Last month, we explained that the settlement between the plaintiffs and Michigan’s Governor Whitmer in Gary B. v. Whitmer might end up ultimately vacating the Sixth Circuit’s pathbreaking right-to-literacy ruling in that case. The parties informed the Court of the settlement and the plaintiffs promised to file a motion to dismiss. But some defendants had already petitioned for rehearing en banc and other amicus parties (including ten state Attorneys-General and a homeschooling association) also asked for the decision to be taken en banc and overruled. Those briefs presented a dozen different attacks on the decision.
Interestingly, the Sixth Circuit did not grant any of those requests but instead granted en banc review on its own sua sponte. Under Circuit Rule 35(b), granting en banc review automatically vacates the prior panel’s decision. The plaintiffs then moved to dismiss because the settlement had mooted the dispute, and, yesterday, the en banc court dismissed the case as moot. By acting sua sponte to take case en banc, and then dismissing the case as moot, the Circuit did not endorse any of the theories pushed by the defendants or amici. And the decision itself was neatly vacated without the need for even a Munsingwear analysis.
The Detroit Free Press reports that the parties have taken this turn of events with equanimity. The plaintiffs, after all, still have their settlement, and even a vacated decision might be helpful somewhere down the line. And, except for the items Governor Whitman agreed to in the settlement, the defendants do not have any legal repercussions or awkward precedent.