Hueski v. United Parcel Service, 2003-AIR-46 (ALJ Apr. 13, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue Date: 13 April 2004

CASE No. 2003-AIR-46

WILLIAM HUESKI,
    Complainant,

    v.

UNITED PARCEL SERVICE,
    Respondent.

   This proceeding arises under the employee protection provisions of the Wendell H. Ford Aviation and Investment Reform Act for the 21st Century ("AIR21"), 49 U.S.C. § 42121. The regulations that govern this proceeding are found at 29 C.F.R. Parts 18 and 1979.

   Through a notice of hearing dated February 24, 2004, a formal hearing was scheduled to commence on May 18, 2004. On March 30, 2004, counsel for Complainant filed a motion to dismiss. The motion stated that Complainant "moves for his appeal to be dismissed." Under 29 C.F.R. Part 18, which contains the rules of practice and procedure for administrative hearings before the Office of the Administrative Law Judge, there is not a provision that governs the voluntary dismissal of a complaint. However, 29 C.F.R. § 18.29(a)(8) authorizes an administrative law judge to take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts. An action may be dismissed at the instance of the complaining party by order of the court upon such conditions as the court deems proper. Fed.R.Civ.P. 41(a)(2). If the Respondent has filed a counterclaim, the action shall not be dismissed against the Respondent's objection unless the counterclaim can remain pending. Id. Unless otherwise specified, a voluntary dismissal by order of the court is without prejudice. Id.

   Counsel for Complainant did not provide the undersigned with a memorandum in support of his motion to dismiss and the motion to dismiss did not indicate Complainant's reason for seeking dismissal of his complaint. Neither a counterclaim nor a memorandum in opposition to the motion to dismiss have been filed by the Respondent. However, through the prehearing telephone conferences conducted with Complainant and counsel for Respondent, Complainant had informed the undersigned of his reluctance to proceed with a formal hearing. Instead, Complainant sought resolve the substance of his Complaint by meeting with a representative of Respondent. Based upon the representations of Complainant during two prehearing conference calls that he wished to have the complaint be dismissed, and the fact that Respondent has filed neither a counterclaim nor a statement in opposition to the motion, the undersigned deems it proper to grant Complainant's motion to dismiss. Therefore, it is recommended that,

   IT BE ORDERED that William Hueske's complaint be DISMISSED without prejudice.

      THOMAS F. PHALEN, JR.
      Administrative Law Judge

   This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110 (2002), unless a petition for review is timely filed with the Administrative Review Board ("Board"), US Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington DC 20210. Any party desiring to seek review, including judicial review of a decision of the administrative law judge must file a petition for review with the Board, which has been delegated authority to act for the Secretary and issue final decisions under 29 C.F.R. Part 1979. To be effective, a petition must be received by the Board within 15 days of the date of the decision of the administrative law judge. The petition must be served on all parties and on the Chief Administrative Law Judge. If a timely petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Board issues an order adopting the decision, except that a preliminary order of reinstatement shall be effective while review is conducted by the Board. The Board will specify the terms under which briefs are to be filed. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a-b).