Opposition To Plaintiffs’ Motion To Clarify
- Date
- 2023-12-21
Summary
The federal government's Opposition to Plaintiffs' Motion to Clarify, filed December 21, 2023 as Document 331 in Feds for Medical Freedom v. Biden, No. 22-40043, in the U.S. Court of Appeals for the Fifth Circuit. The motion it opposes asked the court to declare that its en banc opinion, which affirmed an injunction against an executive order requiring federal employees to be vaccinated against COVID-19, keeps its stare decisis effect. The opposition argues that the Supreme Court's vacatur of the judgment under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), deprives that opinion of precedential force, citing O'Connor v. Donaldson, Ridley v. McCall and Bennett v. West Texas State University. It answers the plaintiffs' contrary arguments in turn and asks that the motion be denied.
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Cite this document
“Opposition To Plaintiffs’ Motion To Clarify.”
Dated 2023-12-21. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/22-40043-recap-gov-uscourts-ca5-206309-331-0-4f6377ebfa/
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Case: 22-40043 Document: 331 Page: 1 Date Filed: 12/21/2023
No. 22-40043
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FEDS FOR MEDICAL FREEDOM; LOCAL 918, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES; HIGHLAND ENGINEERING,
INCORPORATED; RAYMOND A. BEEBE, JR.; JOHN ARMBRUST; et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., in his official capacity as President of the United States;
THE UNITED STATES OF AMERICA; PETE BUTTIGIEG, in his official capac-
ity as Secretary of Transportation; DEPARTMENT OF TRANSPORTATION;
JANET YELLEN, in her official capacity as Secretary of Treasury; et al.,
Defendants-Appellants.
On Appeal from the United States District Court
for the Southern District of Texas
OPPOSITION TO PLAINTIFFS’ MOTION TO CLARIFY
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General
ALAMDAR S. HAMDANI
United States Attorney
SARAH E. HARRINGTON
Deputy Assistant Attorney General
CHARLES W. SCARBOROUGH
SARAH CARROLL
CASEN B. ROSS
DANIEL WINIK
Attorneys, Appellate Staff
Civil Division, Room 7245
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 305-8849
Case: 22-40043 Document: 331 Page: 2 Date Filed: 12/21/2023
Plaintiffs’ motion to “clarify” that this Court’s en banc opinion “retains its stare
decisis effect” (Mot. 1) should be denied. This Court and the Supreme Court have long
held that when a judgment is vacated under United States v. Munsingwear, Inc., 340 U.S. 36
(1950), the opinion issued in support of that judgment no longer has precedential force.
Plaintiffs invite this Court not to “clarify” but to defy that well-established effect of the
Supreme Court’s ruling. And because the Supreme Court remanded only for this Court
to execute the required vacatur of the preliminary injunction on mootness grounds, the
Court cannot properly do more than that.
1. In March 2023, this Court issued an en banc opinion affirming a nation-
wide injunction against the enforcement of an executive order requiring federal em-
ployees to be vaccinated against COVID-19. After the rescission of the executive order
mooted the appeal, and thus deprived the government of the opportunity to obtain
Supreme Court review of this Court’s ruling, the government asked the Supreme Court
to “vacate [this Court’s] decision” under Munsingwear. Pet. 26, Biden v. Feds for Med. Free-
dom, No. 23-60 (U.S. July 21, 2023). Munsingwear recognizes that the Supreme Court’s
“established practice,” in civil cases that “become moot” pending Supreme Court re-
view, “is to reverse or vacate the judgment below and remand with a direction to dis-
miss.” 340 U.S. at 39.
The petition explained (at 28) that “neither justice nor the public interest would
be served by forcing the Executive Branch to choose between maintaining a policy that
Case: 22-40043 Document: 331 Page: 3 Date Filed: 12/21/2023
it has concluded is no longer warranted and acquiescing in a precedential judicial deci-
sion that the Executive Branch believes would be contrary to its prerogatives and harm-
ful to the public interest as a whole.” Plaintiffs vigorously opposed the government’s
request, including on the theory that it was “important that [this Court’s] decision re-
main on the books as a warning to the future.” Br. in Opp. 36, Biden v. Feds for Med.
