Marsha A. Quintana, Washington, D. C., with whom Samuel B. Abbott, Boston, Mass., was on the brief for appellants.

David P. Sutton, Asst. Corporation Counsel, D. C., with whom C. Francis Murphy, Corporation Counsel, D. C., and Richard W. Barton, Washington, D. C., were on the brief, for appellees.

Before BAZELON, Chief Judge, ROBINSON, Circuit Judge and JAMESON,a Senior District Judge for the District of Montana.

This is an appeal from an order denying a motion for a preliminary injunction and the appointment of a receiver ancillary thereto. The order of the district court entered January 26, 1971, 321 F. Supp. 965, contains detailed findings of fact which are not questioned on this appeal. Two issues are presented: (1) whether the district court erred in denying the motion, and (2) whether by reason of events intervening since the order was entered the case has become moot and should be dismissed.

The appellant Anna Masszonia, a disabled, low-income, welfare recipient, was tenant in a Washington, D. C. substandard apartment complex owned by ABC Realty Co., Inc.1 From 1961 through 1967 ABC Realty operated the complex under a license issued by the Department of Licenses and Inspections for the District of Columbia, without, however, applying for Certificate of Occupancy. Because of unabated housing regulation violations,2 applications for a renewal of the license for 1968 and subsequent years were denied on February 3, 1970, and the denials were sustained by the District of Columbia Board of Appeals and Review on May 20, 1970.

On February 26, 1970 a tenant commenced a class action against ABC Realty seeking to recover rents from 1961.3 Some of the tenants began withholding their rent while others continued paying rent until their June, 1970 rent payment was returned to them. About the time the action was commenced ABC Realty ceased to pay water, gas and electricity bills for the complex, which resulted in termination of water service on May 19, 1970 and threatened termination of gas and electricity.

This class action was filed May 22, 1970 by appellant Masszonia on her own behalf and on the behalf of all tenants similarly situated against Walter E. Washington, Commissioner of the District; the Water Registrar of the District; and the president of ABC Realty, seeking equitable relief that the utilities be continued. In amended complaints ABC Realty4 and the two utilities were added as defendants.

By order entered July 29, 1970 (opinion at 315 F. Supp. 529) the Commissioner and his subordinates were enjoined from refusing to provide water and sewer service and from refusing to enter into contracts with the utilities to provide gas and electricity, pendente lite, so long as the tenants lawfully occupied the premises, the court holding that it was the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis.5

Between July 24 and July 27, 1970 the District served the tenants with orders to vacate the premises by August 3, 1970. On August 3 the district court enjoined the Commissioner and his subordinates from prosecuting any tenant for failure or refusal to vacate his apartment, and ordered the Commissioner to provide relocation services to the tenants within two weeks.

On August 14, 1970 the appellant Masszonia moved for a preliminary injunction under a supplemental complaint, seeking the appointment of a receiver and an order requiring the Commissioner to make necessary repairs and assess a tax on the property for the costs.

The order of January 26, 1971 enjoins appellees,6 pending appeal, from prosecuting or attempting to evict any tenant and requires appellees, pending appeal, to furnish utility services and provide the tenants with relocation services. The court refused to appoint a receiver and refused to order appellees to make the repairs sought by appellants.

The order of January 26, 1971 adhered to the court's conclusion in the July 29, 1970 order that "where low-income tenants who cannot immediately relocate face the imminent failure of essential utility services which are the landlord's responsibility, and the landlord is beyond the effective power of the Court, it is the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis."7

The court held further that Section 5-313 "confers only a discretionary authority upon the Commissioner"8 to correct conditions existing in violation of law or regulation, and the court could not hold as a matter of law "that it would be an abuse of that discretion to fail to provide those utilities on a permanent, continuing basis or to fail to make the extensive repairs sought in this Motion for a Preliminary Injunction, the ultimate, permanent relief sought in the Supplemental Complaint."9

Events Subsequent to January 26, 1971 Order

On April 19, 1971 (after the record and appellants' brief had been filed in this court) appellant Masszonia filed in the district court a "motion to modify the injunction pending appeal entered January 26, 1971" to order the defendant Washington to terminate the utility services and secure the buildings at 1401 and 1405 Girard Street, N.W., and to require proper securing of the buildings at 2804 Fourteenth St., N.W. in compliance with the January 26, 1971 order.10

Pursuant to this motion, the district court on April 22, 1971 ordered the Commissioner "to immediately secure the premises at 2804 Fourteenth Street, N.W. to prevent further access thereto * * *", to terminate the utilities at 1401-1405 Girard Street, N.W., and to "proceed immediately to make said premises secure by boarding up basement and first floor doors and windows and blocking fire escapes." The Commissioner was also authorized to proceed with normal condemnation procedures with respect to the premises at 2804 Fourteenth Street, N.W. He was "enjoined to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W., without further order" of the court.

