Repeal-and-Replace Ordinance Moots Preliminary-Injunction Appeal and Bars Pendent Appellate Review

1. Introduction

Scannell Properties #516, LLC and Scannell Properties #673, LLC (collectively, “Scannell”) operate an industrial warehouse and distribution center in Bonner Springs, Kansas, near the border with Edwardsville, Kansas. The cities are divided by 110th Street.

Edwardsville enacted an ordinance restricting heavy trucks (over six tons) from using 110th Street unless the trucks were traveling into or out of Edwardsville—effectively limiting truck access to Scannell’s facilities from that street. Scannell sued Edwardsville and city officials, asserting (among other claims) violations of the Surface Transportation Assistance Act (49 U.S.C. § 31114), the Equal Protection Clause, and the Dormant Commerce Clause, and sought a preliminary injunction.

The district court dismissed the federal claims tied to those provisions and denied preliminary injunctive relief, while allowing state-law claims to proceed. Scannell appealed. While the appeal was pending, Edwardsville repealed the challenged ordinance and replaced it with a revised version that partially changed truck movements (allowing a right turn for southbound trucks onto 110th Street, while still prohibiting certain other movements). The central appellate question became jurisdictional: did repeal and replacement moot the appeal?

2. Summary of the Opinion

The Tenth Circuit (Judge Bacharach) held the appeal was moot because the ordinance addressed by the district court no longer existed and the appeal sought review of the denial of a preliminary injunction against that superseded law. The court took judicial notice of the new ordinance, rejected Scannell’s reliance on the voluntary cessation exception, declined to vacate the preliminary-injunction order, and held it lacked pendent appellate jurisdiction to review the interlocutory dismissals of the federal claims once the preliminary-injunction appeal itself was moot. The court dismissed the appeal for lack of jurisdiction and denied outstanding motions as moot.

Concurrence (Judge Kelly): Judge Kelly agreed with dismissal but disagreed with Part 2.b’s merits comparison of “softened” harms, reasoning the alleged injury (restricted access) remained fundamentally the same under the new ordinance. Nonetheless, because Scannell did not brief the “materiality” point, he would not reach it due to waiver.

3. Analysis

A. Precedents Cited

  • Smith v. Becerra, 44 F.4th 1238 (10th Cir. 2022): Cited for the baseline mootness rule—an appeal is moot when no live controversy remains—and for voluntary-cessation principles.
  • Ind v. Colo. Dep't of Corr., 801 F.3d 1209 (10th Cir. 2015): Jurisdictional issues like mootness may be raised at any time, supporting consideration of mootness even though not argued in district court.
  • Fuqua v. Santa Fe Cnty. Sheriff's Off., 157 F.4th 1288 (10th Cir. 2025), and Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495 (10th Cir. 1997): Support judicial notice of materials (here, the new ordinance) absent from the appellate record.
  • Colo. Motor Carriers Ass'n v. Town of Vail, 153 F.4th 1052 (10th Cir. 2025): Used for the preliminary-injunction balancing framework; the court emphasized that changed legal restrictions alter the equitable balancing the district court must perform.
  • Chegup v. Ute Indian Tribe of Uintah & Ouray Rsrv., 28 F.4th 1051 (10th Cir. 2022) (quoting CGC Holding Co. v. Hutchens, 974 F.3d 1201 (10th Cir. 2020)): Reinforces the “court of review, not first view” principle, supporting dismissal where the district court never assessed the new ordinance’s distinct balance of harms.
  • Kan. Jud. Rev. v. Stout, 562 F.3d 1240 (10th Cir. 2009): A leading Tenth Circuit mootness case for “repeal-and-replace” situations; material amendments with “significant narrowing language” can moot an appeal challenging the prior version.
  • Citizens for Responsible Gov't State Pol. Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000): Quoted for the test whether new law is “sufficiently similar” such that the challenged conduct continues; also cited in Stout.
  • Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993): Appears in the majority (via Davidson) and is central to Judge Kelly’s concurrence. It supplies the “same fundamental way” disadvantage standard for assessing whether a new enactment moots a challenge.
  • Am. Charities for Reasonable Fundraising Regul., Inc. v. O'Bannon, 909 F.3d 329 (10th Cir. 2018): Cited by the majority for the proposition that “fundamental changes” can moot even if the plaintiff also challenges the new version; Judge Kelly distinguishes it as involving a concession that the new ordinance did not apply to the plaintiff.
  • Tomkins v. U.S. Dep't of Veterans Affairs, 16 F.4th 733 (10th Cir. 2021), and Medina v. Catholic Health Initiatives, 877 F.3d 1213 (10th Cir. 2017): Support waiver principles and the court’s discretion to address waived issues to clarify reasoning.
  • Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010): Sets out voluntary-cessation doctrine and explains why repeal of ordinances typically is not treated as strategic manipulation.
  • Camfield v. City of Okla. City, 248 F.3d 1214 (10th Cir. 2001): Supports mootness after amendment absent evidence of intent to reenact the prior version.
  • Utah Shared Access All. v. Carpenter, 463 F.3d 1125 (10th Cir. 2006): Once moot, dismissal is required.
  • Wyoming v. U.S. Dep't of Interior, 587 F.3d 1245 (10th Cir. 2009): Discusses vacatur when mootness prevents appellate review.
  • Fleming v. Gutierrez, 785 F.3d 442 (10th Cir. 2015): Establishes the Tenth Circuit’s general practice of not vacating preliminary-injunction orders when the appeal becomes moot.
  • Paugh v. Uintah Cnty., 47 F.4th 1139 (10th Cir. 2022); Shinault v. Cleveland Cnty. Bd. of Cnty. Comm'rs, 82 F.3d 367 (10th Cir. 1996); and Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., 142 F.4th 1262 (10th Cir. 2025): Define the limits of pendent appellate jurisdiction and confirm it cannot exist without a valid anchor for appellate jurisdiction.

