Opinion
No. 19-2250
09-22-2021
Tanner HIRSCHFELD; Natalia Marshall, Plaintiffs – Appellants, v. BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; Marvin Richardson, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Merrick B. Garland, Attorney General, Defendants – Appellees. Brady; Giffords Law Center To Prevent Gun Violence; Everytown for Gun Safety Support Fund, Amici Supporting Appellee. Illinois; California; Connecticut; Delaware; the District of Columbia; Hawaii; Massachusetts; Michigan; Minnesota; New Jersey; New Mexico; New York; North Carolina; Oregon; Pennsylvania; Rhode Island; Vermont; Washington; Commonwealth of Virginia ; State of Maryland; March for Our Lives Action Fund, Amici Supporting Rehearing Petition.
Elliott Michael Harding, Harding Counsel PLLC, Charlottesville, VA, for Plaintiffs-Appellants. Thomas T. Cullen, United States District Court, Western District of Virginia, Roanoke, VA, Courtney Lynn Dixon, Kyle T. Edwards, U. S. Department of Justice, Civil Appellate, Joseph H. Hunt, U. S. Department of Justice, Office of Immigration Litigation, Mark B. Stern, U. S. Department of Justice, Civil Rights Division, Thais-Lyn Trayer, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants-Appellees. Angela N. Ellis, Sullivan & Cromwell, LLP, Jonathan Elias Lowy, Christa Nicols, Kelly Sampson, Brady Center To Prevent Gun Violence Legal Action Project, Washington, DC, Jon M. Talotta, Hogan Lovells US LLP, Tysons, VA, for Amicus Supporting Appellee Brady. Janet Carter, Lisa Ebersole, Carina Bentata Gryting, William J. Taylor, Jr., Eric Tirschwell, Everytown Law, Karen S. Kennedy, Darren A. Laverne, Jessica K. Weigel, Kramer Levin Naftalis & Frankel LLP, New York, NY, Angela N. Ellis, Sullivan & Cromwell, LLP, Washington, DC, for Amicus Supporting Appellee Everytown for Gun Safety Support Fund. Angela N. Ellis, Joseph Jackson Froliklong, David Wilfred Gould, IV, Madeline B. Jenks, Robert A. Sacks, Sullivan & Cromwell, LLP, Washington, DC, Hannah Friedman, Esther Sanchez-Gomez, Hannah Shearer, Giffords Law Center To Prevent Gun Violence, San Francisco, CA, J. Adam Skaggs, Giffords Law Center To Prevent Gun Violence, Leonid Traps, Sullivan & Cromwell, LLP, Rachel H. VanGelder, New York, NY, for Amicus Supporting Appellee Giffords Law Center To Prevent Gun Violence. Alex Hemmer, Deputy Solicitor General, Jane Elinor Notz, Kwame Raoul, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Illinois. Robert Bonta, Office of the Attorney General of California, Sacramento, CA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition California. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, William Tong, Office of the Attorney General of Connecticut, Hartford, CT, for Amicus Supporting Rehearing Petition Connecticut. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Kathleen Jennings, Attorney General of Delaware, Wilmington, DE, for Amicus Supporting Rehearing Petition Delaware. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Karl Anthony Racine, Attorney General, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Section IV, Washington, DC, for Amicus Supporting Rehearing Petition The District of Columbia. Clare E. Connors, Attorney General of Hawaii, Honolulu, HI, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Hawaii. Maura Healey, Attorney General, Office of the Attorney General, Boston, MA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Massachusetts. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Dana Nessel, Office of the Attorney General of Michigan, Lansing, MI, for Amicus Supporting Rehearing Petition Michigan. Keith Ellison, Office of the Attorney General, St. Paul, MN, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Minnesota. Andrew Bruck, New Jersey Division of Law & Public Safety, Trenton, NJ, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition New Jersey. Hector Balderas, Office of the Attorney General of New Mexico, Santa Fe, NM, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition New Mexico. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Letitia James, Office of the Attorney General, Albany, NY, for Amicus Supporting Rehearing Petition New York. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Josh Stein, Office of the Attorney General of North Carolina, Raleigh, NC, for Amicus Supporting Rehearing Petition North Carolina. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Ellen F. Rosenblum, Attorney General, Attorney General of Oregon, Salem, OR, for Amicus Supporting Rehearing Petition Oregon. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Josh Shapiro, Office of the Attorney General, Harrisonburg, PA, for Amicus Supporting Rehearing Petition Pennsylvania. Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Peter F. Neronha, Office of the Attorney General, Providence, RI, for Amicus Supporting Rehearing Petition Rhode Island. Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General of Vermont, Montpelier, VT, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Vermont. Robert W. Ferguson, Attorney General, Office of the Attorney General of Washington, Olympia, WA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Washington. Erin B. Ashwell, Mark Rankin Herring, Attorney General, Brittany Marie Jones, Michelle Shane Kallen, Jessica Merry Samuels, Rohiniyurie Tashima, Office of the Attorney General of Virginia, Richmond, VA, for Amicus Supporting Rehearing Petition Commonwealth of Virginia. Brian E. Frosh, Esq., Attorney General, Steven Marshall Sullivan, Assistant Attorney General, Office of the Attorney General of Maryland, Consumer Protection Division, James Nelson Lewis, Esq., Office of the Attorney General of Maryland, Civil Division, Baltimore, MD, for Amicus Supporting Rehearing Petition State of Maryland. Angela N. Ellis, Sullivan & Cromwell, LLP, Washington, DC, for Amicus Supporting Rehearing Petition March for Our Lives Action Fund.
