In a similar situation where OSM asserted an ownership and control link and threatened a permit block, the permittee company, Coteau, sought injunctive relief. Coteau Properties Co. v. Department of Interior, 53 F.3d 1466 (8th Cir. 1995); see also infra at ___ n. 9. The Court discussed the irreparable harm Coteau would face in the absence of an injunction:
The questions in dispute to be so determined shall be submitted by two arbitrators, one to be appointed by [KMC/Kingwood] and one by [T T], and the two so chosen shall appoint a third arbitrator[.]" According to Kingwood, such a provision protecting T T's interests would not have been necessary if Kingwood in fact controlled T T. Coteau Properties Co. v. Department of Interior, 53 F.3d 1466, 1477 (8th Cir. 1995). Moreover, if Kingwood controlled T T, their interests would not diverge.
The Eighth Circuit has not expressly adopted the factors to consider a claim for untimeliness set forth by the Sixth Circuit in Belville. See Coteau Props. Co. v. Dep't of Interior, 53 F.3d 1466, 1478-1479 (8th Cir. 1995). In Coteau, the Eighth Circuit found Belville to be inapplicable under the circumstances but that the administrative decision was nevertheless arbitrary.
This Court has jurisdiction to review Defendants' denial of an immigration petition under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., which provides for judicial review of agency action. See Coteau Props. Co. v. Dep't of Interior, 53 F.3d 1466, 1471 (8th Cir. 1995); Svelte Constr., LLC v. Baran, 368 F.Supp.3d 1301, 1306-09 (D. Minn. 2019) (reviewing USCIS's denial of petition for nonimmigrant visa under APA). Defendants correctly observe that, before seeking judicial review of an administrative agency's decision, an individual typically must exhaust all administrative remedies.
Courts have rejected reconsideration in the name of error correction where the sole motivation was a policy reversal. See McAllister v. United States, 3 Cl. Ct. 394, 402 (1983) (rejecting reconsideration where "the sole basis for the reversal . . . was that the agency decided to change its official mind"); Chapman v. El Paso Natural Gas Co., 204 F.2d 46, 53-54 (D.C. Cir. 1953) ("[A] decision may not be repudiated for the sole purpose of applying some quirk or change in administrative policy . . . ."); see also Coteau Properties Co. v. Dep't of Interior, 53 F.3d 1466, 1478 (8th Cir. 1995) (invalidating agency reversal based on "changing policies" where agency failed to undertake necessary procedural steps); see generally Daniel Bress, Administrative Reconsideration, 91 VA. L. REV. 1737, 1752-53 (2005) (collecting cases). On the other hand, political pressure triggering a review is not, by itself, enough to invalidate a reversal.
s. v. USPS, 462 U.S. 810 (1983); Reilly v. OPM, 571 F.3d 1372 (Fed. Cir 2009); Ad Hoc Shrimp Trade Action Comm. v. United States, 515 F.3d 1372 (Fed. Cir. 2008); In re Reuning, 276 F. App'x 983 (Fed. Cir. 2008);Folio v. Dep't of Homeland Sec., 402 F.3d 1350 (Fed. Cir. 2005);Whittington v. Merit Sys. Prot. Bd., 80 F.3d 471 (Fed. Cir. 1996); Waldau v. Merit Sys. Prot. Bd., 19 F.3d 1395 (Fed. Cir. 1994); Trent Tube Div., Crucible Materials Corp. v. Avesta Sandvik Tube AB, 975 F.2d 807 (Fed. Cir. 1992); Kline v. Dep't of Transp., Fed. Aviation Admin., 808 F.2d 43 (Fed. Cir. 1986);Casteneda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007);Soltane v. DOJ, 381 F.3d 143 (3d Cir. 2004); Coal. for Gov't Procurement v. Fed. Prison Indus., 365 F.3d 435 (6th Cir. 2004)(citing South Prairie Constr. Co. v. Int'l Union of Operating Eng'rs, 425 U.S. 800 (1976); Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668 (1st Cir. 1998); PPG Indus., Inc. v. United States, 52 F.3d 363 (D.C. Cir. 1995); Coteau Props. Co. v. Dep't of Interior, 53 F.3d 1466 (8th Cir. 1995); Tomas v. Rubin, 935 F.2d 1555 (9th Cir. 1991); Pollgreen v. Morris, 770 F.2d 1536 (11th Cir. 1985); Ommaya v. Nat'l Insts. of Health, 726 F.2d 827 (D.C. Cir. 1984); and Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979). Plaintiff does not oppose a remand to Customs for further proceedings, but states that:
