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Plaintiff,
VS.
Eleventh Circuit,l but failed to reach an agreem ent. The Eleventh Circuit heard oral
argum ents and,m ore than one year later,sua sponte referred the parties to m ediation again.
ln this second m ediation,the parties reaehed a tentative settlem ent agreement- tentative
because itSsisexpressly conditioned and contingentupon theissuance ofa final,written order
vacating''thisCourt's d'Sum m ary Judgm ents and the resulting CostOrders....''DE 242,at
filing ofa notice of appealto entertain and deny a Rule 60(b) motion.''f#.at 1179-80
possessjurisdiction tograntaRule60(b)motion.''f#.at1180(emphasisadded).
Accordingly,adistrictcourtpresented with aRule60(b)motion afteranotice
of appealhas been filed should consider the m otion and assess its merits. It
m ay then deny the motion orindicate its beliefthatthe argum ents raised are
m eritorious.Ifthe districtcourtselects the lattercourse,the movantm ay then
justitses relief.''The rule enables courts flto vacate judgments whenever such action is
appropriate to accomplish justice.'...M otions under the rule are directed to the sound
discretion ofthe districtcourt.''Gr#hn v.Swim-Tech Corp.,722 F.2d 677,680 (11th Cir.
1984)(quotingKlapprottv.United States,335 U.S.601,615 (1949)).Therefore,thisCourt
mustdeterm inewhethervacating itspriorordersto fulfilla condition ofthe parties'tentative
ANALYSIS
AzTheBancorp Decision
ln U S.Bancorp M ortg. Co.v.Bonner M allP '
shlp,513 U.S.18, 19 (1994),the
Suprem e Courtconsidered dwhetherappellate courtsin the federalsystem should vacatecivil
Partnership petitioned for Chapter 11 bankruptcy. 1d. Bancorp m oved to suspend the
autom atic stay ofits foreclosure,which m otion the bankruptcy courtgranted.1d.at20.The
United StatesD istrictCourtforthe Districtofldaho reversed the bankruptcy court,and the
United States Courtof Appeals for the Ninth Circuit affirm ed.1d.A fter the United States
Supreme Courtgranted Bancorp's petition fora writofcertiorari,the parties stipulated to a
consensual plan of reorganization, which the bankruptcy court approved. 1d. The
S'confirm ation of the plan constituted a settlem entthatm ooted the case,''butBancorp was
M unsingwear,Inc.,340U.S.36(1950):
W e stated thatiigtjhe established practice oftheCourtin dealing with a civil
case from a courtin the federalsystem which has becom e m ootwhile on its
way here or pending our decision on the m erits is to reverse or vacate the
thejudgment.SeeHamburg-Amerikanische,supra,239 U.S.,at477-478,36
S.Ct., at 216-217.The sam e is true when m ootness results from unilateral
action of the party who prevailed below .See Walling,321 U .S.,at 675,64
S.Ct., at 828; H eitmuller, supra, 256 U .S., at 362, 41 S.Ct., at 523-524.
W here m ootness results from settlem ent, however, the losing party has
voluntarily forfeited his legalrem edy by the ordinary processes of appealor
certiorari,thereby surrendering his claim to the equitable remedy ofvacatur.
exception'
.
Thisisnotto say thatvacaturcan neverbe granted when m ootnessisproduced
in thatfashion.A s we have described,the determ ination is an equitable one,
and exceptional circum stances m ay conceivably counsel in favor of such a
course.ltshould be clearfrom ourdiscussion,however,thatthose exceptional
circum stances do not include the mere fact that the settlem ent agreem ent
provides for vacatur- which neither diminishes the voluntariness of the
abandonm ent of review nor alters any ofthe policy considerations w e have
discussed.
This statem ent has lef'
t lower courts with the am bitious task of determ ining what
circum stancesare 'kexceptional''enough to counterm and the presumptive value ofprecedent,
the imperative to honor the dem ands of orderly procedure, and the failure of equity that
ordinarily resultsfrom an appellant'svoluntary forteiture ofreview .
