UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Marcus Vinicius Giotto, et al.
v. Civil No. 20-cv-453-LM Opinion No. 2024 DNH 108 P US Department of Homeland Security, Secretary, et al.
ORDER
In this class action habeas case brought at the onset of the COVID-19
pandemic, civil immigration detainees confined at the Strafford County Department
of Corrections (“SCDOC”) asserted that conditions of confinement at SCDOC
violated their constitutional rights to be free from an unacceptable risk that they
would contract COVID-19 and suffer severe illness. As we approach five years from
the pandemic’s onset, the parties report that they have reached a settlement and
ask the court to grant preliminary approval of their settlement agreement. Doc. no.
805. The proposed settlement agreement, however, requires that the court vacate a
finding that defendants1 likely violated certain class members’ constitutional rights.
Because the parties have failed to carry their burden to show that vacatur of this
finding is justified, their motion (doc. no. 805) is denied without prejudice.
PROCEDURAL HISTORY
On April 17, 2020, plaintiffs filed an amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, and a complaint for declaratory and injunctive
1 The defendants in this action are the Secretary of the United States Department of Homeland Security, the Acting Field Office Director of the Boston Office of Enforcement and Removal Operations within Immigrations and Customs Enforcement, and the Superintendent of SCDOC. relief on behalf of themselves and a putative class of civil immigration detainees
housed at SCDOC. The amended petition sought to enforce the putative class
members’ due process rights, alleging that civil immigration detainees at SCDOC
were being detained in conditions that put them at substantial risk of harm due to
COVID-19. Plaintiffs sought injunctive relief requiring defendants to implement
public health guidance and protocols designed to achieve social distancing and
prevent the transmission of COVID-19.
On May 1, 2020, following an evidentiary hearing, the court orally ruled that
civil immigration detainees at SCDOC with medical conditions placing them at high
risk from COVID-19 were constitutionally entitled to bail hearings. On May 14,
2020, the court issued a written opinion memorializing its May 1 order. See Gomes
v. U.S. Dep’t of Homeland Sec., Acting Sec’y, 460 F. Supp. 3d 132 (D.N.H. 2020). In
that order, the court explained that civil immigration detainees with high-risk
medical conditions were constitutionally entitled to bail hearings pending resolution
of this action because they were likely to be successful in arguing that defendants
were deliberately indifferent to the risk that conditions at SCDOC (as of May 2020)
exposed such detainees to an unacceptable risk of death or serious illness from
COVID-19.2 See id. at 150-52; see also Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir.
2 The court left open the question of whether civil immigration detainees without high-risk medical conditions were likely to be successful in so arguing. In a subsequent written order, the court found that lower-risk detainees were not likely to be successful on their claims and were therefore not entitled to bail hearings. See Gomes v. US Dep’t of Homeland Sec., Acting Sec’y, Civ. No. 20-cv-453-LM, 2020 WL 3577302, at *7-8 (D.N.H. July 7, 2020).
2 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). It is this finding that the
parties seek to vacate.
Meanwhile, on May 4, 2020, the court provisionally certified the proposed
class for the purpose of facilitating expedited bail hearings,3 see Gomes v. Acting
Sec’y, U.S. Dep’t of Homeland Sec., Civ. No. 20-cv-453-LM, 2020 DNH 072, 2020 WL
2113642, at *1 (D.N.H. May 4, 2020), and began holding bail hearings that same
day. As of the date of this order’s issuance, the court has conducted seventeen bail
hearings, releasing ten persons.
On May 15, 2020, defendants moved to dismiss on several grounds, including
lack of standing, the cognizability of plaintiffs’ claims in a habeas petition, failure to
state a claim upon which relief may be granted, and for noncompliance with Rule 8
of the Federal Rules of Civil Procedure. The court denied defendants’ motion on
June 16, 2020. See Gomes v. US Dep’t of Homeland Sec., Acting Sec’y, Civ. No. 20-
cv-453-LM, 2020 WL 3258627, at *5 (D.N.H. June 16, 2020). On August 7, 2020,
defendants moved for partial reconsideration of the denial of their motion to
dismiss. The court denied that motion on September 28, 2020. See Gomes v. US
Dep’t of Homeland Sec., Acting Sec’y, 561 F. Supp. 3d 198, 199-200 (D.N.H. 2020).
Following resolution of a dispute in early 2021 as to whether plaintiffs in this
habeas action were entitled to discovery, see Gomes v. U.S. Dep’t of Homeland Sec.,
Acting Sec’y, 559 F. Supp. 3d 8 (D.N.H. 2021), this case was on track for the filing of
3 The court would later grant final certification to the class. See Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., 561 F. Supp. 3d 93, 97-98 (D.N.H. 2021).
