DATE:   August 4, 1995
CASE NO. 88-ERA-19


IN THE MATTER OF

W. ALLAN YOUNG,

          COMPLAINANT,

     v.

CBI SERVICES, INC.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL ORDER OF DISMISSAL
     Before me for review is a Recommended Order of Dismissal 
(R. O. D.) issued by the Administrative Law Judge (ALJ) in the
above-captioned case arising under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988).  See 29 C.F.R. §
24.6(a) (1994).
     After a lengthy continuance before the Office of
Administrative Law Judges, Complainant filed a Notice of
Voluntary Dismissal.  Applying Rule 41(a)(2) of the Federal Rules
of Civil Procedure, the ALJ recommends that the complaint be
dismissed without prejudice.  I agree, but for different reasons.
     It is well settled that voluntary dismissals of ERA
complaints are governed by Rule 41(a).  See Young v. Florida
Power & Light Co., Case No. 93-ERA-30, Sec. Ord., Jul. 13,
1995, slip op. at 2; Hendrix v. Duke Power Co., Case No.
90-ERA-32, Sec. Ord., Sept. 25, 1990, slip op. at 2.  If the
request for dismissal is not covered by Rule 41(a)(1), then
dismissal pursuant to Rule 41(a)(2) may be appropriate. 
Young, slip op. at 3; Nolder v. Raymond Kaiser Eng'rs,
Inc., Case No. 84-ERA-5, Sec. Dec., June 28, 1985, slip op.
at 7-8, appeal dismissed, No. 85-7472 (9th Cir. 1985).

[PAGE 2]
     The ALJ relied on Rule 41(a)(2) after finding that
Respondent had filed several documents that were the functional
equivalent of an "answer" for purposes of Rule 41(a)(1)(i).[1]   
R. O. and D. at 3.  Although I agree that Rule 41(a)(2) applies,
it is unnecessary to consider the ALJ's assessment of
Respondent's documents.  In Nolder the Secretary held that
a respondent's request for a hearing following the adverse
preliminary determination of the Wage and Hour Administrator
constitutes an "answer" sufficient to preclude dismissal pursuant
to Rule 41(a)(1)(i).  The record in this case shows that
Respondent requested the hearing, and therefore, Rule 41(a)(2)
applies.  Since Respondent raises no objections, either before
the ALJ or the Secretary, and no reason for denying Complainant's
request for dismissal is apparent from the record, I deemdismissal without prejudice to be proper.[2]   See Holmes v.
Texas Utilities, Case No. 93-ERA-10, Sec. Dec., June 28,
1993.
     Accordingly, this case IS DISMISSED without prejudice. 
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor


Washington, D.C.




[ENDNOTES]
           
[1] 
  In pertinent part, Rule 41(a)(1)(i) states:

     [A]n action may be dismissed by the plaintiff without
     order of court (i) 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 . . . .

[2] 
  The parties were afforded the opportunity to file briefs in
response to the ALJ's recommendation, however, neither responded.