Jenkins v. Reyes ( 2022 )

Appellate Case: 21-4148 Document: 010110718956 Date Filed: 08/02/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 2, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MARY CAROL JENKINS;
ANGEL KANE,
Plaintiffs - Appellants,
v. No. 21-4148
(D.C. No. 2:21-CV-00385-RJS-DAO)
SEAN D. REYES, Utah Attorney (D. Utah)
General,
Defendant - Appellee,
and
DEB HAALAND, Secretary of the
U.S. Department of the Interior;
UTE TRIBAL COUNCIL
MEMBERS,
Defendants.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, McHUGH, and MORITZ, Circuit Judges.
_________________________________
*
Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 21-4148 Document: 010110718956 Date Filed: 08/02/2022 Page: 2
This appeal grew out of a struggle for control over a region that the
plaintiffs refer to as “the Uinta Valley Reserve.” The plaintiffs contend
that the Uinta Band of Utah Indians is not subject to state or federal
jurisdiction for actions arising within the Uinta Valley Reserve. Asserting
the sovereignty of the Uinta Band of Utah Indians, the plaintiffs sued the
Attorney General of Utah, the U.S. Secretary of the Interior, and members
of the Ute Tribal Council.
The plaintiffs requested a temporary restraining order and
preliminary injunction. The district court denied both requests, and the
plaintiffs moved for reconsideration. The district court denied that motion,
and the plaintiffs appealed. Afterward, the district court dismissed the
claims against the Utah Attorney General and the U.S. Secretary of the
Interior. 1 (The plaintiffs have not filed a proof of service on members of
the Ute Tribal Council.)
1. Scope of the Appeal
The threshold task is to define the scope of the appeal. In our view,
the appeal covers only the denial of the motion for reconsideration. The
plaintiffs’ notice of appeal refers only to the denial of reconsideration, and
we’d lack jurisdiction anyway for prior or later rulings.
1
The court dismissed the claims against the U.S. Secretary of the
Interior after the parties had fully briefed this appeal.
2
Appellate Case: 21-4148 Document: 010110718956 Date Filed: 08/02/2022 Page: 3
Granted, the plaintiffs appear to complain about the denial of a
temporary restraining order and preliminary injunction, which had
preceded the denial of reconsideration. But the plaintiffs had only 60 days
to appeal the denial of a temporary restraining order or preliminary
injunction. See Fed. R. App. P. 4(a)(1)(B)(iii) (stating that the appeal
deadline is 60 days when a federal officer is sued in an official capacity).
This deadline expired on November 22, 2021, and the plaintiffs filed their
notice of appeal seventeen days later.
The plaintiffs moved for reconsideration, invoking Fed. R. Civ. P.
59(e) and 60(b). Motions under those rules would ordinarily toll the appeal
period. Fed. R. App. P. 4(a)(4)(A). But Rule 59(e) and Rule 60(b) don’t
apply because
 those rules cover only post-judgment motions and
 the district court hasn’t entered a judgment.
The district court thus treated the motion as one under Rule 54(b), and the
plaintiffs do not question that treatment. But motions under Fed. R. Civ.
P. 54(b) do not toll the deadline to appeal. See Fed. R. App. P. 4(a)(4)(A);
see also Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991)
(stating that a motion for reconsideration, which consisted of an
interlocutory motion to revise an interlocutory ruling prior to the final
judgment, did not trigger the tolling provisions applicable to motions under
Rule 59(e)). So the appeal is late as to the denial of a temporary
3
Appellate Case: 21-4148 Document: 010110718956 Date Filed: 08/02/2022 Page: 4
restraining order and preliminary injunction. We’d thus lack jurisdiction
for an appeal from the denial of a temporary restraining order or
preliminary injunction. See Grosvenor v. Qwest Corp., 733 F.3d 990, 996–
97 (10th Cir. 2013) (stating that the timely filing of a notice of appeal is
jurisdictional).
Nor could the appeal cover the dismissal of the Utah Attorney
General or U.S. Secretary of Interior. The plaintiffs had filed this appeal
before the district court dismissed the claims against the Utah Attorney
General and U.S. Secretary of the Interior. And a notice of appeal does not
encompass subsequent orders. See B. Willis, C.P.A., Inc. v. BNSF Ry.,
531 F.3d 1282, 1296 (10th Cir. 2008).
We thus confine our consideration to the denial of reconsideration.
2. Consideration of the Motion for Reconsideration
In moving for reconsideration, the plaintiffs requested a temporary
restraining order and a hearing on the motion for a preliminary injunction.
So the plaintiffs urged the district court to grant the prior request for a
temporary restraining order. But a temporary restraining order is not
ordinarily appealable. Caddo Nation of Okla. v. Wichita & Affiliated
Tribes, 877 F.3d 1171, 1173 n.1 (10th Cir. 2017).
An exception exists, allowing appellate consideration of a temporary
restraining order when it has the practical effect of denying an injunction,
bears irreparable consequences, and cannot later be challenged. United
4
Appellate Case: 21-4148 Document: 010110718956 Date Filed: 08/02/2022 Page: 5
States v. Colorado, 937 F.2d 505, 507–08 (10th Cir. 1991). But the
plaintiffs have not urged irreparable consequences or denied their ability to
appeal after the district court enters a final judgment. Because the
exception does not apply, the plaintiffs cannot appeal the denial of their
motion for reconsideration. 2
3. Request for Reassignment
The plaintiffs urge us not only to remand the case but also to
reassign the case to another district judge. Because we aren’t remanding,
we have no reason to reassign the case to another district judge. 3
***
2
This appeal would also be moot as to the Utah Attorney General or
the U.S. Secretary of the Interior. If the district court were to reconsider
and grant a temporary restraining order against the Utah Attorney General
or U.S. Secretary of the Interior, the order would have expired upon their
dismissals. See United States ex rel. Bergen v. Lawrence, 848 F.2d 1502,
1512 (10th Cir. 1988) (concluding that an appeal from a preliminary
injunction becomes moot upon the entry of a final judgment).
3
In moving for reconsideration, the plaintiffs asked the district judge
to recuse. He declined to do so. Until the entry of a final judgment, the
plaintiffs cannot appeal the denial of a motion to recuse. Nichols v. Alley,
71 F.3d 347, 350 (10th Cir. 1995) (per curiam).
We could conceivably interpret the plaintiffs’ opening brief as a
petition for mandamus. But the plaintiffs have pointed only to their
disagreement with the rulings, and that disagreement does not require
recusal. Liteky v. United States, 510 U.S. 540, 555 (1994).
5
Appellate Case: 21-4148 Document: 010110718956 Date Filed: 08/02/2022 Page: 6
We dismiss the appeal because we lack jurisdiction to consider the
denial of the plaintiffs’ motions for a temporary restraining order,
preliminary injunction, and reconsideration.
Entered for the Court
Robert E. Bacharach
Circuit Judge
6