Upon dismissing as moot an appeal from the
District Court's order requiring arbitration of a dispute as to
respondent's discharge by petitioner -- the arbitration proceedings
having been completed before the appeal could be decided on the
merits -- the Court of Appeals erred in holding that the District
Court's judgment should remain in effect. Where it appears upon
appeal that the controversy has become entirely moot, it is the
duty of the appellate court to set aside the decree below and to
remand the cause with directions to dismiss. Duke Power Co. v.
Greenwood County, 299 U. S. 259
United States v. Munsingwear,
Inc., 340 U. S.
Certiorari granted; vacated and remanded.
Respondent Nelson sued in the United States District Court for
the District of Colorado to compel arbitration of his discharge by
petitioner Great Western Sugar Co. The District Court held that the
presumption of arbitrability consistently applied by the Court of
Appeals for the Tenth Circuit required that the dispute be
submitted to arbitration. Before petitioner's appeal from the
District Court's order could be decided on the merits, the
arbitration proceedings had been completed, and respondent filed a
suggestion of mootness with the Court of Appeals. The Court of
Appeals, in an order and opinion admirable for its conciseness, if
not for its fidelity to our case law, said:
"This matter comes on for consideration of the appellee's
suggestion of mootness and motion to vacate judgment of the
District Court and to remand the captioned cause with instructions
to dismiss. The appellant filed a brief in response arguing that
the appeal be allowed to
Page 442 U. S. 93
continue, but, if not, the judgment of the trial court should be
reversed and the cause be remanded with directions to dismiss."
"Upon consideration whereof, the order of the Court is as
"1. The appeal is dismissed on the ground of mootness."
"2. The judgment of the trial court is allowed to stand."
App. to Pet. for Cert. A5.
In Duke Power Co. v. Greenwood County, 299 U.
, 299 U. S. 267
(1936), this Court said:
"Where it appears upon appeal that the controversy has become
entirely moot, it is the duty
of the appellate court to
set aside the decree below and to remand the cause with directions
(Emphasis supplied.) The course of action prescribed in Duke
has been followed in countless cases in this Court.
See, e.g., Preiser v. Newkirk, 422 U.
(1975); Parker v. Ellis, 362 U.
(1960); United States v. Munsingwear,
Inc., 340 U. S. 36
Here, neither the law nor the facts are in dispute. The Court of
Appeals has proceeded on the assumption that the case is moot, and
has dismissed the appeal for that reason. It has nonetheless stated
that the judgment of the District Court shall remain in effect, a
statement totally at odds with the holding of Duke Power.
The reasons for not allowing the District Court judgment to remain
in effect when the fact of mootness had been properly called to the
attention of the Court of Appeals were fully stated in United
Page 442 U. S. 94
Munsingwear, Inc., supra
at 340 U. S. 391
and need not be restated here. The Court of Appeals' disposition of
this case may have been the result of a desire to show approval of
the reasoning of the District Court in directing arbitration, but
that motive cannot be allowed to excuse its failure to follow the
teaching of Duke Power Co., supra.
Because the fact of mootness is clear, and indeed is relied upon
by the Court of Appeals as its reason for dismissing petitioner's
appeal, and because the law as laid down by this Court in Duke
Power Co., supra,
and United States v. Munsingwear, Inc.,
is equally clear, the petition for certiorari is
granted, the judgment of the Court of Appeals is vacated, and the
case is remanded to the Court of Appeals with directions to vacate
the District Court's judgment and to remand the case for dismissal
of respondent's complaint.
It is so ordered.
* United States v. Munsingwear, Inc.,
is perhaps the
leading case on the proper disposition of cases that become moot on
appeal. There, the Court reiterated 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
340 U.S. at 340 U. S.
MR. JUSTICE STEVENS, dissenting.
If we have time to grant certiorari for the sole purpose of
correcting a highly technical and totally harmless error, one might
reasonably (but incorrectly) infer that we have more than enough
time to dispatch our more important business.
I would deny the petition for a writ of certiorari.