DATE:  March 21, 1994
CASE NO. 93-CAA-10

IN THE MATTER OF


KEITH CARTER,

          COMPLAINANT,

     v.

LOS ALAMOS NATIONAL LABORATORY,

     and

UNIVERSITY OF CALIFORNIA,

          RESPONDENTS.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL ORDER OF DISMISSAL

     This case arises under the employee protection provision of
the Clean Air Act (CAA or the Act), 42 U.S.C. § 7622 (1988),
and is before me pursuant to the Recommended Order of Dismissal
issued by the Administrative Law Judge (ALJ) on October 20, 1993. 
The ALJ's order dismisses the case without prejudice on the basis
of Complainant's written Notice of Withdrawal Without Prejudice,
filed on October 5, 1993.  Under the regulations which implement
the CAA, the ALJ's order is now before me for review.  29 C.F.R.
§ 24.6 (1992).  
     Complainant grounds his October 5th notice upon the
Secretary's ruling in Mosbaugh v. Georgia Power Co., Case
No. 90-ERA-58, Sec. Dec. and Order, Sept. 23, 1992 ("[t]he effect of
Complainant's notice of voluntary dismissal without prejudice was
to render the proceedings a nullity and leave the parties as if
the action had never been brought."), slip op. at 6, n.4.  
     I have reviewed the record in this matter.  It is clear that
the Respondent did not file either an answer to the complaint or 
[PAGE 2]
its functional equivalent, a motion for summary judgment, prior
to Complainant's notice of withdrawal.  Therefore, the ALJ's
analysis and his recommended ruling that the case should be
dismissed under Rule 41(a)(1)(i) of the Federal Rules of Civil
Procedure [1]  is correct and I adopt it.
     Accordingly, the complaint IS DISMISSED without prejudice.
     SO ORDERED.  


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   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 . .
. ."  See, Nolder v. Kaiser Engineers, Inc., 84-
ERA-5, Sec. Order of Remand, June 28, 1985, slip op. at 7-8,
which 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.