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

Filing 18

ORDER denying 15 Motion to Set Aside/Reconsider 14 Order on Motion for TRO and Motion for Immediate Certification for Interlocutory Appeal (see text of Order for details). Signed by Chief Judge Linda R Reade on 01/23/2012. (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.
____________________
The matter before the court is Plaintiff Pattison Sand Company, LLC’s “Motion for
Reconsideration or in the Alternative for Immediate Certification for Interlocutory Appeal”
(“Motion”) (docket no. 15), which Plaintiff filed on January 6, 2012. On January 20,
2012, Defendants Federal Mine Safety and Health Review Commission (“Commission”)
and Mine Safety and Health Administration (“MSHA”) filed a Resistance (docket no. 17).
In the Motion, Plaintiff does not provide the court with any new law to support its
position. Rather, Plaintiff rehashes the same argument that it raised in its Motion for
Temporary Restraining Order and Preliminary Injunction (docket no. 11) and claims that
the relief it seeks is collateral to the proceedings before the Commission. To support its
position, Plaintiff submitted a citation that it received when it violated a 30 U.S.C.
§ 813(k) withdrawal order by allowing three mine employees to work in an area of the
mine where the roof had not been bolted or meshed. See Exhibit A (docket no. 16-1).
Plaintiff maintains that, because the citation indicates that injury or illness was not likely
to result from the violation of the withdrawal order, “the [c]itation is direct evidence of
MSHA’s pattern and practice of issuing mine closure orders . . . when such orders are
wholly unwarranted.” See Supplement to Motion to Reconsider (docket no. 16) at 2.

As the court explained in its Order (docket no. 14) and as Defendants explain in the
Resistance, the court does not have jurisdiction to provide the relief Plaintiff requests,
namely, to modify a withdrawal order issued pursuant to 30 U.S.C. § 813(k).
Consequently, the court declines to reconsider its Order denying Plaintiff’s Motion for
Temporary Restraining Order and Preliminary Injunction.
The court shall also deny Plaintiff’s alternative request to certify the matters raised
in its Motion for Temporary Restraining Order and Preliminary Injunction to the Eighth
Circuit Court of Appeals. As Defendants correctly point out, Plaintiff may appeal the
court’s denial of a preliminary injunction without certification pursuant to 28 U.S.C.
§ 1292(a)(1). See Grand River Enters. Six Nations, Ltd. v. Beebe, 467 F.3d 698, 701 (8th
Cir. 2006) (noting that a circuit court of appeals “[has] jurisdiction to review a district
court’s denial of a preliminary injunction motion under 28 U.S.C. § 1292(a)(1)”).
Furthermore, the court finds it would be inappropriate to certify Plaintiff’s request
for a temporary restraining order to the Eighth Circuit Court of Appeals pursuant to 28
U.S.C. § 1292(b), which states:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he shall so
state in writing in such order.
The court is not of the opinion that its Order on Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction involves a controlling question of law as to
which there is substantial ground for difference of opinion. Consequently, the court shall
deny Plaintiff’s alternative request for “Immediate Certification for Interlocutory Appeal.”
Motion at 1.
For the foregoing reasons, Pattison’s “Motion for Reconsideration or in the

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Alternative for Immediate Certification for Interlocutory Appeal” (docket no. 15) is
DENIED.
IT IS SO ORDERED.
DATED this 23rd day of January, 2012.

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