DATE: March 30, 1987

CASE NO.: 85-SWD-4

DONALD W. CHASE
    Complainant

    v.

BUNCOMBE COUNTY, NC
DEPARTMENT OF COMMUNITY
DEVELOPMENT
    Respondent

   Complainant originally filed for relief under the Solid Waste Disposal Act [hereinafter referred to as the Act], 42 U.S.C. § 6971, following the termination of his employment by Respondent in 10/84. The parties executed a settlement agreement on 12/10/84 and an Order Approving Settlement Agreement was issued by Administrative Law Judge John C. Bradley on 12/28/84.

   Complainant filed a second complaint under the Act on 7/9/85 after Respondent refused to rehire him. The Wage and Hour Division of the Employment Standards Administration notified Complainant by letter dated 7/15/85 that it could take no action in the matter because his first complaint was dismissed with prejudice upon settlement and the Act provides no basis of complaint for an applicant for employment. Complainant appealed the ruling and the cam was referred to the Office of Administrative Law Judges on 7/22/85.

   A Pre-Hearing Order and Notice of Hearing was issued on 7/30/85, scheduling the matter to be heard on 8/22/85 in Asheville, NC. Respondent filed a Motion on 8/12/85 asking that the above complaint be dismissed based on lack of jurisdiction and failure to state a claim upon which relief may be granted. An Order to Show Cause why the complaint should not be dismissed was issued on 8/16/85. Complainant's response to the Pre-Hearing Order was received by this office subsequent to the issuance of the Order to Show Cause. Complainant requested by telephone on 8/18/85 that his reply to the Pre- Hearing Order also be considered his response to the Order to Show Cause. It

was concluded that Complainant failed to show why his complaint should not be dismissed for lack of jurisdiction or for failure to state a claim upon which relief could be granted, and a Recommended Order of Dismissal was issued on 8/30/85. The recommended dismissal was then appealed to the Secretary of labor.

   On 11/3/86, the Secretary of Labor issued a Decision and Order of finding that jurisdiction under the Act did exist and that it was not beyond doubt that Claimant would be unable to prove his claim. He remanded the case to the Administrative Law Judge for a hearing. Respondent filed a Motion to Dismiss dated 2/12/87, requesting that the case be dismissed on the grounds that the Decision and Order of Remand issued by the Secretary of Labor was beyond the scope of his authority because it was issued after 90 days from the date of the original complaint (See 29 C.F.R. 24.6(b)). Claimant did not respond, and the Motion was denied on 2/18/87.

   A hearing in this case was held in Asheville, NC, on 2/24/87. At that time, counsel for Claimant withdrew and Claimant stated that he, for personal reasons, wished to withdraw his Complaint. Accordingly, Claimant's request will be granted.

   IT IS ORDERED that the captioned claim be DISMISSED WITH PREJUDICE.

       JOHN C. BRADLEY
       Administrative Law Judge

JCB/RBL/lkw