*Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 02-1234

FEDERAL INSURANCE COMPANY

Plaintiff, Appellee,

v.

MAINE YANKEE ATOMIC POWER COMPANY

Defendant, Appellee,

STONE & WEBSTER, INCORPORATED, and 

STONE & WEBSTER ENGINEERING CORPORATION

Debtors, Appellants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and B. Fletcher,* Senior Circuit Judge.
-2-

Michael D. Blanchard, with whom Edward J. Meehan, David

E. Carney, Gregg M. Galardi, and Skadden, Arps, Slate, Meagher &

Flom LLP, were on brief, for appellants.

William J. Kayatta, Jr., with whom Pierce Atwood was on

brief, for appellee Maine Yankee Atomic Power Company.

November 19, 2002
-3-

B. FLETCHER, Senior Circuit Judge. Non-party appellants

Stone & Webster Engineering Corporation and Stone & Webster, Inc.,

appeal the district court’s decision to permit discovery from them

in a dispute between plaintiff-appellee Federal Insurance Company

and defendant-appellee Maine Yankee Atomic Power Company. The

underlying case between Federal Insurance and Maine Yankee settled

before trial. Because there is no live controversy as to the

propriety of the discovery that appellants challenge, we dismiss

appellants’ appeal as moot. 

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

This appeal arises out of a dispute over decommissioning

Maine Yankee Atomic Power’s retired nuclear plant in Wiscasset,

Maine. In 1998, Maine Yankee contracted with Stone & Webster

Engineering Corporation to decommission the plant. Stone &

Webster, Inc., as a parent of Stone & Webster Engineering, secured

its subsidiary’s performance. Maine Yankee, following industry

practice, also obtained payment and performance bonds from Federal

Insurance as additional security for Stone & Webster Engineering’s

performance.

In May, 2000, Maine Yankee terminated the decommissioning

contract for cause and demanded that Federal Insurance perform its

obligations under the additional bonds. Shortly thereafter, Stone

& Webster and its subsidiaries filed for bankruptcy reorganization
-4-

under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101-1330, in

federal district court in Delaware. In the Delaware bankruptcy

action, Maine Yankee filed a proof of claim for approximately $78

million against Stone & Webster Engineering. Federal Insurance

filed a contingent proof of claim against Stone & Webster for

indemnification if Maine Yankee recovered under the bonds. 

Almost simultaneously, in the Delaware bankruptcy court,

Federal Insurance sought a separate declaratory judgment with

respect to its liability under the performance bond. Over the

opposition of Stone & Webster, as intervenor, and Federal

Insurance, Maine Yankee successfully petitioned for the instant,

separate action to be transferred to federal district court in

Maine. 

Shortly after the transfer, Maine Yankee served two

subpoenas against Stone & Webster and Stone & Webster Engineering.

Both companies objected and claimed that the subpoenas violated the

automatic stay provision of Chapter 11, 11 U.S.C. § 362(a)(2). The

matter was argued before a magistrate judge who ordered Stone &

Webster and Stone & Webster Engineering to comply. The companies

timely objected to the decision, but the district court upheld it.

Stone & Webster and Stone & Webster Engineering sought

review in this court and simultaneously petitioned the Delaware

bankruptcy court for a preliminary injunction against enforcement

of the subpoenas. We disposed of the appeal on jurisdictional
-5-

grounds because we determined that the discovery order at issue, in

the posture presented, was neither a final order within the meaning

of 28 U.S.C. § 1291, nor was it appealable as a collateral order.

We noted, in an unpublished order, that “[n]on parties can gain the

right of appeal from a discovery order by defying it, being held in

contempt, and then appealing the contempt order.” The bankruptcy

court independently rejected the companies’ request for a

preliminary injunction. Stone & Webster and Stone & Webster

Engineering then complied fully with the subpoenas.

Maine Yankee and Federal Insurance’s action did not reach

trial. The parties settled their dispute and filed a stipulation

of dismissal with prejudice, pursuant to which Federal Insurance

agreed to pay Maine Yankee approximately $44 million under its bond

obligations. Upon dismissal of the action, Stone & Webster and

Stone & Webster Engineering took this appeal.

II. DISCUSSION

Appellants ask this court to reverse the district court’s

decision upholding the subpoenas or to vacate the district court’s

orders enforcing them. We may grant neither form of relief because

appellants’ acquiescence in the discovery compelled by the

subpoenas deprives this court of jurisdiction over their appeal.

Federal jurisdiction, of course, is limited to “Cases

[and] . . . Controversies.” U.S. Const. Art. III. And, in each
-6-

case, the issues that we are called upon to decide must present an

actual, live controversy. Allende v. Shultz, 845 F.2d 1111, 1115

n.7 (1st Cir. 1988). In addition to the constitutional boundaries

of our jurisdiction, Congress, as a general matter, has granted the

courts of appeals jurisdiction over only final orders in cases from

lower courts. See 28 U.S.C. § 1291. Some exceptions exist. For

instance, a litigant may appeal certain collateral orders. See,

e.g., Anderson v. City of Boston, 244 F.3d 236, 240 (1st Cir. 2001)

(stating when collateral orders are appealable under Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). Routine

discovery orders – such as the orders enforcing the subpoenas at

issue here – are not final orders, and no statute or doctrine

invests us with jurisdiction to decide an appeal of a routine

discovery order. 

