American Association of University Professors, American Federation of Teachers v. United States Department of Justice , Todd Blanche

25-1529
Am. Ass'n of Univ. Professors et al. v. U.S. Dep't of Just. et al.
UNITED S TATES COURT OF APPEALS
F OR THE S ECOND CIRCUIT
August Term 2025
(Submitted: March 12, 2026 Decided: May 14, 2026)
Docket No. 25-1529
AMERICAN ASSOCIATION OF UNIVERSITY P ROFESSORS,
AMERICAN F EDERATION OF T EACHERS,
Plaintiffs-Appellants,
- against -
UNITED S TATES DEPARTMENT OF J USTICE , T ODD BLANCHE , IN HIS OFFICIAL
CAPACITY AS THE A CTING U.S. ATTORNEY G ENERAL , LEO T ERRELL , IN HIS
OFFICIAL CAPACITY AS SENIOR COUNSEL TO THE ASSISTANT ATTORNEY
G ENERAL FOR CIVIL R IGHTS AND H EAD OF THE DOJ T ASK F ORCE TO C OMBAT
ANTI -SEMITISM, UNITED STATES DEPARTMENT OF EDUCATION, LINDA
MC M AHON, IN HER OFFICIAL CAPACITY AS THE U.S. SECRETARY OF EDUCATION,
T HOMAS E. W HEELER, IN HIS OFFICIAL CAPACITY AS ACTING G ENERAL
COUNSEL OF THE U.S. DEPARTMENT OF EDUCATION, UNITED STATES
DEPARTMENT OF H EALTH AND H UMAN S ERVICES, R OBERT F. KENNEDY , J R., IN
HIS OFFICIAL CAPACITY AS THE U.S. SECRETARY OF H EALTH AND H UMAN
SERVICES , SEAN R. K EVENEY, IN HIS OFFICIAL CAPACITY AS ACTING G ENERAL
COUNSEL OF THE U.S. DEPARTMENT OF H EALTH AND H UMAN SERVICES,
N ATIONAL I NSTITUTES OF H EALTH , M ATTHEW J. MEMOLI , IN HIS OFFICIAL
CAPACITY AS THE A CTING DIRECTOR OF THE N ATIONAL I NSTITUTES OF H EALTH ,

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UNITED S TATES G ENERAL SERVICES A DMINISTRATION , STEPHEN EHIKIAN, IN HIS
OFFICIAL CAPACITY AS ACTING ADMINISTRATOR OF THE U.S. G ENERAL
SERVICES ADMINISTRATION, J OSH G RUENBAUM, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE F EDERAL ACQUISITION SERVICE ,
Defendants-Appellees.*
O N MOTION TO D ISMISS THE A PPEAL ,
V ACATE THE ORDER OF THE D ISTRICT C OURT, AND
R EMAND WITH INSTRUCTIONS TO D ISMISS AS MOOT
Before:
C HIN, MENASHI, and K AHN, Circuit Judges.
Joint motion to dismiss appeal, vacate order of United States District
Court for the Southern District of New York (Vyskocil, J.), and remand with
instructions to dismiss case as moot. Motion G RANTED.
Judge Menashi dissents in a separate opinion.
Matthew J. Murray, Eve H. Cervantez, Connie K. Chan,
Juhyung Harold Lee, Jonathan Rosenthal,
Altshuler Berzon LLP, San Francisco, CA; Rachel
Goodman, Orion Danjuma, Protect Democracy
* The Clerk of Court is respectfully directed to amend the caption as set forth
above.

