DATE:  December 12, 1994
CASE NO. 94-ERA-8


IN THE MATTER OF

DAVID C. HOWE,

          COMPLAINANT,

     v.

AFFTREX, LTD.

     and

MARTIN MARIETTA ENERGY
SYSTEMS,

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL ORDER OF DISMISSAL

     This case is before me for review of the Recommended Order
of Dismissal, dated September 20, 1994, issued by the
Administrative Law Judge (ALJ) under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988).  On August 22, 1994,
Complainant filed a written request to withdraw this ERA
complaint.  Complainant indicates that he intends to "seek a diff
rent [sic] case against Afftrex LTD only at a later date." 
Respondent Afftrex, LTD. responds that it will not resist a
dismissal of the complaint.  Respondent Martin Marietta Energy
Systems (Martin Marietta) responds that it has no objection to
voluntary dismissal without prejudice but requests the ALJ to
note, as a condition pursuant to Fed. R. Civ. P. 41(a)(2), that a

[PAGE 2]
grant of Complainant's motion effectively precludes any future
legal remedy against it under the ERA.  In my view, however, the
parties' statements amount to a stipulation of dismissal without
prejudice as provided in Rule 41(a)(1)(ii).  See
Blevins v. Tennessee Valley Authority, Case No. 90-ERA-4,
Sec. Order, June 28, 1993, slip op. at 3; Millet v. Anco
Insulations, Inc., Case No. 88-ERA-35, Sec. Order, Sept. 29,
1989. [1] 
     Accordingly, the complaint in this case is DISMISSED without
prejudice.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   I note that the "condition" requested by Martin Marietta
occurs by operation of law when a case is dismissed without
prejudice.  A dismissal without prejudice does not toll a statute
of limitations -- expiration of the limitations period will bar a
complainant from filing another ERA complaint based on the same
facts.  See Stites v. Houston Lighting & Power Co.,
Case No. 87-ERA-41, Sec. Order, Sept. 29, 1989, slip op. at 3;
Nolder v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-
5, Sec. Order, June 28, 1985, slip op. at 12 n.11.