Goyal v. First Energy Nuclear Operating Co., 2003-ERA-14 (ALJ Sept. 30, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue Date: 30 September 2003

CASE NO.: 2003-ERA-14

In the Matter of:

PRASOON K. GOYAL,
    Complainant,

    v.

FIRST ENERGY NUCLEAR
OPERATING COMPANY,
    Respondent.

   On June 10, 2003, Complainant Prasoon K. Goyal filed with the Office of Administrative Law Judges an appeal of the determination made by the Occupational Safety and Health Administration that Respondent did not violate Section 211 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851. The hearing in the above-captioned case was scheduled for October 7, 2003. Complainant now seeks to voluntarily withdraw his appeal to pursue the matter in state court. Respondent does not object to such withdrawal. I recommend that his request be granted.

   The ERA and its regulations do not discuss complainant's right to voluntarily withdraw his appeal. Moreover, there is no provision in Part 18 of 29 C.F.R. governing voluntary dismissal. As such, the Federal Rules of Civil Procedure govern.

   Federal Rule of Civil Procedure 41(a) allows for an action to be dismissed voluntarily by a plaintiff without order of court. A dismissal under Rule 41(a) is without prejudice.

   In conclusion, Complainant's appeal is dismissed without prejudice under Federal Rule of Civil Procedure 41(a).

   Upon consideration of the request of the Complainant to withdraw his appeal, it is hereby ORDERED that the request is GRANTED and the appeal of Prasoon K. Goyal is DISMISSED.

      RICHARD A. MORGAN
      Administrative Law Judge

NOTICE: This Recommended 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, N.W., Washington, D.C., 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. §§ 24.8 and 24.9, as amended by 63 Fed.Reg. 6614 (1998).