                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARVIN ROBERTS; EUGENE                  No. 18-35938
VENT; KEVIN PEASE; GEORGE
FRESE,                                    D.C. Nos.
        Plaintiffs-Appellants,       4:17-cv-00034-HRH
                                     4:17-cv-00035-HRH
              v.

CITY OF FAIRBANKS; JAMES                    OPINION
GEIER; CLIFFORD AARON RING;
CHRIS NOLAN; DAVE
KENDRICK,
        Defendants-Appellees.

      Appeal from the United States District Court
               for the District of Alaska
      H. Russel Holland, District Judge, Presiding

         Argued and Submitted August 9, 2019
                  Fairbanks, Alaska

                   Filed January 22, 2020

     Before: Richard C. Tallman, Sandra S. Ikuta,
         and N. Randy Smith, Circuit Judges.

              Opinion by Judge Tallman;
               Dissent by Judge Ikuta
2               ROBERTS V. CITY OF FAIRBANKS

                          SUMMARY *


                           Civil Rights

    The panel reversed the district court’s order dismissing
claims brought under 42 U.S.C. § 1983 and § 1985 on the
ground that the claims were barred by Heck v. Humphrey,
512 U.S. 477 (1994), and remanded.

     Plaintiffs were convicted of murder but sought post-
conviction relief after an individual confessed to his
involvement in the murder and named other men as actual
perpetrators of the crime. Pursuant to plaintiffs’ subsequent
settlement agreement with prosecutors, the Alaska Superior
Court vacated plaintiffs’ convictions, prosecutors dismissed
all indictments, and three of the plaintiffs were released from
prison. Despite a global release of all claims by plaintiffs
contained in the settlement agreement, plaintiffs brought this
lawsuit against the City of Fairbanks and its officers
alleging, among other things, malicious prosecution and
Brady violations. The district court dismissed the action
without leave to amend, explaining that although the
Superior Court vacated plaintiffs’ convictions pursuant to
the settlement agreement and stipulation, the Superior Court
did not declare the convictions invalid.

    The panel held that where all convictions underlying
§ 1983 claims are vacated and no outstanding criminal
judgments remain, Heck does not bar plaintiffs from seeking
relief under § 1983. The panel held that because all
convictions in this case were vacated and the underlying

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              ROBERTS V. CITY OF FAIRBANKS                   3

indictments ordered dismissed, there remained no
outstanding criminal judgment nor any charges pending
against plaintiffs. The absence of a criminal judgment here
rendered the Heck bar inapplicable; the plain language of the
Supreme Court’s decision in Heck required the existence of
a conviction in order for a § 1983 suit to be barred. The
panel further held that the district court’s ruling to the
contrary and the dissent’s proposed disposition conflicted
with this Circuit’s decisions in Rosales-Martinez v. Palmer,
753 F.3d 890 (9th Cir. 2014), and Taylor v. County of Pima,
913 F.3d 930 (9th Cir. 2019).

     The panel rejected defendants’ argument that joinder
requirements under Federal Rule of Civil Procedure 19
barred plaintiffs’ § 1983 claims because the State of Alaska
was an indispensable party to this litigation. The panel held
that the State of Alaska was not a necessary party here
because it had not claimed any interest relating to the subject
of this action, as confirmed by defendants. The panel stated
that plaintiffs could obtain complete relief through their
§ 1983 claims against the City of Fairbanks and its
officers—the alleged perpetrators of the § 1983 violations—
if their action was successful.

