In Chicago Headline Club v. Noem, No. 25-3023 (7th Cir. Mar. 5, 2026) (per curiam), a Seventh Circuit panel issues a 2-1 decision ordering that, as part of granting the government’s voluntary dismissal of its appeal under Fed. R. App. P. 42(b), the underlying order on appeal be vacated.
The case arose from the surge of 2025 federal immigration enforcement in Chicago and its environs under the banner “Operation Midway Blitz.”
“In early October 2025, a group of protesters and journalists sued a host of federal defendants. They believed officers from Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Department of Homeland Security (DHS) violated their First and Fourth Amendment rights by using tear gas and other chemical agents to break up protests without justification.” The case was filed as a putative, Rule 23 class action.
Procedurally, the district court first granted a temporary restraining order, forbidding certain crowd control methods and requiring the agencies to make regular reports to the court. The Seventh Circuit granted the government’s writ of mandamus to block the TRO. The panel concluded that the TRO put the district court judge “in the position of an inquisitor rather than that of a neutral adjudicator of the parties’ adversarial presentations” and that “it set[] the court up as a supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the Executive Branch.”
The district court thereafter conducted hearings and entered an extensive preliminary injunction limiting the agencies’ interaction with demonstrators, as well as certifying a Rule 23(b)(2) class.
“Two weeks after granting class certification and preliminary relief, the district court issued a full opinion. It contained over 170 pages of fact-finding, including many incidents that did not involve named plaintiffs and occurred far beyond the Broadview facility. The court also found that all the plaintiffs had Article III standing to sue for injunctive relief and concluded they were likely to succeed on the merits. Finally, the court explained why it thought such a sweeping injunction was necessary to provide complete relief.”
The government appealed the injunction, and the Seventh Circuit stayed it pending appeal. “Our stay order emphasized that the injunction was overbroad,” with the district court once again “set[ting] itself up as supervisor over the Executive Branch.” The stay order also noted possible Article III standing concerns: “It was not obvious that the plaintiffs had satisfied the requirements of City of Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983).”
While the appeal was pending, the plaintiffs moved to voluntarily dismiss the action below. Because it was certified as a class action, the district court was obliged to carry out special procedures under Fed. R. Civ. P. 23(e) to notify the class. “No members of the certified class objected to the plaintiffs’ proposal to dismiss the case with prejudice. And the government did not oppose the motion to dismiss.” The judge then “sua sponte de-certified the class. Then the court dismissed the case without prejudice—even though plaintiffs had asked for dismissal with prejudice.”
In the Seventh Circuit, “the government filed [an] unopposed motion to dismiss under Federal Rule of Appellate Procedure 42(b)(2)” following dismissal in the district court. The panel grants the motion and also (by a 2-1 vote) vacates the challenged order below.
“This court grants [voluntary dismissal] motions as a matter of course. But ‘dismissal is discretionary’ under Rule 42(b) . . . . In our view, the extraordinary circumstances of this case require us to review this order before dismissing the appeal. Vacatur is therefore appropriate for two independent reasons. This case appears to be moot, and the district court’s order risks spawning serious legal consequences if it is not vacated.”
“The government asks us for a specific kind of vacatur, called ‘Munsingwear vacatur’ [after United States v. Munsingwear, Inc., 340 U.S. 36 (1950)]. When a case becomes moot on appeal due to happenstance or the unilateral actions of the winner below, Munsingwear vacatur is appropriate.”
The panel majority finds vacatur to be the “right remedy,” despite that the case below was not technically moot. It notes as “extraordinary circumstances” a number of what it regraded as procedural anomalies. These included that (1) the preliminary injunction was produced on “a highly compressed timeline”; (2) there were doubts about the standing of plaintiffs to seek systemic relief; (3) there may have been clear error in assessing witness credibility; (4) the district court did not explain its decision to decertify the class or to grant dismissal without prejudice; and (5) “when this court stayed the district court’s order, the plaintiffs quickly and voluntarily withdrew their case.”
The panel majority, citing its supervisory powers, also criticized the order on the merits. “The court’s injunction also impermissibly infringes on separation of powers principles. It effectively established the district court as the supervisor of all Executive Branch activity in the city of Chicago—a role another federal court of appeals has found problematic.”
It notes finally that continuation of the “district court’s order may also spawn adverse legal consequences” because, owing to the dismissal without prejudice, “any class members or the lead plaintiffs could refile these claims tomorrow” and rely on the order for issue preclusion.
Dissenting, Judge Frank Easterbrook begins by noting the lack of adversity between the parties. “The plaintiffs have dismissed their complaint. None of the class’s members sought to intervene to carry on the litigation. The defendants have moved to dismiss their appeal. No one wants to continue litigating.” The dissent then notes that Rule 42(b)(2) does not by its terms grant a panel discretion to keep the appeal open for any other purpose than “resolv[ing] the terms of dismissal, such as the allocation of costs.”
Absent adversity, where the “suit has neither a plaintiff nor an appellant,” the court lacked jurisdiction to act further. “It seems best to me, however, to take the Department of Justice at its word: it wants us to dismiss the appeal (which is what it promised plaintiffs to do). If we vacate the district court’s order, we can’t then dismiss the appeal; vacatur ends the appeal without dismissal. By contrast, if we dismiss the appeal as the motion proposes we cannot vacate or otherwise affect the district court’s judgment. A losing party’s decision not to pursue an appeal does not support or permit vacatur of a district court’s order.”
The dissent also notes the party-presentation principle as another reason not to vacate. “My colleagues are troubled by some of the events in this litigation, and I share those concerns. But appellate judges’ dissatisfaction with the district court’s handling of a suit should not matter unless at least one of the parties is dissatisfied—and none of the parties to this case now expresses dissatisfaction.”
In sum, “[w]e should have left in place whatever the district judge left in place . . . and committed to the future the resolution of any questions about what force, if any, the district judge’s opinions and orders have after all litigants abandon the field of battle.”
Paul Mollica's Federal Courts Blog 