B. Legal Reasoning

  1. Jurisdiction first: mootness can be raised anytime. Relying on Ind v. Colo. Dep't of Corr., the court held the city’s failure to raise mootness below was irrelevant because mootness is jurisdictional. The court then used Fuqua and Zimomra to judicially notice the new ordinance despite its absence from the record.
  2. The appeal targeted a superseded ordinance. The court framed the case as an appeal from the denial of preliminary injunctive relief against the original ordinance. Because that ordinance was repealed and replaced, the “live controversy” over whether to enjoin that ordinance evaporated. Any ongoing injury, the court said, now flowed from the new ordinance and would require a fresh district-court balancing under Colo. Motor Carriers Ass'n v. Town of Vail.
  3. Material change moots; similarity can preserve jurisdiction, but not here. The court acknowledged that in some circumstances replacement does not moot (citing Kan. Jud. Rev. v. Stout), but emphasized the general rule: when the law changes “in a material way” and softens the injury, the appeal is moot. The court analogized to Stout, treating the new ordinance’s partial allowance of access as a fundamental enough change to end appellate jurisdiction over the prior ordinance. The majority also noted Scannell did not argue immateriality, invoking Tomkins (waiver), though it still discussed similarity under Citizens for Responsible Gov't State Pol. Action Comm. v. Davidson.

    Concurrence’s critique: Judge Kelly argued the majority’s “softening” analysis sits uneasily with Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, because even a lesser disadvantage may still be the “same fundamental” disadvantage (restricted access). He would have avoided the comparison entirely due to waiver.
  4. Voluntary cessation exception generally inapplicable to ordinance repeal. Under Rio Grande Silvery Minnow v. Bureau of Reclamation, voluntary cessation prevents defendants from mooting a case by stopping challenged conduct only to restart it later. But the court treated legislative repeal as less susceptible to manipulation and found no credible risk of re-enactment, pointing to the city’s history of progressively easing restrictions and citing Camfield v. City of Okla. City.
  5. No appellate retooling of relief. Scannell’s suggestion that the court could still enjoin violations of the Surface Transportation Assistance Act failed procedurally: Scannell had not sought an appellate injunction under Fed. R. App. P. 8(a)(2). The court confined itself to reviewing the district court’s ruling about an ordinance that no longer existed.
  6. Consequences of mootness: dismissal, no vacatur, no pendent review. Once moot, dismissal was required (Utah Shared Access All. v. Carpenter). The court considered vacatur (Wyoming v. U.S. Dep't of Interior) but declined because it “usually” does not vacate preliminary-injunction orders rendered moot on appeal (Fleming v. Gutierrez). Finally, the court refused pendent appellate jurisdiction over the interlocutory dismissals of Scannell’s federal claims: without a live preliminary-injunction appeal, there was no jurisdictional anchor for pendent review (Paugh v. Uintah Cnty.; Shinault v. Cleveland Cnty. Bd. of Cnty. Comm'rs; Vivos Therapeutics, Inc. v. Ortho-Tain, Inc.).