    The panel considered defendants’ arguments that
plaintiffs’ § 1983 claims may be dismissed based on the
equitable doctrine of judicial estoppel, and that plaintiffs
failed to state claims for malicious prosecution, even if not
barred by Heck, because they did not allege a favorable
termination. The panel held that because these arguments
turned in part on the enforceability of the settlement
agreement—an issue not passed upon below— the district
court should be allowed to address these issues in the first
instance.
4             ROBERTS V. CITY OF FAIRBANKS

    Dissenting, Judge Ikuta stated that plaintiffs did not have
their prior convictions “declared invalid by a state tribunal
authorized to make such determination,” Heck, 512 U.S.
at 487, but instead reached an agreement with the state to
vacate their convictions. Regardless of the plaintiffs’
reasons for doing so, they could not now claim that the prior
convictions were terminated in a manner that provides a
basis for bringing § 1983 malicious prosecution claims. In
holding otherwise, the majority cast aside the favorable-
termination rule articulated by Heck v. Humphrey and thus
was inconsistent with Supreme Court precedent.
             ROBERTS V. CITY OF FAIRBANKS              5

                      COUNSEL

Anna Benvenutti Hoffmann (argued), Nick Brustin, Richard
Sawyer, and Mary McCarthy, Neufeld Scheck & Brustin
LLP, New York, New York; Mike Kramer and Reilly
Cosgrove, Kramer and Associates, Fairbanks, Alaska; for
Plaintiffs-Appellants Marvin Roberts and Eugene Vent.

David Whedbee, Jeffrey Taren, Tiffany Cartwright, and Sam
Kramer, MacDonald Hoague & Bayless, Seattle,
Washington; Thomas R. Wickware, Fairbanks, Alaska; for
Plaintiffs-Appellants Kevin Pease and George Frese.

Matthew Singer (argued) and Peter A. Scully, Holland &
Knight LLP, Anchorage, Alaska, for Defendant-Appellee
City of Fairbanks.

Joseph W. Evans (argued), Law Offices of Joseph W. Evans,
Bremerton, Washington, for Defendants-Appellees James
Geier, Clifford Aaron Ring, Chris Nolan, and Dave
Kendrick.

Samuel Harbourt, Orrick Herrington & Sutcliffe LLP, San
Francisco, California; Kelsi Brown Corkran, Orrick
Herrington & Sutcliffe LLP, Washington, D.C.; for Amici
Curiae Scholars.

Steven S. Hansen, CSG Inc., Fairbanks, Alaska, for Amicus
Curiae Tanana Chiefs Conference.

David B. Owens, Lillian Hahn, Benjamin Harris, and Emily
Sullivan, The Exoneration Project, Chicago, Illinois, for
Amici Curiae The Innocence Network, American Civil
Liberties Union, and ACLU of Alaska Foundation.
6             ROBERTS V. CITY OF FAIRBANKS

                        OPINION

TALLMAN, Circuit Judge:

    This is an appeal from an order dismissing claims
brought under 42 U.S.C. § 1983 and § 1985 on the ground
that the claims were barred by Heck v. Humphrey, 512 U.S.
477 (1994). The primary question before us is whether
§ 1983 plaintiffs may recover damages if the convictions
underlying their claims were vacated pursuant to a
settlement agreement. The answer depends on whether such
a vacatur serves to invalidate the convictions and thus
renders the related § 1983 claims actionable notwithstanding
Heck. We conclude that where all convictions underlying
§ 1983 claims are vacated and no outstanding criminal
judgments remain, Heck does not bar plaintiffs from seeking
relief under § 1983. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse and remand for further proceedings.

                              I

    The following facts are alleged in the operative pleading
or are subject to judicial notice:

    On October 11, 1997, several men beat and kicked to
death 15-year-old John Hartman on the streets of Fairbanks,
Alaska. Plaintiffs Marvin Roberts, George Frese, Kevin
Pease, and Eugene Vent (collectively “Plaintiffs”) were
arrested by the Fairbanks Police Department, tried, and
convicted of the murder and received prison sentences
ranging from 30 to 77 years. The men—three Alaska
Natives and one Native American—were between the ages
of 17 and 20.

