     Case: 15-30858   Document: 00514384758     Page: 1   Date Filed: 03/13/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals

                                 No. 15-30858
                                                                    Fifth Circuit

                                                                  FILED
                                                             March 13, 2018

KENNETH HALL,                                                Lyle W. Cayce
                                                                  Clerk
             Plaintiff–Appellant,

BYRON SHARPER,

             Intervenor Plaintiff–Appellant,

v.

STATE OF LOUISIANA; JOHN BEL EDWARDS, in his official capacity as
Governor of the State of Louisiana; JEFF LANDRY, in his official capacity as
Attorney General; TOM SCHEDLER, In his official capacity as the Louisiana
Secretary of State; CITY OF BATON ROUGE; PARISH OF EAST BATON
ROUGE; SHARON WESTON BROOME, Official Capacity as the Mayor-
President of Baton Rouge,

             Defendants–Appellees.



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Kenneth Hall and Byron Sharper appeal the district court’s denial of
their Rule 60(b)(6) motion to vacate claims rendered moot by intervening
legislation enacted after the court issued its judgment but before the time to
appeal had expired. We affirm.
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                                 No. 15-30858
                                        I
      In 1993, the Louisiana Legislature enacted Act 609, which replaced
Baton Rouge’s at-large electoral system with one that divided the city into two
electoral sections, demarcated Election Section One and Election Section Two.
The Legislature then subdivided the majority-black Election Section One into
two electoral divisions (B and D) and the majority-white Election Section Two
into three electoral divisions (A, C, and E). This electoral formulation is known
as a “2-3” districting system.
      In this system, each division elects one judge to Baton Rouge City Court.
After the enactment of Act 609, Baton Rouge elected two black judges to
divisions B and D and three white judges to divisions A, C, and E in every
election, resulting in a court that was constantly composed of two black judges
and three white judges. During this time, Baton Rouge’s demographics shifted
from 43.9% black and 53.9% white to 54.5% black and 39.4% white.
      In light of these facts, Hall initiated a suit, in which Sharper
subsequently intervened, against the State of Louisiana, the City of Baton
Rouge, the Parish of East Baton Rouge, and various state officials (collectively
the Government). Hall and Sharper (collectively Hall) asserted claims under
the Voting Rights Act, requesting declaratory and injunctive relief under the
theory that the “2-3” districting system violated Section 2 of the Act and
requested that the court declare the State of Louisiana subject to the Act
pursuant to its Section 3(c). Also alleging that the “2-3” districting system
contravened the Fourteenth and Fifteenth Amendments to the United States
Constitution, Hall sought damages, inclusive of costs, pursuant to 42 U.S.C.
§§ 1983, 1986. After a bench trial, the district court rejected each of Hall’s
claims.
      Two days after the district court issued its judgment, the Louisiana
Legislature enrolled House Bill 76, which sought to replace the “2-3” districting
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                                       No. 15-30858
system with a “2-2-1” districting system. Under the new system, Election
Sections One and Two elect two judges each, and the city as a whole elects one
judge to an at-large seat. The Legislature enacted House Bill 76 as Act 374,
which Governor Piyush “Bobby” Jindal signed into law on July 1, 2015, before
Hall’s time to appeal had passed.             Act 374, which took immediate effect,
rendered Hall’s claims for injunctive and declaratory relief from the “2-3”
districting system moot.          Because these claims were moot, Hall lost the
opportunity to appeal.
      Hall timely moved pursuant to Federal Rule of Civil Procedure 60(b)(6)
for the district court to vacate its judgment. Specifically, Hall maintained that
because the passage of Act 374 was a circumstance outside of his control that
eliminated his ability to appeal the district court’s judgment, the district court
should vacate the portion of the judgment related to the mooted Voting Rights
Act Section 2 claim.
      The district court denied Hall’s motion to vacate. The court reasoned
that, although Hall’s claims for injunctive and declaratory relief under the
Voting Rights Act were moot, vacatur is not an automatic right and Hall did
not show that the balance of equities warranted such an “extraordinary
remedy.” 1 To reach its decision, the court assessed “twin considerations of fault
and public interest.” 2       Fault, the court held, weighed in favor of vacatur
because Hall had not caused his claims to become moot. Nevertheless, the
court determined that the public interest in preserving precedent and
furthering judicial consistency, when combined with the judgment’s minimal
effect on non-parties, was sufficient to offset Hall’s lack of fault, resulting in
the denial of Hall’s Rule 60(b)(6) motion.



