FILED

United States Court of Appeals

Tenth Circuit

October 31, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SUSAN ROSE,

Plaintiff-Appellant,

v.

UTAH STATE BAR, Office of

Professional Conduct; BARBARA

TOWNSEND; BILLY WALKER;

ARTHUR BERGER; JUDGE

VERNICE TREASE,

Defendants-Appellees.

No. 10-4209

(D.C. No. 2:10-CV-01001-WPJ)

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit

Judges.

This is an interlocutory appeal from the denial of a preliminary injunction. 

Susan Rose, a Utah lawyer, initiated the underlying federal lawsuit to challenge

the constitutionality of state disciplinary proceedings brought against her by the

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

unanimously that oral argument would not materially assist 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 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 
Utah bar; she also sought a preliminary injunction to enjoin those proceedings. 

The district court denied an injunction on Younger abstention grounds, see

Younger v. Harris, 401 U.S. 37 (1971), and while this appeal from that decision

was pending, dismissed the underlying action pursuant to Younger as well.1

Following dismissal of the complaint, appellees moved to dismiss this

appeal, claiming it was mooted by the dismissal of the underlying action. 

Ms. Rose responded, but instead of addressing the threshold jurisdictional

question, she maintained Younger did not foreclose preliminary relief. 

We agree this appeal is moot. A preliminary injunction would have

afforded temporary, preliminary relief pending resolution of the underlying

claims. See United States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512

(10th Cir. 1988) (explaining that a “preliminary injunction [is] by its very nature

interlocutory, tentative and impermanent”). Because the underlying claims have

been finally adjudicated by the district court’s dismissal, we can no longer grant

effective preliminary relief. See Baker v. Bray, 701 F.2d 119, 122 (10th Cir.

1983) (“[T]he claim upon which the request for a preliminary injunction was

based . . . was dismissed by the district court, and this action certainly mooted the

1 To be more precise, the court dismissed the underlying action based on

collateral estoppel of the Younger issue—that is, the court recognized that

Ms. Rose had previously litigated and lost the Younger issue in two prior federal

lawsuits and therefore was collaterally estopped from litigating the same issue

again in this, her third federal action.

-2-
issue raised herein.”). Consequently, this appeal must be dismissed as moot. See,

e.g., Sac & Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999)

(dismissing as moot an interlocutory appeal from the denial of a preliminary

injunction following dismissal of underlying action). Ms. Rose’s proper course of

action is to pursue her appeal from the district court’s order dismissing the

complaint, which is currently pending in this court. See Rose v. Utah State Bar,

No. 11-4095 (10th Cir. filed May 11, 2011).

Accordingly, appellees’ motion to dismiss this appeal as moot is

GRANTED. Ms. Rose’s motions to certify a question to the Supreme Court,

strike appellees’ response brief, and file a supplemental appendix are DENIED, as

is appellees’ motion for sanctions.

Entered for the Court

John C. Porfilio

Senior Circuit Judge

-3-