Catawba Riverkeeper Foundation v. NC Dept of Transportation

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:15-cv-00029-D. [999985510]. [15-2285]

Appeal: 15-2285

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2285

CATAWBA RIVERKEEPER FOUNDATION; CLEAN AIR CAROLINA,
Plaintiffs − Appellees,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NICHOLAS J.
TENNYSON, in his official capacity as Secretary of NCDOT,
Defendants – Appellants,
and
FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN,
official capacity as Division Administrator of FHWA,

in

his

Defendants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:15−cv−00029−D)

Argued:

September 21, 2016

Decided:

December 13, 2016

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Vacated and remanded with instructions by published opinion.
Judge Diaz wrote the opinion, in which Judge Duncan and Judge
Keenan joined.

ARGUED: Scott Thomas Slusser, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants.
Kimberley

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Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North
Carolina, for Appellees.
ON BRIEF: Roy Cooper, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina,
for
Appellants.
Ramona
H.
McGee,
SOUTHERN
ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for
Appellees.

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DIAZ, Circuit Judge:
This
Gaston

appeal

involves

Connector, 1

East-West

Carolina

the

spanning

from

proposed

a

22-mile

southeast

construction
toll

Gaston

of

the

road

in

North

County

to

west

Mecklenburg County with new crossings over the South Fork and
Catawba Rivers.

The Catawba Riverkeeper Foundation and Clean

Air Carolina (collectively, the “Conservation Groups”) brought
suit

against

(“NCDOT”),

the

representing
analysis

the

North

Federal

those

conducted

Carolina
Highway

agencies,
for

the

Department

of

Administration,
challenging

Connector.

the
The

Transportation
and

officials

environmental
district

court

granted the Conservation Groups’ motion for summary judgment.
Before the district court ruled, the North Carolina General
Assembly stripped the Connector of its funding and repealed the
statute that expressly authorized its construction.

And after

the district court entered judgment, state and local authorities
removed the Connector from the various planning models for such
projects.

At

oral

argument,

Connector is no longer viable.

NCDOT

represented

that

the

In light of these developments,

we conclude that this appeal is moot and accordingly vacate the
district court’s judgment.

1

The Connector is known locally as the Garden Parkway.
3

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I.
A.
Local

planners

in

Gaston

County,

North

Carolina

first

considered the need to construct a bypass to improve east-west
mobility between Gaston County and Mecklenburg County in the
late 1980s.

NCDOT began studying the project in 2001, meeting

with other agencies and local authorities to assess the benefits
of the project relative to alternatives such as mass transit or
improvements to existing roadways.

In coordination with these

officials,

building

freeway”

NCDOT
more

“improv[ing]
Gastonia

determined
effectively

east-west

and

that

the

addressed

transportation

Charlotte

a

the

“new

location

goals

mobility

metropolitan

.

.

of
.

area”

(1)

between
and

(2)

“establish[ing] direct access between the rapidly growing area
of southeast Gaston County and west Mecklenburg County.”

J.A.

723.
As
(“NEPA”),
Highway
assessing

required
42

by

U.S.C.

the
§

Administration
the

National

4321,

et

Environmental

seq.,

(collectively,

environmental

impact

2

of

NCDOT
the
the

and

Policy
the

“Agencies”)
project. 2

Act

Federal
began
In

the

This assessment, which includes time for public notice and
comment, ultimately leads to the preparation of a Record of
Decision.
The Record of Decision “identifies the Selected
Alternative, presents the basis for the decision, identifies all
the alternatives considered, specifies the ‘environmentally
(Continued)
4

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meantime,

the

Connector

a

North

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North

Carolina

candidate

Carolina

General

project

Turnpike

Pg: 5 of 21

Assembly

subject

Authority.

to

the

N.C.

designated
control

Gen.

Stat.

the

of
§

the
136–

89.183(a)(2)(b) (2006) (repealed by 2013 N.C. Sess. Laws § 5.1).
The

General

Assembly

also

gave

the

Turnpike

Authority

conditional power to propose additional projects not expressly
authorized in the statute, provided they were “approved by the
General

Assembly

current

State

prior

to

Transportation

construction”
Improvement

and

“shown

Plan.”

in

Id.

the

§

136-

89.183(a)(2) (2006).
In April 2009, the Agencies published for public review and
comment

a

Connector.

draft

Environmental

Impact

Statement

for

the

The draft statement considered twelve alternative

“new location” controlled-access toll roads, ranging from 21.4
to 23.7 miles in length, assessed each alternative’s capacity to
meet the project’s needs, and compared each with a “no-build”
baseline

alternative.

