Date: May 2, 1995

Case No. 95-ERA-25

In the Matter of:

Anthony J. Ross
     Complainant

v.

Northeast Nuclear Energy Company,
     Respondent

Before:   DAVID W. DI NARDI
          Administrative Law Judge

                RECOMMENDED ORDER OF DISMISSAL

     This matter arises under the Energy Reorganization Act of
1974 (herein "ERA") , 42 U.S. C. §5851, and the implementing
regulations issued thereunder at 29 C.F.R. Part 24.

     Anthony J. Ross (herein "Complainant") filed a complaint on
January 18, 1995 alleging discrimination and retaliation by
Northeast Nuclear Energy Company (herein "Respondent") in
violation of so-called "whistleblower protection' provisions of
the ERA.  The complaint was dismissed by Kenneth W. Jackson,
Assistant District Director, Wage and Hour Division, U.S.
Department of Labor on February 10, 1995.  The dismissal notice
stated that Complainant had failed to make a prima facie
showing that he had suffered an unfavorable personnel action as a
result of having engaged in protected activity.  Complainant then
filed an appeal of said dismissal, and this matter was forwarded
to the Office of Administrative Law Judges as Case No. 95-ERA-25,
and was assigned to the undersigned Administrative Law Judge.

     On March 13, 1995, an ORDER TO SHOW CAUSE was issued
by the undersigned, giving Complainant twenty (20) days to show
cause why the complaint should not be dismissed based upon the
failure to show that Complainant had not been the subject of any
adverse personnel action, or had otherwise been discriminated
against by Respondent.  Counsel for Respondent was also provided
the opportunity to file a brief and proposed findings of fact and
conclusions of law in support of the position that the complaint
should be dismissed.  On March 19, 1995, by facsimile 
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transmission, Complainant served upon this court a letter stating
that, because of his misunderstanding of Section 211 of the ERA,
he was withdrawing his complaint in the instant matter.  As of
that time, and to date, no reply had or has been received from
Respondent, either in support of the initial ORDER TO SHOW
CAUSE, or in opposition to Complainant's withdrawal request.

     On the basis of the totality of the record, this
Administrative Law Judge has determined that dismissal of this
complaint is appropriate.  The only issues remaining are a
determination of the proper procedures for such dismissal, and
whether these procedures have been followed by the parties.  The
regulations, at 29 C.F.R. §24.5(e)(4), discuss dismissal of
ERA cases for cause.  This case does not fall within the
provisions of the cited section because, inter alia,
Complainant, the prosecuting party, has requested dismissal of
the action on his own motion, and Respondent has interposed no
objection to the withdrawal.  The dismissals contemplated in the
cited regulations are those granted in spite of some party being
adverse to such an action.

     Voluntary dismissals of ERA complaints are governed by Rule
41 of the Federal Rules of Civil Procedure.  See Nolder v.
Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Decision,
June 28, 1985, slip op.  At 6-8.  In pertinent part, Rule 41
states:

          [A]n action may be dismissed by the
          [Complainant]...(i) by filing a notice of
          dismissal at any time before service by the
          adverse party of an answer...Unless otherwise
          stated in the notice of dismissal..., the
          dismissal is without prejudice.

Fed.  R. Civ.  P. 41(a)(1)(i).  Because there has been no answer
or objection filed by Respondent in the case at hand,
Complainant's notice of withdrawal requires no further action on
the part of either of the parties.

     Accordingly, it is RECOMMENDED that this matter be DISMISSED
without prejudice pursuant to Rule 41(a)(1)(i).

DAVID W. DI NARDI
Administrative Law Judge