Tuesday, May 03, 2022

Mask Mandate Munsingwear Mootness Mystery

 by Michael C. Dorf

[Note to readers: Last night Politico published a leaked draft of a Supreme Court opinion overturning the right to abortion. I'll undoubtedly have something to say about the substance and perhaps about the leak too. But for now, I'll stick to my regularly scheduled programming.] 

Last week, Adam White of the American Enterprise Institute and I were the featured guests on the National Constitution Center's We the People podcast, hosted by NCC President/CEO (and GW law professor) Jeff Rosen. We discussed Judge Mizelle's ruling invalidating the CDC mask mandate for travelers on planes, trains, and other forms of transit. White arguably agreed with my main line of criticism of the ruling--set forth in my Verdict column--as insufficiently deferential to the CDC in construing the scope of its statutory authority. (I say "arguably" because White said he thought the ruling not clearly right but also not clearly wrong.) We more squarely disagreed on the aspects of the ruling that held the CDC had violated the Administrative Procedure Act (APA) by failing to provide an adequate explanation for dispensing with notice-and-comment rulemaking or for the substance of the rule itself. Once again echoing points I made in my column, I found the objections unpersuasive, whereas White thought they were valid. Finally, we discussed the justifications Judge Mizelle offered for issuing a nationwide injunction and some broader implications.

Early in the podcast I noted the oddity that although the Biden administration has appealed Judge Mizelle's ruling, it has not sought a stay pending appeal. I speculated that the decision might reflect a political judgment. On one hand, the mask mandate is not especially popular now and, if not extended, would have expired on its own within a couple of weeks of Judge Mizelle's ruling, so it's understandable that the administration did not seek a stay, only to re-impose the mandate for a brief period. At the same time, however, Judge Mizelle's very narrow construction of the CDC's authority could limit its ability to fight further waves of COVID-19 or take other measures in response to future disease outbreaks, so appealing could make sense to preserve flexible authority.

Yet, as I noted during the podcast and in my column, the appeal itself is risky, because the Eleventh Circuit and/or the Supreme Court could end up affirming the reasoning of Judge Mizelle's ruling, thereby undermining rather than strengthening the CDC's authority. After all, a federal district court decision sets no binding precedent for future cases involving different parties, but federal appeals court and Supreme Court rulings do. So why did the Biden administration run the risk of an appeal that could backfire?

In the balance of today's essay, I'll discuss a hypothesis first floated by Professor Stephen Vladeck and reported by the NY Times last month: perhaps the Biden administration is hoping that once the mandate expires of its own force (as it will tomorrow), the case will be moot; then, invoking the Munsingwear mootness doctrine (named for the 1950 SCOTUS case of United States v. Munsingwear), the government could have the district court opinion vacated, so that it has no ongoing legal effect. The core idea of Munsingwear mootness is that a party should not be bound by an opinion in a case in which it was deprived of a right to appeal by the mere passage of time. As I'll explain, there are reasons to doubt that this approach will succeed and thus reasons to doubt that the Justice Department is counting on it.

In Munsingwear, the Court explained that vacating the district court opinion when the case becomes moot before an appeal can be completed "eliminates a judgment, review of which was prevented through happenstance." Notably, federal appeals courts have sometimes invoked this language to reject a motion to vacate the district court opinion where the case becomes moot as a consequence of the losing party's deliberate action. Although I couldn't find an Eleventh Circuit case that did exactly that, various Eleventh Circuit cases quote the "happenstance" language, and the principle pretty clearly derives from the SCOTUS opinion in Munsingwear itself.

Does the Department of Justice decision to seek neither a stay pending appeal nor expedited review amount to the sort of deliberate action that makes Munsingwear mootness unavailable? That's hard to say. A 1984 D.C. Circuit opinion held that a government agency's decision not to appeal at all from (a portion of) a district court's ruling was deliberate action rendering the ruling ineligible for Munsingwear treatment. Here, by contrast, the government has appealed. And while its failure to seek a stay pending appeal or expedited review could reveal a hope that the case becomes moot, insofar as a stay and expedited review are not parts of the default review process, DOJ could argue that the happenstance requirement of Munsingwear is satisfied. Such an argument could succeed, but I could also imagine that a very conservative/Trumpy Eleventh Circuit panel might see itself as being manipulated and thus reject the Munsingwear gambit.

As early as tomorrow we could find out whether DOJ is pursuing a Munsingwear strategy, if it asks the Eleventh Circuit to dismiss the case as moot and to vacate the lower court opinion. If it does so, and if the Eleventh Circuit either rejects mootness (perhaps on the ground that the dispute falls into the mootness exception for cases that are capable of repetition yet evading review) or rejects Munsingwear vacation on the ground that deliberate action rather than happenstance is responsible for the case becoming moot, what then? At that point, the government could simply drop the appeal. Doing so would, of course, leave the district court opinion standing, but as noted above, the damage would be limited by the fact that a district court opinion sets no precedent.

