After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

September 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED KEETOOWAH BAND OF

CHEROKEE INDIANS IN

OKLAHOMA,

Plaintiff-Appellee,

v.

UNITED STATES OF AMERICA,

ex rel. Gale A. Norton, Secretary of

the Interior; PHILIP N. HOGEN,

Chairman of National Indian Gaming

Commission,

Defendants,

and

STATE OF OKLAHOMA, ex rel.

Tim Kuykendall, District Attorney

District 21, Special Prosecutor,

Defendant-Appellant.

THE CHEROKEE NATION,

Amicus Curiae.

No. 06-7033

(D.C. No. 04-CV-340-RAW)

(E.D. Okla.)

ORDER AND JUDGMENT

*
(...continued) *

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.

The State of Oklahoma appeals the district court’s order setting aside a

final decision of the National Indian Gaming Commission (Commission) and

remanding to the Commission for further proceedings. In the same order the

district court also denied as moot the State’s summary judgment motion and noted

that a preliminary injunction maintaining the status quo remained in effect. We

dismiss the appeal for lack of jurisdiction because the order is not a final order.

I. Background

This action involves a dispute between the United Keetoowah Band of

Cherokee Indians in Oklahoma (UKB), the United States, and Oklahoma,

regarding whether UKB can legally operate a gaming facility on certain land in

Tahlequah, Oklahoma (Land). UKB asserts that the Land is “Indian land” as

defined by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2703(4), and

is therefore subject to regulation by the Commission. UKB began operating a

gaming facility on the Land at least as early as 1991 and the Commission began

regulating those gaming operations beginning as early as 1993. But in September
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2000, the Commission informed UKB by letter that it had reached the conclusion

that the Land is not “Indian land” and therefore the IGRA does not apply to

UKB’s gaming operations. Consequently, the Commission ceased all regulation

of those operations.

Oklahoma then informed UKB that its gaming operations on the Land were

in violation of state law, which it intended to enforce against UKB. UKB filed a

declaratory judgment action against Oklahoma in state court. The state court

enjoined Oklahoma from enforcing its laws against UKB’s purported gaming

violations “during the pendency of this action until such time that a final order is

entered.” App., Vol. 1 at 55. Oklahoma removed the case to federal court and

filed a declaratory judgment counterclaim against UKB. UKB later amended its

complaint to add the United States as a defendant under the Administrative

Procedure Act (APA), 5 U.S.C. § 702.

All parties filed motions for summary judgment. The district court also

asked for additional briefing on whether the Commission’s September 2000 letter

determining that the Land was not Indian land was a final decision under the APA

and whether that determination was arbitrary and capricious. In an order dated

January 26, 2006, the district court concluded that the Commission’s letter was a

final agency action. The court reversed the Commission’s determination as

arbitrary and capricious and remanded to the Commission for further proceedings. 

With respect to the pending summary judgment motions, the district court stated,
The United States also appealed the January 26 order, see Case No. 1

06-7028, but subsequently dismissed its appeal.

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“Because the Court is remanding this matter to the [Commission] for further

investigation and explanation, motions for summary judgment . . . in this action

are moot.” App., Vol. 3 at 773. The court stated further that, “[i]n order to

maintain the status quo, the preliminary injunction remains in effect.” Id. at 774. 

Oklahoma filed a timely notice appealing the district court’s January 26 order.1

We asked the parties to submit briefs addressing whether that order is appealable.

II. Discussion

We have appellate jurisdiction over final decisions of the district courts

under 28 U.S.C. § 1291. Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). 

Id. “Generally, to be final and appealable, the district court’s judgment must end

the litigation and leave nothing to be done except execute the judgment.” Id.

(quotation and brackets omitted). “The finality requirement in § 1291 evinces a

legislative judgment that restricting appellate review to final decisions prevents

the debilitating effect on judicial administration caused by piecemeal appeal

disposition of what is, in practical consequences, but a single controversy.” Mesa

Oil, Inc. v. United States, 467 F.3d 1252, 1254 (10th Cir. 2006) (quotation

omitted).

There are exceptions to the final judgment rule. Under 28 U.S.C.