The

Agencies

also

forecasted

traffic

demand and distribution in the geographic area through 2030,
creating

both

a

“build”

forecast

depicting

how

a

network

of

preferable alternative,’ and provides information on the adopted
means to avoid, minimize, and compensate for environmental
impacts.” J.A. 1480.

5

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transportation

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facilities

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would

operate

with

projected

future

traffic volumes and a “no build” baseline forecast.
To develop the traffic forecasts, the Agencies relied on
data

derived

planning

of

from

socioeconomic
study

Statement

Cumulative

that

forecasts

assumed

prepared

by

area

construction

of

the

The Agencies superimposed each alternative onto this

further

Impact

socioeconomic

organizations

Connector.
set

from

projections

on

also

Effects

this

and

basis.

contained

(“ICE”)

The

a

report,

eliminated
draft

qualitative
describing

alternatives
Environmental
Indirect

the

and

Connector’s

estimated effects on growth and land use, wildlife habitat, and
water resources in the geographic area.
In response to requests from environmental advocates and
other agencies, the Agencies also published a quantitative ICE
report that analyzed future land-use change.
a

“build”

forecast

and

then

employed

a

They first created
“gravity

model”

to

reallocate the growth effects to create the “no build” forecast
baseline. 3

The

Agencies determined that construction of the

Connector would result in 3,700 additional households and 300

3

A gravity model produces quantified results that can serve
as the basis for assessing land use change.
The model
“essentially
holds
that
all
other
factors
influencing
development held constant, growth will shift towards areas with
the greatest relative accessibility improvement as a result of
the project.” J.A. 2350.
6

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fewer jobs in the study area when compared to the “no build”
forecast.
The Agencies subsequently published a final Environmental
Impact Statement, addressing public and other agency comments on
the earlier draft statement and identifying the Connector as the
preferred alternative.

They estimated the Connector’s cost to

be about $943 million, to be paid for by toll revenue bonds, an
annual $35 million appropriation of “gap” funding from the North
Carolina

General

February

2012,

Record

of

Assembly,
the

Federal

Decision,

“environmentally

and

other

Highway

identifying

funding

sources.

Administration

issued

Connector

a

as

the

alternative . . . because

preferable

the

In

it

represents the best overall balanced minimization of all impacts
analyzed.”

J.A. 3747.
B.

The Conservation Groups participated in the NEPA process
for

the

meetings

Connector,
to

voice

submitting
their

comments

concerns

about

and

attending

the

integrity

environmental analysis conducted by the Agencies.

public
of

the

Following our

decision in North Carolina Wildlife Federation v. North Carolina
Department of Transportation, 677 F.3d 596 (4th Cir. 2012), 4 the

4

That case concerned the proposed construction of the
Monroe Connector Bypass by the Agencies. 677 F.3d at 598. We
concluded that the Agencies violated NEPA by failing to disclose
(Continued)
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Groups urged the Federal Highway Administration to rescind the
Connector’s

Record

Environmental

of

Impact

Decision

and

Statement.

prepare
The

a

supplemental

Federal

Highway

Administration declined to do so.
The
Western

Conservation
District

of

Groups

thereafter

North

filed

Carolina

suit

pursuant

in

the

to

the

Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”),
seeking: (1) a declaratory judgment that the Agencies violated
NEPA

by

conducting

a

deficient

environmental

analysis,

(2)

vacatur of the Record of Decision, and (3) injunctive relief.
After the parties filed cross-motions for summary judgment, the
court

transferred

the

case

to

the

Eastern

District

of

North

Carolina.
While the motions were pending, the North Carolina General
Assembly

passed

legislation

requiring

a

data-driven

prioritization process to score and rank proposed transportation
projects

based

on

a

number

of

factors,

including

cost

and

to the public that the Bypass’s underlying NEPA analysis relied
on socioeconomic data that assumed construction of the Bypass
and
by
disseminating
erroneous
information
about
that
assumption.
Id. at 603.
Although we did not decide whether
NEPA
permitted
the
Agencies
to
use
data
assuming
the
construction of the Bypass when creating a “no build” baseline,
we noted that “courts not infrequently find NEPA violations when
an agency miscalculates the ‘no build’ baseline or when the
baseline assumes the existence of a proposed project.” Id.

