DATE: October 20, 1998

CASE NO: 1998-ERA-41

In the matter of:

SCOTT E. COLEMAN
    Complainant

    v

DUQUESNE LIGHT COMPANY
    Respondent

   This matters arises under the employee protection provisions of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §5851 (1988). On October 14, 1998, the parties filed a joint Motion to Withdraw Request for Hearing and For Dismissal With Prejudice. According to the Motion, the Complainant, Scott E. Coleman, has been reinstated in his employment and received his back pay through the arbitration award of Grievance No. 17803. He therefore respectfully requested the withdrawal of his request for a hearing in this matter and the dismissal with prejudice of Case no. 98-ERA-41.

   Voluntary dismissal of ERA whistleblower complaints are governed by Rule 41 of the Federal Rules of Civil Procedure. Rainey v. Wayne State University, 90- ERA-40 (Sec'y Jan. 7, 1991)(Order to Show Cause), slip op. at 3, dismissed, (Sec'y Feb. 27, 1991). Rule 41 is applied because neither the ERA, nor the implementing regulations at 29 C.F.R. Part 24 or 29 C.F.R. 18, contain procedures for voluntary dismissal of complaints. Under the ERA whistleblower provisions, a complainant is entitled to unilateral, unconditional dismissal of his or her ERA complaint in accordance with Rule 41(a)(1)(i), where the respondent has not filed the functional equivalent of either an answer to the complaint or a motion for summary judgment. Reece v. Detroit Edison, 92-ERA-1 (Sec'y Apr. 9, 1992), slip op. at 2).

   Rule 41 clearly applies to the complainant's request for dismissal. Respondent has neither filed an answer to the complaint nor a motion for summary judgment. Accordingly,

   IT IS ORDERED THAT the complainant's request that his complaint be dismissed with prejudice is GRANTED.

       MICHAEL P. LESNIAK
       Administrative Law Judge

MPL/dmg

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).