                                                  Filed:   May 9, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                          Nos. 99-1598(L)
                          (CA-93-189-5-S)



Valero Terrestrial Corp., et al,

                                              Plaintiffs - Appellants,

          versus


James H. Paige, etc., et al,

                                               Defendants - Appellees.



                               O R D E R



     The court amends its opinion filed April 20, 2000, as follows:



     On pages 1 and 2 -- the spelling of “Enviromental” is cor-

rected to read “Environmental.”

     On page 15, first paragraph, line 1 -- “non referenda” is cor-

rected to read “non-referenda.”

                                        For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VALERO TERRESTRIAL CORPORATION;
LACKAWANNA TRANSPORT COMPANY;
SOLID WASTE SERVICES, INCORPORATED,
d/b/a J.P. Mascaro & Sons,
Plaintiffs-Appellants,

v.

JAMES H. PAIGE, Secretary, Department
of Tax and Revenue of the State of
West Virginia; DARRELL V. MCGRAW,
JR., Honorable, Attorney General of
the State of West Virginia; B.F. "CAP"
SMITH, Chief of the Division of Waste
Management for the Division of
Environmental Protection; LAIDLEY ELI
MCCOY, Director, Division of
                                         No. 99-1598
Environmental Protection, of the
Department of Labor, Commerce and
Environmental Resources of the State
of West Virginia,
Defendants-Appellees,

and

JOHN RANSON, Secretary, Department
of Labor, Commerce and
Environmental Resources of the State
of West Virginia; PUBLIC SERVICE
COMMISSION OF WEST VIRGINIA,
Defendants,

and

LARRY HARLESS,
Respondent.
VALERO TERRESTRIAL CORPORATION;
LACKAWANNA TRANSPORT COMPANY;
SOLID WASTE SERVICES, INCORPORATED,
d/b/a J.P. Mascaro & Sons,
Plaintiffs-Appellees,

v.

JAMES H. PAIGE, Secretary, Department
of Tax and Revenue of the State of
West Virginia; DARRELL V. MCGRAW,
JR., Honorable, Attorney General of
the State of West Virginia; B.F. "CAP"
SMITH, Chief of the Division of Waste
Management for the Division of
Environmental Protection; LAIDLEY ELI
MCCOY, Director, Division of
                                                           No. 99-1599
Environmental Protection of the
Department of Labor, Commerce and
Environmental Resources of the State
of West Virginia,
Defendants-Appellants,

and

JOHN RANSON, Secretary, Department
of Labor, Commerce and
Environmental Resources of the State
of West Virginia; PUBLIC SERVICE
COMMISSION OF WEST VIRGINIA,
Defendants,

and

LARRY HARLESS,
Respondent.

Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-93-189-5-S)

                    2
Argued: January 27, 2000

Decided: April 20, 2000

Before LUTTIG and MOTZ, Circuit Judges, and
Norman K. MOON, United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part and vacated in part by published opinion. Judge Lut-
tig wrote the opinion, in which Judge Motz and Judge Moon joined.

_________________________________________________________________

COUNSEL

ARGUED: William Francis Fox, Jr., Harleysville, Pennsylvania, for
Appellants. Armando Frank Benincasa, Office of Legal Services,
WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTEC-
TION, Charleston, West Virginia, for Appellees Smith and McCoy;
Silas Bent Taylor, Senior Deputy Attorney General, Charleston, West
Virginia, for Appellees Paige and McGraw. ON BRIEF: Logan Has-
sig, SNYDER & HASSIG, New Martinsville, West Virginia, for
Appellants. William E. Adams, Jr., Office of Legal Services, WEST
VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION,
Charleston, West Virginia, for Appellees Smith and McCoy.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Appellants Valero Terrestrial Corporation, Lackawanna Transport
Co., and Solid Waste Services, Inc., d/b/a J.P. Mascaro & Sons (col-
lectively "Valero") appeal from the district court's 1999 order dis-
missing their complaint as moot and vacating most of its 1997
judgment, which had declared unconstitutional and enjoined enforce-
ment of the following provisions of the West Virginia Code pertain-
ing to waste disposal and management: § 24-2-1c, § 22-15-10(g),

                    3
§ 22-15-10(f), § 22-15-1(c), §§ 22C-4-24-28, § 22C-4-24, § 22C-4-
2(d), § 22-15-20(e), § 22-15-8. Appellees Laidley Eli McCoy, B.F.
"Cap" Smith, the Public Service Commission, James H. Paige, and
Darrell V. McGraw, Jr. cross-appeal from the district court's 1999
order, insofar as that order leaves intact the portion of the 1997 judg-
ment that declared unconstitutional and enjoined enforcement of cer-
tain local referenda procedures provided for by the above-cited
provisions of the Code.

