Pietrangelo v. Sununu

• Decision Date: 01 October 2021
• Docket Number: No. 21-1366,21-1366
• Citation: 15 F.4th 103
• Parties: James E. PIETRANGELO, II, Plaintiff, Appellant, v. Christopher SUNUNU, individually and in his official capacity as Governor of the State of New Hampshire, Lisa Morris, individually and in her capacity as Director of NH Division of Public Health Services; Lori Shibinette, individually and in her capacity as Commissioner of NH Department of Health and Human Services; Elizabeth Daly, individually and in her capacity as Chief of NH Bureau of Infectious Disease Control Defendants, Appellees, Unknown Does, in their individual and official capacities, Defendants.
• Court: U.S. Court of Appeals — First Circuit

15 F.4th 103

James E. PIETRANGELO, II, Plaintiff, Appellant,

v.Christopher SUNUNU, individually and in his official capacity as Governor of the State of New Hampshire, Lisa Morris, individually and in her capacity as Director of NH Division of Public Health Services; Lori Shibinette, individually and in her capacity as Commissioner of NH Department of Health and Human Services; Elizabeth Daly, individually and in her capacity as Chief of NH Bureau of Infectious Disease Control Defendants, Appellees,Unknown Does, in their individual and official capacities, Defendants.

No. 21-1366

United States Court of Appeals, First Circuit.

October 1, 2021

James E. Pietrangelo, II on brief pro se.

Laura E. B. Lombardi, Senior Assistant Attorney General, and Samuel R. V. Garland, Assistant Attorney General, on brief for appellees.

Before Lynch and Barron, Circuit Judges, and Burroughs,^* District Judge.

LYNCH, Circuit Judge.

In the early stages of COVID-19 vaccine distribution, the State of New Hampshire implemented a plan to allocate its then-scarce supply. Under the plan, at least ninety percent of the state's supply would be distributed in phases based on age, occupation, and medical risk. The overall plan also earmarked up to ten percent of vaccines to an "equity plan" in order "to reach vulnerable individuals residing in census tracts identified as at risk of disproportionate impact from COVID-19." Pietrangelo v. Sununu, No. 21-cv-124-PB, 2021 WL 1254560, at *2 (D.N.H. Apr. 5, 2021). The factors the state used to designate census tracts as high risk included "minority status and language." New Hampshire residents who lived in those high-risk census tracts could qualify for an equity-plan vaccine by meeting one of ten criteria, including identifying as a racial or ethnic minority.

Before he obtained a vaccine appointment, plaintiff James E. Pietrangelo, II sued to challenge the equity plan. Pietrangelo, who is white and was then age fifty-five, argued that the plan illegally discriminated on the basis of race. He sought a preliminary injunction, which the district court denied after concluding Pietrangelo failed to establish a substantial likelihood of standing. Id. at *5. Pietrangelo appealed from that denial of injunctive relief. As we determine that his claims are moot, we dismiss this appeal.

"[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013) (quoting D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 54 (1st Cir. 1999) ). When we can no longer "give any 'effectual relief' to the potentially prevailing party," we must dismiss the case. Id. (quoting Horizon Bank & Tr. Co. v. Massachusetts, 391 F.3d 48, 53 (1st Cir. 2004) ). Unless an exception to the doctrine applies, to do otherwise would be to render an advisory opinion, which Article III prohibits. See id. at 52-53.

By the time the district court denied preliminary relief, New Hampshire was providing vaccines to all of its residents older than sixteen. And since then, the supply of vaccines available to New Hampshire, like the rest of the country, has skyrocketed. As a result, vaccine scarcity is no longer the problem it once was. Since early July, the demand for vaccines in New Hampshire has plateaued. See State of New Hampshire, Vaccination Dashboard (last visited Sept. 30, 2021), https://www.covid19.nh.gov/dashboard/vaccination

.¹ Vaccine supply in New Hampshire currently outstrips demand. See Ctrs. for Disease Control & Prevention, COVID Data Tracker: COVID-19 Vaccinations in the United States (last visited Sept. 30, 2021), https://covid.cdc.gov/covid-data-tracker/#vaccinations (showing in New Hampshire 1,750,221 doses administered and 2,142,860 doses delivered); id. (showing seven-day average of 119 newly vaccinated individuals per day). As for Pietrangelo, because he scheduled a vaccine appointment in April 2021, he no longer has any stake in how New Hampshire allocates its abundant supply of vaccines. His claim for a preliminary injunction is thus moot.

Pietrangelo's arguments to the contrary fail. He argues that the state's "voluntary compliance" cannot moot the...