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). SeeBlevins 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. SeeStites 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.