Opinion
No. 388-70.
November 24, 1970. Rehearing Denied December 28, 1970.
Ted R. Fisher, Tulsa, Okla., for appellant.
James D. Batchelor, Jerry L. Salyer and John W. Swinford, Jr., Oklahoma City, Okla., for appellees.
Before LEWIS, Chief Judge, PICKETT, Circuit Judge, and KERR, District Judge.
The district court denied a request for convening of a three-judge district court, 28 U.S.C. § 2281, on the ground that a substantial federal question was not presented in the complaint. Lindauer v. Oklahoma City Urban Renewal Authority, 312 F. Supp. 1361 (W.D.Okla. 1970). A timely notice of appeal from that order was filed.
Upon docketing in this court, we noted the apparent jurisdictional flaw and notified the appellant that we were considering summary dismissal for lack of an appealable order. This was pursuant to our Rule 8(d), Revised Rules of the United States Court of Appeals for the Tenth Circuit, which provides that an appropriate order will be entered by the court, on its own motion, when it is apparent from the record that the appeal is not within the jurisdiction of the court.
We have now carefully reviewed the files and records in this cause and are convinced that the appeal is premature and should be dismissed for lack of jurisdiction. Lyons v. Davoren, 402 F.2d 890 (1st Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 861, 21 L.Ed.2d 774 (1969).
The appeal is dismissed.