# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2004 Decided December 28, 2004

No. 03-1038

N ORTHERN C ALIFORNIA P OWER A GENCY

,

P ETITIONER

v.

N UCLEAR R

EGULATORY C OMMISSION AND

U NITED S TATES OF A MERICA

, R ESPONDENTS

T HE C ITY OF S ANTA C LARA

, C ALIFORNIA AND

P ACIFIC G

AS AND E

LECTRIC C OMPANY

, I NTERVENORS

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 A ndrea G. Lonian

.

Grace H. Kim

, Attorney, U.S. Nuclea r Regulatory

C ommission, argued the cause for respondents. With her on the

brief were R obert B. Nicholson

, Assistant Chief, U.S.

Department of Justice, R obert 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. B rooke D. Poole

entered an appearance.

Before: R

ANDOLPH

, R

OGERS

, and R

OBERTS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge R ANDOLPH

.

R ANDOLPH

, Circuit Judge : Northern California Power

Agency (“NCPA”) asks us to vac ate an order of the Nuclear

Regulatory Commi ssion, 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 time ly 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

follo wing 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

cop y of the order “in lieu of formal mandate.” Simultaneously

on April 16, NCPA move d to dismiss its petition as moot and to

vacate the Commission’s or der. 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 consis ts of a certified copy of the judgment, a copy of

the court’s opinion, if any, and any direction about costs.” F E D

. R. A PP

. P. 41(a). We have said that “[i]ssuance of the mandate

formally marks the end of appellate jurisdiction.” J ohnson v.

Bechte l Assocs. Prof’l Corp. , 801 F.2d 412, 415 (D.C. Cir.

1986) (per curiam). This is generally true, but there are

excepti o ns, as when we direct the mandate to issue immediately

p ursuant to F ED

. R. A PP

. P. 41(b), and later entertain a petitio n

for rehearing or rehearing en banc. The mandate in this case

issued nearly a year ago, and the time for a rehearin g 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 a ppeals to recall mandates, the practice

has long been recognized as an inh erent part of the judicial

power. J ohnson

, 801 F.2d at 4 16. The history is recounted in

Greater Boston Television Corp. v. FCC

, 463 F.2d 268, 276-77

(D.C. Cir. 1971), and in 16 C HARLES A LAN W RIGHT & A

RTHUR

R. M ILLER

, F EDERAL P RACTICE AND P ROCEDURE § 3938, at 712-

16 (2d ed. 1996). Before 1948, when the lower federal courts

sat in terms, judgments of the court remained un d er its control

during the term. S ee 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 significa nce of terms of court;

the federal courts are now “always open,” and the expiratio n 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

h ave long treated motions to recall mandates as the equiva lent

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 i

n 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 circumst

ances is clerical error, s ee 16 W RIGHT &

M ILLER

, 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

s econd 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

b elow be vacated? It is of no consequence that PG&E’s motion

said nothing about this question. Vacatur should be ordered s ua

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 constr

ue NCPA’s motion to vacate to include a

request to recall the mandate, a request we now grant. S ee

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 s ettlement 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 the5

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 “jus tice,” terms

the Court treated as interchangeable with “equit able.” S ee

, 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,” i d. 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 con

troversy, vacatur remains the standard form

of relief. I

d. 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 b ecoming moot. NCPA was

not a party to the bankruptcy sett lement, although it was a party

to the bankruptcy proceedings. PG&E nevertheless wants us to

believ e that NCPA “caused the mootness by voluntary action,”

Bancorp

, 513 U.S. at 25, that is, by failing to ap peal 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 c ourt 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 p atent 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 D rug Administration

in the district court. 276 F.3d at 634. Unlike P harmachemie

,6

here both the pa rty seeking vacatur -- NCPA -- and the party

opposin g vacatur -- PG&E -- were parties to the separate

bankruptcy proceeding. PG&E entered into the settlement that

mooted the case (there was n o settlement in P harmachemie ),

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 prev a iled 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 recalle d and the

Commission’s order is vacated.

So ordered.