RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0432p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

OPHELIA FORD, et al.,

Plaintiffs-Appellees,

v.

JOHN S. WILDER, et al.,

Defendants-Appellants.

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No. 06-5238

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 06-02031—Bernice B. Donald, District Judge.

Argued: June 6, 2006

Decided and Filed: November 22, 2006 

Before: MARTIN, MOORE, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: William N. Helou, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,

for Appellants. David J. Cocke, BOGATIN LAW FIRM, Memphis, Tennessee, for Appellees.

ON BRIEF: William N. Helou, Janet M. Kleinfelter, OFFICE OF THE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellants. Matthew P. Cavitch, BOGATIN LAW FIRM, Memphis,

Tennessee, for Appellees. 

MOORE, J., delivered the opinion of the court in which, MARTIN, J., joined. ROGERS,

J. (pp. 7-8), delivered a separate opinion concurring in part and dissenting in part.

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Defendants-Appellants appeal from the district

court’s denial of their motion to dismiss and grant of declaratory relief to the Plaintiffs-Appellees.

Ophelia Ford (“Ford”) ran as the Democratic candidate in a special election for a seat in the

Tennessee Senate; she defeated her Republican opponent by a small margin, and he sought to void

the election on the basis of alleged voting irregularities. Ford and several voters from her district

(the “plaintiffs”) filed suit against the Tennessee senators, asserting a variety of constitutional and

statutory claims as to why the senate was acting impermissibly in seeking to void the special

1
No. 06-5238 Ford, et al. v. Wilder, et al. Page 2

1

 Roland asserted that the following improper votes were counted in the special election:

(1) several votes cast on behalf of dead citizens; (2) votes cas[t] by several felons who had not had

their voting rights restored; (3) votes cast by several citizens who were not residents of the 29th

District; and, (4) votes cast by voters who had not signed both the application for ballot and the poll

book.

Joint Appendix (“J.A.”) at 60 (Mem. in Support of State Defs.’ Mot. to Dismiss at 2).

election. The district court entered declaratory relief in favor of the plaintiffs. John Wilder, the

Lieutenant Governor and Speaker of the Senate, and the senate itself (the “defendants”) argue on

appeal that the district court lacked subject-matter jurisdiction over the plaintiffs’ claims and that

they are entitled to immunity from suit. For the reasons explained below, we DISMISS the appeal

for lack of jurisdiction and REMAND the case to the district court to consider the issue of whether

the plaintiffs are entitled to an award of attorney fees.

I. BACKGROUND

After Senator John Ford left the Tennessee Senate, Ophelia Ford, Terry Roland, and Robert

Hodges ran in the special election held on September 15, 2005 to fill the vacancy. Ford—the

Democratic candidate—won the election by thirteen votes. Roland—the Republican

candidate—asked the senate to void the election, on the basis of alleged voting irregularities.1

 John

Wilder, who is the Lieutenant Governor and Speaker of the Senate, convened a Special Ad Hoc

Committee (“Committee”) to investigate this matter. After the Committee began gathering evidence

but before it concluded its examination, Senator Ron Ramsey filed Resolution 7002, which would

void the special election. The entire senate, sitting as a Committee of the Whole, voted 17-14 in

favor of Resolution 7002 on January 17, 2006. The senate was scheduled to take a final vote on

Resolution 7002 on January 19, 2006.

On January 18, 2006, Ford and several citizens of Senate District 29 filed a complaint against

each of the Tennessee senators in federal district court, seeking to enjoin them from voiding the

special election. The plaintiffs alleged that “the standards and procedures for reviewing the

eligibility of voters in District 29 are substantially different than those that are applied by the

[election officials] in other such cases throughout the state.” Joint Appendix (“J.A.”) at 21 (Compl.

for Declaratory J. and Injunction Under the Federal Voting Rights Act (“Compl. for Declaratory J.”)

¶19). The district court entered a temporary restraining order enjoining the defendants “from

proceeding to take any action to affirm or void the election in Senate District 29 pending a hearing

on the Plaintiffs’ Application for a preliminary injunction in this cause.” J.A. at 26 (Temporary

Restraining Order). On January 24, 2006, the defendants filed a motion to dismiss, claiming that

the district court lacked subject matter jurisdiction and that the plaintiffs had failed to state a claim

upon which relief could be granted. The district court held a hearing the following day, at the

conclusion of which it extended the temporary restraining order until it addressed the parties’ claims.

