Petition for Writ of Certiorari — Alabama, et al., Petitioners v. Alabama State Conference of the NAACP, et al.

No. _________

In the Supreme Court of the United States

──────────────────────────

THE STATE OF ALABAMA, ET AL.,

Petitioners,

v.

ALABAMA STATE CONFERENCE OF THE N.A.A.C.P., ET AL.,

Respondents.

──────────────────────────

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

──────────────────────────

PETITION FOR A WRIT OF CERTIORARI

──────────────────────────

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Steve Marshall

Attorney General

Edmund G. LaCour Jr.*

Solicitor General

*Counsel of Record

James W. Davis

Winfield J. Sinclair

Misty S. Fairbanks Messick

Brenton M. Smith

Assistant Attorneys General

January 27, 2021

Counsel for Petitioners

i

QUESTION PRESENTED

This Court has long held that vacatur of a court of

appeals decision is warranted when the appeal becomes moot “while on its way” to this Court. See

United States v. Munsingwear, 340 U.S. 36, 39 (1950).

And an interlocutory appeal becomes moot when a district court enters final judgment in the underlying

case. See Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1998). This

Court has accordingly vacated decisions in interlocutory appeals that became moot because the district

court entered final judgment after the court of appeals

ruled. See Harper ex rel. Harper v. Poway Unified Sch.

Dist., 549 U.S. 1262, 1262 (2007).

In this case, the State of Alabama and Alabama’s

Secretary of State filed an interlocutory appeal from a

district court ruling that the Voting Rights Act abrogated the State’s sovereign immunity. More than two

years later, a divided Eleventh Circuit panel affirmed,

and two days after that, the appeal became moot when

the district court ruled on the merits for the State.

Though the Eleventh Circuit agreed that the appeal

was moot, the court declined to vacate its decision.

This case presents the following question:

Whether the Eleventh Circuit’s unreviewed and

unreviewable decision should be vacated.

ii

PARTIES AND AFFILIATES

The petitioners are the State of Alabama and John

H. Merrill, in his official capacity as Secretary of State

of the State of Alabama.

The respondents are the Alabama State Conference of the N.A.A.C.P., Sherman Norfleet, Clarence

Muhammad, Curtis Travis, and John Andrew Harris.

RELATED PROCEEDINGS

United States District Court (M.D. Ala.):

Ala. Conf. of the NAACP v. Alabama, No. 2:16CV-731-WKW (Aug. 31, 2017)

Ala. Conf. of the NAACP v. Alabama, No. 2:16CV-731-WKW (Feb. 5, 2020)

United States Court of Appeals (11th Cir.):

Alabama v. Ala. Conf. of the NAACP, No. 1714443 (May 14, 2020)

Alabama v. Ala. Conf. of the NAACP, No. 1714443 (Feb. 3, 2020)

Alabama v. Ala. Conf. of the NAACP, No. 1714443 (Oct. 29, 2020)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ................................................... i

PARTIES AND AFFILIATES ............................................. ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF CONTENTS................................................... iii

TABLE OF APPENDICES ................................................. iv

TABLE OF AUTHORITIES ................................................ v

PETITION FOR WRIT OF CERTIORARI ............................. 1

OPINIONS BELOW .......................................................... 2

JURISDICTION ............................................................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................................................. 3

STATEMENT................................................................... 3

REASONS FOR GRANTING THE PETITION........................ 6

I.

The Interlocutory Appeal on the Merits Is

Now Moot. ...................................................... 7

II. Vacatur Is the Proper Remedy Under This

Court’s Precedent. .......................................... 8

A. Mootness occurred by happenstance. ... 12

B. The Eleventh Circuit’s decision

creates significant legal consequences

for three States and their officials. ....... 12

C. The equities favor vacatur. ................... 15

CONCLUSION ............................................................... 16

iv

TABLE OF APPENDICES

Appendix A

Order of the United States Court of Appeals

for the Eleventh Circuit Dismissing Appeal

as Moot and Denying Vacatur, Alabama v.

Ala. State Conf. of the NAACP, No. 17-14443

(May 14, 2020) ...................................................... 1a

Appendix B

Opinion of the United States Court of Appeals for the Eleventh Circuit, Alabama v.

Ala. State Conf. of the NAACP, No. 17-14443

(Feb. 3, 2020) ........................................................ 5a

Appendix C

Memorandum Opinion & Order of the United

States District Court for the Middle District

of Alabama, Ala. State Conf. of the NAACP v.

