United States v. 2007-06-04 | 04-15788 | ANIMAL LEGAL DEFENSE FUND VVENEMAN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANIMAL LEGAL DEFENSE FUND;
ANIMAL WELFARE INSTITUTE;
VALERIE BUCHANAN; JANE
GARRISON; NANCY MEGNA,
Plaintiffs-Appellants, No. 04-15788
NATIONAL ASSOCIATION FOR D.C. No.
 BIOMEDICAL RESEARCH, CV-03-03400-PJH
Intervenor-Appellee, ORDER
v.
ANN M. VENEMAN; BOBBY R.
ACORD; CHESTER A. GIPSON,
Defendants-Appellees. 
Filed June 4, 2007
Before: Mary M. Schroeder, Chief Judge, Michael Daly
Hawkins, Sidney R. Thomas, Barry G. Silverman, M.
Margaret McKeown, Kim McLane Wardlaw, Raymond C.
Fisher, Ronald M. Gould, Richard A. Paez, Richard C.
Tallman, Richard R. Clifton, Jay S. Bybee, Consuelo M.
Callahan, Carlos T. Bea, and Sandra S. Ikuta,
Circuit Judges.
Order;
Concurrence by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Thomas
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ORDER
Appellant’s motion to dismiss is GRANTED. The appeal is
DISMISSED with prejudice, each party to bear its own costs.
The opinion of the three-judge panel, reported at 469 F.3d 826
(9th Cir. 2006), is VACATED.
BYBEE, Circuit Judge, with whom CALLAHAN, Circuit
Judge joins, concurring:
I concur in the dismissal of the appeal pursuant to Fed. R.
App. P. 42(b) and in the vacatur of the panel opinion. I write
separately because I believe that this situation presents a very
different set of considerations from the cases discussed in
Judge Thomas’s partial dissent.
This case involves a challenge to the United States Depart-
ment of Agriculture’s (“USDA”) decision not to adopt a draft
policy that would have provided guidance to various regulated
entities on the treatment of nonhuman primates under the Ani-
mal Welfare Act. When USDA ultimately decided to abandon
the draft policy, the Animal Legal Defense Fund (“ALDF”)
filed suit alleging that USDA’s decision was arbitrary, capri-
cious, and an abuse of discretion. The district court granted
USDA’s motion to dismiss, and ALDF timely appealed. Over
a vigorous dissent, a panel of this court reversed the district
court. Animal Legal Def. Fund v. Veneman, 469 F.3d 826 (9th
Cir. 2006).
After a sua sponte call, a majority of the active judges
voted to rehear the case en banc. In a published order we
stated that “[t]he three-judge panel opinion shall not be cited
as precedent by or to this court or any district court of the
Ninth Circuit, except to the extent adopted by the en banc
court.” Animal Legal Def. Fund v. Veneman, 482 F.3d 1156
(9th Cir. 2007). The case is currently calendared for argument
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on June 18, 2007. We were informed by the parties on May
10, 2007, that they had reached a settlement and had agreed
to dismiss the case with prejudice “provided that the panel’s
opinion and judgment are vacated.”
A majority of the en banc panel has agreed to grant the
motion to dismiss and vacate the panel’s opinion. Six mem-
bers of the en banc panel, relying on U.S. Bancorp Mortgage
Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994), Karcher
v. May, 484 U.S. 72 (1987), Clarendon Ltd. v. Nu-West
Indus., Inc., 936 F.2d 127, 129 (3d Cir. 1991), and Matter of
Mem’l Hosp. of Iowa County, Inc., 862 F.2d 1299, 1300 (7th
Cir. 1988), would not vacate the panel’s opinion because
“voluntary settlement by the parties does not justify vacatur.”
Dissent at 7049. None of the cases cited in Judge Thomas’s
dissent, however, addresses the question before us: Having
granted rehearing en banc, may we vacate our own panel
opinion when the parties settle the case prior to reargument?
