DATE:  March 21, 1994
CASE NO. 89-ERA-2


IN THE MATTER OF

SHIRLEY BROWN,

               COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

               RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            ORDER OF DISMISSAL

     Before me for review is the Recommended Order of Dismissal
(R.O.D.), issued on November 28, 1988, by the Administrative Law
Judge (ALJ) in this case which arises under Section 210 of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. 
§ 5851 (1988).  The basis for the ALJ's order is a written
request by Complainant Brown to withdraw her complaint. 
See Letter from Complainant's counsel to Judge Von Brand,
dated November 21, 1988.
     Section 5851(b)(2)(A) of the ERA provides that "the
Secretary shall, unless the proceeding on the complaint is
terminated by the Secretary on the basis of a settlement entered
into by the Secretary and the person alleged to have committed
such violation, issue an order either providing the relief
prescribed by subparagraph (B) or denying the complaint."
     The ALJ in this case failed to cite any authority for his
recommendation of dismissal though he notes that he is acting
pursuant to Complainant's November 21 letter, indicating her
desire to have her complaint dismissed.  Complainant's effort to
voluntarily withdraw her complaint was expressly, though
qualifiedly, approved by the Respondent.  See Respondent's

[PAGE 2]
letters from its Assistant General Counsel to:  1) the ALJ, dated
November 29, 1988, and 2) the Director of the Office of
Administrative Appeals, dated December 7, 1988. [1]   Both the
regulations which implement the ERA and the Rules of Practice and
Procedure for Administrative Law Judges, 29 C.F.R. Part 18
(1991), are silent regarding voluntary dismissals of this nature. 
Thus, it has been consistently held that Rule 41(a) of the
Federal Rules of Civil Procedure is applicable to the voluntary
dismissal of ERA complaints.  Stites, supra, slip
op. at 2 (citing Nolder v. Kaiser Engineers, Inc., Case
No. 84-ERA-5, Sec. Final Dec. and Order, June 28, 1985, slip op.
at 6-7). [2] 
     Respondent's written response that it does not object to
Complainant's voluntary dismissal together with Complainant's
notice of voluntary dismissal, may be deemed to constitute a
stipulation of dismissal by the parties satisfying the
requirements of Rule 41(a)(1)(ii).  Mark E. Kleinman v.
Florida Power and Light Company, Case No. 91-ERA-00050, Sec.
Final Order of Dismissal, Feb. 21, 1992, slip op. at 2 (and cases
cited therein).
     Accordingly, pursuant to Rule 41(a)(1)(ii) and as clarified
herein, the complaint in this case is DISMISSED WITHOUT
PREJUDICE.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.







[ENDNOTES]
           
[1]   The ALJ's dismissal order contains language concerning
Complainant's possible pursuit of her "claims in other forums." 
Respondent objects to the inclusion of this language in the
dismissal order contending that dismissal at this juncture stands
as a "substantive bar to the pursuit of such ERA claims in any
other forum. . . ."  See Respondent's letter of December
7, 1988.  My authority over ERA complaints is derived directly
from the Act, 42 U.S.C. § 5851(b)(1), and my jurisdiction
over this Complainant and her complaint only extends to actions
filed under the ERA.  While I am without authority to make
rulings which might substantively affect Complainant's litigation
rights in another forum, I have previously held that a dismissal
without prejudice, in combination with the expiration of the
statutory filing limitations period, operates only as a bar to
the filing of another complaint under Section 210.  Stites v.
Houston Lighting & Power Company, Case No. 87-ERA-41, Sec.
Dismissal Order,Sept. 29, 1989, slip op. at 3.  As a factual
matter, Complainant's November 21 dismissal notice appears to
recognize this distinction -- it merely states that Complainant
will pursue her "claims" in other forums.  Clearly the same set
of operative facts which give rise to a Section 210 complaint
could serve as the basis for a complaint under another statute or
common law theory of redress.

[2]   Rule 41(a)(1)(ii) provides for dismissal of an action "by
filing a stipulation of dismissal signed by all parties who have
appeared in the action.  Unless otherwise stated in the notice 
of dismissal or stipulation, the dismissal is without 
prejudice. . . ."