Although, in error, the district court assumed that, in deciding
whether to vacate its own prior opinion, it was necessarily bound by
the Supreme Court's decision in U.S. Bancorp Mtge. Co. v. Bonner
Mall Partnership, 513 U.S. 18 (1994), ultimately the district court
correctly vacated the non-referenda portions of its 1997 judgment. We
thus affirm this part of the district court's 1999 order. Because the
district court was without jurisdiction to enter those portions of its
1997 judgment that it refused to vacate in 1999, we ourselves vacate
those portions of the court's judgment.

I.

Valero is engaged in the solid waste landfill and sewage sludge
compost industries in West Virginia. Seven years ago, Valero brought
this action pursuant to 42 U.S.C. § 1983, challenging the constitution-
ality of several provisions of the West Virginia Code pursuant to
which waste disposal and management were regulated. In 1997, the
district court declared the West Virginia Code provisions cited above
invalid under the dormant Commerce Clause, and entered a perma-
nent injunction prohibiting their enforcement.

While various motions for reconsideration were pending before the
district court, the West Virginia Legislature substantially revised the
enjoined and other related provisions of the Code. Appellees then
moved pursuant to Federal Rule of Civil Procedure 12(b)(1) for the
complaint to be dismissed as moot, and moved pursuant to Federal
Rule of Civil Procedure 60(b) for the district court to vacate "nearly
all" of its 1997 judgment.1 The district court thereafter dismissed the
_________________________________________________________________

1 In their motion to vacate filed with the district court, appellees cited
Rule 60(b)(3) and stated that that rule "permits an order granting relief

                     4
complaint as moot, and vacated its 1997 judgment, except for the por-
tion thereof that declared unconstitutional and enjoined enforcement
of those portions of the Code that provided for local referenda on the
creation or expansion of specified dumpsites. These appeals followed.

II.

As a threshold matter, Valero contends in its submissions that this
case is not moot, and that the district court therefore erred in dismiss-
ing its complaint. At oral argument before this court, however, Valero
conceded mootness. We agree that the case between these parties is
moot.

First, we reject Valero's contention that the statutory amendments
were so minor and insignificant that they did not render moot its com-
plaint against the appellees. The amendments repealed the former
requirement that local waste be accorded priority over non-local
waste, eliminated county commissions from the dumpsite approval
process, and replaced all of the previously parochial statutory pream-
bles with language adopting a policy of equal and uniform treatment
of local and non-local waste. These amendments were anything but
minor and insignificant.

Second, we reject Valero's contention that, under City of Mesquite
v. Aladdin's Castle, Inc., 455 U.S. 283 (1982), this case remains live.
In Mesquite, the Supreme Court held that "a defendant's voluntary
cessation of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice." Id. at 289. Valero
argues that West Virginia's amendments to its statutes represented
such "voluntary cessation" by the State, and that such voluntary cessa-
tion should in turn be attributed to appellees. Based on our review of
_________________________________________________________________

from a final judgment that `has been satisfied, released, or discharged.'"
J.A. 58. However, appellees apparently confused Rule 60(b)(3) with the
first clause of Rule 60(b)(5). Rule 60(b)(3) does not provide for relief on
the above-quoted grounds; rather, it authorizes relief from judgment in
instances of "fraud [. . .], misrepresentation, or other misconduct of an
adverse party." No further reference to Rule 60(b) is made in either
party's briefs, or, for that matter, in the opinion and order from which the
present appeals were taken.