The cases cited by the dissent all involve a request that the
Supreme Court (or a court of appeals) vacate a lower court
opinion. Bonner Mall involved the question of “whether
appellate courts . . . should vacate civil judgments of subordi-
nate courts in cases that are settled after appeal is filed or cer-
tiorari sought.” 513 U.S. at 19 (emphasis added). The Court
declined to vacate our decision on the motion of the parties,
holding that there were no “exceptional circumstances” justi-
fying such an order. Id. at 29. Similarly, in Karcher, the
Supreme Court dismissed the appeal when plaintiff office
holders’ successors in office declined to pursue the appeal,
but rejected the plaintiffs’ argument “that if we dismiss the
appeal we must vacate the judgments below.” 484 U.S. at 81.
Clarendon and Memorial Hospital both involve situations
where the court of appeals was asked to vacate the decision
of the district court pursuant to the parties’ settlement agree-
ment; both courts concluded that vacatur was not appropriate.
Clarendon, 936 F.2d at 129; Mem’l Hosp., 862 F.2d at 1300.
But cf. Nat’l Union Fire Ins. v. Seafirst Corp., 891 F.2d 762,
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768-69 (9th Cir. 1989) (rejecting “the Seventh Circuit’s rule
[in Memorial Hospital] to ‘always deny these motions’ . . . .
We find some merit in those sentiments but decline to adopt
such an inflexible rule. To do so would raise the cost of settle-
ment too high. The better view, in our opinion, is to consider
the equities and hardships in resolving the question.”); 13A
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H.
COOPER, FEDERAL PRACTICE & PROCEDURE § 3533.10 at 432 (2d
ed. 1984) (“The parties should remain free to settle on terms
that require vacation of the judgment.”); Id. at 763 (Supp.
2007) (discussing a decision to vacate the panel decision after
rehearing en banc had been granted, but before oral argument
and noting: “The fact that rehearing had been granted may
justify the further decision to vacate the panel decision, since
it shows at least some ground for concern with the panel deci-
sion. This setting also may reduce the risk that one party is
seeking to buy its way out of an adverse precedent.”).
The parties have not asked us to vacate the district court’s
opinion, a request that would fall squarely within Bonner
Mall. Rather, we have been asked to vacate our own opinion,
an opinion that we have already ordered not be cited as prece-
dent. The marginal difference between what we have already
ordered—that the panel opinion not be cited as precedent—
and what the parties have jointly requested—that we formally
vacate the opinion—is minuscule.
Moreover, the parties have not requested anything extraor-
dinary. It is common practice among the courts of appeals to
vacate the panel opinion in the order granting rehearing en
banc. See, e.g., Official Comm. of Unsecured Creditors of
Cybergenics Corp. v. Chinery, 310 F.3d 785 (3d Cir. 2002)
(“having voted for rehearing en banc in the above appeal, it
is ordered that the Clerk of this Court vacate the opinion and
judgment [of the panel].”) (emphasis omitted); Amos v. Mary-
land Dept. of Pub. Safety & Corr. Serv., 205 F.3d 687 (4th
Cir. 2000) (“After a majority of the active judges of this Court
voted to grant the . . . petition for rehearing en banc, we
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vacated [the panel’s] judgment); Byrne v. Butler, 845 F.2d
501, 507 (5th Cir. 1988) (en banc) (“[t]he grant of a rehearing
en banc vacates the panel opinion, which thereafter has no
force.”) (internal quotation marks and citations omitted);
E.E.O.C. v. Jefferson County Sheriff’s Dept., 2006 WL
3298341 (6th Cir. 2006) (en banc) (“The effect of the granting
of a hearing en banc shall be to vacate the previous opinion
and judgment of this court.”); United States v. Hardman, 260
F.3d 1199 (10th Cir. 2001) (en banc) (ordering sua sponte
rehearing of three cases and ordering that “[t]he panel opin-
ions in these cases are vacated”); Freund v. Butterworth, 135
F.3d 1419, 1420 (11th Cir. 1998) (en banc) (“[I]t is ordered
that the above cause shall be reheard by this court en banc.
The previous panel’s opinion is hereby vacated.”); United
States v. Powell, —F.3d—, 2007 WL 1119641, *1 (D.C. Cir.
