Those who review Supreme Court Order Lists with any frequency are used to seeing, at the beginning of each list, a series of cases where petitions are granted, judgments vacated, and cases remanded “for further consideration” in light of a recently issued Supreme Court decision. The point of such orders (commonly known as “GVRs”) is obviously to dispose of all the follow-on or related petitions that have piled up at the Court presenting the same or a closely related question to one being resolved by the Court through plenary review. The Sentencing Guidelines’ decision, United States v. Booker, 543 U.S. 220 (2005), may have set the record for GVR-inspiration, prompting literally hundreds of such orders directing reconsideration in light of that landmark ruling.

Perched amid those traditional vacatur orders on Monday’s Order List was a case where the Court employed a far less well-known and less frequently employed basis for vacatur. In Radian Guaranty, Inc. v. Whitfield, No. 07-834, the Supreme Court ordered the Third Circuit’s decision in that case vacated based on a 58-year old Supreme Court decision, United States v. Munsingwear, Inc., 340 U.S. 36 (1950). (Disclosure: Akin Gump served as counsel of record for the petitioner.)

What’s Munsingwear, you might ask? That, fortunately, is much easier to answer than “what happened to Big Brown at the Belmont Stakes?” Munsingwear addresses what to do with a court of appeals decision when the case becomes moot while it is pending on review by a higher court (whether the Supreme Court or a court of appeals). In Munsingwear, the Supreme Court held that, where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated. “[T]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” 340 U.S. at 39.

There are caveats to that rule, however, making Munsingwear vacatur a less-than-straightforward course to navigate, and one that has occurred in Supreme Court practice only a handful of times in the last five years. (Besides Radian Guaranty, Munsingwear vacatur was ordered last Term in three cases: Selig v. Pediatric Specialty Care, Inc., 127 S. Ct. 3000 (2007) (No. 06-415) (mootness due to respondents’ unilateral dismissal of complaint); Harper v. Poway Unified School Dist., 127 S. Ct. 1484 (2007) (No. 06-595) (preliminary injunction review mooted by entry of final judgment); and Claiborne v. United States, 127 S. Ct. 2245 (2007) (No. 06-5618) (death of petitioner mooted criminal sentencing dispute). We have been unable to find any other examples in the last five years.

The first and most important caveat is that the party seeking the Supreme Court’s review – the party adversely affected by the now-unreviewable lower court judgment – must not be responsible for the mootness. In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), the Supreme Court held that vacatur would not be ordered when the petitioner was substantially responsible for the mootness – in that case, the case was mooted by settlement. The Supreme Court explained that vacatur due to intervening mootness is an equitable doctrine designed to rescue a losing party whose only opportunity to have an adverse judgment set aside has been frustrated by either the “unilateral action of the party who prevailed below” or the “vagaries of circumstance.” Id. at 25. (“Vagaries of circumstance” would include the death of the petitioner in a case challenging a criminal sentence, as occurred in Claiborne last Term, or the graduation of a high school student, which is part of what mooted Harper last Term (the preliminary injunction petition was also mooted by the district court’s entry of final judgment in the case).)

In the Radian Guaranty case, after the petition was filed, four amicus briefs were submitted in support of the petition (on behalf of the Consumer Mortgage Coalition, Washington Legal Foundation, Consumer Data Industry Association and State Farm Mutual Automobile Insurance Company), and the Court ordered a response to the petition, the respondents unilaterally moved to dismiss their case in district court, and the district court granted the motion before Radian even filed a response. On the one hand, such a dismissal is a great thing for a defendant – the plaintiff walks away empty handed, having recovered nothing in the litigation. On the other hand, by mooting the case, the plaintiff has left adverse precedent on the books that will be res judicata for the petitioner and will be binding adverse precedent for the petitioner and others in the industry in future cases. Munsingwear is the answer to that problem, ensuring that judgments left unreviewable through no fault of the appealing party can be vacated, “clear[ing] the path for future relitigation of the issues between the parties and eliminat[ing] a judgment, review of which was prevented through happenstance.” 340 U.S. at 40.

Munsingwear‘s first limitation thus was easy to satisfy in the Radian Guaranty case. The plaintiffs’ independent dismissal of the case fell squarely within Bonner Mall’s recognition that mootness caused by the “unilateral action of the party who prevailed below” is an appropriate basis for vacatur. That was the same basis on which Munsingwear vacatur was granted last Term in Selig v. Pediatric Specialty Care, Inc., 127 S. Ct. 3000 (2007) (No. 06-415).

The issue of assessing responsibility for mootness can get complicated, however, when (for example) the Executive Branch’s petition is mooted by an intervening Act of Congress (signed into law by the President). Munsingwear, which involved mootness caused by the decontrol of commodities involved in a government enforcement action, suggests that vacatur may be available in those circumstances. Assigning responsibility for mootness can assume Palsgraf like proportions, as occurred in United States v. Weatherhead, 528 U.S. 1042 (1999) (No. 98-1094), when the government’s petition in a Freedom of Information Act case was mooted by the government’s release of the requested document, but where the government argued that its own action was a response to information belatedly disclosed in the case by the respondent. Vacatur was granted in that case, albeit without any citation to Munsingwear. (Order available here.)

Second, Munsingwear vacatur remains a discretionary exercise of the Court’s equitable authority, and when, as in Radian Guaranty, the case is still pending on petition for a writ of certiorari, the general view is that a request for vacatur must persuade the Supreme Court (as all certiorari petitions must do) not only that equitable relief is appropriate, but also that the Supreme Court’s time and intervention are warranted. See Stern & Gressman, Supreme Court Practice § 15.3, at 357 (9th ed. 2007). Obviously, the petition for a writ of certiorari must make a strong case for review on the merits.

After the mooting event occurs, the petitioner can file a “Suggestion of Mootness” (if the respondent has not already done so), and a “Motion to Vacate the Judgment of the Court of Appeals” that explains the equitable basis for vacatur and the reasons why the Court’s exercise of its certiorari jurisdiction is warranted. Radian Guaranty argued that the Court’s intervention was warranted because the underlying decision in the case was flatly contrary to the Supreme Court’s decision last Term in Safeco Insurance Co. v. Burr, 127 S. Ct. 2201 (2007), and thus that the adverse consequences of the court of appeals’ decision would continue to govern Fair Credit Reporting Act cases in the business-heavy Third Circuit unless vacated. The Suggestion and Motion filed in Radian Guaranty are available here (with appendix here).

The long and the short of it is that intervening mootness does not necessarily force a petitioner to live with a now-unreviewable adverse decision. The petitioner may still be able to get the adverse lower court judgment vacated and thus to avoid its res judicata and stare decisis effects.

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