§ 1292(a)(1) we have jurisdiction to review “[i]nterlocutory orders of the district
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courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions.” But we construe this section

narrowly “to ensure that appeal as of right under § 1292(a)(1) will be available

only in limited circumstances.” Pimentel & Sons Guitar Makers, Inc. v. Pimentel,

477 F.3d 1151, 1153 (10th Cir. 2007) (quotation and brackets omitted).

Oklahoma argues first that we have appellate jurisdiction under § 1291

because the district court’s January 26 order is a final judgment on its

counterclaim. Alternatively, the State maintains that we have jurisdiction under

§ 1292(a)(1) because the January 26 order “continued” the preliminary injunction. 

We reject both of these contentions as meritless.

A. Jurisdiction Under § 1291

A district court’s remand to an administrative agency for further

proceedings is ordinarily not a final, appealable order. See Bender, 744 F.2d at

1426-27. Oklahoma does not argue that any exception to that rule applies in this

case. See id. at 1427-28 (noting the “general proposition is not to be applied if it

would violate basic judicial principles”). Rather, it argues that the district court

“effectively” dismissed its claim against UKB as moot, by entering a final

judgment in the case. Aplt. Jurisdictional Br. at 6. Although the State does not

include a citation to the record, it apparently relies upon the judgment entered

contemporaneously with the district court’s January 26 order. This argument

borders on being frivolous. First, the State points to no order by the district court
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dismissing its counterclaim. Indeed, it is clear that in its January 26 order the

district court merely denied Oklahoma’s summary judgment motion as moot

pending the outcome of its remand to the Commission. Moreover, the district

court did not direct entry of final judgment on the State’s counterclaim, as

required by Fed. R. Civ. P. 54(b). The judgment entered by the district court

states only that, “[i]n accordance with the Order entered contemporaneously

herewith, this action is hereby remanded to the National Indian Gaming

Commission for further proceedings.” App., Vol. 3 at 775. Because the district

court’s January 26 order is not a final judgment on Oklahoma’s claim against

UKB, we have no jurisdiction to review it under § 1291.

B. Jurisdiction Under § 1292(a)(1)

Oklahoma asserts alternatively that we have jurisdiction under § 1292(a)(1)

because the January 26 order left the preliminary injunction in place. We

conclude that we do not have jurisdiction to review any of the State’s claims of

error by the district court with respect to the preliminary injunction.

First, it argues that the injunction was “obtained without authority of law.” 

Aplt. Opening Br. at 35. The State moved to vacate the preliminary injunction on

that basis, but the district court denied its motion on June 24, 2005. We would

ordinarily have jurisdiction to review the district court’s interlocutory denial of a

motion to vacate an injunction under § 1292(a)(1). See Commercial Sec. Bank v.

Walker Bank & Trust Co., 456 F.2d 1352, 1355 (10th Cir. 1972) (holding order
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refusing to dissolve or modify preliminary injunction appealable under

§ 1292(a)(1)). But the State did not appeal that ruling within the time period

prescribed by Fed. R. App. P. 4(a)(1). See Aid for Women v. Foulston, 441 F.3d

1101, 1109 (10th Cir. 2006) (applying Rule 4(a)(1) to appeal under § 1292(a)(1)). 

Because it failed to file a timely notice of appeal, we are without jurisdiction to

review the district court’s order denying the State’s motion to vacate the

preliminary injunction. Alva v. Teen Help, 469 F.3d 946, 948 (10th Cir. 2006)

(holding timely notice of appeal is jurisdictional prerequisite to appellate review).

Second, Oklahoma contends that we have jurisdiction under § 1292(a)(1)

because, in denying its summary judgment motion, the district court again

rejected its request to vacate the preliminary injunction. The State did not seek to

have the injunction dissolved in its summary judgment motion. See App., Vol. 2

at 318. Nor did it address in its summary judgment brief the propriety of

continuing or dissolving the preliminary injunction prior to the entry of final

judgment. But it points to the following request for relief in its summary

judgment brief:

Since the material facts are not in dispute, this Honorable Court

should grant the State . . . Summary Judgment on its Counterclaim

against the Plaintiff . . ., vacate the Temporary Injunction heretofore

entered and extended and declare that the commercial gambling

operations being conducted on the [Land] by Plaintiff are within the

jurisdiction of the State. . . .
The State asserts on appeal that the district court should have granted 2

summary judgment in its favor and it asks this court to remand with an instruction

to the district court to do so. See Aplt. Opening Br. at 24-33, 35.