Freedom, No. 23-60 (U.S. Aug. 23, 2023). Plaintiffs urged the Supreme Court not to
“erase” the government’s “unreviewed loss” in this Court “from the books.” Id. at 39-
40. The briefing thus could not have made clearer what both sides understood the
stakes to be: If the Supreme Court granted the government’s proposed relief, this
Court’s decision would no longer have precedential effect. Over plaintiffs’ objection,
the Supreme Court granted the relief the government had requested. Biden v. Feds for
Med. Freedom, 2023 WL 8531839 (U.S. Dec. 11, 2023); see Pet. 29 (proposed relief).
2. Having told the Supreme Court that granting the government’s request
would have the effect of “eras[ing]” this Court’s opinion “from the books” (Br. in Opp.
39-40), plaintiffs seem to have changed their minds since the Supreme Court ruled
against them: They now characterize that ruling as having no effect on the opinion’s
precedential character. Plaintiffs were right the first time—and clearly so, under prece-
dents of both this Court and the Supreme Court.
a. The Supreme Court has stated unequivocally that, “[o]f necessity,” a “de-
cision vacating the judgment of the Court of Appeals deprives that court’s opinion of
precedential effect.” O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975). Plaintiffs
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attempt to distinguish that language as inapplicable to Munsingwear vacatur, but they fail
to mention that the Supreme Court cited Munsingwear—and no other case—for its char-
acterization of the effect of vacatur. Id. (citing Munsingwear, 340 U.S. 36). Nor do they
mention Los Angeles County v. Davis, 440 U.S. 625 (1979), which makes the same point
without any possible ambiguity: In that case, the Supreme Court vacated the court of
appeals’ “judgment” under Munsingwear, id. at 634, then repeated O’Connor’s statement
that the vacatur “‘deprive[d]’” the court of appeals’ “‘opinion of precedential effect,’”
id. at 634 n.6. O’Connor and Davis alone are fatal to plaintiffs’ position.
The Supreme Court’s statements in O’Connor and Davis are bolstered by the
Court’s ruling in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
“that mootness by reason of settlement does not justify vacatur of a judgment under
review,” id. at 29. In reaching that unanimous conclusion, the Court made clear its
understanding that the vacatur of a judgment deprives the supporting opinion of prec-
edential effect. For example, the Court identified the “public interest” in maintaining
“‘[j]udicial precedents,’” which “‘are presumptively correct and valuable to the legal
community,’” as an “equitable” consideration weighing against vacatur. Id. at 26-27.
The Court also referred to vacating “cases” and “‘decision[s],’” id. at 27, without distin-
guishing them from “judgments,” and opined that the excessive use of vacatur would
undermine “the benefits that flow to litigants and the public from the resolution of
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legal questions,” id. None of that analysis would have made sense had the Court sub-
scribed to plaintiffs’ view that the vacatur of a judgment does not disturb the preceden-
tial force of the supporting opinion.
The Supreme Court’s recent decision in Acheson Hotels, LLC v. Laufer, 2023 WL
8378965 (U.S. Dec. 5, 2023), is similarly instructive. There, the Court vacated the court
of appeals’ judgment under Munsingwear upon concluding that the case had become
moot. Id. at *2. In an opinion concurring in the judgment, Justice Jackson objected to
the routine use of Munsingwear vacatur in moot cases, principally because of what she
regards as the impropriety “of uprooting presumptively valid legal precedents” because
the case in which they were issued becomes moot. Id. at *10. Justice Jackson’s opinion
makes clear that, like the unanimous Court in Bancorp, she understands the vacatur of a
judgment under Munsingwear to “uproot[]” the “precedent[ial]” character of the opinion
supporting the judgment; indeed, like the Court in Bancorp, she uses the terms “opinion”
and “judgment” interchangeably. See id. (“[I]n the absence of any demonstrated harm-
related justification for vacating a lower court’s opinion, we should conclude that ‘[t]he
“public interest” … is generally better served by leaving appellate judgments intact.’”