   Several years after the convictions, an individual named
William Holmes confessed to his involvement in the murder
                ROBERTS V. CITY OF FAIRBANKS                          7

and named Jason Wallace and three other men as the actual
perpetrators of the crime. Partly based on this confession,
Plaintiffs filed post-conviction relief (“PCR”) petitions in
Alaska Superior Court in September 2013. The court ruled
that the petitions stated a prima facie case of actual
innocence, allowing Plaintiffs to proceed with discovery,
which lasted two years.

    On May 4, 2015, Jason Gazewood, counsel for Jason
Wallace, wrote a letter to the post-conviction prosecutors, 1
expressing his concerns with the likely outcome of a PCR
hearing. Gazewood, a former Fairbanks prosecutor, wrote
that their convictions were likely to be vacated and that a
retrial would be “virtually unwinnable.” He noted that the
lead investigator of the murder, Detective Clifford Aaron
Ring, had “edit[ed] his recordings in such a way as to not
record exculpatory information while using coercive
techniques to obtain confessions,” and that the Fairbanks
Police Department (“FPD”) was well aware of Detective
Ring’s “use of deceptive interviewing techniques.” For
these reasons, among others, Gazewood warned the
prosecutors that Plaintiffs were likely to seek—and win—
tens of millions of dollars in a civil-rights suit against those
involved in procuring their wrongful convictions.



     1
       Gazewood’s letter was addressed to Assistant Attorney General
Adrienne Bachmann who had allegedly suppressed a memorandum
documenting Holmes’ 2011 confession to the Hartman murder from
Plaintiffs and their counsel. Because we review de novo the district
court’s grant of a motion to dismiss under Rule 12(b)(6), “accepting all
factual allegations in the complaint as true and construing them in the
light most favorable to the nonmoving party,” Fields v. Twitter, Inc.,
881 F.3d 739, 743 (9th Cir. 2018), we do not address whether Plaintiffs’
allegations can be proven.
8             ROBERTS V. CITY OF FAIRBANKS

    After discovery, the state court held a five-week
evidentiary hearing from October through November of
2015. The following testimony was adduced:

    •   William Holmes testified that he, Jason Wallace, and
        three other men had murdered Hartman;

    •   Eleven witnesses corroborated Holmes’ account;

    •   Four witnesses testified that Wallace had confessed
        to killing Hartman and provided consistent,
        interlocking accounts corroborating that fact;

    •   Arlo Olson, the sole witness who had identified
        Plaintiffs as assailants in an unrelated attack on Frank
        Dayton the night of the Hartman murder, testified
        that FPD officers coerced him into giving a false
        statement;

    •   Frank Dayton, the individual who had also been
        assaulted on the night of the murder, testified that his
        assailants had not been in Roberts’ car, as had been
        asserted by the prosecution;

    •   An Alaska State Trooper testified that an
        investigation corroborated key elements of Holmes’
        confession and failed to find any evidence of
        Plaintiffs’ guilt;

    •   Alibi witnesses provided accounts of the activities
        and whereabouts of Plaintiffs on the night of the
        murder, establishing that Plaintiffs were never
        together that night and could not have murdered
        Hartman or assaulted Dayton; and
                 ROBERTS V. CITY OF FAIRBANKS                           9

    •    Forensic experts testified that the prosecution
         improperly advanced “evidence” that Frese’s boot
         print matched the injuries on Hartman’s face, stating
         that there was no scientifically reliable way to make
         this determination.

    At the end of the evidentiary hearing, the judge told the
parties that he would not render a decision for another six to
eight months. Plaintiffs allege that prosecutors publicly
stated that they would appeal any decision favorable to
Plaintiffs all the way to the Alaska Supreme Court, thereby
extending the men’s already lengthy incarceration for an
indefinite period.

    Several weeks after the hearing and just before
Christmas 2015, the prosecutors offered Plaintiffs a deal: the
prosecution would consent to vacating the convictions and
dismissing the charges, but only if all four plaintiffs agreed
to release the State of Alaska and the City of Fairbanks (and
their employees) from any liability related to the
convictions. 2 Plaintiffs agreed and entered into a settlement
agreement with the State of Alaska and the City of Fairbanks
(the “Settlement Agreement”). The Settlement Agreement
was filed with the Alaska Superior Court, and the parties
jointly stipulated that the court would be asked to vacate
Plaintiffs’ convictions. The Settlement Agreement also
provided that “[t]he parties have not reached agreement as to
[Plaintiffs’] actual guilt or innocence.”