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Project, New York, NY; Katie Schwartzmann,
Protect Democracy Project, New Orleans, LA; and
Richard Primus for Plaintiffs-Appellants.
Allison M. Rovner, Assistant United States Attorney, for
Jay Clayton, United States Attorney for the
Southern District of New York, New York, NY, for
Defendants-Appellees.
C HIN AND K AHN, Circuit Judges:
The parties in this case jointly move to (1) dismiss the appeal,
(2) vacate the district court's order, and (3) remand with instructions for the
district court to dismiss the case as moot. Stipulation to Dismiss Appeal and
Joint Motion to Vacate District Court Decision ("Joint Motion") at 1, Am. Ass'n of
Univ. Professors v. U.S. Dep't of Just., No. 25-1529 (2d Cir. Mar. 12, 2026), Dkt. No.
105. The dissent agrees that we should dismiss the case as moot but argues that
the request for vacatur should be denied, reasoning that the matter has become
moot due to circumstances attributable to plaintiffs-appellants labor
organizations, the American Association of University Professors and the
American Federation of Teachers (together, "Union Plaintiffs"). See Dissent at 5-
6. The Government and Union Plaintiffs, however, have stipulated otherwise.
See Joint Mot. at 3 ("The parties therefore agree that this action is now moot for

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reasons not fairly attributable to plaintiffs-appellants. The parties further agree that,
in such circumstances, vacatur of the underlying decision is appropriate."
(emphasis added)). We see no reason to disregard the parties' stipulations.
Because we agree with the parties that the appeal is moot for reasons
not fairly attributable to Union Plaintiffs and that therefore vacatur is proper, we
grant the joint motion in all three respects. We therefore DISMISS this appeal as
moot, VACATE the district court's order denying Union Plaintiffs a preliminary
injunction and dismissing the case for lack of standing, and REMAND to the
district court with instructions to dismiss the case as moot.
I. Mootness
While the parties have stipulated that this appeal is moot for reasons
"not fairly attributable to plaintiffs-appellants," they argue it became moot at
different times. Id. Ultimately, the precise timing of mootness makes no
difference here.
Union Plaintiffs filed this lawsuit against the Government to
challenge its termination of approximately $400 million in federal funding to
Columbia University ("Columbia") and its accompanying demand that Columbia
commit to comprehensive programmatic and structural changes. See Am. Ass'n

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of Univ. Professors v. U.S. Dep't of Just., No. 25-CV-2429, 2025 WL 1684817, at *1
(S.D.N.Y. June 16, 2025). Columbia is not a party to this action. The complaint
requested, inter alia, injunctive relief ordering the restoration of funding to
Columbia, injunctive relief prohibiting the Government from enforcing its
demand for reforms, prospective relief preventing the Government from
terminating over $5 billion in grants and contracts to Columbia, and damages.
Joint App'x at 110-11. After Union Plaintiffs moved for a preliminary injunction
against the Government, the district court issued an order denying the motion
and dismissing the case for lack of standing. Am. Ass'n of Univ. Professors, 2025
WL 1684817, at *1. Union Plaintiffs promptly appealed to this Court. Joint App'x
at 935.
While the appeal was pending, Columbia and the Government
struck a deal (the "Agreement"). See Joint Mot. at 2. In essence, the Government
agreed to restore the majority of the funding at the heart of this lawsuit, and
Columbia agreed to implement certain reforms. Id. at 2-3. In response to this
Agreement, Union Plaintiffs withdrew their requests for prospective equitable
relief and monetary damages, citing "changed circumstances caused by the

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Agreement, actions of third parties, and other factors outside of [Union
Plaintiffs'] control." Id. at 3.
The Government now argues that its Agreement with Columbia
mooted the case. Id. Meanwhile, Union Plaintiffs contend that the Agreement
did not "immediately moot their claims" but that the case has now "become
moot" in part because they have agreed to withdraw their claims. Id.
We need not decide precisely when the case became moot. Whether
the case became moot upon the execution of the Agreement or the Union
Plaintiffs' withdrawal of their requests for relief, the key is that the case is moot
and should be dismissed. See Doe v. McDonald, 128 F.4th 379, 385 (2d Cir. 2025)
(explaining that a case is moot if it is "impossible for a court to grant any effectual
relief whatever to the prevailing party" (citation modified)); Town of Newburgh v.
Newburgh EOM LLC, 151 F.4th 96, 101 (2d Cir. 2025) (concluding that the appeal
was moot because the relief sought was "no longer needed" (citation modified)).
We therefore grant the motion to dismiss the appeal as moot. See Fed. R. App. P.
42(b).

