Take the Fifth

One of the eight cases getting en banc treatment this week, Spectrum WT v. Wendler, 23-10994, currently set for the Friday morning argument on January 23, may be going by the wayside. This morning, the plaintiff-appellant, Spectrum WT, filed a motion to dismiss its appeal as moot (Spectrum prevailed at the panel stage, though that panel result was vacated when the Court voted to rehear it en banc). The panel opinion had been on appeal from the denial of preliminary injunctive relief; the district court has now denied permanent injunctive relief and issued final judgment, which WT intends to appeal. As WT points out in its motion to dismiss the appeal as moot, the Fifth Circuit has held that the denial of permanent injunctive relief moots an appeal from denial of preliminary injunctive relief, depriving the Fifth Circuit of jurisdiction over the interlocutory appeal regarding preliminary relief. The Court has ordered that the defendants-appellees file a response to the motion to dismiss the appeal by noon on tomorrow, January 20.