Health Law Daily Oklahoma’s appeal of preliminary injunction moot, preliminary injunction left undisturbed
Wednesday, August 19, 2020

Oklahoma’s appeal of preliminary injunction moot, preliminary injunction left undisturbed

By Jeffrey H. Brochin, J.D.

Where Oklahoma no longer sought to do what the preliminary injunction prohibited—and its appeal therefore became moot—the decision whether to vacate the preliminary injunction was an equitable question to be determined based on the particular circumstances.

A federal appeals court in Oklahoma has dismissed as moot Oklahoma’s interlocutory appeal of a district court’s entry of a preliminary injunction enjoining an executive order suspending abortions that expired, but has left undisturbed the lower court’s preliminary injunction. The appeals court reasoned that where an interlocutory appeal becomes moot, the usual practice is just to dismiss the appeal as moot and not vacate the order appealed from (South Wind Women’s Center, LLC v Stitt, August 18, 2020, per curiam).

Covid-19 Executive Order. On March 24, 2020, the Governor of Oklahoma issued an Executive Order (EO) in response to the COVID-19 pandemic that suspended various medical procedures, including abortions. Various providers, who provide abortions, sued the Governor and several other officials and eventually obtained a preliminary injunction enjoining Oklahoma from enforcing the EO in several ways related to abortions. Oklahoma filed the instant interlocutory appeal to challenge the injunction, however, less than two weeks after Oklahoma appealed, the relevant portions of the EO expired on April 30, 2020. The parties agreed that the appeals court should dismiss Oklahoma’s appeal as moot, however, there remained before the appeals court the issue of what to do with the district court’s preliminary injunction: vacate, or leave it undisturbed?

A flexible vacatur statute. The appeals court ruled that deciding the merits of the appeal now would have no real-world effect because Oklahoma no longer sought to do what the injunction prohibited, and because the appeal became moot, the appeals court lacked jurisdiction over the merits and had to dismiss the appeal. Notwithstanding the dismissal, Oklahoma argued that the appeals court should vacate the injunction, while the providers contended that the court should simply dismiss the appeal and leave the injunction undisturbed.

The appeals court noted that the statute that enables them 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. Whether to vacate a judgment after an appeal becomes moot is an equitable question that must be determined on the basis of the particular circumstances, and a principal condition that the court examined was whether the party seeking relief from the judgment below caused the mootness by voluntary action.

Two avenues of vacatur. The parties raised two general vacatur practices in the course of their respective arguments. Oklahoma pointed 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. That procedure clears the path for future re-litigation of the issues between the parties and eliminates a judgment, the review of which was prevented "through happenstance."

Conversely, the providers maintained that in the case of interlocutory appeals the usual practice is to simply dismiss the appeal as moot and not vacate the order appealed from, and they cited the case of Fleming v. Gutierrez, 785 F.3d 442, 444 (10th Cir. 2015) as precedent. The appeals court found that, as in the Fleming case, the instant partiesmade statements suggesting that the case would not continue in the district court, and that the providers had received full relief, the case being resolved upon the granting of the preliminary injunction.

EO expired of its own accord. The appeals court accepted Oklahoma’s argument that it did not cause mootness by taking action to intentionally evade review, and that it took no affirmative action to cause mootness while the interlocutory appeal was 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 the appeals court address the merits during the injunction’s brief effective duration suggested that it did not deliberately thwart appellate review to avoid a decision on the issues. Nevertheless, the appeals court ruled that vacatur may not be warranted in an interlocutory appeal even if mootness was not caused primarily by a party’s action. Accordingly, they concluded that it was appropriate to follow the usual practice in interlocutory appeals, and they declined to vacate the district court’s preliminary injunction order.

The case is No. 20-6055.

Attorneys: Kathryn E. Barrett (Dechert LLP) for South Wind Women's Center LLC and Larry A. Burns, DO. J. Blake Patton (Walding & Patton PLLC) for Comprehensive Health of Planned Parenthood Great Plains Inc. Bryan Cleveland, Office of the Attorney General, for J. Kevin Stitt, Michael Hunter, David Prater and Greg Mashburn.

Companies: South Wind Women's Center LLC; Comprehensive Health of Planned Parenthood Great Plains Inc.

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