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INDEPENDENT UNION OF FLIGHT ATTENDANTS v. PAN AM

October 30, 1992

INDEPENDENT UNION OF FLIGHT ATTENDANTS, Plaintiff,
v.
PAN AMERICAN WORLD AIRWAYS, INC., et al., Defendants.



The opinion of the court was delivered by: SAMUEL CONTI

 I. INTRODUCTION

 Plaintiff Independent Union of Flight Attendants ("IUFA") seeks an order of this court vacating its prior decision on the ground that the case was mooted while on appeal.

 II. FACTS

 IUFA brought this action in 1988 against defendants Pan American World Airways, Inc. and Pan American Corporation ("Pan Am"), seeking to compel arbitration of a grievance concerning work assignments on the now-terminated European operations of Pan American Express, Inc. a wholly-owned subsidiary of Pan Am Corp. At issue in that case was whether Section 204 of the Railway Labor Act ("RLA"), 45 U.S.C. ยง 184, applied to international operations. Judge Schwarzer dismissed the action by order dated April 7, 1989, holding that there exists no extra-territorial jurisdiction under the RLA, and thus that this court had no subject matter jurisdiction. Independent Union of Flight Attendants v. Pan American World Airways, Inc., 1989 U.S. Dist. LEXIS 14759, 132 L.R.R.M. 2520, 113 Lab. Cas. (CCH) P 11,672 (N.D. Cal. 1989).

 IUFA appealed to the Ninth Circuit, which upheld the decision on January 10, 1991. Independent Union of Flight Attendants v. Pan American World Airways, Inc., 923 F.2d 678 (9th Cir. 1991) (vacated). IUFA then petitioned for rehearing en banc. The Ninth Circuit, however, found that it was precluded from acting on that petition, as Pan Am had declared bankruptcy on January 8, 1991. *fn1" IUFA then withdrew its original, underlying grievance, and requested that the Ninth Circuit vacate its January 8 order and direct this court to vacate as moot its original dismissal.

 In response, the Ninth Circuit vacated its January 8 order, finding that

 because IUFA has withdrawn its grievance, we have been "deprived . . . of the ability to redress [IUFA's] injuries." [citation]. We conclude that this appeal is now moot. Because this appeal became moot while the petition for rehearing and suggestion for rehearing en banc were still pending and before the mandate issued, the appropriate disposition is to vacate the panel's opinion and dismiss the appeal.

 Independent Union of Flight Attendants v. Pan American World Airways, Inc., 966 F.2d 457, 459 (9th Cir. 1992) (citations omitted). *fn2" The court, however, declined to order vacatur of this court's decision, instead remanding the case for a determination of whether the judgment should be vacated.

 III. DISCUSSION

 In cases that become moot during the appeal process, the normal procedure is for the appellate court to both dismiss the appeal and order the district court to vacate the underlying decision. United States v. Munsingwear, Inc., 340 U.S. 36, 39, 95 L. Ed. 36, 71 S. Ct. 104 (1940). The rationale behind this procedure is clear; having been denied by circumstances beyond its control the opportunity to fully litigate its case, the appellant should not be bound by the original (and non-final) judgment.

 There exists an important exception to this rule, however; where, as here, it is the appellant itself that has mooted the appeal, that appellant has not been deprived of a chance to litigate its case. Instead, it has waived that chance, just as if it had chosen not to appeal in the first place, and thus the appellate court will not order the original judgment vacated. This exception finds its best articulation in Ringsby Truck Lines v. Western Conference of Teamsters, 686 F.2d 720, 721 (9th Cir. 1982):

 We find the distinction between litigants who are and are not responsible for rendering their case moot at the appellate level persuasive. If the effect of post-judgment settlements were automatically to vacate the trial court's judgment, any litigant dissatisfied with the trial court's findings would be able to have them wiped from the books. "It would be quite destructive to the principle of judicial finality to put such a litigant in a position to destroy the collateral conclusiveness of a judgment by destroying his own right of appeal." 1B Moore's Federal Practice P 0.416[6] at p.2327 (2d ed. 1982). That possibility would undermine the risks inherent in taking any controversy to trial and, in cases such as this one, provide the dissatisfied party with an opportunity to relitigate the same issues.

 As in the Munsingwear rule, "the rationale behind this exception is [clear,] that a dissatisfied litigant should not be allowed to destroy the collateral consequences of an adverse judgment by destroying his own right to appeal." Allard v. DeLorean, 884 F.2d 464, 467 (9th Cir. 1989). Accordingly, the Ninth Circuit in this case followed the practice articulated in National Union Fire Ins. Co. v. Seafirst Corp., 891 F.2d 762, 769 (9th Cir. 1989), and remanded the case to this court ...


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