                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-2285


CATAWBA RIVERKEEPER FOUNDATION; CLEAN AIR CAROLINA,

                 Plaintiffs − Appellees,

           v.

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NICHOLAS J.
TENNYSON, in his official capacity as Secretary of NCDOT,

                 Defendants – Appellants,

           and

FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN,            in   his
official capacity as Division Administrator of FHWA,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:15−cv−00029−D)


Argued:   September 21, 2016                Decided:   December 13, 2016


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Vacated and remanded with instructions by published opinion.
Judge Diaz wrote the opinion, in which Judge Duncan and Judge
Keenan joined.


ARGUED: Scott Thomas Slusser, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. Kimberley
Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North
Carolina, for Appellees.     ON BRIEF: Roy Cooper, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina,   for  Appellants.     Ramona  H.  McGee,   SOUTHERN
ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for
Appellees.




                              2
DIAZ, Circuit Judge:

       This     appeal      involves     the       proposed    construction         of    the

Gaston       East-West      Connector, 1      a     22-mile    toll     road   in        North

Carolina       spanning       from     southeast         Gaston    County      to        west

Mecklenburg County with new crossings over the South Fork and

Catawba Rivers.            The Catawba Riverkeeper Foundation and Clean

Air Carolina (collectively, the “Conservation Groups”) brought

suit       against   the    North     Carolina       Department    of    Transportation

(“NCDOT”),       the      Federal    Highway        Administration,      and   officials

representing         those        agencies,        challenging    the     environmental

analysis       conducted      for     the     Connector.         The    district      court

granted the Conservation Groups’ motion for summary judgment.

       Before the district court ruled, the North Carolina General

Assembly stripped the Connector of its funding and repealed the

statute that expressly authorized its construction.                            And after

the district court entered judgment, state and local authorities

removed the Connector from the various planning models for such

projects.            At    oral     argument,        NCDOT    represented      that       the

Connector is no longer viable.                     In light of these developments,

we conclude that this appeal is moot and accordingly vacate the

district court’s judgment.




       1   The Connector is known locally as the Garden Parkway.


                                               3
                                             I.

                                             A.

       Local    planners       in    Gaston       County,    North      Carolina            first

considered the need to construct a bypass to improve east-west

mobility between Gaston County and Mecklenburg County in the

late 1980s.          NCDOT began studying the project in 2001, meeting

with other agencies and local authorities to assess the benefits

of the project relative to alternatives such as mass transit or

improvements to existing roadways.                   In coordination with these

officials,      NCDOT     determined         that    building       a       “new       location

freeway”       more      effectively         addressed       the        goals          of     (1)

“improv[ing]         east-west      transportation        mobility      .    .     .   between

Gastonia       and     the     Charlotte          metropolitan       area”          and       (2)

“establish[ing] direct access between the rapidly growing area

of southeast Gaston County and west Mecklenburg County.”                                     J.A.

723.

       As   required      by       the   National     Environmental              Policy       Act

(“NEPA”),      42    U.S.C.    §    4321,    et    seq.,    NCDOT    and      the      Federal

Highway     Administration          (collectively,          the    “Agencies”)              began

assessing      the    environmental         impact   of     the   project. 2            In    the


       2
       This assessment, which includes time for public notice and
comment, ultimately leads to the preparation of a Record of
Decision.    The Record of Decision “identifies the Selected
Alternative, presents the basis for the decision, identifies all
the alternatives considered, specifies the ‘environmentally
(Continued)
                                              4
meantime,       the   North    Carolina       General    Assembly        designated       the

Connector       a   candidate       project    subject    to     the   control      of   the

North    Carolina         Turnpike    Authority.         N.C.    Gen.     Stat.     §    136–

89.183(a)(2)(b) (2006) (repealed by 2013 N.C. Sess. Laws § 5.1).

The     General       Assembly        also     gave     the      Turnpike        Authority

conditional power to propose additional projects not expressly

authorized in the statute, provided they were “approved by the

General    Assembly         prior     to   construction”        and     “shown      in   the

current    State      Transportation          Improvement       Plan.”        Id.   §    136-

89.183(a)(2) (2006).

