The opinion of the court was delivered by: GASCH
OLIVER GASCH, DISTRICT JUDGE.
This matter is before the Court on plaintiff's motion for preliminary and/or permanent injunction. On June 20, 1988, this Court temporarily restrained the Tennessee Walking Horse Breeders' and Exhibitors' Association, Inc. ("Breeders' and Exhibitors' Association") from prosecuting an action filed on June 10, 1988, in the United States District Court for the Middle District of Tennessee. The Breeders' and Exhibitors' Association brought suit in Tennessee to enjoin the Secretary from enforcing the Interim Rule adopted in the aftermath of this Court's order of March 21, 1988, which invalidated then existing regulations.
Plaintiff now seeks a preliminary and/or permanent injunction to enjoin the prosecution of the Tennessee action. The Breeders' and Exhibitors' Association has failed twice in its efforts, before this Court and the United States Court of Appeals for the District of Columbia Circuit, to stay the effect of this Court's March 21, 1988 order and restore the status quo ante pending the outcome of the Secretary's rulemaking that is now well underway. Now in Tennessee, it seeks to enjoin the enforcement of the Secretary's Interim Rule issued April 22, 1988. In the alternative, the Breeders' and Exhibitors' Association has asked the Tennessee Court to postpone the effective date of the next phase of pad reduction under 9 C.F.R. § 11.2(b)(10)(ii).
Plaintiff asserts that the parties and issues in the two actions are intrinsically related, arising out of the same underlying facts. Further, plaintiff asserts that this litigation is so far advanced in this Court that the prosecution of the Tennessee litigation is duplicative and should be enjoined.
On May 20, 1988, the U.S. Court of Appeals for the District of Columbia Circuit ordered that the Breeders' and Exhibitors' Association be permitted to intervene in this action and directed this Court to consider the Breeders' and Exhibitors' Association's motion for a stay of the March 21, 1988 order. That motion addressed the effects of an advisory letter that the Secretary had issued on March 25, 1988, subsequent to the ruling of this Court. On May 25, 1988, this Court ruled that in view of the promulgation of interim rules that had supplanted the advisory letter on April 25, 1988:
It would be inappropriate to stay the hand of the Secretary in the performance of his administrative duties to promulgate rules in accordance with the prior order of the Court of Appeals . . . the order of this Court, issued pursuant to the ruling of the Court of Appeals heretofore noted and the act of Congress called the Horse Protection Act.
Order, filed May 25, 1988. The Court denied the motion for a stay without prejudice, and ordered that when the Secretary's rules are available for consideration by the parties, the motion for stay may be reconsidered if either party promptly moves for it.
Because an appeal of the Court's decision of March 21, 1988 has been noticed by the Breeders' and Exhibitors' Association, the question of this Court's jurisdiction must be addressed. If the Court has retained jurisdiction over the issues raised in the Tennessee litigation, it may properly consider the application for an injunction against the prosecution of the Tennessee action.
In a case involving the validity of a notice of appeal filed after the entry of the District Court's judgment but while the appellant's motion to alter or amend that judgment remained pending in the District Court, the United States Supreme Court stated that the filing of a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982) (emphasis added). The Breeders' and Exhibitors' Association's appeal of this Court's March 21, 1988, decision attacks the Court's opinion only as it relates to that portion of this Court's order invalidating 9 C.F.R. § 11.2(b)(1), (2), and (10). The appeal does not involve the Court's directive that the Secretary go to rulemaking, nor does it address the interim actions taken by the Secretary. Indeed, the Court of Appeals on June 10, 1988, denied the Breeders' and Exhibitors' Association's emergency motion for a stay because it was principally focused on the alleged harm that will be suffered by virtue of the Interim Rule. Because the Interim Rule was not properly before the Court of Appeals, it declined to review them or grant any relief from their alleged effects. It is clear that the Breeders' and Exhibitors' Association's notice of appeal failed to divest this Court of its jurisdiction over aspects of this case that are presented in the Tennessee action, to the extent that they are not barred.
Furthermore, as the Court's decision of March 21, 1988, was not stayed, the vitality of the decision is "undiminished by the pendency of the appeal," and the decision remains operative. Deering Milliken, Inc. v. FTC, 207 U.S. App. D.C. 384, 647 F.2d 1124, 1129 (1978). In addition, this Court retains the power to grant an injunction in this case. Securities Industry v. Board of Governors of the Federal Reserve System, 628 F. Supp. 1438, 1440 n.1 (D.D.C. 1986) (citing Venen v. Sweet, 758 F.2d 117, 120 n.2 (3d Cir. 1985)); see Fed. R. App. P. 8. This Court has already declined to stay the hand of the Secretary in the performance of his administrative duties. See Order of May 25, 1988. But that denial was without prejudice ; the Court stated that it would ...