In
McMann v. Ross, the only case to have presented the
precise issue we have here, the Court vacated the judgment of the
Court of Appeals and remanded to the District Court with
instructions to dismiss the respondent's petition for writ of
habeas corpus as moot. I would, as petitioner urges, dispose of
this case in the same way. This is the course we have chosen to
pursue in every civil case that becomes moot either pending a
decision on certiorari or after we have granted a writ of
certiorari, except
Warden v. Palermo, which, even if it
were correct, is plainly distinguishable. Thirty-five years ago,
the Court noted that
"[t]he 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."
United States v. Munsingwear, Inc., 340 U. S.
36,
340 U. S. 39
(1950) (footnote omitted; emphasis added).
Indeed, as the Court said in
Duke Power Co. v. Greenwood
County, 299 U. S. 259,
299 U. S. 267
(1936), this is the "duty" of this Court. Such a disposition
"clears the path for future relitigation of the issues between the
parties."
Munsingwear, supra, at
340 U. S. 40. In
this case it is possible, for example, that, by applying collateral
estoppel offensively, relatives of the defendant might well invoke
the Sixth Circuit's decision in a
Page 471 U. S. 156
subsequent civil suit for damages. Moreover, by vacating the
Court of Appeals' judgment and remanding with instructions to
dismiss as moot, we "eliminat[e] a judgment, review of which was
prevented through happenstance." 340 U.S. at
340 U. S. 40.
And it is only through this procedure that "the rights of all
parties are preserved."
Ibid.
The Court mistakenly believes that our four-line order in
Palermo, supra, requires that we only vacate the order
granting certiorari and dismiss the petition. I do not understand
how
Palermo can possibly be regarded as controlling the
disposition here.
Palermo is significantly different from
this case in at least one obvious respect -- there, we had not
granted the petition for certiorari. So also was the case in
Dove v. United States, 423 U. S. 325
(1976), the authority we relied upon for our dismissal of the
petition in
Palermo. While in some circumstances we may
wish to treat cases in which we have granted certiorari similarly
to those in which a petition for certiorari has merely been filed
here, it is inconceivable to me that we would ever consider
ourselves bound to treat these two patently different categories of
cases identically.
In my view, the Court has a higher duty when it learns that a
case has become moot after it has granted review than when it
discovers that a case in which review is being sought has become
moot. In the former instance, the Court has, by its grant of the
writ, asserted jurisdiction over the case, and brought the judgment
of the lower court before it. If the Court simply vacates its order
granting certiorari, it forces upon the parties and the courts
below the problems it avoids for the sake of its own convenience.
The Court's action today leaves unclear, for instance, whether the
Court of Appeals' opinion remains as precedent as between the
parties or their successors in any future proceeding. It is
likewise unclear whether the opinion is generally to have
precedential value in the Sixth Circuit. Finally, there remains
considerable uncertainty over whether the Court of Appeals is
Page 471 U. S. 157
required or permitted to vacate its opinion. Indeed, I suppose
there will be a question whether the Court of Appeals even has
jurisdiction to vacate or otherwise modify its opinion, given that
our writ of certiorari is still lodged in that court; at the very
least, the Court should vacate its writ of certiorari.
Cf.
Westinghouse Electric Corp. v. Vaughn, 466 U.
S. 521 (1984);
Colorado v. Nunez, 465 U.
S. 324 (1984);
Gillette Co. v. Miner,
459 U. S. 86
(1982). The Court's disposition leaves the status of the Court of
Appeals' judgment and opinion in limbo. I believe we have an
institutional obligation to avoid such confusion. This is easily
achieved by following what heretofore, with the exception of
Warden v. Palermo, has been our "established
practice."
Even if one accepts the dubious proposition that the Court is
duty-bound to treat
granted cases identical to cases where
the petition for a writ of certiorari is pending, I still believe
the Court's disposition is incorrect because I am convinced the
Court disposed of
Palermo improperly.
Palermo, it
is true, was a case before us on habeas, and we did dismiss the
certiorari petition. The Court relied entirely, however, on
Dove, a case which was before us on direct review, not
habeas. In a case on direct review, it may be necessary simply to
dismiss the petition to avoid the result in
Durham v. United
States, 401 U. S. 481
(1971), of having a defendant's indictment dismissed, which in turn
has the effect of
"wip[ing] the slate entirely clean of a federal conviction which
was unsuccessfully appealed throughout the entire appeal process to
which the petitioner was entitled as of right,"
id. at 484 (BLACKMUN, J., dissenting). The only
alternative -- and surely an unsatisfying one -- would be for the
Court to decide case-by-case whether it believes the decision in
question to be correct or incorrect, and dismiss the petition for
certiorari or vacate the judgment accordingly.
But plainly there is no such dilemma presented when a case is
before us on writ of certiorari to review a judgment obtained on
habeas. In such a case, our objectives of eliminating
Page 471 U. S. 158
as precedent an opinion and judgment of which no final review is
possible and clearing the path for any future litigation are
achievable -- and incidentally, without at the same time embracing
a principle that would require dismissal of indictments -- by
vacating the judgment below and remanding with instructions to
dismiss the habeas petition.
Even the Court in
Durham recognized the validity of
distinguishing in this context between cases on direct and habeas
review; the Court very carefully limited its holding to cases on
direct review,
see id. at 482-483. Our order in
Dove also contemplated this distinction. In
Dove,
we overruled
Durham only "[t]o the extent that
[
Durham] may be inconsistent with" our disposition in
Dove, 423 U.S. at
325. We thereby removed any doubt that
Ross -- which
otherwise one might have thought the Court also intended to
overrule -- was still valid precedent. Under the circumstances,
especially since
Palermo not only relied upon inapposite
authority but failed even to acknowledge
Ross, I would
not, as the Court does, read
Palermo as limiting us to a
dismissal.
If it were true, however, as the Court implicitly must believe,
that we are required now to overrule either
Ross or
Palermo, I would "overrule" the latter.
Palermo
is the case inconsistent with our asserted "established practice."
Palermo, not
Ross, is the disposition in search
of a rationale.
Because I believe we should not compound the evils of a bad
practice by repeating the error here, I dissent.
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