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,
2

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. 
3

“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.,
4

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
5

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,
6

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.