Elliott Michael Harding, Harding Counsel PLLC, Charlottesville, VA, for Plaintiffs-Appellants.
Thomas T. Cullen, United States District Court, Western District of Virginia, Roanoke, VA, Courtney Lynn Dixon, Kyle T. Edwards, U. S. Department of Justice, Civil Appellate, Joseph H. Hunt, U. S. Department of Justice, Office of Immigration Litigation, Mark B. Stern, U. S. Department of Justice, Civil Rights Division, Thais-Lyn Trayer, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants-Appellees.
Angela N. Ellis, Sullivan & Cromwell, LLP, Jonathan Elias Lowy, Christa Nicols, Kelly Sampson, Brady Center To Prevent Gun Violence Legal Action Project, Washington, DC, Jon M. Talotta, Hogan Lovells US LLP, Tysons, VA, for Amicus Supporting Appellee Brady.
Janet Carter, Lisa Ebersole, Carina Bentata Gryting, William J. Taylor, Jr., Eric Tirschwell, Everytown Law, Karen S. Kennedy, Darren A. Laverne, Jessica K. Weigel, Kramer Levin Naftalis & Frankel LLP, New York, NY, Angela N. Ellis, Sullivan & Cromwell, LLP, Washington, DC, for Amicus Supporting Appellee Everytown for Gun Safety Support Fund.
Angela N. Ellis, Joseph Jackson Froliklong, David Wilfred Gould, IV, Madeline B. Jenks, Robert A. Sacks, Sullivan & Cromwell, LLP, Washington, DC, Hannah Friedman, Esther Sanchez-Gomez, Hannah Shearer, Giffords Law Center To Prevent Gun Violence, San Francisco, CA, J. Adam Skaggs, Giffords Law Center To Prevent Gun Violence, Leonid Traps, Sullivan & Cromwell, LLP, Rachel H. VanGelder, New York, NY, for Amicus Supporting Appellee Giffords Law Center To Prevent Gun Violence.
Alex Hemmer, Deputy Solicitor General, Jane Elinor Notz, Kwame Raoul, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Illinois.
Robert Bonta, Office of the Attorney General of California, Sacramento, CA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition California.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, William Tong, Office of the Attorney General of Connecticut, Hartford, CT, for Amicus Supporting Rehearing Petition Connecticut.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Kathleen Jennings, Attorney General of Delaware, Wilmington, DE, for Amicus Supporting Rehearing Petition Delaware.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Karl Anthony Racine, Attorney General, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Section IV, Washington, DC, for Amicus Supporting Rehearing Petition The District of Columbia.
Clare E. Connors, Attorney General of Hawaii, Honolulu, HI, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Hawaii.
Maura Healey, Attorney General, Office of the Attorney General, Boston, MA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Massachusetts.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Dana Nessel, Office of the Attorney General of Michigan, Lansing, MI, for Amicus Supporting Rehearing Petition Michigan.
Keith Ellison, Office of the Attorney General, St. Paul, MN, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Minnesota.
Andrew Bruck, New Jersey Division of Law & Public Safety, Trenton, NJ, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition New Jersey.
