Do No Harm, a Virginia Nonprofit Corporation v. William Lee, Governor of Tennessee

When a civil appeal becomes moot before review is complete, the appellate court must decide whether the unreviewed judgment below should remain in place. In United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), this Court described vacatur as the “established practice.” But the courts of appeals disagree about the governing standard when the appellant did not cause mootness. Most treat vacatur as the ordinary disposition; three others separately weigh the public interest; and the Sixth Circuit alone requires even a blameless appellant to prove that the unreviewed judgment would have preclusive effect in later litigation. This case squarely presents the conflict. Tennessee repealed the challenged laws during the appeal. Although Petitioner did not cause mootness and Respondent did not oppose vacatur, a divided panel left the district court’s judgment in place solely because Petitioner had not shown future preclusive effect. The question presented is: What standard governs vacatur of an unreviewed district court judgment when a civil appeal becomes moot through no fault of the appellant?