F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            OCT 17 2003
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk


    ELAINE CHAO, Secretary of Labor,
    United States Department of Labor,

                Plaintiff-Appellee,
                                                         No. 02-4170
    v.                                             (D.C. No. 2:01-CV-673-S)
                                                           (D. Utah)
    DARWIN STRATTON & SON, INC.;
    CLAYTON STRATTON; TODD
    STRATTON; and JOHNPATRICK:
    MORGAN, individually,

                Defendants-Appellants.


                            ORDER AND JUDGMENT            *




Before MURPHY and PORFILIO , Circuit Judges, and              BRORBY , Senior Circuit
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff-Appellee Elaine Chao, Secretary of the United States Department

of Labor (Secretary), sought a permanent injunction, pursuant to 30 U.S.C.

§ 818(a)(1) and Fed. R. Civ. P. 65(a), to enjoin defendants-appellants Darwin

Stratton & Son, Inc., Clayton Stratton, Todd Stratton and Johnpatrick: Morgan

(collectively “Stratton”)       1
                                    from violating the Federal Mine Safety and Health Act

of 1977 (Mine Act), 30 U.S.C. §§ 801-962, by refusing to permit the Secretary’s

representatives to conduct safety and health inspections of two mines. The

district court granted the permanent injunction, enjoining Stratton from

(1) interfering with, hindering or delaying the Secretary’s representatives from

carrying out the provisions of the Mine Act; (2) refusing to admit the Secretary’s

representative into their mining sites; and (3) refusing to permit inspection or

investigation of the mines. We have jurisdiction over this appeal,         see 28 U.S.C.

§ 1291, and we affirm.      2




1
      Clayton Stratton is the former owner of Stratton; Todd Stratton is its
president; and Johnpatrick: Morgan is Stratton’s personal representative/agent,
and he holds a security interest in the company. Aplt’s Br. at 19.
2
      Stratton improperly characterizes this appeal as a writ of error coram nobis.
A writ of error coram nobis is “directed to a court for review of its own
judgment.” See Black’s Law Dictionary 338 (7th ed. 1999).

                                                  -2-
      Stratton owns or controls two mine sites, the Airport Pit and the

Rattlesnake Pit, in Washington County, Utah. Stratton refused mine access to

inspectors from the Mine Safety and Health Administration (MSHA). The MSHA

is required to

      make frequent inspections and investigations [of] . . . mines each
      year for the purpose of (1) obtaining, utilizing, and disseminating
      information relating to health and safety conditions, the causes of
      accidents, and the causes of diseases and physical impairments
      originating in such mines, (2) gathering information with respect to
      mandatory health or safety standards, (3) determining whether an
      imminent danger exists, and (4) determining whether there is
      compliance with the mandatory health or safety standards or with any
      citation, order, or decision.

30 U.S.C. § 813(a). Because Stratton denied access, the Secretary brought this

action for injunctive relief under 30 U.S.C. § 818(a)(1)(B), (C), which permits the

Secretary to institute a federal “civil action for relief, including a permanent or

temporary injunction, restraining order” when a mine operator “refuses to admit

[MSHA] representatives to the . . . mine” or “interferes with, hinders, or delays

the Secretary or [her] authorized representative . . . in carrying out” MSHA

duties.

      The district court held a hearing and determined that Stratton “interfered

with, hindered, delayed, and refused admittance to and not permitted the

Secretary’s authorized representative . . . to inspect . . . the Airport Pit and the

Rattlesnake Pit.” Order and Permanent Inj. at 2;    see R., Vol. V at 37.


                                           -3-
Additionally, the court found that Stratton’s actions were continuing and capable

of repetition and that they were contrary to the public interest. The district court,

therefore, granted injunctive relief.

       Stratton argues this court should reverse the district court’s grant of

injunctive relief. We review the district court’s grant of injunctive relief for an

abuse of discretion.   See Prows v. Fed. Bureau of Prisons        , 

, 468

(10th Cir. 1992). We accept the district court’s factual findings unless they are

clearly erroneous and review the district court’s application of legal principles de

novo. Mitchell v. City of Moore , 

, 1198 (10th Cir. 2000).

       “A court may issue a permanent injunction where the moving party has

demonstrated that: (1) the exercise of jurisdiction is appropriate; (2) the moving

party has actually succeeded on the merits of its claim; and (3) the balance of

equities favors granting injunctive relief.”         Chao v. Rothermel , 

, 228

(3d Cir. 2003) (quotation omitted).

