Date:          March 22, 1995

Case No.  94-ERA-46

In the Matter of

ROBERT AVERY,
     Complainant,

v.

DUKE POWER COMPANY,
     Employer.


                   RECOMMENDED ORDER OF DISMISSAL

     Robert W. Avery, the Complainant, acting pro se, has moved to
dismiss his claim under the Energy Reorganization Act of 1974.  As grounds for his motion,
Mr. Avery states, "I am unable to obtain an attorney and I am not qualified to represent
myself in this matter."

     Respondent Duke Power Company has replied that it does not object to the dismissal
of the complaint so long as that dismissal is with prejudice.  

     During a conference call on March 9, 1995, prior to his writing the letter containing
the motion, I explained to Mr. Avery what "with prejudice" meant - namely, that his claim
could not be refiled.  He understood this.  He also understood that Respondent would agree to
a dismissal only if it was with prejudice.  Therefore, I find that his motion contemplated a
dismissal with prejudice.  

     I find that Complainant's letter along with Respondent's reply constitute a stipulation of
dismissal within the meaning of Rule 41(a)(1) of the Federal Rules of Civil
Procedure.  Because I find that such stipulation contemplates a dismissal with prejudice,
I am recommending an order to that effect.  







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                             RECOMMENDED ORDER

IT  IS  ORDERED that the complaint of Robert W. Avery be, and hereby is, dismissed with
prejudice.  


                              _________________________________
                              Fletcher E. Campbell, Jr.
                              Administrative Law Judge


FEC/lfrl
Newport News, Virginia



NOTICE:  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).






















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