FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 14, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court 303 CREATIVE LLC, a limited liability company; LORIE SMITH,
Plaintiffs - Appellants,
v. No. 17-1344 (D.C. No. 1:16-CV-02372-MSK-CBS) AUBREY ELENIS, Director of the (D. Colo.) Colorado Civil Rights Division, in her official capacity; ANTHONY ARAGON, member of the Colorado Civil Rights Commission, in his official capacity; ULYSSES J. CHANEY, member of the Colorado Civil Rights Commission, in his official capacity; MIGUEL RENE ELIAS, member of the Colorado Civil Rights Commission, in his official capacity; CAROL FABRIZIO, member of the Colorado Civil Rights Commission, in her official capacity; HEIDI HESS, member of the Colorado Civil Rights Commission, in her official capacity; RITA LEWIS, member of the Colorado Civil Rights Commission, in her official capacity; JESSICA POCOCK, member of the Colorado Civil Rights Commission, in her official capacity; CYNTHIA H. COFFMAN, Colorado Attorney General, in her official capacity,
Defendants - Appellees.
--------------------------------------------------
CENTER FOR CONSTITUTIONAL JURISPRUDENCE; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO, Amici Curiae. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, KELLY, and MORITZ, Circuit Judges. _________________________________
Plaintiffs 303 Creative LLC and Lorie Smith sued various Colorado officials
(collectively, the state) to preempt them from enforcing certain parts of the Colorado
Anti-Discrimination Act (CADA), Colo. Rev. Stat. § 24-34-601. The plaintiffs say
the CADA interferes with their plan to design wedding websites for opposite-sex—
but not same-sex—couples. Although there are some pertinent differences, the facts
and legal issues in this case overlap substantially with those in Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), which
the Supreme Court recently decided.
The plaintiffs in this case moved for a preliminary injunction below. The
district court suggested it expedite the litigation by ruling on summary judgment in
conjunction with the preliminary injunction based on stipulated facts. The parties
agreed. The district court then issued an order dismissing several of the plaintiffs’
claims for lack of standing. And it decided not to reach the merits of the plaintiffs’
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument wouldn’t materially assist in the determination of 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. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 2 remaining claims while Masterpiece Cakeshop was pending before the Supreme
Court. It explained:
The parties have agreed that the case is at issue and that the Preliminary Injunction Motion and Motion for Summary Judgment should be determined together in resolution of the matters in dispute on the merits. Although the [p]laintiffs have standing to challenge [part of the CADA], the [c]ourt declines to rule on the merits due to the pendency of Masterpiece Cakeshop . . . before the United States Supreme Court. As noted, the factual and legal similarities between Masterpiece Cakeshop and this case are striking. It is likely that a determination by the Supreme Court will either guide determination of or eliminate the need for resolution of the issues in this case . . . .
Further, the [c]ourt finds that the parties will not be prejudiced by delay in resolution of the issues in this case. The [p]laintiffs are not currently offering to build wedding websites, and no evidence has been presented to show that their financial viability is threatened if they do not begin offering to do so. Thus, the [c]ourt denies the Motions for Preliminary Injunction and Summary Judgment with leave to renew after ruling by the United States Supreme Court in Masterpiece Cakeshop.
App. vol. 3, 375.
The plaintiffs appealed this order. The state moved to dismiss this appeal for
lack of appellate jurisdiction. We reserved judgment on that motion and the parties
proceeded with their merits briefing. Then, while this appeal was pending, the
Supreme Court announced its decision in Masterpiece Cakeshop. We ordered
supplemental briefing on how that decision both affected our appellate jurisdiction
and the merits of this appeal.
Meanwhile, the plaintiffs renewed their motions for a preliminary injunction
and summary judgment in the district court, as the district court invited them to do in
its original order. The district court also ordered supplemental briefing addressing
3 Masterpiece Cakeshop. The parties submitted their supplemental briefs to the district
court the same day they submitted their supplemental briefs to us.
In light of these developments, we now rule on the state’s pending motion to
dismiss.
Ordinarily, we only have jurisdiction to hear appeals from final orders in the
district court. See 28 U.S.C. § 1291. But the plaintiffs argue we have jurisdiction in
this case under 28 U.S.C. § 1292(a)(1), which grants us jurisdiction over certain
interlocutory orders, including those that “refus[e] . . . injunctions.” As they see it,
the district court’s order both expressly and effectively refused their preliminary-
injunction request, so it’s appealable under § 1292(a)(1). The state urges us to view
the order as a temporary stay that isn’t subject to appeal, especially now that the stay
has expired.
