FINAL ORDER OF DISMISSAL
Before me for review is the Recommended Decision and Order
Dismissing Complaint issued by Administrative Law Judge (ALJ)
Martin J. Dolan, Jr., on November 29, 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 decision and order dismisses the case
with prejudice under Fed. R. Civ. P. 41(a)(1)(ii) on the basis of
Complainant's written Withdrawal of Complaint which is signed
also by Respondent.
Neither the ERA nor its implementing regulations at 29 C.F.R.
Part 24 (1990) provides for voluntary dismissals of complaints
[Page 2]
and, therefore, where a complainant in a case arising under Part
24 has sought a voluntary dismissal, Rule 41(a) of the Federal
Rules of Civil Procedure for the United States District Courts
has been applied. See Nolder v. Raymond Kaiser Engineers, Inc. ,
Case No. 84-ERA-5, Sec. Order, June 28, 1985, slip op. at 6-7.
The ALJ properly applied Fed. R. Civ. P. 41(a)(1)(ii) to
this case. Complainant's Withdrawal of Complaint, signed by the
parties and requesting dismissal with prejudice, constitutes a
stipulation of dismissal within Rule 41(a)(1)(ii). See Nunn v.
Duke Power Co. , Case No. 84-ERA-27, Sec. Order, September 29,
1989; Hooks v. Transportation Services, Inc. , Case No. 88-STA-7,
Sec. Order, June 24, 1988. I note that the withdrawal states
that Complainant has similar claims pending in Connecticut
Superior Court and that there exists no settlement agreement
between the parties in this matter. Respondent expressly concurs
in the dismissal with prejudice and without costs or attorney's
fees to either party.
Based on the foregoing, I fully agree with the ALJ's
recommendation that this case be, and it hereby is, DISMISSED
with prejudice under Fed. R. Civ. P. 41(a)(1)(ii).
SO ORDERED.
Acting Secretary of Labor
Washington, D.C.
[ENDNOTES]
1 There is presently a vacancy in the
office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties
of the Secretary until a successor is appointed. . . " 29 U.S.C.
§ 552 (1988).