The first is inapplicable; and to the extent the issue is discretionary, we believe the context argues for vacatur. In United States v. Garde, 848 F.2d 1307 (D.C. Cir. 1988), we declined to vacate under Munsingwear where a government agency appealed a district court decision, and then complied with its requirements and applied for its vacatur. We reasoned that a practice of vacatur on these facts would encourage litigants who were dissatisfied with a result to wipe out its precedential and preclusion effects by compliance, and would be unfair to winners in the district court by cheating them of some of the fruits of their victory.
So too when the party seeking vacatur of an adverse decision earlier “slept on its rights,” Munsingwear Inc., 340 U.S. at 41, entered a settlement, U.S. Bancorp Mortg. Co., 513 U.S. at 25, or sought “to have the[] [decision] wiped from the books by merely filing an appeal, then complying with the order or judgment below and petitioning for a vacatur of the adverse trial court decision,” United States v. Garde, 848 F.2d 1307, 1311 (D.C. Cir. 1988) (cleaned up).
Bancorp accords with the longstanding practice of this court, under which we have denied vacatur in some instances so as "to avoid unfairness to parties who prevailed in the lower court," and in particular refused to order vacatur where mootness resulted from "`the deliberate action of the losing party before the district court.'" United States v. Garde, 848 F.2d 1307, 1310 (D.C. Cir. 1988) (quoting Center for Science in the Public Interest v. Regan, 727 F.2d 1161, 1165-66 (D.C. Cir. 1984)). The issue we face here is whether Bancorp's presumption against vacatur should apply where the party seeking relief from the judgment below is the government and the case has been mooted by passage of new legislation.
We do not believe that vacatur is appropriate, however, when a matter has been mooted after judgment only because the parties have entered into a settlement; thus, we need not resolve whether we would ever be warranted in vacating our own decision while a petition for certiorari is pending before the Supreme Court. The case in this circuit most closely in point is United States v. Garde, 848 F.2d 1307 (D.C. Cir. 1988), but it does not control the outcome here. There, in exploring the limits of the Munsingwear vacatur practice, we acknowledged that "vacating the lower court decision underlying a moot appeal is the general practice of this court," but we also cited Center for Science in the Public Interest v. Regan, 727 F.2d 1161 (D.C. Cir. 1984) ( "CSPI"), for the proposition that "in a case in which `review is prevented, not by happenstance, but by the deliberate action of the losing party before the district court, . . . the district court should not be ordered to vacate its decision.'"
to encourage litigants who are dissatisfied with the decision of the trial court "to have them wiped from the books" by merely filing an appeal, then complying with the order or judgment below and petitioning for a vacatur of the adverse trial court decision.United States v. Garde, 848 F.2d 1307, 1311 (D.C. Cir. 1988). We consequently conclude that the City has failed to demonstrate "equitable entitlement to the extraordinary remedy of vacatur," U.S. Bancorp, ___ U.S. ___, 115 S.Ct. at 392.
Were this a case where a litigant, having lost in the district court, took steps to moot the case in the hope of wiping out a judgment that it did not expect to be able to get reversed on appeal, the district judge would not be required to vacate the judgment. Smith v. State Farm Mutual Automobile Ins. Co., 964 F.2d 636 (7th Cir. 1992); Harris v. Board of Governors, 938 F.2d 720, 724 (7th Cir. 1991); Wisconsin v. Baker, 698 F.2d 1323, 1331 (7th Cir. 1983); In re United States, 927 F.2d 626 (D.C. Cir. 1991); United States v. Garde, 848 F.2d 1307, 1310-11 (D.C. Cir. 1988) (per curiam); cf. Karcher v. May, 484 U.S. 72, 82-83, 108 S.Ct. 388, 391, 98 L.Ed.2d 327 (1987). (We have acknowledged the tension between this approach and the practice of the Supreme Court, following United States v. Munsingwear, 340 U.S. 36, 40-41, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950), in routinely vacating the lower-court judgment when a case becomes moot after a petition for certiorari has been filed, without seeming to care why it became moot. Clark Equipment Co. v. Lift Parts Mfg. Co., 972 F.2d 817, 819 n. 1 (7th Cir. 1992); Commodity Futures Trading Comm'n v. Board of Trade, 701 F.2d 653, 657 (7th Cir. 1983).)
There, the parties settled the dispute during the pendency of an appeal from the granting of a summary judgment motion. Quoting United States v. Garde, 848 F.2d 1307, 1311 (D.C.Cir. 1988) ("We do not wish to encourage litigants who are dissatisfied with the decision of the trial court `to have them wiped from the books' by merely filing an appeal, then complying with the order or judgment below and petitioning for a vacatur of the adverse trial court decision"), this court held that it was not required to vacate the summary judgment in accordance with United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Unlike the parties in Clarendon, the DEP did not wait for the district court's decision and then try to moot it by settlement.
It is true that we have departed from the Munsingwear rule when the party who lost below deliberately aborted appellate review while the appeal was pending. United States v. Garde, 848 F.2d 1307, 1311 (D.C. Cir. 1988); Center for Science in the Public Interest v. Regan, 727 F.2d 1161, 1166 (D.C. Cir. 1984); see also In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299 (7th Cir. 1988); Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720 (9th Cir. 1982). Our purpose in each such case was to prevent the losing party from manipulating the appellate process in order to gain an undue advantage.
Commodity Futures Trading Comm'n v. Board of Trade, 701 F.2d 653, 656 (7th Cir. 1983). See also In re Memorial Hospital, 862 F.2d 1299, 1301 (7th Cir. 1988); United States v. Garde, 848 F.2d 1307 (D.C. Cir. 1988) (per curiam); In re United States, 927 F.2d 626 (D.C. Cir. 1991). The rule is for the protection of the party who is thwarted of his desire for an appeal.
While we share the view that voluntary settlements should be encouraged, we cannot agree that such a goal overrides the policy that a losing party with a deep pocket should not be permitted to use a settlement to have an adverse precedent vacated. See United States v. Garde, 848 F.2d 1307, 1311 (D.C.Cir. 1988) ("We do not wish to encourage litigants who are dissatisfied with the decision of the trial court `to have them wiped from the books' by merely filing an appeal, then complying with the order or judgment below and petitioning for a vacatur of the adverse trial court decision."). We believe that our duty lies not in the direction of an automatic acquiescence to the parties' request, but rather with a deliberate consideration of the policy that will best serve the public good.