Although we recognize that the district court used the word “denies” in
reference to the plaintiffs’ motion for a preliminary injunction, App. vol. 3, 375, we
agree with the state that the order is properly characterized as a stay, see Forest
Guardians v. Babbitt, 174 F.3d 1178, 1185 n.11 (10th Cir. 1999) (“The labels of the
plaintiff and the district court cannot be dispositive of whether an injunction has been
requested or denied.”). After all, the district court expressly declined to reach the
merits of the plaintiffs’ arguments and granted the plaintiffs leave to renew their
motion once the Supreme Court decided Masterpiece Cakeshop. Nevertheless, the
plaintiffs argue that we had appellate jurisdiction while the stay was in effect to the
extent that the stay “had the ‘practical effect’ of refusing [the] plaintiffs’ injunction.”
4 Forest Guardians, 174 F.3d at 1185 (quoting Carson v. Am. Brands, Inc. 450 U.S.
79, 84 (1981)). But even if this court initially had jurisdiction, the stay has since
expired, and the appeal is now moot. See Video Tutorial Servs., Inc. v. MCI
Telecomm. Corp., 79 F.3d 3
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 14, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court 303 CREATIVE LLC, a limited liability company; LORIE SMITH,
Plaintiffs - Appellants,
v. No. 17-1344 (D.C. No. 1:16-CV-02372-MSK-CBS) AUBREY ELENIS, Director of the (D. Colo.) Colorado Civil Rights Division, in her official capacity; ANTHONY ARAGON, member of the Colorado Civil Rights Commission, in his official capacity; ULYSSES J. CHANEY, member of the Colorado Civil Rights Commission, in his official capacity; MIGUEL RENE ELIAS, member of the Colorado Civil Rights Commission, in his official capacity; CAROL FABRIZIO, member of the Colorado Civil Rights Commission, in her official capacity; HEIDI HESS, member of the Colorado Civil Rights Commission, in her official capacity; RITA LEWIS, member of the Colorado Civil Rights Commission, in her official capacity; JESSICA POCOCK, member of the Colorado Civil Rights Commission, in her official capacity; CYNTHIA H. COFFMAN, Colorado Attorney General, in her official capacity,
Defendants - Appellees.
--------------------------------------------------
CENTER FOR CONSTITUTIONAL JURISPRUDENCE; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO, Amici Curiae. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, KELLY, and MORITZ, Circuit Judges. _________________________________
Plaintiffs 303 Creative LLC and Lorie Smith sued various Colorado officials
(collectively, the state) to preempt them from enforcing certain parts of the Colorado
Anti-Discrimination Act (CADA), Colo. Rev. Stat. § 24-34-601. The plaintiffs say
the CADA interferes with their plan to design wedding websites for opposite-sex—
but not same-sex—couples. Although there are some pertinent differences, the facts
and legal issues in this case overlap substantially with those in Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), which
the Supreme Court recently decided.
The plaintiffs in this case moved for a preliminary injunction below. The
district court suggested it expedite the litigation by ruling on summary judgment in
conjunction with the preliminary injunction based on stipulated facts. The parties
agreed. The district court then issued an order dismissing several of the plaintiffs’
claims for lack of standing. And it decided not to reach the merits of the plaintiffs’
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument wouldn’t materially assist in the determination of 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. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 2 remaining claims while Masterpiece Cakeshop was pending before the Supreme
Court. It explained:
The parties have agreed that the case is at issue and that the Preliminary Injunction Motion and Motion for Summary Judgment should be determined together in resolution of the matters in dispute on the merits. Although the [p]laintiffs have standing to challenge [part of the CADA], the [c]ourt declines to rule on the merits due to the pendency of Masterpiece Cakeshop . . . before the United States Supreme Court. As noted, the factual and legal similarities between Masterpiece Cakeshop and this case are striking. It is likely that a determination by the Supreme Court will either guide determination of or eliminate the need for resolution of the issues in this case . . . .
Further, the [c]ourt finds that the parties will not be prejudiced by delay in resolution of the issues in this case. The [p]laintiffs are not currently offering to build wedding websites, and no evidence has been presented to show that their financial viability is threatened if they do not begin offering to do so. Thus, the [c]ourt denies the Motions for Preliminary Injunction and Summary Judgment with leave to renew after ruling by the United States Supreme Court in Masterpiece Cakeshop.
App. vol. 3, 375.
The plaintiffs appealed this order. The state moved to dismiss this appeal for
lack of appellate jurisdiction. We reserved judgment on that motion and the parties
proceeded with their merits briefing. Then, while this appeal was pending, the
Supreme Court announced its decision in Masterpiece Cakeshop. We ordered
supplemental briefing on how that decision both affected our appellate jurisdiction
and the merits of this appeal.