(quoting Alvarez v. Smith, 558 U.S. 87, 98 (Stevens, J., concurring in part and dissenting
in part))). If the seven-Justice majority in Acheson Hotels disagreed with that characteri-
zation, it would presumably have said so. Yet the majority responded not by questioning
Justice Jackson’s understanding of Munsingwear vacatur but simply by stating that the
Court’s “Munsingwear practice is well settled.” Id. at *2.
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b. This Court’s precedents are equally fatal to plaintiffs’ theory. Like the Su-
preme Court, this Court has repeatedly and unequivocally stated that the vacatur of a
judgment under Munsingwear deprives the opinion supporting that judgment of prece-
dential effect. The most thorough discussion is in Ridley v. McCall, 496 F.2d 213 (5th
Cir. 1974) (per curiam). There, the district court had regarded its ruling as “compelled
by” a prior en banc decision of this Court, id. at 214 (citing Scarpa v. U.S. Bd. of Parole,
477 F.2d 278 (5th Cir. 1973) (en banc)), but the Supreme Court had summarily vacated
this Court’s “[j]udgment” in that case and remanded for this Court to consider whether
that case was moot, Scarpa v. U.S. Bd. of Parole, 414 U.S. 809 (1973). On remand, this
Court—without saying anything about the prior en banc opinion—agreed that the case
had become moot, vacated the district court’s ruling, and remanded for the district court
to dismiss the case. Scarpa v. U.S. Bd. of Parole, 501 F.2d 992 (5th Cir. 1973) (en banc).
As a result of those developments, the Court explained in Ridley, the en banc opinion
in Scarpa “has no precedential value.” 496 F.2d at 214; see also Cruz v. Skelton, 543 F.2d
86, 88-89 (5th Cir. 1976) (observing that “Scarpa was stripped of value as a precedent
by its dismissal for mootness, which consigned it to limbo along with” two out-of-Cir-
cuit decisions that had similarly been vacated on mootness grounds (footnote omitted)).
This Court made the same point in Bennett v. West Texas State University, 799 F.2d
155 (5th Cir. 1986). The plaintiffs there invoked Iron Arrow Honor Society v. Heckler, 702
F.2d 549 (5th Cir. 1983), in which the Supreme Court had later vacated “the judgment”
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under Munsingwear, Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 72-73 (1983) (per cu-
riam). This Court explained in Bennett, citing Munsingwear, that “the decision by the
Supreme Court to vacate Iron Arrow eliminates any precedential value it might have.”
799 F.2d at 159 n.3.
Although plaintiffs claim (Mot. 15) that it is “difficult to determine the … ra-
tionale and thus the scope” of the “holding[s]” in Ridley and Bennett, there is nothing
remotely unclear about them. In both cases, the Court squarely confronted the question
whether the vacatur of a prior judgment on mootness grounds deprived an opinion
supporting that judgment of precedential effect. And in both cases, it answered yes.
This is simply not an open question, as a matter of this Court’s precedent or the Su-
preme Court’s.
3. Plaintiffs’ contrary arguments are unpersuasive.
First, plaintiffs contend (Mot. 4) that “[i]f the Supreme Court had intended to
vacate this Court’s opinion,” as opposed to only this Court’s “judgment,” “it would have
said so.” But as plaintiffs correctly note on the prior page, the Supreme Court “reviews
judgments, not opinions.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842 (1984). That is why the action it took here was to vacate this Court’s “judg-
ment.” 2023 WL 8531839, at *1. In each of the cases discussed above, where this
Court and the Supreme Court have treated a Munsingwear vacatur as depriving the court
of appeals’ opinion of precedential force, the Supreme Court’s vacatur order used the
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same phrasing. See Iron Arrow, 464 U.S. at 73 (“vacate the judgment”); Davis, 440 U.S.
at 634 (same); Scarpa, 414 U.S. at 809 (“[j]udgment vacated”).