    2
      Roberts had already been released from prison and was on
supervised parole, but the prosecution refused to release any of the other
three plaintiffs from prison unless Roberts agreed to the same
arrangement.
10               ROBERTS V. CITY OF FAIRBANKS

   Nonetheless, Plaintiffs all signed the Settlement
Agreement, which included the following key stipulations:

     •   The petitioners stipulate and agree that the original
         jury verdicts and judgments of conviction were
         properly and validly entered based on proof beyond
         a reasonable doubt.

     •   The parties stipulate and agree that there is sufficient
         new evidence of material facts that a new trial could
         be ordered under AS 12.72.010(4). 3

     •   The parties stipulate and agree that this Court may
         immediately enter Orders vacating the Judgments of
         Conviction . . . and awarding each Petitioner the
         relief of a new trial for each of the charges for which
         Petitioners were convicted.

     On December 17, 2015, after a judicially supervised
mediation, the Alaska Superior Court convened a settlement
hearing with all parties present and heard from
representatives of the victims and counsel for all parties.
The court explained that its role was to “ministerially sign
the orders necessary to [e]ffect the decision of the attorney
general,” and that, having determined that the settlement was
procedurally proper, it “had no authority to . . . review or to
criticize” the attorney general’s decision. At the conclusion
of the hearing, the court vacated Plaintiffs’ convictions, the
prosecutors dismissed all indictments, and Vent, Frese, and
Pease were released from prison. The parties inform us that
     3
      Under Alaska Statute § 12.72.010(4), a person convicted of a crime
may institute a PCR proceeding if the person claims “that there exists
evidence of material facts, not previously presented and heard by the
court, that requires vacation of the conviction or sentence in the interest
of justice.”
             ROBERTS V. CITY OF FAIRBANKS               11

no further prosecution of these men has ensued and no new
trial was ever ordered following the 2015 hearing.

    Despite a global release of all claims by Plaintiffs
contained in the Settlement Agreement, this civil-rights
lawsuit was later commenced. On May 14, 2018, Plaintiffs
filed a Second Amended and Consolidated Complaint and
Jury Demand seeking relief under § 1983 against the City of
Fairbanks and the four named FPD officers: James Geier,
Clifford Aaron Ring, Chris Nolan, and Dave Kendrick
(collectively “Defendants”). Vent and Frese alleged Fifth
Amendment violations, and all four plaintiffs asserted the
following causes of action:

   1. 42 U.S.C. § 1983 deprivation of liberty;

   2. § 1983 malicious prosecution;

   3. § 1983 Brady violations;

   4. § 1983 supervisor liability;

   5. § 1983 civil rights conspiracy;

   6. § 1985(3) conspiracy;

   7. § 1983 Monell claims against the City of Fairbanks;

   8. § 1983 First Amendment right of access;

   9. Spoliation of evidence;

   10. Negligence; and

   11. Intentional or reckless infliction of emotional
       distress.
12              ROBERTS V. CITY OF FAIRBANKS

Plaintiffs requested a declaratory judgment that the
Settlement Agreement is unenforceable, an award of
compensatory and punitive damages, and attorney’s fees.

    On June 4, 2018, Defendants moved to dismiss
Plaintiffs’ complaint for failure to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure
12(b)(6), or alternatively, for failure to join the State of
Alaska as an indispensable party under Rule 12(b)(7).

