DATE: September 23, 1992
CASE NO. 90-ERA-58



IN THE MATTER OF

ALLEN MOSBAUGH,

          COMPLAINANT,

          v.


GEORGIA POWER COMPANY,

          RESPONDENT.

BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
                                     
     On February 20, 1991, the Administrative Law Judge (ALJ)
issued a Recommended Decision and Order of Dismissal Without
Prejudice in this case arising under the Energy Reorganization
Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988).  The
ALJ's decision is based on Complainant's February 19, 1991,
Notice of Dismissal Without Prejudice, which cites as authority
Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure and the
Secretary's decision in Stites v. Houston Lighting & Power
Co., Case No. 87-ERA-41, Sec. Ord. of Dis., slip op. at 2-3,
as authority.  Respondent opposes the ALJ's recommended decision,
arguing that if Complainant is allowed to dismiss at all, it
should be by leave of court and subject to certain conditions
pursuant to Rule 41(a)(2).  After considering the record and the
law, I reject Respondent's arguments and agree with the ALJ's
recommendation. 1/
     The Secretary has held that under the ERA, a complainant is
entitled to unilateral, unconditional dismissal of his ERA
complaint in accordance with Rule 41(a)(1)(i), where the
respondent has not filed the functional equivalent of either an
answer to the complaint or a motion for summary judgment. 
Reece v. Detroit Edison, Case No. 92-ERA-l, Sec.
Fin. Ord. of Dis., Apr. 9, 1992, slip op. at 2; Rainey v.
Wayne State University, 
[PAGE 2]
Case No. 90-ERA-40, Sec. Ord. to Show Cause, Jan. 7, 1991, slip
op. at 4, Sec. Ord. of Dis., Feb. 27, 1991; Hendrix v. Duke
Power Co., Case No. 90-ERA-32, Sec. Fin. Ord. of Dis.,
Sept. 2, 199O, slip op. at 2; Stites, slip op. at 2-3.
2/  If a complainant's dismissal request is not covered by
Rule 41(a)(1), then "an action shall not be dismissed at the
plaintiff's instance save upon order of the court and upon such
terms and conditions as the court deems proper."  Fed. R. Civ. P.
41(a)(2).  See Nolder v. Raymond Kaiser
Engineers. Inc., Case No. 84-ERA-5, Sec. Fin. Dec. and (Rem.)
Ord., June 28, 1985, slip op. at 6-7, appeal
dismissed, No. 85-7472 (9th Cir. 1985).
     Respondent argues:  (1) that Rule 41(a)(1)(i) should not
apply because there is no opportunity in these circumstances to
file an answer or a motion; (2) that even if Rule 41(a)(1)(i)
does apply, Respondent filed the equivalent of an answer so as to
preclude dismissal without leave of court; and (3) that even if
Respondent cannot be deemed to have filed an answer, the advanced
stage of the litigation precludes voluntary dismissal without
leave of court.  Respondent requests that any dismissal should be
with prejudice, coupled with an order to require Complainant to
produce certain discovery, and also conditioned on payment of
attorneys' fees and costs.
     Respondent's arguments are without merit.  First, I reject
Respondent's argument that a "statement of position" document it
filed before the Wage-Hour Administrator should be considered an 
[PAGE 3]
"answer" to the complaint for purposes of Rule 41(a)(1)(i).
3/ The complaint filed with the Administrator under the
ERA simply initiates an investigation.  29 C.F.R. § 24.4;
English v. General Electric Co., Case No. 85-ERA-2,
Sec. Fin. Dec. and Ord., Feb. 13, 1992, slip op. at 10-11.  If a
party appeals the determination, i.e., requests a hearing,
the parties are entitled to a de novo consideration
of the case and all extant issues by an administrative law judge. 
Smith v. TVA, Case No. 87-ERA-20, Sec. Fin. Ord. of Dis.,
Apr. 27, 1990, slip op. at 4 n.2; Eqenrieder v.
Metropolitan Edison Co., Case No. 85-ERA-23, Sec. Ord., Apr.
20, 1987, slip op. at 8 n.8.  Consequently, and consistent with
the narrow, delineating approach taken by the federal courts
under Rule 41(a)(1)(i), I do not find that Respondent's
preliminary "statement of position,"  filed merely before the
Administrator, is equivalent to an "answer" under the rules. 
See generally Thorp v. Scarne, 599 F.2d
1169, 1175-76 (2d Cir. 1979); D.C. Electronics  Inc. v.
Nartron Corp., 511 F.2d 294, 297 (6th Cir. 1975); Pilot
Freight Carriers. Inc. v. International Brotherhood of
Teamsters, 506 F.2d 914, 916 (5th Cir. 1975), cert.
denied, 422 U.S. 1048 (1975).  In any event, the record
contains no evidence of this document or that such a document was
ever "served" on Complainant as would be required under Rule
41(a)(1)(i).  Lockary v. Kayfetz, 917 F.2d 1150, 1157 (9th
Cir. 1990); Aero-Colours, Inc. v. Propst, 833 F.2d 51, 52
(5th Cir. 1987).  Respondent's argument must, therefore, fail.
     Despite Respondent's general assertions, it has made no
convincing argument that it could not have foreclosed
Complainant's unilateral right of dismissal by the simple
expedient of filing before the ALJ the equivalent of a motion for
summary judgment.  See 29 C.F.R. § 18.40.  Cf.
D.C. Electronics, Inc., 511 F.2d at 298 (rejecting
the defendant's position that Rule 41(a)(1)(i) leaves it
defenseless against the whim and caprice of the plaintiff).  The
fact that the ERA and the regulations at Part 24 do not expressly
set forth a procedure in this regard does not preclude a
respondent from filing an appropriate motion on its own volition.
     Finally, the courts repeatedly have admonished against
engaging in a subjective approach of considering whether an 
[PAGE 4]
"advanced stage" of an action has been reached to find any
exception to Rule 41(a)(1)(i).  E.g., Thorp, 599
F.2d at 1176; D.C. Electronics, Inc., 511 F.2d at 297-98;
Pilot Freight Carriers Inc., 506 F.2d at 916-17. 
This is not an "extreme" case that might warrant such an
exception.  Thorp, 599 F.2d at 1176. The merits of the
case were never squarely raised, nor did the considerable time
and effort expended by both parties in discovery procedures
extend this suit into an "advanced stage." Id.; Sheldon v.
Amperex Electronic Corp., 52 F.R.D. 1, 7 (E.D.N.Y. 1971),
aff'd, 449 F.2d 146 (2d Cir. 1971).  Mere expenditure of
time and money by Respondent does not bar Complainant's
entitlement, as of right, to dismiss without prejudice. 4/
Johnson Chemical Co., Inc. v. Home Care Products,
Inc., 823 F.2d 28, 31 (2d Cir. 1987).
     Since the record indicates that Respondent did not file the
functional equivalent of either an answer or a motion for summary
judgment, dismissal of the case is proper under Rule 41(a)(1)(i)
rather than Rule 41(a)(2).  Rainey, slip op. at 4-5;
Hendrix, slip op. at 2; Stites, slip op. at 2-3. 
Where, as here, a complainant properly invokes the right, I
decline to attach any condition or burden to that right.
    Accordingly, the complaint IS DISMISSED.
    SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor


