                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       August 5, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
BORDER AREA MENTAL HEALTH
SERVICES, INC.; COUNSELING
ASSOCIATES, INC.; FAMILIES AND
YOUTH, INC.; SOUTHERN NEW
MEXICO HUMAN DEVELOPMENT,
INC.; SOUTHWEST COUNSELING
CENTER, INC.; COUNSELING                                  No. 13-2136
CENTER, INC.; VALENCIA                       (D.C. No. 2:13-CV-00613-MCA-WPL)
COUNSELING SERVICES, INC.;                                 (D. N.M.)
PREBYSTERIAN MEDICAL
SERVICES, INC.; HOGARES, INC.,

             Plaintiffs-Appellants,

v.

SIDONIE SQUIER, Secretary, Human
Services Department of the State of
New Mexico,

             Defendant-Appellee.


                           ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges.

*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiffs, behavioral health services providers, seek to appeal the district

court’s denial of their motion for a temporary restraining order (TRO) and have

requested an injunction pending the resolution their appeal. Because we lack

jurisdiction, we dismiss the appeal and deny the motion for an injunction.

      The denial of a TRO is “ordinarily not appealable.” Office of Pers. Mgmt. v.

Am. Fed’n of Gov’t Emps., 473 U.S. 1301, 1304 (1985) (Burger, C.J., sitting as

Circuit Justice for the District of Columbia Circuit). There are, however, two

exceptions to this general jurisdictional prohibition: when the order is appealable as

a final order under 28 U.S.C. § 1291, and when the order has the practical effect of

denying a preliminary injunction. See Populist Party v. Herschler, 746 F.2d 656, 661

n.2 (10th Cir. 1984). The first exception is not implicated in this case—the district

court’s denial of the TRO is not a final appealable order under § 1291. That leaves

us to determine whether the order may be appealed because it is “a de facto denial of

a preliminary injunction.” Office of Pers. Mgmt., 473 U.S. at 1305. To come within

this exception, in addition to having the “practical effect of denying an injunction,”

the consequences of the order “must [be] “irreparable” and the “the order must be

one that can be effectively challenged only by immediate appeal.” United States v.

Colorado, 937 F.2d 505, 507 (10th Cir. 1991).

      We have thoroughly reviewed the parties’ filings and pertinent law and

conclude that this court has no jurisdiction to review the denial of the TRO in this


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case. The order does not have the “practical effect” of the denial of a preliminary

injunction, the consequences of the denial are not irreparable, and immediate review

is not the only effective means of challenging the order. We therefore dismiss the

appeal and deny as moot the motion for injunction pending appeal.


                                               Entered for the Court
                                               Per Curiam




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