2007) (en banc) (“Upon the Government’s motion, the full
court vacated [the panel] decision and granted rehearing en
banc.”); Kirkendall v. Dept. of Army, 159 Fed. Appx. 193,
194 (Fed Cir. 2006) (en banc) (“The petition for rehearing en
banc is granted. The court vacates the panel’s judgment and
original opinion.”).1
Moreover, this widely accepted practice used to be our
practice as well. See Burlington N. & Santa Fe Ry. v. Int’l Bd.
of Teamsters, 185 F.3d 1075 (9th Cir. 1999) (ordering the
case be reheard en banc; “The three-judge panel opinion . . .
is withdrawn.”); In re Gruntz, 177 F.3d 729 (9th Cir. 1999)
(same); Hose v. INS, 161 F.3d 1225 (9th Cir. 1998) (same).
Judge Thomas indicates that we changed our practice in
response to the practices of West Publishing, which often
1The First Circuit appears to grant en banc rehearing only on certain
specified issues and decides on a case-by-case basis which portions of the
original panel opinion to vacate. See, e.g., United States v. Padilla, 403
F.3d 780 (1st Cir. 2005); Narragansett Indian Tribe v. Rhode Island, 415
F.3d 134, 135 (1st Cir. 2005). This is possible because of the circuit’s
small body of case law and the fact that there are only six active members
of the court. I have not been able to find a definitive example of the Sec-
ond, Seventh or Eighth Circuits’ practice.
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deletes the vacated opinion from its electronic databases and
declines to print them in the bound volumes of the Federal
Reporter.2 Dissent at 7049 n.1. Although we now declare the
panel opinions “not precedential,” we do not formally vacate
them, apparently so that West will not wipe them from the
annals of F.3d. I fully agree with Judge Thomas that there are
good reasons for wanting a complete case history in the
reporters, but we may wish to take this up with West instead
of altering our en banc practice. In any event, whatever con-
cerns we have had in the past about altering history by wiping
panel opinions from the books are not realized in this case.
The panel’s opinion is published in 469 F.3d, which is already
in a hardbound edition.
Our previous practice and the practices of our sister circuits
make eminent sense. When we decide to rehear a case en
banc, as the name suggests, we rehear the case and issue a
new opinion and judgment on behalf of the court. In effect,
we start over again. By granting rehearing en banc, we are not
engaging in another level of appellate review. We do not
affirm or reverse the panel; rather, we review the judgment of
the lower court. Any decision we issue necessarily displaces
whatever judgment and opinion the panel previously issued,
whether or not it is consistent with the en banc opinion. It
only stands to reason, then, that when the en banc court
assumes control of the case, we either vacate the underlying
judgment and opinion or treat them as vacated.3
In this case then, we are in a posture similar to settlement
on the eve of oral argument. We do not hesitate to grant such
2Although historically West removed vacated opinions from its data-
base, this practice may have recently changed. It appears that the full text
of several recent opinions that have been vacated is still in its online
Westlaw database.
3In cases in which we have ordered en banc review, LEXIS treats the
panel opinion as having been vacated. For example, the LEXIS citation for
this case, 469 F.3d 826, contains the following notation: “NOTICE: THIS
OPINION WAS VACATED BY THE COURT.”
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settlements, irrespective of the importance of the issues or the
time and preparation the panel has expended. See Amos, 205
F.3d at 687 (noting the court had granted rehearing and
vacated the judgment; dismissing the case when, five days
before oral argument en banc, the parties settled). When we
dismiss the appeal, we will not, in accordance with Bonner
Mall, vacate the district court’s opinion without good reason.
Here, consistent with Bonner Mall, the parties have not
requested that we vacate the district court’s opinion. Indeed,
they have asked that we leave the district court opinion in
place by formally vacating the three-judge panel’s opinion,
which we have already declared non-precedential.
In this case the parties jointly ask us to do what we have
historically done and what our sister circuits routinely do—
strip a panel opinion of its precedential and persuasive author-
ity by vacating it en banc. The request will facilitate settle-
ment in this case, and I do not think the request is out of line.
