DATE: MAY 05 1992

CASE NO.: 92-WPC-00003

In the Matter of

    JOHN A. GILL,
       Complainant,

    v.

    DEPARTMENT OF THE AIR FORCE,
       Respondent.

    This case arises under the employee protection ("whistleblower") provision of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the "Act"), and the implementing regulations at 29 C.F.R. Part 24. Complainant alleged that Respondent discharged him for engaging in activities protected under the Act. The Wage and Hour Division, United States Department of Labor, denied the complaint. Complainant appealed the denial, and the case was referred to the undersigned for hearing. In a letter dated April 28, 1992, Complainant informed the undersigned that he was withdrawing his appeal. Complainant explained that the Air Force had offered him another job, and that he was separately pursuing the matter of allegedly improper low performance appraisals through the Merit Systems Protection Board.

    Rule 41 (a) of the Federal Rules of Civil Procedure governs voluntary dismissals in this situation. Farinholt v. Virginia Power, Case No. 89-ERA-27, Final Order of Dismissal (December 13, 1989), 3 Decisions of the Office of Administrative Law Judges and Office of Administrative Appeals No. 6 at 49 (November-December 1989). Rule 41(a) (1) (i) provides that a complainant may dismiss an action "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. . . . Unless otherwise stated in the notice of dismissal . . . the dismissal is without prejudice . . . ." It is found that Complainant's letter is a appropriate notice of dismissal under Rule 41, and that Respondent has not filed an answer or a motion for summary judgment.

    GOOD CAUSE APPEARING THEREFOR, it is recommended that this matter be DISMISSED WITHOUT PREJUDICE.

    Entered on this 5th day of May 1992, at Anaheim, California.

       SAMUEL J. SMITH
       Administrative Law Judge