(dissenting).
Judge Holtzoff’s opinion discussing the merits and directing summary judgment for the Government was marked “Filed” by the Clerk of the District Court on June 26, 1961, as the majority say. For that reason, they seem to treat this case as an appeal from a judgment entered June 26 pursuant to the opinion which was marked “Filed” as of that date. But the opinion was dated May 22, 1961, and the summary judgment it directed was actually filed May 24,1961.
By motion filed May 31, 1961, Marcello asked the court to reconsider and to set aside the judgment. The motion was denied June 5. Then Marcello moved on June 9 to vacate the summary judgment of May 24. On June 20 Judge Holtzoff denied the motion to vacate and delivered a second opinion giving his reasons for doing so. (The two opinions are printed together in 194 F.Supp. 750, where the first is correctly dated May 22, 1961, and the date of the second is incorrectly given as June 23 instead of June 20.) All this occurred, before June 26, the day when the majority assume the first opinion was delivered.
It may be concluded, I think, that the summary judgment would not have been filed if the judge had not authorized it, and there is no indication of authorization in the record except the opinion dated May 22. The difference is material because, when the District Court spoke by its judgment of May 24, Marcello had not returned to the United States, or at least there was nothing in the record suggesting he had done so,1 and so there was nothing to indicate mootness as to the question of re-entry. Consequently the District Court was quite justified in considering the case on the merits, and in exercising its discretion to enter summary judgment for the Attorney General. That is to say, the matter of Marcello’s re-entry was not moot on May 22 when the opinion was delivered, nor on May 24 when the summary judgment ordered by it was filed. The majority erroneously conclude that Judge Holtzoff’s summary judgment dealt with the factual situation *878as it was said to exist on June 20, when the motion to vacate the judgment of May 24 was denied, or on June 26 when the opinion of May 22 was marked “Filed.” In fact, the judgment of May 24 dealt with the situation as it existed on that date, and the orders of June 5 and June 20 denying the motions to reconsider and vacate dealt with the propriety of the judgment of May 24.
The notice of appeal says nothing of June 26. It shows Marcello was appealing from the summary judgment of May 24, the order of June 5 denying reconsideration, and the order of June 20 denying the motion to vacate. Consequently, we must determine the propriety of the summary judgment of May 24 on the record as it then existed. So considered, I think it is clear that the summary judgment should be affirmed for the reasons given in Judge Holtzoff’s original opinion of May 22. Being of that view, I think the motion for reconsideration was properly denied on June 5.
There remains only the question whether the District Court correctly denied the motion to vacate. Implicit in the majority opinion is the notion that Judge Hoitzoff should have granted the motion to vacate the summary judgment of May 24 and instead should have declined jurisdiction, merely because he was told at some later date that Marcello was back in the United States. But, as I have said, the District Court had spoken as of May 24, and a subsequent development —even if established — did not change the situation with respect to which it had adjudicated the rights of the parties by granting summary judgment to the Attorney General. It can hardly be said that, because of an event which occurred in June, the District Court did not appropriately exercise its jurisdiction to decide the case on facts submitted to it in May. Surely a judgment which decides an existing case or controversy is not mooted by an event which occurs after its entry.
The majority opinion seems to me to be more favorable to Marcello than he deserves. It assumes that the summary judgment mf May 24, 1961, based on the opinion of May 22, would somehow prejudice Marcello in defending himself against an anticipated criminal indictment in another jurisdiction. In the first place, I do not think the judgment in a civil action here would have any effect in such a criminal action; and, in the second place, if the May 24 judgment has such an effect, Marcello should not be heard to complain, as he instituted the action in which the judgment was entered.
I note the Attorney General opposed the motion to vacate the judgment even though it was said in June, when the motion was made and argued, that Marcello had then returned to the United States. He did not suggest that Judge Hoitzoff should vacate his judgment because of a later development or because of prospective litigation in another forum. I think the motion to vacate was properly denied.
I would affirm on the basis of Judge Holtzoff’s opinion of May 22.
. The first suggestion to Judge Holtzoff that Marcello had re-entered the United States was during his consideration of the motion to vacate made on June 9 and deified June 20.