USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 95-2290

RUSCO STEEL COMPANY,

Plaintiff - Appellee,

v.

ATKINSON-KIEWIT, J/V, ETC., ET AL.,

Defendants - Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Bownes, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

_____________________

John D. Deacon, Jr. for appellants.

___________________
Holly R. Rao, with
_____________
appellee.

whom Olenn & Penza was

_______________

on brief

for

____________________

October 25, 1996

____________________

Per Curiam.
Per Curiam.
__________

This

case comes before us on

appeal from

the

district

appellees

court's

grant

of

Rusco Steel Company ("Rusco").

to this case,

summary

judgment

("Atkinson")

Island.

Plaintiff

project.

He brought

on the

Richard

Jameson

At all times relevant

Bridge

Cosimini worked

project in

for

the original action against

he was injured during the course

Jamestown Bridge project.

Rhode

Rusco on

the

Atkinson after

of his employment with Rusco on

Atkinson then filed a third party

complaint against Rusco, claiming, in part, that Rusco failed

procure certain

determining

Atkinson

prejudice.

to

Rusco was a subcontractor to Atkinson-Kiewit Joint

Venture

the

partial

that

insurance as

Rusco

voluntarily

had

required by

in fact

dismissed

Thereafter, Rusco

the

the contract.

procured

the

related

counts

to

After

insurance,

without

and Atkinson brought cross motions

for summary judgment on another issue related to the scope of the

insurance coverage.

granted

Rusco

procurement

In

an amended decision, the

partial

issue

summary

that had

judgment

previously

on

been

district court

the

insurance

dismissed.

This

appeal ensued.

After

Atkinson filed

its

brief in

this appeal,

the

parties settled their dispute

through this court's Civil Appeals

Management

Under

governing

Program

CAMP,

(CAMP).

parties

possibility of settlement.

the

may

be

the

rules

directed

of

to

this

consider

See First Circuit Rule 47.5.

___

court

the

Under

terms of the settlement, all pending appeals and issues were

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dismissed, except for

the grant of

partial summary judgment

to

Rusco, the issue from which Atkinson now appeals.

The settlement of

case

renders the

Comm'n v.
______

issue on

Geraghty, 445 U.S.

________

settled that

a case is

longer "live" or the

in the outcome, . . .

the underlying

appeal moot.

this

United States Parole

_____________________

388, 395-97

moot 'when the

controversy in

(1980).

"It

issues presented

parties lack a legally

is well

are no

cognizable interest

or alternatively, when the 'party invoking

federal court

the

jurisdiction' no longer

outcome of

the

controversy.'"

has 'a personal

stake in

Boston & Maine Corp.

______________________

v.

Brotherhood of Maintenance of Way Employees, 94 F.3d 15, 20 (1st

____________________________________________

Cir.

moot,

1996) (citations omitted).

federal

court

adjudicate the merits of

seq.;
____

see
also
__________

no

Once a case

longer

the case.

or controversy is

retains

jurisdiction

U.S. Const. art. III,

U.S. Bancorp Mortgage Co.

____________________________

v.

to

2 et
__

Bonner Mall
____________

Partnership, 115 S. Ct. 386, 390 (1994).

___________

"As

a general rule, when a case becomes moot on appeal

--or an aspect thereof -- we vacate the district court's decision

and remand with

a direction

Salem v. Ottaway Newspapers,

to dismiss."1

Newspaper Guild of
___________________

Inc., 79 F.3d 1273, 1285

n.15 (1st

_____

_________________________

Cir. 1996); see also United States v. Munsingwear, Inc., 340 U.S.
________ _____________
_________________

36,

40 (1950) ("The established practice of the Court in dealing

with a

civil case from a

court in the federal

become moot while on its way

system which has

here or pending our decision on the

____________________

The party seeking vacatur

is entitled to such

bears the burden of showing that it

equitable relief.

at 392.

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U.S. Bancorp,
____________

115 S. Ct.

merits is to reverse or vacate the judgment below and remand with

a direction to dismiss.").

order

We vacate a lower court's judgment in

to "clear[] the path for future relitigation of the issues

between

the parties and eliminate[]

was prevented

a judgment, review of which

through happenstance."

Munsingwear, 340
___________

U.S. at

40.

We may

Munsingwear
___________

rule

"happenstance,"

115

only

when

Munsingwear,
___________

voluntary action

Bancorp,
_______

vacate the district court's

S.

on the

Ct. at

340

mootness

U.S.

part of the

392.

judgment under the

at 40,

arises

or

through

through

losing party below.

"Where

mootness results

no

U.S.
____

from

settlement . . .

legal

the losing party has voluntarily

remedy by the ordinary

thereby

surrendering

vacatur."

Id.
___

does

include typical

not

losing party

The

his

processes of appeal or certiorari,

claim

to

the

Munsingwear rule of
___________

settlement

equitable

controversy before

cases, only

exceptional circumstances will sway

mootness

in which

the court moot.

the

In

settlement

the equities in

Id. at 393.
___

exceptional circumstances

Although Atkinson

of

a settlement rendering

the case or

Such

remedy

vacatur upon

situations

below voluntarily agrees to

favor of vacatur.

forfeited his

sought in

are not

the settlement process

present here.

to preserve

this issue for appeal, the parties cannot by their agreement keep

this

case ripe

for

appeal.

Id.
___

(noting

that

"exceptional

circumstances do not

agreement

include the mere

provides for

vacatur").

fact that the

By voluntarily

settlement

agreeing to

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settle this case

actions

during the pendency

of the appeal,

rendered the underlying dispute moot.

Atkinson's

In a sense, then,

Atkinson "voluntarily abandoned review," id., and is not entitled

___

to the equitable measures it now seeks before this court.

In conclusion, the issue before

the

There

us has been mooted

by

parties' voluntary settlement of the underlying controversy.

being

no

exceptional

circumstances in

warrant vacatur, we dismiss the appeal.

So ordered. No costs to either party.

_____________________________________

this

case

that

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