Mootness of § 1443 Removal Appeals After State Discontinuance—and Vacatur as the Default Remedy

Case: Town of Newburgh v. Newburgh EOM LLC (d/b/a Crossroads Hotels)
Court: United States Court of Appeals for the Second Circuit
Decided: September 11, 2025
Panel: Circuit Judges Sack, Lohier, and Kahn
Result: District court’s remand order vacated; appeal dismissed as moot

Introduction

This appeal arose from a clash at the intersection of municipal land-use enforcement and federal civil-rights removal. The Town of Newburgh sued a local hotel—Newburgh EOM LLC, doing business as Crossroads Hotels—in New York state court to enjoin its provision of long-term housing to asylum seekers, asserting violations of zoning and occupancy rules limiting hotel stays to transient use. The hotel removed the case to federal court under 28 U.S.C. § 1443(1), invoking Title II of the Civil Rights Act of 1964 and alleging racially motivated selective enforcement. The district court remanded, holding removal was improper, and the hotel appealed under the § 1447(d) exception that permits appellate review of remand orders in § 1443 cases.

While the appeal was pending, the underlying state case was discontinued with prejudice after the City of New York ended its temporary asylum-seeker housing program and all residents had left the hotel. The Second Circuit held that these developments mooted the appeal and, applying established appellate practice, vacated the district court’s remand order and dismissed the appeal. The court expressly declined to reach the hotel’s two merits arguments: (1) that federal courts have exclusive jurisdiction over Title II claims and (2) that § 1443(1) removal was proper on the facts alleged.

Summary of the Opinion

• Holding: The appeal became moot when the state court granted the Town’s motion to discontinue the underlying action with prejudice. Because the parties no longer had a concrete stake in whether the case should be in federal or state court, no live Article III controversy remained.
• Mootness exceptions rejected: The court declined to apply the “capable of repetition, yet evading review” exception, finding only speculative prospects of recurrence. The “voluntary cessation” exception did not apply because the mootness stemmed from a third party’s cessation (New York City’s program), not from strategic behavior by the defendant-appellant.
• Vacatur ordered: Because the appeal became moot through no fault of the appellant, the Second Circuit vacated the district court’s remand order to eliminate potential preclusive or precedential effect, and dismissed the appeal.
• Issues not reached: The panel did not decide whether Title II confers exclusive federal jurisdiction or whether removal under § 1443(1) was warranted on these facts.

Analysis

Precedents Cited and Their Role

• Article III “case or controversy” and mootness:
  • Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) and Exxon Mobil Corp. v. Healey, 28 F.4th 383 (2d Cir. 2022): A live stake must exist at all stages; once relief cannot affect the parties, the case is moot.
  • Russman v. Board of Education, 260 F.3d 114 (2d Cir. 2001) and N.Y.C. Employees’ Retirement System v. Dole Food Co., 969 F.2d 1430 (2d Cir. 1992): Mootness eliminates subject-matter jurisdiction; also frames the remedy of vacatur when mootness arises on appeal.
  • Arbaugh v. Y & H Corp., 546 U.S. 500 (2006): Courts must assess jurisdiction sua sponte; the panel notes this duty in addressing mootness though neither party moved to dismiss.
  • Martin-Trigona v. Shiff, 702 F.2d 380 (2d Cir. 1983): The hallmark of mootness is that the relief sought is no longer needed; here, there was nothing left to remand or remove.
• Appealability of remand orders in civil-rights removals:
  • 28 U.S.C. § 1447(d): Remand orders are generally not appealable, but there is an express exception for cases removed under § 1443 (and § 1442), preserving appellate jurisdiction in this slice of removals. The panel notes this in a footnote, confirming its jurisdiction to review—until the case became moot.
• Mootness exceptions:
  • “Capable of repetition, yet evading review”: Doe v. McDonald, 128 F.4th 379 (2d Cir. 2025) and Dennin v. Connecticut Interscholastic Athletic Conference, 94 F.3d 96 (2d Cir. 1996) stress that a concrete, non-speculative probability of recurrence is required. The court found only speculative prospects that New York City would revive the program, the hotel would again contract, the Town would sue, and the hotel would again remove under § 1443(1).
  • “Voluntary cessation”: Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) warns against strategic mooting by defendants. But Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1983) clarifies the exception does not apply when mootness results from a third party’s conduct. Here, it was New York City’s discontinuance—not the appellant’s—that mooted the case, and the Town’s subsequent discontinuance with prejudice simply recognized that reality.
• Mootness effects on appeals of remand orders:
  • Dudley-Barton v. Service Corp. Int’l, 653 F.3d 1151 (10th Cir. 2011) and Dupervil v. Alliance Health Ops., LLC, No. 21-505, 2022 WL 3756009 (2d Cir. Aug. 1, 2022) (summary order): Appeals from remand orders become moot if the underlying state action is voluntarily dismissed. These authorities support the Second Circuit’s conclusion here.
• Vacatur when cases become moot on appeal:
  • U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) and the Second Circuit’s own Russman decision: Vacatur is the usual course when mootness occurs through “the vagaries of circumstance,” not the appellant’s volition. The exception denies vacatur when the appellant caused the mootness (Manufacturers Hanover Trust Co. v. Yanakas, 11 F.3d 381 (2d Cir. 1993)). The panel applied the default rule of vacatur.
• New York appellate “aggrievement” doctrine (contextual):
  • Dolomite Prods. Co. v. Town of Ballston, 58 N.Y.S.3d 174 (3d Dep’t 2017) and Mixon v. TBV, Inc., 904 N.Y.S.2d 132 (2d Dep’t 2010): A party that obtains discontinuance with prejudice is not aggrieved and cannot appeal—reinforcing that the state controversy was conclusively over.

