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decided: October 27, 1980.



Before Seitz, Chief Judge, and Aldisert,*fn* Adams, Gibbons, Rosenn, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Adams


In an opinion filed October 27, 1980, 634 F.2d 50, this Court, sitting en banc, held that Pennsylvania's post-judgment garnishment procedures violated the due process clause of the Federal Constitution in two respects. First, the state procedures failed to provide a prompt post-seizure hearing at which claims of exemption could be adjudicated, and second, the state scheme did not require that the judgment debtor be informed of the existence of or procedure for claiming exemptions under state and federal law. We also held that the Pennsylvania rules violated the Supremacy Clause because they provided a judgment creditor with a means of circumventing the Social Security Act's exemption of benefits from attachment or garnishment. In addition to these rulings on the substantive issues in the case, we vacated the district court's denial of certification for the class of all judgment debtors who are subject to having personalty garnished in Pennsylvania and who have legal or equitable defenses to the execution, 461 F. Supp. 253 (D.C.).

Because our opinion invalidated provisions of state law, the defendants the sheriff and prothonotary of Philadelphia County had a right to appeal to the United States Supreme Court. See 28 U.S.C. § 1254(2). Initially indicating that they would follow this course, the defendants filed a notice of appeal to the Supreme Court. The defendants also moved this Court to stay its mandate, which ordinarily issues twenty-one days after the entry of judgment, see Fed. R. App. P. 41(a), in order that they could proceed in the United States Supreme Court before the directive issued that would strike down the invalid rules. Acting on this motion, and on others filed subsequently, this Court has not yet issued its mandate. The defendants, however, have abandoned their opportunity for Supreme Court review,*fn1 thereby removing the predicate for the stays of mandate that have issued. Nevertheless, the defendants now urge that the mandate should be stayed and the opinion of the Court withdrawn in light of action recently taken by the Pennsylvania Supreme Court.


Although it has never been a party to the present dispute, the Supreme Court of Pennsylvania, following issuance of this Court's opinion, promptly directed its Civil Procedural Rules Committee to prepare amendments to the state post-judgment garnishment procedure in order to bring it into compliance with the constitutional requirements of due process. On March 16, 1981, the State Supreme Court promulgated amended rules which, the defendants maintain, provide the constitutionally-required prompt hearing and notice of exemptions. Because the state has amended its rules, the defendants urge that it would be "superfluous" to allow the case to be remanded to the district court for possible issuance of declaratory relief. They contend that there is no longer a live controversy and that the proper course is for this Court to vacate the judgment entered on October 27, 1980, to withdraw its opinion, and to direct the district court to dismiss the case as moot.

In arguing for this conclusion, the defendants refer to various cases in which an appellate court vacated a lower court's judgment because the controversy became moot before the appellate tribunal could render a decision on the merits. This disposition has long been an element of Supreme Court practice,*fn2 although the Court retains discretion simply to dismiss the appeal in a moot case and to allow the lower court judgment to stand.*fn3 A similar discretion has not been accorded the federal courts of appeals, however. In Great Western Sugar Co. v. Nelson, 442 U.S. 92, 99 S. Ct. 2149, 60 L. Ed. 2d 735 (1979), the Tenth Circuit had dismissed the appeal from the district court on grounds of mootness, but had allowed the district court judgment to stand. The Supreme Court, however, disapproved this disposition,*fn4 reaffirming the teaching of Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S. Ct. 202, 205, 81 L. Ed. 178 (1936), that " "(w)here 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.' " 442 U.S. at 93, 99 S. Ct. at 2149 (emphasis in original). Underlying these principles is the theory that removal of the lower court judgment "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." United States v. Munsingwear, 340 U.S. 36, 40, 71 S. Ct. 104, 107, 95 L. Ed. 36 (1950).

