   Case: 18-20466   Document: 00514794513       Page: 1   Date Filed: 01/14/2019




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

                                                                    FILED
                                 No. 18-20466                January 14, 2019
                                  __________
                                                               Lyle W. Cayce
MARANDA LYNN ODONNELL,                                              Clerk


           Plaintiff−Appellee,

versus

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,

           Defendants−Appellants.

                                  * * * * *

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

            Plaintiffs−Appellees,

versus

HARRIS COUNTY, TEXAS, ET AL.,

            Defendants,

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,

            Appellants.
     Case: 18-20466       Document: 00514794513         Page: 2     Date Filed: 01/14/2019


                                       No. 18-20466




                   Appeal from the United States District Court
                        for the Southern District of Texas




Before SMITH and DUNCAN, Circuit Judges. *
PER CURIAM:

       This 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 appeal.”

       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 signifi-
cant for purposes of this matter: “Judicial precedents are presumptively cor-
rect and valuable to the legal community as a whole. They are not merely the



       * Judge Graves, who participated in oral argument and dissented from the published
opinion issued on August 14, 2018, is now recused and did not participate in the consideration
of the motion to vacate the opinion. This motion is decided by a quorum. See 28 U.S.C.
§ 46(d).
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                                   No. 18-20466

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 cir-
cumstances.” Id. at 29.

      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 mak-
ing 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 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 Pro-
      cedure 43(c)(1), [their authority] to pursue the appeal on behalf of
      the legislature passed to their successors in office. The rules effec-
      tuating 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 un-
      attributable 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.

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                                  No. 18-20466

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 25−26.

      It is 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.

      The motion to vacate the opinion granting the stay is DENIED.




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