Kinney Ex Rel. National Labor Relations Board v. Federal Security, Inc. , 272 F.3d 924 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2410
Elizabeth Kinney, Regional Director of
Region 13 of the National Labor Relations Board,
for and on behalf of the National Labor Relations
Board,
Plaintiff-Appellant,
v.
Federal Security, Incorporated, and its
alter egos or agents, James R. Skrzypek
and Janice M. Skrzypek,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 838--Suzanne B. Conlon, Judge.
Submitted November 8, 2001--Decided November 27, 2001
Before Bauer, Ripple, and Williams, Circuit
Judges.
Per Curiam. Elizabeth Kinney, regional
director of the National Labor Relations
Board, filed this action in the district
court against defendants Federal Security
and two of its principals (collectively,
"Federal Security") seeking a temporary
restraining order under section 10(j) of
the National Labor Relations Act, 29
U.S.C. 160(j), pending the Board’s
resolution of an unfair labor practices
charge against Federal Security. The
district court denied the Board’s
petition for an injunction and entered
judgment for Federal Security. Kinney
appealed.
After this appeal was filed, the Board
ruled on the unfair labor practices
charge. Kinney then filed a motion in
this court asserting that the Board’s
resolution of the unfair labor practices
charge moots the appeal and asking that
we (1) vacate oral argument; (2) dismiss
the appeal as moot; and (3) remand the
case to the district court with
instructions to vacate the order denying
the petition for the 10(j) injunction and
to dismiss the petition. After requesting
and receiving a response from Federal
Security, we issued an order vacating
oral argument. We now address
Kinney’sremaining two requests.
The parties agree that the Board’s
resolution of the unfair labor practices
charge moots the appeal. See Barbour v.
Central Cartage, Inc., 583 F.2d 335, 336-
37 (7th Cir. 1978). Kinney asserts that,
because the appeal is moot, the district
court’s judgment must be vacated and the
case dismissed, relying on United States
v. Munsingwear, Inc., 340 U.S. 36, 39-41
(1950). Federal Security is concerned
that vacatur of the district court’s
judgment could prejudice its right to
seek fees under the Equal Access to
Justice Act, 28 U.S.C. sec. 2412.
We agree with Kinney that the district
court’s judgment should be vacated and
the case dismissed because the appeal is
moot. See Barbour, 583 F.2d at 337.
However, the mootness of the appeal and
the vacatur of the district court’s
judgment does not preclude the district
court’s consideration of Federal
Security’s request for fees. See Young v.
City of Chicago, 202 F.3d 1000 (7th Cir.
2000) (and cases cited therein); Williams
v. Alioto, 625 F.2d 845, 847-48 (9th Cir.
1980). We express no opinion on the
merits of such a request, which is for
the district court to evaluate in the
first instance.
Accordingly, the appeal is Dismissed and
the case Remanded to the district court
with directions to vacate its judgment
and to dismiss as moot the Board’s
petition. On remand, the court may
consider Federal Securities’ request for
fees and any other matters not
inconsistent with this opinion.