Here's a neat twist.
A Ninth Circuit panel affirms the district court's certification of a class. Judge Reinhardt writes the opinion. The class consists of prisoners in Arizona.
The losing party then files a petition for rehearing en banc. It starts to get some traction with some of the more conservative members of the Ninth Circuit.
But then the parties settle the case.
So now the Ninth Circuit can't reverse the panel's decision, since the case is now moot.
The unhappy judges on the Ninth nonetheless dissent from the denial of en banc review, in an opinion by Judge Ikuta. They recognize that the case is moot, but say that the case should be taken en banc so the panel opinion can simply be vacated. From their perspective, that'll work. Then there's no more bad precedent.
But this opinion only gets six votes. So it loses.
Doctrinally, I'm also not entirely sure that Judge Ikuta is right. The Supreme Court has said that you don't vacate a district court opinion after the parties settle -- even though the case is technically moot -- because the losing party participated in making the case moot (i.e., the settlement) so vacatur is not an appropriate remedy. That same reasoning seems applicable to decisions one level up; e.g., panel decisions in the Ninth Circuit. So vacatur (e.g., pursuant to en banc review) would be inappropriate.
I can see a contrary argument based on the fact that appellate decisions (unlike district court opinions) entail precedent, so there's a public policy argument on the other side. Maybe that's enough. Though I can see contrary argument public policy arguments on the other side as well.
Justice Ikuta's opinion unfortunately doesn't address this point. The only thing she says (in a footnote) is that "Although we can no longer use en banc
review to correct the errors in the opinion because the case became moot before the
mandate had issued, we can vacate the decision to avoid having the panel’s serious
misinterpretations of Supreme Court Eighth Amendment and class action
jurisprudence become the law of our circuit." For which she cites "See United States v. Payton, 593 F.3d
881, 886 (9th Cir. 2010)."
But it seems to me that Payton says exactly the opposite. It's a case that denied vacatur of a panel Ninth Circuit opinion based on mootness. Hardly great support for a claim that vacatur of a panel opinion would be appropriate. Plus, the portion of the opinion that Judge Ikuta cites -- page 886 -- again seems to say the exact opposite of Judge Ikuta's position. Saying: "It is true that our refusal to vacate the decision after it has become moot deprives a member of our court of the right to seek sua sponte an en banc rehearing in order to obtain a different decision on the merits (although it leaves open the opportunity to seek an en banc rehearing for the purpose of vacating our decision). We do not minimize that right, but have concluded that it does not overcome the equities we have described and does not justify erasing a decision that the panel issued when the controversy was still live, and that the parties have complied with and are content to let stand."
I agree that language from Payton seems applicable. But it seems to me to say that even if (as here) en banc review is foreclosed, that doesn't mean that we should allow parties to settle the case (as here) and obtain a vacatur of the panel opinion. The opposite of what Judge Ikuta seems to be saying.
I forthrightly admit that I'm not a thousand percent sure what the right answer should be with respect to whether Supreme Court precedent about vacating district court opinions in light of mootness should be the same with respect to appellate panel opinions. But that's definitely an issue that I think Judge Ikuta (and the rest of the dissenters from denial) should have addressed in the opinion. Beyond merely a cite to a prior Ninth Circuit opinion that, to me, seems to support a contrary view.
