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.

• Author: David L. Schoen
• Pages: 16-23

Appellate Practice

Winter 2021, Vol. 40 No. 1

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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