3 dispositive motions in April 2021 and a bench trial in August 2021. However, on
April 14, 2021, the parties appeared for a status conference and informed the court
that they were engaged in settlement negotiations. The case has essentially been
stayed since that point. During the conference, the court instructed the parties to
jointly file a proposed scheduling order containing deadlines for the submission of
dispositive motions and a date for a bench trial in the event negotiations broke
down. The parties have routinely filed status reports with the court since that time.
For various reasons, reaching a final agreement on terms of the settlement took far
longer than anticipated.
On November 18, 2024, the parties filed a joint motion for preliminary
approval of their proposed settlement agreement and to schedule a fairness hearing.
Doc. no. 805. The parties attached their proposed settlement agreement to their
motion. Doc. no. 805-1. The settlement agreement contains numerous terms
designed to limit the introduction and spread of COVID-19 within SCDOC,
including terms related to testing, isolation of detainees testing positive, periodic
testing of a sample of detainees, masks, enhanced cleaning procedures, anti-viral
medication, air quality, vaccination, and the development of outbreak protocols.
Under the terms of the agreement, it expires eight months after this court grants
final approval to the settlement.
The proposed settlement agreement also provides for vacatur of the court’s
May 14, 2020, deliberate indifference finding. See id. at 14. It states the parties’
agreement “that exceptional circumstances exist for the vacatur of” this finding, and
4 “that these exceptional circumstances outweigh the consideration of depriving the
public and the judicial system of the precedential value of” the court’s finding. Id.
Neither the proposed settlement agreement nor the parties’ joint motion set forth
what these exceptional circumstances are, however. The court therefore instructed
the parties to submit a joint or separate memoranda of law regarding the court’s
authority to vacate its deliberate indifference finding and why the court should do
so in the circumstances of this case. See doc. no. 806. The parties thereafter
submitted a joint addendum and memorandum of law addressed to this issue.4
DISCUSSION
The parties do not identify the Federal Rule of Civil Procedure under which
they seek vacatur. Presumably, they move under Rule 54(b),5 which permits the
court to modify an interlocutory order at any time prior to entry of judgment. See
Fed. R. Civ. P. 54(b); Lycos, Inc. v. Blockbuster, Inc., C.A. No. 07-11469-MLW, 2010
WL 5437226, at *2 (D. Mass. Dec. 23, 2010). However, while Rule 54(b) empowers
the court to modify its interlocutory deliberate indifference finding, “there is little
4 The court also directed the parties to address whether plaintiffs’ claims are
moot in light of advancements in treatment for COVID-19 and protocols already implemented at SCDOC for civil immigration detainees. Based on the contentions in the parties’ memorandum, the court is satisfied that those circumstances have not rendered this action moot.
5 Rule 60(b)(6) also allows for vacatur of a final judgment in extraordinary
circumstances, but it does not apply here since the court’s deliberate indifference finding was not rendered in a final judgment. See Farr Man & Co., Inc. v. M/V/ Rozita, 903 F.2d 871, 874 (1st Cir. 1990) (“It is, by this time, well settled that Rule 60 only applies to final judgments.”).
5 authority describing when, if ever, the court should exercise this power to grant
vacatur of a non-final order in connection with settlement.” Lycos, 2010 WL
5437226, at *2. After directing the parties to brief the issue, they jointly assert that
the applicable standard is set forth in U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, 513 U.S. 18 (1994). Bancorp involved an appellate court considering
whether to vacate a lower court’s judgment. While some courts have held that
Bancorp does not apply to a district court considering whether to vacate one of its
own rulings, see, e.g., Lycos, 2010 WL 5437226, at *2-3, the court will apply it here
given the parties’ agreement, which finds support in the law,6 see, e.g., Valero
Terrestrial Corp. v. Paige, 211 F.3d 112, 120-21 (4th Cir. 2000) (holding that
Bancorp applies to a district court’s decision to vacate its own ruling); Nilssen v.