                     5
the post-Mesquite caselaw, however, we are convinced that Mesquite
is generally limited to the circumstance, and like circumstances, in
which a defendant openly announces its intention to reenact "pre-
cisely the same provision" held unconstitutional below. 455 U.S. at
289 and n.11. In other words, we remain satisfied that statutory
changes that discontinue a challenged practice are "usually enough to
render a case moot, even if the legislature possesses the power to
reenact the statute after the lawsuit is dismissed." Native Village of
Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (citing
cases). For example, in U.S. Dep't of the Treasury, Bureau of Alco-
hol, Tobacco and Firearms v. Galioto, 477 U.S. 556 (1986), a unani-
mous Supreme Court dismissed as moot a former mental patient's
challenge to a firearms statute, because, after certiorari had been
granted but before the case was decided, Congress amended the stat-
ute to permit former mental patients to apply for an exemption from
the bar on firearms purchases by current and former mental patients.
The Court did so without once inquiring whether the United States
could be said to have "voluntarily c[eased]" its prior practice of cate-
gorically refusing to permit former mental patients to purchase fire-
arms. Accordingly, the dismissal of Valero's complaint as moot is
affirmed.

III.

Turning to the district court's challenged decisions regarding vaca-
tur of its earlier opinion, the district court simply assumed, as do both
parties before us, that a district court, in deciding whether to vacate
its own prior opinion, is necessarily bound by the holding in the
Supreme Court's opinion in U.S. Bancorp Mtge. Co. v. Bonner Mall
Partnership, 513 U.S. 18 (1994). In this assumption, the parties are
mistaken and the district court erred.

In Bancorp, the Supreme Court granted certiorari on, and decided
only, the question "whether appellate courts in the federal system
should vacate civil judgments of subordinate courts." 513 U.S. at 19
(emphases added). And, in fact, the Court decided this question only
in the context of "cases that are settled after appeal is filed or certio-
rari sought." Id. (emphasis added). That the Court decided only the
question of the standards applicable to appellate vacatur of appellate
decisions (and, actually, only Supreme Court vacatur of appellate

                     6
decisions) is clear not only from the Court's explicit statement that it
granted certiorari to decide this issue, but also from the procedural
context in which the case arose. The Court was presented, procedur-
ally, only with the issue of appellate vacatur of appellate decisions
because, after the Court had granted certiorari and received briefing
in the Bancorp case, the parties settled and Bancorp requested that the
Supreme Court itself "exercise [its] power under 28 U.S.C. § 2106 to
vacate the judgment of the Court of Appeals." 513 U.S. at 20. As the
Court noted, 28 U.S.C. § 2106 is "[t]he statute that supplies the power
of vacatur" for, and only for, "[t]he Supreme Court or any other court
of appellate jurisdiction." 513 U.S. at 21. It speaks not at all to the
power of a district court to vacate or otherwise modify its own opin-
ions.

If there were any residual question that the Court in Bancorp con-
sidered only the question of appellate vacatur of appellate decisions
-- and frankly we think there should be none -- it is answered in two
postscripts to the Court's analysis of the appellate authority under 28
U.S.C. § 2106. In the first, the Court observed that "[a]lthough the
case before [it] involve[d] only a motion to vacate, by reason of set-
tlement, the judgment of a court of appeals [. . .]," it was nonetheless
"appropriate to discuss the relevance of [the Court's] holding to
motions at the court-of-appeals level for vacatur of district court judg-
ments." Id. at 28. The Court thereafter followed with a discussion, the
essential conclusion of which is that the same considerations that
inform the Supreme Court's decision whether to vacate an opinion of
a court of appeals should also inform a court of appeals' decision
whether to vacate a district court opinion. This postscript, and the
ensuing discussion, thus confirms both that the Court's holding is
actually limited to Supreme Court vacatur of appellate court opinions,
but more importantly as concerns the instant case, that its reasoning
extends no further than inferior appellate court vacatur of district
court opinions.

The second postscript, with which the entire Bancorp opinion con-
cludes, is even more telling. In this passage, the Supreme Court
reminds the courts of appeal that, when presented with a motion to
vacate a district court judgment, they may, "even in the absence of,
or before considering the existence of, extraordinary circumstances"
that might justify vacatur, "remand the case with instructions that the

                     7
district court consider the request, which it may do pursuant to Fed-
eral Rule of Civil Procedure 60(b)." Id. at 29 (emphasis added). Thus,
in this postscript, not only does the Court again confirm that its hold-
ing and discussion were limited to appellate vacatur, but it even
expressly distinguishes the appellate vacatur authority from a district
court's authority under Federal Rule of Civil Procedure 60(b) to order
relief from judgment.

