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No. 93-714. Argued October 4, 1994-Decided November 8,1994

Mter this Court granted the petition for a writ of certiorari and received briefing on the merits, the parties entered into a settlement and agreed that the case was thereby mooted. Petitioner, however, also requested that the Court exercise its power under 28 U. S. C. § 2106 to vacate the judgment of the Court of Appeals. Respondent opposed the motion.


1. This Court does not lack the power to entertain petitioner's motion to vacate. Section 2106 supplies the vacatur power, and respondent's suggestion is rejected that Article Ill's case or controversy requirement prohibits the exercise of that power when no live dispute exists due to a settlement that has mooted the case. Although Article III prevents the Court from considering the merits of a judgment that has become moot while awaiting review, the Court may nevertheless make such disposition of the whole case as justice may require. Walling v. James V. Reuter, Inc., 321 U. S. 671, 677. Pp. 20-22.

2. Mootness by reason of settlement does not justify vacatur of a federal civil judgment under review. United States v. Munsingwear, Inc., 340 U. S. 36, 39-40, and subsequent cases distinguished. Equitable principles have always been implicit in this Court's exercise of the vacatur power, and the principal equitable factor to which the Court has looked is whether the party seeking vacatur caused the mootness by voluntary action. Where mootness results from settlement, the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the extraordinary equitable remedy of vacatur. It is irrelevant that the party who won below also agreed to the settlement, since it is the losing party who has the burden of demonstrating equitable entitlement to vacatur. This result is supported by the public interest in the orderly operation of the federal judicial system; petitioner's countervailing policy arguments are not persuasive. Although exceptional circumstances may conceivably justify vacatur when mootness results from settlement, such circumstances do not include the mere fact that the settlement agreement provides for vacatur. Pp. 22-29.


Motion to vacate denied and case dismissed as moot. Reported below: 2 F.3d 899.

SCALIA, J., delivered the opinion for a unanimous Court.

Brandford Anderson argued the cause for petitioner.

With him on the briefs were Dale G. Higer and David B. Levant.

Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Ronald J. Mann, Leonard Schaitman, and John P. Schnitker.

John Ford Elsaesser, Jr., argued the cause for respondent.

With him on the brief were Isaac M. Pachulski, K. John Shaffer, and Barbara Buchanan. *

JUSTICE SCALIA delivered the opinion of the Court.

The question in this case is whether appellate courts in the federal system should vacate civil judgments of subordinate courts in cases that are settled after appeal is filed or certiorari sought.


In 1984 and 1985, Northtown Investments built the Bonner Mall in Bonner County, Idaho, with financing from a bank in that State. In 1986, respondent Bonner Mall Partnership (Bonner) acquired the mall, while petitioner U. S. Bancorp Mortgage Co. (Bancorp) acquired the loan and mortgage from the Idaho bank. In 1990, Bonner defaulted on its real estate taxes and Bancorp scheduled a foreclosure sale.

The day before the sale, Bonner filed a petition under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq.,

*Briefs of amici curiae were filed for Izumi Seimitsu Kogyo Kabushiki Kaisha et al. by Herbert H. Mintz, Robert D. Litowitz, Jean Burke Fordis, David S. Forman, and William L. Androlia; and for Trial Lawyers for Public Justice, P. C., by Jill E. Fisch, Arthur H. Bryant, and Leslie A. Brueckner.

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