Motorola, Inc., Nos. 93 C 6333, 96 C 5571, 2002 WL 31369410, at *2 (N.D. Ill. Oct,
21, 2002) (same); cf. Bancorp, 513 U.S. at 28 (strongly suggesting that Bancorp’s
rationale turns on the fact of settlement and not at what level of review settlement
occurs); Da Graca v. Souza, 2 F.4th 1, 2 (1st Cir. 2021) (memorandum opinion)
6 Whether Bancorp’s test applies, or whether a more flexible equitable inquiry
applies, is probably not dispositive. In either case, vacatur remains an “extraordinary remedy,” Doe v. Hreib, 384 F. Supp. 3d 137, 139 (D. Mass. 2019), and the considerations articulated in Bancorp would remain relevant to a more flexible inquiry, see Lycos, 2010 WL 5437226, at *3. See also In re Ruiz, 83 F.4th 68, 77 (1st Cir. 2023) (“Ultimately, the decision whether to vacate is ‘rooted in equity’ and ‘turns on the conditions and circumstances of the particular case.’” (quoting Azar v. Garza, 138 S. Ct. 1790, 1792 (2018))); Heredia v. Roscoe, No. 21-cv-198-PB, 2023 DNH 135, 2023 WL 7017716, at *3 (D.N.H. Oct. 25, 2023) (declining to resolve whether Bancorp applies to district court’s vacatur of a judgment under Rule 60(b) “because, under any standard, the existence of exceptional circumstances and the public interest are of paramount importance”).
6 (“There is no reason why [Bancorp]’s logic does not apply when deciding if an
appellate court should vacate its own opinion.”).
Vacatur is an equitable remedy. Bancorp, 513 U.S. at 25. When a case
becomes moot on appeal as a result of happenstance or based on the unilateral
action of the party who prevailed below, the party who did not prevail below is
usually entitled, as an equitable matter, to vacatur of the appealed decision. See
United States v. Munsingwear, 340 U.S. 36, 39-40 (1950). “A party who seeks
review of the merits of an adverse ruling, but is frustrated by the vagaries of
circumstance, ought not in fairness be forced to acquiesce in the judgment.”
Bancorp, 513 U.S. at 25. In other words, when a party appeals an adverse decision
but is prevented from reaching an appellate determination on the merits through no
fault of his own, the equities usually require vacatur of the appealed decision. Id.
Bancorp announced an exception to this general rule when mootness results
from a voluntary settlement. “Where mootness results from settlement . . . the
losing party has voluntarily forfeited his legal remedy by the ordinary processes of
appeal or certiorari, thereby surrendering his claim to the equitable remedy of
vacatur. The judgment is not unreviewable, but simply unreviewed by his own
choice.” Id. This rule recognizes “the lack of equity of a litigant who has voluntarily
abandoned review.” Id. at 28. Thus, when a party voluntarily forfeits further
judicial review of an adverse ruling by entering into a settlement agreement, they
lack “equitable entitlement to the extraordinary remedy of vacatur.” Id. at 26.
7 Bancorp’s rationale also underscores that the public and the legal community
have an interest in enduring judicial decisions; such decisions “are presumptively
correct” and “are not merely the property of private litigants” to be contracted away.
Id. In addition, allowing the parties to “collateral[ly] attack” an adverse ruling
through the simple expedient of settlement would “disturb the orderly operation of
the federal judicial system” by circumventing the primary route prescribed by
Congress for litigants to seek review and reversal of judicial decisions—appeal as of
right and, if necessary, seeking a writ of certiorari. Id. at 27.
Ultimately, Bancorp held that, when a party settles a lawsuit and thereby
renders moot an adverse judicial decision, courts presume that the party is not
entitled to vacatur of the adverse decision. See id. at 29. But the Court left open the
possibility that, where “exceptional circumstances” exist, vacatur may sometimes be
justified despite settlement. Id. While the Court did not provide examples of
exceptional circumstances that could justify vacatur in these circumstances, it did
make clear that the parties’ mere agreement for vacatur is insufficient. Such an
agreement does not “diminish[] the voluntariness of the abandonment of review” or
lessen the public’s interest in the orderly maintenance of judicial opinions. Id.
Here, because the parties request that this court vacate a prior finding
pursuant to a settlement agreement, this case falls squarely within Bancorp’s
presumption against vacatur. The parties resist this conclusion, however. They
assert that, in Bancorp, it was critical to the Supreme Court’s reasoning that the
case was already moot at the time vacatur was sought, whereas here the action will
8 not be moot unless and until the court approves the proposed settlement. According
to the parties, Bancorp’s holding rests on the fact that the court lost Article III
jurisdiction before vacatur was requested. Having lost jurisdiction, the parties
contend, it is unsurprising that that Bancorp “concluded that exceptional
circumstances must be present to justify any further court action.” Doc. no. 817 at 8.
