What survives from the Framers' deliberations is that it was "generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary Nature." 2 Farrand, The Records of the Federal Convention of 1787, 430 (Madison, August 27) (1911) ("Farrand"). This record is quite clear that the Framers did not wish the federal "judicial Power" to extend beyond "cases of a Judiciary Nature." The delegates in Philadelphia in the summer of 1787 consistently "defeated a variety of proposals to give non-judicial functions" to the court(s) to be created under Article III. Hart & Wechsler's The Federal Courts and the Federal System 7 (3d ed., 1988). Most pertinent to the present inquiry was their consistent rejection of any power to render what we now call advisory opinions. See, for example, the failure of Charles Pinckney's proposal that "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." 2 Farrand 341 (Journal, August 20).3

The Federal Convention's decision in 1787 to avoid the submission of advisory questions to Article III judges was confirmed six years later in the celebrated Correspondence of the Justices. Secretary of State Jefferson transmitted twenty-nine questions, pertaining to extant "treaties between the United States and France", on President Washington's behalf to the Supreme Court. On August 8, 1793, Chief Justice Jay and his colleagues politely declined the request, noting the separation of powers "being in certain respects checks upon the other, and our being judges of a court in the last resort".4

Thus, it is clear from this record that the Framers' aversion to federal courts deciding abstract or hypothetical questions stemmed as much from concerns about the separation of powers as from their desire to limit jurisdiction to "cases of a Judiciary nature". That this was a distinctly American limitation on the meaning of "cases" is affirmed by the reality that, "at least by 1770, it was well-recognized that English judges had the power to give advisory opinions." 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3529.1, pp. 293-94 (2d ed. 1984) [citation omitted].

Article III's reference to "cases" and "controversies" thus represents the first critical threshold to federal court jurisdiction. As the Supreme Court put it in North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971), "federal courts are without power to decide questions that cannot affect the right of litigants in the case before them." Article III also disables federal courts from taking any action in moot cases, and the Supreme Court has repeatedly affirmed that this disability "to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S. Ct. 391, 394 n. 3, 11 L. Ed. 2d 347 (1964); see also Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S. Ct. 1944, 1951 n. 7, 23 L. Ed. 2d 491 (1969); Sibron v. New York, 392 U.S. 40, 50 n. 8, 88 S. Ct. 1889, 1896 n. 8, 20 L. Ed. 2d 917 (1968).5

What is a "case or controversy"? As Justice Frankfurter noted in his concurrence in Joint Anti-Fascist Refugee Comm. v. McGrath, supra, "the jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a 'case or controversy' ". Id. Seventeen years later, Chief Justice Warren observed, with respect to "cases" and "controversies", that "those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 94, 88 S. Ct. 1942, 1949, 20 L. Ed. 2d 947 (1968). From Chief Justice Hughes's approach to defining "cases" or "controversies" in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-241, 57 S. Ct. 461, 463-64, 81 L. Ed. 617 (1937)6 to Justice Scalia's for a unanimous Court in Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253, 108 L. Ed. 2d 400 (1990)7, the Supreme Court's understanding that "cases" or "controversies" require antagonism and concreteness has been consistent with the Framers' view of the "limited" jurisdiction Article III conferred on the courts created pursuant to it.8

All of these formulations confirm for us that no "case" or "controversy" existed between the DEP and the Debtor by August 9, 1991 or, at the latest, when the bankruptcy judge learned of the withdrawal of DEP's objection on August 28, 1991. After that withdrawal, the controversy between the DEP and the Debtor was moot, and the September 6, 1991 memorandum necessarily became an answer to a question not asked. The memorandum was, therefore, in every sense "advisory".

In upholding the bankruptcy judge's action, the district court stated that the matter was not moot in an Article III sense "due to the deliberate act of a party, rather than due to happenstance", citing this court's decision in Clarendon Ltd. v. Nu-West Industries, Inc., 936 F.2d 127, 130 (3d Cir.1991). The district court did not address the advisory nature of the September 6 action.

