Pattison Sand Company, LLC v. Federal Mine Safety and Health Review Commission et al

Filing 14

ORDER denying 11 Motion for Temporary Restraining Order by Plaintiff Pattison Sand Company, LLC (see text of Order for details). Signed by Chief Judge Linda R Reade on 12/30/2011. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

PATTISON SAND COMPANY, LLC,
Plaintiff,

No. 11-CV-1051-LRR

vs.

ORDER

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION and
MINE SAFETY AND HEALTH
ADMINISTRATION,
Defendants.
____________________
I. INTRODUCTION
The matter before the court is Plaintiff Pattison Sand Company, LLC’s (“Pattison”)
“Motion for Temporary Restraining Order and Preliminary Injunction” (“Motion”) (docket
no. 11).
II. PARTIES
Pattison is an Iowa limited liability company and operates its principal place of
business, namely a sand mine, in Clayton, Iowa. The Pattison sand mine is regulated by
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-965. Defendant Mine
Safety and Health Administration (“MSHA”), which enforces the Act, is an agency within
the United States Department of Labor and is subject to the jurisdiction of Defendant
Federal Mine Safety Health Review Commission (“Commission”). The Commission is
charged with reviewing MSHA enforcement actions.
III. RELEVANT BACKGROUND
On November 7, 2011, a Pattison employee was working in Pattison’s mine when
a roof fall, or “ground fall,” occurred. See Plaintiff’s Memorandum in Support of the
Motion (“Memorandum”) (docket no. 11-1) at 2. Approximately twenty to thirty tons of

the mine ceiling collapsed and landed partially on top of the scaling equipment the
employee was using. This caused extensive damage to the equipment, but fortunately, the
employee was not injured. On November 9, 2011, MSHA issued Citation No. 8659952
(“MSHA citation”) for an alleged violation of the ground support use standard set forth
in 30 C.F.R. § 57.3360. The MSHA citation alleged Pattison’s ground control system was
not adequately designed, installed and maintained. On that same date, MSHA issued Order
No. 8659953 (“withdrawal order”) under 30 U.S.C. § 813(k) based upon the roof fall
accident. The purpose of the withdrawal order is to ensure the safety of persons in the
mine and to prohibit all activity in certain portions of the mine “that are not bolted and
meshed until an MSHA examination and/or investigation has determined that it is safe to
resume mining operations in the area.” Motion Exhibit 4 (docket no. 11-2).
On November 11, 2011, Pattison filed a motion for an emergency expedited hearing
on the withdrawal order before an Administrative Law Judge (“ALJ”).