On June 29, 1971 the district court, upon the motion of plaintiffs, vacated nunc pro tunc as of January 26, 1971 the paragraph of the January 26 order requiring the deposit of plaintiffs' public assistance rent allotments into the Registry of the Court.

Subsequent to oral argument, appellees filed a "Suggestion of Mootness", with supporting affidavits, from which it appears that following the order of April 22, 1971 the premises at 2804 Fourteenth Street, N.W. were condemned and razed, and the premises at 1401-1405 Girard Street, N.W. were barricaded; that the Girard Street property has not since been inhabited, and is "uninhabitable by reason of its insanitary and structurally defective condition;"11 and that all tenants seeking assistance were relocated.12

Appellees contend that "against this background", the "appellants have effectively abandoned the plainly uninhabitable Girard Street property, without likelihood or right of return and that they currently have no possessory interest in that property." Accordingly they argue that the case should be remanded to the district court with directions to vacate its order of January 26, 1971 and to dismiss the case as moot.13

In her original and supplemental complaints and motion for a preliminary injunction, appellant Masszonia seeks an injunction which would require the Commissioner to (1) provide utilities on a permanent, continuing basis and (2) make whatever repairs might be necessary to bring the three buildings into compliance with the housing regulations. Ancillary thereto appellants seek the appointment of a receiver to take charge of the property and manage it, pendente lite. When the complaint was filed 66 units of the apartment complex were occupied. All were vacated prior to the district court's order of April 22, 1971. Subsequent thereto the building at 2804 Fourteenth Street, N.W. was demolished, as authorized in the April 22 order. Under this order, however, the Commissioner was enjoined "to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W. without further order" of the court. If the district court finds, as stated in appellees' affidavits, that these premises are now uninhabitable, barricaded, and scheduled for demolition, it would appear that the district court should revoke this provision of the April 22 order and dismiss the action as moot.14

We conclude that the questions here on appeal have become moot and do not reach the merits of the controversy.15

This appeal is dismissed as moot and the case is remanded to the district court for further proceedings consistent with this opinion.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge (dissenting in part):

With the appeal now moot,1 and resultantly the need for its dismissal plain, the sole question remaining for our decision is the disposition which the District Court is to make of its order of January 26, 1971, to aspects of which the appeal is exclusively addressed. My views on this phase of the case differ significantly from those of my colleagues. I think appellees' request that we direct the District Court to vacate the order should be denied as to the portions thereof which were not subjected to the appeal. But I also think United States v. Munsingwear, Inc.,2 to which this circuit has long adhered, requires vacation of so much of the order as appellants sought to have us review. The court's disposition of the present appeal leaves the order intact and that, I believe, is a clear departure from the wholesome practice which Munsingwear approved and which this court has adopted as its own. From such a disposition, I must respectfully dissent.

* As Munsingwear reveals, the Supreme Court's "established practice . . . in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending . . . decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss."3 The objective of this procedure, the Court explains, is to "clear[] the path for future relitigation of the issues between the parties and eliminate[] a judgment, review of which was prevented through happenstance."4 Thus, "[w]hen that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme [is] only preliminary."5

The practice noted in Munsingwear has found frequent acceptance in the federal circuits.6 In this jurisdiction, we have taken Munsingwear as a mandate. In Acheson v. Droesse,7 decided shortly after Munsingwear, we read the latter as "apparently intended by the Supreme Court to announce a rule for the guidance of the United States Courts of Appeals in disposing of cases which become moot pending appeal."8 "[T]he language of the Supreme Court in the Munsingwear case," we said, "clearly directs the Courts of Appeals that in all civil cases in the United States courts which become moot pending appeal, and in which a motion to dismiss as moot is accompanied by a motion to direct that the judgment below be vacated, both motions should be granted."9 And down through the years since Acheson, we have consistently adhered to that understanding.10