Second, plaintiffs cite various cases (Mot. 4-5), including this Court’s decision in
United States v. Kirk, 528 F.2d 1057 (5th Cir. 1976), for the proposition that where the
Supreme Court reviews a court of appeals decision, that decision may later be treated
as binding as to issues the Supreme Court did not address. In Kirk, for example, this
Court treated its prior opinion in United States v. Rogers, 488 F.2d 512 (5th Cir. 1974) (per
curiam), as binding regarding the showing of intent required to prove a criminal charge,
when the Supreme Court found “it unnecessary to reach that” issue in reversing the
judgment on other grounds, Rogers v. United States, 422 U.S. 35, 36 (1975). But those
cases differ from this one, because it is possible to discern from the Supreme Court’s
reasoning the parts of the court of appeals’ opinion that the Supreme Court saw fit to
disturb. When the Supreme Court vacates a court of appeals’ judgment under Mun-
singwear, by contrast, it does so because the mootness of the appeal has precluded Su-
preme Court review of any of the court of appeals’ holdings. The vacatur thus cate-
gorically deprives the court of appeals’ opinion of precedential effect—as, again, both
the Supreme Court and this Court have repeatedly held. This Court explained Kirk’s
consistency with Ridley in Central Pines Land Co. v. United States, 274 F.3d 881, 893 n.57
(5th Cir. 2001).
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Third, plaintiffs invoke (Mot. 10-11) the rule that panels of this Court “‘abide by
a prior … decision’” of this Court “‘until the decision is overruled, expressly or implic-
itly,’” by the Supreme Court or the en banc court. Gahagan v. USCIS, 911 F.3d 298, 302
(5th Cir. 2018). But that is simply a “rule of orderliness,” id., establishing that only the
en banc Court or the Supreme Court—and not a three-judge panel—are free to con-
clude that circuit precedents should no longer be binding. Here, the Supreme Court
has concluded that this Court’s precedent should no longer be binding; that is what
follows from Munsingwear vacatur, as this Court and the Supreme Court have long held.
Fourth, plaintiffs note (Mot. 4, 13) that some courts, including this one, have de-
clined to vacate their prior opinions on motions to stay an injunction pending appeal
when the appeal from the injunction ultimately becomes moot. But that is simply be-
cause they have concluded that the equities did not warrant vacatur of a stay opinion in
a given case. U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 675 (5th Cir. 2023) (finding
no showing “that the public interest would be served by vacatur”); cf. id. at 676 (Graves,
J., concurring in part and dissenting in part) (disagreeing with that case-specific appraisal
of the equities). The equitable question whether vacatur is warranted is not presented
here, because the Supreme Court has already resolved that question in favor of vacatur.
Moreover, although plaintiffs cite the Eleventh Circuit’s decision not to vacate a prior
stay ruling in Hand v. DeSantis, 946 F.3d 1272, 1275 n.5 (11th Cir. 2020), they fail to
mention the Eleventh Circuit’s subsequent recognition that the otherwise-“preceden-
tial” character of a particular stay ruling could be a reason to vacate it, Democratic Exec.
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Comm. of Fla. v. National Republican Senatorial Comm., 950 F.3d 790, 795 n.2 (11th Cir.
2020) (per curiam). That observation would have made no sense unless the Eleventh
Circuit believed that vacatur has the effect of depriving a decision of precedential force.
Fifth, plaintiffs suggest (Mot. 12-13) that Munsingwear vacatur is not warranted for
rulings on a preliminary injunction because such rulings lack res judicata effect. But
again, that argument bears on the equitable question whether vacatur is warranted—
which is not at issue here, because the Supreme Court resolved it in favor of vacatur
even after plaintiffs made the same argument about the preliminary-injunction posture
(Br. in Opp. 38-39). To the extent the preliminary-injunction posture has any relevance
to the question actually before the Court, it weighs against plaintiffs, because it makes
clear that the Supreme Court’s decision to grant vacatur was not meant solely to prevent
this Court’s judgment from having res judicata effect.
Sixth, plaintiffs suggest (Mot. 16-17) that “this Court’s recent practice” has de-
parted from its precedent recognizing that Munsingwear vacatur of a judgment deprives
the supporting opinion of precedential force. That is incorrect.