      1   U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994).
      2   Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 (4th Cir. 2000).
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                                       No. 15-30858
       Hall appeals only the denial of his Rule 60(b)(6) motion to vacate his
Voting Rights Act Section 2 claim.
                                             II
       We review the denial of a Rule 60(b)(6) motion for abuse of discretion. 3
A court “abuses its discretion if it bases its decision on an erroneous view of
the law or on a clearly erroneous assessment of the evidence.” 4 Questions of
law receive de novo review. 5
       Rule 60(b)(6) empowers a district court to “relieve a party . . . from a final
judgment, order, or proceeding for . . . any . . . reason that justifies relief.” 6
Rule 60(b) “merely prescribes the practice in proceedings to obtain relief” and
“does not assume to define the substantive law as to the grounds for vacating
judgments.” 7 Courts have clarified that, although broadly stated, Rule 60(b)(6)
justifies relief in only “extraordinary circumstances.” 8
       Hall contends there are three principal errors in the district court’s
assessment of whether vacatur was appropriate. First, Hall asserts that the
district court misapplied the Supreme Court’s decision in U.S. Bancorp
Mortgage Company v. Bonner Mall Partnership 9 and our court’s en banc
decision in Staley v. Harris County, Texas. 10 Second, Hall argues that the
district court erroneously speculated that its judgment influenced the
Louisiana legislature and erred in concluding that this influence weighed



       3 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993).
       4 Hesling v. CSX Transp., Inc. 396 F.3d 632, 638 (5th Cir. 2005) (quoting Kennedy v.
Tex. Utils., 179 F.3d 258, 265 (5th Cir. 1999)).
       5 Yesh Music v. Lakewood Church, 727 F.3d 356, 359 (5th Cir. 2013).
       6 FED. R. CIV. P. 60(b)(6).
       7 Id. advisory committee’s note to 1946 amendment; see also Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 863-64 (1988) (noting that Rule 60(b)(6) “does not
particularize the factors that justify relief”).
       8 Liljeberg, 486 U.S. at 864 (quoting Ackermann v. United States, 340 U.S. 193 (1950)).
       9 513 U.S. 18 (1994).
       10 485 F.3d 305 (5th Cir. 2007) (en banc).

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                                        No. 15-30858
against vacatur.        Hall contends that “the key equitable consideration is
whether the party seeking vacatur is responsible for the loss of its appeal
rights.” He maintains that “[i]f an appeal is mooted by any circumstance
beyond that party’s control,” then “equity favors vacatur.” Third, Hall argues
that the district court erred in concluding that “it did not expect its judgment
to have great effect on nonparties to the litigation.”
       Hall’s briefing relies on court decisions in which the controversy became
moot while the case was on appeal, and an appellate court considered the
question of whether to vacate the district court’s judgment and opinion or
order. 11 The source of a district court’s authority to vacate a judgment when a
controversy has become moot is Rule 60(b), 12 with exceptions regarding an
injunction not relevant here. 13 An appellate court’s authority to vacate a
district court’s judgment when a pending appeal has become moot is 28 U.S.C.
§ 2106. 14 We therefore examine, as an initial matter, whether the factors to be
considered by a district court regarding vacatur in the context of a Rule 60(b)(6)
motion differ from those to be considered by an appellate court under § 2106.
       United States v. Munsingwear, Inc. 15 and Bancorp are two of the
Supreme Court’s seminal decisions regarding the propriety of vacatur when a
case is rendered moot.           Both of these cases, and others applying them,



       11  See, e.g., Bancorp, 513 U.S. 18; Staley, 485 F.3d 305.
       12  See FED. R. CIV. P. 60(b)(6) (“Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons: . . . . any
other reason that justifies relief.”).
        13 See Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121-22 (4th Cir. 2000).
        14 See 28 U.S.C. § 2106 (“The Supreme Court or any other court of appellate

jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order
of a court lawfully brought before it for review, and may remand the cause and direct the
entry of such appropriate judgment, decree, or order, or require such further proceedings to
be had as may be just under the circumstances.”).
        15 340 U.S. 36 (1950).