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congestion.

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N.C.

Gen.

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Stat.

§

136-189.11.

The

Connector

received a low score under this new funding formula, ranking
below 1,200th place.
that

portion

of

the

The General Assembly subsequently repealed
statute

giving

the

Turnpike

Authority

express power to build the Connector, 2013 N.C. Sess. Laws §
5.1, and rescinded the Connector’s earmarked $35 million annual
funding. 2013 N.C. Sess. Laws § 4.8 (striking funding for the
“Garden Parkway,” previously codified at N.C. Gen. Stat. § 136176(b2)).
Given these developments, the district court directed the
parties

to

brief

whether

the

court

retained

subject

matter

jurisdiction and whether the Turnpike Authority still had the
power to build the Connector.

The parties urged the court to

resolve the pending motions for summary judgment, arguing that
the Turnpike Authority could still build the Connector as an
unspecified project because it remained on the list of approved
projects at both the state and local levels.
The

court

proceeded

to

the

merits

and

granted

the

Conservation Groups’ motion for summary judgment, holding that
the

alternatives

analysis

underlying

the

Connector

“violated

NEPA and the APA by using the same set of socioeconomic data
that

assumed

construction

of

the

[Connector]

to

assess

the

environmental impacts of the Build and No Build alternatives.”
J.A. 324.

The district court also agreed with the Conservation
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that

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the

Agencies

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failed

to

adequately

assess

and

disclose the Connector’s environmental impacts, reasoning that:
[D]efendants'
fundamental
assumption
that
the
[Connector] would have no effect on overall growth in
the Metrolina region, unsupported by any evidence
showing complete saturation of the region, and their
use of the gravity model to reallocate assumed growth
in the No Build condition constitute clear error and
violates NEPA and the APA.
J.A. 325.

The court consequently vacated the Record of Decision

for the Connector. 5
Following the district court’s ruling, the last domino fell
for

the

Connector

when

it

was

removed

from

local

and

state

transportation plans, 6 which in turn meant that it was no longer
eligible for federal funding.

In short, the Connector no longer

has the statutory authority or funding to proceed.

II.
NCDOT appeals the merits of the district court’s decision.
But preliminarily, it also contends that the case is now moot,
and

therefore

seeks

vacatur

of

the

district

court’s

granting summary judgment to the Conservation Groups.

order

Because

we agree with NCDOT that developments subsequent to the district
5

The Court declined to grant injunctive relief, finding it
unnecessary given its ruling.
6

The project remains on a 2040 horizon year plan prepared
by local authorities, but it now takes the form of a 3.4-mile
long bridge crossing facility.
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court’s ruling render the appeal moot, we do not address the
merits of the district court’s ruling.
Article III limits the jurisdiction of federal courts to
cases and controversies.
doctrine

of

mootness

U.S. Const. art. III, § 2, cl.1.

originates

‘controversy’ language.”

in

Article

III's

“The

‘case’

or

Incumaa v. Ozmint, 507 F.3d 281, 286

(4th Cir. 2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332,

352

(2006))

(internal

quotation

marks

omitted).

Thus,

“[t]o remain a justiciable controversy, a suit must remain alive
throughout

the

course

appellate disposition.”

of

litigation,

to

the

moment

of

final

Bahnmiller v. Derwinski, 923 F.2d 1085,

1088 (4th Cir. 1991) (internal quotation marks omitted).
“[E]ven if a plaintiff has standing when he or she files a
complaint, subsequent events can moot the claim.”
Delia, 709 F.3d 307, 316 (4th Cir. 2013).

Pashby v.

“A case becomes moot,

and thus deprives federal courts of subject matter jurisdiction,
when the issues presented are no longer ‘live’ or the parties
lack

a

legally

cognizable

interest

(internal quotation marks omitted).

in

the

outcome.”

Id.

In other words, a case is

moot when “our resolution of an issue could not possibly have
any practical effect on the outcome of the matter.”

Norfolk S.

Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.
2010).

