USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

______________________

No. 95-1112

ANTONIO JOSE P. MOTTA,

Plaintiff, Appellee,

v.

DISTRICT DIRECTOR OF IMMIGRATION & NATURALIZATION SERVICES,

Defendant, Appellant.

_______________

ERRATA SHEET
ERRATA SHEET

The

opinion

of this

Court issued

amended as follows:

Page 2, line 12:

Delete "INS's"

on

August 8,

1995, is

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1112

ANTONIO JOSE P. MOTTA,

Plaintiff, Appellee,

v.

DISTRICT DIRECTOR OF IMMIGRATION & NATURALIZATION SERVICES,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

Charles
E. Pazar,
___________________

Attorney,

Office

of

Immigration,

Ci

Division, with whom Frank W. Hunger, Assistant Attorney General, Ci

_______________
Division, and

Emily Anne Radford, Office of

___________________

Immigration Litigati

Civil Division, United States Department of Justice, were on brief

appellant.
Joseph S. Callahan for appellee.
__________________

____________________

August 8, 1995
____________________

Per Curiam.
___________

Director

of

("INS"),

appeals from

regarding

writ

the

Respondent-appellant,

Immigration

the

the district

Service

court

appellee Antonio Jose Pacheco Motta's petition for

of habeas corpus.

Naturalization

judgment of

Motta v. District Director, INS, 869

_____
______________________

F. Supp. 80, 98 (D. Mass. 1994).

under

and

the District

U.S.C.

Facing imminent deportation

1182(a)(2)(A)(I)

(Supp.

V 1994),

Motta

petitioned for

Process under

the

writ, alleging

the Fifth

the course of his

could issue a

his right

Amendment had been

not order his release, it

the Board

Due

Although

stayed his

of Immigration Appeals

decision on Motta's

to

violated during

earlier deportation proceedings.

the district court did

deportation until

that

("BIA")

pending motion to

reopen

his deportation proceeding, and for ninety days thereafter to

permit review

Court

of

appealed.

of that decision,

Appeals for

the

First

if necessary,

Circuit.

by the

Id.
___

The

U.S.

INS

The BIA has not yet issued a decision.

During

oral argument,

we raised with

possibility that a settlement might be

of both parties.

Counsel for the INS

counsel the

in the best interests

indicated that the INS

might

be

willing to

extend to

deportation comparable to that

if the lower court decision

as

dangerous and

Counsel for Motta

Motta

a temporary

stay of

ordered by the district court

establishing what the INS sees

erroneous

precedent

indicated that this

-33

were

might be a

vacated.

desirable

resolution

that

for his client as well, since it removes any risk

this Court

would agree

district

court's

argument,

we

stay

directed

of

with the

INS and

deportation.

counsel

to

At

reverse the

the

discuss

end

of

possible

settlement with their clients and to advise this Court within

10

The

days as to whether

such an agreement

INS subsequently informed this

would be possible.

Court that the INS would

stay Motta's deportation during the pendency of his appeal to

the BIA and for

time

to file

an additional ten days thereafter

petition for

Appeals, if necessary.

review

before the

to afford

Court

of

Motta's counsel has indicated that he

accepts the tendered INS stay.

There now

being no actual controversy

two parties, we hold that this

between the

appeal is moot and vacate the

lower court's decision.

340 U.S. 36,

United States v. Munsingwear, Inc.,

_____________
_________________

39-40 (1951).

In vacating

the lower

court's

decision, we have taken pains to consider whether this appeal

falls

within the Supreme Court's prohibition against vacatur

in U.S. Bancorp Mortgage Co. v.

_________________________

S. Ct.

386

Bancorp, the
_______

(1994).

We

Bonner Mall Partnership, 115

_______________________

conclude that

Court held that "[w]here

it

does not.

In

mootness results from

settlement . . . , the losing party has voluntarily forfeited

his

legal remedy

certiorari, thereby

by

the ordinary

processes

surrendering his claim

of appeal

or

to the equitable

-44

remedy of vacatur.

The

judgment is

simply unreviewed by his own choice."

not unreviewable,

but

Id. at 392.
___

Here, given the different posture of this case, the

equities plainly

favor vacatur.

The INS

did not by its own

initiative relinquish its right to vacatur, as the petitioner

did in Bancorp.
_______

Rather, the INS has at

all times sought to

pursue its appeal;

it has agreed to consider settlement only

at

of

the suggestion

being an

the

this Court,

the proposed

inexpensive, simple, and speedy

interests of both parties.

way to accommodate

As the INS has not initiated

the relinquishment

of

equitable calculus

underlying Bancorp is not

_______

given

this

Court's

settlement

its right

involvement

to

the remedy,

and

the

same

present.

Nor,

initiative

in

the

proceedings, does vacatur in this case implicate the concerns

expressed

by the

Bancorp Court
_______

control over judicial precedents.

about giving

parties undue

We see no appreciable harm

to the orderly functioning of the federal

judicial system by

vacating judgment.

To be sure,

it can

be argued

that depriving

the

public and the

judicial system of the precedential

the district court's opinion works a kind of harm.

not believe that

priority

former

over

such a species of harm is

the parties'

above the

contrasts with the

latter

best

would be

-55

But we do

entitled to take

interests.

inequitable.

usual appeal, where

value of

Placing

the

This case

vacatur is only

one

consideration among others in

as

Here,

the INS,

a repeat player before the courts, is primarily concerned

_________

with

the precedential effect of the decision below.

decision

stands,

eliminated.

absolute

If

the

settlements.

saying

possibility

it is

vacated, the

of

not

being

saves the costs and

both sides.

rejects

all

certainty

government

for

a settlement.

in the

It is true

possible impact

Id. at
___

393.

end that

of

If that

settlement

is

appellee acquires

the

deported,

the

while

risk of litigation

a win

the Bancorp Court discusses and

_______

of

But

its

rule in

it does

"[w]e find

discouraging

so in

it quite

aggregate,

impossible to

assess

the

effect of

our

holding,

either way,

frequency or systemic value of settlement."

contrast,

clear.

the negative

We

think

impact on

this

case

upon

the

In this case, by

settlement is

presents

absolutely

"exceptional

circumstances" to which the Court referred in Bancorp.

_______

We accordingly vacate the district court's decision

and remand with directions to dismiss this suit as moot.

We

also deny, as

to

file

moot, the

a supplemental

costs.

So ordered.
__________

INS's pending motion

brief.

Each party

for leave

will bear

its own

-66