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                                        No. 15-30858
addressed vacatur in the context of § 2106—the appellate vacatur rule—not
Rule 60(b)(6). 16 The Circuit courts that have addressed whether Bancorp or
other Supreme Court decisions applying § 2106 necessarily bind a district court
in assessing a Rule 60(b) motion have held that they do not. 17 We agree.
       Driving this decision is the basic judicial tenet that “cases cannot be read
as foreclosing an argument [with which] they never dealt.” 18 Neither the
Supreme Court nor our court has addressed the standard for assessing a Rule
60(b)(6) motion for vacatur when a case has become moot before an appeal has
been taken.        Some cases construing § 2106 do contain broad, abstract
propositions that, despite not directly addressing Rule 60(b)(6), could be
construed to reach all vacatur decisions. 19              But, to the extent that these
propositions were not necessary to determine the scope of the appellate court’s
power under § 2106, the propositions are mere obiter dicta devoid of binding




       16  See, e.g., Camreta v. Greene, 563 U.S. 692, 712-14 (2011); Alvarez v. Smith, 558 U.S.
87, 94-97 (2009); Arizonans for Official English v. Arizona, 520 U.S. 43, 71-72 (1997);
Anderson v. Green, 513 U.S. 557, 560 (1995) (per curiam); Murphy v. Fort Worth Indep. Sch.
Dist., 334 F.3d 470, 470-71 (5th Cir. 2003) (per curiam); AT&T Commc’ns of the Sw., Inc. v.
City of Dall., 243 F.3d 928, 931 (5th Cir. 2001); AT&T Commc’ns of the Sw., Inc. v. City of
Austin, 235 F.3d 241, 243-44 (5th Cir. 2000); Pederson v. La. State Univ., 213 F.3d 858, 883
(5th Cir. 2000); Harris v. City of Hous., 151 F.3d 186, 191 (5th Cir. 1998); In re Int’l Aviation
Servs. I, Ltd., 1999 WL 301893 (5th Cir. May 5, 1999) (per curiam) (unpublished).
        17 Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 1002, 1003

(7th Cir. 2007); Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116-17 (4th Cir. 2000); Am.
Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1167-70 (9th Cir. 1998).
        18 Waters v. Churchill, 511 U.S. 661, 678 (1994).
        19 See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 340-41 (1961)

(construing Munsingwear as establishing that “a party should not be concluded in subsequent
litigation by a District Court’s resolution of issues, when appellate review of the judgment
incorporating that resolution, otherwise available as of right, fails because of intervening
mootness”); United States v. Munsingwear, 340 U.S. 36, 39 (1950) (“The established practice
of the Court in dealing with a civil case . . . which has become moot while on its way here or
pending our decision on the merits is to reverse or vacate the judgment below and remand
with a direction to dismiss.”).

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                                        No. 15-30858
effect. 20 In any event, the Supreme Court has effectively cabined this broad
language in later opinions, clarifying that its decisions apply not when a case
becomes moot before the right to appeal is exercised but rather “[w]hen a case
becomes moot pending appellate adjudication.” 21 Hall’s claims became moot
before an appeal was filed—not pending appellate adjudication. 22
       For the reasons articulated by the Fourth Circuit, 23 we conclude that
“absent unusual circumstances, the appellate vacatur decision under Bancorp
is informed almost entirely, if not entirely, by the twin considerations of fault
and public interest,” 24 and that those considerations “must also be largely
determinative of a district court’s decision whether to vacate its own judgment
due to mootness under Rule 60(b), and specifically Rule 60(b)(6).” 25 But we
also agree with the Fourth Circuit that “vacatur is available as a remedy to the
district court . . . even where the considerations of relative fault and the public
interest would otherwise counsel against vacatur.” 26 We therefore proceed to
consider how these principles apply in the present case.
                                               III
       To understand fully the Supreme Court’s decisions as to whether vacatur
is appropriate when a case becomes moot, we must consider its decision in
Munsingwear. In that case, the Government contended that the defendant




       20  See, e.g., Rios v. City of Del Rio, 444 F.3d 417, 425 n.8 (5th Cir. 2006) (“The binding
force of earlier opinions extends to alternative holdings but not to obiter dictum.”); see also
Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (defining obiter dictum).
        21 Arizonans for Official English, 520 U.S. at 71 (emphasis added); see also Camreta,

563 U.S. at 712 (addressing only “[w]hen a civil suit becomes moot pending appeal”).
        22 See Kellogg Brown & Root Servs. v. United States ex rel. Carter, 135 S. Ct. 1970,

1978 (2015) (defining “pending”).
        23 Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117-18 (4th Cir. 2000).
        24 Id. at 118.
        25 Id.
        26 Id. at 121.



