Date: November 10, 1997

Case No.: 97-CAA-17

File No.: 1-0120-97-803

In the Matter of:

Ram Seetharaman
    Complainant

    v.

Massachusetts Water
Resources Authority
    Respondent

   This case arises under the Clean Air Act, 42 U.S.C. § 7622 (1994) ("CAA"), and implementing regulation at 29 C.F.R. Part 24. By Order dated August 7, 1997, this matter was scheduled for a hearing for November 24, 1997. On November 6, 1997, this Judge Postponed said hearing, sine die.

   On November 6, 1997, Complainant filed a Notice to Withdraw his appeal in this case. On November 10, 1997, Complainant's counsel filed an amended Notice to Withdraw, indicating that there has been no settlement of his client's dispute with the MWRA.

   As an initial matter, neither the CAA nor the regulations promulgated at 29 C.F.R. Part 24 prohibit the withdrawal of a complaint prior to a formal hearing on the merits. Further, voluntary dismissals are not provided for in the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. 29 C.F.R. Part 18. Accordingly, this Court applies Rule 41(a) of the Federal Rules of Civil Procedure when a complainant in a case arising under Part 24 requests a voluntary dismissal. Spears v. Envirite Corp., 95-CAA-17 (Sec'y Apr. 15, 1996); Carter v. Los Alamos Nat. Laboratory, 93-CAA-10 (Sec'y Mar. 21, 1994); Lorenz v. Law Engineering, Inc., 90-CAA-1 (Sec'y March 12, 1991); Olsovsky v. Shell Western E & P, Inc., 96-CAA-1 (ARB Oct. 23, 1996). Under Rule 41(a)(1)(i), a voluntary dismissal without prejudice is available to a complainant if an answer or a motion for summary judgment has not yet been filed by the respondent.

   In this case, Respondent has filed neither an answer nor a motion for summary judgment.¹ Accordingly, it is RECOMMENDED to the Administrative Review Board that Ram Seetharaman's request to withdraw his claim be granted and that this claim be dismissed without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(i).

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts

DWD:pte

¹ Rule 41(a)(1)(i) provides for dismissal "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 . . . ." The Secretary of Labor has held that the filing of a request of hearing by the employer is the equivalent of an answer for purposes of Rule 41. Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1986). In the present case, however, Complainant filed the request for hearing.