Deanna L. JONES, Plaintiff-Appellee, v. NATIONAL CONFERENCE OF BAR EXAMINERS, Defendant-Appellant, Act, Incorporated, Defendant, 476 F. App'x 957

SUMMARY ORDER Defendant National Conference of Bar Examiners (“NCBE”) appeals from the order of the district court granting a preliminary injunction to plaintiff Deanna L. Jones. We assume the parties’ familiarity with the facts, procedural history, and specification of issues for review. As the facts of the dispute have developed, however, nothing is at stake in the appeal from the preliminary injunction order. We therefore dismiss the appeal as moot and remand the case to the district court for further proceedings. See Univ. of Texas v.

Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (holding appeal of preliminary injunction moot where “the terms of the injunction ... ha[d] been fully and irrevocably carried out”). NCBE argues that the appeal is not moot because we have the power, “on appeal from an interlocutory order [granting a preliminary injunction, to] examine the merits of the case,” and we may dismiss the entire action. Munaf v. Geren, 553 U.S. 674, 691-92, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). This argument is unavailing.

The fundamental rule in the federal courts is that appellate courts review only the final judgments of lower courts. An exception is made for the grant or denial of a preliminary injunction to “prevent the injustice of burdening a party with a manifestly erroneous decree while the ultimate merits of a dispute are being litigated.” See Independence Party of Richmond Cty. v. Graham, 413 F.3d 252, 256 (2d Cir.2005).

That justification no longer applies where, as here, the preliminary injunctive order has already been irrevocably executed because the appellate court can no longer relieve the appellant of temporary burdens imposed by the preliminary injunction. In those circumstances, the rule that we review only final judgments of the lower courts continues to apply. NCBE also asserts that its appeal comes within the exception to the mootness doctrine for “cases that are capable of repetition, yet evading review,” see, e.g., Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). We disagree.

NCBE’s claim does not evade review because this appeal raises the same legal issues that “remain pending before the district court,” and “in due course, following the entry of final judgment in that court, [those issues] can be reviewed on appeal in this court.” Independence Party, 413 F.3d at 256. While NCBE’s appeal is moot, the $5,000 preliminary injunction bond paid by Jones ensures that the case as a whole is not moot. See Camenisch, 451 U.S. at 393, 101 S.Ct. 1830.

Accordingly, the appeal from the judgment of the district court hereby is DISMISSED AS MOOT, and the case is REMANDED to the district court for further proceedings.