    The district court entered a final judgment and order
dismissing Plaintiffs’ negligence and negligent infliction of
emotional distress 4 claims with prejudice, 5 and dismissing
the other ten claims without prejudice, under Rule 12(b)(6). 6
Roberts v. City of Fairbanks, No. 4:17-CV-0034-HRH, 2018
WL 5259453, at *10 (D. Alaska Oct. 22, 2018). But the
court denied leave to amend “as amendment would be futile
at th[at] time.” Id. The district court dismissed the claims
as barred by Heck v. Humphrey, holding that vacatur of
convictions pursuant to a settlement agreement was
insufficient to render the convictions invalid in specific
reliance on the parties’ stipulation that “the original jury
verdicts and judgments of conviction were properly and
validly entered based on proof beyond a reasonable doubt.”
Id. at *8 (internal quotation marks omitted). As the court

     4
       The court likely intended to refer to the intentional or reckless
infliction of emotional distress claim, as Plaintiffs had not asserted a
negligent infliction of emotional distress claim. The district court can
clarify this matter on remand.

     5
      The court noted that Plaintiffs did not oppose dismissal of these
two claims.
    6
      The court did not consider Defendants’ alternative Rule 12(b)(7)
argument. Defendants press that issue on appeal before us.
              ROBERTS V. CITY OF FAIRBANKS                 13

explained, “[a]ll the Superior Court did was vacate
plaintiffs’ convictions pursuant to the settlement agreements
and the stipulation. The Superior Court did not declare their
convictions invalid.” Id. Plaintiffs timely appealed.

                              II

    As previously noted, see supra n.1, we accept Plaintiffs’
factual allegations as true and review de novo the Rule
12(b)(6) dismissal.

                             III

                              A

    We agree with the district court that our analysis is
guided by Heck v. Humphrey, the seminal case discussing
whether a plaintiff may challenge the constitutionality of a
conviction through a § 1983 suit for damages. 512 U.S.
at 478. Petitioner Roy Heck was serving a 15-year sentence
for voluntary manslaughter in the killing of his wife. Id.
While his appeal from the conviction was pending in state
court, Heck filed § 1983 claims in federal district court
alleging that defendants, including county prosecutors and a
state police investigator, had engaged in “unlawful,
unreasonable, and arbitrary investigation,” “knowingly
destroyed” exculpatory evidence, and caused an “unlawful
voice identification procedure” to be used at his trial, while
acting under color of state law. Id. at 479. Heck sought
compensatory and punitive damages but did not seek
injunctive relief or release from custody. Id.

    The district court dismissed Heck’s suit because it
implicated the legality of his conviction. Id. Heck appealed
this ruling to the Seventh Circuit Court of Appeals. Id.
While the federal appeal was pending, the state supreme
14              ROBERTS V. CITY OF FAIRBANKS

court affirmed his conviction and sentence. Id. The Seventh
Circuit upheld the district court’s dismissal of the claims,
holding that

         [i]f regardless of the relief sought, the
         plaintiff [in a federal civil-rights action] is
         challenging the legality of his conviction, so
         that if he won his case the state would be
         obliged to release him even if he hadn’t
         sought that relief, the suit is classified as an
         application for habeas corpus and the
         plaintiff must exhaust his state remedies, on
         pain of dismissal if he fails to do so.

Id. at 479–80 (footnote and citations omitted).

    Upon review, the Supreme Court disagreed with the
circuit court’s conclusion regarding exhaustion and stated
that “§ 1983 contains no exhaustion requirement beyond
what Congress has provided.” Id. at 483. Instead, the Court
stated, the question before it was “whether the claim is
cognizable under § 1983 at all.” Id. Recognizing that
§ 1983 “creates a species of tort liability,” id. (quoting
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305
(1986)), the Court began its analysis by looking at the
common law of torts, specifically, the cause of action for
malicious prosecution, which it described as the most
analogous to Heck’s claims, id. at 483–84. The Court
emphasized that the favorable-termination 7 element of
malicious prosecution


     7
      We have said that the favorable-termination rule in the context of
malicious prosecution refers to the termination of proceedings “in such
a manner as to indicate . . . innocence.” Awabdy v. City of Adelanto,
                 ROBERTS V. CITY OF FAIRBANKS                         15

         avoids parallel litigation over the issues of
         probable cause and guilt . . . and it precludes
         the possibility of the claimant [sic]
         succeeding in the tort action after having
         been convicted in the underlying criminal
         prosecution, in contravention of a strong
         judicial policy against the creation of two
         conflicting resolutions arising out of the same
         or identical transaction.

