Pietrangelo v. Sununu ( 2021 )

United States Court of Appeals
For the First Circuit
No. 21-1366
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch and Barron, Circuit Judges,
and Burroughs,* District Judge.
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
* Of the District of Massachusetts, sitting by designation.
appellees.
October 1, 2021
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.
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"[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
1 While our review is generally limited to the record
below, see Fed. R. App. P. 10, we may take judicial notice of facts
which are "capable of being determined by an assuredly accurate
source." United States v. Hoyts Cinemas Corp., 380 F.3d 558, 570
(1st Cir. 2004); see Fed. R. Evid. 201(b)(2). The accuracy of
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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 case, that
he may need to receive a booster shot, that the equity plan
increases his risk of contracting a breakthrough infection from an
unvaccinated person, and that, if moot, the case presents a
question capable of repetition yet evading review.2 Starting with
the voluntary compliance argument, the point is not that New
Hampshire changed its actions but that a court can provide him
with no relief. Nor does Pietrangelo's speculation about booster
state and federal vaccine distribution data cannot be reasonably
questioned, and we take judicial notice of them.
2 Pietrangelo also argues that his claims for declaratory
relief and damages are still live. Whether that contention is
true, those claims are not before us in this interlocutory appeal
from the denial of a preliminary injunction.
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shots affect the mootness of his efforts to enjoin New Hampshire's
plan to deal with limited vaccine supplies earlier this year. As
to Pietrangelo's concerns about non-vaccinated New Hampshire
residents, the widespread availability of vaccines makes the risk
based on the record before us far too insubstantial to qualify as
a concrete injury. See Equal Means Equal v. Ferriero, 3 F.4th 24,
29 (1st Cir. 2021). Finally, this controversy is not capable of
repetition yet evading review because we have no reason to think
that New Hampshire will face a vaccine supply crunch in the future.
See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007).
The appeal is dismissed.
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