The court is not persuaded. The parties’ argument is premised on the notion
that a court lacks the power to take any action on a case once it becomes moot. Not
so. Bancorp itself recognizes that, even after jurisdiction is lost on mootness
grounds, the court may still “make such disposition of the whole case as justice may
require.” Bancorp, 513 U.S. at 21 (quoting Walling v. James V. Reuter, Co., Inc., 321
U.S. 671, 677 (1944)). Were it otherwise, a federal court would lack power even to
dismiss a case once it becomes moot, and the suit would remain trapped in a
perpetual state of suspended animation. “Article III does not prescribe such
paralysis.” Id. Thus, it was not material that the suit in Bancorp had become moot
at the time the parties requested vacatur, and the parties fail to show that this case
falls outside Bancorp’s presumption against vacatur. See also, e.g., Neumann v.
Prudential Ins. Co. of Am., 398 F. Supp. 2d 489, 492 (E.D. Va. 2005) (“Although the
parties in Bancorp, unlike the parties here, settled before seeking vacatur, this
distinction is not material; it does not affect the basic principle that post-judgment
vacatur should issue only in extraordinary circumstances.”); Heredia v. Roscoe, No.
21-cv-198-PB, 2023 DNH 135, 2023 WL 7017716, at *1 (D.N.H. Oct. 25, 2023)
(finding no exceptional circumstances for vacatur where parties arrived at a post-
9 judgment settlement contingent on vacatur of a jury finding and the parties moved
for an indicative ruling on a joint motion to vacate in the district court “in order to
effectuate their settlement agreement”).
Because Bancorp’s presumption applies, the parties must show that there are
exceptional circumstances justifying vacatur. They contend that the actions of one
of the defendants—SCDOC Superintendent Christopher Bracket—in response to
the pandemic constitute exceptional circumstances justifying the extraordinary
remedy of vacatur. The parties rightfully observe that COVID-19 posed an
unprecedented global health crisis that threatened to confound public health
systems, and that penological institutions faced particularly difficult circumstances
in safeguarding inmates’ health due to the congregate nature of life in jails and
prisons. They contend that Superintendent Brackett’s leadership and diligence
throughout the pandemic—qualities which this court has consistently recognized—
allowed SCDOC to successfully implement comprehensive and proactive measures
to protect inmates. As a result of Superintendent Brackett’s actions, the parties
assert, no prisoners at SCDOC died of COVID-19, only a few were hospitalized, and
those that were hospitalized recovered quickly. The parties further assert that, if
the court’s deliberate indifference finding is allowed to stand, it will follow
Superintendent Brackett throughout his career and negatively impact his
professional life.
Superintendent Brackett’s resourcefulness, dedication, and integrity in
response to the COVID-19 crisis cannot be overstated. This court has frequently
10 recognized Superintendent Brackett’s efforts. See, e.g., Gomes, 460 F. Supp. 3d at
135. However, the court found—at the pandemic’s earliest stage—that plaintiffs
were likely to be successful in arguing that defendants were deliberately indifferent
to their serious medical needs despite Superintendent Brackett’s laudable efforts.
See id. at 135, 140-44, 150-51. In short, Superintendent Brackett’s actions, while
commendable, do not justify vacatur of this court’s deliberate indifference finding.
As for asserted reputational harm to the Superintendent if the court’s finding
is allowed to stand, the parties’ assertions are speculative and non-specific. They do
not identify any discrete adverse consequences that Superintendent Brackett faces
as a result of the court’s finding. To the contrary, the parties state that
Superintendent Brackett has been recognized—and rightfully so, this court hastens
to add—as “setting a ‘gold standard’ for the protection of inmates against the spread
of COVID-19.” Doc. no. 817 at 11. Mere speculation as to the possibility of
unspecified adverse professional consequences flowing from this court’s deliberate
indifference finding is insufficient to establish exceptional circumstances. Heredia,
2023 WL 7017716, at *3 (concluding that the possibility a police officer could be
placed on New Hampshire’s exculpatory evidence schedule as a result of excessive
force verdict was speculative and did not constitute an exceptional circumstance
justifying vacatur).
Moreover, regardless of whether the court vacates its deliberate indifference
finding, the court’s opinion rendering the finding would remain publicly available
for all to see. See In re Renfrow, No. 22-cv-00381-SH, 2022 WL 17668704, at *10
11 (N.D. Okla. Dec. 14, 2022) (“Whether [the orders] are vacated or not, they retain
some persuasive authority and will remain publicly available online for anyone who
wishes to cite them for such.”). And since a federal district court’s orders lack the
force of binding precedent, as a legal matter vacatur of the deliberate indifference
finding would only impact its res judicata or preclusive effect. See Vertex Surgical,
Inc. v. Paradigm Biodevices, Inc., 648 F. Supp. 2d 226, 231-32 (D. Mass. 2009). The
deliberate indifference finding would have exactly as much precedential force after
vacatur as it does today. Thus, the parties have not only failed to articulate any
concrete harms Superintendent Brackett stands to suffer as a result of the
deliberate indifference finding—they have also failed to show how vacatur would
abate any such harms.
