VACATUR PENDING EN BANC REVIEW.

• Author: Emberling, Ruby

When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court's decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary's efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a case becomes moot pending en banc review. Instead, courts have varied in their approach. Some adhere to the two primary cases, others distinguish them by referring to the unique characteristics of en banc review, and many simply vacate without justification. This Note calls attention to a little-discussed set of procedural doctrines and rules that carry the power to decimate important pieces of decisional law without justification. It offers an account of how existing doctrine fits in the en banc context, highlighting the pitfalls for judicial efficiency and legitimacy of failing to acknowledge that fit. Ultimately, it proposes revising the Federal Rules of Appellate Procedure to clarify judicial confusion on this point.

TABLE OF CONTENTS INTRODUCTION I. MOOTNESS, VACATUR, AND THE ROLE OF EN BANC REVIEW A. Mootness in General B. The Equitable Grant of Vacatur After Mootness C. History and Purpose of En Banc Review D. Doctrinal Incoherence in Vacatur Pending En Banc Review and Automatic Vacatur II. BONNER MALL'S ANALYSIS AND EN BANC REVIEW: DISTINCTIONS WITHOUT A DIFFERENCE A. Bonner Mall s Equitable Analysis Does Not Vary in En Banc Review B. Three Unpersuasive Distinguishing Arguments 1. Self-Review Versus Appellate Review 2. Jurisdictional Limits on Issuing the Mandate 3. Greater Cause for Concern About Decisional Validity III. STAKES AND SOLUTIONS A. Unexplained Departures from Bonner Malls Policy Priorities 1. Reasoned Decisionmaking and Judicial Legitimacy 2. Upholding Bonner Mali's Protections for Precedent B. Revisions to Rule 35 and Other Alternatives CONCLUSION INTRODUCTION

In Gary B. v. Whitmer, a Sixth Circuit panel ruled that the Fourteenth Amendment's Due Process Clause guaranteed a right to access to literacy. (1) This was hailed as "groundbreaking" precedent for education rights. (2) However, an obscure set of procedural rules concerning vacatur diminished Gary B.'s revolutionary effect.

The plaintiffs in Gary B. were students who attended some of Detroit's lowest-performing public schools, which "serve almost exclusively low-income children of color." (3) The students sued Michigan's governor over shocking school conditions entirely unconducive to learning, including "missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials." (4) Though the Supreme Court had rejected the existence of a "broad, general right to education" protected by the Constitution, it left open whether a minimally adequate education was protected. (5) The Sixth Circuit panel held that it was. (6) Although it was a welcome outcome for many, critics of the opinion argued that it departed from long-standing limitations on substantive due process doctrine (7) and wrongly imposed federal control onto a traditionally state-run activity. (8) Commentators predicted that the decision was on its way to reversal in light of this opposition. (9) But before any further judicial action took place, the parties settled. (10) In exchange for a release of liability for all defendants, the plaintiffs secured $3 million in emergency funds for the Detroit Public Schools and Governor Whitmer's promise to propose further legislation on the topic. Additionally, Governor Whitmer pledged to consider recommendations made by a task force on improving literacy programming in the district. (11)

The full Sixth Circuit then decided to take the case up en banc, likely in order to address the hotly contested legal issues in the case. (12) But the order came six days after the court was notified of the settlement, (13) an event that the court later found had mooted the proceedings, rendering a decision on the merits impermissible. (14) Thus, the en banc court dismissed the case. (15)

The post-mootness dismissal of Gary B. was an unremarkable bit of judicial housekeeping. But in taking the case en banc, the court applied a local circuit rule that automatically vacated the panel's ruling, (16) nullifying its binding precedential effect and producing a result in tension with well-established law regarding vacatur. (17) In other words, the outcome went beyond judicial housekeeping. Although those who would have reversed the panel opinion on the legal merits were stymied by mootness, they nonetheless achieved their desired result by procedural means. This Note takes issue with procedural maneuvering of this sort, both because it is doctrinally suspect and because the appearance of politically motivated judicial action that it creates is potentially delegitimizing.