The opinion in Munsingwear makes clear, however, that a party ordinarily entitled to the relief Munsingwear affords may debar himself from obtaining it. There the Government had filed a two-count complaint against Munsingwear alleging violations of a regulation establishing maximum prices for commodities which it sold. The first count sought an injunction, and the second treble damages; and, by agreement and an order of the court, proceedings on the second cound were held in abeyance pending final determination of the first-count claim for injunction. A similar arrangement was made in a separate suit for treble damages raising the same issues for a different period. The District Court held that the questioned prices complied with the regulation and entered a judgment of dismissal.11 The Government appealed, and during the pendency of the appeal the involved commodity was decontrolled. On Munsingwear's motion, the Court of Appeals dismissed the appeal for mootness, making no provision for vacation of the District Court's judgment.12 Munsingwear then moved in the District Court for dismissal of the treble damage claims on the ground that the unreversed judgment of that court on the injunction phase was res judicata of those claims. The District Court granted the motion, the Court of Appeals affirmed,13 and the case then went to the Supreme Court.14

As the Court stated, had the Government insisted upon vacation of the District Court's judgment when the Court of Appeals dismissed the appeal for mootness, it would have been entitled to a direction to that effect.15 But the Government did not pursue that course; it made no motion to vacate the judgment, but simply acquiesced in the dismissal. Consequently, the Court held, it was not entitled to relief-in the form of an exception to the doctrine of res judicata-from the District Court's judgment.16

It is against this backdrop that the disposition appropriate to the case at bar is to be fashioned. One question to be addressed is whether the situation presented falls within the general ambit of the Munsingwear doctrine. Another is whether the parties on either side of this appeal have disabled themselves from sharing in the benefits Munsingwear confers. To a consideration of these I now proceed.

The order subjected to this appeal-the order of January 26, 197117-favored appellants in some respects and appellees in others. To appellants' detriment, it rejected the demand that the court direct repairs putting the premises in suit in habitable condition through the medium of a receivership or by imposition of that responsibility upon appellees.18 It was the refusal to grant the request in either alternative that appellants sought to have altered on this appeal. Now that the appeal must be dismissed for mootness, their entitlement under Munsingwear to vacation of those portions of the January 26 order appealed would normally follow. In my view, indeed it does.

I am mindful of the fact that appellants here, like the Government in Munsingwear,19 have not requested vacation of any part of the order, but that, I think, could hardly justify us in ignoring the teachings of Munsingwear. Long before Munsingwear was decided, the Supreme Court declared that the practice it was later to describe in Munsingwear was "the duty of the appellate court."20 To such a duty Munsingwear took pains to itself advert.21 As a judge, I endeavor to discharge what by higher authority I am told is my plain duty whether I am asked by litigants to do so or not. I perceive no obstacle to discharge of our Munsingwear duty here simply because the court reviewed in Munsingwear omitted a response to it there.22 In sum, I would abide Munsingwear sua sponte.

I am mindful, too, that relitigation of the issues on which appellants lost in the District Court seems unlikely, but that does not argue effectively against an application of Munsingwear. That very consideration was advanced to us in Acheson v. Droesse,23 where it was urged that we distinguish Munsingwear on that basis.24 We declined the invitation, pointing out that "among the cases cited by the Supreme Court in the" Munsingwear opinion25 "there are instances in which there was no possibility of further litigation of the issues between the parties in the case on appeal even arising, and yet the Court ordered the lower court's judgment vacated."26 The fact of the matter is that offtimes courts are not in position to know whether the controversy has ground to a definite halt or not, and this case is no exception.27 The better part of justice is to liberate the parties from the shackles of res judicata rather than hazard a guess as to what the future may hold.

Turning now to appellees' motion that the January 26 order be vacated in its entirety, that relief in their favor is neither warranted nor possible. The appeal in this case brought before us for review only the parts of the order appellants complained of-the provisions which were unfavorable to them. Since appellees took no appeal from that order, two consequences disastrous to their request follow. In the first place, the unappealed portions of the order have long since become final,28 and we now lack jurisdiction to disturb them.29 In the second place, the Munsingwear doctrine was never intended to afford protection to parties in the position occupied by appellees. Their evident objective is to avoid the conclusiveness of the declaration of principles representing appellants' partial victory in the District Court.30 But obviously, as an eminent author has stated, "[i]t would be quite destructive of the principle of judicial finality to put such a litigant in a position to destroy the collateral conclusiveness of a judgment by destroying his own right to appeal."31 Nothing in Munsingwear supports such an approach; rather, the rule is well settled that the operation of the doctrine of res judicata is unaffected by the fact that the party sought to be concluded did not appeal from the adversity wrought by the judgment.32 The situation as to appellees is not one in which the January 26 order should at their behest be vacated in toto "to prevent a judgment, unreviewable because of mootness," as distinguished from failure to appeal, "from spawning any legal consequences."33 It is only as to the rulings against appellants which have since become "unreviewable because of mootness . . ."34 that vacation is called for, but as to them the call, in my view, is clear.