Service Employees International Union Local 1 v. Jon Husted

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0851n.06
No. 12-4264
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1, et al.,
Plaintiffs-Appellees,
v.
JON HUSTED,
Defendant-Appellant,
STATE OF OHIO,
Intervenor Defendant-Appellant,
and
TIMOTHY M. BURKE, et al.
Defendants.
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O R D E R
Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge*
Plaintiffs-Appellees, various unions, move to dismiss this appeal as moot and vacate this
court’s precedential order of October 31, 2012, which granted Ohio an emergency stay of injunctive
relief ordered by the district court two weeks before the November 2012 elections. Serv. Emps. Int’l
Union Local 1 v. Husted, 698 F.3d 341 (6th Cir. 2012) (per curiam) (stay order). Though not
disputing the mootness of the appeal, Ohio and the Secretary of State opposes vacatur of our stay
The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of*
Texas, sitting by designation.

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No. 12-4264
SEIU, Local 1, et al. v. Husted, et al.
order. For the following reasons, we DISMISS this appeal as MOOT and DENY SEIU’s request for
vacatur.
The parties agree that Ohio has completed and certified all of the November 2012 election
results, and no election contests remain. Because this appeal concerns a preliminary injunction
affecting those elections, and because that injunction has now expired by its own terms, we dismiss
the appeal as moot. See, e.g., McIntyre v. Levy, No. 06-5989, 2007 WL 7007938, at *1 (6th Cir.
Aug. 1, 2007); Congregation Lubavitch v. City of Cincinnati, 941 F.2d 1209 (6th Cir. Aug. 16, 1991)
(per curiam) (unpublished table decision). That leaves SEIU’s opposition to our stay order and
request for vacatur.
When a case “becomes moot pending appe[al],” we have recognized that “‘the established
practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a
direction to dismiss.’” Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435,
484 85 (6th Cir. 2004) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). That
said, the equitable relief of vacatur “is not applicable in all cases,” but “is generally appropriate to
avoid entrenching a decision rendered unreviewable through no fault of the losing party.” Stewart
v. Blackwell, 473 F.3d 692, 693 (6th Cir. 2007). And, in the case of interlocutory appeals where the
underlying order becomes moot, a number of courts have adopted a contrary “usual practice”: that
of dismissing the appeal without vacating the order appealed from. See, e.g., McLane v.
Mercedes-Benz of N. Am., Inc., 3 F.3d 522, 524 n.6 (1st Cir. 1993); In re Tax Refund Litig., 915 F.2d
58, 59 (2d Cir.1990); Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir.1986); Gjertsen v. Bd.
of Election Comm’rs, 751 F.2d 199, 202 (7th Cir.1984); Gaylord Broad. Co. v. Cosmos Broad.
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No. 12-4264
SEIU, Local 1, et al. v. Husted, et al.
Corp., 746 F.2d 251, 254 (5th Cir.1984); see also 13C Charles Alan Wright, et al., Federal Practice
& Procedure Jurisdiction § 3533.10.3 (3d ed.) (explaining that, in the case of “injunction orders that
have expired or become moot, if the case remains alive in the district court, it is sufficient to dismiss
the appeal without directing that the injunction order be vacated”). We find these cases instructive
here, where both the underlying injunction and (necessarily) our stay order became moot upon the
completion of the November 2012 election.
Resisting this, SEIU argues that vacatur “is necessary to prevent Plaintiffs-Appellees from
being denied the opportunity to litigate the merits issues raised by this appeal,” and because court
rules foreclosed en banc review of the stay order. These arguments do not persuade, however,
because no final judgment on the merits results from staying a preliminary injunction on emergency
review. And the parties could seek a merits ruling from the district court on any pending claims.
See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (explaining that “the findings of
fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial
on the merits”); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,
542 (6th Cir. 2007) (same). Furthermore, SEIU suffered no prejudice by the unavailability of
discretionary, en banc review because appellees could have requested emergency review of our
unfavorable decision from the Supreme Court. See, e.g., Brunner v. Ohio Republican Party, 555
U.S. 5 (2008) (per curiam); Spencer v. Pugh, 543 U.S. 1301, 1301 03 (2004) (Stevens, Circuit
Justice). Our stay order continues to serve a jurisprudential purpose in providing guidance on
injunctive relief as it concerns last-second changes to election procedures, justifying our denial of
vacatur here.
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No. 12-4264
SEIU, Local 1, et al. v. Husted, et al.
We DISMISS the appeal as MOOT and DENY SEIU’s request for vacatur.
ENTERED BY ORDER OF THE COURT
__________________________________
Deborah S. Hunt. Clerk
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