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II. Vacatur
As to vacatur, "[o]ur Munsingwear practice is well settled." Acheson
Hotels, LLC v. Laufer, 601 U.S. 1, 5 (2023). Where, as here, "a civil case becomes
moot pending appellate adjudication, 'the established practice in the federal
system is to reverse or vacate the judgment below and remand with a direction to
dismiss.'" Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71 (1997) (alterations
accepted) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)).
Courts grant vacatur liberally under such circumstances -- and for good reason.
See Newburgh EOM LLC, 151 F.4th at 102 (referring to vacatur as "the default
rule"); Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260
F.3d 114, 121 (2d Cir. 2001) (noting that "courts have been liberal in granting
vacatur" "[i]n the ordinary run of cases"). Our Munsingwear practice "clears the
path for future relitigation of the issues between the parties" and ensures that
unreviewable judgments do not "spawn[] any legal consequences." Munsingwear,
340 U.S. at 40-41.
Here, while the parties agree that the case is moot, vacatur turns on
how the case has become moot. The appropriateness of vacatur in a particular
case turns on equitable considerations and the specific "conditions and

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circumstances." Azar v. Garza, 584 U.S. 726, 729 (2018) (per curiam) (citation
modified). Chief among the relevant factors is "[t]he appellant's fault in causing
mootness," which serves as the "touchstone" of our analysis. FDIC v. Regency Sav.
Bank, F.S.B., 271 F.3d 75, 77 (2d Cir. 2001) (per curiam). Thus, if an appellant
voluntarily acts with the intent of mooting the appeal, vacatur is typically
inappropriate. Id. If, however, the appeal becomes moot because of the
"vagaries of circumstance" or the appellant's "good faith" actions, courts will
generally grant the vacatur. Hassoun v. Searls, 976 F.3d 121, 131-32 (2d Cir. 2020)
(quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25 (1994), and
Kerkhof v. MCI WorldCom, Inc., 282 F.3d 44, 54 (1st Cir. 2002)); see also id. at 127,
132-34 (granting the government's request for vacatur when habeas petitioner's
appeal became moot following government's deportation of the petitioner). In
short, "[w]hen circumstances beyond an appellant's control render moot a
judgment appealed from . . . the general duty to vacate and dismiss applies."
Bragger v. Trinity Cap. Enter. Corp., 30 F.3d 14, 17 (2d Cir. 1994).
While we agree with the dissent that we are not bound by the
parties' agreement to vacate, see Dissent at 6, we are persuaded that the equities
in this case favor vacatur. The parties have stipulated that this case is now moot

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"for reasons not fairly attributable to plaintiffs-appellants." Joint Mot. at 3 (emphasis
added) (citing, inter alia, Munsingwear, 340 U.S. at 39). Indeed, even assuming
this case became moot only upon Union Plaintiffs' withdrawal of their requests
for relief, Union Plaintiffs took this step because of the actions of others:
Columbia and the Government entered into the Agreement. Consequently, both
Columbia and the Government played a role in "nudging this case toward . . .
mootness," Exxon Mobil Corp. v. Healey, 28 F.4th 383, 397 (2d Cir. 2022), and Union
Plaintiffs did not "simply decline[] to pursue [their] appeal" unilaterally,
Blackwelder v. Safnauer, 866 F.2d 548, 551 (2d Cir. 1989). Nor is this a case where
plaintiffs have "obtain[ed] a favorable judgment, take[n] voluntary action that
moots the dispute, and [now seek to] retain the benefit of the judgment."
Arizonans for Off. Eng., 520 U.S. at 75 (citation modified). Rather, Union Plaintiffs
-- following their loss in the district court -- vigorously pursued their appeal and
only withdrew their remaining requests for relief after the Government and
Columbia entered into the Agreement, thereby obtaining the "primary relief"
Union Plaintiffs sought, i.e., the restoration of federal funding to Columbia.
Appellees Br. at 49. In other words, the Government's Agreement with
Columbia rendered Union Plaintiffs' lawsuit largely superfluous, even if not