The district court issued an order on February 1, 2006, granting the plaintiffs’ motion for

declaratory relief on the basis of the plaintiffs’ Due Process, Equal Protection, and Voting Rights

Act claims. In this order, the district court explained that “[t]he Senate, in its wisdom may vote to

void an election, but only after it has developed and applied statewide uniform standards that govern

which votes will be counted, practicable procedures to implement them, with an orderly mechanism

for judicial review of disputed matters that may arise.” J.A. at 135 (Dist. Ct. Order at 31). The

district court also denied the plaintiffs’ request for injunctive relief, dismissed the plaintiffs’ claim

for relief pursuant to 42 U.S.C. § 1973, and denied the defendants’ motion to dismiss “in all

remaining respects.” J.A. at 135. The defendants timely appealed this order.
No. 06-5238 Ford, et al. v. Wilder, et al. Page 3

2

 At oral argument, the plaintiffs’ counsel stated that the senate withdrew Resolution 7002; however, the

defendants’ counsel stated that Resolution 7002 “died” when the senate adjourned, but that it was not affirmatively

withdrawn. In their subsequent letter brief regarding mootness, the plaintiffs state that “[t]he Senate did not take any

further action to pass Senate Resolution 7002 and at the end of the special session on February 6, 2006, the Resolution

was dropped from the Senate calendar.” Appellees Letter Br. at 2.

3

 The plaintiffs argued that the senate “is poised to act in a manner inconsistent with this Court’s order of

February 1, 2006.” Mem. of Law in Support of Mot. to Enjoin Defs. Pursuant to Fed. R. Civ. P. 62, 65, and Fed. R. App.

P. 8 at 3.

4

 According to unofficial results, Ford won the election. See Nov. 7, 2006 General Election Unofficial Results

5 (Nov. 8, 2006), http://www.state.tn.us/sos/election/results/2006-11/en6ts.pdf.

5

 This complaint, which was filed on April 25, 2006, is before the same district court judge, but it has a different

docket number (No. 2:06-CV-2241) from the case before us (No. 2:06-CV-2031).

The senate took no further action pursuant to Resolution 7002 after the district court’s order.2

On April 17, 2006, the Committee issued a report recommending that the Special Election be voided.

The Committee found that there were 12 illegal votes cast for Ford and that the election should be

set aside. Some of the plaintiffs sought an injunction from the district court to prevent the senate

from voting on the Committee’s report;3 the district court declined to enjoin the defendants. The

senate adopted the Committee’s report on April 19, 2006, by a 25 to 6 vote. Senator Ford was

accordingly removed from office. The senate adjourned, and the election for the next District 29

senator was held on November 7, 2006.4

The plaintiffs filed a new complaint in district court,5 seeking the following relief:

(1) a declaratory judgment that the voiding of the Senate District 29 election results

by the Defendants violated the Plaintiffs’ rights under the federal and Tennessee

Constitutions and federal civil rights statutes and that the Report and Resolution

adopted by the Tennessee Senate be declared to be void and unenforceable;

(2) an order temporarily and permanently enjoining the Senate Defendants from

voiding the election results unseating Senator Ford and carrying out any

ministerial duties to effect that result, including denying her ability to vote on

Senate matters and have her vote counted;

(3) an order enjoining the Shelby County Commission and its Chief Administrator

from appointing an interim Senator to represent Senate District 29 and carrying

out any ministerial duties to effect such a result; and

(4) any other relief, including attorneys’ fees and costs, deemed appropriate by this

Court.

Compl. for Declaratory J. and Injunction to Restore Election Under the Fed. Voting Rights Act

(“Compl. to Restore Election”) at 15-16. The district court granted a preliminary injunction to

prevent the senate from “taking any action to fill the vacancy in Senate District 29, pending a final

hearing on the merits or until further orders of the Court.” Preliminary Injunction in case no. 2:06-

CV-2241 dated May 26, 2006 at 2. The parties are scheduled to appear before the district court for

a bench trial in December 2006.

II. ANALYSIS

The defendants argued at oral argument and in a subsequent letter brief that we should

dismiss the case as moot in light of the fact that the election has been voided. The plaintiffs admit

that their claims for injunctive relief were mooted by the senate’s actions in voiding the special

election, but they assert that they have an ongoing interest in the declaratory relief issued by the
No. 06-5238 Ford, et al. v. Wilder, et al. Page 4

6

 In Coalition for Government Procurement, we held that the plaintiff’s claims against the defendant were not

moot even though the defendant “completed the challenged activity.” Coalition for Gov’t Procurement, 365 F.3d at 458.

