Office of Administrative Law Judges 525 Vine Street, Suite
900 Cincinnati, OH 45202
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DATE ISSUED: August 23, 2000
CASE NO: 2000-ERA-32
In the Matter of
RANDY ROBARGE,
Complainant,
v.
COMMONWEALTH EDISON,
Respondent.
RECOMMENDED ORDER OF DISMISSAL
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.
[Page 2]
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).