Plaintiffs-Appellees’ Motion For Order Clarifying
- Date
- 2023-12-15
Summary
Plaintiffs-Appellees' motion for an order clarifying the effect of the Supreme Court's vacatur of the court's judgment, filed December 15, 2023 as Document 324 in Feds for Medical Freedom v. Biden, No. 22-40043, in the U.S. Court of Appeals for the Fifth Circuit. The appeal arises from the U.S. District Court for the Southern District of Texas, No. 3:21-cv-356, where a preliminary injunction against Executive Order 14,043 was issued. The motion states that the Supreme Court's December 11, 2023 order vacated the en banc judgment and asks the court to clarify that its en banc opinion has not been withdrawn and retains stare decisis effect. It argues that judgments and opinions are distinct and cites decisions of several circuits. A certificate of conference states that the government opposes the motion, and the filing is signed by counsel R. Trent McCotter of Boyden Gray PLLC.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Plaintiffs-Appellees’ Motion For Order Clarifying.”
Dated 2023-12-15. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/22-40043-recap-gov-uscourts-ca5-206309-324-0-e20ace6b99/
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Case: 22-40043 Document: 324 Page: 1 Date Filed: 12/15/2023
No. 22-40043
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________________
FEDS FOR MEDICAL FREEDOM; LOCAL 918, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES; HIGHLAND
ENGINEERING, INCORPORATED; RAYMOND A. BEEBE, JR.;
JOHN ARMBRUST; et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., in his official capacity as President of the
United States; THE UNITED STATES OF AMERICA; PETE
BUTTIGIEG, in his official capacity as Secretary of Transportation;
DEPARTMENT OF TRANSPORTATION; JANET YELLEN, in her
official as Secretary of Treasury; et al.,
Defendants-Appellants.
________________________________________
On Appeal from the U.S. District Court for the Southern District of
Texas, No. 3:21-cv-356, Hon. Jeffrey V. Brown presiding
________________________________________
PLAINTIFFS-APPELLEES’ MOTION FOR ORDER CLARIFYING
EFFECT OF SUPREME COURT’S VACATUR OF THIS COURT’S
JUDGMENT
________________________________________
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY PLLC
801 17th Street NW., Suite 350
Washington, DC 20006
202-706-5488
tmccotter@boydengray.com
Counsel for Plaintiffs-Appellees
Case: 22-40043 Document: 324 Page: 2 Date Filed: 12/15/2023
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................... ii
INTRODUCTION ....................................................................................... 1
BACKGROUND .......................................................................................... 1
ARGUMENT ............................................................................................... 3
I. Judgments and Opinions Are Distinct ........................................ 3
II. Munsingwear Vacatur Does Not Inherently Deprive a Circuit
Court’s Opinion of Its Stare Decisis Effect .................................. 4
III. This Court’s Practice Supports Retaining the Precedential
Effect of the En Banc Opinion in this Case ............................... 13
IV. There Was a Live Dispute When This Court Issued Its En Banc
Opinion ........................................................................................ 17
CONCLUSION ......................................................................................... 18
i
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TABLE OF AUTHORITIES
Page(s)
Cases
In re Abbott, 954 F.3d 772 (5th Cir. 2020) ............................................... 16
In re Abbott, 956 F.3d 696 (5th Cir. 2020) ............................................... 16
Action Alliance of Senior Citizens of Greater Philadelphia v.