This is not to say that appellate scrutiny of such orders

is unavailable. As we explained to appellants in their prior

appeal, appellate review is available to litigants who are cited

for contempt. See In re Grand Jury Subpoenas, 123 F.3d 695, 696

(1st Cir. 1997). This is because when a litigant is adjudged to be

in contempt, “the contempt order is appealable . . . because as

far as that party is concerned the order is final because he or she

could not appeal from the final judgment of the action.” 6 James

Wm. Moore et al., Moore’s Federal Practice ¶ 26.07[2][g] (3d ed.

1999). 
1 We have consistently held that a case becomes moot when

the issues presented are no longer “live” or the parties lack a

legally cognizable interest in the outcome of the controversy. 

See Thomas R.W. v. Mass. Dept. of Educ., 130 F.3d 477, 479 (1st

Cir. 1997) (quoting Boston and Me. Corp. v. Bhd. of Maintenance

of Way Employees, 94 F.3d 15, 20 (1st Cir. 1996)). 

-7-

If a litigant, however, complies with a discovery order,

the question of its propriety ordinarily becomes moot.1 See United

States v. Anderson, 623 F.2d 720, 724 (1st Cir.), cert. denied, 449

U.S. 1021 (1980); see also Office of Thrift Supervision v. Dobbs,

931 F.2d 956, 957 (D.C. Cir. 1991). This rule is firmly rooted and

long-settled. It is merely an expression of the principle that

guided the Supreme Court’s decision in United States v.

Munsingwear, Inc., 340 U.S. 26 (1950). In Munsingwear the Court

explained that an appeal by the United States which sought vacatur

of an opinion in a dismissed case was moot. The Court reasoned

that the government had “slept on its rights,” id. at 41, by

failing to seek vacatur before the case was dismissed below and the

Court therefore lacked jurisdiction to grant relief. 

Appellants argue that contempt is not the only route by

which they may obtain such review, and they contend that their

failure to risk contempt has not mooted their appeal. Appellants

are correct that, in certain cases, risk of contempt is not

necessary for an appeal. See Church of Scientology of California

v. United States, 506 U.S. 9 (1992). But a nonparty who has

complied with a discovery order faces a difficult hurdle. 
-8-

 The Supreme Court’s decision in Church of Scientology

did not alter the Munsingwear rule. In Church of Scientology, the

Court explained that if a court may “fashion some form of

meaningful relief,” id. (emphasis in original), a case is not moot.

Id. There, the Court concluded that the Church’s interest in

maintaining the privacy of its papers could be served by the

“partial remedy” of ordering the government to destroy or return

all copies in its possession. The Court therefore concluded that

the case was not moot even though a “fully satisfactory remedy” was

unavailable. 

In their effort to invoke Church of Scientology by

pointing to the possibility of “meaningful relief,” appellants

invoke 11 U.S.C. § 362(h), which provides for damages, actual and

punitive, for a “willful violation” of an automatic stay.

Appellants did not raise this argument in their opening brief, and

we question whether it has been preserved adequately. In any

event, we note that bankruptcy and district judges in Delaware and

a magistrate judge and a district judge in Maine all have assumed

implicitly or directly recognized the legitimacy of the challenged

discovery. Against such a background, the prospect of securing

meaningful relief for a willful violation of the automatic stay is

far too insubstantial to counter mootness. Appellants’ decision to

comply with the subpoenas thus mooted the dispute and forecloses

our review. 
-9-

The Supreme Court’s decision in U.S. Bancorp Mortgage Co.

v. Bonner Mall P’ship, 513 U.S. 18 (1994), a case decided after

Church of Scientology, is instructive. In U.S. Bancorp, the

appellant sought vacatur of an opinion in a case that had settled.

The Court refused to vacate the opinion and explained: 

The principal condition to which we have

looked, is whether the party seeking relief

from the judgment below caused the mootness by

voluntary action. . . . A party who seeks

review of the merits of an adverse ruling, but

is frustrated by the vagaries of circumstance,

ought not in fairness be forced to acquiesce

in the judgment. The same is true when

mootness results from unilateral action of the

party who prevailed below. Where mootness

results from settlement, however, the losing

party has voluntarily forfeited his legal

remedy by the ordinary processes of appeal or

certiorari . . . . The judgment is not

unreviewable, but simply unreviewed by his own

choice.

 

Id. at 24-25. Although the instant case does not involve a

settlement between appellants and appellees, the considerations

that determined the decision in U.S. Bancorp apply just as easily

here. 

Our conclusion is not draconian. Contempt citations can

– and often do – carry significant penalties. But if a party risks

contempt to obtain review, lower courts are free to consider the

circumstances in determining appropriate sanctions and to stay

those sanctions pending appeal. The fact that the risk of contempt

may be uncomfortable for a litigant, however, does not provide a

basis for courts to act when they are without jurisdiction.
-10-

III. CONCLUSION 

Appellants chose to acquiesce in the orders they now

ask us to review. Their decision to comply rather than to risk

contempt sanctions, however, ended the controversy and mooted the

issue. We dismiss their appeal.

DISMISSED. Costs shall be taxed in favor of appellee

Maine Yankee.