C. Impact

  • Sharper “repeal-and-replace” mootness posture in preliminary-injunction appeals. The decision signals that where an appeal is tethered to interim injunctive relief against a specific enactment, repeal/replacement will often moot the appeal—especially if the new law changes the injunction’s harm-balancing calculus. Practically, plaintiffs should anticipate needing a new motion for preliminary injunction directed to the new enactment.
  • Judicial notice lowers procedural friction for mootness based on post-judgment legal changes. By leaning on Fuqua and Zimomra, the court confirms that municipalities can support mootness with superseding ordinances even if those ordinances postdate the record, reducing incentives for remands merely to “complete the record.”
  • Voluntary cessation remains hard to invoke against legislative bodies absent concrete evidence. The court’s skepticism, grounded in Rio Grande and Camfield, raises the evidentiary bar for plaintiffs who argue a city will reenact a repealed ordinance after litigation ends.
  • Pendent appellate jurisdiction cannot salvage interlocutory dismissals once the anchor appeal is gone. Litigants often attempt to “bundle” review of dismissals with interlocutory appeals from injunction rulings. This opinion reinforces that pendent review collapses when the interlocutory hook becomes moot.
  • Continuing doctrinal tension on “similarity” vs. “softening.” Judge Kelly’s concurrence underscores a live fault line: whether a new ordinance that still restricts the same activity is “substantially similar” under Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, even if somewhat less restrictive. Future cases may turn on careful briefing of “materiality” and on developing record evidence of how the injury changes (or does not).

4. Complex Concepts Simplified

Mootness
A federal court can decide only ongoing disputes. If events eliminate the dispute—here, repeal of the challenged ordinance—the court loses power to decide the appeal.
Judicial notice
A court may accept certain facts without formal proof when they are not reasonably disputable (such as the existence and text of a municipal ordinance), allowing the court to consider post-record legal changes.
Preliminary injunction
A temporary court order issued early in a case to prevent alleged harm before final judgment. Granting it typically requires a court to weigh the likely merits and balance harms and public interest—an analysis that can change when the underlying law changes.
Voluntary cessation
A doctrine preventing defendants from escaping review by stopping challenged conduct mid-lawsuit only to resume later. Courts are less likely to apply it when a legislature repeals a law, absent evidence of likely reenactment.
Vacatur
An appellate remedy that wipes out a lower-court ruling when an appeal becomes moot, sometimes used to prevent unfair binding effects. The Tenth Circuit generally declines to vacate orders regarding preliminary injunctions.
Pendent appellate jurisdiction
A narrow doctrine allowing an appellate court to review additional nonappealable orders only when it already has jurisdiction over a related appeal. If the anchor appeal is moot, there is nothing “pendent” jurisdiction can attach to.

5. Conclusion

Scannell Properties 516 v. City of Edwardsville, Kansas primarily establishes a jurisdictional, procedure-focused lesson: when a challenged ordinance is repealed and replaced while a preliminary-injunction appeal is pending, the appeal will ordinarily be moot, particularly where the replacement changes the operative restrictions enough to alter the injunction’s harm balancing. The court further clarifies that it may take judicial notice of the superseding ordinance, that voluntary cessation rarely prevents mootness in the legislative-repeal context absent evidence of reenactment, that vacatur is generally disfavored for moot preliminary-injunction appeals, and that pendent appellate jurisdiction cannot revive review of other interlocutory dismissals once the anchor appeal is gone.