                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                Nos. 12-2122 & 12-2726
                  ________________

               J. MICHAEL LIGHTNER,
          Regional Director of Region 22 of the
             National Labor Relations Board
 for and on behalf of the National Labor Relations Board

                                Appellant in No. 12-2726

                           v.

1621 ROUTE 22 WEST OPERATING COMPANY, LLC
D/B/A/ Somerset Valley Rehabilitation and Nursing Center

                                Appellant in No. 12-2122

                  ________________

      Appeal from the United States District Court
              for the District of New Jersey
(D.C. Civil Action Nos. 3-11-cv-02007, 3-11-cv-03960 &
                      3-11-cv-04072)
       District Judge: Honorable Mary L. Cooper
                   ________________

       Submitted Under Third Circuit LAR 34.1(a)
                     October 12, 2012

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

             (Opinion filed: September 4, 2013)


Elinor L. Merberg, Esquire
Dexter E. Sutton, Sr., Esquire
Laura T. Vazquez, Esquire
National Labor Relations Board, Room 10532
1099 14th Street, N.W.
Washington, DC 20570

Saulo Santiago, Esquire
Michael P. Silverstein, Esquire
National Labor Relations Board
Region 22
20 Washington Place
Newark, NJ 07102

      Counsel for Appellant /Cross-Appellee

Rosemary Alito, Esquire
George P. Barbatsuly, Esquire
K&L Gates
One Newark Center, 10th Floor
Newark, NJ 07102

      Counsel for Appellee/Cross-Appellant

Ellen Dichner, Esquire
William S. Massey, Esquire




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Gladstein, Reif & Meginniss
817 Broadway, 6th Floor
New York, NY 10003

       Amicus Counsel for Appellee

                     ________________

                OPINION OF THE COURT
                    ________________

AMBRO, Circuit Judge


                              I.

       In 2010 Appellee/Cross-Appellant J. Michael Lightner,
the Regional Director of Region 22 of the National Labor
Relations Board (the “NLRB” or “Board”), brought charges
of unfair labor practices before the NLRB against
Appellant/Cross-Appellee 1621 Route 22 West Operating
Co., LLC, d/b/a Somerset Valley Rehabilitation and Nursing
Center (“Somerset Valley”).              While administrative
proceedings were pending on that complaint, the Board
brought a petition in federal court under § 10(j) of the
National Labor Relations Act (“the Act” or “NLRA”), 29
U.S.C. § 160(j), seeking temporary injunctive relief to
prevent Somerset Valley from engaging in behavior that
violates the Act and to reinstate certain employees.

       After discovery and eight days of hearings, the District
Court filed a 129-page opinion coupled with an order granting
in part and denying in part the Board’s petition. In that
comprehensive and well-crafted opinion, the Court enjoined
Somerset Valley from interfering with its employees




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associating with the labor union, and required the
reinstatement of two discharged employees. The Court
refused to order Somerset Valley to reinstate two other
employees or to order the rescission of notices of discipline
filed against certain employees.

       Somerset Valley appealed the parts of the order
enjoining it and requiring it to reinstate the employees, and
the Board filed a cross-appeal challenging the Court’s refusal
to order reinstatement of the discharged employees not
reinstated. Those appeals were consolidated before us.
Before the merits of the cross-appeals were fully briefed, the
Board issued a decision and order in the administrative action
that rendered moot the temporary injunctive relief order by
the District Court. The Board then filed this motion to
dismiss the cross-appeals and to instruct the District Court to
vacate its opinion and order. Somerset Valley agrees that the
appeals are moot and should be dismissed, but opposes
vacatur.

                              II.

       The District Court had jurisdiction under 29 U.S.C.
§ 160(j). We have appellate jurisdiction pursuant to 28
U.S.C. § 1291.

       The purpose of NLRA § 10(j) is to preserve the
Board’s powers to decide violations of the Act “by giving the
NLRB an opportunity to seek an injunction of alleged
violations before an injury becomes permanent or the Board’s
remedial purpose becomes meaningless.” Chester ex rel.
NLRB v. Grane Healthcare Co., 666 F.3d 87, 96 (3d Cir.
2011). It gives a district court authority to enter temporary
interim relief while retaining “the Board’s exclusive authority
to decide the merits of the case[].” Id. Because the Board has
decided the merits of the complaint against Somerset Valley,




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we agree with the parties that the Board’s pursuit of
temporary relief is moot. Yet there remains the dispute
whether the District Court’s opinion should be vacated.
Although the judgment has become moot, we retain the
authority “to enter orders necessary and appropriate to the
final disposition of a suit that is before us.” U.S. Bancorp
Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 22 (1994).