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NCDOT contends that this case became moot when local and
state

planners

respective
Connector

the

transportation
“no

construction
appeal.”

removed

longer

regardless

Connector

improvement
eligible

of

the

plans,

for

of

the

from

their

rendering

federal

merits

Appellants’ Br. at 32–33.

project

the

funding
NEPA

issue

or
on

At oral argument, counsel

for NCDOT represented that “the [Record of Decision] is really a
nullity,” and further that “[t]his Project is defunct.
longer moving forward.”

It’s no

See also Appellants’ Br. at 26 (“The

Project . . . is no longer viable”).
In turn, although the Conservation Groups concede that the
Connector

now

lacks

funding,

they

say

that

the

case

still

presents a live controversy because the Record of Decision that
approved the project has not been rescinded and could thus “be
used to allow construction of the Connector at a later date.”
Appellees’ Br. at 24.

As they see it, little more than shifting

political priorities and funding hinder NCDOT from using the
Record of Decision to build the Connector on the basis of an
allegedly flawed NEPA analysis.

We do not agree.

As things now stand, the Connector faces multiple barriers
to construction.

To be built, it must overcome the poor ranking

it received under the new funding formula enacted by the General
Assembly,

local

Connector

into

and
the

state
various

planners
local
12

must
and

reincorporate

state

the

transportation

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improvement

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plans,

and

the

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state

legislature

about $900 million to the project.
events

come

to

pass,

clearing

must

reallocate

Moreover, even if these
the

Connector’s

path

to

construction, we are not persuaded by the Groups’ assertion that
NEPA’s implementing regulations allow the Agencies to conduct
only a “superficial” and cursory reevaluation of the Connector’s
Record of Decision.

See 23 C.F.R. § 771.129(b) (requiring a

written evaluation of the final Environmental Impact Statement
if “major steps to advance the action . . . have not occurred
within

three

years

after

the

approval

of

the

final

EIS”).

Instead, the regulatory regime under which the Agencies operate
renders the likelihood that NCDOT would proceed immediately to
construct the Connector pursuant to a now four-year-old Record
of Decision exceedingly remote.
Under

these

circumstances,

we

decline

the

Conservation

Groups’ request to issue “an opinion advising what the law would
be upon a hypothetical state of facts.”

Preiser v. Newkirk, 422

U.S. 395, 401 (1975) (quoting North Carolina v. Rice, 404 U.S.
244, 246 (1971)).
the

real

world,”

Conservation
NEPA

“[W]e may only decide cases that matter in
and

Groups

analysis,

as

because

deficient

speculative harm.

such,

or

the

can

offer

Connector

not,

pose

no
and

only

relief
its

to

the

underlying

hypothetical

and

Norfolk, 608 F.3d at 161 (internal quotation

marks omitted); see also Preiser, 422 U.S. at 402 (a request for
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declaratory relief survives a mootness challenge where the facts
“show that there is a substantial controversy, between parties
having

adverse

reality

to

legal

warrant

(internal

interests,

the

of
of

issuance

quotation

marks

sufficient
a

immediacy

declaratory

omitted);

and

judgment”)

Connecticut

v.

Massachusetts, 282 U.S. 660, 674 (1931) (An injunction “will not
be granted against something merely feared as liable to occur at
some indefinite time in the future.”).
In sum, given the remote possibility that the Connector
could

proceed

pursuant

to

the

allegedly

deficient

Record

of

Decision, and given NCDOT’s representations on appeal that the
Connector

is

no

longer

viable,

we

cannot

agree

with

the

Conservation Groups that “[r]evival of the Connector is a real
possibility.”

Appellants’ Br. at 28.

This case is moot.

III.
We

turn

now

court’s judgment.

to

whether

we

should

vacate

the

district

The Conservation Groups contend that even if

the case is moot, vacatur is improper because the circumstances
that

deprive

us

product

of

NCDOT’s

lobbying

of

subject

“happenstance,”
and

matter
but

decisions.

jurisdiction

rather
In

the

other

are

direct
words,

not

result
the

the
of

Groups

argue that NCDOT contributed to the Connector’s demise, mooting
this case.

But as we explain, we do not think it proper to
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impute the actions of state legislators and local planners to
NCDOT.

