DATE: May 29, 1991

CASE NO. 91-ERA-29

IN THE MATTER OF

STEPHEN P. CABLE,
    COMPLAINANT,

    v.

ARIZONA PUBLIC SERVICE COMPANY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Order of Dismissal issued by Administrative Law Judge (ALJ) Robert M. Glennon on April 30, 1991, in the above-captioned case which arises under Section 210 of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ recommended that the case be dismissed without prejudice pursuant to Complainant's March 29, 1991, Notice of Voluntary Dismissal which Respondent did not oppose.

   Complainant's Notice of Voluntary Dismissal notices Complainant's intent that the case be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(i) and the Secretary's decision in Stites v. Houston Lighting & Power Co., Case No. 87-ERA-41, Sec. Order, Sept. 29, 1989, slip op. at 2-3. Respondent has not responded to Complainant's Notice of Voluntary Dismissal.

   The ALJ's order cites no authority, but Complainant's request for dismissal under Rule 41(a)(1)(i)¹ appears consistent with past practice. See Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Decision, June 28, 1985, slip op. at 6-7. There is no averment that Respondent has filed the functional equivalent of an answer to the complaint or a motion for summary judgement. Accordingly, this case is DISMISSED without prejudice pursuant to Rule 41(a)(1)(i).

   SO ORDERED.

       LYNN MARTIN

       Secretary of Labor

Washington, D.C.

¹ Rule 41 (a) (1) (i) provides for dismissal of an action "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgement, whichever first occurs . . . . Unless otherwise stated in the notice of dismissal . . . the dismissal is without prejudice . . . ."