[ENDNOTES]

1/ Respondent initially filed a motion with the ALJ
requesting that he vacate his recommended decision.  The ALJ
forwarded the motion and supporting brief to the Secretary, as
the case already was pending before the Secretary for final
review, and the documents were accepted into the record as
Respondent's opposition brief.  Supplemental Order Amending
Briefing Schedule, dated March 14, 1991.  Subsequently, both
Respondent and Complainant filed additional briefs in response to
the ALJ's recommended decision, as permitted by the briefing
schedule.

2/ It is well settled that voluntary dismissals of ERA
complaints are covered by Rule 41.  Rainey, slip op. at 3. 
Rule 41 applies because there are no procedures for voluntary
dismissals contained in either the ERA, the implementing
regulations at 29 C.F.R. Part 24 (1991), or the regulations at 29
C.F.R. Part 18 (1991), which are generally applicable to any
adjudicatory proceeding brought before a Department of Labor
administrative law judge.  29 C.F.R.  §18.1(a).

3/ The Secretary has held that the respondent's request
for a hearing following the adverse preliminary determination of
the Wage-Hour Administrator is the functional equivalent of an
"answer" for purposes of Rule 41(a)(1)(i).  Nolder, slip
op. at 7-8.  Here, Complainant requested the hearing.

4/ Respondent accuses Complainant of attempting to avoid
the consequences of orders that had been previously entered by
the ALJ, following a great expenditure of time and money by
Respondent.  Complainant replies that the ALJ had engaged in a
"systematical denial of basic due process rights" which evinced
bias, and now, Complainant seeks vacation of various orders
issued by the ALJ in addition to dismissal without prejudice.
Complainant's Brief in Support of Complainant's Right to
Dismissal Without Prejudice at 2-3, 6.  First, I am not convinced
factually or legally of Respondent's accusation.  Procedural
tactics employed by either party are not determinative of the
legal questions posed here.  Sheldon, 52 F.R.D. at 12. 
Nor will I entertain Complainant's request that I vacate certain
orders issued by the ALJ.  The effect of Complainant's notice of
voluntary dismissal without prejudice was to render the
proceedings a nullity and leave the parties as if the action had
never been brought.  "It carries down with it previous
proceedings and orders in the action, and all pleadings, both of
plaintiff and defendant, and all issues, with respect to
plaintiff's claim." Piper Aircraft Distribution System
Antitrust Litigation v. Piper Aircraft Corp., 551 F.2d
213, 219 (8th Cir. 1977).