Accordingly, it is clear not only that the holding of Bancorp
extends only to appellate court vacatur, but also that the appellate
power of vacatur derives from a source different from that which con-
fers the vacatur power upon a district court. The appellate vacatur
power derives from 28 U.S.C. § 2106, whereas the district court
power derives from Federal Rule of Civil Procedure 60(b).

That the respective vacatur powers of the appellate courts and the
district courts derive from different sources, of course, does not nec-
essarily mean that the standards pursuant to which those powers are
exercised are different. In the circumstance of vacatur due to moot-
ness, however, we are satisfied that the standards under 28 U.S.C.
§ 2106 and Rule 60(b) are essentially the same.

Under Bancorp, the "principal" consideration in determining
whether the "extraordinary" relief of appellate vacatur is warranted is
"whether the party seeking relief from the judgment caused the moot-
ness by voluntary action," 513 U.S. at 24; see also id. at 26 (noting
the "emphasis on fault" in deciding whether vacatur is justified), or
whether, instead, appellate review of the adverse ruling was prevented
by "the vagaries of circumstance" or the "unilateral action of the party
who prevailed below," id. at 25. In the former circumstance, such as
where mootness occurs because of settlement, "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," id., at least absent "exceptional circumstances,"
id. at 29. In the latter circumstances, vacatur remains available, sub-
ject, as always, to considerations of the public interest. As the Court
was at pains to emphasize in Bancorp, there is a substantial public
interest in judicial judgments:

          Judicial precedents are presumptively correct and valuable
          to the legal community as a whole. They are not merely the

                    8
          property of private litigants and should stand unless a court
          concludes that the public interest would be served by a vaca-
          tur.

Id. at 26-27 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.
Phillips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting)). Thus,
absent unusual circumstances, the appellate vacatur decision under
Bancorp is informed almost entirely, if not entirely, by the twin con-
siderations of fault and public interest.

The Supreme Court has not addressed, post-Bancorp, whether the
standards governing district court vacatur for mootness are identical
to the standards governing appellate court vacatur for mootness. But
we are convinced that Bancorp's considerations of relative fault and
public interest must also be largely determinative of a district court's
decision whether to vacate its own judgment due to mootness under
Rule 60(b), and specifically Rule 60(b)(6).2 Several reasons underlie
our conclusion.
_________________________________________________________________

2 Unlike 28 U.S.C. § 2106, Rule 60(b) does not, by its terms, authorize
vacatur; rather, the Rule authorizes only "relief from judgment." The
Supreme Court, however, has explicitly held that Rule 60(b)(6) "provides
courts with authority `adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice.'" Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 863-64 (1988) (quoting
Klapprott v. United States, 335 U.S. 601, 614-15 (1949)).

It must be presumed that vacatur is available under the other subparts
of Rule 60(b), as well. As the Court made clear in Liljeberg, however,
the difference between Rule 60(b)(6) and Rules 60(b)(1)-(5) is that "`ex-
traordinary circumstances' are required to bring the[Rule 60(b)(6)]
motion within the `other reason' language" of that Rule. Liljeberg, 486
U.S. at 863 n.11; see also id. at 864 (noting that the Court had cautioned
in Ackermann v. United States, 340 U.S. 193, 199, 202 (1950), that Rule
60(b)(6) "should only be applied in `extraordinary circumstances'").