We explained that “[t]he proposed relief sought demonstrates that the Coalition seeks more than a declaration that

UNICOR unlawfully and significantly expanded from 1991-1995. The Coalition has argued throughout the litigation

that the unauthorized significant expansions resulted in its loss of $450 million in sales.” Id. at 459-60.

district court. After reviewing the exact relief sought by the plaintiffs and granted by the district

court, we agree with the defendants that this case is moot.

“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).

Regardless of whether the parties raised the issue of mootness, “our first inquiry on appeal must be

whether this case is moot.” McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458

(6th Cir. 1997) (en banc). We must so inquire because “‘[a] federal court has no authority to render

a decision upon moot questions or to declare rules of law that cannot affect the matter at issue.’”

United States v. City of Detroit, 401 F.3d 448, 450 (6th Cir. 2005) (quoting Cleveland Branch,

N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001)). “The test for mootness is whether

the relief sought would, if granted, make a difference to the legal interests of the parties.”

McPherson, 119 F.3d at 458 (internal quotation marks omitted).

The relief sought by defendants on appeal in this case is a reversal of the district court’s grant

of declaratory relief to the plaintiffs. The plaintiffs requested “a declaratory judgment that the

voiding of the Senate District 29 election results as contemplated by the Defendants would violate

the Plaintiffs’ rights under the Constitution and the Voting Rights Act.” J.A. at 23 (Compl. for

Declaratory J. at 11) (emphasis added). We have explained that

[W]hen considering the potential mootness of a claim for declaratory relief, “the question

is whether the facts alleged, under all the circumstances, show that there is a substantial

controversy, between parties having adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.”

Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 459 (6th Cir. 2004) (quoting

Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974)) (internal quotation marks omitted).

Because Resolution 7002 is no longer before the Tennessee Senate, and the voiding of the District

29 election results has already occurred, the relief sought will have no effect on the parties’ current

legal interests. The only possible interest in this appeal is to establish a precedent that could make

a difference in the new lawsuit; however, an order by this court as to the propriety of the declaratory

relief issued on February 1, 2006, before the senate acted to void the District 29 election results on

April 19, 2006, is inappropriate unless there is a “link between [the senate’s] past practices and the

current interests of the parties.”6

 Id. at 459. There is no such link, because the senate explicitly

chose not to take further action with regard to Resolution 7002 and instead voided the election on
No. 06-5238 Ford, et al. v. Wilder, et al. Page 5

7

 At oral argument, the plaintiffs explained that the special election was voided on the basis of an “entirely

different resolution” from Resolution 7002. It is clear that the Committee continued its investigation and issued its

recommendation on the basis of different evidence than that used to support Resolution 7002. In their original complaint,

the plaintiffs alleged as follows:

In support of [Resolution 7002], Senator Ramsey and others indicated that there was no reason to wait

for further evidence and that the allegations regarding residency and mistakes by the polling officials

with regard to signing both the polling poll book and the application for ballots were sufficient to call

the election into question without specific evidence of wrongdoing by voters.

J.A. at 19-20 (Compl. for Declaratory J. ¶ 14). The Committee, by contrast, sent out letters to the 44 voters whose

residency was contested and gathered affidavits and testimony regarding the contested votes. Compl. to Restore Election

¶¶ 24-32. The Committee did not base its recommendation to void the special election on the failure of voters to sign

both a poll book and an application for ballot.

8

 Plaintiffs’ counsel conceded as much at oral argument, explaining that his main concern with respect to this

case was to seek an award of attorney fees.

9

 Section 2106 states:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside

or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may

remand the cause and 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.

the basis of the Committee’s investigation and April 17, 2006 report.7 Accordingly, the case is

moot.8

As the case is moot, we must determine whether to vacate the district court’s judgment or

simply to dismiss this appeal for lack of jurisdiction. We have the authority to vacate a district

court’s judgment pursuant to 28 U.S.C. § 2106,9 and we are not prevented by Article III from

vacating a judgment that has become moot on appeal. U.S. Bancorp Mortgage Co. v. Bonner Mall

P’ship, 513 U.S. 18, 21-22 (1994); Blankenship v. Blackwell, 429 F.3d 254, 257-58 (6th Cir. 2005).

“When a civil case becomes moot pending appellate adjudication, ‘[t]he 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) (alteration and

omissions in original) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)).