Accordingly,

we

shall

vacate

the

district

court’s

judgment.
A.
Our “customary practice when a case is rendered moot on
appeal

is

to

judgment.”

vacate

the

moot

aspects

Norfolk, 608 F.3d at 161.

of

the

lower

court's

In such circumstances,

the equitable remedy of vacatur “‘clears the path for future
relitigation of the issues between the parties.’”

Alvarez v.

Smith,

States

558

U.S.

87,

94

(2009)

(quoting

United

v.

Munsingwear, 340 U.S. 36, 40 (1950)).
The Supreme Court, however, has recognized exceptions to
this general practice in instances where mootness occurs through
the voluntary action of the losing party, rather than through
happenstance.
P'ship,

See

513

settlement

U.S.
does

U.S.
18,

not

29

Bancorp
(1994)

justify

Mortg.

Co.

(“[M]ootness

vacatur

of

a

v.
by

Bonner

Mall

reason

judgment

of

under

review.”); Karcher v. May, 484 U.S. 72, 82–83 (1987) (vacatur
inappropriate when losing party fails to pursue its appeal).
Consistent with that precedent, we too have said that “‘vacatur
normally

is

deliberate

not

appropriate

actions

controversy.’”

have

.

.

rendered

.

when
moot

the
an

losing

party's

otherwise

live

United States v. Springer, 715 F.3d 535, 541

(4th Cir. 2013) (quoting Remus Joint Venture v. McAnally, 116
15

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F.3d 180, 185 (6th Cir. 1997)).

Pg: 16 of 21

“The rationale for this rule is

that appellants should not be allowed to escape the preclusive
effect of an adverse district court judgment simply by taking a
unilateral action during the pendency of their appeal to moot
the matter.”

Id. at 542.

However, where “appellate review of the adverse ruling was
prevented by ‘the vagaries of circumstance,’” vacatur remains
available,

“subject

.

.

.

to

considerations

of

the

public

interest.”

Valero Terrestrial Corp. v. Paige, 211 F.3d 112,

117–18

Cir.

Thus,

(4th
when

appeal,

determining

our

entirely,

decision

by

interest.”

2000)

the

(quoting
the

is

twin

Bancorp,

propriety

“informed

513

of

vacatur

almost

considerations

U.S.

at

in

entirely,

of

fault

and

25)).

a

moot

if

not

public

Id. at 118.
B.

The

Conservation

inappropriate

because

Groups
NCDOT

contend

“contributed

that
to

the

vacatur

is

mootness

of

which they now complain,” by lobbying the General Assembly for
the

enactment

formally

of

approving

the
the

new

transportation

Connector’s

transportation improvement program.

funding

removal

from

statute
the

and

state’s

Appellees’ Br. at 30.

We

do not agree.
We dispel first the Groups’ assertion that NCDOT’s support
of transportation funding reform—characterized by the Groups as
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an

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“intentional

sufficient
NCDOT.

to

Id.

intercession

impute

the

Pg: 17 of 21

in

the

actions

of

legislative
the

General

process”—is
Assembly

to

To the contrary, our precedent counsels against

conflating the actions of a state executive entity with those of
a state legislature.

Valero, 211 F.3d at 115.

In Valero, the appellant corporation brought suit against
various

West

Virginia

constitutionality

of

certain

provisions

West

enforcement.
Virginia

Id.

permanent

management

Virginia

The district court declared the provisions constitutionally
a

and

the

the

Id.

issued

disposal

of

challenging

pertaining

and

waste

agencies,

Code

invalid

to

executive

injunction

regulation.

prohibiting

their

Shortly after judgment was entered, the West

Legislature

revised

the

enjoined

provisions,

mooting

the case and prompting the executive agencies to seek vacatur of
the adverse decision.

Id.

On appeal, we affirmed the district court’s vacatur of its
decision, distinguishing explicitly between the actions of the
state legislature in amending the statutory provisions at issue,
thereby
state

mooting
executive

the

case,

from

officials,

the

holding

actions
that

of

the

defendant

“defendant

state

executive officials are in a position akin to a party who finds
its case mooted by ‘happenstance,’ rather than events within its
control.”

Id. at 121 (internal quotation marks omitted).

