McKenna v. Lockheed Martin Idaho Technologies Co., 2000-ERA-25 (ALJ Aug. 22, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

Date: August 22, 2000
Case No.: 2000-ERA-0025

In the Matter of

TIMOTHY MCKENNA
    Complainant

    v.

LOCKHEED MARTIN IDAHO
TECHNOLOGIES COMPANY (LMITCO)
    Respondent

    and

BECHTEL BWXT IDAHO, LLC (BBWI)
    Respondent

Appearances:

    A. Alene Anderson, Esq.
    Project on Liberty & the Workplace
       For Complainant

    Frederick T. Rasmussen, Esq.
    Stokes Lawrence, P.S.
       For Respondents

Before:
    RICHARD E. HUDDLESTON
    Administrative Law Judge

   The above action arises from a complaint filed under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851, and the implementing regulations at 29 C.F.R. Part 24. A formal hearing was scheduled for September 12-14, 2000. By motion dated August 11, 2000, Complainant has requested leave to withdraw his appeal and dismiss his complaint before the Department of Labor against Lockheed Martin Idaho Technologies Company (LMITCO) and Bechtel BWXT Idaho, LLC (BBWI). Claimant's motion indicates that it is his intention to pursue similar claims based on the same set of material facts in state court. No response to the motion has been filed.

   Voluntary dismissals of ERA complaints are covered by Rule 41 of the Federal Rules of Civil Procedure.¹ Mark E. Kleinman v. Florida Power and Light Company, Case No. 91-ERA-00050; Sec. Final Order of Dismissal, Feb. 21, 1992, slip op. at 2. Respondent's failure to respond to the motion within 10 days² together with Complainant's motion to withdraw his appeal and dismiss his complaint, are deemed sufficient to constitute a stipulation of dismissal by the parties satisfying the requirements of Rule 41(a)(1)(ii). Id. Accordingly, pursuant to Rule 41(a)(1)(ii), it is recommended that the complaint in this case be dismissed without prejudice.

      Richard E. Huddleston
      Administrative Law Judge

NOTICE:

This recommended Order 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 Rew\view Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 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. 6814 (1998).

¹ Rule 41(a)(1)(ii) provides for dismissal of an action "by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice . . . ."

² Section 18.6(b) of the Rules of Practice and Procedure before the Office of Administrative Law Judges provides that "Within ten (10) days after a motion is served ... any party to the proceeding may file an answer in support or in opposition to the motion...."