       Stratton asserts the district court should not have issued the permanent

injunction because the Secretary and MSHA lack jurisdiction over the Airport and

Rattlesnake Pits. The Secretary counters that under the doctrines of law of the

case or collateral estoppel Stratton cannot litigate jurisdiction, because two

administrative cases conclusively decided the jurisdiction issue and Stratton did

not appeal those decisions.


                                               -4-
       With respect to the Rattlesnake Pit, the Administrative Law Judge (ALJ)

found, after holding an evidentiary hearing, which no representative of Stratton

attended, that the Rattlesnake Pit is a small sand and gravel mine; sand and gravel

are extracted from a dry stream bed and transported to an adjacent wash plant and

stockpiled. Darwin Stratton & Son Inc. v. Sec’y of Labor      , 22 F.M.S.H.R.C. 1265,

1267 (2000). The ALJ held

       that MSHA has jurisdiction to inspect the Rattlesnake Pit. The
       facilities at that pit easily fit within the definition of “coal or other
       mine” in section 3(h)(1) of the Mine Act. Minerals are extracted
       from the earth, the extracted minerals are milled at the wash plant,
       and the resulting product is sold to customers. The milling consists
       of separating the sand from the unusable material and then cleaning
       the sand. The functions performed at this pit are the same as are
       typically found at sand and gravel pits throughout the country.
       Courts and the [Federal Mine Safety and Health Review]
       Commission have consistently held that sand and gravel pits are
       subject to MSHA jurisdiction. Because the products of this pit enter
       or affect commerce, the pit is subject to the provisions of the Mine
       Act . . . .

see also Sec’y of Labor v. Darwin Stratton & Son, Inc.    ,

24 F.M.S.H.R.C. 817, 818, 820 (2002) (recognizing prior finding of jurisdiction).

       Likewise, the ALJ found that the Airport Pit fit within the Mine Act’s

definition of a mine, because rock is extracted from the pit and sized and crushed

at the mine site.   Sec’y of Labor v. Darwin Stratton & Son, Inc.   , 24 F.M.S.H.R.C.




                                            -5-
403, 404 (2002).   3
                        The ALJ also found that “‘operations or products of [the

Airport Pit] affect commerce.’”       

(quoting 30 U.S.C. § 803). “The

machinery and equipment used to produce the products at the Airport Pit were

manufactured outside the State of Utah and the products of the pit are sold to

customers within Utah.”       

ALJ concluded the Airport Pit is also

subject to the provisions of the Mine Act.         

could have filed a petition for discretionary review of the

ALJ’s decisions with the Commission,         see 30 U.S.C. § 823(d)(1), (2)(A)(i),

Stratton did not do so. Thus, the ALJ’s decision became the final order of the

Commission.     

A final order of the Commission may be appealed

to a federal court of appeals.     See 

816(a)(1); see also Thunder Basin Coal

Co. v. Reich , 

, 208 (1994) (recognizing court of appeals’ jurisdiction

is exclusive). Although Stratton had a direct and exclusive means to gain judicial

review of the ALJ’s jurisdiction determinations in this court, Stratton did not

appeal to this court.     Cf. United States by Donovan v. Howard Elec. Co.    , 

, 394-95 (10th Cir. 1986) (assessing similar appeal procedure for Occupational

Safety and Health Review Commission final decision). Stratton’s failure to

challenge the Secretary’s jurisdiction on direct review precludes Stratton’s



3
      We note that Stratton’s description of its operations at the Airport Pit and
Rattlesnake Pit are quite similar to the ALJ’s findings.

                                             -6-
collateral attack of the ALJ’s decisions in this later proceeding.    See 

now has no jurisdiction to review the ALJ’s decisions.

       Furthermore, the statutory-review scheme did not give the district court

jurisdiction to review the ALJ’s jurisdictional determinations. The district court

in this case held that because the ALJ’s decisions resolved the jurisdictional issue

and Stratton did not file the proper appeal, the ALJ’s decisions stand as the law of

the case. See R., Vol. V at 17-18. “The law of the case doctrine posits that when

a court decides upon a rule of law, that decision should continue to govern the

same issues in subsequent stages of the same case.”        Huffman v. Saul Holdings

Ltd. P’ship , 

, 1132 (10th Cir. 2001) (quotation omitted);     see

McIlravy v. Kerr-McGee Coal Corp.        , 

, 1034 & n.1 (10th Cir. 2000);

see also 18B Charles Allan Wright et al., Federal Practice and Procedure § 4478

at 637-39 (2d ed. 2002) (“Law-of the-case rules have developed to maintain

consistency and avoid reconsideration of matters once decided during the course

of a single continuing lawsuit. They do not apply between separate actions.”)