Sullivan, 930 F.2d 77 (D.C. Cir. 1991) ............................................ 5, 15
Allen v. McCurry, 449 U.S. 90 (1980) ........................................................ 9
ANPAC v. Dow Quimica de Colombia S.A.,
988 F.2d 559 (5th Cir. 1993) ................................................................ 12
Bennett v. West Texas State University,
799 F.2d 155 (5th Cir. 1986) ................................................................ 15
Biden v. Feds for Med. Freedom,
No. 23-60, 2023 WL 8531839 (U.S. Dec. 11, 2023) ........................... 2, 3
In re Bonvillian Marine Serv., Inc.,
19 F.4th 787 (5th Cir. 2021) ................................................................ 10
Brown v. Bryan Cnty., 219 F.3d 450 (5th Cir. 2000) .............................. 14
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984) ................................................................................ 3
Feds for Med. Freedom v. Biden,
581 F. Supp. 3d 826 (S.D. Tex. 2022) .................................................... 1
Feds for Med. Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023) .......... 2, 12
FTC v. Food Town Stores, Inc., 547 F.2d 247 (4th Cir. 1977) .......... 13, 15
Gahagan v. USCIS, 911 F.3d 298 (5th Cir. 2018) .................................. 11
Granville-Smith v. Granville-Smith,
214 F.2d 820 (3d Cir. 1954) ................................................................... 5
ii
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Hand v. Desantis, 946 F.3d 1272 (11th Cir. 2020) ........................ 4, 13, 15
Harris v. Bd. of Governors of Fed. Rsrv. Sys.,
938 F.2d 720 (7th Cir. 1991) .................................................................. 6
Hyosung TNS Inc. v. Int’l Trade Comm’n,
926 F.3d 1353 (Fed. Cir. 2019) .............................................................. 7
Ivy v. Morath, 580 U.S. 956 (2016) .......................................................... 16
Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015) ................................... 16, 17
Jones v. Michaels Stores, Inc., 991 F.3d 614 (5th Cir. 2021) ............ 11, 15
Mahoney v. Babbitt, 113 F.3d 219 (D.C. Cir. 1997) ................................ 18
U.S. ex rel. Morgan v. Wolfe, 232 F. Supp. 85 (S.D.N.Y. 1964) ................ 6
N.J. Tpk. Auth. v. Jersey Cent. Power & Light,
772 F.2d 25 (3d Cir. 1985) ............................................................... 3, 17
O’Connor v. Donaldson, 422 U.S. 563 (1975) .......................................... 14
Okla. Radio Assocs. v. FDIC, 3 F.3d 1436 (10th Cir. 1993) ...................... 6
Oreck Direct, LLC v. Dyson, Inc.,
560 F.3d 398 (5th Cir. 2009) ................................................................ 10
Planned Parenthood Center for Choice v. Abbott,
141 S. Ct. 1261 (2021) .......................................................................... 16
Retail Store Emps. Union, Loc. 1001, Retail Clerks Int’l
Ass’n, AFL-CIO v. NLRB,
1978 WL 4933 (D.C. Cir. Dec. 5, 1978) ....................... 7, 8, 9, 10, 11, 12
Ridley v. McCall, 496 F.2d 213 (5th Cir. 1974) ....................................... 15
In re Smith, 964 F.2d 636 (7th Cir. 1992) ................................................. 6
Spell v. Edwards, 579 F. Supp. 3d 806 (M.D. La. 2022) ......................... 16
Tex. Workforce Comm’n v. U.S. Dep’t of Educ.,
973 F.3d 383 (5th Cir. 2020) ................................................................ 17
iii
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U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994) ............................................................................ 3, 17
U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666 (5th Cir. 2023)......... 13, 15
United States v. Abbott, 85 F.4th 328 (5th Cir. 2023) ............................. 16
United States v. Adewani, 467 F.3d 1340 (D.C. Cir. 2006) ....................... 5
United States v. Kirk, 528 F.2d 1057 (5th Cir. 1976).......................... 5, 15
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) ...................................... 1, 3, 4, 6, 7, 8, 12, 13, 16, 17
United States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir. 1992) ................ 12
United States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994) ......................... 9
Valentine v. Collier, 993 F.3d 270 (5th Cir. 2021)................................... 16
Other Authorities
Fifth Circuit L.R. 41.3 .............................................................................. 11
Note, Federal Courts: Inquiry into the Merits of a Moot
Dispute, 66 Colum. L. Rev. 1364 (1966) ................................................ 6
William D. Zeller, Avoiding Issue Preclusion by Settlement
Conditioned Upon the Vacatur of Entered Judgments, 96
Yale L.J. 860 (1987) ............................................................................... 7
iv
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INTRODUCTION
In January 2024, the Supreme Court will hand down its judgment
in this case, vacating this Court’s en banc judgment and instructing this
Court to direct the District Court to vacate its order granting a
preliminary injunction. When jurisdiction returns to this Court, it should
clarify that its prior en banc opinion in this matter has not been
withdrawn and retains its stare decisis effect. As explained below, both
generally and as specific to Munsingwear vacaturs, there is an important
difference between this Court’s judgment (which the Supreme Court
vacated) and this Court’s opinion (which the Supreme Court didn’t
address). Several circuit courts likewise decline to withdraw their prior
opinions despite intervening Supreme Court orders to vacate a judgment
when the Supreme Court did not address the merits of the case.
