DATE: May 6, 1998

CASE NO.: 98-ERA-1

In the Matter of:

    BEN ERNST,
       Complainant,

    v.

    WOLF CREEK NUCLEAR OPERATING CORP.,
       Respondent.

   This matter arises under the employee protection provision of the Energy Reorganization Act of 1974 (the "Act" or "ERA"), 42 U.S.C. § 5851, and the regulations promulgated thereunder as contained at 29 C.F.R. Part 24. Complainant, Ben Ernst, appeals the Occupational Safety and Health Administration's September 29, 1997, determination that his complaint against Respondent, Wolf Creek Nuclear Operating Corporation, had no merit.

   Pursuant to due notice, this matter was scheduled for hearing before the undersigned administrative law judge on May 19, 1998, in Kansas City, Missouri. During a telephone call with Complainant's attorney on April 29, 1998, counsel expressed his intent to voluntarily dismiss this case.

   A jointly stipulated Motion to Dismiss was received via facsimile on May 6, 1998. The parties announced their agreement that this matter should be dismissed with no admissions to be inferred thereby. The motion makes no reference as to whether the dismissal should be with or without prejudice.

   Neither the ERA nor its implementing regulations at 29 C.F.R. Part 24 provides for voluntary dismissals of complaints. See Caccavale v. Northeast Utilities, 91-ERA-3 (Sec'y Dec. 18, 1990); Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985). However, where the parties jointly file a Motion to Dismiss, dismissal under Fed. R. Civ. P. 41(a)(1)(ii) is appropriate. Luther v. City of Tyler, 92-TSC-4 (Sec'y Aug. 25, 1993). Furthermore, where there is no evidence that a complainant intended that the matter be dismissed with prejudice, the express language of Rule 41(a)(1) contemplates dismissal without prejudice. Lorenz v. Law Engineering, Inc., 90-CAA-1 and 2 (Sec'y Mar. 12, 1991); See also generally Thompson v. United States Dept. of Labor, 885 F.2d 551, 556-57 (9th Cir. 1989).

   Here, the parties have submitted a jointly stipulated Motion for Dismissal. Since the motion is silent on whether the requested dismissal is to be with or without prejudice, the motion shall be construed as requesting dismissal without prejudice.

   Based upon the foregoing, it is HEREBY RECOMMENDED that the parties' joint Motion for Dismissal be GRANTED and that the above-captioned complaint be DISMISSED WITHOUT PREJUDICE.

   Entered this 6th day of May, 1998, at Long Beach, California.

      DANIEL L. STEWART
      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, 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 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).