Had the defendants here pursued their appeal of right to the Supreme Court, and had they convinced that Court that the changes in the Pennsylvania postjudgment garnishment procedures make the case moot, then the Supreme Court may well have exercised its discretion to vacate this Court's judgment of October 27, 1980, and remanded with directions to dismiss. The defendants urge that this Court, which retains control over the appeal until its mandate is issued,*fn5 should dispose of the case in the way that the Supreme Court would if the appeal were before it.

The fundamental problem with this recommendation is that it begs the central question on which the defendants' motion turns namely, whether the appeal is now moot.*fn6 In contrast to Munsingwear and Great Western Sugar, in which a government action*fn7 or the activities of the litigants*fn8 left no question concerning mootness, it is far from clear that Mrs. Finberg's controversy is no longer "live." In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979), the Supreme Court articulated a two-pronged test for mootness. A case may become moot if (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur,*fn9 and (2) interim relief or events have "completely and irrevocably eradicated the effects of the alleged violation." The defendants maintain that the Pennsylvania Supreme Court's reform of the state garnishment rules undermines Mrs. Finberg's lawsuit. In effect, they argue that these amendments satisfy both branches of the Davis test: they remove the asserted constitutional violations, and provide assurance that any violations will not recur.

Pointing to a change in the law, however, does not demonstrate that the constitutional violations of which Mrs. Finberg complains have ceased and will never recur. The relevant issue with respect to this branch of the mootness test is whether the principle contended for by Mrs. Finberg the right of all post-judgment debtors to be heard promptly and to be notified of legal and equitable defenses is satisfied by the new rules. If it is, the case is moot; if not, the challenging party's interest is not destroyed by the amendment.*fn10

Defendants have not persuaded us that the new rules satisfy all of the principles for which Mrs. Finberg contends. More specifically, our opinion of October 27, 1980, vacated the district court's denial of class certification and remanded on this point. Only after the district court determines whether or not to certify the class can it be ascertained whether the amended Pennsylvania rules adequately safeguard the due process rights of all parties to this controversy.*fn11 Moreover, even if the district court declines to certify the class, the question whether the new rules will secure a judgment creditor like Mrs. Finberg a prompt hearing on exemption claims may well turn on additional evidence as to how the new rules operate in practice. The uncertainty, on the present record, over whether the new rules adequately safeguard creditors in Mrs. Finberg's position distinguishes the case at bar from Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200, 24 L. Ed. 2d 214 (1969), where the Supreme Court found moot a challenge to Colorado's six-month residency requirement for eligibility to vote. Before the Supreme Court decided the case, Colorado had shortened the residency requirement from six to two months. The Court determined the case to be moot because, inter alia, plaintiffs would have been eligible to vote had the new standard been in effect at the time of the election from which they were precluded.*fn12 By contrast, we cannot say with assurance that the new Pennsylvania procedures no longer "adversely affect" Mrs. Finberg's interests, see id. at 48, 90 S. Ct. at 201. And it is well-settled that a change in the law does not moot a case if the plaintiff's rights would have been violated under the new law. See Brockington v. Rhodes, 396 U.S. 41, 43, 90 S. Ct. 206, 207, 24 L. Ed. 2d 209 (1969) (decided same day as Hall v. Beals ). Absent an inquiry into the operation of the new rules, we are reluctant to hold that the new Pennsylvania garnishment procedures fully satisfy the standard of due process as calculated in our opinion of October 27, 1980. This factual inquiry is properly addressed to the district court.