BACKGROUND
In January 2022, the District Court issued a preliminary injunction
against enforcement of Executive Order 14,043, which imposed a COVID-
19 vaccine mandate for federal employees. Feds for Med. Freedom v.
Biden, 581 F. Supp. 3d 826 (S.D. Tex. 2022). A panel of this Court
reversed that decision, but this Court vacated that opinion, reheard the
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matter en banc, and issued a lengthy decision upholding the injunction
in March 2023. Feds for Med. Freedom v. Biden, 63 F.4th 366 (5th Cir.
2023) (en banc). Defendants-Appellants (“the government”) then
rescinded the challenged vaccine mandate in May 2023 and asked the
Supreme Court to vacate this Court’s judgment and the District Court’s
order granting a preliminary injunction.
On December 11, 2023, the Supreme Court issued the following
order regarding the government’s petition for a writ of certiorari:
The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to
the United States Court of Appeals for the Fifth
Circuit with instructions to direct the District
Court to vacate as moot its order granting a
preliminary injunction. See United States v.
Munsingwear, Inc., 340 U.S. 36 (1950). Justice
Jackson, dissenting: In my view, the party seeking
vacatur has not established equitable entitlement
to that remedy. See Acheson Hotels, LLC v. Laufer,
601 U.S. ––– (2023) (Jackson, J., concurring in the
judgment).
Biden v. Feds for Med. Freedom, No. 23-60, 2023 WL 8531839, at *1 (U.S.
Dec. 11, 2023). The Supreme Court’s judgment will be handed down to
this Court no less than 32 days after the issuance of that order (i.e.,
January 12, 2024). See Sup. Ct. R. 45.3.
2
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ARGUMENT
The Supreme Court’s order has two—and only two—components. It
(1) vacates this Court’s three-page judgment issued March 23, 2023, see
Dkt. 307; and (2) orders this Court to direct the District Court to vacate
its order granting a preliminary injunction. Biden, 2023 WL 8531839, at
*1. The Supreme Court did not vacate this Court’s en banc published
opinion issued March 23, 2023, see Dkt. 304, and this Court should
decline to withdraw it unilaterally, instead making clear that its prior en
banc opinion retains its stare decisis effect.1
I. Judgments and Opinions Are Distinct.
The Supreme Court has held that “judgments” are “not opinions”
and that it reviews only the former, not the latter. Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).2 Accordingly,
1 See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21–22
(1994) (explaining that “[i]f a judgment has become moot while awaiting
review,” a court may still issue orders addressing “matters of judicial
administration and practice”); N.J. Tpk. Auth. v. Jersey Cent. Power &
Light, 772 F.2d 25, 34 (3d Cir. 1985) (“While we have lost jurisdiction
over the substance of this appeal, we nevertheless retain authority to
fashion a decree clarifying the effect of the mootness [under
Munsingwear].”).
2 Similarly, Federal Rule of Appellate Procedure 36 confirms a judgment
is separate from the opinion, see Fed. R. App. P. 36, as does the docket in
this case, compare Dkt. 304, with Dkt. 307.
3
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when the Supreme Court does not address the merits of a case and
instead vacates only the judgment, it necessarily leaves untouched the
lower court’s opinion. That is what happened here, where the Supreme
Court said nothing about the merits because it concluded the appeal was
moot.