Alabama, No. 2:16-CV-731-WKW (Aug. 31,

2017) ................................................................... 38a

Appendix D

Order of the United States Court of Appeals

for the Eleventh Circuit Denying Petition for

Rehearing En Banc, Alabama v. Ala. State

Conf. of the NAACP, No. 17-14443 (Oct. 29,

2020) ................................................................... 63a

Appendix E

Constitutional and Statutory Provisions Involved .................................................................. 65a

U.S. CONST. amend. XI ................................. 65a

52 U.S.C. §10301 .......................................... 65a

52 U.S.C. §10302 .......................................... 66a

v

TABLE OF AUTHORITIES

Cases

Ala. State Conf. of the NAACP v. Alabama,

__F.Supp.3d__, No. 2:16-cv-731-WKW,

2020 WL 583803 (M.D. Ala. Feb. 5,

2020) .....................................................................2, 5

Ala. State Conf. of the NAACP v. Alabama,

949 F.3d 647 (11th Cir. 2020) ....................... 2, 7, 15

Alabama v. Pugh,

438 U.S. 781 (1978)................................................ 14

Alden v. Maine,

527 U.S. 706 (1999)................................................ 13

Alvarez v. Smith,

558 U.S. 87 (2009)....................................................9

Amanatullah v. Obama,

575 U.S. 908 (2015).......................................... 10, 11

Arevalo v. Ashcroft,

386 F.3d 19 (1st Cir. 2004) .................................... 16

Arizonans for Off. English v. Arizona,

520 U.S. 43 (1997)...................................... 11, 12, 16

Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985)............................................ 2, 14

Att’y Gen. of Tenn. v. Adams & Boyle, P.C.,

No. 20-482, 2021 WL 231544 (U.S. Jan.

25, 2021) ................................................................. 10

Azar v. Garza,

138 S. Ct. 1790 (2018)..............................................9

Bank of Am. Corp. v. City of Miami,

140 S. Ct. 1259 (2020)............................................ 10

vi

Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001)................................................ 14

Beers v. Barr,

140 S. Ct. 2758 (2020)............................................ 10

Berninger v. F.C.C.,

139 S. Ct. 453 (2018).............................................. 10

Blue Water Navy Vietnam Veterans Ass’n, Inc.

v. Wilkie,

139 S. Ct. 2740 (2019)...................................... 10, 11

Burke v. Barnes,

479 U.S. 361 (1987)..................................................9

Camreta v. Greene,

563 U.S. 692 (2011)........................................ passim

Chafin v. Chafin,

568 U.S. 165 (2013)..................................................7

Clarke v. United States,

915 F.2d 699 (D.C. Cir. 1990) ................................ 16

Dellmuth v. Muth,

491 U.S. 223 (1989)........................................ 4, 5, 14

Dep’t of Com. v. U.S. Dist. Ct. for S.

Dist. of N.Y.,

139 S. Ct. 2779 (2019)...................................... 10, 11

Dillon v. Alleghany Corp.,

499 U.S. 933 (1991).......................................... 11, 12

Duke Power Co. v. Greenwood County,

299 U.S. 259 (1936)............................................ 9, 10

Eisai Co., Ltd. v. Teva Pharms. USA, Inc.,

564 U.S. 1001 (2011).............................................. 11

Ex parte Young,

209 U.S. 123 (1908)........................................ 1, 7, 14

vii

Gray v. Wilkie,

139 S. Ct. 2764 (2019)............................................ 11

Great W. Sugar Co. v. Nelson,

442 U.S. 92 (1979).............................................. 9, 10

Grupo Mexicano de Desarrollo S.A. v.

Alliance Bond Fund, Inc.,

527 U.S. 308 (1998)..................................................8

Harper ex rel. Harper v. Poway Unified

Sch. Dist.,

549 U.S. 1262 (2007)...................................... 5, 8, 11

Hartford Cas. Ins. Co. v. Crum &

Forster Specialty Ins. Co.,

828 F.3d 1331 (11th Cir. 2016).............................. 16

Hollingsworth v. U.S. Dist. Ct. for N.

Dist. of Cal.,

562 U.S. 801 (2010)................................................ 11

Honig v. Doe,

484 U.S. 305 (1988)..................................................7

Ivy v. Morath,

137 S. Ct. 414 (2016).............................................. 10

Merrill v. People First of Ala.,

141 S. Ct. 25 (2020)............................................ 7, 15

Merrill v. People First of Ala.,

141 S. Ct. 190 (2020).............................................. 15

Motta v. Dist. Dir. of I.N.S.,

61 F.3d 117 (1st Cir. 1995) .................................... 16

N.Y. State Rifle & Pistol Ass’n, Inc. v.