“Vacatur ‘clears the path for future relitigation’ by eliminating a judgment the loser was stopped

from opposing on direct review.” Id. (quoting Munsingwear, 340 U.S. at 40). “Vacatur is in order

when mootness occurs through happenstance - circumstances not attributable to the parties - or, . . .

the ‘unilateral action of the party who prevailed in the lower court.’” Id. at 71-72 (quoting U.S.

Bancorp, 513 U.S. at 23).

“In [U.S. Bancorp], the Court clarified that vacatur is an equitable remedy rather than an

automatic right.” Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir. 2001). “[V]acatur

is an ‘extraordinary remedy,’ and it is ‘[the defendants’] burden, as the party seeking relief from the

status quo of the [lower court] judgment, to demonstrate . . . equitable entitlement’ to vacatur.”

Blankenship, 429 F.3d at 258 (quoting U.S. Bancorp, 513 U.S. at 26) (third alteration in original).

The plaintiffs contend that vacatur is inappropriate here because it was the defendants’ actions that

led to the case being moot. The question of fault is central to our determination regarding vacatur.

Id. at 257. U.S. Bancorp states that “[t]he 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, 513 U.S. at 24. In addition, “‘[j]udicial precedents are presumptively correct and valuable

to the legal community as a whole. They are not merely the property of private litigants and should

stand unless a court concludes that the public interest would be served by a vacatur.’” Id. at 26

(quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40 (1993)

(Stevens, J., dissenting)); quoted in Blankenship, 429 F.3d at 258. “‘[A]bsent unusual

circumstances, the appellate vacatur decision under Bancorp is informed almost entirely, if not
No. 06-5238 Ford, et al. v. Wilder, et al. Page 6

10 This determination of “responsibility” does not, as the dissent suggests, ignore the intent of the parties. The

voluntary action of the defendants occurred soon after the district court granted declaratory relief against those very

parties, raising the inference that “mootness was [their] purpose or that [they] knew or should have known that [their]

conduct was substantially likely to moot the appeal.” Russman v. Bd. of Educ., 260 F.3d 114, 122 (2d Cir. 2001). U.S.

Bancorp instructs us to apply this very fault determination. U.S. Bancorp, 513 U.S. at 24.

This is no less true simply because it was a legislature that caused the case to become moot. The dissent is

correct that we should carefully determine responsibility in cases where other branches of government stand as

defendants, particularly where, as in the cases that the dissent cites, legislation moots a case brought against members

of the executive branch. See Chem. Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 879-80 (9th Cir. 2006);

Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000); Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997). In this case, the defendants’ legislative action mooted a case brought directly

against them in circumstances that they should have known would moot the appeal. Cf. Cammermeyer v. Perry, 97 F.3d

1235, 1239 (9th Cir. 1996) (declining to grant vacatur because the defendants mooted the case by themselves replacing

the challenged regulation); 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 76 F.3d 1142, 1144-45 (10th Cir. 1996)

(declining to grant vacatur because “the City unquestionably caused the mootness by withdrawing the policy the district

court had found invalid”).

11 The plaintiffs filed a motion for attorney fees on February 15, 2006. On March 2, 2006, the parties filed a

joint motion to stay the proceedings before the district court regarding attorney fees; the district court granted this

motion.

entirely, by the twin considerations of fault and public interest.’” Khodara, 237 F.3d at 194-95

(quoting Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 (4th Cir. 2000)).

Because the defendants were responsible for the mooting of this case,10 the precedent

described above supports dismissal of the appeal, rather than vacatur. The defendants’ only

argument in favor of vacatur is the “possibility that the judgment of the court below could influence

the litigation of this issue in the future.” Appellants Letter Br. at 4-5. However, this argument could

apply to every case that becomes moot pending appeal, and the defendants have not shown that the

public interest would be furthered by vacatur. Further, we agree with the plaintiffs that the case

should be remanded to the district court for consideration of attorney fees in the first instance.11 See

Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 842 (6th Cir. 1988) (dismissing the appeal for

lack of jurisdiction, refusing to vacate the district court’s judgment, and remanding for further

proceedings in light of the fact that a motion for attorney fees was pending before the district court);

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974) (holding that the district

court was permitted to award attorney fees even though the case became moot), cert. denied, 422

U.S. 1048 (1975); see also Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980) (“[A] determination

of mootness does not prevent an award of attorneys’ fees on remand.”), cert. denied, 451 U.S. 993

(1981). Therefore we hold that vacatur of the district court’s judgment is unwarranted, and we

simply dismiss the appeal for lack of jurisdiction.