If the Supreme Court had intended to vacate this Court’s opinion,
too, it would have said so. Notably, the government didn’t ask the
Supreme Court to vacate this Court’s opinion, instead asking only for this
Court’s judgment to be vacated. See Pet. for Writ of Certiorari at i, 12, 29,
Feds for Medical Freedom, No. 23-60 (July 21, 2023).
II. Munsingwear Vacatur Does Not Inherently Deprive a
Circuit Court’s Opinion of Its Stare Decisis Effect.
The inherent differences between judgments and opinions confirm
that Munsingwear vacatur of a judgment does not necessarily mean the
circuit court should also withdraw its opinion or that it loses its
precedential effect. Cf. Hand v. Desantis, 946 F.3d 1272, 1275 n.5 (11th
Cir. 2020) (“Munsingwear does not address what a circuit court must do
with its own prior stay order when a case has become moot.”).
As the D.C. Circuit has long held, “when the Supreme Court vacates
a judgment of this court without addressing the merits of a particular
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holding in the panel opinion, that holding continues to have precedential
weight, and in the absence of contrary authority, we do not disturb it.”
Action Alliance of Senior Citizens of Greater Philadelphia v. Sullivan, 930
F.2d 77, 83 (D.C. Cir. 1991) (cleaned up); see also United States v.
Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006). This Court seems to have
the same rule. See United States v. Kirk, 528 F.2d 1057, 1063–64 (5th
Cir. 1976) (holding a prior panel decision that had been vacated on other
grounds “is still binding on this panel”).
The Third Circuit has further held that a prior circuit court opinion
was still binding precedent even when the accompanying judgment had
been vacated by the Supreme Court due to mootness. See Granville-
Smith v. Granville-Smith, 214 F.2d 820, 820 (3d Cir. 1954), aff’d, 349 U.S.
1 (1955). On appeal, the Supreme Court seemed completely unbothered
that the Third Circuit continued to follow that precedent. Granville-
Smith, 349 U.S. at 8 (“Though the judgment below was vacated, the Court
of Appeals had expressed its views on the constitutionality of [the
statute.]”).
Other courts have expressed similar views. The Seventh Circuit, for
example, has explained that “[w]e vacate unappealable decisions, to
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prevent them from having a preclusive effect. We do not vacate opinions,
to prevent them from having a precedential effect.” In re Smith, 964 F.2d
636, 638 (7th Cir. 1992); see Harris v. Bd. of Governors of Fed. Rsrv. Sys.,
938 F.2d 720, 723 (7th Cir. 1991) (“[T]he only effect of the vacatur is to
deprive those [lower-court] orders of any preclusive effect in subsequent
litigation. It does not deprive them of such stare decisis effect as they may
have[.]”). The Tenth Circuit has held in the context of a settlement that
“the rationale of vacatur as explained in Munsingwear” is “to protect
against future preclusive collateral estoppel effects on the parties to
litigation,” not to “reach[] out to deprive our opinion of any precedential
effect.” Okla. Radio Assocs. v. FDIC, 3 F.3d 1436, 1437 (10th Cir. 1993).
Other courts and scholars have made the same argument. See, e.g., U.S.
ex rel. Morgan v. Wolfe, 232 F. Supp. 85, 101 (S.D.N.Y. 1964) (“Although
such a vacated judgment ‘clears the path for future relitigation of the
issues between the parties and eliminates a judgment, review of which
was prevented through happenstance,’ United States v. Munsingwear,
Inc., 340 U.S. 36, 40 (1950), the opinion, nevertheless, still must be given
stare decisis effect by this court ‘since the force of the reasoning
remains.’”); Note, Federal Courts: Inquiry into the Merits of a Moot
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Dispute, 66 Colum. L. Rev. 1364, 1368 (1966) (noting that decisions of
“courts of appeals have been accorded stare decisis value even though the
cases were found moot on appeal; this consequence is distinct from the
res judicata effect of the judgment rendered below”); William D. Zeller,
Avoiding Issue Preclusion by Settlement Conditioned Upon the Vacatur
of Entered Judgments, 96 Yale L.J. 860, 879 n.24 (1987) (“Published
opinions remain in the official reporters despite vacatur of the underlying
judgments[.]”); cf. Hyosung TNS Inc. v. Int’l Trade Comm’n, 926 F.3d
1353, 1359 (Fed. Cir. 2019) (explaining that after a case becomes moot,
there remains “the possible stare decisis effect of our decision”).
