DATE: September 29, 1989
CASE NO. 88-CAA-4

IN THE MATTER OF

FRED PASSANISI,
    COMPLAINANT,

    v.

CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is the [Recommended] ¹ order Dismissing claim issued on May 25, 1988, by Administrative Law Judge (ALJ) Aaron Silverman in the above-captioned case, which

    The ALJ cites no authority for the dismissal without prejudice. The regulations implementing the Clean Air Act provide only for dismissals for cause, see 29 C.F.R. § 24.5(e)(4), and do not provide for voluntary dismissals of complaints. Nor are voluntary dismissals 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, which are applicable to adjudicative proceedings before the ALJs of the Department of Labor in any situation not provided for or controlled by rules of special application, such as Part 24. 29 C.F.R. § 18.1(a). Accordingly, where a complainant in a case arising under Part 24 has sought a voluntary dismissal, Rule 41(a) of the Rules of Civil Procedure for the United States District Courts has been applied. See Nolder v. Kaiser Engineers Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op. at 6-8. Since Respondent has filed neither an answer or a motion for summary judgment, Rule 41(a)(1)(i) is the applicable rule.²

    Nevertheless, in the interest of judicial economy, I do not remand this case to the ALJ. Accordingly, this case is dismissed pursuant to Rule 41(a)(1)(i).

    SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

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

² Rule 41 (a) (1) (i) provides for dismissal of 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 . . . " Nolder, slip op. at 8, held that the filing of a request for hearing by the employer is the equivalent of an answer for purposes of Rule 41. Here, Complainant filed the request for a hearing.