Vacatur Pending En Banc Review

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.