D.C. Circuit Chief Judge Robinson explored this issue in depth,
explaining that Munsingwear itself supports the view that the circuit
court should not withdraw its prior opinion nor deprive it of precedential
effect. He rejected the argument that a circuit decision “has no
precedential value because the Supreme Court vacated the judgment …
when it appeared that the case had become moot while pending.” Retail
Store Emps. Union, Loc. 1001, Retail Clerks Int’l Ass’n, AFL-CIO v.
NLRB, 1978 WL 4933, at *7–9 (D.C. Cir. Dec. 5, 1978) (Robinson, J.,
7
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dissenting). A contrary view “confuses vacatur of a judgment and vacatur
of an opinion, two functionally distinct procedures.” Id.
He explained that “[t]he practice of honoring an opinion despite
vacatur of the accompanying judgment finds support in the Supreme
Court’s decision in United States v. Munsingwear, Inc.” Id. In
Munsingwear, the Supreme Court concluded that the equities in that
case did not warrant granting vacatur of any kind, but the Court noted
that there could be cases where “the rigors of res judicata must be
alleviated” by vacating “the judgment in the first suit,” which would
otherwise “be binding in the subsequent ones.” Munsingwear, 340 U.S.
at 39. Munsingwear stated that “the rights of all parties are preserved”
simply by “revers[ing] or vacat[ing] the judgment below and remand[ing]
with a direction to dismiss.” Id. at 39–40. All told, Munsingwear
mentioned “res judicata” and vacating a “judgment” a combined fifteen
times. It nowhere mentioned vacating or withdrawing an “opinion” or
removing its precedential effect.
As Chief Judge Robinson explained, Munsingwear’s intense focus
on the judgment and res judicata supports the view that a circuit court
should still retain its prior opinion as precedential. “While Munsingwear
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did not discuss the stare decisis status of the court of appeals’ unreviewed
opinion following mootness of the litigation, it readily buttresses the
proposition that, absent reversal, the precedential value of an opinion is
eliminated only if it is expressly vacated or withdrawn. Vacatur of an
opinion, therefore, is not to be inferred from the vacatur of the concomitant
judgment.” Retail Store, 1978 WL 4933, at *7–9 (Robinson, J., dissenting)
(emphasis added).
Again, as noted above, there is a meaningful distinction between
judgments and opinions. “By the rule of res judicata, a judgment binds
parties and their privies to the adjudicative resolution of their
controversy,” and thus “once they are determined, must be taken as
conclusively established, so long as the judgment in the first suit remains
unmodified.” Id. (cleaned up).
“Under res judicata, a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were
or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90,
94 (1980). Res judicata “insures the finality of judgments and thereby
conserves judicial resources and protects litigants from multiple
lawsuits.” United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994).
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“Res judicata prevents a later suit, such as this one, from collaterally
attacking a prior judgment by a court of competent jurisdiction.” Oreck
Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009). In other
words, a judgment remains binding forever and has res judicata effect,
unless it is modified or vacated.
“Contrastingly, an opinion is binding, through the doctrines of
interpanel accord and stare decisis, only on the court rendering it and
courts of subordinate jurisdiction.” Retail Store, 1978 WL 4933, at *7–9
(Robinson, J. dissenting). It does not bind in the way that a judgment
does, and the issuing Court can itself overturn the opinion in an
appropriate case. “The premise underlying the doctrines of stare decisis
and interpanel accord is that once a court critically examines a legal issue
and through force of reason deduces the applicable legal principle, that
principle becomes the precedent for future cases that are factually
indistinguishable. In this way, the ratio decidendi of the decision
acquires a vitality independent of the legal controversy in which it
germinated.” Id.