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entirely moot.1 Vacatur appropriately accounts for these changed "circumstances
beyond [Union Plaintiffs'] control." Bragger, 30 F.3d at 17.
Vacatur is also proper because it "harms neither party," Hassoun, 976
F.3d at 133 (citation modified), as indicated by the fact that the parties jointly
move to vacate. Further, the "only damage to the public interest from such a
vacatur" is that this standing issue will be "left to future litigation," should it
arise. Major League Baseball Props., Inc. v. Pac. Trading Cards, Inc., 150 F.3d 149, 152
(2d Cir. 1998). The benefits of preventing the district court's unreviewable order
from "spawning any legal consequences" outweigh this concern. Munsingwear,
340 U.S. at 41; see also Camreta v. Greene, 563 U.S. 692, 713 (2011) (indicating that
vacatur is appropriate when mootness prevents the review of a "legally
consequential decision"). To hold otherwise could incentivize winners in the
district court to all but moot cases on appeal, forcing plaintiffs to either
"acquiesce in the judgment" below, U.S. Bancorp Mortg. Co., 513 U.S. 18, 25 (1994),
1 The dissent asserts that we disagree with Union Plaintiffs that the "controversy
continued" after the execution of the Agreement. Dissent at 5. We do not. Instead, as
we have explained, we assume without deciding that Union Plaintiffs are correct and
that the case became moot only upon their withdrawal of the remaining requests for
relief. Even under this assumption, we conclude that vacatur is proper.

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or engage in protracted litigation that can no longer possibly achieve the
lawsuit's main goals.
The dissent maintains that vacatur is unwarranted because Union
Plaintiffs' conduct mooted the case. See Dissent at 5-6. Our caselaw, however,
imposes no universal rule against granting a Munsingwear vacatur merely
because an appellant plays a role in mooting an appeal. Instead, our
determination turns on the "circumstances of the particular case." Garza, 584 U.S.
at 729 (citation modified). For example, in Acheson Hotels, LLC v. Laufer, the
Supreme Court granted a plaintiff's request for a Munsingwear vacatur when she
voluntarily dismissed her pending suits after a district court suspended her
lawyer from the practice of law. 601 U.S. at 3-5. The Court reasoned that the
plaintiff had not "abandoned her case in an effort to evade . . . review." Id. at 5; cf.
Arave v. Hoffman, 552 U.S. 117, 118 (2008) (per curiam) (granting habeas petitioner
Munsingwear vacatur after petitioner abandoned ineffective-assistance-of-counsel
claim and declined to pursue relief related to that claim). So, too, here. Union
Plaintiffs withdrew their requests for relief not to avoid our review but because
the Agreement had already accomplished the lawsuit's chief goals.

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The dissent also analyzes this case as akin to one in which mootness
has resulted from settlement, thus undermining the suitability of vacatur. See
Dissent at 3-4. Putting aside that the parties have not settled this case (as the
dissent acknowledges, see id. at 4), while the dissent is correct that mootness by
virtue of settlement often disentitles a losing party to a Munsingwear vacatur
because the losing party has "voluntarily forfeited [that] legal remedy," U.S.
Bancorp Mortg. Co., 513 U.S. at 25, no bright-line rule dictates such an outcome.
See id. at 29 ("This is not to say that vacatur can never be granted when mootness
is produced [by settlement]."). Instead, we must consider the equities of the case
before us. See id. at 26. As this Court has explained, the deliberate-action
exception to our Munsingwear practice does not necessarily apply where, as here,
"both parties have agreed on . . . vacatur of the judgment below." Long Island
Lighting Co. v. Cuomo, 888 F.2d 230, 233 (2d Cir. 1989). In fact, the Supreme Court
has exercised its discretion to order vacatur in a number of cases settled during
the pendency of the Court's review. See Manufacturers Hanover Tr. Co. v. Yanakas,
11 F.3d 381, 384 (2d Cir. 1993) (collecting cases where the Supreme Court has
exercised this discretion); see also U.S. Bancorp Mortg. Co., 513 U.S. at 29
(explaining that vacatur may be granted if "exceptional circumstances" exist,

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even where parties' settlement moots a case). This Court, too, has ordered
vacatur where the parties desired settlement and vacatur of the district court
decision. See, e.g., Major League Baseball Props., Inc., 150 F.3d at 152. Here, the
parties have indeed jointly moved for vacatur under Munsingwear, and the
equities of this case counsel in favor of that disposition. See U.S. Bancorp Mortg.
Co., 513 U.S. at 29.
Accordingly, because we see no reason to depart from our
"established [Munsingwear] practice," Hassoun, 976 F.3d at 125 (citation modified),
we grant the parties' joint request to vacate the order below.
CONCLUSION
For the foregoing reasons, we DISMISS this appeal as moot,
VACATE the district court's order, and REMAND to the district court with
instructions to dismiss the case as moot.