                             III.

        When a civil case becomes moot while an appeal is
pending, the normal practice is to vacate the district court
judgment “because doing so ‘clears the path for future
relitigation of the issues between the parties.’” Alvarez v.
Smith, 558 U.S. 87, 94 (2009) (quoting United States v.
Munsingwear, 340 U.S. 36, 40 (1950)). This equitable rule
prevents “‘a judgment, unreviewable because of mootness,
from spawning any legal consequences.’”           Rendell v.
Rumsfeld, 484 F.3d 236, 243 (3d Cir. 2007) (quoting
Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd.,
336 F.3d 211, 217 (3d Cir. 2003)).

       In U.S. Bancorp Mortgage Co., the Supreme Court
recognized an exception to this general practice when
“mootness results from settlement.” 513 U.S. at 25. If the
parties settle the dispute while the case is pending on appeal,
“the losing party has voluntarily forfeited his legal
remedy . . . , thereby surrendering his claim to the equitable
remedy of vacatur.” Id.
       The Supreme Court recognized the limited nature of
the exception created by Bancorp in Alvarez. There plaintiffs
brought a due process challenge to the State of Illinois’s
hearing procedures following the seizure of personal property
suspected of being used to facilitate a drug crime. 558 U.S.
89–90. The District Court granted the defendants’ motion to




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dismiss. Id. at 91. On appeal, the Court of Appeals for the
Seventh Circuit reversed. The Supreme Court granted
certiorari, but before the case was argued the State
voluntarily dismissed the proceedings against the plaintiffs
and returned the property, thereby mooting the underlying
dispute. Id. at 91–92. The Supreme Court concluded that the
mootness resulted from the “happenstance” of the separate
State court proceedings, and not by the choice of either party
to relinquish the appeal. Id. at 94. Although the State played
a role in resolving the property disputes, those cases were
decided on substantive grounds, and “the presence of [the]
federal case played no significant role in the termination of
the separate state-court proceedings.” Id. at 96–97. As such,
the Court vacated the Circuit Court’s opinion. Id.

        Mootness in our case arose when the Board issued its
decision and order on the merits of the complaint against
Somerset Valley. As in Alvarez, the underlying dispute was
resolved on the merits in an administrative proceeding
separate from the temporary injunction spawning the cross-
appeals. The Board therefore did not voluntarily forfeit its
right to a legal remedy on appeal. In addition, as both parties
challenged the District Court’s ruling, there is no evidence of
“manipulation of the legal system, or an attempt to erase an
unfavorable precedent” through seeking vacatur. Rendell,
484 F.3d at 243.

       Somerset Valley argues that the Court’s opinion has
continuing relevance, although no legal effect, because the
NLRB took judicial notice of the testimony offered before the
District Court and the Board has asked that Court to rely on
testimony presented at the hearing in another action involving
these parties. Vacating the opinion and order entered by the
District Court, however, will have no effect on the existence
or record of the proceedings before it. Indeed, we know of no




                              6
ruling that would hinder Somerset Valley from relying on
appropriate facts in the District Court record.

       In this case, neither party has relinquished its challenge
to the District Court’s opinion and order giving temporary
injunctive relief, but we are unable to review the decision
because, by the Board’s subsequent ruling on the merits, the
Court’s prior ruling is now moot. Hence, all that vacating the
prior opinion and order does is protect the parties from any
adverse legal consequences of that unreviewed opinion.

        For these reasons, we dismiss the appeal and cross-
appeal as moot and remand with the direction that the District
Court vacate its April 16, 2012 opinion and order. Our
decision to direct that Court to vacate its opinion is based
solely on the mootness of the appeals before us and the
governing Supreme Court law. We undertake no review of
the District Court’s very careful and well-articulated opinion
in this case. Indeed, we deeply appreciate the exceptionally
hard work of Judge Cooper.




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