As an initial matter, it is irrelevant that post-remand orders issued by the panels
in In re Abbott, 956 F.3d 696 (5th Cir. 2020), In re Abbott, 954 F.3d 772 (5th Cir. 2020),
and Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015), did not expressly address the effect of
the Supreme Court’s Munsingwear vacatur orders on the precedential status of this
Court’s opinions in those cases. That was unnecessary for the same reason it is unnec-
essary to “clarify” the effect of the Supreme Court’s ruling here: Precedent makes clear
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that the Munsingwear vacatur of a judgment deprives a supporting opinion of preceden-
tial effect.
Indeed, it would have been improper for the Court to opine in In re Abbott and
Ivy about the effects of the Supreme Court’s vacatur in those cases, just as it would be
improper for the Court to do so here. To the extent there is any serious dispute about
the effect of the Supreme Court’s vacatur in this case, it can be resolved in future cases
that concretely present the issues addressed in this Court’s opinion, just as occurred for
Scarpa (in Ridley and Cruz) and for Iron Arrow (in Bennett). Here, however, the Court’s
role is quite limited: “When a case is remanded from the Supreme Court with specific
instructions, this [C]ourt must confine its review to the limitations established by the
Supreme Court’s remand order.” United States v. Duarte-Juarez, 441 F.3d 336, 340 (5th
Cir. 2006) (per curiam). In In re Abbott and Ivy as well as this case, the Supreme Court
has remanded solely for the purpose of carrying out the required dismissal on mootness
grounds. See Feds for Med. Freedom, 2023 WL 8531839, at *1 (“direct the District Court
to vacate as moot”); Planned Parenthood Ctr. for Choice v. Abbott, 141 S. Ct. 1261 (2021)
(“dismiss the case as moot”); Ivy v. Morath, 580 U.S. 956 (2016) (“dismiss as moot”). The
Court lacks the power to do more.
Nor is it illuminating that the Court has cited the Ivy opinion and one of the In
re Abbott opinions in some later cases. No one doubts that an opinion in support of a
vacated judgment can be cited or that it can provide valuable guidance to the extent
later panels find it persuasive. But even judges and Justices who have sometimes used
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the word “precedential” to refer to such opinions have acknowledged that their force is
only persuasive and not binding. See, e.g., Davis, 440 U.S. at 646 n.10 (Powell, J., dissent-
ing) (“Although a decision vacating a judgment necessarily prevents the opinion of the
lower court from being the law of the case, the expressions of the court below on the
merits, if not reversed, will continue to have precedential weight and, until contrary
authority is decided, are likely to be viewed as persuasive authority if not the governing
law of the Ninth Circuit.” (citations omitted)). Neither of this Court’s subsequent ci-
tations of In re Abbott suggests that the panel wanted to depart from In re Abbott’s hold-
ing but felt unable to do so. See United States v. Abbott, 85 F.4th 328, 337-338 (5th Cir.
2023) (discussing In re Abbott as consistent with “multiple” other holdings); Valentine v.
Collier, 993 F.3d 270, 280 (5th Cir. 2021) (citing In re Abbott for an uncontroversial prop-
osition). Nor is that true of the Court’s single subsequent citation of the Ivy opinion,
in Texas Workforce Commission v. U.S. Department of Education, 973 F.3d 383 (5th Cir. 2020),
which relied on that opinion solely as “informative,” and solely for the proposition that
it presented a “reasonable … interpretation[]” of a statutory provision that “con-
trast[ed]” with other interpretations, thus supporting the conclusion that the provision
was “ambiguous.” Id. at 388. Moreover, the majority in Texas Workforce Commission did
not say that it disagreed with the dissent’s observation that the Ivy opinion was “no
longer precedential,” id. at 394 n.2 (Clement, J., dissenting)—an observation particularly
compelling because it came from the author of the Ivy opinion.
