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April 03, 2014 Articles

Consequences of Mootness on Appeal

The factors the courts consider relevant in determining when the order dismissing an appeal should also vacate the previous judgment.

By David L. Schoen

Because federal courts generally only have subject-matter jurisdiction over live controversies, when a case becomes moot during the appellate process, the appropriate first step is a dismissal of the appeal. Mills v. Green, 159 U.S. 651, 653 (1895). In this situation, the appellate court is often called upon to consider whether it should also vacate the lower-court judgment already entered in the case. This decision can have significant consequences for the parties before the court and for future litigants.

The Munsingwear Decision: The “Established Practice” of Vacatur
The supervisory power of the appellate courts over judgment of lower federal courts is broad. Under 28 U.S.C. § 2106,

[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

In United States v. Munsingwear, Inc., 340 U.S. 36, 39–40 (1950), the U.S. Supreme Court stated that the established practice of the Court when the case becomes moot on appeal is vacatur of the lower court’s judgment. The Court in Munsingwear, albeit in dicta, emphasized the fairness and importance of vacating any judgment that preceded mootness in order “to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.”

Over the next 40 years or so, courts have followed the Supreme Court’s guidance about the vacatur being the “established practice” and, with few exceptions, expanded its application broadly, consistent with Munsingwear’s dicta. The Supreme Court ordered vacatur in cases that became moot on appeal by “happenstance,” through a settlement between the parties during the appeal, or through the unilateral action of the party who prevailed in the lower court, without drawing distinctions among these categories of moot cases. See, e.g., Great W. Sugar Co. v. Nelson, 442 U.S. 92 (1979) (granting vacatur of a judgment requiring arbitration of a dispute when mootness was caused by completion of arbitration proceedings); Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120 (1985) (per curiam) (granting vacatur when mootness was caused by settlement). Occasionally, however, a case here and there was dismissed for mootness without an order of vacatur. See, e.g., Allen & Co. v. Pac. Dunlop Holdings, Inc., 510 U.S. 1160 (1994); Minn. Newspaper Ass’n, Inc. v. Postmaster Gen., 488 U.S. 998 (1989); St. Luke’s Fed’n of Nurses & Health Prof’ls v. Presbyterian/St. Luke’s Med. Ctr., 459 U.S. 1025 (1982).

The Bancorp Decision: The Rule of No Vacatur Following Voluntary Settlement
In 1994, the Supreme Court decided to reconsider the broad use of vacatur that followed in the wake of Munsingwear, taking the opportunity to directly address the issue in United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). In Bancorp, theCourt broke from Munsingwear and held that when a case becomes moot by reason of a settlement, as opposed to circumstances unattributable to any of the parties, vacatur of the judgment under review is not appropriate. The Court focused on the equitable nature of vacatur and the principle that in crafting equitable relief, a court must “take account of the public interest.” In determining that it is not in the public interest to vacate a court’s judgment simply because the parties had reached an agreement on the matters at issue in the judgment, the Court wrote, “Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely property of private litigants and should stand unless a court concludes that the public interest would be served by vacatur.”

The Bancorp Court distinguished the case before it from other causes for mootness in dicta, writing that, in contrast to mootness caused by settlement, vacatur is appropriate when it is either happenstance or the unilateral action of the party who prevailed in the lower court that causes the underlying case to become moot during the appeal. In these circumstances, the party who lost in the lower court and sought the appeal, but was “frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” Id. at 25; see also Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 n.15 (5th Cir. 2009) (noting that Bancorp rejected Munsingwear’s“automatic vacatur after a finding of mootness on appeal,” deeming it instead to be an “extraordinary” equitable remedy to be granted only after a fact-specific equitable analysis, but requiring vacatur when it is the prevailing party below who made the case moot on appeal). By contrast, mootness by reason of settlement does not justify vacatur of a judgment under review because the losing party “has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur.” These principles apply whether the case becomes moot while before a federal circuit court or pending review by the U.S. Supreme Court. Bancorp, 513 U.S. at 28–29.

The Bancorp decision indisputably narrowed the application that had been given to Munsingwear. It had a particularly significant impact in those circuits that—like the Eleventh Circuit—had taken the broadest view of Munsingwear and applied it in automatic fashion to order vacatur when the case became moot through the parties’ settlement. Compare, e.g., Singh v. Carnival Corp.,No. 13-11850, 2013 WL 5788581, at *3 (11th Cir. Oct. 29, 2013) (emphasizing Bancorp’s narrowing effect on Munsingwear’s “broad rule”), with Key Enters. of Del., Inc. v. Venice Hosp., 9 F.3d 893 (11th Cir. 1993) (broadly applying Munsingwear). Today, while the general principle is that mootness on appeal should not lead to vacatur when it was procured through settlement, the remedy of vacatur nonetheless remains a matter for the exercise of discretion by the appellate court. Singh, 2013 WL 5788581, at *3; U.S. Bancorp Mortg. Co., 513 U.S. at 29; Sossamon, 560 F.3d at 326 n.15.