City of New York,

140 S. Ct. 1525 (2020)..............................................9

Niang v. Tomblinson,

139 S. Ct. 319 (2018).............................................. 10

viii

People First of Ala. v. Merrill,

467 F.Supp.3d 1179 (N.D. Ala. 2020) ................... 15

People First of Ala. v. Merrill,

__F.Supp.3d__, No. 20-cv-00619, 2020

WL 4747641 (N.D. Ala. Aug. 17, 2020) ......... 6, 7, 14

Planned Parenthood v. Abbott,

No. 20-305, 2021 WL 231539 (U.S.

Jan. 25, 2021) ......................................................... 10

PNC Bank Nat’l Ass’n v. Secure Axcess, LLC,

138 S. Ct. 1982 (2018)...................................... 10, 11

Robertson v. United States,

139 S. Ct. 1543 (2019)............................................ 11

S. Spring Hill Gold Min. Co. v. Amador

Medean Gold Min. Co.,

145 U.S. 300 (1892)..................................................9

Snow v. United States,

118 U.S. 346 (1886)..................................................9

Trump v. Crew,

No. 20-330, 2021 WL 231541 (U.S.

Jan. 25, 2021) ......................................................... 10

Trump v. District of Columbia,

No. 20-331, 2021 WL 231542 (U.S.

Jan. 25, 2021) ......................................................... 10

Trump v. Hawaii,

138 S. Ct. 377 (2017).............................................. 10

U.S. Bancorp Mortg. Co. v. Bonner

Mall P’ship,

513 U.S. 18 (1994).......................................... passim

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980)..................................................7

ix

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950).......................................... passim

Vill. of Lincolnshire v. Int’l Union of

Operating Eng’rs Local 399,

139 S. Ct. 2692 (2019)...................................... 10, 11

Statutes

28 U.S.C. § 1254(1) ......................................................3

28 U.S.C. § 1331 ..........................................................2

28 U.S.C. § 1343 ..........................................................2

42 U.S.C. § 10501 .............................................. passim

Other Authorities

Charles A. Wright et al., Federal Practice &

Procedure § 3533.10.3 (3d ed. Oct. 2020

Update)................................................................... 11

1

PETITION FOR WRIT OF CERTIORARI

The Eleventh Circuit recently decided a critical

question of federalism and state sovereignty that has

divided federal courts. Though the Voting Rights Act

contains no express private right of action, a divided

panel held that the VRA makes it unmistakably clear

that Congress intended to abrogate state sovereign

immunity, thereby allowing private parties to sue

States directly and to sue State officials for relief beyond that allowed by Ex parte Young. Before Alabama

could seek further review of that decision, the State’s

interlocutory appeal became moot when the State prevailed on the merits of the action after trial.

The State thus asked the Eleventh Circuit to vacate its unreviewed and unreviewable decision to

“clear[] the path for future relitigation of the issues

between the parties and eliminate[] a judgment, review of which was prevented through happenstance.”

United States v. Munsingwear, Inc., 340 U.S. 36, 40

(1950). Despite “the duty of the appellate court” to do

just that, id., a divided panel declined, App. 1a. The

majority gave no reason for why it did not vacate, but

Judge Branch provided several reasons why it should

have. See App. 2a-3a. First, the decisions “would

spawn immense legal consequences” not just for Alabama, but for Florida and Georgia too. App. 2a. Second, failure to vacate treats Alabama “as if there has

been a review” of this issue when, in fact, the appellate review process has been cut short. App. 3a (citing

Camreta v. Greene, 563 U.S. 692, 712 (2011)). And, finally, resolving this abrogation issue for the Circuit

“is a legally consequential decision.” Id. (quoting

Camreta, 563 U.S. at 712).

2

In short, this is exactly the sort of case that demands vacatur. “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 that ruling.” Camreta, 563 U.S. at 712

(internal quotation marks omitted). And that principle should apply with special force when, as here, the

unreviewed ruling dramatically alters the “constitutionally mandated balance of power between the

States and the Federal Government.” Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (internal quotation marks omitted). To reset that balance until the abrogation issue can be fully litigated,

this Court should grant the State’s petition and vacate

the Eleventh Circuit’s abrogation decision.

OPINIONS BELOW

The district court’s memorandum opinion and

order denying the State’s motion to dismiss (App. 38a62a) is reported at 264 F.Supp.3d 1280. The court of

appeals panel’s opinion affirming that decision (App.

5a-37a) is reported at 949 F.3d 647. The panel’s order

dismissing the State’s appeal as moot but denying the

request for vacatur (App. 1a-4a) is reported at 806 F.

App’x 975. The order of the en banc court of appeals

denying rehearing regarding vacatur (App. 63a-64a)

is unreported.

JURISDICTION

The district court had federal question jurisdiction

and civil rights jurisdiction. See 28 U.S.C. §§ 1331,

1343. The court of appeals issued the opinion for

which the State seeks vacatur on February 3, 2020.