This view is further strengthened by this Court’s “strict and rigidly
applied” prior-panel rule. In re Bonvillian Marine Serv., Inc., 19 F.4th
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787, 792 (5th Cir. 2021). To overcome that rule, “the [Supreme Court]
decision must unequivocally overrule prior precedent.” Gahagan v.
USCIS, 911 F.3d 298, 302 (5th Cir. 2018); see Jones v. Michaels Stores,
Inc., 991 F.3d 614, 616 (5th Cir. 2021) (“[U]nder the rule of orderliness,
only an ‘unequivocal’ change in law from the Supreme Court can override
one of our precedents”). Because the Supreme Court’s decision here never
touched on the merits of this Court’s en banc decision—and could not
have done so after determining the appeal was moot—it should still stand
as precedent.
“Further support for the proposition that vacatur of the judgment
does not automatically vacate the accompanying opinion is to be found in
this court’s usual practice of explicitly vacating the panel opinion prior to
rehearing of a case en banc.” Retail Store, 1978 WL 4933, at *7–9
(Robinson, J. dissenting); see Fifth Cir. L.R. 41.3 (noting that a grant of
en banc vacates both the “opinion” and the “judgment”). Such vacatur “is
obviously necessary to dissolve the precedent established by the earlier
panel opinion,” but “when a case becomes moot while on appeal, we
vacate only the judgment in the case,” and likewise “when a case becomes
moot while a petition for certiorari is pending before the Supreme Court,
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only the judgment is vacated.” Retail Store, 1978 WL 4933, at *7–9
(Robinson, J. dissenting); see United States v. Pineda-Ortuno, 952 F.2d
98, 102 (5th Cir. 1992) (holding that when the Fifth Circuit votes to
rehear a case en banc, the panel’s opinion itself is expressly “vacated and
of no precedential value”); ANPAC v. Dow Quimica de Colombia S.A., 988
F.2d 559, 565 (5th Cir. 1993) (same).
In sum, because Munsingwear is concerned with res judicata and
held that vacating the judgment would “preserve[]” “the rights of all
parties” by removing those res judicata effects, 340 U.S. at 39, there is no
need for a circuit court also to vacate its own prior opinion or remove its
precedential effect.
This conclusion is even clearer in the context of preliminary rulings
like the one in this case. “We hasten to emphasize that this case only
involves a preliminary injunction. The preliminary injunction’s purpose
is to maintain the status quo until the parties have the chance to
adjudicate the merits.” Feds for Med. Freedom v. Biden, 63 F.4th 366, 389
(5th Cir. 2023). As noted, the primary “consideration for invocation of the
Munsingwear doctrine is the res judicata effect of the order in question,”
and thus this Court’s prior judgment on the preliminary injunction—
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which binds the parties themselves—must be vacated to ensure the
defendant is no longer bound to comply. FTC v. Food Town Stores, Inc.,
547 F.2d 247, 249 (4th Cir. 1977). But the accompanying circuit court
opinion in a preliminary case “is not a final adjudication of the merits of
the appeal,” and “therefore has no res judicata effect and the rationale of
the Munsingwear doctrine thus is inapplicable.” Id.; see also Hand, 946
F.3d at 1275 n.5 (explaining that “Munsingwear does not address what a
circuit court must do with its own prior stay order when a case has
become moot” and adopting the reasoning in Food Town Stores, 547 F.2d
at 249).
This Court has held similarly when reviewing preliminary relief
that had become moot on appeal. See U.S. Navy SEALs 1-26 v. Biden, 72
F.4th 666, 675 n.9 (5th Cir. 2023) (“[V]acatur of a prior stay-panel opinion
once a case becomes moot on appeal is inappropriate under Munsingwear
because that stay-panel opinion cannot spawn binding legal
consequences regarding the merits of the case.”) (cleaned up).
III. This Court’s Practice Supports Retaining the Precedential
Effect of the En Banc Opinion in this Case.