      In April 2009, the Agencies published for public review and

comment     a       draft     Environmental        Impact       Statement        for     the

Connector.          The draft statement considered twelve alternative

“new location” controlled-access toll roads, ranging from 21.4

to 23.7 miles in length, assessed each alternative’s capacity to

meet the project’s needs, and compared each with a “no-build”

baseline    alternative.             The     Agencies    also     forecasted        traffic

demand and distribution in the geographic area through 2030,

creating    both      a    “build”    forecast     depicting       how    a   network     of




preferable alternative,’ and provides information on the adopted
means to avoid, minimize, and compensate for environmental
impacts.” J.A. 1480.



                                              5
transportation         facilities      would       operate    with    projected    future

traffic volumes and a “no build” baseline forecast.

       To develop the traffic forecasts, the Agencies relied on

data       derived    from    socioeconomic          forecasts       prepared    by    area

planning       organizations          that      assumed       construction        of     the

Connector.       The Agencies superimposed each alternative onto this

set    of    socioeconomic          projections      and     eliminated      alternatives

from       further    study    on    this     basis.       The    draft   Environmental

Impact       Statement      also     contained       a    qualitative     Indirect       and

Cumulative      Effects       (“ICE”)    report,         describing    the    Connector’s

estimated effects on growth and land use, wildlife habitat, and

water resources in the geographic area.

       In response to requests from environmental advocates and

other agencies, the Agencies also published a quantitative ICE

report that analyzed future land-use change.                         They first created

a   “build”     forecast       and     then    employed       a   “gravity      model”    to

reallocate the growth effects to create the “no build” forecast

baseline. 3          The   Agencies determined that construction of the

Connector would result in 3,700 additional households and 300




       3
       A gravity model produces quantified results that can serve
as the basis for assessing land use change.            The model
“essentially   holds   that   all   other   factors   influencing
development held constant, growth will shift towards areas with
the greatest relative accessibility improvement as a result of
the project.” J.A. 2350.


                                               6
fewer jobs in the study area when compared to the “no build”

forecast.

      The Agencies subsequently published a final Environmental

Impact Statement, addressing public and other agency comments on

the earlier draft statement and identifying the Connector as the

preferred alternative.             They estimated the Connector’s cost to

be about $943 million, to be paid for by toll revenue bonds, an

annual $35 million appropriation of “gap” funding from the North

Carolina     General      Assembly,     and    other     funding   sources.       In

February     2012,     the    Federal    Highway       Administration   issued     a

Record      of    Decision,        identifying      the     Connector       as    the

“environmentally           preferable         alternative . . . because            it

represents the best overall balanced minimization of all impacts

analyzed.”       J.A. 3747.

                                         B.

      The Conservation Groups participated in the NEPA process

for   the   Connector,       submitting       comments    and   attending     public

meetings    to    voice    their    concerns    about     the   integrity    of   the

environmental analysis conducted by the Agencies.                   Following our

decision in North Carolina Wildlife Federation v. North Carolina

Department of Transportation, 677 F.3d 596 (4th Cir. 2012), 4 the


      4That case concerned the proposed construction of the
Monroe Connector Bypass by the Agencies. 677 F.3d at 598. We
concluded that the Agencies violated NEPA by failing to disclose
(Continued)
                                          7
Groups urged the Federal Highway Administration to rescind the

Connector’s     Record     of       Decision           and     prepare     a     supplemental

Environmental        Impact         Statement.                  The      Federal       Highway

Administration declined to do so.

       The   Conservation          Groups        thereafter        filed       suit    in     the

Western      District      of        North            Carolina         pursuant       to      the

Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”),

seeking: (1) a declaratory judgment that the Agencies violated

NEPA    by   conducting        a    deficient          environmental           analysis,     (2)

vacatur of the Record of Decision, and (3) injunctive relief.

After the parties filed cross-motions for summary judgment, the

court   transferred       the      case     to       the    Eastern    District       of    North

Carolina.

       While the motions were pending, the North Carolina General

Assembly      passed        legislation                    requiring      a       data-driven

prioritization process to score and rank proposed transportation

projects     based   on    a       number    of        factors,       including       cost   and




to the public that the Bypass’s underlying NEPA analysis relied
on socioeconomic data that assumed construction of the Bypass
and   by    disseminating   erroneous   information   about  that
assumption.    Id. at 603.    Although we did not decide whether
NEPA   permitted   the   Agencies   to  use   data  assuming  the
construction of the Bypass when creating a “no build” baseline,
we noted that “courts not infrequently find NEPA violations when
an agency miscalculates the ‘no build’ baseline or when the
baseline assumes the existence of a proposed project.” Id.



