Robarge v. Commonwealth Edison, 2000- ERA-32 (ALJ Aug. 23, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

DATE ISSUED: August 23, 2000

CASE NO: 2000-ERA-32

In the Matter of

RANDY ROBARGE,
    Complainant,

    v.

COMMONWEALTH EDISON,
    Respondent.

   This proceeding arises under Section 211 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851. Mr. Robarge filed a complaint of discrimination under that section by letter dated May 16, 2000. The U.S. Department of Labor, Occupational Safety and Health Administration, investigated the complaint and found that it had no merit. This July 21, 2000 finding by the Department of Labor was appealed on July 28, 2000 through complainant's attorney, Stephen M. Kohn.

   On August 3, 2000, complainant filed a notice of withdrawal without prejudice. Mr. Robarge indicates, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, that he intends to request a voluntary dismissal of this proceeding without prejudice to refile his complaint or another complaint in a federal or state court. His counsel notes in the notice that case law supports the right of Mr. Robarge to withdraw a complaint without prejudice in this matter because, Commonwealth Edison has not filed an answer or motion for summary judgment.

   Complainant is correct that FED. R. CIV. P. 41(a)(1) provides for a voluntary "dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment." That section goes on to provide that "the dismissal is without prejudice." That section of the federal rules is applicable because the regulations at 29 C.F.R. Part 24, as well as the Rules of Practice and Procedure for Administrative Before the Office of Administrative Law Judges [29 C.F.R. Part 18], contain no provision for the withdrawal of a complaint.

   IT IS HEREBY RECOMMENDED that complainant's notice of withdrawal without prejudice for the complaint involved in this proceeding be approved and that this case be dismissed.

       DONALD W. MOSSER
       Administrative Law Judge

NOTICE: This Recommended Order of Dismissal 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, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order of Dismissal, 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).