United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
court has reviewed the parties' responses to its June 7,
2017 Order (Doc. 79) and determined that it lacks
jurisdiction to decide whether the preliminary injunction in
this case has dissolved of its own accord or otherwise should
a litigant files a notice of appeal, the district court loses
jurisdiction over the case, save for ‘collateral
matters not involved in the appeal.'” McKissick
v. Yuen, 618 F.3d 1177, 1196 (10th Cir. 2010) (quoting
Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228,
1237 (10th Cir. 1998)). Here, Intervenors' appeal from
the court's Order granting plaintiff's motion for a
preliminary injunction still is pending before the Tenth
Circuit. Doc. 66. So, it would appear, the court lacks
jurisdiction to consider whether the preliminary injunction
Intervenors ask the court to find that the injunction has
dissolved, even though they concede that “a live
appeal” remains “pending before the Tenth
Circuit.” Doc. 85 at 2. Intervenors do not theorize
that the court has jurisdiction to determine the status of
the injunction. Instead, they base their request on the fact
that plaintiff originally agreed with Intervenors that the
preliminary injunction had dissolved. At least the factual
premise of Intervenors' argument is correct. Plaintiff
originally asked the court to find that the injunction had
dissolved on its own. Doc. 83. But, when the United States
filed its Response to the court's June 7, 2017 Order
questioning the court's jurisdiction to determine the
injunction's status, plaintiff changed position. It
agreed with the United States's view of the relevant case
law. Doc. 84. The court's research reveals no Tenth
Circuit case in point, but the District of New Mexico faced a
similar situation in Fleming v. Gutierrez, No.
13-CV-222 WJ/RHS, 2014 WL 12652305 (D.N.M. Dec. 31, 2014).
Fleming, the court granted the plaintiffs'
motion for a preliminary injunction. Id. at *1. The
injunction's terms stated that it would be in effect from
September 12, 2014, until the election ended on November 4,
2014, “at which point, the [c]ourt noted it would
inquire whether further matters pending in the case precluded
the dismissal and closure of the injunction.”
Id. The defendants appealed the court's
injunction order on October 9, 2014. Id. After the
November 4 election, plaintiffs filed a motion, asking the
court to “dissolve the Preliminary Injunction, ”
and “essentially argu[ing] that the injunction ha[d]
served its purpose and [could] be dissolved on its own terms,
despite the appeal because any relief [the] [d]efendants
[sought] on appeal ha[d] been foreclosed.” Id.
The New Mexico district court disagreed. It explained that
one of the issues on appeal was whether it “had
jurisdiction to impose the injunction” in the first
place, and so dissolving the injunction could not be
collateral to the appeal. Id. at *2. “Whether
th[e] [c]ourt had jurisdiction to impose the Preliminary
Injunction . . . is the lifeblood of the injunction.”
Id. The court thus denied the plaintiffs'
motion, holding that it had “no authority to dissolve
the injunction” “[u]ntil the Tenth Circuit
reach[ed] its decision on the pending appeal.”
Id. at *1.
Fleming, a question exists in this case whether the
preliminary injunction has dissolved on its own. Also like
Fleming, Intervenors have appealed the court's
preliminary injunction order, arguing that our court lacked
jurisdiction to hear this case and enter the injunction.
Brief of Defendants-Appellants at 14, Kansas ex rel. Kan.
Dep't for Children & Families v. SourceAmerica,
No. 16-3228 (10th Cir. Oct. 10, 2016), ECF No. 1019699962.
And here, the Tenth Circuit has asked the parties to brief
the question whether the arbitration panel's decision
mooted Intervenors' appeal. Order, Kansas ex rel.
Kan. Dept. for Children & Families, No. 16-3228
(10th Cir. May 12, 2017), ECF No. 1019809248.
court agrees with the District of New Mexico's reasoning
in Fleming, while such questions pend before the
Tenth Circuit the court may not address the preliminary
injunction's status. Not only is the question whether the
court had jurisdiction to impose the preliminary injunction
part and parcel of the injunction, the question posed by the
court's June 7, 2017 Order nearly is identical to the
Tenth Circuit's mootness question. The court thus
concludes that it has no jurisdiction over questions about
the preliminary injunction's status. See, e.g.,
Int'l Bus. Machs. Corp. v. Johnson, 355 F.
App'x 454, 455-56 (2d Cir. 2009) (holding that the
district court had no jurisdiction to consider the
plaintiff's second motion for a preliminary injunction
while an appeal from the court's denial of its first
motion for a preliminary injunction was pending before the
Second Circuit, even though the plaintiff's second motion
“asserted a nominally different cause of
action”); Pueblo of Pojoaque v. New Mexico,
214 F.Supp.3d 1028, 1066-68 (D.N.M. 2016) (discussing cases
where various federal courts, including our court, have held
that a district court lacked jurisdiction over questions
about preliminary injunctions where parties had appealed the
court's injunction ruling); Mountain Sols., Inc. v.
State Corp. Comm'n of State of ...