          United States Court of Appeals
                      For the First Circuit

No. 07-1537

                          ROSARIO GUZZI,

                      Plaintiff, Appellant,

                                v.

        MICHAEL THOMPSON, SUPERINTENDENT OF MCI SHIRLEY;
         GREG MCCANN, DIRECTOR OF TREATMENT MCI SHIRLEY;
                          RABBI BLOTNER,

                      Defendants, Appellees,


               EXECUTIVE OFFICE OF PUBLIC SAFETY,

                            Defendant.


                              Before
                   Torruella, Lynch and Howard,
                          Circuit Judges.

                             JUDGMENT
                      Entered: May 14, 2008

     In this prisoner's rights case, we allowed amicus to appear on
behalf of the pro se inmate. In the course of the oral argument,
it appeared to us that the case may have arisen from a mutual
misunderstanding.    We encouraged the parties to engage in
discussions and report back.

     The parties reported back that they had resolved the matter.
The defendant requested dismissal and amicus filed a response which
favored dismissal and vacatur.       Defendant responded, at our
request, to the position of amicus and did not oppose vacatur.

     We have reviewed the parties' submissions. The defendants-
appellees have provided the plaintiff the relief he requested in
his complaint.    As a general rule, "'voluntary cessation of
allegedly illegal conduct does not deprive the tribunal of power to
hear and determine the case, i.e., does not make the case moot.'
But jurisdiction, properly acquired, may abate if the case becomes
moot because . . . it can be said with assurance that 'there is no
reasonable expectation . . .' that the alleged violation will recur
. . . ." Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)
(quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 633
(1953)) (citations omitted).       See Wal-Mart Stores, Inc. v.
Rodriguez, 322 F.3d 747, 749 (1st Cir. 2003); Kerkhof v. MCI
Worldcom, Inc., 282 F.3d 44, 53-54 (1st Cir. 2002).

     The parties agree that this condition is met and that the
appeal should be dismissed as moot. The plaintiff-appellant has
asked us, as a result, to vacate the judgment under review, which
is reported in an opinion at Guzzi v. Thompson, 470 F. Supp. 2d 17
(D. Mass. 2007). The decision on vacatur rests in the equitable
discretion of this court. While mootness alone does not ordinarily
give rise to vacatur, we have recognized that vacatur "may be
appropriate where mootness arises . . . through the unilateral
action of the party prevailing below." Wal-Mart, 322 F.3d at 749
(1st Cir. 2003) (citing U.S. Bancorp Mortgage Co. v. Bonner Mall
P'ship, 513 U.S. 18, 25 (1994)); see also Shelby v. Superformance
Int'l., Inc., 435 F.3d 42, 46 (1st Cir. 2006); Kerkhof, 282 F.3d at
54. The defendants-appellees here do not object to vacatur. We
find that the equitable considerations favor vacatur of the action.
As in Wal-Mart and Kerkhof, vacating the judgment preserves the
ability of both sides to litigate complex issues, here under the
Religious Freedom Restoration Act. As well, federalism concerns
support dismissal.

     We accordingly vacate the district court's decision and remand
with instructions to dismiss this suit as moot. Each side shall
bear its own costs.

     So ordered.

                                    By the Court:
                                    /s/ Richard Cushing   Donovan,
                                    Clerk




cc: Hon. William G. Young, Ms. Sarah A. Thornton, Clerk, United
States District Court for the District of Massachusetts, Mr.
Rassbach, Ms. Windham, & Ms. Kennedy.