App. 5a. The State filed a motion to vacate the

decision and dismiss the appeal as moot, which was

granted in part and denied in part on May 14, 2020.

App. 1a. The State filed a timely petition for

3

rehearing, which was denied on October 29, 2020.

App. 63a. This petition is timely filed within 90 days

of that date. This Court has jurisdiction under 28

U.S.C. § 1254(1) and may consider vacatur after an

underlying case has become moot. See U.S. Bancorp

Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21-22

(1994).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions

are set forth in the appendix to this petition. App. 65a68a.

STATEMENT

This petition is about whether to vacate an unreviewable decision by the Eleventh Circuit holding that

the sovereign immunity of the State of Alabama has

been abrogated by the VRA. Just two days after the

divided panel ruled, the State’s interlocutory appeal

became moot when the district court entered final

judgment on the merits in favor of the State. The Eleventh Circuit, despite agreeing that the appeal was

moot, refused to vacate its decision.

1. Alabama elects its appellate judges—those serving on the Supreme Court, Court of Criminal Appeals,

and Court of Civil Appeals—through statewide elections. Candidates run in partisan elections for numbered places or for the position of Chief Justice of the

Supreme Court. The staggered terms are for six years

and mid-term vacancies are filled by gubernatorial appointment.

2. On September 7, 2016, Respondents—the Alabama State Conference of the NAACP, Sherman Norfleet, Clarence Muhammad, Curtis Travis, and John

Andrew Harris—sued the State of Alabama and its

Secretary of State in the District Court for the Middle

4

District of Alabama. Respondents argued that the

votes of African Americans are diluted because appellate judges are not elected from single-member districts. Thus, they claimed that electing appellate

judges statewide violates § 2 of the Voting Rights Act

(42 U.S.C. § 10501), as well as the Fourteenth and Fifteenth Amendments to the Constitution.

The State moved to dismiss on a variety of grounds

including standing, sovereign immunity, and the merits of the underlying claims. As particularly relevant

here, the State argued that sovereign immunity

barred the § 2 claim against the State because the

VRA lacked the unmistakably clear statement required to abrogate the State’s sovereign immunity.

See, e.g., Dellmuth v. Muth, 491 U.S. 223, 228 (1989)

(“Congress may abrogate the States’ constitutionally

secured immunity from suit in federal court only by

makings its intention unmistakably clear in the language of the statute.”).

The district court denied the State’s motion to dismiss on August 31, 2017, holding that Congress abrogated State sovereign immunity in passing § 2 pursuant to its enforcement powers under either the Fourteenth or Fifteenth Amendments. App. 56a-62a.

3. The State promptly filed an interlocutory appeal

of the abrogation issue in September 2017. Briefing

concluded in February 2018. Argument was set for

September 2018, then later rescheduled and held in

December 2018.

4. While that appeal was pending, the case went to

trial in the district court. Irrespective of the appeal,

the litigation would have proceeded against the Secretary of State, and Respondents sought “an expeditious trial schedule” given the then-forthcoming 2018

elections.

5

5. On February 3, 2020, a divided panel of the

court of appeals affirmed the district court’s ruling

that § 2 abrogates State sovereign immunity. App. 5a19a. Judge Branch dissented, concluding that “Congress did not unequivocally abrogate state sovereign

immunity under Section 2 of the [VRA].” App. 20a. In

her view, Congress had not made “its intention unmistakably clear in the language of the statute.” App. 21a,

23a (quoting Dellmuth, 491 U.S. at 228).

6. Just two days later, on February 5, 2020, the

district court entered final judgment on the merits of

the case, concluding that the State’s method of selecting judges did not violate § 2 or the Constitution. Ala.

State Conf. of the NAACP v. Alabama, __F.Supp.3d__,

No. 2:16-cv-731-WKW, 2020 WL 583803 (M.D. Ala.

Feb. 5, 2020). This decision thus mooted the interlocutory appeal regarding the State’s sovereign immunity before either the en banc court of appeals or this

Court could consider the panel majority’s decision.

See, e.g., Harper ex rel. Harper v. Poway Unified Sch.

Dist., 549 U.S. 1262, 1262 (2007).

The State accordingly moved to dismiss its interlocutory appeal as moot and to vacate the panel decision. But although all three panel members agreed

that the appeal was moot, two opted (without explanation) to deny the State’s request for vacatur. App.

1a-2a.

Judge Branch dissented from the majority’s decision not to vacate. She explained that the majority

was wrong because (1) “not vacating the panel opinion

would spawn immense legal consequences for Florida,

Georgia, and Alabama;” (2) not vacating “treat[s] [the

opinion] as if there has been a review when, as it

stands,” it has not been and cannot now be reviewed;

and (3) the abrogation of State sovereign immunity “is

6

certainly a legally consequential decision,” further

counseling that the panel should have vacated its unreviewable decision. App. 2a-4a.