The parties do not argue that there are any other exceptional circumstances
justifying vacatur. They do not argue, for example, that their proposed settlement is
contingent on vacatur, see, e.g., Motta v. Dist. Dir. of INS, 61 F.3d 117, 118 (1st Cir.
1995) (per curiam), or that defendants would otherwise continue to pursue judicial
review of the deliberate indifference finding but for some entity pressuring them to
settle, see, e.g., Doe v. Hreib, 384 F. Supp. 3d 137, 139 (D. Mass. 2019). Because it is
the parties’ burden to show vacatur is appropriate, the court will not consider
whether vacatur could be justified in this case on some other basis.
Even if the parties had identified exceptional circumstances, however, the
public interest would counsel against vacatur. See Bancorp, 513 U.S. at 26
(explaining that a federal court considering vacatur must “take account of the public
12 interest”); Diffenderfer v. Gomez-Colon, 587 F.3d 445, 451 (1st Cir. 2009) (“When
the losing party’s voluntary action causes the case to become moot . . . vacatur is
appropriate only when it would serve the public interest.”). While vacatur would not
impact the precedential effect of the court’s deliberate indifference finding, it would
nevertheless “deprive[] the public of the full measure of a reasoned public act.”
Vertex, 648 F. Supp. 2d at 236. The public could assume from vacatur that the
court’s finding turned out to be legally or factually incorrect—which is not the case.
See In re Mem’l Hosp. of Iowa Cnty., Inc., 862 F.2d 1299, 1302 (7th Cir. 1988)
(vacatur “clouds and diminishes the significance of the holding”).
More fundamentally, “federal courts exist not just to bring peace between
warring parties, but more importantly to give expression and force to the rules and
principles (and hence values) embodied in the governing law.” Neumann, 398 F.
Supp. 2d at 493. This is all the truer when, as here, the ruling at issue concerns a
constitutional claim. See Heredia, 2023 WL 7017716, at *4. In this case, the court
found that plaintiffs were likely to be successful in arguing that government
officials exhibited deliberate indifference to their constitutional obligation to provide
the civil detainees at highest risk for severe disease and death from the virus with
basic safeguards to protect their health. The public has an interest in knowing
when government actors fall short of the Constitution’s requirements. Id. Given the
fact that vacatur could undermine public confidence in the accuracy of the court’s
constitutional ruling, the public interest weighs against vacatur.
13 Finally, vacatur runs counter to the goals of judicial economy. See id.
(denying vacatur given “the significant judicial resources that have already been
expended in resolving this case”). Substantial judicial resources were expended on
this case. The court conducted seventeen bail hearings, nearly all of which required
the substantial expenditure of resources by the court and its personnel. The very
reason plaintiffs were entitled to bail hearings was because of the finding the
parties now seek to vacate. See Gomes, 460 F. Supp. 3d at 152 (“Having held that
high-risk petitioners are likely to succeed on the merits of their deliberate
indifference claim, the court concludes that the risk that COVID-19 presents to
high-risk detainees is an extraordinary circumstance that justifies a bail hearing.”).
Vacatur would “undermine the public’s interest in the productive use of a court’s
time and resources.” Heredia, 2023 WL 7017716, at *4 (quoting Clarke v. Castro,
No. 10 Civ. 6330 (HBP), 2013 WL 686680, at *4 (S.D.N.Y. Feb. 26, 2013)).
Ultimately, given the parties’ failure to show the existence of exceptional
circumstances and the fact that the public interest weighs against vacatur, the
parties have not demonstrated that the extraordinary remedy of vacatur is
warranted. The court will therefore deny the parties’ joint motion for preliminary
approval of the settlement agreement—which contains the vacatur provision at
issue here—without prejudice. Within fourteen days of this order’s issuance, the
parties may file a renewed motion for preliminary approval of a new settlement
agreement. The court will expeditiously consider whether it can grant preliminary
approval to any modified settlement agreement. See, e.g., Rapuano v. Trs. of
14 Dartmouth Coll., 334 F.R.D. 637, 654 (D.N.H. 2020). If no renewed motion is filed
within fourteen days, the court will schedule a status conference with the parties to
address how this case will proceed.
CONCLUSION
The parties’ joint motion for preliminary approval of their settlement
agreement (doc. no. 805) is denied without prejudice. Within fourteen days, the
parties may file a renewed motion for preliminary approval along with a new
settlement agreement. If no renewed motion is filed within that time, the court will
schedule a status conference.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
December 19, 2024
cc: Counsel of Record