Wheeler v. Goulart
Decision Date | 23 April 1993 |
Docket Number | No. 91-CV-442 & 91-CV-450.,91-CV-442 & 91-CV-450. |
Citation | 623 A.2d 1177 |
Court | D.C. Court of Appeals |
Parties | Linda C. WHEELER, et al., Appellants, v. William E. GOULART, et al., Appellees. |
Before STEADMAN and WAGNER, Associate Judges, and KERN, Senior Judge.
Before us is a renewed motion to vacate the opinion of this court in Wheeler v. Goulart, 593 A.2d 173 (D.C.1991). In that expedited mid-trial appeal, decided May 17, 1991, we affirmed an order of the trial court compelling appellant, a newspaper reporter, to disclose a source against a claimed First Amendment newsgatherer's privilege, in litigation to which she was not a party.1 On May 20, 1991, before the reporter was recalled to the stand, the trial court declared a mistrial.2 A new trial date was set for late October.
A petition for rehearing by the court en banc was denied on September 17, 1991. Appellant3 had ninety days thereafter within which to file a petition for a writ of certiorari to the United States Supreme Court. 28 U.S.C. § 2101(c) (1988); U.S. Sup.Ct.R. 13.1, 13.4. During that period, however, on October 10, 1991, the parties to the underlying litigation settled the dispute, thereby obviating any possibility that appellant would be called to testify.
Forty years ago, in United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), the Supreme Court stated that "the established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss." Id. at 39, 71 S.Ct. at 106. Likewise, it has been said that "it is appropriate for a court of appeals to vacate its own judgment if it is made aware of events that moot the case during the time available to seek certiorari." 13A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.10, at 435 (2d ed. 1984) (citing cases).
Subsequently, however, substantial authority has recognized that the vacation by a deciding appellate court of its own opinion once rendered is a discretionary matter, although the cases are in some disagreement as to the point in the proceedings at which such discretion first attaches. We need not resolve that issue here because in any event it appears that vacation of a decision by a deciding appellate court is not compelled after final completion of proceedings before that court. The cases are collected and discussed in opinions rendered in a recent decision of our companion federal court of appeals and there is no need to duplicate that effort here. See Clarke v. United States, 286 U.S.App.D.C. 256, 263-65, 266-72, 915 F.2d 699, 706-08, 709-15 (1990) (en banc).4
The principal concern here is the assertion by appellant that she was denied the possibility of further review of our judgment in the United States Supreme Court because of the settlement during the time within which at least theoretically appellant could have sought certiorari. However, appellant took no advantage of our procedures to stay the issuance of the mandate provided in D.C.App.R. 41(b):
Thus, our rules provide a mechanism whereby a party considering whether to petition for further review is able to maintain the appellate status of an action, in effect serving as a stay of the appellate determination.5 See, e.g., In re Thorp, 655 F.2d 997, 999 (9th Cir.1981) ( ).
No such motion was filed in this case; rather, the mandate issued in due course seven days after the denial of the petition for rehearing en banc, pursuant to D.C.App.R. 41(a).6 "Issuance of the mandate formally marks the end of appellate jurisdiction." Johnson v. Bechtel Assocs. Professional Corp, D.C., 255 U.S.App.D.C. 198, 201, 801 F.2d 412, 415 (1986) (per curiam). Accordingly, on September 25, 1991, "jurisdiction returned to the tribunal to which the mandate was directed, for such proceedings as may be appropriate," id., and as far as this court was concerned, all appellate review, obligatory or optional, was at an end.7See also United States v. DiLapi, 651 F.2d 140, 144 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982); United States v. Eisner, 323 F.2d 38, 42 (6th Cir. 1963) ( ).8
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