Dismissal yields two opinions.
The Ninth Circuit does not automatically vacate panel opinions once en banc rehearing is granted. Instead, it merely orders that the opinion may not be cited as precedent. As a result, the order dismissing Animal Legal Defense Fund v. Veneman, and vacating the previous opinion in accordance with the agreement of the parties, is accompanied by both a concurrence and a dissent, each discussing the propriety of vacating an opinion because of agreement of the parties.
In concurring with the vacation, Judge Bybee, explains that the Ninth Circuit does not automatically vacate the panel opinions because such vacation results in their deletion from the West reporter system. Bybee also notes that Lexis treats the panel opinion as vacated, even though no vacation actually occurred.
Judge Thomas, writing for a six judge dissent, argues that a vacatur is not justified by voluntary settlement of the parties.
