O'Leary v. Entergy Corp., 2000-ERA-18 (ALJ Oct. 25, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date: October 25, 2000

Case No.: 2000-ERA-18

In the Matter of

DANIEL J. O'LEARY, Jr.
    Complainant

   v.

ENTERGY CORPORATION
    Respondent

APPEARANCES

Robert L. Ciociola, Esq.
Somerville, MA
   For the Complainant

Keith B. Muntyan, Esq.
Boston, Massachusetts
   For the Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This case arises from a complaint filed under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851, and the implementing regulations found at 29 C.F.R. Part 24. The case was called for hearing on June 22, 2000 in Boston, Massachusetts at which time Robert L. Ciociola, Complainant's counsel, moved for a postponement in order to await the results of an investigation by the Nuclear Regulatory Commission (hereinafter NRC) involving similar facts as alleged in the complaint in this case. Keith B. Muntyan, counsel for Respondent, voiced no objection to the postponement request and it was granted.

   Mr. Ciociola represented that in the event the NRC investigation results in a finding in favor of Respondent, that the Complainant would withdraw his complaint in this matter. The NRC investigation has now been completed and that agency has also concluded that the Respondent has committed no violation. Thus, the Complainant now desires to withdraw his complaint and close this file.

   The 29 C.F.R. Part 24 regulations providing procedures for the handling of an Energy Reorganization Act complaint provide no guidance as to the processing of a withdrawal request under these circumstances. The same is true with respect to the Rules of Practice and Procedure for Administrative Hearings before Judges in this office. 29 C.F.R. Part 18. Therefore, the Rules of Civil Procedure for the District Courts of the United States are to be applied. 29 C.F.R. § 18.1. Federal Rule Civil Procedure 41(a)(1) provides for a voluntary dismissal based upon the filing of a Stipulation of Dismissal signed by all parties who have appeared in the action. That Rule is applicable here. Kleinman v. Florida Power and Light Company, Case No. 91- ERA-00050, Sec. Final Order of Dismissal, Feb. 21, 1992, slip op. at 2.

   On October 23, 2000, counsel submitted a Notice of Voluntary Dismissal with Prejudice. The Notice is signed by Mr. Ciociola and Mr. Muntyan. Counsel request that this case be dismissed with prejudice and each party is to bear his own costs. Rule 41(a)(1)(ii) provides for dismissal of an action by filing a Stipulation of Dismissal and that the dismissal may be without prejudice.

   The Notice of Voluntary Dismissal with Prejudice filed by the parties pursuant to authority conferred by Rule 41(a)(1)(ii) complies in all respects with the federal rule.

   Based upon the parties' request, IT IS RECOMMENDED that the voluntary dismissal request be accepted. The request for dismissal involves no settlement agreement between the parties.

      Rudolf L. Jansen
   Administrative Law Judge

NOTICE: This Recommended Order of Dismissal will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9 as amended by 63 Fed. Reg. 6614 (1998).