<DOC>
[DOCID: f:wv200040o.wais]

 
EASTERN ASSOCIATED COAL CORP. 
September 15, 2000
WEVA 2000-40-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                       September 15, 2000

SECRETARY OF LABOR,               : TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH          : PROCEEDING
  ADMINISTRATION, on behalf of    :
  GARY DEAN MUNSON                : Docket No. WEVA 2000-40-D
               Complainant        : MORG-CD-2000-01
                                  :
          v.                      :
                                  : Federal No. 2
EASTERN ASSOCIATED COAL CORP.     : Mine ID 46-01456
               Respondent         :

                ORDER NOTING WITHDRAWAL OF MOTION

     On July 6, 2000, Respondent filed a "Motion to Stay
`Economic' Reinstatement."[1]  On July 20, 2000, Complainant
filed a response.[2]   Respondent ultimately determined to
withdraw its motion and, on August 14, 2000, filed a  paper
entitled: "Withdrawal of Respondent Eastern Associated Coal
Corporation's Motion to Stay `Economic' Reinstatement."  While
titled, in part, "withdrawal" the text stated that Respondent
"moves this Court to withdraw" its motion and requested "that its
withdrawal of said Motion be granted." The Secretary did not file
a response.

     Respondent's "withdrawal" is framed somewhat inconsistently
with its position voiced during a telephonic conference after the
"stay" motion had been filed.  There, Respondent took the
position that I no longer had jurisdiction in the Temporary
Reinstatement Proceeding.  The Secretary took the opposite
position in her response to the original motion.

     Respondent's "withdrawal" obviates the need to resolve the
jurisdictional issue.  While there is some authority for the
proposition that a motion may not be withdrawn without leave of
court, the general and, in my opinion, more preferred rule is
that, in the absence of prejudice to the opposing party, no such
permission is required and withdrawal of a motion leaves the
record as it stood prior to the filing of the motion.  See, gen.
56 Am. Jur. 2d, Motions, Rules and Orders, � 22.

     Respondent's motion has been effectively withdrawn.  The
record on the temporary reinstatement proceeding stands as it was
prior to the filing of the motion.


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Douglas N. White, Esq. Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)

Rebecca O. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, PLLC,
5000 Hampton Center,
Suite 4, Morgantown, WV 26505 (Certified Mail)

/mh


**FOOTNOTES**

     [1]  On  March  10, 2000, following a hearing, I had ordered
that Complainant be temporarily  reinstated pending resolution of
a discrimination complaint likely to be filed by the Secretary on
his  behalf.   The  parties  subsequently   agreed   to  economic
reinstatement.   I  was  not  notified  of  the agreement and  no
request  was made to amend the Order of Temporary  Reinstatement.
Complainant later decided that he would rather return to work and
by letter  dated  June 21, 2000, his counsel requested that he be
"immediately return[ed]  to his former job."  Respondent declined
the request.  When the dispute  was  brought  to  my attention, I
initially placed the burden on Respondent to seek modification of
the  temporary  reinstatement  order.  I later reconsidered  that
decision.

     [2]  The response erroneously  carried  the  caption  of the
subsequently filed discrimination case, rather than the temporary
reinstatement proceeding.