Odonnell v. Salgado
Opinion of the Court
*481This 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 ,
The motion for vacatur cites U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership ,
This 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.
The 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 *482to the contrary. In Karcher v. May ,
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 ,
It is true, as the motion for vacatur states, that "a merits panel is not bound by a motions panel," Trevino v. Davis ,
The motion to vacate the opinion granting the stay is DENIED.
Reference
- Full Case Name
- Maranda Lynn ODONNELL v. Alex SALGADO Ronnisha Bowman Erica Hughes Shannon Baldwin David M. Fleischer Kelley Andrews Andrew A. Wright Franklin Bynum Toria J. Finch Lee Harper Wilson Sedrick T. Walker, II Cassandra Y. Holleman Raul Rodriguez Tonya Jones, Loetha Shanta McGruder Robert Ryan Ford v. Harris County, Texas, Alex Salgado Ronnisha Bowman Erica Hughes Shannon Baldwin David M. Fleischer Kelley Andrews Andrew A. Wright Franklin Bynum Toria J. Finch Lee Harper Wilson Sedrick T. Walker, II Cassandra Y. Holleman Raul Rodriguez Tonya Jones
- Cited By
- 5 cases
- Status
- Published