Although language in some cases suggests that vacatur by the
Supreme Court robs the underlying circuit court opinion of its
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precedential effect, see, e.g., O’Connor v. Donaldson, 422 U.S. 563, 577
n.12 (1975), that language typically appears in cases where the Supreme
Court addressed the merits of the case in some way, which is materially
different than what occurred here. When the Supreme Court disagrees
with the reasoning in the underlying opinion, that naturally “leav[es]
th[e] [Supreme] Court’s opinion and judgment as the sole law of the case”
on that issue because the Supreme Court’s decision trumps the contrary
lower-court decision. Id. at 577 n.12. This is also true when the case was
not moot but instead was vacated for reconsideration “in light of”
intervening case law for the circuit court to view the merits afresh. Id. at
577. In those scenarios, it would be fair to conclude the Supreme Court’s
actions regarding the merits at least implicitly deprived the circuit
court’s opinion of precedential effect.
This Court has invoked that distinction when the Supreme Court
actually reversed and vacated this Court. See, e.g., Brown v. Bryan Cnty.,
219 F.3d 450, 453 n.1 (5th Cir. 2000). That matches the D.C. Circuit
caselaw above, which holds that the Supreme Court’s vacatur of a circuit
court judgment does not rob the circuit court opinion of precedential
14
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effect “in the absence of contrary authority.” Action Alliance, 930 F.2d at
83 (emphasis added).
To be sure, in Ridley v. McCall, 496 F.2d 213, 214 (5th Cir. 1974),
this Court noted that a prior circuit court opinion “ha[d] no precedential
value” after the case was deemed moot, and it said the same in Bennett
v. West Texas State University, 799 F.2d 155, 159 n.3 (5th Cir. 1986), but
the reasoning in those cases was so abbreviated that it’s difficult to
determine the Court’s rationale and thus the scope of its holding. Neither
opinion addressed any of the arguments Plaintiffs-Appellees raise above.
And a broad reading of Ridley and Bennett is difficult to square with this
Court’s decision in Kirk, which held that a prior panel decision that had
been vacated on other grounds “is still binding on this panel,” 528 F.2d
at 1063–64, and also with this Court’s longstanding rule that its decisions
remain binding absent “unequivocal” overruling by the Supreme Court,
Jones, 991 F.3d at 616.
In any event, Ridley and Bennett did not arise in the posture of a
preliminary ruling, and thus would not apply here anyway, as explained
above. See, e.g., U.S. Navy SEALs 1-26, 72 F.4th at 675 n.9; Hand, 946
F.3d at 1275 n.5; Food Town Stores, 547 F.2d at 249.
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Further, this Court’s recent practice aligns with Plaintiffs-
Appellees’ view. When the Supreme Court granted Munsingwear vacatur
of this Court’s judgment in Planned Parenthood Center for Choice v.
Abbott, 141 S. Ct. 1261 (2021), this Court did not vacate its prior opinions
upon remand, see Order, In re Abbott, No. 20-50264 (5th Cir. Mar. 3,
2021); Order, In re Abbott, No. 20-50296 (5th Cir. Mar. 3, 2021). That
case, like this one, involved preliminary relief. See In re Abbott, 956 F.3d
696 (5th Cir. 2020); In re Abbott, 954 F.3d 772 (5th Cir. 2020). Moreover,
this Court and a District Court later cited those opinions as if they
remained precedential. See United States v. Abbott, 85 F.4th 328, 338
(5th Cir. 2023) (citing Abbott, 956 F.3d 696); Valentine v. Collier, 993 F.3d
270, 280 n.9 (5th Cir. 2021) (same); Spell v. Edwards, 579 F. Supp. 3d
806, 824 (M.D. La. 2022) (citing Abbott, 954 F.3d 772, as “Fifth Circuit
precedent”).
The same happened after the Supreme Court vacated this Court’s
judgment in Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015). See Ivy v.