But I think it would be unfair to do as the dissent proposes,
to dismiss the appeal, but not vacate the panel opinion. Effec-
tively, we are not being asked “to vacate because the case [is]
moot, but . . . to vacate to make the case moot.” Nat’l Union
Fire Ins., 891 F.2d at 768. Because we do not know if the par-
ties would agree to dismissal absent vacatur, it would be man-
ifestly unfair to the parties to grant the motion, but on terms
different from those they agreed to. In my view, if we were
to refuse to vacate the panel opinion, as the parties have
requested pursuant to their settlement, the only fair course of
action would be to deny the motion on grounds of the inap-
propriateness of vacatur and proceed with en banc reargu-
ment. Adopting the dissent’s halfway approach would result
only in inequitable treatment of the parties and a disregard for
our colleagues who voted to take this case en banc.
For the above reasons, I concur in the order.
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THOMAS, Circuit Judge, with whom HAWKINS,
MCKEOWN, WARDLAW, GOULD, and FISHER, Circuit
Judges join, concurring in part and dissenting in part:
I concur in the dismissal of the appeal pursuant to Fed. R.
App. P. 42(b). However, I respectfully dissent from the por-
tion of the order vacating the panel opinion.
In this case, neither party filed a petition for rehearing en
banc. Rather, we decided sua sponte to rehear the case. Fol-
lowing the order granting rehearing en banc, ALDF filed a
motion to dismiss its appeal pursuant to Fed. R. App. 42(b).
Its reasons were purely tactical: It did not want to expend the
time and commit the resources to prepare for an en banc argu-
ment, and it did not wish to risk an adverse en banc result. In
the normal course, if we had simply granted the motion, the
appeal would be dismissed and the judgment of the district
court would remain intact. Under such a circumstance,
although the panel opinion would remain as part of the record,
it would be subject to our usual order filed when rehearing en
banc is granted, which provides that the panel opinion is des-
ignated as a non-precedential decision. See ALDF v. Vene-
man, 482 F.3d 1156 (9th Cir. 2007) (“The three-judge panel
opinion shall not be cited as precedent by or to this court or
any district court of the Ninth Circuit, except to the extent
adopted by the en banc court.”).
One would think that the government would be entirely sat-
isfied with that outcome. It had, after all, acquiesced in the
precedential, published panel opinion by declining to seek
rehearing. Our sua sponte decision to rehear its case gave the
government an immediate windfall; by our operating rules,
the opinion had been designated as non-precedential, so the
government was left in a much better position than it would
have been had we left the parties to their own devices. How-
ever, the government asked for something more. It condi-
tioned its consent to dismissal on the en banc court’s entering
an order vacating the panel decision.
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Vacatur is an “extraordinary remedy.” U.S. Bancorp Mort-
gage Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994). It
removes all precedential value from a decision, rendering an
opinion a legal nullity. Id. at 22. “[T]he general rule [is] that
when a court vacates an order previously entered, the legal
status is the same as if the order never existed.” United States
v. Jerry, 487 F.2d 600, 607 (3d Cir. 1973). If the opinion has
not been published in book form, an order vacating the opin-
ion may prevent it from ever being published.1 In that event,
the opinion may be lost from the historical record of the case;
it is certainly lost as a means of developing the law because
even its value as non-precedential persuasive authority is
removed. For all these reasons, the party seeking vacatur car-
ries a burden of establishing equitable entitlement to vacatur.
Bonner Mall, 513 U.S. at 26.
Of course, vacatur is entirely appropriate if a case has “be-
come moot due to circumstances unattributable to any of the
parties.” Karcher v. May, 484 U.S. 72, 83 (1987). However,
the Supreme Court has made it quite clear that voluntary set-
tlement by the parties does not justify vacatur, even when the
1See Judith Resnik, Whose Judgment? Vacating Judgments, Preferences
for Settlement, and the Role of Adjudication at the Close of the Twentieth
Century, 41 UCLA L. Rev. 1471, 1499 (1994) (describing the practices of
West Publishing Company). In fact, it was in part the fact that vacated
opinions sometimes vanished from the historical record that caused us to
alter our form order granting rehearing en banc to omit any reference to
vacating the panel opinion and to substitute our current language which
simply designates the opinions as non-precedential. West’s practice when
it encounters a vacatur order is to issue a notation withdrawing the opinion
from its bound volume. See, e.g., Finau v. INS, 277 F.3d 1146 (9th Cir.
