The TTAB then analyzed the source of the District Court’s authority to require the TTAB to vacate its order, concluding that such authority was lacking. The TTAB first held that 28 U.S.C. § 2106, which authorizes “the U.S. Supreme Court or any other court of appellate jurisdiction” to vacate lower court orders, did not apply because the TTAB was not subject to that statute. The TTAB next analyzed Section 21(b) of the Lanham Act, which empowers federal district courts deciding appeals from the TTAB to “adjudge that an applicant is entitled to a registration . . . that a registration involved should be canceled, or such other matter as the issues in the proceeding require, as the facts in the case may appear.”

This normally “involve[s] apparent bias deriving from an extrajudicial source,” rather than from judicial rulings in the case alone. Second, the Court of Appeals has supervisory power under 28 U.S.C. §2106. That supervisory power is not constrained by the limitations of §455(a).

Now, in this amended opinion, the panel affirmed but still remanded “for further consideration as may be just in light of the circumstances.” In a new footnote at the end of his concurrence, Judge Calbresi explains that the panel altered the disposition because “it was called to our attention that 28 U.S.C. § 2106 permits affirmances and remands for further proceedings in the interest of justice, and has been applied in criminal situations.” (citing, inter alia, United States v. Giuliano, 644 F.2d 85, 89 (2d Cir. 1981).

Although the Federal Circuit affirmed the District Court's decision to confirm the arbitral award, the Federal Circuit concluded that the District Court abused its discretion in denying Dow's motion to amend the judgment to use the federal statutory rate for post-judgment interest for the period beginning with the entry of the District Court's judgment. The Federal Circuit therefore exercised its discretion under 28 U.S.C. § 2106 to "affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review," and modified the District Court's judgment to include the relief requested by Dow's motion to amend (i.e., post-judgment interest accruing from the date on which the District Court entered judgment at the rate established in § 1961). The Federal Circuit then affirmed the judgment as modified.Bayer CropScience AG v. Dow Agrosciences LLC (Fed. Cir.

v. Bonner Mall P'ship, 513 U.S. 18, 26-27 (1994) (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting)); see also Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117 (4th Cir. 2000) ("That the respective vacatur powers of the appellate [] and the district courts derive from different sources . . . does not necessarily mean that the standards pursuant to which those powers are exercised are different. In the circumstance of vacatur due to mootness . . . we are satisfied that the standards under 28 U.S.C. § 2106 and Rule 60(b) are essentially the same.").

Accordingly, the parties jointly requested that the Second Circuit vacate that order. The Circuit Court began its analysis by acknowledging that under 28 U.S.C. § 2106, a court of appeals has the power to vacate a judgment brought before it for review. However, the Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) limits the court’s discretion, requiring that when a party who does not prevail appeals, and then settles, it is not entitled to an order vacating the lower court decision absent a showing of equitable entitlement.