Legal Reasoning

The court’s reasoning proceeds in three straightforward steps.

1. Loss of a live controversy: The Town’s state court action was discontinued with prejudice after the underlying factual predicate evaporated (New York City ended the temporary housing program and the asylum seekers left). With no active case to remand or adjudicate, the hotel’s only requested relief—federal rather than state forum for the now-defunct case—could no longer redress any injury. Under Article III, that is quintessential mootness.
2. No mootness exception applies:
   • Capable of repetition, yet evading review failed because the potential chain of recurrence was speculative rather than probable.
   • Voluntary cessation failed because the change in circumstances was caused by a third party, not strategic behavior by the appellant (and, in any event, it is conceptually awkward to graft voluntary-cessation analysis onto the procedural posture of a removal petition, where the removing party is the “defendant” seeking a federal forum).
3. Appropriate disposition is vacatur plus dismissal: Because the mootness arose through no fault of the appellant, fairness and precedent counsel vacating the district court’s remand order to eliminate potential preclusive or persuasive effect, and dismissing the appeal for lack of jurisdiction.

Crucially, the court did not address the merits of the hotel’s federal arguments: whether Title II confers exclusive federal jurisdiction, or whether the specific allegations of race-based discrimination in the Town’s enforcement sufficed for § 1443(1) removal. The district court’s contrary remand analysis, reported at 712 F. Supp. 3d 473 (S.D.N.Y. 2024), is vacated and therefore carries no preclusive or precedential weight.

Impact and Implications

Although the panel did not resolve the civil-rights removal questions presented, the decision meaningfully clarifies and reinforces several practical and doctrinal points in the Second Circuit.

