Lujan v. Los Alamos National Laboratory, 93-CAA-8 (ALJ Aug. 30, 1993)

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USDOL/OALJ Reporter
Lujan v. Los Alamos National Laboratory, 93-CAA-8 (ALJ Aug. 30, 1993)

U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002

CASE NO. 93-CAA-8

In the Matter of:

EDDIE J. LUJAN,
Complainant,

LOS ALAMOS NATIONAL LABORATORY,
and
UNIVERSITY OF CALIFORNIA,
Respondents.

ORDER OF DISMISSAL

On August 11, 1993, Complainant filed a Notice of Withdrawal Without Prejudice. On August 25, 1993, Respondents filed a Memorandum of Law in Opposition to Complainant's notice. Respondents argue that any dismissal should be "with prejudice," because the equivalent of an answer has been filed, and "in light of the extensive discovery already undertaken.

The regulations implementing the Clean Air Act provide only for dismissals for cause,¹ see 29 C.F.R. S 24.5(e)(4), and do not provide for voluntary dismissals of complaints. Nor are voluntary dismissals provided for in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, which are applicable to these proceedings, in any situation not provided for or controlled by rules of special application, such as Part 24. 29 C.F.R. S 18.1(a). Accordingly, where a complainant in a case arising under Part 24 has sought a voluntary dismissal, Rule 41(a)

[Page 2]

of the Federal Rules of Civil Procedure applies. See Keelan v. Consolidated Edison Company of New York, 88-CAA-3 (Sec. decision, Sept. 9, 1989); Holder v. Kaiser Engineers, Inc., 84-ERA-5 (Sec. decision, June 28, 1985). Under Rule 41(a)(1)(i), voluntary dismissal without prejudice is available to the complainant if an answer or a motion for summary Judgment has not yet been filed by the respondent.

Respondent argues that a request for hearing is the equivalent of an answer. While this may be true, see Stites v. Houston Lighting & Power Co., 87-ERA-41 (Sec. ord. of dis. Sept. 29, 1989), in this case, Complainant requested the hearing. Respondent's second argument, that it has conducted "extensive discovery, is without merit, since the only relevant inquiry under Rule 41(a)(1)(i) is whether an answer or motion for summary judgment has been filed, thereby preventing entry of a notice of voluntary dismissal. See also Johnson Chemical Co. v. Home Care Products, Inc., 823 F.2d 28, 31 (2d Cir. 1987) ("Mere expenditure of time and money by a defendant, does not bar a plaintiff from timely dismissing an action under Rule 41(a)(1)(i)." )

Respondent has filed neither an answer nor a motion for summary judgment. Accordingly, this case is dismissed without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(i)

So Ordered,

At Washington, D.C.

JAMES GUILL
Associate Chief Judge

JG/jlr

Entered: 8/30/93

[ENDNOTES]

¹The regulations do not provide for voluntary withdrawals of complaints.