While it is true that the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot", United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953), those cases, of which Clarendon is one, are simply inapplicable here. The issue before the bankruptcy judge did not concern the propriety of a DEP regulation or practice, i.e., a position of general regulatory significance that the agency could reassert at will. If that were the case, the W.T. Grant exception to the mootness doctrine might conceivably apply.

Nor does this case fit the pattern in Clarendon. There, the parties settled the dispute during the pendency of an appeal from the granting of a summary judgment motion. Quoting United States v. Garde, 848 F.2d 1307, 1311 (D.C.Cir.1988) ("We do not wish to encourage litigants who are dissatisfied with the decision of the trial court 'to have them wiped from the books' by merely filing an appeal, then complying with the order or judgment below and petitioning for a vacatur of the adverse trial court decision"), this court held that it was not required to vacate the summary judgment in accordance with United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36 (1950).9 Unlike the parties in Clarendon, the DEP did not wait for the district court's decision and then try to moot it by settlement. Since the bankruptcy judge announced on July 9 that he would render his decision "in a couple of months", the DEP on August 9 had no objective basis for expecting an imminent decision, much less an unfavorable one, that it sought in some improper way to head off.

By contrast with Clarendon 's motion in this court to vacate a summary judgment, what was involved here was an objection by the DEP to a negotiated settlement of a dispute. Once the DEP withdrew its objection, it simply could never reassert it about the settlement agreement in question. This alone distinguishes what DEP did here from the "voluntary cessation" jurisprudence upon which the district court relied.

The other major exception to the mootness doctrine that could arguably apply here deals with questions that are "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147 (1973). As the Supreme Court has noted in later glosses to this doctrine, however, it can only apply "where the following two circumstances were simultaneously present: "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." " Lewis v. Continental Bank Corp., supra 494 U.S. 472, 481, 110 S. Ct. 1249, 1255 (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982)) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350 (1975)).

Manifestly, the dispute between this Debtor and the DEP is over, and cannot be expected to repeat itself. This fact alone displaces the "capable of repetition, yet evading review" exception. Additionally, the DEP's substantive position about the primacy of ECRA is, quite simply, not one that would evade review in future cases because its duration is "too short to be fully litigated". If the DEP, in another bankruptcy case, adhered to its objection to a distribution or sale, that case would present ample opportunity for judicial review of the DEP's position and the constitutionality of ECRA. It therefore differs from, e.g., disputes between the press and courts as to pretrial gag orders, which the Supreme Court has held subject to the "capable of repetition, yet evading review" standard in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).

Thus, it is clear that there was no "live controversy" for the bankruptcy judge to decide on September 6, 1991, and he was, therefore, constitutionally disabled from doing what he did on that day. While we are sympathetic to the bankruptcy judge when presented with the eleventh-hour negation of a great deal of effort because of DEP's withdrawal of its objections, and while the issues he sought to decide were ones of unquestioned public importance to the people of New Jersey, we believe he should have recalled the Supreme Court's admonition in United Public Workers v. Mitchell, 330 U.S. 75, 90-91, 67 S. Ct. 556, 564-65, 91 L. Ed. 754 (1947), that "Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would become the organ of political theories" and "would properly meet rebuke and restriction from other branches."

Since from the time of the Framers to the present federal courts have been limited in their power to decide only "cases" or "controversies" and not render advisory opinions, it is apparent that the bankruptcy judge could not exercise "the judicial Power of the United States" over a non-existent dispute on September 6, 1991.

We will therefore reverse the district court and vacate the memorandum opinion and associated order of September 6, 1991.10

NYGAARD, Circuit Judge, concurring and dissenting.

I agree with much of what my colleagues have said in the majority opinion. But the little that separates us is very important. I write separately because I am not as convinced as they that having determined that the opinion issued by the bankruptcy court was totally unwarranted and upon an issue that was moot, we should then take the next step and vacate it. I would not.

The majority does not analyze this issue but simply concludes that because the opinion was wholly unnecessary, and the bankruptcy court was constitutionally disabled from doing what it did, we must strike the opinion. I am not so convinced. It is obvious that the opinion is dictum. Indeed, nothing in it is necessary to explain the order emanating from it. Accordingly, the opinion is precedent for nothing. It is a nullity. It cannot properly be cited for anything. It has absolutely no holding. Kastigar v. United States, 406 U.S. 441, 454-55, 92 S. Ct. 1653, 1662, 32 L. Ed. 2d 212 (1972) ("The broad language ... relied upon by petitioners was unnecessary to the court's decision, and cannot be considered binding authority."). Indeed, as the appellant points out, the only reason why the bankruptcy court issued its opinion was because it "decided to finalize and publish its opinion here because the issues addressed were of a recurrent nature and were unsettled under current law." Brief at 13.1

First of all, I believe, contrary to the majority, that there is indeed a "case" here. It is the whole bankruptcy matter given the bankruptcy court to decide. Moreover, there is also a "controversy." It is whether the settlement should be approved by the court. What has been taken from the decision-making powers of the bankruptcy court is the issue of whether the objections filed by the DEP should be overruled. That issue, of course, was mooted when the DEP withdrew its objections. That having been said, I conclude, nonetheless, that the real issue in this case is this: even given that this is an issue which should never have been decided, and from which an opinion should never have been issued, should we vacate the opinion when the order which emanated from it is not offensive to or aggrieves either party? I do not think we can.

I agree with the majority that there is a final and appealable order from the district court. It refused to vacate the opinion. Hence, I would not dismiss this appeal.2 But when the DEP made its oral motion to the bankruptcy court, the DEP was aggrieved by no order. The order did exactly what all parties wanted the bankruptcy court to do: it approved the settlement. Hence when the DEP moved in the telephone hearing with the bankruptcy court, its objection was to an opinion not an order, and I conclude that when the bankruptcy court refused to vacate its opinion, that refusal is not appealable and the district court should have dismissed DEP's appeal. Silverman v. United States, 556 F.2d 655, 656 (2d Cir.1977) ("Of course, denial of a motion to vacate an opinion is nonappealable.") (emphasis in original).

It is fundamental that the basis for review is an order not, as here, an opinion. 28 U.S.C. § 158(a) provides "The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees[.]" United States ex rel. Fielding v. Degnan, 587 F.2d 619, 621 (3d Cir.1978) ("An opinion of a court is not appealable as such, however, and the findings and conclusions set forth in it are not directly reversible on appeal, but only when and as they are incorporated in or support an order, judgment or decree of the court which is under appellate review."); EEOC v. Pennsylvania, 768 F.2d 514, 516, n. 1 (3d Cir.1985) (appeal from reasoning of the court below that it is not essential to the judgment, is not an appeal from the order of judgment, and should be dismissed for lack of jurisdiction). In re D'Arcy, 142 F.2d 313, 315 (3d Cir.1944) ("A statement in an opinion of the conclusion reached by the court, even though couched in mandatory terms, cannot serve as the order or judgment of the court.").

It can be argued that what is appealed from here is an order--the denial of the motion to vacate. While facially attractive, this reasoning is specious because then all one who has received a favorable decree emanating from an erroneous or unnecessary opinion or finding it dislikes needs to do to get the opinion before us, is request the trial court to vacate the opinion and appeal the denial. To adopt this reasoning would violate both the letter and spirit of well-established appellate jurisprudence, because one simply cannot appeal unless one is aggrieved by an order, not an opinion. As the Supreme Court held, "A party may not appeal from a judgment or decree in his favor, for the purpose of obtaining a review of findings he deems erroneous which are not necessary to support the decree." Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S. Ct. 860, 83 L. Ed. 1263 (1939) (emphasis added), citing Lindheimer v. Illinois Bell Telephone Company, 292 U.S. 151, 176, 54 S. Ct. 658, 668, 78 L. Ed. 1182 (1934) (respondent "is not entitled to prosecute such an appeal for the purpose of procuring a review of the findings of the court below....").

More specifically, we have said that "in the federal courts an opinion is not a part of the record proper," D'Arcy, 142 F.2d at 315, citing England v. Gebhardt, 112 U.S. 502, 5 S. Ct. 287, 28 L. Ed. 811 (1884). Moreover, a party who receives in its decree what he or she seeks is not aggrieved and cannot appeal. Armotek Indus., Inc. v. Employers Ins., 952 F.2d 756, 759 n. 3 (3d Cir.1991) (defendant's appeal dismissed because it was not aggrieved by the court's judgment in its favor), citing Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 334, 100 S. Ct. 1166, 1171, 63 L. Ed. 2d 427 (1980) (when judgment was entered in the court below for defendant/appellant without his consent and over his objection, the Court held that because he received all he sought he "is not aggrieved by the judgment offering relief and cannot appeal"); Cobb v. Aytch, 539 F.2d 297, 300 (3d Cir.1976) (appellants suffered no adverse impact from the decree and lacked standing). See Watson v. City of Newark, 746 F.2d 1008, 1010 (3d Cir.1984) ("Generally, a party who receives all of the relief which he sought is not aggrieved by the judgment affording the relief and cannot appeal from it."); In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1149, n. 16 (3d Cir.1982) (party who is successful in the court below has "no right of appeal from a judgment in its favor for the purpose 'of obtaining a review of findings he deems erroneous which are not necessary to support the decree' "), quoting Thomas & Betts, 307 U.S. at 242, 59 S.Ct. at 860. For example, a party may be the victim of court errors, decisions, and opinions of constitutional proportion, but if the final decision, order or judgment is in her or his favor, the court's sins, while not forgiven, but are beyond review. I have found no case, the majority points to no case, nor have the parties brought to our attention any case in which a federal appellate court has vacated an opinion, even a constitutional nullity, when the decree emanating from it has not aggrieved the appellant in some way.

We all recognize that what the bankruptcy court did was to reach out to decide a question which was moot, to file an opinion upon an issue which it was not called upon to decide, and moreover, to at least violate a long-standing policy of the federal courts that we simply will not reach a constitutional question (or more importantly nullify a state law) in advance of necessity. Rescue Army v. Municipal Court, 331 U.S. 549, 568, 67 S. Ct. 1409, 1419, 91 L. Ed. 1666 (1947) (there is "a policy of strict necessity in disposing of constitutional issues"). Nonetheless, I would say, as the Court of Appeals for the Second Circuit said, that an order denying a motion to vacate an opinion is not appealable. Silverman, 556 F.2d at 656. See United States v. Collins, 300 F.2d 821, 822 (1st Cir.1962) (an appeal from the opinion of a court below will be dismissed for lack of jurisdiction); Richland Trust Co. v. Federal Ins. Co., 480 F.2d 1212, 1213 (6th Cir.1973) (court found no jurisdiction to entertain an appeal from the opinion of the court below); Warner Brothers, Inc. v. DAE Rim Trading, Inc., 877 F.2d 1120, 1127 (2d Cir.1989) (an appeal does not lie from an opinion of the court below); Highland Supply Corp. v. Reynolds Metals Co., 327 F.2d 725, 729 (8th Cir.1964) ("Only judgment decrees and specific rulings--not opinions or reasons for final action taken ... are reviewable by us."). See also New York Telephone Co. v. Maltbie, et al., 291 U.S. 645, 54 S. Ct. 443, 78 L. Ed. 1041 (1934) (appellant not entitled to an appeal from a decree for the purpose of reviewing portions of the decree that are not res judicata).

I would not vacate the opinion. To do so violates well-established appellate jurisprudence. It does not matter how you characterize the bankruptcy court's errors in its opinion; unless there is an order which emanates from it that aggrieves the appellant, the opinion remains beyond our appellate reach. I would reverse and remand to the district court with instructions for it to dismiss the appeal from the bankruptcy court's ruling as nonappealable and leave the opinion to be recognized for what it is--one hundred percent dictum.