Hubbard v. Environmental Protection Agency, 1999-CAA-20 (ALJ Aug. 12, 1999)

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Hubbard v. Environmental Protection Agency, 1999-CAA-20 (ALJ Aug. 12, 1999)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
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DATE: August 12, 1999
CASE NO.: 1999 CAA 20

In the Matter of

MICHAEL E. HUBBARD
Complaint

EPA
Respondent

Before: Richard T. Stansell-Gamm
Administrative Law Judge

RECOMMENDED DECISION AND ORDER APPROVING
VOLUNTARY DISMISSAL WITHOUT PREJUDICE

On July 27, 1999, the Occupational Safety and Health Administration ("OSHA") notified Mr. Michael Hubbard, the complainant, that its investigation of alleged violations of the employee protection provisions of the Clean Air Act, 42 U.S.C. 7622; the Safe Drinking Water Act, 42 U.S.C. 300j-9; the Solid Waste Disposal Act, 42 U.S.C. 697; the Water Pollution Control Act, 33 U.S.C. 1367; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610; and the Toxic Substances Control Act, 15 U.S.C. 2622, failed to substantiate discrimination as a factor in the actions contained in his complaints.

In response, by facsimile, on July 29, 1999, Mr. Hubbard, through counsel, appealed the adverse OSHA determination and requested a hearing with the Office of Administrative Law Judges. On July 30, 1999, I received the case for adjudication. Prior to setting a hearing date, I received on August 5, 1999, another facsimile from Mr. Hubbard's counsel requesting dismissal of Mr. Hubbard's complaint without prejudice.¹ An attached service sheet certified a copy of the notice had been sent to the respondent's general counsel by regular mail on August 5, 1999.

[Page 2]

A voluntary dismissal of a complaint under the Clean Air Act is governed by Rule 41 of the Federal Rules of Civil Procedure. Rule 41 applies because there are no procedures for voluntary dismissals in the Act, the implementing regulations, 29 C.F.R.Part 24, or this Office's general rules of practice and procedure, 29 C.F.R. Part 18. See e.g., Consolidated EdisonCo. of New York, Inc. 88- CAA-3 (Sec'y September 29,1989). Pursuant to Rule 41 (a)(1), a complainant is entitled to a unilateral, unconditional dismissal without prejudice when the respondent has not filed the functional equivalent of an answer to the complaint or a motion for summary judgment. Reece v. Detroit Edison, 92-ERA- 1(Sec'y Apr. 9, 1992).

To date, I have not received from the respondent an answer, motion for summary judgment, or reply to the complainant's August 5, 1999 notice. Accordingly, this case is DISMISSED without prejudice pursuant to Rule 41(a)(1).

SO ORDERED:

RICHARD T. STANSELL- GAMM
Administrative Law Judge

Washington, DC

NOTICE OF REVIEW: This Recommended Decision and 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 Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and 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).

[ENDNOTES]

¹I received the original of this document by regular mail on August 9, 1999.