...............................
                              :
IN THE MATTER OF              :
                              :    
MATTHEW D. BIDDLE,            :
          Complainant,        :
                              :    CASE NO.  93-WPC-15
        v.                    :
                              :
UNITED STATES DEPARTMENT      :
    OF THE ARMY,              :
          Respondent.         :
                              :
..............................:


                    RECOMMENDED ORDER OF DISMISSAL

     The above action arises under Section 1367 of the Federal
Water Pollution Control Act, 33 U.S.C., Part 24, et
seq. (1972) ("the Act"), and the implementing regulations
at 29 C.F.R., Part 24, upon a complaint filed by Matthew D.
Biddle on October 14, 1992, with the Department of Labor,
Employment Standards Administration ("ESA").  Mr. Biddle alleges
that he was unlawfully terminated from employment by the
Department of Army on August 7, 1992 in retaliation for his
objection to and disclosure of Respondent's "gross mishandling
and violation of state and federal environmental laws associated
with the clean-up of a leaking underground storage tank site,"
resulting in the discharge of organic contaminants into surface
waters.

     Formal hearing in this matter commenced on February 7, 1994.
After a day of testimony by the Complainant, this case was
continued to allow the parties an opportunity to discuss
settlement.  Subsequently, the parties entered into a stipulation
of voluntary dismissal, and Complainant requested that his
complaint be withdrawn.  

     Rule 41 of the Federal Rules of Civil Procedure governs
dismissal of actions brought under the federal employee
protection statutes.  Rule 41 (a)(1)(ii) provides for the
dismissal of an action "without order of the Court" where
stipulation of dismissal is signed by all the parties.


[PAGE 2]
     However, in whistleblower cases brought under both the
Energy Reorganization Act, 42 U.S.C. §5871 ("ERA") and the
Clean Air Act 42 U.S.C. §7622 ("CAA"), the Secretary has
held that Rule 41 is not applicable where a stipulation of
dismissal by the parties is based on an underlying settlement
agreement. Hoffman v. Fuel Economy Contracting, 87 ERA 33
(Sec'y Aug 4. 1989); McGlynn v. Pulsair Inc., 93 CAA-2
(Sec'y June 28, 1993).


     By its terms, Rule 41 does not apply where "any statute of
the United States" establishes other procedures for dismissal of
actions pursuant to settlements.  The ERA requires the Secretary
to issue an order resolving the case "unless the proceeding on
the complaint is terminated by the Secretary on the basis of a
settlement entered into by the Secretary and the person alleged
to have committed such violation ..." 42 U.S.C. §
5851(b)(2)(A).  In ERA cases the case cannot be dismissed on the
basis of a settlement "unless the Secretary finds that the
settlement is fair, adequate, and reasonable."  Fuchko and
Yunker v. Georgia Power Co., 89 ERA 9 and 10 ( Sec'y Mar. 23,
1989).  The Clean Air Act contains an identical provision. 

     The Federal Water Pollution Control Act, 33 U.S.C. §
1367,
does not contain statutory language providing for the termination
of proceedings by the Secretary on the basis of a settlement
entered into by the Secretary, as does the ERA and the CAA. 
Thus, under traditional rules of statutory construction, it would
follow that Congress did not intend to establish a procedure,
other than the one available under Rule 41, for the dismissal of
an action pursuant to a settlement under the Act.  For had it
wished to do so, it would have included a provision similar to
the provisions in the ERA and the CAA and other federal employee
protection statutes.  Accordingly, the rationale underlying
Hoffman, and McGlynn supra is inapplicable
to the request for voluntary dismissal in the instant case.
     
     THEREFORE, IT IS HEREBY RECOMMENDED THAT the Secretary of
Labor enter an order dismissing this matter with prejudice.


          

                              __________________________
                              MOLLIE W. NEAL
                              Administrative Law Judge


DATE:

[PAGE 3]





NOTICE OF REVIEW:  This Recommended Order and the administrative
file in this matter will be forwarded for review by the Secretary
of Labor to the Office of Administrative Appeals, U.S. Department
of Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C. 20210.  The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978.  See 55 Fed. Reg.
13250 (1990).