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25-1529
AAUP v. DOJ
MENASHI, Circuit Judge, dissenting:
Last year, the American Association of University Professors
(“AAUP”) and the American Federation of Teachers (“AFT”) sought
a preliminary injunction against the federal government. See AAUP v.
DOJ, No. 25-CV-2429, 2025 WL 1684817, at *1 (S.D.N.Y. June 16, 2025).
The unions wanted a restoration of grants withheld from Columbia
University and prospective relief that would prevent the federal
government from “interfering with more than $5 billion in active
taxpayer-funded grants and contracts to Columbia.” Id. (internal
quotation marks omitted).
In June 2025, the district court dismissed the case on the ground
that the AAUP and the AFT lacked Article III standing. See id. at *11.
The plaintiffs had requested a “judicial order commanding executive
agencies to pay out money to non-party Columbia pursuant to grants
and contracts that were previously awarded by executive agencies to
non-party Columbia.” Id. But, according to the district court, “neither
Plaintiffs nor their members were ever the recipients of those grants
and contracts.” Id. The district court further concluded that the unions
could not establish organizational or representational standing. See id.
at *12. It said that “[i]f any funds have been wrongfully withheld, such
funds may be recovered at the end of a successful lawsuit by the
appropriate plaintiff in an appropriate forum.” Id. at *1 (citing Dep’t
of Educ. v. California, 145 S. Ct. 966, 969 (2025)).
The AAUP and the AFT appealed that decision to our court. On
July 23, 2025—after the plaintiffs had noticed an appeal—the federal
government and Columbia University entered into an agreement.
That “resolution agreement,” the government explained, “restored ‘a
vast majority’ of funding that is the subject of plaintiffs’ lawsuit.”
Appellees’ Br. 15. The government argued that the case was moot

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2
because “the primary relief plaintiffs sought was the restoration of
funding to Columbia,” and “[t]he Resolution Agreement restored
most of that funding.” Id. at 49.
The plaintiffs insisted that the case was not moot. “[B]y its own
terms, the Agreement does not restore all terminated funding,” the
unions said, and even if the “grants are reinstated, the Agreement
does not address or undo the significant nonmonetary harms that
Plaintiffs and their members have suffered, which warrant judicial
review and redress.” Appellants’ Br. 59. “Moreover, the Agreement
enshrines the unlawful infringements of Plaintiffs’ members’ free
speech and academic freedom at the heart of Plaintiffs’ complaint.”
Id. That complaint “expressly seeks ‘compensatory and viable
damages’ for Defendants’ violations of their constitutional rights,
which ‘automatically avoids mootness.’” Id. (alteration omitted)
(quoting Stokes v. Village of Wurtsboro, 818 F.2d 4, 6 (2d Cir. 1987)).
The parties have now stipulated to the dismissal of this appeal.
Joint Motion at 3, AAUP v. DOJ, No. 25-1529 (2d Cir. Mar. 12, 2026),
ECF No. 105. In addition, the parties move for this court to “vacate
the district court’s decision and to remand the action for dismissal
based on mootness.” Id. at 4. A majority of this panel has granted the
motion. I would deny it, and therefore I dissent.
I
In general, “[a] party who seeks review of the merits of an
adverse ruling, but is frustrated by the vagaries of circumstance,
ought not in fairness be forced to acquiesce in the judgment. The same
is true when mootness results from unilateral action of the party who
prevailed below.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18, 25 (1994) (footnote and citation omitted); see United States
v. Munsingwear, Inc., 340 U.S. 36, 40 (1950) (explaining that vacatur