                                                 8
congestion.          N.C.    Gen.     Stat.       §   136-189.11.          The     Connector

received a low score under this new funding formula, ranking

below 1,200th place.              The General Assembly subsequently repealed

that    portion      of     the    statute    giving        the    Turnpike        Authority

express power to build the Connector, 2013 N.C. Sess. Laws §

5.1, and rescinded the Connector’s earmarked $35 million annual

funding. 2013 N.C. Sess. Laws § 4.8 (striking funding for the

“Garden Parkway,” previously codified at N.C. Gen. Stat. § 136-

176(b2)).

       Given these developments, the district court directed the

parties      to    brief    whether    the        court    retained    subject        matter

jurisdiction and whether the Turnpike Authority still had the

power to build the Connector.                     The parties urged the court to

resolve the pending motions for summary judgment, arguing that

the Turnpike Authority could still build the Connector as an

unspecified project because it remained on the list of approved

projects at both the state and local levels.

       The    court       proceeded     to        the     merits     and        granted   the

Conservation Groups’ motion for summary judgment, holding that

the    alternatives        analysis    underlying          the     Connector       “violated

NEPA and the APA by using the same set of socioeconomic data

that    assumed      construction       of    the       [Connector]        to    assess   the

environmental impacts of the Build and No Build alternatives.”

J.A. 324.         The district court also agreed with the Conservation

                                              9
Groups      that   the   Agencies    failed    to     adequately      assess    and

disclose the Connector’s environmental impacts, reasoning that:

      [D]efendants'    fundamental  assumption   that   the
      [Connector] would have no effect on overall growth in
      the Metrolina region, unsupported by any evidence
      showing complete saturation of the region, and their
      use of the gravity model to reallocate assumed growth
      in the No Build condition constitute clear error and
      violates NEPA and the APA.

J.A. 325.      The court consequently vacated the Record of Decision

for the Connector. 5

      Following the district court’s ruling, the last domino fell

for   the    Connector   when   it   was    removed    from   local    and     state

transportation plans, 6 which in turn meant that it was no longer

eligible for federal funding.          In short, the Connector no longer

has the statutory authority or funding to proceed.



                                      II.

      NCDOT appeals the merits of the district court’s decision.

But preliminarily, it also contends that the case is now moot,

and   therefore     seeks   vacatur    of     the   district    court’s        order

granting summary judgment to the Conservation Groups.                     Because

we agree with NCDOT that developments subsequent to the district

      5The Court declined to grant injunctive relief, finding it
unnecessary given its ruling.
      6The project remains on a 2040 horizon year plan prepared
by local authorities, but it now takes the form of a 3.4-mile
long bridge crossing facility.


                                       10
court’s ruling render the appeal moot, we do not address the

merits of the district court’s ruling.

       Article III limits the jurisdiction of federal courts to

cases and controversies.             U.S. Const. art. III, § 2, cl.1.            “The

doctrine     of   mootness      originates     in   Article     III's     ‘case’    or

‘controversy’ language.”             Incumaa v. Ozmint, 507 F.3d 281, 286

(4th Cir. 2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.

332,   352    (2006))    (internal      quotation     marks     omitted).       Thus,

“[t]o remain a justiciable controversy, a suit must remain alive

throughout     the     course   of    litigation,    to   the    moment    of   final

appellate disposition.”          Bahnmiller v. Derwinski, 923 F.2d 1085,

1088 (4th Cir. 1991) (internal quotation marks omitted).

       “[E]ven if a plaintiff has standing when he or she files a

complaint, subsequent events can moot the claim.”                         Pashby v.

Delia, 709 F.3d 307, 316 (4th Cir. 2013).                 “A case becomes moot,

and thus deprives federal courts of subject matter jurisdiction,

when the issues presented are no longer ‘live’ or the parties

lack   a     legally    cognizable      interest     in   the    outcome.”         Id.

(internal quotation marks omitted).                 In other words, a case is

moot when “our resolution of an issue could not possibly have

any practical effect on the outcome of the matter.”                       Norfolk S.

Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.

2010).



