Case No. 86-STA-11

In the Matter of

Brian Hester,
    Complainant

    v.

Blue Bell Services,
    Respondent

    On April 16, 1986, Administrative Law Judge (ALJ) John C. Bradley issued an Order of Dismissal in the above-captioned case, which arises under the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982). This order provides "that the above case be DISMISSED WITHOUT PREJUDICE, subject to being reopened and consolidated with Claimant's second claim for appropriate action at a subsequent time."

    Upon review of the record of this case, I conclude that I cannot accept the recommendation of the ALJ, and I remand this case to him for appropriate action in accordance with this Order of Remand.

    The ALJ's order was inappropriate in light of the record in this case. Complainant had filed a complaint alleging that he was suspended by Respondent, his employer, in violation of This complaint was investigated by the Occupational the STAA Safety and Health Administration (OSHA) of this Department which issued a preliminary finding of no reasonable cause to believe that Respondent had violated the STAA. As a result of Complainant's objections to this finding, a hearing on his complaint was scheduled for April 15, 1986. On April 11, 1986, however, Complainant notified the ALJ that, subsequent to the OSHA investigation, he was terminated from his employment with Respondent, and, as a result, wished to have his suspension complaint dismissed without prejudice so that his termination claim, which he was in the process of filing, subsequently could be consolidated with his suspension claim. The ALJ granted Complainant's request.

    The record in this case does not indicate that the ALJ afforded the Respondent an opportunity to respond to Complainant's request prior to the issuance of the Order

of Dismissal. The proceedings before the ALJ in this case are governed by the Rules of Practice and Procedure for Administrative Hearings before the office of Administrative Law Judges, 29 C.F.R. Part 18 (1985). Section 18.6(a) of 29 C.F.R requires that "all parties shall be given reasonable opportunity to state an objection to the motion or request" made before the ALJ. Complainant's request was made both orally and in writing to the ALJ. There is no indication that Respondent was advised of either of these communications; indeed Complainant's written request to the ALJ does not indicate that it was even served upon Respondent. I am, therefore, compelled to conclude that Respondent was not given a reasonable opportunity to object to Complainant's request for a dismissal without prejudice.

    Moreover, there is nothing in the record to indicate that the ALJ considered whether the dismissal should be conditioned upon the Complainant meeting certain terms or conditions. Since the ALJ rules of practice do not provide for voluntary dismissals¹ , the Federal Rules of Civil Procedure govern the voluntary dismissal of STAA claims. Paragraph (2)² of Rule 41(a) permits dismissal without prejudice upon order of the court and upon such terms and conditions as the court deems proper. Under Rule 41(a)(2),

[i]t is fairly consistently held that a plaintiff normally will not be permitted to dismiss, after defendant has been put to expense in preparing for trial, except on condition that plaintiff reimburse defendant for his expenses, sometimes including a reasonable attorney's fee. Alternatively, instead of conditioning an order of dismissal on payment of defendant's expenses, a court may grant a motion to dismiss, but condition any refiling of an action against defendant on payment of his expenses.

6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, S 41.06 (2d ed. 1981). Accord McCants v. Ford Motor Co., Inc., 781 F.2d 855, 860 (11th 1986); American Cynamid Company v. McGhee, 317 F.2d 295, 298 (5th 1963); Bishop v. West American Insurance Company, 95 F.R.D. 494, 495 (N.D. Ga. 1982). Here, Complainant did not request dismissal of his claim until four days before the scheduled hearing date. Respondent may have incurred expenses in preparing for the hearing. It was, therefore, the duty of the ALJ to consider whether conditions for the dismissal without prejudice should be imposed.

    A further problem with the ALJ's Order of Dismissal is that it grants the dismissal without prejudice subject to the subsequent reopening of the suspension claim and consolidation of the suspension and termination claim. It is not clear what the ALJ intended the effect of this dismissal to be if the suspension claim were not subsequently reopened and consolidated with the termination claim.

    That the suspension claim might not be reopened was a real possibility. "A voluntary dismissal without prejudice leaves the situation as if the action had never been filed." 9 C. Wright & Miller, Federal Practice and Procedure: Civil, §

2367 (1971). The suspension claim, therefore, would have to be refiled in order to be consolidated with the termination claim. Since the statute of limitations is not tolled by a dismissal without prejudice, Wright & Miller, id. at 185-6, the refiling of the suspension claim would have to be within 180 days of October 28, 1985, the date of suspension, or by April 26, 1986. it is not clear that Complainant³ was aware of the fact that he had to refile his suspension claim and that he had only ten days after the Order of Dismissal to do so.

In summary, I conclude that the ALJ's failure to afford to Respondent the opportunity to respond to Complainant's request for dismissal without prejudice, his failure to consider whether the dismissal should be conditioned on the payment of any expenses incurred by Respondent, and his conditioning the dismissal on consolidation of the suspension claim with the termination claim result in my inability to review his recommended ruling.

    Accordingly, this case is REMANDED for further proceedings consistent with this order.

       WILLIAM E. BROCK
       Secretary of Labor

Dated: JUL - 9 1986
Washington, D.C.

¹These rules provide only for dismissal of requests for hearing. 29 C.F.R § 18.39(b). In STAA cases, dismissal of a request for hearing does not automatically result in dismissal of the claim inasmuch as it leaves in effect the preliminary order.

²Paragraph (1) of Rule 41(a) permits dismissal without prejudice without order of a court by the filing of a notice of dismissal at any time before an answer to the complaint has been filed or by the filing of a stipulation of dismissal signed by the parties. Since Respondent denied the allegations of the complaint (Secretary's Findings, Feb. 11, 1986 at 1), thus in effect having filed an answer and, since the record does not include any stipulation of the parties, paragraph (1) of Rule 41(a) is inapplicable.

³Although Complainant had apparently consulted an attorney, he appeared pro se before the ALJ. The ALJ neglected to ascertain whether Complainant was aware of the effects of his request for dismissal and of what action he needed to take to ensure the viability of his suspension complaint.