Newmont Gold Company

Plain-English summary

The Secretary appealed ALJ decisions that vacated citations issued to Newmont Gold Company and dismissed the related contest and civil penalty proceedings. The parties later reached a settlement under which the Secretary withdrew the appeals, Newmont agreed to the motion, 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 directions for review, and dismissed the proceedings. The settlement did not disturb the ALJ holdings.

Decision snapshot

• Governing authorities: 29 C.F.R. § 2700.1(b); Fed. R. App. P. 42(b)
• Outcome: The Secretary's appeals were voluntarily dismissed, the Commission's review directions were vacated, and the proceedings were dismissed under the settlement.
• Key point: A Commission appeal may be voluntarily dismissed on agreed settlement terms when the settlement does not disturb the underlying ALJ holdings.

Full text (FMSHRC public release)

NEWMONT GOLD COMPANY
June 1, 1999
WEST 97-164-RM

    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 97-164-RM
: through WEST 97-168-RM
NEWMONT GOLD COMPANY : WEST 97-293-M

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

                          ORDER

BY THE COMMISSION:

 These consolidated contest and 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 November 20, 1997,
and January 23, 1998, the Commission granted two separate
petitions for discretionary review filed by the Secretary of
Labor challenging the decisions of Administrative Law Judge
August F. Cetti in which he vacated citations issued to Newmont
Gold Company ("Newmont") and dismissed the contest proceedings,
19 FMSHRC 1640 (Oct. 1997) (ALJ), and subsequently dismissed the
related civil penalty proceedings, 19 FMSHRC 1889 (Dec. 1997)
(ALJ).

 On May 12, 1999, the Secretary filed a motion to dismiss

her appeals in these proceedings, stating that the parties had
reached a settlement and that Newmont agrees to this motion.
Mot. at 1. As part of the settlement agreement, which was
attached to the motion, the Secretary agreed to withdraw her
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 do not disturb the holdings of the judge.

 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 appeals, 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 directions for review in these matters are vacated
and these proceedings are dismissed.

                        Mary Lu Jordan, Chairman

                        Marc Lincoln Marks, Commissioner

                        James C. Riley, Commissioner

                        Theodore F. Verheggen, Commissioner

                        Robert H. Beatty, Jr., Commissioner

Distribution

Jerald S. Feingold, 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 August Cetti
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."