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3
“clears the path for future relitigation of the issues between the parties
and eliminates a judgment, review of which was prevented through
happenstance”). “Where mootness results from settlement, however,
the losing party has voluntarily forfeited his legal remedy by the
ordinary processes of appeal or certiorari, thereby surrendering his
claim to the equitable remedy of vacatur. The judgment is not
unreviewable, but simply unreviewed by his own choice.” Bancorp,
513 U.S. at 25. Under those circumstances, “[t]he denial of vacatur is
merely one application of the principle that ‘a suitor’s conduct in
relation to the matter at hand may disentitle him to the relief he
seeks.’” Id. (alteration omitted) (quoting Sanders v. United States,
373 U.S. 1, 17 (1963)).1
The parties here have not settled this case.2 If this case had
settled, the rule from Bancorp would directly apply, and vacatur
1 Munsingwear vacatur has been described as an “equitable remedy.”
Bancorp, 513 U.S. at 25. But “a remedy, in the technical sense, ‘is the end
result of a law suit,’ ‘what the court actually does for, or to the client in the
particular case.’” William Baude & Samuel L. Bray, When the Executive Has
Unclean Hands, 135 Yale L.J.F. 567, 580 n.83 (2026) (quoting Samuel L. Bray
& Emily Sherwin, Ames, Chafee, and Re on Remedies: Cases and
Materials 3 (4th ed. 2024)). “Remedies, therefore, do not include judicial
actions such as a … vacatur of a lower-court opinion.” Id. While vacatur is
not an equitable remedy, the decision to award this form of relief is guided
by “equitable considerations.” Ozturk v. Hyde, 155 F.4th 187, 199 (2d Cir.
2025) (Menashi, J., concurring in the denial of rehearing en banc) (quoting
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 721 n.10
(2007)); see also Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 18 (2023) (Jackson,
J., concurring in the judgment) (explaining that vacatur “serves a specific,
equitable function”).
2 The plaintiffs are unions representing faculty members at Columbia
University. The settlement agreement was between Columbia University
itself and the federal government.

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4
would be improper. Nevertheless, the plaintiffs have abandoned their
appeal, so the same considerations apply. The plaintiffs continue to
“maintain that the Agreement did not immediately moot their
claims.” Joint Motion, supra, at 3. Instead, the plaintiffs explain, the
settlement agreement led to “changed circumstances” that, alongside
unspecified “actions of third parties, and other factors,” affected their
desire to continue the lawsuit. Id. In light of those circumstances and
actions, the “plaintiffs-appellants no longer intend to seek prospective
equitable relief or monetary damages” and have decided to “withdraw
their requests for that relief.” Id. (emphasis added).
The majority opinion asserts that the plaintiffs “only withdrew
their remaining requests for relief after the Government and Columbia
entered into the Agreement, thereby obtaining the ‘primary relief’
Union Plaintiffs sought, i.e., the restoration of federal funding to
Columbia.” Ante at 9 (quoting Appellees’ Br. 49). But that is not how
the plaintiffs themselves understand the dispute. After the agreement
between the government and Columbia, the plaintiffs filed an
appellate brief maintaining that the “agreement does not moot this
case.” Appellants’ Br. 59. The plaintiffs noted that the agreement
“does not restore all terminated funding,” “does not address or undo
the significant nonmonetary harms” for which the plaintiffs sought
damages, and “enshrines the unlawful infringements of Plaintiffs’
members’ free speech and academic freedom at the heart of Plaintiffs’
complaint.” Id. And the plaintiffs explained that, “[f]ar from
precluding Defendants from again restricting funding or speech in
precisely the same unlawful manner,” the agreement preserved the
government’s right to act in ways the plaintiffs sought to enjoin. Id.
at 60.
According to the plaintiffs’ brief, the agreement “amplifies the
chilling effect of Defendants’ coercive actions on Plaintiffs’ members,”