Subsequent Cases
Given the equitable nature of the vacatur remedy and the exercise of discretion underlying the inquiry under Bancorp, the question of when vacatur should be part of the relief granted when a case becomes moot on appeal continues to defy any simple across-the-board definition. The scenarios in which courts are called upon to consider the issue are many and are of great variety. The Bancorp decision provides a starting point for the analysis, but often little more. Its focus on the “public interest” inevitably requires a value judgment, subject to broad discretion, and as the Bancorp Court itself recognized, even determining when the cause of mootness is “happenstance” as opposed to an action ultimately attributable to a party or a “settlement” is no easy matter. 513 U.S. at 25 n.3.

Some courts have characterized the focus in determining whether vacatur is appropriate after Bancorp as being on the “twin considerations of ‘fault’ and ‘public interest.’” See Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 (4th Cir. 2000) (noting that, “absent unusual circumstances, the appellate vacatur decision under Bancorp is  [13] informed almost entirely, if not entirely, by the twin considerations of fault and public interest”); Ford v. Wilder, 469 F.3d 500, 506 (6th Cir. 2006) (noting the same and rejecting vacatur where subsequent legislative action mooted events related to special election). But again, this formulation does little to concretize the application of a principle that is by its nature pliable and subject to discretion.

In the absence of a concrete standard, the best the parties can do is pay attention to the Supreme Court’s decisions in the mootness arena. In analyzing whether to vacate the lower court’s judgment, these decisions focused on the reason for the case having become moot, the point in the appellate process when the case became moot, and the implications that the vacatur would have on broader public interest. The following are just some of the mootness situations with which the U.S. Supreme Court has had to wrestle since the Bancorp decision.

Vacatur is appropriate where the case becomes moot through happenstance and through no fault of the parties and inappropriate when caused by the party’s deliberate conduct. Continuing with its theme in Bancorp, the Supreme Court clarified that vacatur is appropriate where the case becomes moot on appeal through no fault of the parties and, conversely, inappropriate when caused by one of the parties. In Anderson v. Green, 513 U.S. 557 (1995), for example, the Court confronted a case that was “live” when the district court and circuit court entered judgment, but became moot after the request for certiorari was granted, through no action or fault attributable to the parties. California passed a law distinguishing between welfare benefits paid to long-time residents and those who just moved into the state. Welfare recipients challenged the law as unlawfully discriminatory and won in both lower courts. The law depended on a waiver from the U.S. Department of Health and Human Services, and while the waiver was in place when the lower courts decided the case, it was removed when the case was pending before the Supreme Court. Under those circumstances, the Supreme Court ordered vacatur of both lower-court judgments to “clear the path for future relitigation of the issues.”

In its subsequent decisions, the Supreme Court adhered to the idea that vacatur is more appropriate when the case becomes moot through happenstance rather than through deliberate action of the parties. See, e.g., Alvarez v. Smith, 558 U.S. 87 (2009) (ordering vacatur after determining that event causing mootness more closely resembled “happenstance” than a mutual settlement); Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277 (2012) (denying claim of mootness after certiorari grant, based on unilateral attempt at remedial action by losing party below, and noting that “post-certiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye”); ACLU of Mass. v. United States, 705 F.3d 44 (1st Cir. 2013) (ordering a vacatur when the expiration of a contract rendered claims for injunctive and declaratory relief moot and distinguishing this “happenstance” from a unilateral “voluntary cessation” that is “capable of repetition, yet evading review”).

A year after Bancorp, the Court considered Stutson v. United States, 516 U.S. 193 (1996). There, the Court also ordered vacatur in a case regarded as having become moot through no party’s fault where the government changed its position from opposing the appellant before the Eleventh Circuit to agreeing with the appellant in response to the petition for certiorari. The majority’s vacatur of the lower court’s judgment drew a sharp rebuke from Justice Scalia in dissent, based on what he viewed as an unauthorized use of the power to order vacatur without any consideration of whether there was error in the lower court’s decision. Lawrence v. Chater, 516 U.S. 163, 177 (1996) (Scalia, J., dissenting) (decided same day as Stutson).