Id. at 484 (alteration in original) (quoting 8 S. Speiser, C.
Krause & A. Gans, American Law of Torts § 28:5, at 24
(1991)).

    The Heck Court noted its similar longstanding concern
“for finality and consistency” and general disinclination to
“expand opportunities for collateral attack.” Id. at 485–86.
Based on this laudatory concern and “the hoary principle that
civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments,” id. at 486,
the Court adopted a version of the common law’s favorable-
termination rule for § 1983 damages claims that “call into
question the lawfulness of conviction or confinement,” id.
at 483. The Court articulated four ways in which a § 1983
plaintiff could satisfy this requirement:

         [T]o recover damages for allegedly
         unconstitutional conviction or imprisonment,
         or for other harm caused by actions whose
         unlawfulness would render a conviction or
         sentence invalid, a § 1983 plaintiff must

368 F.3d 1062, 1068 (9th Cir. 2004). As discussed below, we leave to
the district court the question whether Plaintiffs have alleged sufficient
facts to state a claim for malicious prosecution.
16             ROBERTS V. CITY OF FAIRBANKS

         prove that the conviction or sentence has
         been [1] reversed on direct appeal,
         [2] expunged      by     executive     order,
         [3] declared invalid by a state tribunal
         authorized to make such determination, or
         [4] called into question by a federal court’s
         issuance of a writ of habeas corpus.

Id. at 486–87 (footnote omitted). 8 Here, we need only
consider whether Plaintiffs’ convictions were “declared
invalid by a state tribunal authorized to make such
determination,” id. at 487, when the Alaska Superior Court
vacated their convictions based on the Settlement
Agreement.

    The Heck Court was explicit: “If the district court
determines that the plaintiff’s action, even if successful, will
not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed
to proceed, in the absence of some other bar to the suit.” Id.
(footnote omitted). Because all convictions here were
vacated and underlying indictments ordered dismissed, there
remains no outstanding criminal judgment nor any charges
pending against Plaintiffs. The absence of a criminal
judgment here renders the Heck bar inapplicable; the plain
language of the decision requires the existence of a
conviction in order for a § 1983 suit to be barred. See id.

   Defendants argue, and the dissent agrees, that even
though the convictions were vacated, they are still “valid”
and so Plaintiffs’ civil-rights claims are not cognizable. But

     8
      We have held that Heck applies equally to claims brought under
§ 1985. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1097 n.4
(9th Cir. 2004).
              ROBERTS V. CITY OF FAIRBANKS                17

the plain meaning of Heck and our precedents counsel
otherwise. According to Black’s Law Dictionary, the
definition of “vacate” is “to nullify or cancel; make void;
invalidate.” Black’s Law Dictionary 1782 (10th ed. 2014)
(emphasis added). Nevertheless, Defendants maintain that
the state court did not declare the convictions “invalid,” as
required by Heck, despite vacatur, because Plaintiffs,
pursuant to the Settlement Agreement, “confirm[ed] the
validity of their original convictions and sentences.” The
district court agreed, concluding that vacating Plaintiffs’
convictions and sentences “is not the same thing [as
invalidating them] for purposes of Heck.” Roberts, 2018
WL5259453, at *10. The dissent claims allowing a § 1983
action based on vacated convictions is novel and contrary to
our precedents. See post, at 41. We address each argument
in turn.