Like dismissal, vacatur is not a merits decision, so as a jurisdictional matter it remains available even after a case has become moot. But unlike dismissal, vacatur is an equitable remedy, warranted only by the need to set right some injustice. (18) The Supreme Court has distinguished "happenstance" mootness--where the parties are not responsible for the mootness--from other types of mootness. Under United States v. Munsingwear, if "happenstance" mootness arises while a case is on appeal, the higher court must vacate the previous ruling. (19) The purpose of this rule is to ensure that the losing party does not suffer adverse legal consequences it was unable to challenge on appeal. (20) But when a settlement or some other event within the losing party's control moots a case, U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership generally prohibits vacatur because a party that voluntarily forfeits appeal suffers no injustice. (21)

The Munsingwear and Bonner Mall vacatur rules are well established, but uncertain and relatively unexamined in at least one respect: their applicability to cases that become moot pending en banc review, as opposed to appellate review. (22) This confusion was on full display in Gary B. The en banc court neither acknowledged its automatic vacatur of the panel in its later order dismissing the case as moot nor restored the panel's opinion. (23) Instead, the court either tacitly or unwittingly allowed the circuit's local rule to do the work of vacatur without addressing Bonner Mali's effect on the outcome. In the few post-Bonner Mall cases directly addressing vacatur of cases mooted pending en banc review, including Animal Legal Defense Fund v. Veneman and Washington v. Trump, the courts appear divided and unsure. The Ninth Circuit vacated a panel ruling in Veneman when non-happenstance mootness arose before en banc review was complete. (24) However, the same circuit declined to vacate in Washington v. Trump when non-happenstance mootness arose after panel disposition but before en banc review was ordered. (25) Both decisions drew vehement dissents. (26)

Two immediate questions come to mind after a review of these cases. First, how should the courts resolve the dispute about whether and how Bonner Mall applies to the en banc process? Second, is there any way for courts to answer that question when cases like Gary B. are disposed of through an automatic-vacatur procedure unaccompanied by any reasoning? In sum, both an unsettled legal principle and a procedural flaw perpetuate uncertainty by allowing courts to evade the Bonner Mall question in en banc review. (27)

The self-reinforcing nature of these problems may be illuminated through analogy. To borrow Chief Justice Roberts's famous confirmation hearing line, one can imagine the courts as umpires. (28) It is one problem if different umpires disagree about the size of the strike zone. Presumably, players can find out what kind of strike zone a particular umpire adheres to and adjust their strategy accordingly. Umpires themselves may decide upon a preferred strike zone based on observing the practices of other umpires, a process that would tend to produce consensus on the correct strike zone. It would be an entirely different problem if, in addition, Major League Baseball allowed umpires to call strikeouts without having called each pitch a ball or strike in the first place. Batters, unsure about the umpire's strike zone, would not know when to take a chance on a high or low pitch. And crucially, umpires would not be able to assess how their practices stack up, entrenching the inconsistency among them.

The analogy also demonstrates the serious problem automatic vacatur poses for judicial legitimacy. Without calls on each pitch, umpires' decisions would be inscrutable, unpredictable, and possibly corrupt, because it is impossible to place faith in referees who offer no explanations for their ultimate decisions. Similarly, in Gary B., it is possible that the court believed Bonner Mall did not apply to en banc review. But it is equally likely that the court either did not consider the issue at all or disregarded Bonner Mall in service of making a decision based on an intuition about the merits of the case--a decision arguably foreclosed by mootness. Without calls on the balls and strikes, it is difficult to trust the judicial reasoning behind the outcome.

This Note considers whether federal courts may vacate a panel's decision because non-happenstance mootness has arisen while en banc review is still possible. (29) Part I provides an overview of the law of mootness on appeal, surveys debates about the role and purpose of en banc review, and reviews the current state of judicial decisions on vacatur pending en banc review. Part II argues that...