2002) (“The opinion of the United States Court of Appeals, Ninth Circuit,
in Finau v. INS, published in the advance sheet at this citation, 277 F.3d
1146, was withdrawn from the bound volume because decision was with-
drawn and vacated.”). In the digital age, of course, some vacated opinions
remain in electronic circulation and, if the opinion is vacated after it has
been published in the official reporters, it remains “on the books.” How-
ever, if this occurs, it is a matter of chance, not the product of deliberate
choice.
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settlement agreement calls for vacatur. Bonner Mall, 513 U.S.
at 29. The Supreme Court has also held that a party’s change
of litigating heart does not justify vacatur. In Karcher, the
Supreme Court considered a case much like the one at bar.
The plaintiff office-holders were replaced, and their succes-
sors declined to pursue the appeal. The Supreme Court dis-
missed the appeal but declined to vacate the underlying
decisions. Karcher, 484 U.S. at 83 (“This controversy did not
become moot due to circumstances unattributable to any of
the parties. The controversy ended when the losing party—the
New Jersey Legislature—declined to pursue its appeal.
Accordingly, the Munsingwear procedure is inapplicable to
this case.”).
Karcher and Bonner Mall specifically confronted the ques-
tion of whether one court should be permitted to vacate an
opinion of a different, subordinate court. Here, an en banc
panel of this court has been asked to vacate the opinion of a
three-judge panel of the same court. However, there is no
principled distinction to be drawn between those situations,
particularly where, as here, none of the three judges on the
initial panel is a member of the en banc panel, meaning that
none of the affected judges has a vote in the decision on vaca-
tur. There is no suggestion in Bonner Mall that vacatur is an
“extraordinary remedy” only some of the time. Indeed, once
we consider the justifications underlying the Supreme Court’s
holdings, it becomes perfectly clear that there is no meaning-
ful distinction between the situation we face and the situation
the Supreme Court confronted.
One of the important reasons for courts to decline vacatur
at the invitation of the parties is the preservation of public
trust. As the Supreme Court put it in Bonner Mall:
As always when federal courts contemplate equitable
relief, our holding must also take account of the pub-
lic interest. “Judicial precedents are presumptively
correct and valuable to the legal community as a
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whole. They are not merely the property of private
litigants and should stand unless a court concludes
that the public interest would be served by a vaca-
tur.”
513 U.S. at 26 (quoting Izumi Seimitsu Kogyo Kabushiki
Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40 (1993) (Ste-
vens, J., dissenting)). Chief Judge Easterbrook put it more
forcefully in Matter of Memorial Hosp. of Iowa County, Inc.,
862 F.2d 1299, 1300 (7th Cir. 1988):
[A]n opinion is a public act of the government,
which may not be expunged by private agreement.
History cannot be rewritten. There is no common
law writ of erasure.
An important aspect of maintaining the public trust is to
assure that the judicial process is transparent. Eradicating his-
torical precedent is antithetical to that goal.
Indeed, the act of eradication in this case might prove to be
misleading. An affirmative vote of the majority of the non-
recused members of our court to rehear a case en banc does
not necessarily signify any particular outcome. The justifica-
tion for rehearing a case en banc under Fed. R. App. P. 35 is
based on whether rehearing is necessary to maintain unifor-
mity of the court’s decisions or whether the proceeding
involves a question of exceptional importance. A judge’s vote
for or against rehearing en banc does not indicate that judge’s
vote on the merits. Indeed, in the last full year for which we
have complete data, fully 30% of the decisions of the en banc
panel were in accord with the original decision of the three-
judge panel. Because our en banc panel has not considered
this appeal on the merits, vacatur leaves the incorrect and mis-
leading impression that the en banc panel has considered and
ruled on the merits of the three-judge panel opinion.2
2For these reasons, I must respectfully disagree with the concurrence’s
suggestion that if we denied vacatur, it would be somehow unfair to those
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A second compelling reason to avoid entering an order of
vacatur at the invitation of the parties is that it gives the
appearance, and perhaps the reality in some cases, of allowing
the parties to manipulate court precedent. As Judge Easter-
brook stated:
When a clash between genuine adversaries produces
a precedent, however, the judicial system ought not
allow the social value of that precedent, created at
cost to the public and other litigants, to be a bargain-
ing chip in the process of settlement. The precedent,
a public act of a public official, is not the parties’
property. We would not approve a settlement that
required us to publish (or depublish) one of our own
opinions, or to strike a portion of its reasoning.