A year after the Stutson decision, the Supreme Court decided Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). There, the plaintiff in the lower court sued state officials based on her fear that she would be fired for speaking Spanish on her job as a state employee after an “English-only” initiative had passed. The Ninth Circuit struck down the law as unconstitutional, but the plaintiff had left her position before the decision was rendered. The Supreme Court granted certiorari but dismissed the case as moot and ordered the Ninth Circuit decision vacated, based on the prevailing party’s unilateral action that had rendered the case moot. The Court emphasized the duty of counsel to immediately inform the tribunal of any circumstance bearing on mootness.

Finally, in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), the Court clarified that vacatur is improper when the case became moot through the defendant’s voluntary cessation of the offending practice. There, the circuit court had dismissed the case and vacated the judgment (a monetary-damages award) based on a finding of mootness arising from the losing defendant’s voluntary cessation of the offending practice during the litigation. The Supreme Court reversed, reaffirming the principle that a losing party’s voluntary cessation ordinarily does not render a case moot. In his concurring opinion, Justice Stevens wrote to emphasize that, even if the case were moot, there would be no basis to vacate a valid monetary judgment based on the losing party’s cessation of the offending practice. Justice Scalia’s dissent took issue with the majority opinion both on the question of mootness and on its lengthy discussion regarding the relationship between mootness and standing. He emphasized the inter-relationship between the two doctrines and viewed the majority’s discussion that treated the two concepts as distinct as a “too hasty retreat from (the Court’s) characterization of mootness as ‘the doctrine of standing set in a time frame.’” Id. at 212 (citations omitted).

In sum, courts are reluctant to vacate the underlying decision where mootness was attributable to deliberate actions by one of the parties.

Vacatur is improper where the case originates from state court. One other factor that may be relevant to the vacatur question is whether the case before the court arises from a state court’s interpretation of federal law. For example, in ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), the Supreme Court expressly noted the complicated issues that can arise when a state-court case becomes moot or a determination is made that standing is lacking during the appellate process. Historically, when a case arising from a lower federal court becomes entirely moot, the practice is to vacate the lower court’s judgment and remand with a direction to dismiss the action, with the power to do so predicated on the Court’s “supervisory power over the judgments of lower federal courts.” However, when the case arises from a state court, not subject to Article III, the practice has developed that it is more appropriate to dismiss the case while leaving the judgment of the state court undisturbed. The latter practice flows from the Court’s dual concerns that, because there no longer is a live case or controversy, it lacks jurisdiction and thus the power to disturb the state-court judgment and that vacating the state court’s judgment would be disrespectful of the state court. Id. at 621–22; see also City of Erie v. Pap’s A.M., 529 U.S. 277, 305 (2000) (elaborating on the special concerns arising out of the reality that the “case comes to us on writ of certiorari to a state court, so that our lack of jurisdiction over the case also entails . . . a lack of jurisdiction to direct a vacatur”).

Additional complications arise when the state court’s judgment bound the parties based on its conclusions on matters of federal law. ASARCO, Inc., 490 U.S. at 621–22. That is so because the state court’s conclusions about federal law are not binding on the parties where they were not subject to any federal review.

Thus, vacatur is almost never appropriate if the case originates from state court but becomes moot while pending on appeal to the U.S. Supreme Court.

Special rule on vacaturs in qualified-immunity cases. There are other “exceptional” circumstances that justify vacatur of the judgment under view. The decision in Camreta v. Greene, 131 S. Ct. 2020 (2011), provides an example of an exceptional application of the rule on vacaturs, expressly carving out a case raising qualified-immunity issues for special treatment. In the plaintiff’s Bivens claim against a law-enforcement officer, the lower court found a Fourth Amendment violation but entered judgment in the officer’s favor on qualified-immunity grounds. The case became moot during the appellate process. The Supreme Court allowed the officer to seek review of the underlying Fourth Amendment-based decision, notwithstanding his status as the prevailing party in the lower courts, specifically to enable him to vacate the underlying Fourth Amendment decision that could have had ramifications for future litigation on the issue of qualified immunity.