7. The State petitioned for rehearing by the en

banc court of appeals. That petition was denied on October 29, 2020. App. 63a-64a.

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari to vacate the

Eleventh Circuit’s consequential and unreviewable

decision. The decision implicates a key question of federalism and—as binding precedent throughout the

Circuit—has profound effects on the sovereignty of not

just Alabama, but Florida and Georgia as well. Although the Voting Rights Act provides no express private right of action, the Eleventh Circuit held that the

text of that statute makes it unmistakably clear that

Congress intended to abrogate State sovereign immunity, allowing private parties to sue States and

State officials directly under § 2 (42 U.S.C. § 10501).

The State understandably had an interest in seeking

further review of this decision. But the State’s interlocutory appeal became moot just two days after the

divided panel ruled, when the district court entered

final judgment in favor of the State following a trial.

The State thus asked the panel to vacate its unreviewed and now-unreviewable decision to “clear[] the

path for future relitigation of the issues between the

parties and eliminate[] a judgment, review of which

was prevented through happenstance.” United States

v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). Though

“the duty of the appellate court” is to do just that, id.,

two members of the panel refused (without explanation) to vacate the decision, App. 2a. The en banc court

of appeals likewise summarily denied the State’s petition for rehearing. App. 63a-64a.

7

The divided panel’s unreviewable, precedent-setting opinion has already created (and will continue to

create) significant consequences for the State. Indeed,

just last year, the State was subjected to preliminary

and permanent injunctions in litigation regarding

COVID-19 and the 2020 elections. Merrill v. People

First of Ala., 141 S. Ct. 25 (2020) (staying permanent

injunction); People First of Ala. v. Merrill,

__F.Supp.3d__, No. 20-cv-00619, 2020 WL 4747641, at

*3 (N.D. Ala. Aug. 17, 2020) (holding that State’s immunity was abrogated by the VRA (citing Ala. State

Conf. of the NAACP v. Alabama, 949 F.3d 647, 655

(11th Cir. 2020)). And now that the State and its officials may be sued directly, they may soon face the prospect of relief that goes beyond the prospective injunctive relief that is available in suits brought under Ex

parte Young.

The Eleventh Circuit’s failure to vacate its abrogation decision forces Alabama (and Florida and Georgia) to face claims “as if there has been a review” of

this issue when, in fact, the appellate review process

has been cut short. App. 3a (citing Camreta v. Greene,

563 U.S. 692, 712 (2011)). Vacatur exists and is routinely used to prevent such unfairness. This Court

therefore should grant certiorari and vacate the Eleventh Circuit’s decision.

I. The Interlocutory Appeal on the Merits Is

Now Moot.

Article III of the U.S. Constitution limits federal

courts to deciding only “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “[W]hen

the issues presented are no longer ‘live,’” U.S. Parole

Comm’n v. Geraghty, 445 U.S. 388, 396 (1980), and “it

is impossible for a court to grant any effectual relief

whatever,” Chafin v. Chafin, 568 U.S. 165, 172 (2013),

8

the controversy becomes moot and the court thus loses

jurisdiction. When a district court enters a final judgment before an interlocutory appeal has concluded,

the interlocutory appeal merges into the final judgment, thus mooting the interlocutory appeal and requiring dismissal of the appeal. See Harper ex rel.

Harper v. Poway Unified Sch. Dist., 549 U.S. 1262,

1262 (2007); see also Grupo Mexicano de Desarrollo

S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314

(1998).

Here, the State’s interlocutory appeal became

moot when the district court entered a final judgment

in its favor. Because the district court’s interlocutory

order merged with its final decree, the merits of this

appeal became moot. Each member of the Eleventh

Circuit panel agreed, summarily dismissing the appeal as moot. App. 2a. Thus, neither the en banc court

of appeals nor this Court had an opportunity to pass

upon the merits, and the State lost its ability to vindicate its sovereign immunity from suit.

The State, through no fault of its own, was deprived of appellate review of the panel’s decision. And

though this Court now lacks jurisdiction to consider

the underlying issue of abrogation, the Court retains

jurisdiction to vacate the panel’s decision. See U.S.

Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S.

18, 21-22 (1994). As explained below, vacatur is

proper.

II. Vacatur Is the Proper Remedy Under This

Court’s Precedent.

When—as in this case—an appeal becomes moot

“while on its way [to this Court] or pending [this

Court’s] decision on the merits,” the “established practice of the Court … is to reverse or vacate the judgment below and remand with a direction to dismiss.”

