from the United States District Court for the Southern
District of Texas
SMITH and DUNCAN, Circuit Judges. [*]
court granted a stay pending appeal by issuing a published
opinion, as binding law of the circuit, on August 14, 2018.
See ODonnell v. Goodhart, 900 F.3d 220 (5th Cir.
2018). The original appellants were defeated in the November
2018 elections and, by operation of law, were replaced by the
current appellants, who, on January 7, 2019, moved for
voluntary dismissal of the appeal. The Clerk entered an
order, issued as the mandate, stating that "[u]nder Fed.
R. App. P. 42(b), the appeal is dismissed as of January 07,
2019, pursuant to appellants' motion." The appellees
present an unopposed motion to vacate our August 14 opinion,
reasoning that "because after the motions panel granted
a stay pending appeal, the individuals who were appellants at
the time (i.e., the ones who sought the stay) were voted out
of office, and . . . their successors withdrew the
motion for vacatur cites U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U.S. 18 (1994), but omits
the passage that is the most significant for purposes of this
matter: "Judicial precedents are presumptively correct
and valuable to the legal community as a whole. They are not
merely the property of private litigants and should stand
unless a court concludes that the public interest would be
served by a vacatur." Id. at 26 (citation and
internal quotation marks omitted). Vacatur is permissible
only under "exceptional circumstances."
Id. at 29.
panel took great strides to decide the motion for stay
correctly, including, after thorough briefing, the unusual
step of hearing oral argument, thirty minutes per side. The
panel majority published the opinion after making certain it
was a correct rendition of the law and the facts, including
its holding that the district court, on remand, had violated
the mandate rule.
motion to vacate is seriously flawed in advancing the notion
that "[t]hese circumstances, while unusual, are akin to
a case that becomes moot while on appeal." The Supreme
Court has held flatly to the contrary. In Karcher v.
May, 484 U.S. 72 (1987), officials who (like the
original appellants here) were succeeded in office by virtue
of elections sought vacatur of lower-court judgments,
claiming mootness and citing a case relied on by the present
movants, United States v. Munsingwear, Inc., 340
U.S. 36 (1950). The Court readily rebuffed that reasoning:
We reject this argument because its underlying premise is
wrong. This case did not become unreviewable when Karcher and
Orechio left office. Rather, under Federal Rule of Appellate
Procedure 43(c)(1), [their authority] to pursue the appeal on
behalf of the legislature passed to their successors in
office. The rules effectuating automatic substitution of
public officers were specifically designed to prevent suits
involving public officers from becoming moot due to personnel
changes. See Advisory Committee Notes on 1961 Amdt. to Fed.
Rule Civ. Proc 25(d)(1), 28 U.S.C., pp. 568-569.
This controversy did not become moot due to circumstances
unattributable to any of the parties. The controversy ended
when the losing party-the New Jersey legislature-declined to
pursue its appeal. Accordingly, the Munsingwear
procedure is inapplicable to this case.
Karcher, 484 U.S. at 83. Several years later, the
Court, in U.S. Bancorp, spoke approvingly of
Karcher. See U.S. Bancorp, 513 U.S. at
true, as the motion for vacatur states, that "a merits
panel is not bound by a motions panel," Trevino v.
Davis, 861 F.3d 545, 548 n.1 (5th Cir. 2017) (Smith,
J.), but that is irrelevant because there is not, and never
will be, a merits panel. As a result of the dismissal, the
published opinion granting the stay is this court's last
statement on the matter and, like all published opinions,
binds the district courts in this circuit.
motion to vacate the opinion granting the stay is DENIED.