While district court vacatur of an injunction, as opposed to a declara-
tory judgment like the one we discuss above in text, is theoretically pos-
sible under Fed. R. Civ. P. 60(b)(6), but see Liljeberg, 486 U.S. at 863
n.11 (suggesting that the logic recited in that footnote "suggests that
clause (6) [of Rule 60(b)] and clauses (1) through (5) are mutually exclu-
sive" (citing 11 C. Wright & A. Miller, Federal Practice and Procedure

                    9
First, the relief of vacatur is equitable in nature, see Bancorp, 513
U.S. at 25 (discussing the common "equitable tradition of vacatur"),
and we can discern no reason why, as such, the general presumption
against vacatur, which arises by virtue of the extraordinary nature of
that relief, should be different for the district court than for the appel-
late court. Nor can we discern any reason why different consider-
ations would be relevant to a trial court in deciding whether to vacate
its own judgment due to mootness than would be relevant to an appel-
late court in deciding whether to vacate a lower court's judgment
because of mootness, especially given that the particular consider-
ations adopted by the Court in Bancorp derived exclusively from the
extraordinary and equitable nature of the relief of vacatur, rather than
from any particular statutory mandate or from any power or ability
unique to the appellate courts.

Second, and not unimportantly, we cannot immediately think of
considerations that would be particularly relevant (at least invariably
so) to the vacatur-for-mootness inquiry beyond those identified by the
Supreme Court in Bancorp. When the question is whether to vacate
a judgment in a controversy that has become moot, the reason for the
mootness, and in particular, the responsibility, if any, of the respective
parties for causing the mootness, combined with the public interest in
the judicial product itself, would seem for the most part to exhaust the
list of possibly relevant considerations.3
_________________________________________________________________

§ 2864 (1973)), such is most often sought and obtained under Rule
60(b)(5), pursuant to the standards (at least when the vacatur is sought
on the grounds of a significant change in law, as in this case) that we
explain infra. Rule 60(b)(5) authorizes vacatur, among other times, when
"it is no longer equitable that the judgment should have prospective
application."

3 We recognize that a few courts have concluded that, because of a dis-
trict court's greater familiarity with the facts and its other institutional
advantages relative to an appellate court, district courts should have
broader discretion to make the equitable determination whether to grant
vacatur or not. See, e.g., American Games, 142 F.3d at 1170; Krolikowski
v. Volanti, 1996 WL 451307 at *3 (N.D. Ill. Aug. 7, 1996). However, it
does not follow from these undisputed institutional differences that dif-
ferent standards should govern the exercise of the vacatur power by

                     10
Third, there is nothing in the language of the respective vacatur
authorities that would require, or even suggest, that different equitable
standards do, or should, govern exercise of the respective vacatur
powers. Undoubtedly in recognition of the equitable character of the
vacatur remedy, the text of neither provision sets forth a substantive
standard to be applied in making the vacatur decision. Section 2106
simply provides that

          The Supreme Court or any other court of appellate jurisdic-
          tion may affirm, modify, vacate, set aside or reverse any
          judgment, decree or order of a court lawfully brought before
          it for review, and may remand the cause and direct the entry
          of such appropriate judgment, decree, or order, or require
          such further proceedings to be had as may be just under the
          circumstances.

And Rule 60(b)(6) merely authorizes the district court to "relieve a
party [. . .] from a final judgment, order, or proceeding for [. . .] any
other reason justifying relief from the operation of the judgment." In
fact, the 1946 Advisory Committee Notes even state that nothing in
Rule 60(b) "assume[s] to define the substantive law as to the grounds
for vacating judgments."

Fourth, even though the Supreme Court has not expressly observed
as much, there actually are close parallels between the considerations
that the Court held in Bancorp are relevant in deciding whether to
vacate a judgment due to mootness and the considerations the Court
has identified as relevant generally under Rule 60(b)(6) when "relief
from the operation of [a] judgment" is sought. See, e.g., Ackermann
_________________________________________________________________

appellate and district courts. At most, these institutional differences sug-
gest that a deferential standard of review on appeal might apply to a dis-
trict court's decision to vacate its own judgment, and also that appellate
courts should in appropriate cases remand requests for vacatur to district
courts, see Bancorp, 513 U.S. at 29, to make the frequently fact-intensive
determination of whether "exceptional circumstances" exist. These insti-
tutional differences, however, do not provide reason to conclude that the
standards governing appellate and district-court vacatur are or should be
different.

