U.S. Department of Labor
Office of Administrative Law Judges
Federal Building, Suite 4300
501 W. Ocean Boulevard
Long Beach, California 90802
(310) 980-3594
(310) 980-3596
FAX: (310) 980-3597
DATE: May 6, 1998
CASE NO.: 98-ERA-1
In the Matter of:
BEN ERNST,
Complainant,
v.
WOLF CREEK NUCLEAR OPERATING CORP.,
Respondent.
RECOMMENDED ORDER OF DISMISSAL
This matter arises under the employee protection provision of the Energy
Reorganization Act of 1974 (the "Act" or "ERA"), 42 U.S.C. §
5851, and the regulations promulgated thereunder as contained at 29 C.F.R. Part 24.
Complainant, Ben Ernst, appeals the Occupational Safety and Health Administration's September
29, 1997, determination that his complaint against Respondent, Wolf Creek Nuclear Operating
Corporation, had no merit.
Background
Pursuant to due notice, this matter was scheduled for hearing before the
undersigned administrative law judge on May 19, 1998, in Kansas City, Missouri. During a
telephone call with Complainant's attorney on April 29, 1998, counsel expressed his intent to
voluntarily dismiss this case.
[Page 2]
A jointly stipulated Motion to Dismiss was received via facsimile on May
6, 1998. The parties announced their agreement that this matter should be dismissed with no
admissions to be inferred thereby. The motion makes no reference as to whether the dismissal
should be with or without prejudice.
Discussion
Neither the ERA nor its implementing regulations at 29 C.F.R. Part 24
provides for voluntary dismissals of complaints. SeeCaccavale v. Northeast
Utilities, 91-ERA-3 (Sec'y Dec. 18, 1990); Nolder v. Raymond Kaiser Engineers,
Inc., 84-ERA-5 (Sec'y June 28, 1985). However, where the parties jointly file a Motion to
Dismiss, dismissal under Fed. R. Civ. P. 41(a)(1)(ii) is appropriate. Luther v. City of
Tyler, 92-TSC-4 (Sec'y Aug. 25, 1993). Furthermore, where there is no evidence that a
complainant intended that the matter be dismissed with prejudice, the express language of Rule
41(a)(1) contemplates dismissal without prejudice. Lorenz v. Law Engineering, Inc.,
90-CAA-1 and 2 (Sec'y Mar. 12, 1991); SeealsogenerallyThompson v. United States Dept. of Labor, 885 F.2d 551, 556-57 (9th Cir. 1989).
Here, the parties have submitted a jointly stipulated Motion for Dismissal.
Since the motion is silent on whether the requested dismissal is to be with or without prejudice,
the motion shall be construed as requesting dismissal without prejudice.
RECOMMENDED ORDER
Based upon the foregoing, it is HEREBY RECOMMENDED
that the parties' joint Motion for Dismissal be GRANTED and that the above-captioned complaint be DISMISSED WITHOUT PREJUDICE.
Entered this 6th day of May, 1998, at Long Beach, California.
DANIEL L. STEWART
Administrative Law Judge
NOTICE: This Recommended Order will automatically become the final order of
the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with
the Administrative Review Board, United States Department of Labor, Room S-4309, Frances
Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for
review must be received by the Administrative Review Board within ten business days of the
date of this Recommended Order, and shall be served on all parties and on the Chief
Administrative Law Judge. See 29 C.F.R. § 24.8 and 24.9, as amended by 63
Fed. Reg. 6614 (1998).