request
for dismissal without prejudice. [1]   I agree with the ALJ's
analysis that to avoid legal harm or prejudice to a respondent as
the result of a dismissal without prejudice, a complainant need
pay only for items that will not be useful to respondent in
defending an anticipated litigation in another forum.  Based on a
thorough review of the items for which Respondent sought payment
in this case, and in view of Complainant's express statement that
he "agrees with [the ALJ's] recommended decision", I find that
the ALJ properly ordered Complainant to pay $242.35 to reimburse
Respondent for the cost of making copies of documents that are
useful only in this case.  
     Accordingly, I adopt the ALJ's R.O.D., which is appended.
The complaint is DISMISSED without prejudice.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]   I clarify one citation:  On page 3, in the first full
sentence, the quoted language is from the second cited case,
Stokes v. Pacific Gas & Elec. Co./Bechtel Power Corp.,
Case No. 84-ERA-6, Final Order of Dis., July 26, 1988, slip op.
at 2, and is a synopsis of a holding in Nolder v. Raymond
Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Dec. and
(Remand) Order, June 28, 1985.