DATE: April 14, 1993

CASE NO: 93-CAA-00002

IN THE MATTER OF

EDWARD T. MCGLYNN
    Complainant,

    v.

PULSAIR INCORPORATED
    Respondent,

    This matter came for hearing by this Court pursuant to the provisions of 29 C.F.R. Part 24.

    Claimant filed his complaint of discrimination provided under the federal employee protection statutes as set forth in 29 C.F.R. Part 24. Claimant alleged violations by Pulsair Incorporated of the employee protection provisions of Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Water Pollution Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 42 U.S.C. 6971; Clean Air Act, 42 U.S.C. 7622 and the Energy Reorganization Act of 1974, 42 U.S.C. 5851 (See Complainant's Response to Respondent's Motion to Dismiss, at 1).

    Claimant filed his complaint with the Department of Labor on September 15, 1992 upon which the Department declined to take any action on the grounds of untimely filing. Claimant filed his request for a formal hearing and the matter was heard by the undersigned on January 25, 1993, with all parties present and represented by counsel.

    Prior to the hearing date both parties responded to the Court's Pre-Hearing Statement Order. The Court ruled upon the Respondent's Motion to Dismiss in its Order issued on January 14, 1993. The Court ruled that the hearing would be limited to the disposition of the Respondent's Motion to Dismiss and establishing this Court's jurisdiction in the case.

   At the hearing held on January 25, 1993, the parties were ordered to submit written briefs to the Court on March 22, 1993. During this post-hearing period the parties were

negotiating the possibility of a settlement.

   The Court now received the Settlement Agreement General Release and Waiver of Right to Sue, executed and signed by the complainant, Edward T. McGlynn and his employer, Pulsair Incorporated. Both litigants are represented by counsel as indicated by the agreement.

   Complainant has also submitted his Notice of Voluntary Dismissal with Prejudice for the Court's approval. Each party has agreed to bear their own attorney's fees and costs of litigation, as stated in the Notice of Voluntary Dismissal and as set forth in the agreement.

   It would appear that the claimant is proceeding pursuant to the provisions of Rule 41, Dismissal of Actions under the Federal Rules of Civil Procedure. This procedure is proper in cases, such as this action, where there is no provision in the statute or regulation for effecting dispositive adjudication by settlement between the parties. The Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by any statute, executive order or regulation. 29 C.F.R. § 18.1(a).

   Accordingly, this Court finds that the Complainant's Notice of Voluntary Dismissal comports with the provisions for such voluntary dismissal as authorized in Rule 41(a)(1)(ii), wherein this section provides that an action can be dismissed by the plaintiff without order of court by filing a stipulation of dismissal signed by all parties who have appeared in the action.

   IT IS HEREBY ORDERED and adjudged

1. That the above entitled action be voluntarily dismissed with prejudice, by the complainant, Edward T. McGlynn, and that both parties shall bear their own attorney fees and costs of litigation, pursuant to the provisions of their Settlement Agreement, General Release and Waiver of Right to Sue, executed by all the parties and their counsel.

2. That this case be dismissed With prejudice pursuant to Rule 41(a)(1)(ii).

       CLEMENT J. KICHUK
       Administrative Law Judge