United States District Court, District of Columbia
JEWISH WAR VETERANS OF THE UNITED STATES OF AMERICA, INC., et al., Plaintiffs,
JAMES MATTIS, Secretary of Defense, Defendant, 
DARRELL ISSA, BRIAN BILBRAY & DUNCAN HUNTER, Interested Parties.
D. BATES United States District Judge
motion represents the last gasp of several decades of
litigation. The parties were engaged in a long-running
dispute over a Latin cross that was displayed on public land
in San Diego, California. Related to that litigation, certain
plaintiffs sought discovery from Members of Congress, and
filed a motion to compel that discovery in this Court. This
Court granted in part and denied in part that motion in 2007.
The order has since become moot, as the parties and the Court
recognized in 2008, leading this Court to dismiss the case.
But the Members of Congress sought to vacate this Court's
2007 discovery order. Because vacatur is an extraordinary
remedy, and the Court does not believe that the balance of
equities weighs in favor of vacatur, the Court will, at long
last, deny the motion.
forty-three foot Latin cross has stood atop Mount Soledad in
San Diego, California, since 1954. See Trunk v. City of San
Diego, 629 F.3d 1099, 1102 (9th Cir. 2011). In 2006, the
federal government took possession of the land in accordance
with a statute. Id. at 1104-05. Several plaintiffs
filed two suits, alleging that the display of the cross
violated the Establishment Clause. Id. at 1105.
Those suits were consolidated for pretrial purposes.
Id. Pursuant to that litigation, a subset of the
plaintiffs-who this Court refers to collectively as
“Jewish War Veterans” or
“JWV”-subpoenaed certain documents from three
Members of Congress who led the charge in passing the statute
that permitted the federal government to acquire the land:
Representatives Darrell Issa, Brian Bilbray,  and Duncan
Hunter. See Jewish War Veterans v. Gates, 506
F.Supp.2d 30, 37-38 (D.D.C. 2007).
Representatives objected to the subpoenas on multiple
grounds, including based on their belief that some of the
documents were protected by the Speech or Debate Clause of
the U.S. Constitution. Id. The plaintiffs in this
case therefore filed three motions to compel. Id. at
38. After careful consideration, this Court issued a
September 18, 2007 Memorandum Opinion and Order granting in
part and denying in part the plaintiffs' motions and
laying out a process for determining which documents are
protected by the Speech or Debate Clause through in
camera review, if necessary. Id. at 60-62. The
Representatives appealed this Court's decision to the
D.C. Circuit, which dismissed their appeal as unripe because
the Representatives had not yet “claimed that any
particular document is privileged.” See Jewish War
Veterans of the United States, Inc. v. Gates, 279 F.
App'x 3 (D.C. Cir. 2008) (nonprecedential).
2008, Judge Burns of the District Court for the Southern
District of California granted summary judgment to the
government in the underlying litigation. See Trunk v.
City of San Diego, 568 F.Supp.2d 1199, 1225 (S.D. Cal.
2008). The parties before this Court agreed that Judge
Burns' decision mooted this Court's September 2007
decision, and the plaintiffs acknowledged that they were no
longer seeking any additional documents from the
Representatives. See Pls.' Praecipe [ECF No.
47]. The Court therefore dismissed this case. See
Aug. 20, 2008 Minute Order.
after this case was dismissed, the Representatives filed the
motion at hand asking this Court to vacate its September 18,
2007 order under Federal Rule of Civil Procedure 60(b), so
that they could avoid future prejudice from an order as to
which they could not obtain appellate review. See
Representatives' Mot. [ECF No. 48]. The plaintiffs
opposed the motion, arguing that vacatur of a moot order is
an equitable remedy, and is not warranted here. See
Pls.' Opp'n [ECF No. 49].
years since these motions were filed, the underlying
litigation has now been completed. The Ninth Circuit reversed
the district court, holding that the display of the cross on
public land violated the Establishment Clause. See
Trunk, 629 F.3d at 1125. Congress then passed a law
transferring the land to a private party, thereby eliminating
the Establishment Clause violation and mooting the case
entirely. See Nat'l Def. Auth. Act for Fiscal
Year 2015, Pub. L. No. 113-291 § 2852, 128 Stat. 3292,
3713-15 (2014). In between, the Supreme Court denied
certiorari twice, and the district court ordered that the
cross be removed. See Mt. Soledad Mem'l Ass'n v.
Trunk, 132 S.Ct. 2535 (2012); Trunk v. City of San
Diego, 2013 WL 6528884, at *2 (S.D. Cal. Dec. 12, 2013);
Mt. Soledad Mem'l Ass'n v. Trunk, 134 S.Ct.