9

United States v. Munsingwear, Inc., 340 U.S. 36, 39

(1950); see also, e.g., id. at 39 n.2 (collecting cases illustrating this to be “the standard disposition in federal civil cases”); N.Y. State Rifle & Pistol Ass’n, Inc.

v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per

curiam); Azar v. Garza, 138 S. Ct. 1790, 1792 (2018)

(per curiam); Alvarez v. Smith, 558 U.S. 87, 94-97

(2009); Burke v. Barnes, 479 U.S. 361, 365 (1987);

Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979)

(per curiam); Duke Power Co. v. Greenwood County,

299 U.S. 259, 267 (1936) (per curiam).

Vacatur is the longstanding “normal rule” when

mootness occurs on appeal, Camreta v. Greene, 563

U.S. 692, 713 (2011), and the Court has applied the

rule since at least as early as the late 1800s, see S.

Spring Hill Gold Min. Co. v. Amador Medean Gold

Min. Co., 145 U.S. 300, 301-02 (1892) (reversing lower

court’s judgment where Article III jurisdiction was

lost pending appeal); cf. Snow v. United States, 118

U.S. 346, 354-55 (1886) (vacating this Court’s own

judgment in a prior case where jurisdictional issue relating to appeals from territorial courts came to this

Court’s attention “in order that the reported decision

may not appear to be a precedent for the exercise of

jurisdiction by this court in a case of the kind”). “Congress has prescribed a primary route, by appeal as of

right and certiorari, through which parties may seek

relief from the legal consequences of judicial judgments,” and “Munsingwear establishes that the public

interest is best served by granting relief when the demands of ‘orderly procedure’ cannot be honored”

through no fault of the party seeking vacatur. Bancorp, 513 U.S. at 27 (quoting Munsingwear, 340 U.S.

at 41). Accordingly, this Court has explained that vacatur is “the duty of the appellate court” where a

10

decision becomes moot before the party that lost below

can seek full appellate review. Munsingwear, 340 U.S.

at 40 (quoting Duke Power Co., 299 U.S. at 267). This

“course of action … has been followed in countless

cases in this Court.” Great W. Sugar Co., 442 U.S. at

93.

Accordingly, the Court routinely cites Munsingwear when granting petitions for writs of certiorari and summarily vacating decisions of the lower

courts. See, e.g., Beers v. Barr, 140 S. Ct. 2758 (2020);

Bank of Am. Corp. v. City of Miami, 140 S. Ct. 1259

(2020); Dep’t of Com. v. U.S. Dist. Ct. for S. Dist. of

N.Y., 139 S. Ct. 2779 (2019); Blue Water Navy Vietnam Veterans Ass’n, Inc. v. Wilkie, 139 S. Ct. 2740

(2019); Vill. of Lincolnshire v. Int’l Union of Operating

Eng’rs Local 399, 139 S. Ct. 2692 (2019); Berninger v.

F.C.C., 139 S. Ct. 453 (2018); Niang v. Tomblinson,

139 S. Ct. 319 (2018); PNC Bank Nat’l Ass’n v. Secure

Axcess, LLC, 138 S. Ct. 1982 (2018); Trump v. Hawaii,

138 S. Ct. 377 (2017); Ivy v. Morath, 137 S. Ct. 414

(2016); Amanatullah v. Obama, 575 U.S. 908 (2015).

Indeed, the Court did so in four cases just this

week. See, e.g., Planned Parenthood v. Abbott, No. 20305, 2021 WL 231539 (U.S. Jan. 25, 2021); Trump v.

Crew, No. 20-330, 2021 WL 231541 (U.S. Jan. 25,

2021); Trump v. District of Columbia, No. 20-331,

2021 WL 231542 (U.S. Jan. 25, 2021); Att’y Gen. of

Tenn. v. Adams & Boyle, P.C., No. 20-482, 2021 WL

231544 (U.S. Jan. 25, 2021).

Many of these summary rulings vacated appellate

decisions in a posture identical to that presented

here—where mootness occurred after the court of appeals entered judgment. See, e.g., Amanatullah, 575

U.S. at 908 (acknowledging mootness occurring

“[s]ubsequent to decisions of the court below” and

11

vacating with a citation to Munsingwear). Although

these summary dispositions typically do not include

discussion of the mootness timeline, Wright & Miller

have collected examples of such cases. See 13C

Charles A. Wright et al., Federal Practice & Procedure

§ 3533.10.3, at n.6 (3d ed. Oct. 2020 Update).1

Vacatur of otherwise unreviewable decisions “ensures that ‘those who have been prevented from obtaining the review to which they are entitled [are]

not … treated as if there had been a review.” Camreta,

563 U.S. at 712 (quoting Munsingwear, 340 U.S. at

39). In other words, “[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.” Bancorp, 513