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                                     No. 15-30858
sold commodities in violation of regulations that fixed a maximum price. 27 The
district court held that the defendant had complied with the regulations. 28 The
Government appealed, and while that appeal was pending, the commodity at
issue was decontrolled. 29 The court of appeals granted the defendant’s motion
to dismiss the appeal for mootness. 30          The Government failed to request
vacatur of the district court’s adverse judgment, and the Supreme Court held
that the judgment was res judicata. 31          However, in what the Court later
confirmed was dictum, 32 the Court said that had the Government moved to
vacate the judgment:
      [t]he established practice of the Court in dealing with a civil case
      from a court in the federal system which has become moot while
      on its way here or pending our decision on the merits is to reverse
      or vacate the judgment below and remand with a direction to
      dismiss. 33
The Court reasoned that vacatur “clears the path for future relitigation of the
issues between the parties and eliminates a judgment, review of which was
prevented through happenstance. When that procedure is followed, the rights
of all parties are preserved; none is prejudiced by a decision which in the
statutory scheme was only preliminary.” 34 Notably, the Court apparently




      27  United States v. Munsingwear, Inc., 340 U.S. 36, 37 (1950).
      28  Id.
       29 Id.
       30 Id.
       31 Id. at 40-41.
       32 U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994) (“To begin

with, the portion of Justice Douglas’ opinion in Munsingwear describing the ‘established
practice’ for vacatur was dictum; all that was needed for the decision was (at most) the
proposition that vacatur should have been sought, not that it necessarily would have been
granted.”).
       33 Munsingwear, 340 U.S. at 39.
       34 Id. at 40.



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considered the change in regulations “happenstance,” not the unilateral action
of the Government.
       The Supreme Court subsequently decided Bancorp, in which it
considered “whether appellate courts in the federal system should vacate civil
judgments of subordinate courts in cases that are settled after appeal is filed
or certiorari sought.” 35 Both parties in Bancorp “agree[d] that vacatur must
be decreed for those judgments whose review is . . . ‘prevented through
happenstance’” or by “unilateral action of the party who prevailed in the lower
court.” 36   The precise question was whether the Court should “extend[]
Munsingwear to settlement.” 37 The Court held that it should not. 38 The
reasons it gave are relevant to the case presently before us.
       As just noted, the Supreme Court recognized in Bancorp that the
statement in Munsingwear that vacatur was the “established practice” was
“dictum.” 39 The Court also noted that the practice of vacatur “was not entirely
uniform,” observing that “at least three cases ha[d] been dismissed for
mootness without vacatur within the four Terms preceding Munsingwear” 40
and that “the post-Munsingwear practice [has not] been as uniform as
petitioner claims.” 41 The Court therefore examined vacatur anew. 42 The Court
equated “happenstance” with “‘circumstances unattributable to any of the
parties,’” 43 and, in distinguishing a case mooted by settlement, the Court said


       35 Bancorp, 513 U.S. at 19.
       36 Id. at 23 (quoting Munsingwear, 340 U.S. at 40).
       37 Id. at 24.
       38 Id. at 29.
       39 Id. at 23.
       40 Id. (citing Schenley Distilling Corp. v. Anderson, 333 U.S. 878 (1948)).
       41 Id. at 24 (citing Allen & Co. v. Pac. Dunlop Holdings, Inc., 510 U.S. 1160 (1994);

Minn. Newspaper Ass’n, Inc. v. Postmaster Gen. of the U.S., 488 U.S. 998 (1989); St. Luke's
Fed’n of Nurses and Health Prof’ls v. Presbyterian/St. Luke's Med. Ctr., 459 U.S. 1025 (1982).
       42 Id.
       43 Id. at 23 (quoting Karcher v. May, 484 U.S. 72, 82 (1987)).



