                                                                            FILED
                                                                United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                 Tenth Circuit

                               FOR THE TENTH CIRCUIT                  August 18, 2020
                           _________________________________
                                                                   Christopher M. Wolpert
                                                                       Clerk of Court
SOUTH WIND WOMEN’S CENTER
LLC, on behalf of itself, its physicians and
staff, and its patients, d/b/a Trust Women
Oklahoma City; LARRY A. BURNS,
D.O., on behalf of himself and his staff and
his patients; COMPREHENSIVE
HEALTH OF PLANNED
PARENTHOOD GREAT PLAINS INC.,
on behalf of itself, its physicians and staff,
and its patients,

       Plaintiffs - Appellees,
                                                         No. 20-6055
v.                                                (D.C. No. 5:20-CV-00277-G)
                                                         (W.D. Okla.)
J. KEVIN STITT, in his official capacity
as Governor of Oklahoma; MICHAEL
HUNTER, in his official capacity as
Attorney General of Oklahoma; DAVID
PRATER, in his official capacity as
District Attorney for Oklahoma County;
GREG MASHBURN, in his official
capacity as District Attorney for Cleveland
County; GARY COX, in his official
capacity as Oklahoma Commissioner of
Health; MARK GOWER, in his official
capacity as Director of the Oklahoma
Department of Emergency Management,

       Defendants - Appellants.

----------------------------------------------

THE AMERICAN CENTER FOR LAW
AND JUSTICE; SIXTY-TWO
MEMBERS OF THE OKLAHOMA
SENATE AND OKLAHOMA HOUSE OF
REPRESENTATIVES; AMERICAN
 PUBLIC HEALTH ASSOCIATION;
 DEBORAH ALLEN; OXIRIS BARBOT;
 DEBORAH A. BARTZ; RONALD
 BAYER; CHRIS BEYRER; CAROLINE
 BUCKEE; ALICE CHEN; MARY ANN
 CHIASSON; SUSAN COHN; DEBORAH
 COTTON; WAFAA EL-SADR;
 BARBARA FERRER; JONATHAN
 FIELDING; LINDA FRIED; SANDRO
 GALEA; MARIA GALLO; SAMANTHA
 GARBERS; GREGG GONSALVES;
 ANDREW GOODMAN; CELINE R.
 GOUNDER; NATHAN D. GRUBAUGH;
 JODIE L. GUEST; KELLI HALL;
 MARGARET A. HAMBURG;
 ELIZABETH JANIAK; HEIDI JONES;
 MITCHELL KATZ; DEBORAH
 KAPLAN; NANCY KRIEGER; MARC
 LIPSITCH; MARK LURIE; NICOLE
 LURIE; POOJA MEHTA; MICHAEL
 MINA; GINA NOVICK; JENNIFER
 NUZZO; SAAD B. OMER; NANCY
 PADIAN; KIMBERLY POWERS;
 LESLIE ROBERTS; ROGER ROCHAT;
 JOSHUA SALOMON; ANTHONY D.
 SO; ANDREA SWARTZENDRUBER;
 JANET TURAN; STEN H. VERMUND;
 JUDITH N. WASSERHEIT; JULIE
 WOMACK; EVA HARRIS, ROMAN
 CATHOLIC DIOCESE OF TULSA,
 ARCHDIOCESE OF OKLAHOMA CITY,
 CATHOLIC CONFERENCE OF
 OKLAHOMA, OKLAHOMA BAPTISTS
 AND OKLAHOMA FAITH LEADERS.

          Amici Curiae.
                          _________________________________

                              ORDER AND JUDGMENT*

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
                                          2
                        _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      During the COVID-19 pandemic, the Governor of Oklahoma issued an

Executive Order (EO) that suspended various medical procedures, including

abortions. Plaintiffs-Appellees (the Providers), who provide abortions, sued the

Governor and several other officials (collectively, Oklahoma), and eventually

obtained a preliminary injunction enjoining Oklahoma from enforcing the EO in

several ways related to abortions. Oklahoma quickly filed this interlocutory appeal

to challenge the injunction. But less than two weeks after Oklahoma appealed, the

relevant portions of the EO expired. The parties now agree that we should dismiss

this appeal as moot and that only one question for us remains: Should we vacate the

preliminary injunction or leave it undisturbed? We conclude that we should follow

the usual practice in interlocutory appeals, so we dismiss the appeal as moot without

vacating the injunction order.