                                          11
     NCDOT contends that this case became moot when local and

state   planners      removed    the       Connector          project      from     their

respective     transportation        improvement         plans,       rendering       the

Connector     “no    longer      eligible         for     federal          funding     or

construction    regardless      of   the    merits       of    the    NEPA    issue    on

appeal.”     Appellants’ Br. at 32–33.             At oral argument, counsel

for NCDOT represented that “the [Record of Decision] is really a

nullity,” and further that “[t]his Project is defunct.                            It’s no

longer moving forward.”          See also Appellants’ Br. at 26 (“The

Project . . . is no longer viable”).

     In turn, although the Conservation Groups concede that the

Connector    now    lacks   funding,       they    say    that       the   case     still

presents a live controversy because the Record of Decision that

approved the project has not been rescinded and could thus “be

used to allow construction of the Connector at a later date.”

Appellees’ Br. at 24.       As they see it, little more than shifting

political priorities and funding hinder NCDOT from using the

Record of Decision to build the Connector on the basis of an

allegedly flawed NEPA analysis.            We do not agree.

     As things now stand, the Connector faces multiple barriers

to construction.      To be built, it must overcome the poor ranking

it received under the new funding formula enacted by the General

Assembly,    local    and   state      planners         must    reincorporate         the

Connector    into    the    various    local       and     state      transportation

                                       12
improvement      plans,    and    the      state    legislature           must   reallocate

about $900 million to the project.                        Moreover, even if these

events    come     to     pass,       clearing          the    Connector’s          path    to

construction, we are not persuaded by the Groups’ assertion that

NEPA’s implementing regulations allow the Agencies to conduct

only a “superficial” and cursory reevaluation of the Connector’s

Record of Decision.             See 23 C.F.R. § 771.129(b) (requiring a

written evaluation of the final Environmental Impact Statement

if “major steps to advance the action . . . have not occurred

within    three    years    after       the      approval      of    the    final     EIS”).

Instead, the regulatory regime under which the Agencies operate

renders the likelihood that NCDOT would proceed immediately to

construct the Connector pursuant to a now four-year-old Record

of Decision exceedingly remote.

       Under    these     circumstances,           we    decline      the    Conservation

Groups’ request to issue “an opinion advising what the law would

be upon a hypothetical state of facts.”                       Preiser v. Newkirk, 422

U.S. 395, 401 (1975) (quoting North Carolina v. Rice, 404 U.S.

244, 246 (1971)).          “[W]e may only decide cases that matter in

the    real    world,”    and    as    such,       can    offer      no    relief    to    the

Conservation      Groups    because        the    Connector         and    its   underlying

NEPA   analysis,    deficient         or    not,    pose      only    hypothetical         and

speculative harm.         Norfolk, 608 F.3d at 161 (internal quotation

marks omitted); see also Preiser, 422 U.S. at 402 (a request for

                                            13
declaratory relief survives a mootness challenge where the facts

“show that there is a substantial controversy, between parties

having      adverse          legal    interests,          of     sufficient      immediacy       and

reality     to     warrant         the   issuance          of    a    declaratory      judgment”)

(internal           quotation            marks            omitted);           Connecticut         v.

Massachusetts, 282 U.S. 660, 674 (1931) (An injunction “will not

be granted against something merely feared as liable to occur at

some indefinite time in the future.”).

       In sum, given the remote possibility that the Connector

could    proceed        pursuant         to    the     allegedly        deficient       Record    of

Decision, and given NCDOT’s representations on appeal that the

Connector         is    no     longer         viable,       we       cannot    agree     with    the

Conservation Groups that “[r]evival of the Connector is a real

possibility.”           Appellants’ Br. at 28.                   This case is moot.



                                                 III.

       We    turn       now    to     whether        we    should       vacate    the     district

court’s judgment.              The Conservation Groups contend that even if

the case is moot, vacatur is improper because the circumstances

that    deprive         us    of     subject     matter          jurisdiction      are    not    the

product      of    “happenstance,”              but       rather      the     direct    result    of

NCDOT’s     lobbying          and    decisions.            In     other     words,     the   Groups

argue that NCDOT contributed to the Connector’s demise, mooting

this case.             But as we explain, we do not think it proper to

                                                  14
impute the actions of state legislators and local planners to

NCDOT.         Accordingly,             we    shall     vacate        the       district     court’s

judgment.

                                                  A.

