DATE: September 25, 1990 CASE NO. 90-ERA-32

IN THE MATTER OF

THOMAS P. HENDRIX,
    COMPLAINANT,

    v.

DUKE POWER COMPANY,
OCONEE NUCLEAR STATION,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended¹ Order of Dismissal issued by Administrative Law Judge (ALJ) Theodor P. von Brand on August 22, 1990, in the captioned case which arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The ALJ's recommended order dismisses the case without prejudice under Fed. R. Civ. P. 41(a)(1)(i) on the basis of Complainant's written request for dismissal to which Respondent has filed no objection.

   The ALJ correctly stated that neither the ERA nor its implementing regulations at 29 C.F.R. Part 24 (1989) provides for voluntary dismissals of complaints and that, therefore, where a

   Although Complainant's request for dismissal seeks unconditional dismissal (i.e., without prejudice) pursuant to Rule 41(a) (2) of the Federal Rules of Civil Procedure, the ALJ correctly concluded that the case should be dismissed without prejudice under Fed. R. Civ. P. 41 (a) (1) (i). Since the record indicates that Respondent neither filed an answer nor a motion for summary judgment, Rule 41 (a) (1) (i) is the applicable rule.² See Farinholt v. Virginia Power, Case No. 89-ERA-27, Sec. Order, December 13, 1989, slip op. at 2; Cooper v. Bechtel Power Corp., Case No. 88-ERA-2, Sec. Order, September 29, 1989, slip op. at 2; Keelan V. Consolidated Edison Co. of N.Y., Inc., Case No. 88-CAA-3, Sec. Order, September 29, 1989, slip op. at 2-3.,

   Accordingly, the ALJ's Recommended Order of Dismissal is accepted and the case is hereby DISMISSED without prejudice under Fed. R. Civ. P. 41 (a) (1) (i)

   SO ORDERED.

       Elizabeth Dole

       Secretary of Labor

Washington, D.C.

¹Under section 24.6 of 29 C.F.R., the regulation implementing the ERA, an ALJ is authorized to issue only a recommended decision, which must be reviewed by the Secretary before it becomes final. See Cooper v. Bechtel Power Corp., Case No. 88-ERA-2, Sec. Order, September 29, 1989, slip op. at 1.

²Rule 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.