Vacatur might not be warranted if the case becomes moot before issuance of the mandate. One issue that appears to have spawned a fair measure of controversy is whether a vacatur is appropriate when a case becomes moot after a circuit court’s decision but before the mandate issues. Most courts hold that vacatur should not be ordered when the case becomes moot after an appellate decision is rendered but prior to the issuance of the mandate by the court of appeals. See, e.g., United States v. Payton, 593 F.3d 881, 883 (9th Cir. 2010) (noting the majority rule and cataloguing cases; citing the Fifth Circuit as standing alone in the minority); In re Link_A_Media Devices Corp., 449 F. App’x 946, 946–47 (Fed. Cir. Dec. 16, 2011) (declining to vacate a decision where mootness arose after the decision but before the mandate; characterizing this approach as consistent with its “sister courts”); United States v. Doe (In re Grand Jury Investigation), 399 F.3d 527 (2d Cir. 2005) (noting that the court generally has discretion to leave its order intact where the circumstances leading to mootness arose after the decision but before the mandate); Humphreys v. Drug Enforcement Admin., 105 F.3d 112, 115 (3d Cir. 1996) (drawing sharp distinction between consequences of mootness before decision on the merits and mootness after decision on merits but before mandate). Courts adhering to the majority view focus on the nature of the issuance of the mandate as a ministerial act that should not determine the outcome of the mootness inquiry. See, e.g., Bastien v. Senator Ben Nighthorse Campbell, 409 F.3d 1234 (10th Cir. 2005) (declining to vacate the judgment on the grounds of mootness after an opinion has been handed down, even though the mootness arose before the mandate was issued, and noting that “the mere fact that the ministerial act of issuing the mandate remains to be completed should not determine the outcome”); Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992) (the mandate is merely the official means of communicating judgment to the district court and returning jurisdiction to the district court; stay of mandate does not affect precedential effect of decision returned); see also 11th Cir. R. 36-3, IOP 2 (“Under the law of this circuit, published opinions are binding precedent. The issuance or non-issuance of the mandate does not affect this result.”); Finberg v. Sullivan, 658 F.2d 93, 97 n.6 (3d Cir. 1981) (expressing concern that a losing party might seek to delay the issuance of the mandate and, in the interim, take steps to moot the case before the mandate issues).

The minority of the courts—particularly the Fifth Circuit—permit vacatur even though the case became moot prior to the issuance of the mandate. See United States v. Miller, 685 F.2d 123 (5th Cir. 1982) (per curiam) (ordering vacatur when mootness arose after decision and before mandate); United States v. Carraway, 483 F.2d 215 (5th Cir. 1973) (en banc) (ordering vacatur of its own decision and dismissal of the underlying indictment when mootness arose after its decision and before mandate). More recently, however, even the Fifth Circuit has recognized that Bancorp rejected the rule of “automatic vacatur after a finding of mootness on appeal.” Sossamon, 560 F.3d at 326 n.15. Accordingly, the Fifth Circuit has characterized vacatur as an “extraordinary” remedy that is to be granted “only after a fact-finding balancing of the equities between the parties.” Id.

Frequently, even courts within the same circuit are split as to when a vacatur of the lower court’s decision is warranted when a case becomes moot prior to the issuance of the mandate. For example, the Eleventh Circuit has been particularly inconsistent on this issue, with its decisions often at odds with each other and with its own local rules. It appears now to have joined the majority view that vacatur should not be issued when the case becomes moot after the court’s decision on the merits but before the mandate issues. See Singh v. Carnival Corp., No. No. 13-11850, 2013 WL 5788581, at *2–4 (11th Cir. Oct. 29, 2013). In arriving at this conclusion, the Eleventh Circuit was influenced by the Supreme Court’s decision in Bancorp, as well as by the insignificance of the issuance of the mandate in the appellate process, finding support for the same in its own local rules. At the end of the day, however, the Eleventh Circuit reaffirmed the principle that whether to order a vacatur based on mootness is a matter properly left to the discretion of the court in each case. Based on the majority view, when mootness arises between the decision and the issuance of the mandate, the court should exercise its discretion in favor of vacatur in only the most rare cases.

While the established practice of the Supreme Court in dealing with a civil case that has become moot pending the court’s decision on the merits is to reverse or vacate the judgment below, the vacatur analysis must also take into account several other factors. These factors are (a) what caused the case to become moot—voluntary action of the parties or a “happenstance”; (b) whether the case originated from state court, particularly when it interpreted federal law; (c) whether the public interest would be best served by vacating a decision that had decided the previously live controversy between the parties—as in the case of qualified immunity; and (d) when in the appellate process the case became moot—before or after the issuance of the mandate. Throughout the weighing process, courts maintain a considerable amount of discretion in deciding whether to vacate an underlying judgment.

Keywords: litigation, appellate practice, vacatur, Munsingwear, Bancorp Mortgage Co. v. Bonner Mall Partnership

David I. Schoen is a solo practitioner in Montgomery, Alabama, focusing primarily on the litigation of complex civil and criminal cases before trial and appellate courts.

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