                     11
v. United States, 340 U.S. 193 (1950). In Ackermann, the petitioner
sought relief under Rule 60(b)(6) from a judgment of denaturaliza-
tion, albeit not on grounds of mootness. The Court characterized such
relief as "extraordinary," as in Bancorp it characterized the relief of
vacatur under 28 U.S.C. § 2106. And the Court affirmed the denial of
petitioner's vacatur motion specifically on the ground that petitioner
had made a "voluntary, deliberate, free, untrammeled choice [. . .] not
to appeal," id. at 200, just as the Court in Bancorp withheld the rem-
edy of appellate vacatur (for mootness) from one who had, through
settlement, "voluntarily forfeited his legal remedy by the ordinary
processes of appeal or certiorari." 513 U.S. at 25.

Although Ackermann does not specifically articulate the public
interest in terms of the "presumptive[ ] correct[ness]" of judicial pre-
cedents and their "valu[e] to the legal community as a whole," as did
the Court in Bancorp, see 513 U.S. at 26 (citation omitted), its obser-
vation that "[t]here must be an end to litigation someday," Acker-
mann, 340 U.S. at 198, similarly mirrors the Court's observation in
Bancorp that the public interest dictates that "the orderly operation of
the federal judicial system" must be respected. See 513 U.S. at 27.
Thus, although not itself a case of vacatur for mootness, in one of the
few cases in which the Supreme Court has considered the standards
governing district court relief from judgment under Rule 60(b)(6), the
Court rested its decision on considerations notably similar to those
which it held in Bancorp were relevant to the appellate court vacatur
decision.

Finally, consistent with the fact that vacatur is an equitable remedy
and that nothing in the text of the appellate and district court authori-
ties of 28 U.S.C. § 2106 and Rule 60(b)(6) requires or suggests that
different standards govern the vacatur decisions of the respective
courts, district courts have long vacated (or not) their own judgments
due to mootness on the same grounds that appellate courts have
vacated appellate judgments.

There is little caselaw to draw upon in the four-year period
between Rule 60(b)(6)'s promulgation and the Supreme Court's deci-
sion in United States v. Munsingwear, 340 U.S. 36 (1950), the semi-
nal precedent pre-Bancorp on appellate vacatur due to mootness.
However, our research reveals that in the forty-four years between the

                     12
Court's decision in Munsingwear and its decision in Bancorp, the pre-
vailing, even if not uniform, practice among district courts was to
automatically vacate their own judgments in cases that became moot,
as was the practice in the appellate courts under Munsingwear. See
Munsingwear, 340 U.S. at 39 (noting that it had been the Court's "es-
tablished practice" to "reverse or vacate" a judgment of a subordinate
court that had become "moot while on its way [to the Court] or pend-
ing [the Court's] decision on the merits"). Although some did not,
many did so expressly (if mistakenly) on the authority of Munsing-
wear. And some did so, even explicitly recognizing the limitation of
the Court's holding in Munsingwear to appellate vacatur, if not to
Supreme Court vacatur, either for the same prudential reasons that
had prompted the appellate courts to do so or perhaps in recognition
of the futility of doing otherwise given that appellate vacatur would
almost certainly occur otherwise. But the general practice in the dis-
trict courts was to automatically vacate for mootness.

And, although arguably too few cases in which district courts have
been confronted with motions to vacate on grounds of mootness exist
post-Bancorp to establish a general trend, it appears that the district
courts still generally follow the appellate courts, vacating (or not)
their own judgments using the different standards that now govern the
appellate court vacatur decision -- namely, the standards set forth in
Bancorp. Like their pre-Bancorp predecessors, some of these courts
have done so, altogether failing to appreciate the doctrinal distinction
between appellate and district-court vacatur and thus believing them-
selves bound by the holding of Bancorp. Still others, however, have
done so, recognizing both the doctrinal distinction between the two
vacatur powers and that Bancorp does not bind the district courts, but
concluding, as we do today, that the Bancorp considerations are none-
theless of great relevance to the district court vacatur decision. As the
court observed in Carter v. Rosenberg & Estis, 1999 WL 13036
(S.D.N.Y. Jan. 13, 1999), for example:

          Although not specifically addressed to Rule 60(b), district
          courts have interpreted U.S. Bancorp to alter the standard
          for granting a Rule 60(b) motion [from the Second Circuit's
          former rule requiring district courts "to vacate a judgment
          once the parties had settled"] [. . . .]

