DATE:  July 21, 1994
CASE NO. 94-ERA-00018


IN THE MATTER OF

REED CLARKE,

          COMPLAINANT,

     v.

FLORIDA POWER CORPORATION,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                            ORDER TO SHOW CAUSE

     On May 19, 1994, the Administrative Law Judge (ALJ) issued a
[Recommended] Order of Dismissal in this case arising under the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. 
§ 5851 (1988). [1]   The ALJ concluded that the case should
be dismissed without prejudice pursuant to Rule 41(a)(1)(ii) of
the Federal Rules of Civil Procedure based on Complainant's May
16, 1994 notice of withdrawal; representations made by counsel 
during a May 18 conference call; and Respondent's May 18, 1994
letter expressly stipulating to dismissal pursuant to Rule
41(a)(1)(ii). [2] 
     Although the ALJ states that during the telephone conference
the parties agreed to dismissal without prejudice, Respondent's
May 18 letter states that the parties concurred in dismissal
subject to certain specified conditions.  Complainant did not
file another document after his May 16 notice, which is silent on
the mode of dismissal.
     The intent of the parties is unclear in this case.  It
appears, however, that Complainant is entitled to unconditional
dismissal of his ERA complaint in accordance with Rule
41(a)(1)(i).  See Mosbaugh v. Georgia Power Co.,
Case No. 90-ERA-
[PAGE 2]
58, Sec. Dec., Sept. 23, 1992, slip op. at 2; Cooper, slip
op. at 2-3.  Respondent has not filed the functional equivalent
of either an answer to the complaint or a motion for summary
judgment.
     Accordingly, the parties are directed to SHOW CAUSE within
fifteen days of receipt of this order, why this case should not
be dismissed without prejudice based on Complainant's May 16
notice, pursuant to Rule 41(a)(1)(i) of the Federal Rules of
Civil Procedure.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   The ALJ erred in stating that his order was a final order. 
Under the regulations implementing the ERA, an ALJ is authorized
to issue only a recommended decision, which must be reviewed by
the Secretary before it becomes final.  29 C.F.R. § 24.6
(1993); Cooper v. Bechtel Power Corp., Case No. 88-ERA-2,
Sec. Order, Sept. 29, 1989, slip op. at 1 n.1; see
also Brock v. Tennessee Valley Authority, Case No.
90-ERA-19, Sec. Order, June 28, 1993, slip op. at 2; Avery v.
B & W Commercial Nuclear Fuel Plant, Case No. 91-ERA-8, Sec.
Order, Oct. 21, 1991, slip op. at 3.

[2]   I presume that the ALJ was referring to Respondent's May 18
letter, rather than, as he stated, Respondent's May 17 letter.