U.S. at 25. Vacatur thus “‘clears the path for future

relitigation’ by eliminating a judgment the loser was

stopped from opposing on direct review.” Arizonans

for Off. English v. Arizona, 520 U.S. 43, 71 (1997)

(quoting Munsingwear, 340 U.S. at 40). The Court has

cited this logic to support vacatur even where the appellate judgment arose from an interlocutory appeal

that became moot due to the entry of final judgment

in the trial court, see Harper, 549 U.S. at 1262; Dillon

v. Alleghany Corp., 499 U.S. 933, 933 (1991), and

where the court of appeals below had expressly refused to vacate its own decision, see Eisai Co., Ltd. v.

See, e.g., Dep’t of Commerce, 139 S. Ct. at 2779; Gray v. Wilkie,

139 S. Ct. 2764, 2764 (2019); Blue Water, 139 S. Ct. at 2749; Lincolnshire, 139 S. Ct. at 2692; Robertson v. United States, 139 S.

Ct. 1543, 1543 (2019); PNC Bank, 138 S. Ct. at 1982; Amanatullah, 575 U.S. at 908; Eisai, 564 U.S. at 1001; Hollingsworth v.

U.S. Dist. Ct. for N. Dist. of Cal., 562 U.S. 801, 801 (2010).

1

12

Teva Pharms. USA, Inc., 564 U.S. 1001, 1001 (2011)

(vacating decision of Federal Circuit); Dillon, 499 U.S.

at 933.

Vacatur of the Eleventh Circuit’s unreviewable decision is likewise warranted here for at least three reasons.

A. Mootness occurred by happenstance.

“Vacatur is in order when mootness occurs through

happenstance—circumstances not attributable to the

parties ….” Arizonans for Off. English, 520 U.S. at 71.

Such is the case here. The event causing mootness was

the district court entering final judgment in favor of

the State more than two years after the State filed its

appeal and just two days after the Eleventh Circuit’s

abrogation decision. The timing of the district court’s

decision is not attributable to the State. Nor does the

fact that proceedings continued in the district court

during the pendency of the interlocutory appeal alter

this conclusion, as the same claims brought against

the State would have ultimately proceeded against

the Secretary of State regardless of the outcome of this

appeal. Thus, this case is unlike those where the party

seeking vacatur voluntarily settled or chose not to appeal, see Bancorp, 513 U.S. at 25-26, because here the

State never abandoned review of the adverse ruling.

Accordingly, vacatur is appropriate here because “the

vagaries of circumstance” caused the State’s interlocutory appeal to become moot. Id. at 25.

B. The Eleventh Circuit’s decision creates

significant legal consequences for three

States and their officials.

“The point of vacatur is to prevent an unreviewable decision ‘from spawning any legal consequences,’

so that no party is harmed by what [this Court] ha[s]

called a ‘preliminary adjudication.’” Camreta, 563

13

U.S. at 713 (quoting Munsingwear, 340 U.S. at 40-41).

In Camreta, this Court considered a decision of the

Ninth Circuit that held that defendants—who had interrogated a minor at school in the absence of a warrant, court order, exigent circumstances, or parental

permission—enjoyed qualified immunity because of

the lack of clearly established law, but then went on

to hold that their conduct had violated the Fourth

Amendment. Id. at 699-700. However, after this Court

granted certiorari, the case became moot because the

plaintiff moved from Oregon to Florida and was nearing graduation, thus “fac[ing] not the slightest possibility of being seized in a school in the Ninth Circuit’s

jurisdiction.” Id. at 710. This Court vacated the Ninth

Circuit’s decision because “a constitutional ruling in a

qualified immunity case is a legally consequential decision” and mootness prevented full review. Id. at 713.

Here, it is indisputable that a decision holding that

a sovereign State’s immunity from suit has been abrogated is “legally consequential.” Id. Unlike the qualified immunity at issue in Camreta, State sovereign

immunity is a form of absolute immunity. The States

enjoy “immunity from suit” as “a fundamental aspect

of the sovereignty which the States enjoyed before the

ratification of the Constitution, and which they retain

today (either literally or by virtue of their admission

into the Union upon an equal footing with the other

States.)” Alden v. Maine, 527 U.S. 706, 713 (1999). Although sometimes mistakenly referred to as “Eleventh

Amendment immunity,” the States’ sovereign immunity “neither derives from, nor is limited by, the terms

of the Eleventh Amendment.” But regardless of origin,

“immunity from private suits [is] central to sovereign

dignity.” Id. Put another way, “[t]he ultimate guarantee of the Eleventh Amendment is that nonconsenting

14

States may not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 363 (2001).

