United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2004 Decided December 28, 2004
No. 03-1038
NORTHERN CALIFORNIA POWER AGENCY,
PETITIONER
v.
NUCLEAR REGULATORY COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
THE CITY OF SANTA CLARA, CALIFORNIA AND
PACIFIC GAS AND ELECTRIC COMPANY,
INTERVENORS
On Petition for Review of an Order of the
Nuclear Regulatory Commission
Robert C. McDiarmid argued the cause for petitioner. With
him on the briefs were Ben Finkelstein and Andrea G. Lonian.
Grace H. Kim, Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With her on the
brief were Robert B. Nicholson, Assistant Chief, U.S.
Department of Justice, Robert J. Wiggers, Attorney, Karen D.
Cyr, General Counsel, U.S. Nuclear Regulatory Commission,
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John F. Cordes, Jr., Solicitor, and E. Leo Slaggie, Deputy
Solicitor.
David A. Repka argued the cause and filed the brief for
intervenor Pacific Gas and Electric Company. Brooke D. Poole
entered an appearance.
Before: RANDOLPH, ROGERS, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Northern California Power
Agency (“NCPA”) asks us to vacate an order of the Nuclear
Regulatory Commission, issued on February 14, 2003. Pacific
Gas and Electric Company (“PG&E”) held two licenses and
planned to transfer them in connection with its proceedings in
bankruptcy. In the order, the Commission refused to reimpose
antitrust provisions in the licenses upon their transfer. NCPA
filed a timely petition for judicial review of the Commission’s
order. PG&E and the City of Santa Clara intervened.
On April 14, 2004, PG&E filed a motion to dismiss
NCPA’s petition for review as moot. The motion contained the
following statement: “Counsel for the Commission and the
NCPA have indicated that they do not object to the termination
of this proceeding.” Two days later a Clerk’s order granted the
motion, dismissing the case as moot and transmitting a certified
copy of the order “in lieu of formal mandate.” Simultaneously
on April 16, NCPA moved to dismiss its petition as moot and to
vacate the Commission’s order. NCPA’s motion is now before
us. The Commission takes no position on vacatur but questions
our jurisdiction in light of the fact that the mandate has issued.
Intervenor PG&E opposes vacatur. Intervenor City of Santa
Clara has chosen not to participate.
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“Unless the court directs that a formal mandate issue, the
mandate consists of a certified copy of the judgment, a copy of
the court’s opinion, if any, and any direction about costs.” FED.
R. APP. P. 41(a). We have said that “[i]ssuance of the mandate
formally marks the end of appellate jurisdiction.” Johnson v.
Bechtel Assocs. Prof’l Corp., 801 F.2d 412, 415 (D.C. Cir.
1986) (per curiam). This is generally true, but there are
exceptions, as when we direct the mandate to issue immediately
pursuant to FED . R. APP. P. 41(b), and later entertain a petition
for rehearing or rehearing en banc. The mandate in this case
issued nearly a year ago, and the time for a rehearing petition
has long since expired. To restore our jurisdiction, the mandate
would have to be recalled. Although no statute or rule
authorizes the courts of appeals to recall mandates, the practice
has long been recognized as an inherent part of the judicial
power. Johnson, 801 F.2d at 416. The history is recounted in
Greater Boston Television Corp. v. FCC, 463 F.2d 268, 276-77
(D.C. Cir. 1971), and in 16 CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3938, at 712-
16 (2d ed. 1996). Before 1948, when the lower federal courts
sat in terms, judgments of the court remained under its control
during the term. See Hill v. Hawes, 320 U.S. 520, 524 (1944);
Bronson v. Schulten, 104 U.S. 410, 415 (1881). Revisions to the
Judicial Code in 1948 ended the significance of terms of court;
the federal courts are now “always open,” and the expiration of
a term or session “in no way affects the power of the court to do
any act or take any proceeding.” 28 U.S.C. § 452. Federal Rule
of Civil Procedure 60(b)(6), effective in 1948, explicitly granted
district courts the power to relieve parties from their final
judgments on motions made “within a reasonable time,” and we
have long treated motions to recall mandates as the equivalent
of Rule 60(b) motions. See Greater Boston, 463 F.2d at 276-77;
see also Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997). As
to the ground for recalling the mandate, it is often said that this
may be done only in exceptional circumstances. See, e.g.,
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Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir. 1990);
Johnson, 801 F.2d at 416; Greater Boston, 463 F.2d at 278. One
of those circumstances is clerical error, see 16 WRIGHT &
MILLER, supra, § 3938, at 720 n.23, and we believe that is what
occurred here, for two reasons.