                     13
Id. at *2; see also Agee v. Paramount Communications, Inc., 932 F.
Supp. 85, 87 (S.D.N.Y. 1996), appeal dismissed, 114 F.3d 395 (2d
Cir. 1997) (holding that "[t]he considerations explored in Bancorp
[. . .] are also relevant on the district court level"). Only the Ninth Cir-
cuit -- and it only arguably -- has rejected the view that the stan-
dards set forth in Bancorp should also be relevant to a district court's
vacatur decision under Rule 60(b)(6), holding in American Games,
Inc. v. Trade Prods., Inc., 142 F.3d 1164 (9th Cir. 1998), that district
courts should continue to employ a broad, open-ended "equitable bal-
ancing test" under which they "decide whether to vacate [their] judg-
ment[s] in light of `the consequences and attendant hardships of
dismissal or refusal to dismiss' and `the competing values of finality
of judgment and right to relitigation of unreviewed disputes.'" 142
F.3d at 1168 (quoting Dilley v. Gunn, 64 F.3d 1365, 1370-71 (9th Cir.
1995) (quoting Ringsby Truck Lines, Inc. v. Western Conference of
Teamsters, 686 F.2d 720, 722 (9th Cir. 1982))).

We therefore hold that the Bancorp considerations that are relevant
to appellate vacatur for mootness are also relevant to, and likewise
largely determinative of, a district court's vacatur decision for moot-
ness under Rule 60(b)(6), even if those considerations do not neces-
sarily exhaust the permissible factors that may be considered by a
district court in deciding a vacatur motion. We also hold that vacatur
is available as a remedy to the district court, as it is to the appellate
court, see Bancorp, 513 U.S. at 29, in "exceptional circumstances,"
even where the considerations of relative fault and the public interest
would otherwise counsel against vacatur.

Applying the considerations of fault and public interest, we affirm
the district court's decision to vacate its declaratory judgment as to
the non-referenda provisions of the West Virginia statutes. In this
case, the mootness was, as noted, caused by the state legislature's
amendment of statutory provisions that it had earlier enacted, and not
by the actions of any of the defendants before this court, all of whom
are state executive officials, none of whom is the Governor. There-
fore, defendant state executive officials are "in a position akin to a
party who finds its case mooted [. . .] by`happenstance,' rather than
events within its control." National Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997). As a result, the princi-
pal consideration under Bancorp counsels in favor of vacatur. See

                     14
Bancorp, 513 U.S. at 25 and n.3.4 And, given that the non-referenda
statutory provisions that were declared unconstitutional either no lon-
ger exist or have been substantially revised, and there is no suggestion
of their likely reenactment, we see the public interest as no bar to
vacatur of the declaratory judgment.

Accordingly, we affirm the district court's vacatur of its declara-
tory judgment that the statutes' non-referenda provisions were uncon-
stitutional.

IV.

In addition to vacating its declaratory judgment, the district court
also vacated its injunction, pursuant to which it had enjoined enforce-
ment of the statutes' various non-referenda provisions. The district
court vacated its injunction on the assumption that that vacatur deci-
sion, too, was governed by the Supreme Court's decision in Bancorp.
In its assumption that Bancorp governed this decision as well, the dis-
trict court also erred, not only (as with its declaratory judgment) for
the reason that Bancorp's holding technically applies solely to appel-
late vacatur, but also because the vacatur of injunctive orders under
Rule 60(b)(5)5 is governed by the altogether different standards set
forth by the Supreme Court in Agostini v. Felton, 521 U.S. 203
(1997), where, as here, the vacatur is sought on the grounds of a sig-
nificant change in fact or law.
_________________________________________________________________

4 Because none of the changes in state law responsible for the mootness
of this controversy were changes in administrative or executive regula-
tions, we need not address ourselves to the question reserved by the
Court in Bancorp of whether the "repeal of administrative regulations"
can "fairly be attributed to the Executive Branch when it litigates in the
name of the United States." Bancorp, 513 U.S. at 25 n.3.

5 The district court did not specify whether it vacated its injunction
under Rule 60(b)(5) or (6). See note 1 supra. Given that it is Rule
60(b)(5) that, on its face, authorizes relief from such judgments that have
prospective application, we will assume for purposes of this opinion that
the court proceeded pursuant to its Rule 60(b)(5) authority. Of course,
we can affirm the district court's vacatur of its injunction under Rule
60(b)(5), as we do, even if it were the case that the court proceeded under
Rule 60(b)(6).