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Id. at 347 (emphasis omitted). Although it asserts that we have appellate

jurisdiction under § 1292(a)(1) based on the district court’s denial of this request

to vacate the injunction, it is clear that, through this appeal, Oklahoma seeks a

review of the merits of its summary judgment motion.2

We conclude that the district court’s denial of Oklahoma’s summary

judgment motion as moot is not an appealable order under § 1292(a)(1). It is

well-settled law that the denial of summary judgment is not a final, appealable

decision. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966

(10th Cir. 2002) (dismissing appeal of denial of summary judgment for lack of

jurisdiction). Moreover, even when a district court denies a summary judgment

motion seeking a permanent injunction, § 1292(a)(1) does not provide a basis for

appellate jurisdiction. In Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market,

Inc., 385 U.S. 23, 25 (1966), the Supreme Court characterized the denial of such a 

summary judgment motion because of disputed issues of fact as relating only to

“pretrial procedures” and therefore not “‘interlocutory’ within the meaning of

§ 1292(a)(1).” The Court observed that “[a] district judge’s orders advancing a

case to trial ought not to be critically examined and re-examined by the

cumbersome method of appeal before he has approached the stage of

adjudication.” Id. at 25 n.3 (quotation omitted). See also Heron v. City and
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County of Denver, 317 F.2d 309, 311 (10th Cir. 1963) (holding denial of summary

judgment motion seeking permanent injunction not appealable under

§ 1292(a)(1)). Nor do we have jurisdiction under § 1292(a)(1) to review a denial

of summary judgment that is characterized as refusing to dissolve, rather than

denying, an injunction. See Beasley v. Union Pac. R.R. Co., 652 F.2d 749, 750

(8th Cir. 1981) (per curiam) (applying Switzerland Cheese to dismiss appeal for

lack of jurisdiction where denial of summary judgment resulted in failure to

dissolve injunction).

Here, Oklahoma sought a final judgment in its favor, one result of which

would be dissolution of the preliminary injunction. If the district court had

denied the State’s motion based on material facts in dispute, its order would not

be appealable. See Switzerland Cheese, 385 U.S. at 25 (noting that denial of

summary judgment “is strictly a pretrial order that decides only one thing–that the

case should go to trial”). But the district court did not deny the State’s motion on

the merits. It simply held that all parties’ summary judgment motions were moot

pending the remand to the Commission, effectively postponing its ruling on the

motions. Under settled law precluding piecemeal appeals, we do not have

jurisdiction to review the district court’s order denying Oklahoma’s summary

judgment motion as moot.

Finally, the State argues that we have jurisdiction to review the district

court’s January 26 order because it explicitly left the preliminary injunction in
UKB argues that we should reject this argument because the district court’s 3

order did not “extend or prolong the restraint.” Sierra Club v. Marsh, 907 F.2d

210, 213 (1st Cir. 1990). But this court has not construed “continuing” in

§ 1292(a)(1) so narrowly. See Keyes v. Sch. Dist. No. 1, 895 F.2d 659, 663

(10th Cir. 1990) (equating “continuing” an injunction with refusing to dissolve

it).

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place pending the outcome of the remand to the Commission, thus “continuing”

the injunction under § 1292(a)(1). Once again, we disagree. Under § 1292(a)(1), 3

we have jurisdiction over “orders regarding express motions for injunctive relief”

and “orders with the practical effect of disposing of a request for injunctive

relief.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1184-85 (10th Cir. 1999)

(quotations omitted). Here, Oklahoma never asked the district court to vacate the

preliminary injunction pending the remand to the Commission. Absent such a

request, the district court’s statement that the order would remain in effect does

not transform its otherwise-unappealable order into an appealable interlocutory

injunctive order. Cf. Lermer Germany GmbH v. Lermer Corp., 94 F.3d 1575,

1577 (Fed. Cir. 1996) (dismissing appeal of order “refusing” preliminary

injunction under § 1292(a)(1) where that relief was never requested). “[T]here is

no reason to grant a right to appellate review of a district court order denying

relief that was not sought.” Id. Were we to hold otherwise, a district court could

not point out the continuing effect of a preliminary injunction without creating an

appealable order.
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III. Conclusion

The appeal is DISMISSED for lack of jurisdiction. The Cherokee Nation’s

motions to file amicus briefs are DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge