Below, Josh Friedman of Akin Gump looks back at last week’s decision in Alvarez v. Smith. Earlier coverage of the cert., merits, and argument stages in the case can be read on the Alvarez v. Smith (08-351) SCOTUSwiki page.

On December 8, the Court held that the question presented by Alvarez v. Smith is now moot.  (You can read Alexis Grant's preview of the case and recap of oral argument here and here.)  As a result, it remains uncertain how long local law enforcement may hold seized property without providing administrative review.

In an opinion penned by Justice Breyer and joined by all the Justices, the Court explained that the case no longer presented an Article III "case or controversy" because each of the underlying property disputes had been resolved, through either the return of the property or the forfeiture of claims for recovery.  Though the parties continue to dispute their legal claims, the Court concluded that it would be inappropriate to resolve the dispute because it "is no longer embedded in any actual controversy about the plaintiffs' particular legal rights."

It is with perhaps a touch of irony then that the question of what to do with the opinion below was shrouded in (slight) controversy.  The Court acknowledged that under its 1994 decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, a losing party forfeits its claim to the equitable remedy of vacatur when the case becomes moot by settlement.  The Court distinguished Bancorp, however, on the ground that the question presented in that case was argued at every stage of the appeal and, ultimately, was itself resolved in the settlement agreement.  The settlement here, by contrast, did not resolve the due process questions before the Court.  Instead, that question was rendered moot by "the vagaries of circumstance""”here unrelated state court proceedings that addressed only the status of the property itself.  The Court concluded that such unrelated and uncoordinated dispositions do not constitute the sort of "voluntary forfeit[ure]" that "tilted against vacatur."  It thus  vacated the judgment of the Seventh Circuit and remanded the case with instructions to dismiss.

Justice Stevens, though agreeing that the case was moot, dissented from the Court's decision to vacate the judgment below.  He observed that Bancorp also instructs that vacutur should be informed by the "public interest," which "is generally better served by leaving appellate judgments intact."  He reasoned that although the settlements in this case are different from those in Bancorp, they nonetheless represented "purposive and voluntary action that caused the mootness" of the type that would normally counsel against vacatur.  Rather than vacate, Justice Stevens would have dismissed the writ of certiorari as improvidently granted and thus preserve the decision below.

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