Id. at 1302 (emphasis added). The Third Circuit agreed with
this assessment, stating:
As should be self-evident even without reference to
the terms of Rule 42(b), action by the court can be
neither purchased nor parleyed by the parties. It fol-
lows that a judicial act by an appellate court, such as
vacating an order or opinion of this court or the trial
court, is a substantive disposition which can be taken
only if the appellate court determines that such
action is warranted on the merits. A provision for
such action in a settlement agreement cannot bind
the court.
Clarendon Ltd. v. Nu-West Indus., Inc., 936 F.2d 127, 129 (3d
Cir. 1991) (emphasis added).3 As the Supreme Court stated in
Bonner Mall:
who voted for rehearing en banc. Those who voted to rehear the case have
obtained precisely what our procedure provides in the order designating
the panel opinion non-precedential. Any further equitable relief would be
an affirmative remedy.
3Notably, these quotations demonstrate that neither the Third Circuit nor
the Seventh Circuit sees any principled difference between a court vacat-
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Congress has prescribed a primary route, by appeal
as of right and certiorari, through which parties may
seek relief from the legal consequences of judicial
judgments. To allow a party who steps off the statu-
tory path to employ the secondary remedy of vacatur
as a refined form of collateral attack on the judgment
would—quite apart from any considerations of fair-
ness to the parties—disturb the orderly operation of
the federal judicial system.
513 U.S. at 27.
In the case before us, the posture of the parties gives the
very real appearance of attempted manipulation. The only
rationale given by ALDF for filing its dismissal motion is that
it just doesn’t want to spend any time or resources on the case.4
ALDF had not previously exhibited any litigation fatigue,
having aggressively pursued the case through the district court
and then on appeal. However, after a majority of the active
non-recused judges voted to rehear the case en banc, it appar-
ently became suddenly tired. The motion to dismiss at this
ing a judgment of another court and a court vacating its own judgment.
Nor do I, especially when we are in the posture of sitting en banc and
vacating a panel decision.
4ALDF’s motion states: “Here, plaintiffs-appellants request that this
appeal be dismissed because (1) the underlying case involves an extremely
unusual set of circumstances that is unlikely to be replicated in future
cases; (2) plaintiffs do not know which of the many issues raised by
USDA, NABR, or Judge Kozinski will be the focus of the en banc pro-
ceeding, which will make it extremely difficult for the plaintiffs to prepare
for the hearing; (3) neither the USDA nor NABR initially sought rehearing
en banc; and (4) under all of these circumstances, the plaintiffs-appellants
do not wish to spend additional time and resources litigating this case.”
ALDF’s motion continues: “In addition, plaintiff-appellants are willing to
have the panel decision in this case vacated and the district court’s deci-
sion reinstated as the final decision in this case. Counsel for the USDA
and counsel for NABR have stated that they do not oppose the motion
under these conditions.”
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stage, coupled with ALDF’s stated willingness to vacate the
panel opinion, leaves one with the impression that it was will-
ing to trade off what it thought was “good” precedent to avoid
the risk of a “bad” decision from the en banc panel. On the
other side, the government does not simply wish to have the
district court judgment reaffirmed and the panel opinion des-
ignated as non-precedential; it asks us to expunge the panel
decision from the historical record, to make it as inaccessible
and non-citeable as possible. Of course, I may well be mis-
taken, but those are the impressions I draw from the motions
filed by the parties.
The parties are certainly entitled to pursue their own litigat-
ing tactics. But when those strategies depend on us rewriting
our own judicial history, we must hesitate before lending our
imprimatur. We depend on the public’s confidence in the
independence and integrity of our judgments. When parties,
rather than the courts, shape precedent and process according
to their private agreements or actions, public confidence is
inevitably eroded. Parties should not be allowed, nor should
we appear to allow them, to manipulate our jurisprudence.