During the podcast, White suggested that the government was appealing in the first place to limit the influence of the district court's opinion. Even if not technically binding, so long as Judge Mizelle's view is the only one out there, it could be influential, he suggested. I agree that this view could motivate the DOJ in wanting to have Judge Mizelle's ruling reversed (which is what White was suggesting), but I don't think it could sensibly motivate the government in seeking Munsingwear vacation. After all, even a vacated district court opinion remains available to the public. It's true that Munsingwear vacation would deprive Judge Mizelle's opinion of any binding precedential force, but to repeat, it already has no binding presidential force.

At this point some readers might be wondering why Munsingwear vacation is ever needed if district court opinions set no precedent. The key is to distinguish two very different sorts of legal effects of a judicial ruling. An appellate decision sets a precedent that binds future courts facing the same issue, regardless of the parties. Thus, even though Joe Blow wasn't a party to Texas v. Johnson, Blow can successfully invoke the holding of the case to protect himself against prosecution for burning an American flag.

Quite apart from their precedential effect, if any, judicial rulings preclude future litigation on the same or related issues between the parties. If Peter sues Diane for medical malpractice and loses, the ruling prevents Peter from bringing the same claim against Diane again. Lawyers have a bunch of different terms for various aspects of these effects: there's claim preclusion (sometimes called res judicata) and issue preclusion (sometimes called collateral estoppel). The key is that they bind parties (and sometimes others who are in a close relationship with parties, known as privities).

I doubt that anything in the foregoing paragraph explains very much to non-lawyers, but the important point to understand is that, with respect to parties, district court opinions have preclusive effect, which explains why Munsingwear vacation is very valuable to a losing party.

Here's a simple example: Suppose that Manufacturer sues Supplier, alleging a breach of a long-term supply contract. Supplier defends on the ground that Russia's war against Ukraine is a force majeure (i.e., an extraordinary extenuating circumstance) that excuses performance because of its supply chain impact. The district court agrees with Supplier and dismisses the lawsuit. Manufacturer appeals, renewing the argument it made to the district court that while the war affected the cost of key materials, it did not render them unavailable and thus does not trigger the force majeure clause. (Whether and when a price increase triggers a force majeure clause is often an issue in contract litigation.) While the case is pending on appeal, it becomes moot through happenstance. Unless the district court's initial decision is vacated, in any future litigation between Supplier and Manufacturer, the war will be treated as a force majeure, excusing alleged future breaches. As between Supplier and Manufacturer, the initial district court decision will be binding, even though Supplier was deprived of its opportunity to appeal it. Munsingwear vacation prevents the unfairness of binding Manufacturer as a result of a district court opinion it was unable to appeal.

So, could it be that the government is hoping for Munsingwear vacation to eliminate the preclusive effect of Judge Mizelle's opinion? Maybe, but there is uncertainty here too.

Most important are the limits on the preclusive use of a judgment by non-parties. In the leading 1979 case of Parklane Hosiery v. Shore, SCOTUS allowed that in some circumstances, someone who was not a plaintiff in the initial case can take advantage of a judgment against the defendant who lost in that case. However, such so-called offensive non-mutual issue preclusion is not available against the government. That was the holding of United States v. Mendoza five years later. Thus, it would seem that the only lasting formal effect of Judge Mizelle's ruling if it is not reversed on appeal or vacated pursuant to Munsingwear mootness would be to preclude the CDC from applying the mask mandate (or some other future mandate premised on the same theory that Judge Mizelle rejected) to the small number of plaintiffs in that case. If that's really all that's at stake, then pursuing an appeal with the hope that it becomes moot to invoke Munsingwear seems odd. Why take the risk that the Eleventh Circuit and/or Supreme Court will reject Munsingwear vacation and rule on the merits to affirm Judge Mizelle, thus making a bad situation much worse?

The answer may depend on the preclusive scope of the remedy. Recall that Judge Mizelle ordered a nationwide injunction. She did so in part because she thought that the APA authorized her to "set aside" the mask mandate in its entirety, but she also thought that nationwide relief was necessary to grant full relief to the particular parties before her--a justification for a nationwide injunction that even critics of such injunctions typically allow. One might therefore think that if everyone can take advantage of the particulars of Judge Mizelle's ruling with respect to the particular mask mandate that was before her, then everyone will be able to take advantage of the ruling for preclusion purposes going forward. In other words, on one reading of the district court ruling, it already has nationwide effect as a matter of preclusion.

I'm highly dubious of that reading, however. After all, one ground that critics of nationwide injunctions offer for their opposition is that it circumvents Mendoza's rule barring strangers to the initial litigation from invoking the government's defeat in future cases. Even if a nationwide injunction was necessary to grant full relief to the parties in the first instance (and I'm dubious about even that much), it hardly follows that offensive non-mutual issue preclusion in violation of Mendoza is somehow necessary to vindicate the rights of the original parties. Meanwhile, Judge Mizelle's other justification for granting nationwide relief--that the APA required her to "set aside" the rule--would not have substantial binding effect in future cases.

Accordingly, I'm left where I started. The benefits of Munsingwear vacation look quite modest, while the risk that an appeal could backfire looks substantial. We are left with something of a mystery.

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