K PosL-Bancorp'theCircuitsFind idExceptionalCircumstances''
By allowing forthepossibility ofkexceptionalcircum stances,''the Suprem e Courtdid
notcom pletely close the doorto vacatur based on m ootness by reason of settlem ent.Itleft
the First Circuit.f#. at 118.The IN S appealed the district court's ruling before the BIA
issued a decision./#.D uring oralargum ent,the FirstCircuitproposed thatthe partiessettle,
and directed counselfor both sides to discuss itwith their clients.As a result,the parties
agreed thatthe 1N S would grantM otta a tem porary stay of deportation com parable to that
granted him by the districtcourt,on the condition thatthe districtcourt'sopinion,which the
1NS viewed asiia dangerousand erroneousprecedent''were vacated.f#.
absolute certainty ofnotbeing deported,while the governm ent saves the costs and risk of
7
litigation a w in for both sides.''f#.The First Circuitconcluded that bfthe equities plainly
favorvacatur''based on mootnessby reason ofsettlem ent.f#.at118.
attemptto negotiate a settlem ent.'Fo aid discussionr''the court Siassigned staff counselto
mediatethematter.''1d.at151.Afterdiscussions,thepartiesjointlyreported that%itheycould
settlethe dispute butonly ifthe districtcourt'sorderand opinion werevacated.''Id.
The Second Circuit obliged.lt vacated the district court's order and opinion and
communications).
9
the case rem ains isundesirable underthese circum stances.''Id.at417 n.1.The Cox opinion
offersno guidancehere.
The Courtalso notesthatthe Eleventh Circuit,sitting en banc,recently dism issed an
appealas m oot due to settlem ent,which the parties achieved after briefing,oralargum ent,
and areferralto m ediation by the en bancpanel.Berry v.Orange Cr//y'.,N o.13-14092,2015
with instructions to vacate the judgmentand dismiss the lawsuit.Id.The district court's
opinion had been aftirm ed by the three-m em berpaneldecision thatwasvacated pending en-
g
banc review .See Scrr.pv.Leslie,767 F.3d 1144 (11th Cir.2014),opinion vacated on reh'
en bancsub nom.Berry v.Orange fk/.1'
.,771F.3d 1316(11th Cir.2014).Theen bancorder
ofdism issaland rem and doesnotm ention Bancorp.
C. The InstantCase
10
on an interpretation of state law ,thus having lim ited precedential value to the public.''
D E 242, at8.4
The Courtagreesthatthese circum stances are analogous to those found in the M otta
and M ajor League Baseball decisions. The Court disagrees that they are sufficiently
Vtexceptional''to escapeBancolp'sstrong disfavorofvacaturbased on mootnessby reason of
settlem ent.
First,this Coul'
t diffkrs w ith the First and Second Circuits as to the parties' tsrst
513 U.S.18,24 (1994).The Supreme Courtreasoned that,asthe losing party below bears
the burden ofproving lequitable entitlementto the extraordinary rem edy of vacatur,''that
party's ivvoluntary forfeiture ofreview constitutesa failure of equity thatm akes the burden
decisive''againstvacatur.1d at26.In thisCourt'sview,the factthatthe partiesentered into
settlem ent negotiations only upcm the urging of the appellate court,and the fct that the
Having made thatchoice,appellantsuflkrs fi-om that iblack of equity ofa litigantwho has
voluntarily abandoned review .''1(1.at28.
limited precedential value ofthis Court'sjudgments--based on state 1aw as they areconstitutesan -'exceptionaleircunastance,''sAlthough the Bancorp Courtconsidered am otion
tovacatethejudgmentofa coul'tofappeals,theCoul'tdiscussedtherelevanceofitsholding
iagain assertredj the inappropriateness of disposing of cases, whose merits are beyond
judicialpowertoconsider,on thebasisofjudicialestimatesregardingtheirmerits.''ld.
lfitis inappropriateto disposeofcases,whose meritsare beyondjudicialpowerto
consider,on thebasisofjudicialestimatesregarding theirmerits,then how much more so is
'l-hey are not m erely the property of private litigants and should stand unless a court
Seimitsu.
&-4).
0 )0 KabushlkiKaisha v.U S.Phill
psCorp.'510U.S.27,40 (1993)(Stevens,J.,
dissentingl)(emphasisadded).
ltis upon consideration ofthisstatem ent,and ofthe sound policy behind it,thatthis
Coul't perceives a basic tlaw in the M otta and Major Zctzp/c Baseball opinions.Those
decisionsin partturn on the courts'determ inationsthatlittleorno harm would be worked by
at 26-27
settledoesnotjustify theextraordinaryreliefofvacatur.
111.
CONCLUSION
DONE and O RDER ED in Cham bers atthe Jam es Lawrence King FederalJustice
Building and United StatesCourthouse,M iam i,Florida,this27th day ofM ay,2015.
JAM ES LAW N CE K IN G
UN ITED STATES DISTRICT J
SOU THERN DISTRICT OF FL
E
DA
A 1lCounselofRecord