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                                       No. 15-30858
“[t]he reference to ‘happenstance’ in Munsingwear must be understood as an
allusion to [the] equitable tradition of vacatur.” 44
       The “equitable tradition” to which the Court referred was the disposition
“of moot cases in the manner ‘most consonant to justice,’” and in arriving upon
that determination, the Court explained that “[t]he principal condition to
which we have looked is whether the party seeking relief from the judgment
below caused the mootness by voluntary action.” 45 The Court reasoned that
“[a] party who seeks review of the merits of an adverse ruling, but is frustrated
by the vagaries of circumstance, ought not in fairness be forced to acquiesce in
the judgment,” and that “[t]he same is true when mootness results from
unilateral action of the party who prevailed below.” 46 But the Court also
reasoned that “when federal courts contemplate equitable relief, our holding
must also take account of the public interest.” 47 Judgments “should stand,”
the Court concluded, “unless a court concludes that the public interest would
be served by vacatur” because “[j]udicial precedents are presumptively correct
and valuable to the legal community as a whole” and “[t]hey are not merely the
property of private litigants.” 48          Elucidating these precepts, the Court
concluded that “the public interest is best served by granting relief when the
demands of ‘orderly procedure’ cannot be honored.” 49
       The Fifth Circuit sitting en banc addressed the interplay between
Munsingwear and Bancorp in Staley v. Harris County, Texas. In Staley, our


       44  Id. at 25.
       45  Id. at 24-25 (quoting United States v. Hamburg-Amerikanische Packetfahrt-Actien
Gesellschaft, 239 U.S. 466, 477-78 (1916)).
        46 Id. at 25.
        47 Id. at 26.
        48 Id. (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510 U.S.

27, 40 (1993) (Stevens, J., dissenting)).
        49 Id. at 27 (citation omitted) (quoting United States v. Munsingwear, Inc., 340 U.S.

36, 41 (1950)).

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                                      No. 15-30858
court denied Harris County’s § 2106 motion to vacate a district court injunction
after the county, who was the losing party in the district court and before a
panel of our court, voluntarily removed a monument that formed the basis of
the suit as part of planned renovations while the case was on appeal. 50 In
reaching its decision, the en banc court stated that “the Supreme Court
rejected the uniform rule reflected in Munsingwear when it decided U.S.
Bancorp.” 51 This court concluded that “Bancorp requires that we look at the
equities of the individual case.” 52
      In the present case, the appeal was mooted by actions of the Louisiana
legislature, which is not a party to this suit. No “fault” in mooting the appeal
is attributable to any of the defendants, even though some of them are officials
of the State of Louisiana. Bobby Jindal, who was Governor when the new
legislation was passed, signed the bill that was presented to him, but the
legislative body crafted it, and there is no evidence that he was the moving
force behind the legislation. Hall is not subject to a money judgment or any
injunctive relief as a result of the district court’s judgment. In this regard, Hall
is not “forced to acquiesce in the judgment.” 53 One of the equitable principles
animating the Supreme Court’s exposition of the considerations when vacatur
due to mootness is sought was whether a party seeking vacatur who was not
at fault would be forced to comply with the judgment. The res judicata effect,
if any, of the district court’s rulings pertain specifically to a state election law
that no longer exists. Under these circumstances, we cannot say that the
district court abused its discretion in concluding that Hall was not entitled to
vacatur under Rule 60(b)(6).



      50 Staley v. Harris Cty., Tex., 485 F.3d 305, 307, 313-14 (5th Cir. 2007) (en banc).
      51 Id. at 312.
      52 Id.
      53 Bancorp, 513 U.S. at 25.

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                                   No. 15-30858
                               *        *         *
      For the foregoing reasons, we AFFIRM the order of the district court
denying relief under Rule 60(b)(6).




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                                         No. 15-30858
HIGGINBOTHAM, Circuit Judge, concurring:
      I generally concur with the majority’s reasoning and outcome. However,
where the mooting action in a case consists of a state’s passage of new
legislation, I think it unhelpful to assign comparative “fault” to the distinct
public officials who play some role in the legislative process. Other courts have
suggested that the governor’s role may be relevant in the past, 1 for instance,
but I remain unpersuaded. The state—with its Legislative and Executive
Branches—acts in unity to pass legislation, and therefore other equitable
considerations should govern vacatur in such cases.




      1   See, e.g., Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000).
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