Hector Balderas, Office of the Attorney General of New Mexico, Santa Fe, NM, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition New Mexico.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Letitia James, Office of the Attorney General, Albany, NY, for Amicus Supporting Rehearing Petition New York.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Josh Stein, Office of the Attorney General of North Carolina, Raleigh, NC, for Amicus Supporting Rehearing Petition North Carolina.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Ellen F. Rosenblum, Attorney General, Attorney General of Oregon, Salem, OR, for Amicus Supporting Rehearing Petition Oregon.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Josh Shapiro, Office of the Attorney General, Harrisonburg, PA, for Amicus Supporting Rehearing Petition Pennsylvania.
Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Peter F. Neronha, Office of the Attorney General, Providence, RI, for Amicus Supporting Rehearing Petition Rhode Island.
Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General of Vermont, Montpelier, VT, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Vermont.
Robert W. Ferguson, Attorney General, Office of the Attorney General of Washington, Olympia, WA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Washington.
Erin B. Ashwell, Mark Rankin Herring, Attorney General, Brittany Marie Jones, Michelle Shane Kallen, Jessica Merry Samuels, Rohiniyurie Tashima, Office of the Attorney General of Virginia, Richmond, VA, for Amicus Supporting Rehearing Petition Commonwealth of Virginia.
Brian E. Frosh, Esq., Attorney General, Steven Marshall Sullivan, Assistant Attorney General, Office of the Attorney General of Maryland, Consumer Protection Division, James Nelson Lewis, Esq., Office of the Attorney General of Maryland, Civil Division, Baltimore, MD, for Amicus Supporting Rehearing Petition State of Maryland.
Angela N. Ellis, Sullivan & Cromwell, LLP, Washington, DC, for Amicus Supporting Rehearing Petition March for Our Lives Action Fund.
Before AGEE, WYNN, and RICHARDSON, Circuit Judges.
Motion to intervene or join new parties denied; motion to vacate prior opinions granted; remanded with directions to dismiss. Judge Richardson wrote the opinion, in which Judge Agee joined. Judge Wynn wrote an opinion concurring in the result.
RICHARDSON, Circuit Judge:
Plaintiff Natalia Marshall, while under the age of 21, wished to purchase a handgun from a federally licensed firearms dealer and sued to challenge the constitutionality of the federal laws and regulations which prohibited her from doing so while she was 18–20 years old. A divided panel of this court found those laws violated the text, structure, history, and tradition of the Second Amendment. After the opinion issued but before the mandate, Marshall turned 21. And that made her claims moot. Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case. So it must be dismissed as moot.
Once a case is rendered moot on appeal, we customarily vacate the opinions and remand with direction to dismiss. See United States v. Munsingwear, Inc. , 340 U.S. 36, 39–40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) ; Norfolk S. Ry. v. City of Alexandria , 608 F.3d 150, 161 (4th Cir. 2010). After weighing the equities, we follow that custom here.
I. This case is moot
We, of course, have only the power to adjudicate "Cases" and "Controversies." U.S. Const. art. III, § 2. A "Case" or "Controversy" under Article III no longer exists "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt , 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam)). The case is instead moot and must be dismissed, "[n]o matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit." Id. Here, Marshall challenged the prohibition on buying a handgun from a federally licensed firearms dealer while she was under 21. Once she turned 21, nothing prohibited her from buying the handgun she desired from a dealer of her choice. So her original claims are now moot. See Craig v. Boren , 429 U.S. 190, 192, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
Marshall made no effort to claim she may seek damages.
To try to breathe new life into her claims after they became moot, Marshall alleged for the first time that she wishes to sell handguns to friends under 21. Those private sales would not typically be affected by the challenged laws and regulations. But Marshall seeks to bring those sales within this court's purview by alleging that she wishes to use a federally licensed firearm dealer to facilitate the sales (by, for example, running background checks on her friends). This newly alleged injury was raised for the first time on appeal, and only after the case became moot, so we refuse to consider it here.
See Recordkeeping and Background Check Procedure for Facilitation of Private Party Firearms Transfers , ATF PROCEDURE 2020-2 (Sept. 2, 2020).
