DATE: September 29, 1989
CASE NO. 84-ERA-27

IN THE MATTER OF

HOWARD S. NUNN,
    COMPLAINANT,

    v.

DUKE POWER COMPANY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is the [Recommended]¹ Order of Dismissal, issued by Administrative Law Judge (ALJ) David A. Clarke, Jr., in the above-captioned case, which arises under Section 210 of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The basis of the ALJ's dismissal was the failure of both parties to respond to his Order to Show Cause, issued May 6, 1988, in which he directed that "cause be shown why this case should not be dismissed with prejudice." Order to Show Cause at 2.

    Complainant sought a voluntary dismissal of his complaint. As was held in Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op. at 6-7, voluntary dismissals are subject to Rule 41 of the Federal Rules of Civil Procedure. Although Nolder did not decide the issue of whether Section 24.5(e) (4) (ii) applied to voluntary dismissals,² id. Nolder made clear that, where voluntary dismissals are sought, the ALJs are to apply Rule 41. Accordingly, the ALJ erred in following the procedure specified in Section 24.5 (e) (4)(ii) rather than applying Rule 41 of the Federal Rules

    In the interest of judicial economy, however, I do not remand the case to the ALJ for reconsideration under Rule 41 and for issuance of a recommended decision as to whether this case should be dismissed. Rather, based on the record, I find that dismissal of Complainant Nunn's complaint is appropriate under Rule 41(a) (1) (ii) of the Federal Rules. Rule 41(a) (1) (ii) provides for dismissal of an action "by filing a stipulation of dismissal signed by all the parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. . . . " Respondent, by its statement that it does not oppose dismissal with prejudice and that it seeks no costs or fees, stipulates to a dismissal of this case with prejudice. Accordingly, pursuant to Rule 41(a)(1)(ii) the complaint in this case is herewith DISMISSED WITH PREJUDICE.

    SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

¹ Under section 24.6 of 29 C.F.R., the regulation implementing the ERA, an ALJ is authorized to issue only a recommended decision, which must be reviewed by the Secretary before it becomes final.

² Subparagraph (ii) of section 24.5(el (4) does not apply to voluntary dismissals. Paragraph (4) of 29 C.F.R. SS 24.5(e) is labeled Dismissal for Cause. Subparagraph (i) sets forth two causes for which a claim may be dismissed while subparagraph (ii) prescribes a procedure for dismissals. Since subparagraph (ii) is a part of the paragraph entitled Dismissal for Cause, a fair reading of the regulation compels the conclusion that subparagraph (ii) applies only to dismissals for cause. Had the regulation intended that subparagraph (ii) apply to other than dismissals for cause, this subparagraph would have been structured as a separate paragraph or separate section. Furthermore, the procedure provided in subparagraph (ii) would have been designed to be more appropriate for voluntary dismissal requests. In situations such as the one presented here - where Respondent has indicated that it does not oppose Complainant's dismissal request and that it seeks no conditions - an order to show cause is not called for.