But what about the U.S> Supreme Court case in Bancorp. Mtg in 1994? Is there a way to distinguish Bancorp?
U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) Rule:
Vacatur will not be ordered where the appellant is responsible for causing mootness. U.S. Bancorp Mortgage Corp. v. Bonner Mall Partnership, 513 U.S. at 24-25 (the principal equitable factor to which the Court has looked is whether the party seeking vacatur caused the mootness by voluntary action. Where mootness results from settlement or other strategic decision of the appealing party, the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the extraordinary equitable remedy of vacatur).)
Bancorp emphasizes the need for consideration of equity and the public interest for vacatur determination
“Equitable principles have always been implicit in this Court's exercise of the vacatur power…” U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) “[I]t is the losing party who has the burden of demonstrating equitable entitlement to vacatur.” (Id.)
“ As always when federal courts contemplate equitable relief, our holding must also take account of the public interest. “Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.” Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40, 114 S.Ct. 425, 428, 126 L.Ed.2d 396 (1993) (STEVENS, J., dissenting).
Congress has prescribed a primary route, by appeal as of right and certiorari, through which parties may seek relief from the legal consequences of judicial judgments. To allow a party who steps off the statutory path to employ the 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. Munsingwear establishes that the public interest is best served by granting relief when the demands of “orderly procedure,” 340 U.S. at 41, cannot be honored; we think conversely that the public interest requires those demands to be honored when they can.” U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. at 26.