In light of the above considerations, we cannot agree with the defendants that Pennsylvania's amendments to its rules render this case moot.*fn13


A somewhat different argument for vacation of our judgment focuses not on mootness but on an attempted conflation of two well-established principles: that an appellate court's decision is not final until it issues its mandate, and that a court should apply the law in effect at the time it renders its decision. It might be thought that from these premises it follows that this Court, having not yet issued its mandate, should re-examine its earlier judgment in light of the recent revisions to the Pennsylvania rules, since these constitute the law currently in effect. The flaw in this argument is that the law applied in this case is not the Pennsylvania post-judgment statute, but the standard of due process embodied in the United States Constitution. The governing constitutional standard has not varied since we entered judgment last October. Only the law under scrutiny the Pennsylvania rules dealing with garnishment has been amended, and this amendment was engendered by our decision that the old procedures did not comport with constitutional guarantees. The principle that a court should apply the law as it stands on the day of decision should not be misappropriated to allow an opinion expressing the applicable rule of constitutional law to be vacated whenever a legislative body or other governmental agency, responding to the court's opinion, alters a legal provision or course of conduct, to which the law had been applied.

Comparison of the present case with the Fourth Circuit's decision in Alphin v. Henson, 552 F.2d 1033 (4th Cir.), cert. denied, 434 U.S. 823, 98 S. Ct. 67, 54 L. Ed. 2d 80 (1977), reinforces this point. There, the court of appeals, after denying attorneys' fees to victorious plaintiffs in an antitrust case, stayed issuance of its mandate to permit plaintiffs to apply for a writ of certiorari to the Supreme Court. Before the Supreme Court addressed the application, Congress enacted the Hart-Scott Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 26, amending the antitrust laws to provide awards of attorneys' fees to prevailing parties such as the Alphin plaintiffs. Inasmuch as the mandate of the Fourth Circuit had not yet issued when the Supreme Court denied the petition for certiorari, the court of appeals then re-examined, in light of the subsequent legislative action, its decision against awarding attorneys' fees, and reversed its earlier judgment. Alphin may well illustrate the appropriate response of a reviewing court when there is a change in the law of decision between the entry of judgment and the issuance of mandate. But see id. at 1036 (Field, J., dissenting). Alphin, however, does not suggest that a court should vacate its judgment when the rule it has reviewed is modified to conform to that judgment.


Because we have decided that the case is not moot and that no change in the governing law has occurred, precedents establishing the proper disposition of cases under these circumstances do not control our resolution of the defendants' motion for vacation of judgment. More pertinent to the motion under consideration is Main Road v. Aytch, 565 F.2d 54 (3d Cir. 1977). There a class action on behalf of prisoners confined in the Philadelphia prison system resulted in an opinion by this Court vacating the district court's denial of relief and remanding for promulgation of regulations governing prisoner press interviews and conferences. When the prisoners subsequently brought another class action challenging the newly promulgated regulations, the district court dismissed their complaint. On appeal, we agreed that the new regulations survived constitutional scrutiny, but held that a declaratory judgment, indicating that plaintiffs were entitled to prevail to the extent provided in the earlier opinion, was in order.

Many of the considerations that prompted us to direct entry of declaratory relief in Main Road apply as well in the present case. As in Main Road, the Court in the case at bar held that an established state procedure was unconstitutional and required amendment. Again as in Main Road, the judgment here has had beneficial consequences, for the Pennsylvania Supreme Court has already taken action to remedy the deficient garnishment procedure. Yet were this Court to grant the defendants' motion for vacation of judgment, we would remove the premise for the extensive reforms brought about by the Procedural Rules Committee of the Pennsylvania Supreme Court. Just as the Court in Main Road expressed concern that the absence of definitive judicial action would produce nothing binding upon the defendants and their successors, we likewise are troubled by the general point that vacation of judgment and withdrawal of an opinion in light of subsequent efforts to comply with the court's directive leaves a prevailing party no assurance against reinstatement, in whole or in part, of the practice or situation that the reviewing court had found objectionable. We, of course, have no reason to suspect that the Pennsylvania Supreme Court would withdraw its amended rules if we vacated our judgment of October 27, 1980. But the general point remains that vacation of judgment may allow a losing party to eradicate the precedential value of the judgment against it. Moreover, even if a losing party could be relied on to adhere to the Court's withdrawn opinion, the opinion's value in directing the conduct of other actors and setting down rules of law would be vitiated.*fn14 Duplicative litigation could be expected to follow.