• Mootness of removal appeals after state discontinuance with prejudice: When the underlying state action is terminated with prejudice, an appeal from a federal remand order— including those reviewable under § 1447(d)’s § 1443 exception—will be dismissed as moot. Parties cannot leverage such appeals to obtain advisory guidance on removal standards once the state case is gone.
• Default vacatur protects appellants from unreviewed losses: If the appeal moots through “vagaries of circumstance” rather than an appellant’s strategic doing, the Second Circuit will ordinarily vacate the adverse district court decision. Litigants should expect prior remand reasoning to lose any preclusive or precedential force when vacatur accompanies a mootness dismissal.
• Narrowing of mootness exceptions in this posture: The court’s application underscores that:
  • “Capable of repetition” requires more than general fears of future conflict; it demands a concrete and reasonably expected recurrence.
  • “Voluntary cessation” does not rescue jurisdiction when a third party—not the litigants—ends the challenged situation.
• Open questions preserved for future cases:
  • Title II jurisdiction: The panel expressly left unresolved whether Title II actions are exclusively within federal jurisdiction or whether state courts share concurrent jurisdiction. Litigants should research carefully; analogous statutes (e.g., Title VII) have been held to allow concurrent jurisdiction, but Title II’s text and history have generated debate in some courts.
  • Scope of § 1443(1) removal in local enforcement contexts: Supreme Court precedents (e.g., Georgia v. Rachel, City of Greenwood v. Peacock) impose a demanding two-part standard: the right must arise under a law providing for equal civil rights stated in terms of racial equality, and the defendant must be denied or unable to enforce that right in state court. Whether a municipality’s allegedly discriminatory application of zoning or occupancy rules to a hotel housing asylum seekers meets that second prong remains unsettled in this Circuit.
• Practical guidance for litigants:
  • Removing defendants (e.g., hotels, shelters): If seeking federal review of § 1443(1) removal, consider moving for expedited appellate treatment; mootness can extinguish review if the underlying controversy dissipates. Where appropriate, consider parallel affirmative federal actions (e.g., Title II injunctive relief) if you need a merits ruling; evaluate abstention risks.
  • Municipalities: Discontinuance with prejudice will moot a removal appeal, but because mootness was not caused by the appellant here, the default vacatur rule will likely strip any persuasive or preclusive value from a favorable remand ruling. If preserving a favorable district court ruling matters, be mindful that discontinuance may prompt vacatur.
  • Civil-rights framing: Section 1443(1) removal is available only for rights stated in terms of racial equality. Title II prohibits discrimination based on race, color, religion, or national origin, but the removal pathway is traditionally limited to claims of racial equality; litigants should tailor their theories accordingly and assess whether they can satisfy the “inability to enforce in state court” requirement.

Complex Concepts Simplified

• Removal and remand: “Removal” allows a defendant to shift a case from state to federal court when specific jurisdictional criteria are met. “Remand” sends the case back to state court if removal was improper or jurisdiction is lacking.
• 28 U.S.C. § 1443(1): A specialized removal provision permitting defendants to remove certain cases implicating civil rights “stated in terms of racial equality.” It is narrow and requires showing not only a qualifying right (e.g., under Title II as to race) but also that the right cannot be enforced in state court.
• Title II of the Civil Rights Act of 1964: Prohibits discrimination in places of public accommodation (e.g., hotels) on the basis of race, color, religion, or national origin, and authorizes injunctive relief in federal court. The question whether state courts may also adjudicate Title II claims remains a debated point the Second Circuit left open here.
• Temporary restraining order (TRO): A short-term court order preserving the status quo while litigation proceeds—here, allowing 110 asylum seekers to remain while limiting further modifications or new arrivals.
• Discontinuance with prejudice: The plaintiff’s voluntary termination of a case in a way that bars refiling. Once granted, the controversy is over; there is no longer any case to litigate.
• Mootness: A case becomes moot when events eliminate the parties’ concrete interest in the outcome, depriving the court of Article III jurisdiction.
• Vacatur: When an appeal becomes moot through no fault of the appellant, appellate courts typically vacate the lower court decision. This wipes out potential preclusive (res judicata) and precedential effects of the unreviewed decision, restoring the parties to the legal status quo ante.
• Exceptions to mootness:
  • Capable of repetition, yet evading review: Applies to inherently short-lived disputes likely to recur between the same parties, where judicial review would always be too late absent the exception.
  • Voluntary cessation: Prevents defendants from mooting a case by stopping challenged conduct temporarily. If the cessation is by a third party, the exception typically does not apply.

Conclusion

Town of Newburgh v. Newburgh EOM LLC does not answer the contested questions that drew this case into federal court—whether Title II enforcement is exclusively federal, and whether § 1443(1) permitted removal on the hotel’s allegations of racially motivated zoning enforcement. Instead, the Second Circuit clarified a threshold point with concrete practical consequences: when a removed state action is discontinued with prejudice during an appeal from a remand order, the appeal is moot. In such circumstances, and absent appellant-caused mootness, the district court’s remand order will be vacated and the appeal dismissed.

The opinion strengthens the Second Circuit’s consistent approach to mootness and vacatur, emphasizes the narrowness of mootness exceptions in this procedural posture, and preserves for another day the developing law on civil-rights removal in the fraught context of local land-use enforcement against providers of housing to asylum seekers. Litigants on both sides should plan strategy with the understanding that the availability of appellate review in § 1443 cases can be extinguished by rapidly changing facts on the ground—and that vacatur will frequently erase adverse trial-level rulings when that happens through no fault of the appellant.