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id. at 60 (emphasis added), because the plaintiffs alleged that the
defendants’ “very purpose in exerting pressure on Columbia was to
force Columbia to censor speech which the Defendants could not
reach directly,” id. at 37. Columbia’s “predictable acquiescence to
Defendants’ demands,” the unions argued, made the plaintiffs’
injuries worse. Id.
The majority now rejects the plaintiffs’ arguments about the
effect of the agreement on the lawsuit. 3 The majority instead
concludes that “the Government’s Agreement with Columbia
rendered Union Plaintiffs’ lawsuit largely superfluous” because “the
Agreement had already accomplished the lawsuit’s chief goals.” Ante
at 9, 11. The majority does not explain why the unions were wrong
that the same controversy continued after the agreement was reached.
In fact, the controversy ended because of the plaintiffs’ decision
to abandon their claims for relief and to dismiss the litigation. The
plaintiffs admit as much, and the majority does not disagree. The
majority expressly assumes that the case became moot only when the
plaintiffs voluntarily decided to withdraw their requests for relief. See
id. at 10 n.1. But that means “this controversy did not become moot
due to circumstances unattributable to any of the parties.” Bancorp,
513 U.S. at 26 (alteration omitted) (quoting Karcher v. May, 484 U.S. 72,
83 (1987)). Rather, the “controversy ended” because “the losing
party” has “declined to pursue its appeal.” Id. (quoting Karcher, 484
U.S. at 83). In this scenario, “the Munsingwear procedure is
3 The majority denies that it has rejected the plaintiffs’ arguments about the
effect of the agreement. See ante at 10 n.1. But there is no way to reconcile
the majority’s view that the agreement rendered the lawsuit “largely
superfluous,” id. at 9, with the plaintiffs’ appellate arguments that the
agreement amplified their injuries and made the lawsuit more urgent.

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6
inapplicable.” Id. (quoting Karcher, 484 U.S. at 83). “[T]he case stands
no differently than it would if jurisdiction were lacking because the
losing party failed to appeal at all.” Id. at 25.
II
It makes no difference that the parties have stipulated that the
case is moot “for reasons not fairly attributable to plaintiffs-
appellants.” Joint Motion, supra, at 3. That is a legal conclusion.
“Whether a case is moot presents a legal issue that we … review de
novo,” NYCLU v. Grandeau, 528 F.3d 122, 128 (2d Cir. 2008), so “[i]n
assessing whether a case is moot, we must examine all the facts and
circumstances,” Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991). We
do not accept a conclusory assertion that the mootness is not
attributable to the plaintiffs; we look at the underlying facts. As
discussed above, the plaintiffs themselves have identified the facts
underlying their conclusion about mootness. In their own account,
conduct of other parties has affected their interest in pursuing the
lawsuit, but it did not moot the case. Instead, their decision to
withdraw their requests for relief has caused the mootness.
Vacating the judgment of the district court under these
circumstances undermines the “long recognized” principle that “the
equities generally do not favor Munsingwear vacatur when the party
requesting such relief played a role in rendering the case moot.”
Chapman v. Doe, 143 S. Ct. 857, 857 (2023) (Jackson, J., dissenting). It is
not enough that the actions of third parties have affected the
plaintiffs’ interest in the case if the plaintiffs still could have sought
relief from the judgment “by appeal as of right.” Bancorp, 513 U.S. at
27. That is the “primary route” by which “parties may seek relief from
the legal consequences of judicial judgments. To allow a party who
steps off the statutory path [of appealing the judgment] to employ the

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7
secondary remedy of vacatur as a refined form of collateral attack on
the judgment would—quite apart from any considerations of fairness
to the parties—disturb the orderly operation of the federal judicial
system.” Id. While “Munsingwear establishes that the public interest is
best served by granting relief when the demands of ‘orderly
procedure’ cannot be honored,” at the same time “the public interest
requires those demands to be honored when they can.” Id. (citation
omitted) (quoting Munsingwear, 340 U.S. at 41).
The majority argues that the case law “imposes no universal
rule against granting a Munsingwear vacatur merely because an
appellant plays a role in mooting an appeal.” Ante at 11. The majority
relies on a case in which, after the Supreme Court had granted review,
the prevailing party in the court of appeals “voluntarily dismissed her
pending suits with prejudice” because her lawyer was
“suspended … from the practice of law” for committing fraud in
connection with the underlying litigation. Laufer, 601 U.S. at 3-4. The
Supreme Court said it was “not convinced” that the prevailing party
“abandoned her case in an effort to evade our review.” Id. at 5. And
the vacatur under those circumstances was consistent with the
Court’s “‘established practice’ of vacating the judgment of the Court
of Appeals below ‘when mootness occurs through the unilateral
action of the party who prevailed in the lower court.’” Id. at 22
(Jackson, J., concurring in the judgment) (alteration omitted) (quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 70-71 (1997)). The
Court does not “permit a plaintiff to obtain a favorable judgment, take
voluntary action that moots the dispute, and then retain the benefit of
the judgment.” Arizonans for Official English, 520 U.S. at 75 (alterations
omitted).
In this case, however, the majority vacates the judgment even
accepting the “assumption” that mootness occurred through the