     Our “customary practice when a case is rendered moot on

appeal    is     to    vacate           the   moot     aspects      of      the    lower     court's

judgment.”          Norfolk, 608 F.3d at 161.                     In such circumstances,

the equitable remedy of vacatur “‘clears the path for future

relitigation of the issues between the parties.’”                                        Alvarez v.

Smith,     558      U.S.      87,        94    (2009)      (quoting         United       States     v.

Munsingwear, 340 U.S. 36, 40 (1950)).

     The Supreme Court, however, has recognized exceptions to

this general practice in instances where mootness occurs through

the voluntary action of the losing party, rather than through

happenstance.               See    U.S.       Bancorp      Mortg.      Co.       v.     Bonner    Mall

P'ship,    513        U.S.        18,    29    (1994)      (“[M]ootness            by    reason    of

settlement          does     not        justify       vacatur     of        a     judgment       under

review.”); Karcher v. May, 484 U.S. 72, 82–83 (1987) (vacatur

inappropriate when losing party fails to pursue its appeal).

Consistent with that precedent, we too have said that “‘vacatur

normally       is     not    appropriate          .    .   .   when      the      losing     party's

deliberate          actions        have       rendered         moot      an       otherwise       live

controversy.’”              United States v. Springer, 715 F.3d 535, 541

(4th Cir. 2013) (quoting Remus Joint Venture v. McAnally, 116

                                                  15
F.3d 180, 185 (6th Cir. 1997)).                     “The rationale for this rule is

that appellants should not be allowed to escape the preclusive

effect of an adverse district court judgment simply by taking a

unilateral action during the pendency of their appeal to moot

the matter.”         Id. at 542.

      However, where “appellate review of the adverse ruling was

prevented by ‘the vagaries of circumstance,’” vacatur remains

available,       “subject     .     .    .    to    considerations         of    the       public

interest.”        Valero Terrestrial Corp. v. Paige, 211 F.3d 112,

117–18    (4th       Cir.   2000)       (quoting      Bancorp,      513    U.S.       at    25)).

Thus,    when     determining       the       propriety    of       vacatur      in    a     moot

appeal,     our      decision      is    “informed       almost       entirely,        if     not

entirely,       by    the    twin       considerations         of     fault      and       public

interest.”       Id. at 118.

                                               B.

      The       Conservation            Groups       contend        that        vacatur        is

inappropriate         because     NCDOT       “contributed       to    the      mootness       of

which they now complain,” by lobbying the General Assembly for

the   enactment       of    the    new       transportation      funding        statute       and

formally    approving        the    Connector’s         removal       from      the    state’s

transportation improvement program.                     Appellees’ Br. at 30.                  We

do not agree.

        We dispel first the Groups’ assertion that NCDOT’s support

of transportation funding reform—characterized by the Groups as

                                               16
an    “intentional       intercession          in    the        legislative     process”—is

sufficient    to    impute         the    actions     of    the    General      Assembly    to

NCDOT.     Id.      To the contrary, our precedent counsels against

conflating the actions of a state executive entity with those of

a state legislature.            Valero, 211 F.3d at 115.

       In Valero, the appellant corporation brought suit against

various     West    Virginia             executive     agencies,          challenging      the

constitutionality         of    certain       provisions         of     the   West    Virginia

Code    pertaining       to    waste      disposal        and    management     regulation.

Id.     The district court declared the provisions constitutionally

invalid    and     issued      a    permanent        injunction         prohibiting     their

enforcement.       Id.        Shortly after judgment was entered, the West

Virginia    Legislature         revised       the    enjoined          provisions,    mooting

the case and prompting the executive agencies to seek vacatur of

the adverse decision.              Id.

       On appeal, we affirmed the district court’s vacatur of its

decision, distinguishing explicitly between the actions of the

state legislature in amending the statutory provisions at issue,

thereby    mooting    the       case,      from     the    actions       of   the    defendant

state     executive       officials,          holding           that     “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.”    Id. at 121 (internal quotation marks omitted).                              As a



                                              17
result, we concluded that the principal consideration of “fault”

counseled in favor of vacatur.               Id. 7

     Similarly,      here,      NCDOT,      a    state     executive         agency,         is   a

separate entity from the North Carolina General Assembly.                                    That

NCDOT     lobbied       the     General         Assembly        in     support          of     the

transportation      funding        reform       does      not    alter        this      central

distinction,      nor    does      it   warrant      the      conclusion           that      NCDOT

“caused”    the     Connector’s           demise.         See        Chem.        Producers       &

Distribs. Ass'n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006)

(“Lobbying Congress or a state legislature cannot be viewed as

‘causing’    subsequent       legislation         for     purposes       of       the   vacatur

inquiry.    Attributing       the       actions      of   a     legislature          to      third

parties    rather   than      to    the    legislature          itself       is    of   dubious

legitimacy . . . .”).