Meanwhile, the plaintiffs renewed their motions for a preliminary injunction
and summary judgment in the district court, as the district court invited them to do in
its original order. The district court also ordered supplemental briefing addressing
3 Masterpiece Cakeshop. The parties submitted their supplemental briefs to the district
court the same day they submitted their supplemental briefs to us.
In light of these developments, we now rule on the state’s pending motion to
dismiss.
Ordinarily, we only have jurisdiction to hear appeals from final orders in the
district court. See 28 U.S.C. § 1291. But the plaintiffs argue we have jurisdiction in
this case under 28 U.S.C. § 1292(a)(1), which grants us jurisdiction over certain
interlocutory orders, including those that “refus[e] . . . injunctions.” As they see it,
the district court’s order both expressly and effectively refused their preliminary-
injunction request, so it’s appealable under § 1292(a)(1). The state urges us to view
the order as a temporary stay that isn’t subject to appeal, especially now that the stay
has expired.
Although we recognize that the district court used the word “denies” in
reference to the plaintiffs’ motion for a preliminary injunction, App. vol. 3, 375, we
agree with the state that the order is properly characterized as a stay, see Forest
Guardians v. Babbitt, 174 F.3d 1178, 1185 n.11 (10th Cir. 1999) (“The labels of the
plaintiff and the district court cannot be dispositive of whether an injunction has been
requested or denied.”). After all, the district court expressly declined to reach the
merits of the plaintiffs’ arguments and granted the plaintiffs leave to renew their
motion once the Supreme Court decided Masterpiece Cakeshop. Nevertheless, the
plaintiffs argue that we had appellate jurisdiction while the stay was in effect to the
extent that the stay “had the ‘practical effect’ of refusing [the] plaintiffs’ injunction.”
4 Forest Guardians, 174 F.3d at 1185 (quoting Carson v. Am. Brands, Inc. 450 U.S.
79, 84 (1981)). But even if this court initially had jurisdiction, the stay has since
expired, and the appeal is now moot. See Video Tutorial Servs., Inc. v. MCI
Telecomm. Corp., 79 F.3d 3, 5 (2d Cir. 1996) (“An interlocutory appeal from a
temporary stay no longer in effect . . . is the paradigm of a moot appeal.”).
Moreover, even if we were to read the district court’s order as refusing the
injunction, the district court effectively vacated that order upon the Supreme Court’s
decision in Masterpiece Cakeshop, and it now appears ready to reconsider the
plaintiffs’ motion for a preliminary injunction. Thus, this appeal is moot regardless of
how we interpret the district court’s order. See Primas v. City of Okla. City, 958 F.2d
1506, 1513 (10th Cir. 1992) (dismissing interlocutory appeal as moot because district
court vacated order appealed from). The plaintiffs’ actions below in renewing their
preliminary-injunction motion and filing supplemental briefing in support of it are
inconsistent with any argument to the contrary. Accordingly, we conclude that we
lack jurisdiction under § 1292(a)(1) to review the plaintiffs’ preliminary-injunction
motion.
The plaintiffs also seek to appeal the portion of the district court’s order
dismissing some of their claims for lack of standing.1 They argue we have pendent
appellate jurisdiction over this part of the order. See Berrey v. Asarco Inc., 439 F.3d
636, 647 (10th Cir. 2006) (“It is appropriate to exercise pendent appellate jurisdiction
1 The plaintiffs initially appealed the portion of the district court’s order denying (pending Masterpiece Cakeshop) summary judgment as well. But they abandoned this part of their appeal in their supplemental brief. 5 . . . where resolution of the appealable issue necessarily resolves the nonappealable
issue, or where review of the nonappealable issue is necessary to ensure meaningful
review of the appealable one.”). But because we lack appellate jurisdiction over the
portion of the order staying the preliminary-injunction motion, we cannot exercise
pendent jurisdiction over any other part of the order. See Shinault v. Cleveland Cty.
Bd. of Cty. Comm’rs, 82 F.3d 367, 371 (10th Cir. 1996). And because the plaintiffs
don’t assert an alternative basis for us to review the partial dismissal, we dismiss the
plaintiffs’ appeal in its entirety. See EEOC v. PJ Utah, LLC, 822 F.3d 536, 542 n.7
(10th Cir. 2016) (explaining appellant has burden of establishing appellate
jurisdiction).
Therefore, even assuming we once had jurisdiction to hear this appeal, we
conclude it is now moot. Accordingly, we grant the state’s motion to dismiss this
appeal for lack of jurisdiction.
Entered for the Court
Nancy L. Moritz Circuit Judge