17

As a

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result, we concluded that the principal consideration of “fault”
Id. 7

counseled in favor of vacatur.
Similarly,

here,

NCDOT,

a

state

executive

agency,

separate entity from the North Carolina General Assembly.
NCDOT

lobbied

transportation
distinction,
“caused”

the

funding

nor

the

General

does

Assembly

reform

does

it

warrant

Connector’s

demise.

in

not

the

support

alter

See

Chem.

a

That

of

this

conclusion

is

the

central

that

NCDOT

Producers

&

Distribs. Ass'n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006)
(“Lobbying Congress or a state legislature cannot be viewed as
‘causing’

subsequent

inquiry.

Attributing

parties

rather

than

legislation
the
to

actions

the

for
of

purposes
a

legislature

of

the

legislature
itself

is

vacatur

to
of

third

dubious

legitimacy . . . .”).
In sum, to the extent that the enactment of transportation
funding reform helped to render this case moot, we view it as

7

Our sister circuits have also distinguished the actions of
an executive entity from those of the legislature for purposes
of the “voluntary action” presumption against vacatur.
See,
e.g., Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 195 (3d
Cir. 2001) (vacating a lower court’s judgment as mooted by
legislative amendment and rejecting the appellee’s assertion
that the appellant Federal Aviation Association “misuse[d] . . .
the legislative process” to encourage Congress to amend the
challenged statute “to frustrate an unfavorable judgment”);
Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346,
353 (D.C. Cir. 1997) (presumption against vacatur “is usually
inapplicable when legislative action moots a case and the
government seeks vacatur”).
18

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the

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consequence

of

actions

Assembly, not NCDOT.

Pg: 19 of 21

of

the

North

Carolina

General

See Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1131 (10th Cir. 2010) (“[T]he acts
of

the

legislature

are

not

the

acts

of

executive

branch

agencies, states, or private parties.”).
We

turn

next

to

the

Groups’

assertion

that

vacatur

is

inappropriate because NCDOT intentionally mooted the case when
it

approved

the

removal

of

the

Connector

transportation improvement program.
with

this

argument:

discretion

over

(1)

planners

which

projects

from

the

state’s

Two points readily dispense
at

the
to

local

level

retain

in

their

include

transportation improvement plans, 23 C.F.R. § 450.326(a), and
(2)

federal

regulations

require

that

an

approved

local

transportation plan be included in the state’s transportation
improvement program without change.

See 23 C.F.R. § 450.218(b).

As such, although NCDOT approved the Connector’s removal from
its statewide plan, that result was a fait accompli following
the local planning agency’s decision to remove the Connector
from its transportation plan.

Put simply, NCDOT did not act

voluntarily to moot this case.
C.
Finally,
recognized

we

that

consider
“there

judicial judgments.”

is

the
a

public

interest.

substantial

public

Valero, 211 F.3d at 118.
19

We

have

interest

in

This is because

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“[j]udicial precedents are presumptively correct and valuable to
the legal community as a whole.”
U.S. at 26).
public

Id.

(quoting Bancorp, 513

In Bancorp, the Supreme Court’s concern for the

interest

led

the

Court

to

withhold

the

remedy

of

appellate vacatur from the losing party who had mooted the case
through settlement, thereby “voluntarily forfeit[ing] his legal
remedy by the ordinary processes of appeal or certiorari.”
U.S. at 25.
vacatur

in

The Court reasoned that employing the remedy of
that

collateral

513

attack

instance
on

the

constituted
judgment”

“a

that

refined
would

form

“disturb

of
the

orderly operation of the federal judicial system,” and therefore
did not serve the public interest.

Id. at 27.

This concern, however, did not prevent the Court in Bancorp
from

“stand[ing]

by”

the

proposition

that

“mootness

by

happenstance provides sufficient reason to vacate.”

Id. at 23,

25 n.3 (citing Munsingwear, 340 U.S. at 40–41).

We see no

reason

to

events

beyond

leaving

depart

the

the

from

that

general

principle

parties’

control

have

district

court’s

decision

here.

mooted

Because

this

undisturbed

appeal,

would

not

serve the public interest.

IV.
For

the

reasons

given,

we

vacate

the

district

court’s

judgment and remand the case with instructions that the district
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court dismiss the action.

Pg: 21 of 21

See Mellen v. Bunting, 327 F.3d 355,

364 (4th Cir. 2003) (“If a claim becomes moot after the entry of
a district court's final judgment and prior to the completion of
appellate review, we generally vacate the judgment and remand
for dismissal.”).
VACATED AND REMANDED
WITH INSTRUCTIONS

21