(footnote omitted).   But cf. Gage v. Gen. Motors Corp. , 

, 349 (10th

Cir. 1986) (“The law of the case rule applies . . . when a federal district court

reviews matters previously considered in state court involving the same parties.”).

The case before the district court and now before this court on appeal is not the

same case as the cases before the ALJ, because it is not merely a continuation of


                                             -7-
the litigation before the ALJ. Thus, we conclude that the doctrine of the law of

the case is inapplicable here.   4



       Instead, we determine that the doctrine of collateral estoppel applies.          See

Ross v. United States Marshal        , 

, 1194 n.2 (10th Cir. 1999)

(appellate court may affirm district court’s judgment on alternate ground not

relied on by that court if there is support for doing so in record). “Collateral

estoppel . . . means . . . that when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.”        Harrison v. Eddy Potash, Inc.     ,

, 1022 (10th Cir. 2001) (citing        Ashe v. Swenson , 

, 443

(1970)); see also Allen v. McCurry , 

, 94 (1980) (“Under collateral

estoppel, once a court has decided an issue of fact or law necessary to its

judgment, that decision may preclude relitigation of the issue in a suit on a

different cause of action involving a party to the first case.”).

       To apply collateral estoppel, the following elements must be
       established: (1) the issue previously decided is identical with the one
       presented in the action in question, (2) the prior action has been
       finally adjudicated on the merits, (3) the party against whom the
       doctrine is invoked was a party, or in privity with a party, to the prior
       adjudication, and (4) the party against whom the doctrine is raised
       had a full and fair opportunity to litigate the issue in the prior action.


4
      And we therefore reject Stratton’s assertion that the ALJ cases were the
beginning of the instant case. See Reply Br. at 1.


                                              -8-
Harrison , 248 F.3d at 1022.

       All four of these elements are established in this case. The ALJ finally

decided the same jurisdictional issue presented here. The parties to this appeal

are the same or are in privity with Darwin Stratton & Son, Inc., the party to the

ALJ actions. Finally, Stratton had a full and fair opportunity to litigate

jurisdiction before the ALJ, because Stratton had an opportunity to present

evidence if Stratton chose to do so,   5
                                           Stratton did not claim a denial of due process

by the ALJ, the ALJ applied the correct legal standards, and it was forseeable that

the ALJ’s decision would have preclusive effect,        see Matosantos Commercial

Corp. v. Applebee’s Int’l, Inc.   , 

, 1212 (10th Cir. 2001).

       The Secretary therefore showed the district court’s exercise of jurisdiction

in granting injunctive relief was appropriate.       See Rothermel , 327 F.3d at 228.

Also, the Secretary succeeded on the merits of her claims.        See 

not dispute that MSHA inspectors were denied entry to the Pits, and it is likely

Stratton will continue to deny entry to them. Finally, the Secretary proved the

balance of equities favor granting injunctive relief.      See 

Refusal to

permit inspections poses a threat to miners’ health and safety.       See 30 U.S.C.



5
       Stratton chose not to participate in the ALJ case concerning the Rattlesnake
Pit. See Darwin Stratton & Son Inc. , 22 F.M.S.H.R.C. at 1267. In the case
involving the Airport Pit, Mr. Morgan appeared on behalf of Stratton.   See
Darwin Stratton & Son, Inc. , 24 F.M.S.H.R.C. at 403.

                                              -9-
§ 801(g) (setting forth purpose for adopting Mine Act). These health and safety

goals outweigh any inconvenience or problems for Stratton.

      Accordingly, we conclude the district court did not abuse its discretion in

granting a permanent injunction against Stratton.    See Prows , 981 F.2d at 468.   6



      The judgment of the district court is AFFIRMED. Stratton’s motions (1) to

present oral argument, (2) for “This Court to Place on the Record and Enforce the

Appeal Rights of Appellants” and (3) objecting to the Secretary’s supplemental

authority are DENIED. Also, Stratton’s requests that this court restrain the

Secretary and order the Commissioners to decide an administrative appeal are

DENIED. And we reject any other arguments not specifically addressed in this

order and judgment.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




6
       Stratton contends the district court violated Fed. R. Civ. P. 62(a) by
enforcing the injunction during the pendency of this appeal. Reply Br. at 2-3.
The plain language of the rule provides that after a district court enters a final
order in an injunction action, that final order “ shall not be stayed . . . during the
pendency of an appeal.” Fed. R. Civ. P. 62(a) (emphasis added).


                                           -10-