This prospect is especially troubling in a case like the present where, as Judge Aldisert suggests in the appendix to his dissent, the post-judgment garnishment procedures of many states may well fall short of the due process standard articulated in the opinion of the Court. Although the defendants' motion does not present a request for equitable relief, the same considerations that prompted us in Main Road to direct entry of a declaratory judgment counsel against vacating the judgment of this Court entered last October 27.

For the foregoing reasons, it would be inappropriate to vacate the judgment entered on October 27, 1980. In declining defendants' motion, however, we do not wish to be understood as denigrating the exemplary efforts of the Supreme Court of Pennsylvania to amend its post-judgment garnishment rules to comply with the requirements of due process. To the contrary, the Pennsylvania court's swift response to the judgment sets a commendable example of cooperation between state and federal courts.

Defendants' motion for vacation of judgment and entry of an order directing the district court to dismiss this case as moot will be denied. Defendants' unopposed motion for withdrawal of the notice of appeal to the Supreme Court will be granted.


Upon consideration of defendant-appellees' motion for vacation of judgment and entry of an order directing the district court to dismiss this case as moot, filed March 26, 1981, and in accordance with the opinion of this Court,

It is Ordered that said motion be and the same is hereby denied.

Upon further consideration of defendant-appellees' motion for withdrawal of the notice of appeal to the Supreme Court, filed March 26, 1981, and in accordance with the opinion of this Court,

It is Ordered that said motion be and the same is hereby granted.

WEIS, Circuit Judge, dissenting.

The court sitting in banc found that the Pennsylvania Rules of Civil Procedure governing post-judgment garnishment were constitutionally lacking with respect to exemptions. Before the mandate of this court issued, the Pennsylvania Supreme Court amended the rules which, as I read them, now meet the objections cited by the majority. Indeed, the opinion sur denial of defendants' motion for vacation of judgment does not find fault with the newly drafted rules insofar as they apply to exemptions.

The majority opinion was restricted to the exemption claim issues brought before the court by Mrs. Finberg and did not address the merits of any other substantive matters raised by the uncertified class. Because her contention that the Pennsylvania rules did not provide due process lost its validity with the enactment of the amendments, Mrs. Finberg no longer has a justiciable claim. As to her, the matter is moot, and the exemption issue is, therefore, no longer a proper basis upon which to certify a class.

This court must review the controversy before it in light of the rules as they now exist, not as they were when the suit commenced in the district court, or when the appeal was first filed. Hall v. Beals, 396 U.S. 45, 48, 90 S. Ct. 200, 201, 24 L. Ed. 2d 214 (1969); United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49 (1801). In Hall, the Supreme Court held that a controversy was moot because the Colorado statute under attack was amended before the appeal was determined. There, as here, the constitutional standard had not changed and there, as here, the enactments said to contravene the Constitution had been revised so that the conflict no longer existed. The Court noted that as far as the appellants were concerned, "nothing in the Colorado legislative scheme as now written adversely affects either their present interests, or their interests at the time this litigation was commenced." Id. To the same effect, see Kremens v. Bartley, 431 U.S. 119, 128-29, 97 S. Ct. 1709, 1714-15, 52 L. Ed. 2d 184 (1977). The same result should obtain here.

In promulgating procedural rules, the Pennsylvania Supreme Court acts in its legislative capacity, see Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731, 100 S. Ct. 1967, 1974, 64 L. Ed. 2d 641 (1980), and its enactments have the force of statutes, 42 Pa.Cons.Stat.Ann. § 1722(b) (Purdon 1980). As presently written, the rules require adequate notice of exemptions and prompt disposition of claims invoking them, two conditions mandated by the majority opinion. "The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." Hall v. Beals, supra, 396 U.S. at 48, 90 S. Ct. at 201.