§ 1271(a)(1). Upon receipt of this “ten-day notice” (“TDN”), a state must “take appropriate action to cause said violation to be corrected or ... show good cause” why the violation has not been corrected within ten days. § 1271(a)(1); see also Coteau Props. Co. v. Dep't of Interior, 53 F.3d 1466, 1473 (8th Cir.1995); 30 C.F.R. § 842.11(b)(1)(ii)(B)(1). Federal regulations define “good cause” to include circumstances in which “[u]nder the State program, the possible violation does not exist.” § 842.11(b)(1)(ii)(B)(4)(i). If a state fails to take appropriate action or show good cause, SMCRA requires that OSMRE “order Federal inspection.” § 1271(a)(1); see also§ 842.11(b)(1)(ii)(B)(1). Federal inspections that indicate a permittee is “in violation of any requirement of [SMCRA] or any permit condition required by [SMCRA,]” not accompanied by imminent danger to the public, result in the issuance by OSMRE of a notice of violation (“NOV”) to the permittee. § 1271(a)(3).
Friend has identified one case where this Court conducted its own Dataphase analysis even though the district court had not addressed all of the Dataphase factors. See Coteau Props. Co. v. Dep't of Interior, 53 F.3d 1466, 1480–81 (8th Cir.1995). However, the more common approach is to remand for the district court to conduct the full analysis in the first instance. See, e.g., Lankford v. Sherman, 451 F.3d 496, 513 (8th Cir.2006) (remanding for further proceedings when district court had not considered all four Dataphase factors); Blue Moon Entm't, LLC v. City of Bates City, Mo., 441 F.3d 561, 566 (8th Cir.2006) (same); Dataphase, 640 F.2d at 114 (same).
We, too, have so held. See Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 497 (3d Cir. 1987) ("because Pennsylvania's regulatory plan has been approved by the Secretary, jurisdiction over the alleged violations of the state statute and regulations lies exclusively in the courts of Pennsylvania"); Babbitt, 63 F.3d at 234 (noting SMCRA's "mechanism" for according states "exclusive jurisdiction over regulation"); see also Coteau Properties Co. v. Dep't of Interior, 53 F.3d 1466, 1472-73 (8th Cir. 1995) ("Primacy status gives the state "exclusive jurisdiction. . . .,' § 1253(a), and state, not federal, regulations govern once a state program is approved by OSM."); National Wildlife Fed. v. Lujan, 928 F.2d 453, 464 n. 1 (D.C. Cir. 1991) (Wald, J., concurring); Laurel Pipe Line Co. v. Bethlehem Mines Corp., 624 F.Supp. 538, 540 (W.D.Pa. 1986).
Of course, neither the District Court's denial of the motion nor our affirmation of the District Court's judgment will bind the District Court or the parties in any further proceedings in this case, for adjudication of a motion for a preliminary injunction is not a decision on the merits of the underlying case. See Campbell "66" Express, Inc. v. Rundel, 597 F.2d 125, 130 (8th Cir. 1979) (per curiam) (quoting Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir. 1948)); see also Coteau Properties Co. v. Department of Interior, 53 F.3d 1466, 1482 n. 2 (8th Cir. 1995) (Heaney, J., dissenting). The judgment of the District Court is affirmed.