                                    I. Background

      The Governor issued the EO on March 24, 2020, declaring an emergency and,

among other things, requiring “Oklahomans and medical providers in Oklahoma” to

“postpone all elective surgeries” and “minor medical procedures” until April 7, 2020.



submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                            3
Joint App. Vol. 1 at 56. In a March 27 press release, the Governor clarified that the

EO prohibited “any type of abortion services” that were “not a medical

emergency . . . or otherwise necessary to prevent serious health risks to the unborn

child’s mother.” Id. at 60. On April 1, the Governor amended the EO to extend the

prohibition on elective surgeries and minor medical procedures until April 30. And

on April 16, the Governor again amended the EO to allow some elective surgeries to

resume April 24; some elective surgeries and all minor medical procedures still could

not resume until April 30.1

      Meanwhile, the Providers’ lawsuit—challenging the EO as it applied to

abortions—proceeded in the district court. After Oklahoma clarified how the April

16 amendments affected abortions, on April 20, the district court issued the

preliminary injunction, enjoining Oklahoma from enforcing the EO in three ways

related to abortions. The next day, Oklahoma filed this interlocutory appeal. It

sought to stay the injunction pending the appeal and to expedite the appeal (with a

decision on the merits by April 27), but we denied those requests.


      1
         The April 16 amendments to the EO stated that elective “procedures after”
April 24 were subject to a related Executive Memorandum (Memorandum), also
issued April 16. Joint App. Vol. 4 at 949. The Memorandum initially said that some
elective surgeries would be “[a]llowable May 1,” not April 30. Id. at 955. On April
20, however, the Governor clarified these time frames through minor amendments to
the EO and the Memorandum, providing that the Memorandum governed elective
“surgeries on and after” April 24, id. at 965, and that all elective surgeries would be
“[a]llowable April 30, id. at 971. Neither party argues that these minor amendments
affect our analysis. And we note that these amendments must have occurred before
the district court issued its injunction, which references the amendments. For
convenience, we will treat the April 16 amendments as having established the
ultimate time frames.
                                           4
      On April 30, the EO’s abortion restrictions expired.

                                    II. Discussion

      We begin by concluding that this appeal challenging the preliminary injunction

is moot. Although we have jurisdiction to review a district court’s order granting a

preliminary injunction, see 28 U.S.C. § 1292(a)(1), we may lose that “jurisdiction if

an interlocutory appeal no longer presents a live case or controversy,” Fleming v.

Gutierrez, 785 F.3d 442, 444 (10th Cir. 2015). To determine if this appeal is moot,

we consider whether a present decision on the issues before us will have some effect

in the real world. Id. at 444–45. We conclude that deciding the merits of this appeal

now would have no real-world effect because Oklahoma no longer seeks to do what

the injunction prohibits. Because the appeal is moot, we lack jurisdiction over the

merits and must dismiss. On that much, everyone seems to agree.

      But the parties disagree about what, if anything, we should do with the

preliminary injunction. Oklahoma argues that we should vacate the injunction, while

the Providers contend that we should simply dismiss the appeal and leave the

injunction undisturbed.

      “The statute that enables us to vacate a lower court judgment when a case

becomes moot is flexible, allowing a court to ‘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.’” Alvarez v. Smith, 558 U.S. 87, 94 (2009) (quoting

28 U.S.C. § 2106). Whether to vacate a judgment after an appeal becomes moot “is

an equitable question that must be determined on the basis of the particular

                                           5
circumstances.” Schell v. OXY USA Inc., 814 F.3d 1107, 1116 (10th Cir. 2016)

(internal quotation marks omitted). “The principal condition to which we have

looked is whether the party seeking relief from the judgment below caused the

mootness by voluntary action.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18, 24 (1994).

      In their disagreement over whether we should vacate the preliminary

injunction, the parties debate two general vacatur practices. Oklahoma points out

that when a civil case becomes moot while an appeal is pending, “the established

practice in the federal system is to reverse or vacate the judgment below and remand

with a direction to dismiss.” Arizonans for Official English v. Arizona, 520 U.S. 43,

71 (1997) (internal quotation marks omitted). “That procedure clears the path for

future relitigation of the issues between the parties and eliminates a judgment, review

of which was prevented through happenstance.” United States v. Munsingwear, Inc.,

340 U.S. 36, 40 (1950). “By its terms, Munsingwear applies to final judgments,” but

we have nevertheless “applied its rationale to vacate interlocutory decisions that have

no collateral or preclusive effect.” Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1132 (10th Cir. 2010).