The fact that the change in the rules occurred after the majority's opinion was filed does not remove the basis for a declaration of mootness. This court unquestionably may change its judgment before the mandate becomes effective, Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.), cert. denied, 434 U.S. 823, 98 S. Ct. 67, 54 L. Ed. 2d 80 (1977), and, indeed, in one instance, recalled its mandate years after it had issued. American Iron & Steel Institute v. EPA, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914, 98 S. Ct. 1467, 55 L. Ed. 2d 505 (1978). The fact that the Pennsylvania rules were amended at such a late stage in the appellate proceedings, therefore, does not deprive this court of the power to act.

It is asserted that Mrs. Finberg's case is not moot because other members of a class that might be certified could assert that the amended rules still deny due process when defenses to post-judgment proceedings other than exemptions are raised. That, however, is not relevant to Mrs. Finberg's claim the only one that was the subject of the majority opinion. As the Court observed in United States Parole Commission v. Geraghty, 445 U.S. 388, 401, 100 S. Ct. 1202, 1211, 63 L. Ed. 2d 479 (1980) and Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332-33, 100 S. Ct. 1166, 1170-71, 63 L. Ed. 2d 427 (1980), for Article III mootness purposes, we must approach cases on an issue by issue basis. Mootness on one issue does not moot all, and, conversely, the continued viability of some issues does not breathe life into those that are no longer justiciable.

When Mrs. Finberg's substantive claim is isolated, it becomes clear that both aspects of the test for mootness are satisfied. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979). The alleged violation of the rights of debtors claiming exemptions has been remedied, and there is no reason to suspect that the new rules will be revoked. Thus, whatever might remain of the uncertified class claims, none of the Finberg substantive contentions survive the promulgation of the amended rules. The possibility that other judgment debtors may incur different alleged violations is of no consequence. While it is true that the existence of their claims precludes an order withdrawing the majority opinion in its entirety, that part deciding a constitutional issue that is now moot should be vacated. Kremens v. Bartley, supra, 431 U.S. at 137, 97 S. Ct. at 1719.

The majority also expresses some reluctance to vacate its opinion because precedential value will be lost. But no matter how thoughtful or learned they may be, we are not authorized to issue advisory opinions, and as Mrs. Finberg's claim now stands, the majority opinion falls into that category.

Main Road v. Aytch, 565 F.2d 54 (3d Cir. 1977), is not pertinent except insofar as it demonstrates why a contrary result should be reached here. In that case the informal rules were promulgated by the defendant, a party to the suit, shortly after this court remanded to the district court for that very purpose. Id. at 56; Main Road v. Aytch, 522 F.2d 1080, 1090 (3d Cir. 1975). Moreover, the proposed regulations in Main Road were adopted by an administrative agency whose policies tend to change with each shift in supervisory personnel. Here, on the other hand, the rules are the creation of a governmental body whose policy reflects an institutional permanence equivalent to our own indeed, a court whose history antedates ours by more than two hundred years. It bears repeating that the state Supreme Court is not a party to this case and the defendants had no power to change the rules. Therefore, it cannot be said that this is a case of "voluntary cessation of allegedly illegal conduct" where the defendants are "free to return to (their) old ways." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953).

The vigorous, energetic, and prompt efforts on the part of the Pennsylvania Supreme Court and its Procedural Rules Committee to amend its rules to comply with the majority opinion call for commendation. The court and its committee responded quickly to the majority decision which caused substantial disruption to long established commercial practices in the state. I have not the slightest concern that so responsible a court will withdraw its changes should we vacate our opinion, and the majority does not disagree with me on this point.

It does seem to me that in addition to the strong legal basis for declaring Mrs. Finberg's claim to be moot, respect for a sister court calls for that course of action. Courtesy and precedent in this situation go hand in hand.

I would vacate the judgment of the court, withdraw the opinions, and remand to the district court for consideration of class certification on such issues as might remain.

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