A second effort to revive this case by adding new parties also fails. Surely recognizing the mootness concern, Plaintiff's attorney moved in the district court on July 24—the day before Marshall turned 21—to join new parties that might keep the case alive. But the district court lacked jurisdiction to grant the motion. See Doe v. Pub. Citizen , 749 F.3d 246, 258 (4th Cir. 2014) ("[A]n effective notice of appeal divests a district court of jurisdiction to entertain an intervention motion."). Plaintiff's attorney only submitted a motion to our court on July 27, two days after Marshall turned 21. By that time, the case was moot. And we cannot grant a motion to join new parties that was filed after a case is moot. See Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 72–75, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). So the requests to join new parties are denied. This case is moot and must be dismissed.
We have held that a motion to intervene can avoid being mooted by the dismissal of the underlying action if the motion was made when the case was live and the intervenors can still seek a remedy. CVLR Performance Horses, Inc. v. Wynne , 792 F.3d 469, 475 (4th Cir. 2015). But in that case the court had a pending appeal on the intervention issue before the case became moot. Id. And if the appeal succeeded, a properly granted motion to intervene would have prevented the case from ever being moot in the first place. Id. at 476. Here, we did not have a motion before us until after the case was moot, and no valid appeal exists for the district court's denial of the jurisdictionally improper motion.
There is a line of cases in which the Supreme Court has permitted dropping a non-diverse party to cure problems with jurisdiction that existed at the time of filing. See Caterpillar Inc. v. Lewis , 519 U.S. 61, 73, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) ; Newman-Green, Inc. v. Alfonzo-Larrain , 490 U.S. 826, 832–33, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). Those cases seem to indicate that we can cure jurisdictional defects by joining or dropping parties. But these cases addressed issues with complete diversity. Id. Minimal diversity was present. So the Court was curing a problem with statutory jurisdiction, not Article III jurisdiction. See Newman-Green , 490 U.S. at 829 n.1, 109 S.Ct. 2218 ; Caterpillar , 519 U.S. at 68 n.3, 117 S.Ct. 467 ; Grupo Dataflux v. Atlas Glob. Grp., L.P. , 541 U.S. 567, 572, 577–78 n.6, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) ; id. at 584, 588–99, 124 S.Ct. 1920 (Ginsburg, J., dissenting).
We note one case, Mullaney v. Anderson , where the Supreme Court allowed the joinder of several parties with standing under Rule 21 in response to concerns about the standing of the original parties. 342 U.S. 415, 416–17, 72 S.Ct. 428, 96 L.Ed. 458 (1952). This implies that whether the original parties had standing was irrelevant because the joinder of proper parties could cure any lack of Article III jurisdiction. But we do not take such assumptions as holdings. See Webster v. Fall , 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925).
II. The opinions are vacated
As the case is moot and must be dismissed, the government asks that we also vacate both the panel opinions and district court opinions. This is indeed our customary practice. See Norfolk S. Ry. , 608 F.3d at 161. But it is not, as once commonly thought, mandatory. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship , 513 U.S. 18, 25-26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). Rather, it is an "equitable tradition" informed by equitable reasoning. Id. In determining whether to exercise the discretion to vacate our panel decision (and that of the district court), we are "informed almost entirely, if not entirely, by the twin considerations of fault and public interest." Valero Terrestrial Corp. v. Paige , 211 F.3d 112, 118 (4th Cir. 2000).
Before Bancorp , some believed dictum in Munsingwear required vacating opinions after the case became moot. See, e.g. , In re Ghandtchi , 705 F.2d 1315, 1316 (11th Cir. 1983). But see Clipper v. Takoma Park , 898 F.2d 18 (4th Cir. 1989) (en banc). But Bancorp explained that the Munsingwear "mandate" was dicta and that equitable principles govern the practice. Bancorp , 513 U.S. at 23, 115 S.Ct. 386 ; see also Azar v. Garza , ––– U.S. ––––, 138 S. Ct. 1790, 1792, 201 L.Ed.2d 118 (2018) ("Because this practice is rooted in equity, the decision whether to vacate turns on ‘the conditions and circumstances of the particular case.’ "); Valero Terrestrial Corp. v. Paige , 211 F.3d 112, 121 (4th Cir. 2000) ; SD Voice v. Noem , 987 F.3d 1186, 1190-91 (8th Cir. 2021).
We cannot assign fault to either party here. Marshall was bound to turn 21 in time. And though the efforts to remedy mootness came at the eleventh hour, they do not reflect any fault in Marshall's original case. So our decision turns on the public interest.