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8
unilateral action of the parties that lost in the lower court—parties that
could, and initially did, pursue an appeal. Ante at 10 n.1.
When we have considered a request for vacatur from a losing
party that caused the mootness, we have required the losing party to
explain that its mootness-causing conduct was independent of the
litigation. In Hassoun v. Searls, for example, the case became moot
while an appeal was pending because the government deported the
petitioner-appellee. See 976 F.3d 121, 131 (2d Cir. 2020). We explained
that under the applicable statutes, “the government is required to
remove an alien who has been ordered removed ‘within a period of
90 days.’” Id. at 131 (quoting 8 U.S.C. § 1231(a)(1)(A)). We concluded
that “[t]he government’s ongoing effort to comply with [those
statutes] was ‘independent of the pending lawsuit’ and does not
indicate that the government acted ‘in order to overturn an
unfavorable precedent.’” Id. at 132-33 (quoting Nat’l Black Police Ass’n
v. District of Columbia, 108 F.3d 346, 351-52 (D.C. Cir. 1997)). The
removal of the petitioner “was ‘the natural and apparently long-
anticipated result’ of the government’s immigration enforcement
efforts.” Id. at 127 (quoting Russman v. Bd. of Educ. of Enlarged City Sch.
Dist. of Watervliet, 260 F.3d 114, 123 (2d Cir. 2001)). In other words, we
granted vacatur because the mootness-causing conduct was
independent of the litigation, non-discretionary, and long anticipated.
This case bears no resemblance to that one. The plaintiffs here
never sought the sort of agreement that Columbia executed with the
government; to the contrary, the plaintiffs expressly opposed that
agreement and denied that it resolved their claims. And the plaintiffs
have admitted that the mootness resulted from their own choice to
withdraw those claims. Today’s decision—to vacate the judgment
based on mootness caused by the losing party’s voluntary, litigation-
related conduct—is unprecedented.

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9
III
Even apart from these considerations about the cause of the
mootness, the motion for vacatur does not even attempt to show “the
purported need for vacatur, in terms of the harms it would avert.” Laufer,
601 U.S. at 20 (Jackson, J., concurring in the judgment). The motion
identifies no “demonstrated harm-related justification for vacating
[the] lower court’s opinion.” Id. We have said that “vacatur is
inappropriate” when the prior judgment has “no legal
consequences … for the parties.” Hassoun, 976 F.3d at 134. That is
because “[v]acatur pursuant to Munsingwear is an exception to the
regular procedure for establishing and revising precedents.” Id.
at 135. “Where Munsingwear does not apply, because a ‘decision poses
little risk of prejudice to the parties,’ the ‘heavy weight’ of precedent
and regular procedure ‘greatly exceeds the light, if existent, danger of
unfair preclusive effect.’” Id. (quoting Mahoney v. Babbitt, 113 F.3d 219,
224 (D.C. Cir. 1997)).
The parties have not attempted to establish a “realistic
probability that the [district] court’s jurisdictional decision will spawn
legal consequences” and cause prejudice to either party. Id. at 134.
That fails to meet the burden of showing “equitable entitlement to the
extraordinary remedy of vacatur.” Bancorp, 513 U.S. at 26.
* * *
Because the parties have not met the burden to justify vacatur
here, I would deny the motion for vacatur. I dissent from the decision
of the court to grant it.

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