In the first place, at the time the Clerk’s order issued not all
the parties had signaled their agreement to dismissing the
petition. PG&E’s motion stated only that the Commission and
NCPA had agreed to this disposition; the motion did not
mention the City of Santa Clara, which had intervened. In the
second place, whenever a case becomes moot on petition for
review of an agency order, see A.L. Mechling Barge Lines, Inc.
v. United States, 368 U.S. 324 (1961), or on appeal from a
district court judgment, see United States v. Munsingwear, Inc.,
340 U.S. 36 (1950), a question remains -- should the decision
below be vacated? It is of no consequence that PG&E’s motion
said nothing about this question. Vacatur should be ordered sua
sponte when the circumstances so warrant. See Columbian Rope
Co. v. West, 142 F.3d 1313, 1318 n.5 (D.C. Cir. 1998). That is
a decision for the court, not the Clerk’s office. Even if the
motion had addressed vacatur, the duty of decision remained
with the court. See Munsingwear, 340 U.S. at 40; Duke Power
Co. v. Greenwood County, 299 U.S. 259, 267 (1936) (per
curiam). In view of the error in the issuance of the Clerk’s
order, we construe NCPA’s motion to vacate to include a
request to recall the mandate, a request we now grant. See
Johnson, 801 F.2d at 416.
We also will grant NCPA’s motion to vacate the
Commission’s order. NCPA’s petition became moot when
PG&E entered into a settlement in a bankruptcy proceeding.
NCPA was not a party to the settlement. Citing U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
PG&E argues that the “equities” do not support vacating the
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Commission’s order. The Supreme Court used the term
“equitable” in Bancorp not because it thought it was sitting as a
court of equity, but because vacatur in moot cases should be
determined by considerations of “fairness” and “justice,” terms
the Court treated as interchangeable with “equitable.” See, e.g.,
Bancorp, 513 U.S. at 24-25. Of prime consideration, said the
Court, “is whether the party seeking relief from the judgment
below caused the mootness by voluntary action,” id. at 24, in
which event vacatur would usually not be ordered, id. at 29. But
if the party who lost below did not cause the case to become
moot, that is, if happenstance or the actions of the prevailing
party ended the controversy, vacatur remains the standard form
of relief. Id. at 25; see also Pharmachemie B.V. v. Barr Labs.,
Inc., 276 F.3d 627, 634 (D.C. Cir. 2002).
There is nothing to PG&E’s argument that NCPA is
somehow responsible for this case becoming moot. NCPA was
not a party to the bankruptcy settlement, although it was a party
to the bankruptcy proceedings. PG&E nevertheless wants us to
believe that NCPA “caused the mootness by voluntary action,”
Bancorp, 513 U.S. at 25, that is, by failing to appeal the
bankruptcy court’s order confirming PG&E’s settlement. This
is nonsense. One might as well say the victim caused the
robbery by failing to put up enough resistance. PG&E’s
argument also assumes, without any basis, that if NCPA had
appealed the court would have set the settlement aside, despite
PG&E’s support of it.
Pharmachemie B.V. v. Barr Labs., Inc., which PG&E cites,
characterized a drug company’s failure to appeal an adverse
ruling in a patent litigation against a third party as “voluntary
action that led to the mootness of the instant case,” apparently
because a favorable ruling was a condition precedent to action
the company requested from the Food and Drug Administration
in the district court. 276 F.3d at 634. Unlike Pharmachemie,
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here both the party seeking vacatur -- NCPA -- and the party
opposing vacatur -- PG&E -- were parties to the separate
bankruptcy proceeding. PG&E entered into the settlement that
mooted the case (there was no settlement in Pharmachemie),
NCPA was not a party to the settlement, and -- at least to the
extent that the settlement guaranteed that PG&E’s licenses
would not be transferred -- NCPA prevailed when the
bankruptcy court issued the order confirming the settlement.
PG&E’s decision to enter into the bankruptcy settlement, not
NCPA’s inaction, was the proximate cause of mootness.
For the reasons given, the mandate is recalled and the
Commission’s order is vacated.
So ordered.