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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 on August 8, 1995, is
amended as follows:
Page 2, line 12: Delete "INS's"
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, Civil
Division, with whom Frank W. Hunger, Assistant Attorney General, Civil
Division, and Emily Anne Radford, Office of Immigration Litigation,
Civil Division, United States Department of Justice, were on brief for
appellant.
Joseph S. Callahan for appellee.
August 8, 1995
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Per Curiam. Respondent-appellant, the District
Director of the Immigration and Naturalization Service
("INS"), appeals from the judgment of the district court
regarding appellee Antonio Jose Pacheco Motta's petition for
writ of habeas corpus. Motta v. District Director, INS, 869
F. Supp. 80, 98 (D. Mass. 1994). Facing imminent deportation
under 8 U.S.C. 1182(a)(2)(A)(I) (Supp. V 1994), Motta
petitioned for the writ, alleging that his right to Due
Process under the Fifth Amendment had been violated during
the course of his earlier deportation proceedings. Although
the district court did not order his release, it stayed his
deportation until the Board of Immigration Appeals ("BIA")
could issue a decision on Motta's pending motion to reopen
his deportation proceeding, and for ninety days thereafter to
permit review of that decision, if necessary, by the U.S.
Court of Appeals for the First Circuit. Id. The INS
appealed. The BIA has not yet issued a decision.
During oral argument, we raised with counsel the
possibility that a settlement might be in the best interests
of both parties. Counsel for the INS indicated that the INS
might be willing to extend to Motta a temporary stay of
deportation comparable to that ordered by the district court
if the lower court decision establishing what the INS sees
as a dangerous and erroneous precedent were vacated.
Counsel for Motta indicated that this might be a desirable
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resolution for his client as well, since it removes any risk
that this Court would agree with the INS and reverse the
district court's stay of deportation. At the end of
argument, we directed counsel to discuss a possible
settlement with their clients and to advise this Court within
10 days as to whether such an agreement would be possible.
The INS subsequently informed this Court that the INS would
stay Motta's deportation during the pendency of his appeal to
the BIA and for an additional ten days thereafter to afford
time to file a petition for review before the Court of
Appeals, if necessary. Motta's counsel has indicated that he
accepts the tendered INS stay.
There now being no actual controversy between the
two parties, we hold that this appeal is moot and vacate the
lower court's decision. United States v. Munsingwear, Inc.,
340 U.S. 36, 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. Bonner Mall Partnership, 115
S. Ct. 386 (1994). We conclude that it does not. In
Bancorp, the Court held that "[w]here 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
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remedy of vacatur. The judgment is not unreviewable, but
simply unreviewed by his own choice." 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 the suggestion of this Court, the proposed settlement
being an inexpensive, simple, and speedy way to accommodate
the interests of both parties. As the INS has not initiated
the relinquishment of its right to the remedy, the same
equitable calculus underlying Bancorp is not present. Nor,
given this Court's involvement and initiative in the
proceedings, does vacatur in this case implicate the concerns
expressed by the Bancorp Court about giving parties undue
control over judicial precedents. 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 value of
the district court's opinion works a kind of harm. But we do
not believe that such a species of harm is entitled to take
priority over the parties' best interests. Placing the
former above the latter would be inequitable. This case
contrasts with the usual appeal, where vacatur is only one
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consideration among others in a settlement. Here, the INS,
as a repeat player before the courts, is primarily concerned
with the precedential effect of the decision below. If that
decision stands, all possibility of a settlement is
eliminated. If it is vacated, the appellee acquires the
absolute certainty of not being deported, while the
government saves the costs and risk of litigation a win
for both sides. It is true the Bancorp Court discusses and
rejects the possible impact of its rule in discouraging
settlements. Id. at 393. But it does so in aggregate,
saying in the end that "[w]e find it quite impossible to
assess the effect of our holding, either way, upon the
frequency or systemic value of settlement." In this case, by
contrast, the negative impact on settlement is absolutely
clear. We think this case presents "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 moot, the INS's pending motion for leave to
file a supplemental brief. Each party will bear its own
costs.
So ordered.
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