In We the Patriots, et al. v. Grisham, No. 23-2066 (10th Cir. Oct. 28, 2024), the Tenth Circuit dismisses an appeal of the denial of preliminary injunction where, in a different case in the same district, another judge granted the same relief. This is important for cases governed by “prevailing party” fee-shifting statutes, because if a case becomes moot there is no prevailing party and thus no fee award to the plaintiffs.
In New Mexico in 2023, the governor declared a public health emergency from gun violence and decreed – in two successive executive orders – measures to stem the tide of shootings. These included, in relevant part, restrictions on “firearm possession by any person within cities or counties with high rates of violent crime, on state property, at public schools, and in public parks (with an exception for law enforcement or security
officers).” (The order was not renewed in 2024, but that did not moot the action based on official cessation of the challenged conduct “because at this stage of the proceedings, there is no acknowledgment that the order was unconstitutional, let alone any assurance that a comparable order would not be issued in the future.”)
Different groups of gun-rights plaintiffs filed parallel actions in the U.S. District Court for the District of New Mexico to enjoin the executive order (hereinafter referred to as the Second Amended Public Health Order or “PHO”) on Second Amendment grounds. In the present case, “[o]n October 11, 2023, the district court denied Plaintiffs’ motion on the grounds that Plaintiffs failed to show a substantial likelihood of success on the merits.” Yet in another case on December 5, 2023, a different judge in the district granted a preliminary injunction as to public parks. Springer v. Grisham, 704 F. Supp. 3d 1206 (D.N.M. 2023), appeal docketed, Nos. 23-2192 (10th Cir. Dec. 11, 2023) & 23-2194 (10th Cir. Dec. 15, 2023).
The Tenth Circuit dismisses the appeal of the October 11, 2023 order denying an injunction as to public parks on grounds of mootness, due to the intervening Springer decision. “[T]he Springer injunction provides the precise relief requested by Plaintiffs here by preliminarily enjoining the full scope of the Second Amended PHO’s public parks restriction.”
“True, Tenth Circuit precedent does not clearly answer the question of whether the grant of a preliminary injunction in one case moots a plaintiff’s subsequent request for similar relief in a different case.” Moreover, the panel recognizes that “in the context of nationwide injunctions, courts have determined that a nationwide injunction issued by a district court in another circuit does not moot an appeal regarding the grant or denial of a preliminary injunction, although prudential concerns of comity and allowing the law to develop across the circuits may be present . . . . In those cases, however, our sister circuits [citing the Ninth and Elventh Circuits] had good reason to characterize the nationwide injunctions as particularly vulnerable due to judicial skepticism towards nationwide injunctions.”
“Plaintiffs have not given us a serious reason to suspect that those speculative concerns will be realized” with two parallel cases in the same district. “Moreover, Plaintiffs’ request for declaratory and permanent injunctive relief remains pending in the district court (it is very early in the proceedings), so any party could request the district court stay be lifted and a record developed, and ultimately any final judgment could be reviewed on appeal . . . . Plaintiffs’ appeal challenging the denial of the preliminary injunction as to the public parks restriction is thus moot because they have received the relief sought such that that any relief granted by this court would not have any real-world effect.”
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