Ray v. Lawter International, 2003-TSC-6 (ALJ Nov. 12, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 12 November 2003
CASE NO.: 2003-TSC-6

IN THE MATTER OF:

DANNY MICHAEL RAY
    Complainant

    v.

LAWTER INTERNATIONAL
    Respondent

   This proceeding arises under Section 23(a) of the Toxic Substances Control Act of 1986 (TSCA), 15 U.S.C. §§ 2622, et seq., as amended, and the regulations promulgated thereunder at 29 C.F.R. Part 24, which are employee protective provisions of TSCA.

   The Complainant requested a hearing based upon the Secretary's findings that Complainant's complaints of discrimination against Respondent in violation of the employee protective provisions of the TSCA were not meritorious.

   A formal hearing in this matter was scheduled in Birmingham, Alabama to commence on December 8, 2003.

   On November 10, 2003, Complainant filed a "Motion To Dismiss Without Prejudice," averring that prior to his "appeal" in this case, he filed a civil action in the Circuit Court of Hale County, Alabama against Respondent and others. He claims the state court action "is better suited to provide appropriate remedies and complete relief . . . in that it includes defendants which the [Complainant] alleges are responsible, but which were not included in the instant proceeding." Further, Complainant claims the expedited time frame for discovery under the TSCA does not allow adequate time in which to develop the evidence necessary for the undersigned to determine this matter.

   Counsel for Complainant represents that Counsel for Respondent does not oppose the instant motion.

   Neither the Toxic Substances Control Act nor its implementing regulations make provision for the voluntary dismissal of a complaint. Therefore, where a Complainant in a case arising under the Act seeks a voluntary dismissal, FRCP 41(a) is applied. Everhart v. Tecumseh Products Co., Case No. 91-TSC-4 (Sec. Final Ord. of Dismissal, Aug. 30, 1991). Respondent's concurrence in effect constitutes a stipulation of dismissal by the parties satisfying the requirements of FRCP 41(a)(1)(ii). Buck v. Tennessee Valley Authority, Case No. 91-ERA-10 @ 1-2 (Sec. Final Order of Dismissal, Dec. 23, 1991).

   Moreover, the Procedures For The Handling of Discrimination Complaints Under Federal Employee Protection Statutes, 29 C.F.R. Part 24 permit the issuance of a recommended decision and order dismissing a claim for cause at the request of any party. Furthermore, in any case where a dismissal of a claim, defense or party is sought, an administrative law judge shall take such action as is appropriate to include a recommended order dismissing the claim, defense or party. I conclude there is no necessity to issue an Order To Show Cause to Respondent in view of its non-opposition. See 29 C.F.R. § 24.6(e)(4)(ii).

   Accordingly, based on the foregoing, Complainant's request for voluntary dismissal of his Complaint constitutes a withdrawal of his request for formal hearing and Complaint and it is hereby GRANTED, and this matter is DISMISSED with prejudice.

   The formal hearing presently scheduled in this case for December 8, 2003, in Birmingham, Alabama, is hereby cancelled.

   ORDERED this 12th day of November, 2003, at Metairie, Louisiana.

      LEE J. ROMERO, JR.
      Administrative Law Judge

NOTICE: This Recommended Decision and 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 Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See C.F.R. §§ 24.7(d) and 24.8.