Supreme Court has explained, “‘[t]he established
practice of the [Supreme 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 dismiss.'” U.S. Bancorp Mortg. Co.
v. Bonner Mall P'ship, 513 U.S. 18, 22 (1994)
(quoting United States v. Munsingwear, Inc., 340
U.S. 36, 39 (1950)). This “clears the path for future
relitigation of the issues between the parties and eliminates
a judgment, review of which was prevented through
happenstance.” Id. at 22-23 (quoting
Munsingwear, 340 U.S. at 40). In addition to
appellate courts employing this doctrine, district courts
have relied on U.S. Bancorp and Munsingwear
to vacate their own opinions as well. See Ocean
Conservancy v. Nat'l Marine Fisheries Serv., 416
F.Supp.2d 972, 975-81 (D. Haw. 2006) (granting motion to
vacate under Fed.R.Civ.P. 60(b)); Fund for Animals v.
Mainella, 335 F.Supp.2d 19, 25-26 (D.D.C. 2004)
vacatur is an “equitable” and an
“extraordinary” remedy. U.S. Bancorp
Mortg., 513 U.S. at 26. Thus, the party seeking that
remedy bears the burden of demonstrating that the relief is
justified. See id. And “[a]s always when
federal courts contemplate equitable relief, [they] must also
take account of the public interest.” Id. One
element of that public interest is the value of judicial
opinions: “Judicial precedents are presumptively
correct and valuable to the legal community as a whole. They
are not merely the property of private litigants and should
stand unless a court concludes that the public interest would
be served by vacatur.” Id. (internal quotation
marks omitted) (quoting Izumi Seimitsu Kogyo Kabushiki
Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40 (1993)
(Stevens, J., dissenting)). A court, therefore, must balance
the equities to determine if vacatur is in the public
interest. See Nat'l Black Police Ass'n v.
District of Columbia, 108 F.3d 346, 353-54 (D.C. Cir.
1997); see also Fund for Animals, 335 F.Supp.2d at
the weightiest reason that the Representatives raise for
vacating this Court's prior opinion is to avoid this
ruling having a preclusive effect in other discovery
litigation related to the underlying action. See
Representatives' Reply [ECF No. 50] at 4-5. A
decision's preclusive effect (whether claim preclusion or
issue preclusion) bars future litigation of that same cause
of action or of the same issue of law or fact litigated
between the same parties. In contrast, a decision's
precedential effect is its weight as binding authority on a
particular rule of law in subsequent proceedings. They argue
that should the underlying litigation continue,
“discovery could be reopened, and  one or more of the
Members could again be dragged . . . into a discovery dispute
. . . [and they] might arguably be collaterally estopped from
relitigating the issues that they attempted to raise on
appeal.” Id. at 4-5. Indeed, the preclusive
effect of a judgment on later litigation in the same case can
be a proper reason for a court to grant the equitable remedy
of vacatur. See Kelso v. U.S. Dep't of State, 13
F.Supp.2d 12, 17 (D.D.C. 1998) (“[V]acatur can be an
equitable remedy to relieve a party of a judgment's
preclusive effect, review of which cannot be had on appeal
due to intervening events that moot the controversy.”).
And when the D.C. Circuit “routinely” vacates
district court decisions due to mootness, especially
discovery-related decisions, the underlying litigation is
usually ongoing (even if on appeal) and thus there is the
valid concern of harm due to the preclusive effect of the
unreviewable district court opinion. See, e.g.,
City of El Paso v. S.E. Reynolds, 887 F.2d 1103,
1105-06 (D.C. Cir. 1989); Lopez Contractors, Inc v.
F&M Bank Allegiance, 90 F. App'x 549, 550 (D.C.
Cir. 2004) (nonprecedential).
that concern is no longer present here: the underlying
litigation has gone to the Ninth Circuit, been denied
certiorari by the Supreme Court, been remanded to the
district court, once again been denied certiorari by the
Supreme Court, and then been mooted by legislation from the
U.S. Congress that transferred the land to a private party.
It is plainly and completely over. There can therefore be no
more discovery in this or related litigation. Thus, the
Representatives cannot be harmed by the preclusive effect of
this Court's prior opinion, because there is none.
any harm from this opinion stems from its precedential
effect, that is, from its use in unrelated court proceedings.
As the Seventh Circuit has explained, courts “vacate
unappealable decisions to prevent them from having a
preclusive effect. [Courts] do not vacate opinions to
prevent them from having a precedential effect.” In
re Smith, 964 F.2d 636, 638 (7th Cir. 1998). To vacate
an opinion simply because of its precedential effect, when it
has no preclusive effect, would deny the “legal
community as a whole” of the value of judicial
opinions, and treat such opinions as “merely the
property of private litigants.” See U.S. Bancorp
Mortg., 513 U.S. at 26. The value of clear judicial
opinions, especially in areas that are not frequently
litigated, has led the D.C. Circuit to state that under
U.S. Bancorp, in at least some circumstances,
“the establishment of precedent argues against vacatur,
not in favor of it.” Mahoney v. Babbitt, 113
F.3d 219, 223 (D.C. Cir. 1997); see also Fund for
Animals, 335 F.Supp.2d at 27-28; 13A Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Fed. Prac. &
Proc. § 3533.10 (2d ed. 1984) (“So long as
the court believed that it was deciding a live controversy,
its opinion was forged and tested in the same crucible as all
opinions.”). And in this case, importantly, this
Court's prior opinion has little precedential effect. As
a district court opinion, it is not binding on any court
beyond its ...