DATE: September 26, 1991
CASE NO. 91-ERA-19

IN THE MATTER OF

JAMES TABOR,
    COMPLAINANT,

    v.

VERMONT YANKEE NUCLEAR POWER CORPORATION,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended order of Dismissal (R.O.D.) of the Administrative Law Judge issued July 11, 1991, in this case arising under the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ 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.

   The relevant facts, as more fully set forth in the ALJ's R.O.D., show that on February 21, 1991, Complainant mailed a Notice of Voluntary Dismissal to the Office of Administrative Law Judges (OALJ), which was received by OALJ on February 22, 1991. On February 21, 1991, Respondent hand-delivered to OALJ its Answer to the Complaint in the case, but did not mail the Answer

to Complainant until the evening of February 22, 1991, at 7:10 p.m.

   Because Respondent initially believed it had mailed its Answer to Complainant on February 21, 1991,¹ Respondent opposed dismissal under Fed. R. Civ. P. 41(a)(1)(i), which requires the filing of the notice of dismissal by a plaintiff prior to service of the adverse party's answer. Respondent argued that because Complainant's Notice of Dismissal had not been filed prior to Respondent's service of its Answer on February 21, 1991, the case could only be dismissed by order of court pursuant to Rule 41(a)(2), and under that rule Complainant should be required as a condition of dismissal to pay Respondent's attorney's fees and costs in defending the claim.

   By letter of July 2, 1991, however, Respondent acknowledged that its Answer had not been served on Complainant until the evening of February 22, 1991, after Complainant's Notice of Dismissal had been filed, and therefore Complainant was entitled to dismissal under Rule 41(a)(1)(i). Respondent accordingly withdrew its opposition to Complainant's Notice of Dismissal.

   As the parties are in agreement that Complainant's Notice of Dismissal was filed prior to Respondent's service of its Answer, and as the record so supports, I agree with the ALJ that dismissal under Rule 41(a)(1)(i) is appropriate.² See Nolder v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Order, June 28, 1985, slip op. at 6-7. Accordingly, this case is DISMISSED without prejudice. Fed. R. Civ. P. 41(a)(1)(i).

   SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.

¹ See Respondent's Opposition to Complainant's Notice of Dismissal at 1.

² I do not reach the broader issue pressed in Complainant's Response to Respondent's Opposition at 3-5, that the filing of an answer in an ERA case never precludes a Rule 41(a)(1)(i) voluntary dismissal.