      The Providers highlight a different practice: “In the case of interlocutory

appeals the usual practice is just to dismiss the appeal as moot and not vacate the

order appealed from.” Fleming, 785 F.3d at 449 (internal quotation marks omitted).

The district court in Fleming entered a preliminary injunction requiring the county in

that case “to adhere to new regulations increasing the number of voting centers and

                                           6
voting machines” before the 2014 elections. Id. at 443. The county filed an

interlocutory appeal challenging the injunction. Id. The 2014 elections occurred

while the appeal was pending, and we concluded that their passage mooted the

appeal. Id. We therefore dismissed the appeal as moot. Id. at 449. Seeing “no

reason to deviate from the usual practice” in interlocutory appeals, we did not vacate

the injunction order. Id.

       Oklahoma contends that Fleming, and the usual vacatur practice in

interlocutory appeals, should not control here because, in contrast to this case, the

district court in Fleming retained the ability to enter an appealable final judgment

involving the same issues raised by the preliminary injunction. At first glance, this

argument offers a plausible distinction between this case and Fleming. Fleming

acknowledged the “continuing proceedings” in the district court involving “the same

legal arguments” raised during the dispute over the preliminary injunction. Id. at

444, 446 (noting the complaint, which sought permanent injunctive relief as well as

declaratory relief, remained pending as no final judgment had yet been entered on the

remaining claims for relief). Oklahoma asserts that here, however, “the whole matter

is moot.” Aplt. Reply Br. at 4. Along those lines, the Providers tell us that their

“entitlement to attorneys’ fees is the only issue left” for the district court to decide

and that “vacatur would have no impact on that issue.” Aplee. Br. at 23–24.

       But a close inspection erases any meaningful distinction between Fleming and

this case. Similar to the parties here, the plaintiffs in Fleming made statements

suggesting that the case would not continue in the district court; they stated in a

                                             7
district court pleading that they had “received full relief” and their attorney told the

district court that the case would be over if it granted the preliminary injunction.

785 F.3d at 446 n.5. Yet we noted in Fleming it was “for the district court to

determine on remand whether any claims for relief” remained pending. Id. And so it

is here. The Providers’ complaint seeks not only a preliminary injunction but also a

permanent injunction, a declaratory judgment, and attorneys’ fees. That complaint

has not been dismissed. And despite the parties’ broad statements suggesting they

believe the entire case is moot, they offer no specific argument about the viability of

the remaining claims in the complaint. The district court must determine which, if

any, of the Providers’ claims remain. See id.; Rio Grande Silvery Minnow v. Keys,

355 F.3d 1215, 1222 (10th Cir. 2004) (declining to vacate the district court’s

injunction order, and concluding “that because the complaint has not been dismissed

and because the injunction was temporally limited and preliminary, the district court

should determine whether there are unresolved issues that remain to be tried”).

      We accept Oklahoma’s argument that it did not cause mootness by taking

action “to intentionally evade review.” Wyoming v. Zinke, 871 F.3d 1133, 1145

(10th Cir. 2017). After all, Oklahoma took no affirmative action to cause mootness

while this appeal has been pending. The EO simply expired according to a time

frame that existed before the injunction issued, albeit a time frame that the Governor

himself created. Moreover, Oklahoma’s attempt to have us address the merits during

the injunction’s brief effective duration suggests that it did not deliberately thwart



                                            8
“appellate review to avoid a decision on the issues.” McClendon v. City of

Albuquerque, 100 F.3d 863, 868 (10th Cir. 1996).

      Still, our cases show that vacatur may not be warranted in an interlocutory

appeal even if mootness was not caused primarily by a party’s action. Recall that the

appeal in Fleming became moot after elections occurred. The passing of elections no

doubt qualifies as happenstance at least as much as the event that caused mootness in

this case, the EO’s expiration. Yet in Fleming we nevertheless adhered to the usual

practice of dismissing the appeal as moot without vacating the preliminary

injunction. 785 F.3d at 449. And we did the same in Keys after concluding that

“favorable climatic conditions” were “the most significant factor” causing the appeal

to become moot. 355 F.3d at 1221. Here too we conclude that it is appropriate to

follow the usual practice in interlocutory appeals, and we decline to vacate the

district court’s preliminary injunction order.

                                    III. Conclusion

      We dismiss this appeal as moot.


                                            Entered for the Court
                                            Per Curiam




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