The opinion of the court was delivered by: OBERDORFER
On December 20, 1993, a Memorandum and Order granted summary judgment in favor of plaintiff American Public Communications Council, Inc. ("APCC") against defendant Allnet Communication Services, Inc. ("Allnet"). That decision was based primarily on a prior finding by the Federal Communications Commission ("FCC"), which determined that Allnet was a "provider of operator services" within the meaning of section 226 of the Communications Act. See Second Report and Order, 7 FCC Rcd 3251 (1992).
Subsequently, the parties reached a negotiated settlement, reflecting an understanding that intervening events had eliminated the justification for APCC's claim. On December 30, 1996, the D.C. Circuit dismissed the appeal and remanded with instructions to determine whether vacatur of the summary judgment order would be appropriate. Both parties have since submitted memoranda in support of that position.
Typically, where the voluntary settlement of a lawsuit renders the appeal moot, the judgment of the district court is not vacated. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S. Ct. 386, 392, 130 L. Ed. 2d 233 (1994); In re United States, 288 U.S. App. D.C. 354, 927 F.2d 626 (D.C. Cir. 1991). The rationale is that judicial precedent, which inures to the benefit of the public, should not be used as a bargaining chip in private negotiations.
In this case, however, there is no indication that the prevailing party in the district court, APCC, bargained away the precedent of the summary judgment order. Rather, an intervening change in the dispositive facts substantially altered the merits of APCC's claim. In such a situation, the Court of Appeals -- most likely -- would have vacated and remanded for further consideration. See Thomas v. American Home Products, Inc., 136 L. Ed. 2d 201, 117 S. Ct. 282 (1996); 117 S. Ct. at 282-84 (Scalia, J., concurring). On remand, the parties -- almost assuredly -- would have reached the same settlement agreement that was secured. Instead of following down that circuitous path, however, the parties simply settled their dispute in the Court of Appeals.
Thus, this case presents a narrow exception to the general rule enunciated in U.S. Bancorp. Although the parties' negotiated settlement provided the technical reason why this case became moot, it was actually the FCC's reconsideration that underlay that transformation. In a sense, the settlement agreement was a fait accompli. Since both parties have agree to the vacatur of the summary judgment order, it will be vacated, and the complaint will be dismissed.
UNITED STATES DISTRICT JUDGE
For the reasons stated in the accompanying Memorandum, it is this 25th day of March 1997 hereby
ORDERED: that the Memorandum and Order dated December 20, 1993 should be, and is, hereby ...