III. CONCLUSION

For the reasons discussed above, we DISMISS the appeal for lack of jurisdiction and

REMAND the case to the district court to consider the issue of whether the plaintiffs are entitled

to an award of attorney fees.
No. 06-5238 Ford, et al. v. Wilder, et al. Page 7

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

ROGERS, Circuit Judge, concurring and dissenting. I join the majority in concluding that

the civil action that plaintiffs brought against the Tennessee Senate and the Lieutenant Governor and

Speaker of the Senate is now moot. I dissent because vacatur is appropriate in this context. 

Focusing exclusively on “fault and public interest,” in my view, ignores an important

element of the vacatur analysis, namely intent. When evaluating whether to vacate district court

opinions in moot cases, courts focus on the motives of the party that caused mootness. See, e.g., Russman v. Bd. of Educ., 260 F.3d 114, 122 (2d Cir. 2001) (finding that for “conduct to constitute

‘forfeiture’ of the benefit of vacatur . . . we believe [that the party that caused the case to become

moot] must have intended the appeal to become moot, either in the sense that mootness was his

purpose or that he knew or should have known that his conduct was substantially likely to moot the

appeal.”); Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1168 (9th Cir. 1998) (“[T]he

district court should consider the motives of the party whose voluntary actions mooted the case.”).

The need to focus on intent is particularly great when a legislature caused a case to become moot.

See Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 351-53 (D.C. Cir. 1997)

(requiring proof “that the legislation was enacted in order to overturn an unfavorable precedent”).

A legislature “may act out of reasons totally independent of the pending lawsuit or because the

lawsuit has convinced it that the existing law is flawed,” and constitutional concerns “should make

[courts] wary of impugning the motivations that underlie a legislature’s actions.” Id. at 352; see also

Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 195 (3d Cir. 2001) (Alito, J.). 

In this case, there simply is no evidence that the defendants acted with the intent to moot

Ford’s civil action against them. To the contrary, when voting on the Ad Hoc Committee’s

recommendations, defendants were probably not even aware that they were relinquishing the right

to raise defenses in future cases, and the mere fact that the defendants mooted the case

approximately two and a half months after the district court granted declaratory relief is insufficient

to raise an inference of an intent to vacate the case. See Am. Games, Inc., 142 F.3d at 1166 (no

intent even though the case became moot while pending on appeal); Khodara, 237 F.3d at 186, 192,

195 (finding no intent even though case became moot less than two months after oral arguments).

Additional public interest concerns support vacatur. First, while it is normally inappropriate

to base a decision on whether to vacate a mooted case on assumptions about the merits of that case,

here Ford conceded that the Tennessee Senate was not a proper party to the lawsuit. See

Blankenship v. Blackwell, 429 F.3d 254, 258 (6th Cir. 2005). The public interest in res judicata

diminishes when all parties agree that the district court erred. Second, the district court explicitly

declined to address defendants’ sovereign immunity argument. 

I conclude by noting the limited issue-preclusion and claim-preclusion reach of the district

court’s decision. First, the district court’s opinion does not preclude defendants from raising similar

arguments in future cases against other plaintiffs. United States v. Mendoza, 464 U.S. 154 (1984);

Idaho Potato Comm. v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713-14 (9th Cir. 2005)

(applying the Mendoza holding to state actors); Hercules Carriers, Inc. v. Claimant State of Florida,

Dep’t of Transp., 768 F.2d 1558, 1578-79 (11th Cir. 1985) (same). Second, in future cases that

plaintiffs in this case bring, plaintiffs cannot rely on the district court’s decisions of “unmixed

questions of law” in “successive actions involving unrelated subject matter[s].” United States v.

Stauffer Chem. Co., 464 U.S. 165, 171 (1984) (quoting Montana v. United States, 440 U.S. 147, 162

(1979)). Third, case law appears to support the conclusion that res judicata would not prevent

defendants from raising sovereign immunity in subsequent litigation with the plaintiffs in this case,
No. 06-5238 Ford, et al. v. Wilder, et al. Page 8

particularly given the terse treatment in the district court’s opinion. See Jordon v. Gilligan, 500 F.2d

701, 710 (6th Cir. 1974); Pacific Rock Corp. v. Perez, 2005 Guam 15, 2005 WL 2508136 (No.

CIVA 03-010, Oct. 11, 2005); but see United States v. County of Cook, Ill., 167 F.3d 381, 389-90

(7th Cir. 1999).