Hurley v. Fluor Daniel Fernald, 1999-ERA-10 (ALJ Apr. 21, 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: April 21, 2000

Case No.: 1999-ERA-0010

STEPHEN MICHAEL HURLEY,
    Complainant

    v.

FLUOR DANIEL FERNALD,
    Respondent

BEFORE: ROBERT L. HILLYARD
    Administrative Law Judge

   This case arises under the provisions of Section 211 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851. The case was initiated as the result of an appeal taken by the Complainant from an adverse ruling made by the U.S. Department of Labor. A formal hearing was scheduled to commence on February 8, 2000, at Cincinnati, Ohio.

   On February 4, 2000, John T. Hurley, attorney for the Complainant, filed, by facsimile, a Motion For Dismissal in which he moved for dismissal of the Complaint and acknowledged that the dismissal would be with prejudice. Robert M. Lamb, attorney for the Respondent, on February 4, 2000, filed, by facsimile, a letter stating that the Respondent consents to a dismissal with prejudice and asks that the dismissal be entered. The hearing scheduled to commence on February 8, 2000 was canceled.

   The regulations at 29 C.F.R. Part 24 provide the procedures for the handling of a complaint brought under the Energy Reorganization Act. These regulations provide no guidance for 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. Twenty-nine C.F.R. Part 18. Therefore, the Rules of Civil Procedure for the District Courts of the United States are to be applied. Twenty-nine C.F.R. § 18.1. Federal Rule of Civil Procedure 41(a)(1) provides for a voluntary dismissal based upon the Stipulation of Dismissal signed by all parties who have appeared in the action. The dismissal under these circumstances is without prejudice unless otherwise stated in the notice of dismissal. The Stipulation of Voluntary Dismissal

filed by the parties in this case is in compliance with Rule 41(a)(1)(ii) and provides that the dismissal will be with prejudice.

   Upon consideration of the Stipulation of Dismissal signed by the attorneys for all parties, it is hereby,

   ORDERED that the Stipulation for Dismissal is accepted and this case is hereby DISMISSED WITH PREJUDICE.

      ROBERT L. HILLYARD
      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, 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. 6614 (1998).