Abrogation of sovereign immunity not only subjects the State to the indignity of being haled into

court against its will, but also has practical consequences such as subjecting the State to discovery, injunctive and monetary relief, and even contempt. See

Alabama v. Pugh, 438 U.S. 781, 782 (1978). Likewise,

though State officials may be forced to subject to litigation and a court’s injunction under Ex parte Young,

209 U.S. 123 (1908), abrogation removes the limitations of that doctrine—thus allowing otherwise-unavailable retrospective and monetary relief against

State officials.

Indeed, the dramatic consequences for States and

their officials are precisely why federal courts do not

assume they have jurisdiction over private party

claims against States unless Congress’s intent to abrogate State sovereign immunity is “unmistakably

clear in the language of the statute” underlying plaintiff’s claim. Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 242 (1985). Mere prohibitions on State conduct do not signal abrogation. See App. 27-28a, 37a

(Branch, J., dissenting) (citing Dellmuth, 491 U.S. at

232).

The State has already faced legal consequences

traceable to the Eleventh Circuit’s unreviewed decision. In People First of Alabama v. Merrill, the district

court allowed § 2 claims challenging voting procedures in the context of the COVID-19 pandemic to proceed directly against the State even though the claims

could not proceed against the Secretary of State for

lack of standing. __F.Supp.3d__, No. 2:20-cv-00619,

2020 WL 4747641, at *3 (N.D. Ala. Aug. 17, 2020)

15

(holding that State’s immunity was abrogated by the

VRA) (citing Ala. State Conf. of the NAACP v. Alabama, 949 F.3d 647, 655 (11th Cir. 2020)); see also

People First of Ala. v. Merrill, 467 F.Supp.3d 1179,

1204-05 (N.D. Ala. 2020) (same). That case consumed

considerable time and resources and subjected the

State (in the span of less than six months) to a preliminary injunction and a full trial on the merits resulting in a permanent injunction—both of which required emergency appellate review that culminated in

stays from this Court. Merrill v. People First of Ala.,

141 S. Ct. 25, 25 (staying permanent injunction of voting procedures for November 2020 general election);

Merrill v. People First of Ala., 141 S. Ct. 190 (2020)

(staying preliminary injunction of voting procedures

for July 2020 primary runoff election).

Lastly, the divided panel’s unreviewed decision

spawns legal consequences not only for the State of

Alabama, but also for the States of Florida and Georgia. This new, unreviewed Eleventh Circuit precedent

subjects these States to the same significant consequences faced by Alabama, though they never had

even Alabama’s limited opportunity to litigate the abrogation issue. The Eleventh Circuit’s decision thus

creates “immense legal consequences for Florida,

Georgia, and Alabama” and by any measure constitutes “a legally consequential decision.” App. 3a

(Branch, J., dissenting). Vacatur by this Court is warranted.

C. The equities favor vacatur.

In conjunction with the significant legal consequences explained above, the equities necessarily favor vacatur. Vacatur would advance the public interest, because “Congress has prescribed a primary

route, by appeal as of right and certiorari, through

16

which parties may seek relief from the legal consequences of judicial judgments,” and “Munsingwear establishes that the public interest is best served by

granting relief when the demands of orderly procedure cannot be honored” through no fault of the party

seeking vacatur. Bancorp, 513 U.S. at 27 (quoting

Munsingwear, 340 U.S. at 41). Other factors favoring

vacatur include: the opinion’s constitutional- and immunity-based rulings, Camreta, 563 U.S. at 713; the

opinion’s “broad implications,” Clarke v. United

States, 915 F.2d 699, 700 (D.C. Cir. 1990) (en banc);

the opinion’s creation of “federalism concern[s],” Arizonans for Off. English, 520 U.S. at 75-80; and the

State’s status as “a repeat player before the courts,”

Motta v. Dist. Dir. of I.N.S., 61 F.3d 117, 118 (1st Cir.

1995); see also Arevalo v. Ashcroft, 386 F.3d 19, 20-21

(1st Cir. 2004); Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 828 F.3d 1331, 1335 (11th Cir.

2016). Therefore, even if precedent does not automatically require vacatur, equity clearly favors it.

CONCLUSION

The Court should grant the State’s petition for a

writ of certiorari and vacate the judgment of the court

of appeals. Alternatively, the Court should grant the

petition and order briefing on whether the Eleventh

Circuit had discretion to decline to vacate its decision

under the circumstances presented here.

17

Respectfully submitted,

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

*Counsel of Record

Steve Marshall

Attorney General

Edmund G. LaCour Jr.*

Solicitor General

James W. Davis

Winfield J. Sinclair

Misty S. Fairbanks Messick

Brenton M. Smith

Assistant Attorneys General