Newmont Gold Company

Plain-English summary

Newmont Gold Company appealed an ALJ decision that affirmed citations and orders and assessed $1,800 in civil penalties. The parties later reached a settlement under which Newmont withdrew its appeal, the Secretary agreed to the dismissal, and each party bore its own costs and fees. The Commission treated the motion as a voluntary dismissal under Federal Rule of Appellate Procedure 42(b), vacated its direction for review, and dismissed the appeal. The settlement did not disturb the ALJ's findings or penalties.

Decision snapshot

• Governing authorities: 29 C.F.R. § 2700.1(b); Fed. R. App. P. 42(b)
• Outcome: Newmont's appeal was dismissed under the settlement, and the Commission's direction for review was vacated.
• Key point: A settled Commission appeal may be voluntarily dismissed without disturbing the underlying findings or penalty.

Full text (FMSHRC public release)

NEWMONT GOLD COMPANY
June 1, 1999
WEST 95-434-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

              1730 K STREET N.W., 6TH FLOOR

                WASHINGTON,  D.C.  20006


                      June 1, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 95-434-M
: WEST 95-467-M
NEWMONT GOLD COMPANY :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners

                         ORDER

BY THE COMMISSION:

 These civil penalty proceedings arise under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1994) ("Mine Act"). On December 8, 1997, the Commission granted
a petition for discretionary review filed by Newmont Gold Company
("Newmont") challenging the decision of Administrative Law Judge
Richard W. Manning in which he affirmed citations and orders
issued to Newmont and assessed a total of $1,800 in civil
penalties. 19 FMSHRC 1730 (Oct. 1997) (ALJ).

 On May 12, 1999, Newmont filed a motion to dismiss its

appeal in these proceedings, stating that the parties had reached
a settlement and that the Secretary of Labor agrees to this
motion. Mot. at 1. As part of the settlement agreement, which
was attached to the motion, Newmont agreed to withdraw its appeal
of these proceedings. Settlement at 1. The motion specifies
that each party will bear its own costs and fees in these
proceedings. Mot. at 2. The terms of the settlement agreement
disturb neither the holdings of the judge nor the penalties he
assessed.

 We conclude that the motion to dismiss and the settlement

agreement effect a voluntary dismissal pursuant to Fed. R. App.
P. 42(b).[1] See 29 C.F.R. § 2700.1(b) (providing that Federal
Rules of Civil Procedure and Federal Rules of Appellate Procedure
shall apply "so far as practicable" in absence of applicable
Commission rules). Upon consideration of the motion to dismiss
the appeal, we grant it. See Bridger Coal Co., 17 FMSHRC 270
(Mar. 1995) (granting motion for voluntary dismissal of petition
pursuant to Fed. R. App. P. 42(b)). Accordingly, the
Commission's direction for review in these matters is vacated and
Newmont's appeal is dismissed.

                          Mary Lu Jordan, Chairman

                          Marc Lincoln Marks, Commissioner

                          James C. Riley, Commissioner

                          Theodore F. Verheggen, Commissioner

                          Robert H. Beatty, Jr., Commissioner

Distribution

Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Henry Chajet, Esq.
David Farber, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

FOOTNOTES

 [1]:   Fed.  R.  App.  P. 42(b) provides in part that  "[a]n

appeal may be dismissed on the appellant's motion on terms agreed
to by the parties or fixed by the court."