Worse, in this case, is the fact that we acted sua sponte to
rehear the case. The parties’ collaboration to attempt to pre-
vent rehearing en banc gives the appearance that the parties
have been bargaining with the Court regarding the terms
under which the Court would withdraw its sua sponte rehear-
ing order.
Finally, the action to vacate the opinion infringes on the
rights of our colleagues on the three-judge panel. One of the
most important rights we have as Article III judges is the right
to publish our decisions. Judges of our Court retain this right
when they are in dissent. Indeed, by custom and through our
General Orders, a dissenting judge can force publication of a
disposition originally designated as an unpublished, non-
precedential decision. Judges of our Court can register their
views by publishing a dissent from a decision not to rehear a
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case en banc. Vacatur removes this right. It reduces an opin-
ion originally intended for publication by the author to a
lesser status even than decisions that the panel has affirma-
tively decided are not precedent-worthy. This is particularly
true since, as of January 1, 2007, we must now allow parties
to cite even unpublished dispositions and unpublished orders
as persuasive authority. 9th Cir. R. 36-3(b). For this reason,
out of a sense of respect and collegiality to our colleagues, we
must employ the extraordinary remedy of vacatur with great
care when sitting en banc.
Despite these powerful considerations, I do not quarrel with
the en banc panel’s power to vacate the prior opinion. We
have not adopted the approach of the Seventh, Third, and
D.C. Circuits, which prohibits vacatur at the behest of the par-
ties in all circumstances. In re Memorial Hosp., 862 F.2d at
1300; Clarendon, 936 F.2d at 129; In re United States, 927
F.2d 626, 628 (D.C. Cir. 1991). As we made clear in Nat’l
Union Fire Ins. v. Seafirst Corp., the limitations on vacatur
are “neither statutorily nor constitutionally required.” 891
F.2d 762, 766 (9th Cir. 1989).
Rather, we have—in a manner consistent with the teachings
of Bonner Mall—considered vacatur on its own equitable
merits, making our assessment on “the equities and hard-
ships” involved in the particular case. Id. at 769; see also
Ringsby Truck Lines v. Western Conference of Teamsters, 686
F.2d 720, 722 (9th Cir. 1982).
There are, of course, cases in which the particular “equities
and hardships,” id., would rise to the level of “exceptional cir-
cumstances,” Bonner Mall, 513 U.S. at 29, justifying vacatur
of an opinion in the context of a settlement between the par-
ties. Indeed, there is an overarching equitable consideration
that will be present and powerful in any such case: the consid-
erable societal value in encouraging settlements and finality
in litigation.5 However, the fact of settlement alone is an
5For this reason, I can well understand—and do not fault in any respect
—the desire of the majority to forward this case to resolution.
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insufficient rationale. As the Tenth Circuit put it when consid-
ering and rejecting a similar request by the parties to vacate
a circuit court decision:
The court is, of course, impressed with the impor-
tance of salutary settlements of controversies, with
their consequent lessening of both the burden on the
parties of costly litigation and the drain on judicial
resources. Nevertheless, we are seriously troubled by
the effort here, made for whatever reason, to cause
the withdrawal of an opinion of this court and the
nullification of its precedential effect. This arrange-
ment of the parties, which would affect the precedent
of this court, goes beyond the rationale of vacatur as
explained in Munsingwear, i.e., to protect against
future preclusive collateral estoppel effects on the
parties to litigation, and reaches out to deprive our
opinion of any precedential effect. Judge Posner has
succinctly stated that the Seventh Circuit rejects such
requests: “We vacate unappealable decisions, to pre-
vent them from having a preclusive effect. We do
not vacate opinions, to prevent them from having a
precedential effect.” In re Smith, 964 F.2d 636, 638
(7th Cir. 1992).
Oklahoma Radio Assocs. v. F.D.I.C., 3 F.3d 1436, 1437 (10th
Cir. 1993).
There will, no doubt, be occasions in which vacatur is a
desirable means to effect a satisfactory resolution of a dispute.