     In sum, to the extent that the enactment of transportation

funding reform helped to render this case moot, we view it as


     7 Our sister circuits have also distinguished the actions of
an executive entity from those of the legislature for purposes
of the “voluntary action” presumption against vacatur.       See,
e.g., Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 195 (3d
Cir. 2001) (vacating a lower court’s judgment as mooted by
legislative amendment and rejecting the appellee’s assertion
that the appellant Federal Aviation Association “misuse[d] . . .
the legislative process” to encourage Congress to amend the
challenged statute “to frustrate an unfavorable judgment”);
Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346,
353 (D.C. Cir. 1997) (presumption against vacatur “is usually
inapplicable when legislative action moots a case and the
government seeks vacatur”).


                                            18
the     consequence        of        actions       of     the    North       Carolina       General

Assembly, not NCDOT.                 See Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1131 (10th Cir. 2010) (“[T]he acts

of     the   legislature          are       not     the     acts       of    executive          branch

agencies, states, or private parties.”).

       We    turn    next       to    the    Groups’        assertion         that    vacatur       is

inappropriate because NCDOT intentionally mooted the case when

it    approved      the     removal         of     the    Connector          from    the    state’s

transportation improvement program.                        Two points readily dispense

with    this   argument:          (1)    planners          at    the    local       level       retain

discretion          over        which        projects           to     include        in         their

transportation improvement plans, 23 C.F.R. § 450.326(a), and

(2)     federal      regulations             require        that        an     approved          local

transportation plan be included in the state’s transportation

improvement program without change.                        See 23 C.F.R. § 450.218(b).

As such, although NCDOT approved the Connector’s removal from

its statewide plan, that result was a fait accompli following

the local planning agency’s decision to remove the Connector

from its transportation plan.                           Put simply, NCDOT did not act

voluntarily to moot this case.

                                                   C.

       Finally,       we    consider             the     public      interest.             We     have

recognized      that       “there       is     a   substantial          public       interest       in

judicial judgments.”                 Valero, 211 F.3d at 118.                  This is because

                                                   19
“[j]udicial precedents are presumptively correct and valuable to

the legal community as a whole.”                       Id.      (quoting Bancorp, 513

U.S. at 26).           In Bancorp, the Supreme Court’s concern for the

public       interest       led     the   Court     to   withhold        the     remedy     of

appellate vacatur from the losing party who had mooted the case

through settlement, thereby “voluntarily forfeit[ing] his legal

remedy by the ordinary processes of appeal or certiorari.”                                 513

U.S. at 25.           The Court reasoned that employing the remedy of

vacatur       in     that    instance        constituted        “a     refined      form    of

collateral         attack    on     the   judgment”      that        would   “disturb      the

orderly operation of the federal judicial system,” and therefore

did not serve the public interest.                  Id. at 27.

       This concern, however, did not prevent the Court in Bancorp

from     “stand[ing]          by”     the     proposition        that        “mootness     by

happenstance provides sufficient reason to vacate.”                              Id. at 23,

25 n.3 (citing Munsingwear, 340 U.S. at 40–41).                                  We see no

reason    to       depart    from    that    general     principle       here.       Because

events    beyond       the    parties’       control     have    mooted      this    appeal,

leaving      the     district       court’s    decision      undisturbed         would     not

serve the public interest.



                                              IV.

       For     the    reasons       given,    we    vacate      the    district      court’s

judgment and remand the case with instructions that the district

                                              20
court dismiss the action.   See Mellen v. Bunting, 327 F.3d 355,

364 (4th Cir. 2003) (“If a claim becomes moot after the entry of

a district court's final judgment and prior to the completion of

appellate review, we generally vacate the judgment and remand

for dismissal.”).

                                            VACATED AND REMANDED
                                               WITH INSTRUCTIONS




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