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Finally, plaintiffs cite various out-of-Circuit opinions that stand, they say, for the
proposition that the Munsingwear vacatur of a judgment does not deprive the supporting
opinion of precedential effect. As an initial matter, those opinions are irrelevant be-
cause this Court’s precedent is clear. But the opinions also lend little persuasive support
to plaintiffs’ position. The Third Circuit’s decision in Granville-Smith v. Granville-Smith,
214 F.2d 820 (3d Cir. 1954) (per curiam), aff ’d, 349 U.S. 1 (1955), came just four years
after Munsingwear itself and long before the Supreme Court clarified the effect of Mun-
singwear vacatur in O’Connor and Davis. The Seventh Circuit’s decisions in In re Smith,
964 F.2d 636 (7th Cir. 1992), and Harris v. Board of Governors of the Federal Reserve System,
938 F.2d 720 (7th Cir. 1991), addressed the vacatur of district-court orders, which lack
precedential effect to begin with. 964 F.2d at 638; 938 F.2d at 723. In a prior case, the
Seventh Circuit understood the effect of the Supreme Court’s vacatur in Scarpa exactly
as this Court did. See Garafola v. Benson, 505 F.2d 1212, 1215 n.4 (7th Cir. 1974) (“Of
course, Scarpa’s subsequent history makes the case of no precedential value.”). The
Tenth Circuit’s decision in Oklahoma Radio Associates v. FDIC, 3 F.3d 1436 (10th Cir.
1993), addressed whether that court should vacate its own opinion in a case that had
become moot because of settlement—a scenario that, as the Supreme Court held a year
later in Bonner Mall, does not implicate the concerns animating Munsingwear at all. The
Federal Circuit’s decision in Hyosung TNS Inc. v. International Trade Commission, 926 F.3d
1353 (Fed. Cir. 2019), said only that an appeal could not be saved from mootness by
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the “possible stare decisis effect of ” an opinion the court might issue. Id. at 1359 (em-
phasis added). And the district-court opinion in United States ex rel. Morgan v. Wolfe, 232
F. Supp. 85 (S.D.N.Y. 1964), addressed the distinct question whether a court should
follow a vacated decision of a higher court where the reasoning of the decision has not
been disturbed. Id. at 101.
That leaves Judge Robinson’s dissent from the D.C. Circuit’s opinion in Retail
Store Employees Union v. NLRB, 1978 WL 4933 (D.C. Cir. Dec. 5, 1978). The extent of
plaintiffs’ reliance on that solo dissent from an unpublished opinion is remarkable in
several respects. One is that the opinion was itself superseded by the D.C. Circuit’s
grant of rehearing en banc, and the en banc opinion—per Judge Robinson himself—
takes no position as to whether the vacatur of the prior judgment “robbed the accom-
panying opinion of the precedential force it otherwise would have commanded.” Retail
Store Emps. Union v. NLRB, 627 F.2d 1133, 1142 n.62 (D.C. Cir. 1979), rev’d, 447 U.S. 607
(1980). Another is that the opinion never cited the Supreme Court’s decision in O’Con-
nor and predated the Supreme Court’s decision in Davis. And another—perhaps most
relevant here—is that the opinion expressly noted that this Court had taken a different view
of the issue. See 1978 WL 4933, at *8 & n.15 (“Only the Fifth Circuit has declared that
vacatur of its judgment for mootness implicitly deprives the attendant opinion of prec-
edential effect.” (citing Ridley and Cruz)).
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CONCLUSION
The motion to clarify should be denied because the Supreme Court’s vacatur
order clearly has the effect of depriving this Court’s en banc opinion of precedential
force, and because this Court lacks power to do more than carry out the Supreme
Court’s mandate. Because this Court’s prior decisions dictate the proper resolution of
the motion, the government does not believe oral argument is necessary, but the gov-
ernment would of course be pleased to present oral argument if it would assist the
Court.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General
ALAMDAR S. HAMDANI
United States Attorney
SARAH E. HARRINGTON
Deputy Assistant Attorney General
CHARLES W. SCARBOROUGH
SARAH CARROLL
CASEN B. ROSS
/s/ Daniel Winik
DANIEL WINIK
Attorneys, Appellate Staff
Civil Division, Room 7245
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 305-8849
Daniel.L.Winik@usdoj.gov
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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(g), I hereby certify that this
opposition complies with Federal Rule of Appellate Procedure 27(d)(1)(E) because it
has been prepared in 14-point Garamond, a proportionally spaced font, and that it
complies with the type-volume limitation of Federal Rule of Appellate Procedure
27(d)(2)(A) because it contains 3,622 words, according to Microsoft Word.
/s/ Daniel Winik
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