But the parties here do not even offer that consideration as a
rationale. The parties have not settled their disputes in any
respect; they just wish us to apply an eraser to this appeal so
they can litigate the same questions another day. Indeed, their
only point of accord is that we should vacate all of the appel-
late proceedings and treat them as if they never existed.
And what has the government offered in this case to meet
its burden of justifying the extraordinary remedy of vacatur?
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Nothing. It simply refused to consent to dismissal unless the
panel opinion was vacated. No other rationale was offered.
The bare threat of refusing to consent to a voluntary dismissal
cannot possibly be sufficient to justify invoking the equitable
remedy of vacatur, particularly when the government’s con-
sent is not required to dismiss this appeal. See Fed R. App. P.
42(b) (“An appeal may be dismissed on the appellant’s
motion on terms agreed to by the parties or fixed by the
court.”). The government’s position and ALDF’s acquies-
cence in it may be founded in a view that judicial opinions
are, as the Seventh Circuit put it, “the parties’ property.”
Mem’l Hosp., 862 F.2d at 1302. But they are not. The Seventh
Circuit rejected this notion, and so should we. Rather than
blithely accepting ALDF’s expression of weariness and the
government’s insistence on removing all vestiges of what it
considers unfavorable precedent from the historical record,
we ought to assess the vacatur request carefully, fully, and on
its own merits, as would be consistent with our case law, Sea-
first, 891 F.2d at 769, and Bonner Mall.
But we have done nothing of the sort in this case. We have
not done a merits analysis. We have not performed an equita-
ble balancing. We have not assessed whether the government
has satisfied its burden to establish equitable entitlement to
the extraordinary remedy of vacatur.
The concurrence defends the vacatur decision on the basis
that some of our sister circuits issue, as a matter of practice,
rehearing orders that vacate the panel opinions—as our circuit
used to do. That practice, however, is of no significance in the
context of the present discussion. Those orders are not entered
at the behest of the parties; they are entered with the presump-
tion that the en banc court will proceed to rehear the case on
the merits and will issue an alternative opinion that will be
both reasoned and precedential. Vacatur of published deci-
sions at the behest of settling litigants is an entirely different
matter.
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We have two very thoughtful panel opinions in this case:
the majority opinion by Judge Fletcher and the dissent of
Judge Kozinski. We owe them more respect than to toss their
opinions into the judicial scrapheap in an attempt to expunge
them from the historical record purely for the parties’ litiga-
tion convenience. As Judge Easterbrook put it when confront-
ing a similar situation in Memorial Hospital:
The opinions written in this case record two judges’
solutions to a legal problem. These opinions may be
valuable for other litigants and judges; they may also
be useful to Memorial itself at another time. They
will be left as they are.
862 F.2d at 1303.
I would leave the panel opinions just as they are. Although
we have designated the opinions as non-precedential and left
the district court judgment as the final judgment in this action,
the written opinions are an important part of the historical
record.6 Our precedent requires us to perform an equitable
balancing of interests in deciding whether to employ the
extraordinary remedy of vacatur. We have not done so, and
the parties have not provided us with any reason but desire.
6When the full court designates a panel opinion as non-precedential in
the course of granting rehearing en banc, it is engaging in a fundamentally
different process than when a panel elects to designate its own decision as
non-precedential. In the latter case, the panel has made the reasoned deci-
sion that the disposition does not qualify for publication within the criteria
set forth in Ninth Circuit Rule 36-2. However, when rehearing en banc is
granted as to an opinion that has already been designated as precedential
by the panel, the en banc panel is simply removing the precedential effect
of the decision so that the en banc panel has the opportunity to revisit the
merits and so that the panel’s decision (which may be subject to revision)
will not bind other panels of the Court while the case is being reheard. In
such cases, the panel has already made the affirmative determination that
its decision is worthy of publication. Thus, the published panel opinion
was in no sense advisory or deemed unworthy of publication when it was
rendered in the course of deciding this case.
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I respectfully dissent from that portion of the order that
directs vacatur of the panel opinion.
7059 ANIMAL LEGAL DEFENSE v. VENEMAN

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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.

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