Hasan v. Wolf Creek Nuclear Operating Corp., 2002-ERA-29 (ALJ July 17, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 17Jul2002

CASE NO.: 2002-ERA-29

IN THE MATTER OF

SYED M.A. HASAN
    Complainant

    v.

WOLF CREEK NUCLEAR OPERATING CORPORATION
    Respondent

   On July 8, 2002, Complainant's Motion for Recusal of the undersigned was denied for reasons stated in the Order Denying Motion for Recusal.

   On July 15, 2002, Complainant filed a letter motion averring, in relevant part, that "I just cannot proceed with this case anymore . . . this Court should issue the necessary (final) order for this case . . . "

   On July 16, 2002, Respondent filed a "Response to Complainant's Request for Dismissal" arguing that Complainant's request should be treated as a motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). Respondent does not oppose entry of an order dismissing Complainant's complaint.

   There is no evidence of any inconsistent action by Complainant with his stated intent not to proceed with this matter.

   Complainant's representation that he cannot proceed with his case and request for a final order is construed to be an abandonment of his complaint and request for formal hearing. A request for hearing may be dismissed upon its abandonment by the party who filed it. See 29 C.F.R. § 18.39(b).

   Moreover, the Procedures For The Handling of Discrimination Complaints Under Federal Employee Protection Statutes, 29 C.F.R. Part 24 permit the issuance of a recommended decision and order dismissing a claim for cause at the request of any party. Furthermore, no answer by Respondent has been filed in this matter which would allow Complainant to seek voluntary dismissal of this matter consistent with Federal Rule of Civil Procedure 41(a)(1)(i).

   Accordingly, based on the foregoing, Complainant's request for voluntary dismissal of his request for formal hearing and complaint is hereby GRANTED with prejudice.

   The formal hearing presently scheduled in this case for August 7, 2002, in Huntsville, Alabama, is hereby cancelled.

   ORDERED this 17th day of July, 2002, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §§ 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§§§ 24.7(d) and 24.8.