Morath, 580 U.S. 956 (2016). On remand, this Court did not withdraw its
opinion, see Order, Ivy, No. 14-50037 (5th Cir. Jan. 18, 2017), and a
subsequent panel relied on Ivy despite the dissenting judge’s view that
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the vacatur of the judgment in Ivy meant the opinion was “no longer
precedential,” Tex. Workforce Comm’n v. U.S. Dep’t of Educ., 973 F.3d
383, 394 n.2 (5th Cir. 2020) (Clement, J., dissenting).
Further, to the extent there is any inconsistency in this Court’s
practice in this area, the Court is already sitting en banc for this case and
can provide the necessary clarity now for future panels and District
Courts on the precedential effect of this Court’s opinions after the
Supreme Court vacates this Court’s judgment. See Bancorp, 513 U.S. at
21–22 (courts may still issue orders in moot cases addressing “matters of
judicial administration and practice”); N.J. Tpk. Auth., 772 F.2d at 34
(courts “nevertheless retain authority to fashion a decree clarifying the
effect of the mootness [under Munsingwear]”).
IV. There Was a Live Dispute When This Court Issued Its En
Banc Opinion.
The en banc Court’s opinion in this case was not an advisory
opinion. There was undoubtedly a live dispute when that decision was
issued. Even under the government’s telling, the appeal did not become
moot until nearly seven weeks later. See Pet. for Writ of Certiorari 11,
13, Feds for Medical Freedom, No. 23-60 (July 21, 2023). “So long as the
court believed that it was deciding a live controversy, its opinion was
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Case: 22-40043 Document: 324 Page: 23 Date Filed: 12/15/2023
forged and tested in the same crucible as all opinions.” Mahoney v.
Babbitt, 113 F.3d 219, 222 (D.C. Cir. 1997) (cleaned up). Accordingly, this
is not a scenario where a court might consider withdrawing an opinion
that was issued when the case had already become moot at the time of
issuance.
CONCLUSION
When jurisdiction returns to this Court sitting en banc, it should
clarify that its prior en banc opinion in this matter has not been vacated
or withdrawn and retains its stare decisis effect. If the Court desires oral
argument on this matter, Plaintiffs-Appellees stand ready and would
respectfully propose ten minutes per side. The matter could be heard
during the Court’s upcoming January 2024 en banc session.
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Case: 22-40043 Document: 324 Page: 24 Date Filed: 12/15/2023
December 15, 2023 Respectfully submitted,
/s/ R. Trent McCotter
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY PLLC
801 17th Street NW, Suite 350
Washington, DC 20006
202-706-5488
tmccotter@boydengray.com
Counsel for Plaintiffs-Appellees
19
Case: 22-40043 Document: 324 Page: 25 Date Filed: 12/15/2023
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume
limitations of Fifth Circuit Rule 27.4 and Federal Rule of Appellate
Procedure 27(d)(2) because it contains 3721 words, excluding the portions
exempted by Rule 27(a)(2)(B). This brief complies with the typeface and
type style requirements of Federal Rule of Appellate Procedure Rule
32(a)(5)–(6) because it has been prepared in a proportionally spaced
typeface using Microsoft Word in Century Schoolbook and 14-point font.
/s/ R. Trent McCotter
CERTIFICATE OF CONFERENCE
Pursuant to Rule 27.4, I contacted Defendants-Appellants’ counsel
for their position on this motion, and they stated: “you can represent that
the government opposes it as unnecessary because the Supreme Court’s
order makes clear that the Fifth Circuit’s judgment has been vacated and
that its opinion therefore has no precedential force. See, e.g., Bennett v.
West Texas State University, 799 F.2d 155, 159 n.2 (5th Cir. 1986). Under
the mandate rule, we do not believe the Fifth Circuit has authority to do
anything other than follow the Supreme Court’s directive to order the
district court to vacate the preliminary injunction. For the same reasons,
we also oppose your request for the Court to hold oral argument in this
moot appeal. And we reserve the right to file a response to your motion
after we see what you say.”
/s/ R. Trent McCotter
CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who have consented to
electronic service are being served today with a copy of this document via
the Court’s CM/ECF. All parties in this case are represented by counsel
consenting to electronic service.
/s/ R. Trent McCotter
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