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DEPARTMENT OF ENERGY v. BRIMMER

Nos. 10-40, 10-41 and C-81-0263.

673 F.2d 1287 (1982)

DEPARTMENT OF ENERGY, et al., Petitioners, v. Honorable Clarence A. BRIMMER, Respondent. LITTLE AMERICA REFINING COMPANY, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants-Appellants.

Temporary Emergency Court of Appeals.

Decided March 3, 1982.

Attorney(s) appearing for the Case

Mark Kreitman, Dept. of Energy, Washington, D. C., argued the cause for appellants-petitioners. With him on the brief were Nancy C. Crisman, Thomas H. Kemp, Marcia Sowles, and Robert C. Power, Washington, D. C.

Kenneth L. Bachman, Jr., Sara D. Schotland, Eugene M. Goott, and John G. Finneran, Jr., Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., for intervenor Tosco Corp.

Daniel Joseph, Akin, Gump, Strauss, Hauer & Feld, Washington, D. C., argued for intervenor Mobil Oil Corp. With him on the brief were R. Bruce McLean, Harry R. Silver, Edward L. Rubinoff, Clinton R. Batterton, and David A. Holzworth, Washington, D. C.

Dan Bushnell, Kirton, McConkie & Bushnell, Salt Lake City, Utah, argued the cause for plaintiff-appellee. With him on the brief were Stanley K. Hathaway and John B. ("Jack") Speight, Hathaway, Speight & Kunz, Cheyenne, Wyo., and William J. Mutryn, Joseph L. Bianculli, and Barry S. Landsberg, Casson, Calligaro & Mutryn, Washington, D. C.

Before CHRISTENSEN, JAMESON, and DUNIWAY, Judges.

DUNIWAY, Judge:

The Department of Energy appeals from an order of the district court styled a preliminary injunction. We find that the order is appealable as a final order, and we reverse. In the alternative, we find that the district court acted beyond its jurisdiction, and we order that a writ of mandamus issue. We vacate the order of the district court and direct that the action be dismissed with prejudice. We affirm the action of the district judge in refusing...

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