There are strong reasons to avoid vacatur here. The constitutional interests implicated and the short timeframe in which to challenge the restrictions mean there is a strong public interest in this precedent. And "[j]udicial precedents are presumptively correct and valuable to the legal community as a whole." Bancorp , 513 U.S. at 26, 115 S.Ct. 386 ; see also Humphreys v. Drug Enf't Admin. , 105 F.3d 112, 116 (3d Cir. 1996) ; Hall v. Louisiana , 884 F.3d 546, 553 (5th Cir. 2018).
Yet the public interest still favors vacating the opinions. To begin, our "customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court's judgment" and remand with directions to dismiss. Norfolk S. Ry. , 608 F.3d at 161. Adherence to our custom promotes the "orderly operation of the federal judicial system" and thus protects the public interest. Bancorp , 513 U.S. at 27, 115 S.Ct. 386. This course also "clears the path for future relitigation of the issues between the parties." Alvarez v. Smith , 558 U.S. 87, 94, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) (quoting Munsingwear , 340 U.S. at 40, 71 S.Ct. 104 ). That the case became moot by happenstance also favors vacatur. Bancorp , 513 U.S. at 25 n.3, 115 S.Ct. 386 ("[M]ootness by happenstance provides sufficient reason to vacate."). And we are reluctant to leave a preclusive judgment standing against a federal agency responsible for enforcing federal law while cutting off the appellate process, particularly where the panel is split in its views.
Finally, we note that the public and the "legal community as a whole," Bancorp , 513 U.S. at 26, 115 S.Ct. 386, will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source. See Hirschfeld v. Bureau of Alcohol, Tobacco, Firearms & Explosives , 5 F.4th 407 (4th Cir. 2021) (now vacated as moot ).
As a result, we deny the motion to intervene or join new parties; we reject the attempt to recast Marshall's injuries; we find the case moot; we remand to the district court with directions to dismiss as moot; and we vacate the prior panel opinions and the opinions of the district court.
MOTIONS GRANTED IN PART AND DENIED IN PART; VACATED AND REMANDED WITH DIRECTIONS TO DISMISS AS MOOT
WYNN, Circuit Judge, concurring in the result of the Orders of Dismissal and Vacatur:
I join my fine colleague's opinion in adhering to our usual practice of vacatur in mooted cases like this one. I write separately to emphasize that while, thanks to today's technology, all vacated opinions remain available in the public sphere, they have no legal value. "Once vacated, [a prior opinion] los[es] precedential value within this circuit." In re Naranjo , 768 F.3d 332, 344 n.15 (4th Cir. 2014) (quoting In re Grand Jury Matter , 926 F.2d 348, 350 (4th Cir. 1991) ); see also Quesinberry v. Life Ins. Co. of N. Am. , 987 F.2d 1017, 1029 n.10 (4th Cir. 1993) (panel opinion vacated upon grant of rehearing en banc has "no precedential value"). The outcome here is that not only is the panel opinion vacated, but the entire matter including the district court's decision is moot and therefore vacated. That is, this action from its inception is mooted.
We have previously assumed without deciding "that when a judgment of this Court has been vacated by the Supreme Court, the opinion containing that judgment is still entitled to some precedential value" as to those grounds not covered by the Supreme Court's ruling. E.E.O.C. v. City of Norfolk Police Dep't , 45 F.3d 80, 83 (4th Cir. 1995). But we noted that it "is not at all clear" that that is the case. Id. at 83 n.4. In any event, that is not what happened here.
To be sure, vacated opinions do not even bear the label of dicta. So if there is any persuasive value arising from vacated opinions, it can be no more than the value of newspaper editorials. Thus, my fine colleagues’ statement that "the panel and dissent will remain available as a persuasive source" means, like newspaper editorials, readers may themselves be persuaded one way or the other by our exchanges, but these vacated opinions have no persuasive value whatsoever as to how this Court would decide this issue.
This point is especially important here, where the opinions arising from our deeply divided panel became moot before the Court's en banc process could be undertaken. It stands to reason that because the now-vacated panel majority opinion created a circuit split while overturning a fifty-year-old federal law, this matter surely met the requirements of Rule 35 for en banc review.
With that said, I join in the dismissal of this matter as moot and the vacatur of the panel opinions. Perhaps our circuit will again confront this issue, but today is not that day.