                    15
In Agostini, which postdated Bancorp, the Court held that modifi-
cation or vacatur of an injunction under Rule 60(b)(5), which pro-
vides for relief from judgment when "it is no longer equitable that the
judgment should have prospective application," is required where
there has been "a significant change either in factual conditions or in
law." 521 U.S. at 215 (citing Railway Employees v. Wright, 364 U.S.
642, 647 (1961), and quoting Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367, 384 (1992)). Thus, in contrast to the inquiry for vacatur
of a declaratory judgment due to mootness under Rule 60(b)(6), con-
siderations of relative fault and public interest are irrelevant to the
inquiry for modification or vacatur of an injunction under Rule
60(b)(5) on the grounds of a significant change in fact or law.

Here, however, despite having mistakenly assumed that Bancorp
governed its vacatur decision with respect to the injunction, the dis-
trict court did vacate its injunction. And, as we have explained, the
statutory changes upon which the vacatur motion was based were
indeed substantial. Therefore, without hesitation, we also affirm the
district court's vacatur of the injunctive portion of its 1997 order.

V.

In their cross-appeal, defendant state officials challenge the district
court's refusal to vacate those portions of its permanent injunction
and declaratory judgment pertaining to the referenda provisions of the
challenged state statutes. Defendants contend, inter alia, that the dis-
trict court was without jurisdiction to enter these portions of its
injunction and declaratory judgment, since Valero did not have stand-
ing to challenge the constitutionality of these referenda provisions.
We agree.

As to the statutory provisions requiring local referenda on the cre-
ation of "Class `A'" dumpsites, it is clear that Valero lacked standing.
There is no indication in the record, or in Valero's submissions to this
court, that Valero had even intended to build a new "Class `A'" facil-
ity. Consequently, it was purely speculative and hypothetical that
such a referendum would have caused Valero any injury, and there-
fore the Article III standing requirement of an injury in fact plainly
was not satisfied. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., 120 S. Ct. 693, 704 (2000) (citing Lujan v. Defenders of Wild-

                    16
life, 504 U.S. 555, 560-61 (1992), for the proposition that a plaintiff
must show an injury in fact that is "actual or imminent, not conjec-
tural or hypothetical"). Similarly, Valero lacked standing to challenge
the constitutionality of the statutory provisions allowing local voters
to petition for a local referendum on the expansion of certain dump-
sites, because it was also purely speculative that such a referendum
would have even been called, let alone that Valero would have suf-
fered any cognizable injury therefrom.

Because the district court was without jurisdiction to enter these
portions of its permanent injunction and declaratory judgment relating
to the referenda provisions of the challenged state statutes, we our-
selves vacate these portions of the original injunction and declaratory
judgment.

CONCLUSION

The district court in 1997 issued a permanent injunction and a
declaratory judgment against the operation of both the referenda and
non-referenda provisions of the West Virginia Code that we cite at the
outset of this opinion. In 1999, the district court vacated both the per-
manent injunction and the declaratory judgment, insofar as they
related to the non-referenda provisions of the challenged state stat-
utes, but left intact the injunction and the declaratory judgment, inso-
far as they related to the referenda provisions of the challenged state
statutes.

Because Bancorp's twin considerations of relative fault and public
interest are largely determinative of the district court's decision
whether to vacate its own declaratory judgment due to mootness, and
because the mootness-inducing statutory amendments were not
caused by defendant state executive officials, we affirm the district
court's vacatur of its declaratory judgment, insofar as that declaratory
judgment related to the non-referenda provisions. Because the district
court was required under Agostini to vacate its permanent injunction,
insofar as that injunction related to the non-referenda provisions, we
affirm the district court's vacatur of this portion of its permanent
injunction.

Because the district court was without jurisdiction to enter those
portions of its permanent injunction and declaratory judgment that

                    17
related to the referenda provisions, we ourselves vacate those portions
of the district court's original injunction and declaratory judgment.

AFFIRMED IN PART; VACATED IN PART

                    18