MSHA

subsequently amended the withdrawal order three times allowing Pattison to retrieve
equipment needed for bolting, to begin the bolting and meshing process and to allow
Pattison to go into prohibited areas of the mine to evaluate ground conditions with a certain
number of personnel, for a limited amount of time and with a limited amount of
equipment. However, MSHA declined Pattison’s request to amend the withdrawal order
to allow additional experts to enter the mine, evaluate conditions, install equipment and
conduct tests.
On November 16, 2011, an ALJ convened a conference call with the parties and
scheduled an expedited hearing, which was held in Washington, D.C., on November 18,
2011. At the end of the hearing, the parties agreed to expedited briefing, due only one
week after receipt of the expedited transcript. On November 21, 2011, Pattison filed a
motion for decision without briefing, which the Secretary of Labor resisted and the ALJ
subsequently denied. On December 2, 2011, Pattison filed a Complaint (docket no. 1) in
the instant action seeking a declaratory judgment and injunctive relief against MSHA and
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against the Commission for violations of the Fifth Amendment and the Federal Mine and
Health Safety Act of 1977. On December 9, 2011, Pattison filed an emergency motion
before the ALJ to modify the withdrawal order to permit its experts to enter the mine to
evaluate conditions, install equipment and conduct tests. The Secretary resisted.
On December 13, 2011, the ALJ entered an extensive Decision and Order
addressing: (1) whether the MSHA citation is valid, as written, or should be vacated;
(2) whether the withdrawal order is valid as written and modified, or should be vacated
because no accident occurred; (3) whether the scope of the withdrawal order is
unreasonable or an abuse of discretion; and (4) whether the Commission has authority to
modify or limit the scope of the withdrawal order, and whether it should do so. In the
Decision and Order, the ALJ vacated the MSHA citation, finding that Pattison did not have
notice that the ground control plan it was following, and that MSHA agreed to, was
insufficient. However, the ALJ affirmed the withdrawal order. The ALJ found that the
withdrawal order was validly issued, the scope of the withdrawal order was not an abuse
of agency discretion and the Commission has no authority to modify a withdrawal order
but only to vacate or affirm such an order.
On December 27, 2011, Pattison filed the Motion in the instant action. In the
Motion, Pattison moves the court “for temporary and preliminary injunctions prohibiting
MSHA from utilizing [the withdrawal order] to prevent Pattison’s essential personnel and
experts from entering the underground portions of the [mine] pending the outcome of this
lawsuit.” Motion at 1. On December 29, 2011, Plaintiffs contacted the court and
requested a hearing. The court finds that a hearing is unnecessary.
IV. DISCUSSION
The Federal Mine and Health Safety Act of 1977, 30 U.S.C. §§ 801-965,
establishes a detailed structure for administrative review. An ALJ is appointed by the
Commission to hear and decide disputes arising under the Act. 30 U.S.C. § 823(d)(1).
The decision of the ALJ becomes the final decision of the Commission after forty days
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unless the Commission decides to review the decision. Id. Any person who is adversely
affected by an ALJ decision may file and serve a petition for discretionary review by the
Commission within thirty days. Id. at § 823(d)(2)(A)(i). Additionally, any person
adversely affected by an order of the Commission may obtain review of that order in the
United States court of appeals for the circuit in which the alleged violation occurred. 30
U.S.C. § 816(a)(1).
The Act narrowly authorizes district court jurisdiction. See Thunder Basin Coal Co.
v. Reich, 510 U.S. 200, 209 (1994) (“The act expressly authorizes district court
jurisdiction in only two provisions, §§ 818(a) and 820(j), which respectively empower the
Secretary to enjoin habitual violations of health and safety standards and to coerce payment
of civil penalties.”). Additionally, district courts have jurisdiction over claims that are
“wholly collateral to a statute’s review provisions and outside the agency’s expertise.” Id.
at 212 (internal marks omitted) (quoting Heckler v. Ringer, 466 U.S. 602, 618 (1984)).
In its Memorandum of Law in Support of the Motion, Pattison asserts the claims at
issue are wholly collateral to the Act’s review provisions and that a finding of preclusion
could foreclose all meaningful review. See Memorandum at 12. However, the court
disagrees with Pattison’s contentions. The issues raised in the Motion are not collateral
to the Act’s administrative review process. In fact, the relief sought in the Motion is
identical to the relief Pattison sought before the ALJ in its emergency motion to modify
the withdrawal order to permit its experts to enter the mine to evaluate conditions, install
equipment and conduct tests. Additionally, Pattison raises many of the same issues in the
Motion as it raised before the ALJ in the emergency motion. However, Pattison has not
cited any authority to support its contention that a United States district court has
jurisdiction to alter or amend a withdrawal order. The court finds that the matters Pattison
raises in the Motion, specifically a challenge to a withdrawal order under 30 U.S.C. § 813,
are within the scope of the Commission’s expertise. See Thunder Basin, 510 U.S. at 212.
Consequently, the court does not have jurisdiction to consider the Motion.
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V. CONCLUSION
In light of the foregoing, Pattison’s Motion for Temporary Restraining Order and
Preliminary Injunction (docket no. 11) is DENIED.
IT IS SO ORDERED.
DATED this 30th day of December, 2011.

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