                             B

    The district court’s ruling and the dissent’s proposed
disposition conflict with our decisions in Rosales-Martinez
v. Palmer, 753 F.3d 890 (9th Cir. 2014), and Taylor v.
County of Pima, 913 F.3d 930 (9th Cir. 2019).
Unfortunately, the district court did not have the benefit of
Taylor, our most recent decision in this area, when it
dismissed the case. There, we considered the vacatur of
multiple convictions pursuant to an agreement following a
post-conviction relief petition based on newly discovered
evidence calling the convictions into question—mirroring
the circumstances here. 913 F.3d at 932. The appellant in
Taylor—convicted of felony murder in 1972—entered into
a plea agreement with the state in 2013 whereby his original
1972 conviction was vacated, he pleaded no contest to the
same counts, was resentenced to time served, and was
ultimately released from prison. Id.
18            ROBERTS V. CITY OF FAIRBANKS

    Our opinion in Taylor was firmly rooted in the reasoning
that vacatur of a conviction by a state court constitutes
invalidation under Heck. Specifically, we said that “under
Heck, a plaintiff in a § 1983 action may not seek a judgment
that would necessarily imply the invalidity of a state-court
conviction or sentence unless, for example, the conviction
had been vacated by the state court.” Id. at 935 (emphasis
added). We confirmed the district court’s proper analysis of
Heck: “Heck does not bar [Taylor] from raising claims
premised on alleged constitutional violations that affect his
1972 convictions [which had been vacated pursuant to the
settlement] but do not taint his 2013 convictions [to which
he pleaded no contest].” Id. (internal quotation marks
omitted). We concluded that “Taylor’s 1972 jury conviction
ha[d] been vacated by the state court, so Heck pose[d] no
bar to a challenge to that conviction or the resulting
sentence.” Id. (emphasis added). We ultimately held that
Taylor was barred from seeking incarceration-related
damages because all the time he served was “supported by
the valid 2013 state-court judgment,” not the vacated 1972
convictions. Id.

    Our dissenting colleague contends that Taylor’s
conclusion that § 1983 suits based on vacated convictions
are not barred by Heck is merely an “offhand comment” that
was made “in passing” and is therefore not binding. Post,
at 44. We think that reading of Taylor is too narrow. We
expressly held there that Heck did not bar Taylor from
seeking damages related to the 1972 conviction—just that
Taylor could not seek incarceration-related damages,
because the valid 2013 conviction “[a]s a matter of law . . .
caused the entire period of his incarceration.” Taylor,
913 F.3d at 935. Cf. Jackson v. Barnes, 749 F.3d 755, 762
(9th Cir. 2014) (allowing a § 1983 suit for nominal and
punitive damages—but not incarceration-related damages—
              ROBERTS V. CITY OF FAIRBANKS                   19

where the plaintiff was convicted, his conviction was set
aside on habeas for Miranda violations, and he was
subsequently reconvicted without the tainted evidence).
Taylor specifically challenged “his 1972 prosecution,
convictions, and sentence and [did] not challenge his 2013
‘no contest’ pleas,” recognizing that Heck would bar only
the non-vacated judgment. Taylor, 913 F.3d at 935 (internal
quotation marks omitted). We agreed that the 2013
judgment was valid because it had not been vacated, unlike
the 1972 conviction. Id.

    Far from an “offhand comment” made “in passing,”
Taylor’s understanding that a vacated conviction was
“declared invalid” under Heck was an integral element
underpinning our holding. We held that only the 2013
conviction—not the vacated 1972 conviction—barred his
claim for incarceration-related damages, and we called the
fact that the 2013 conviction supported his entire period of
incarceration “critical[].” Id. That is no idle comment made
in passing. Unlike in Taylor, here there is no substitute
outstanding conviction to bar Plaintiffs from their suit for
damages as Taylor’s 2013 conviction barred his.

    In Rosales-Martinez, the state court vacated the
plaintiff’s convictions pursuant to a settlement agreement
following his filing of a habeas corpus petition alleging
Brady violations. See 753 F.3d at 893. In 2004, Rosales-
Martinez was convicted of four drug-related counts and
sentenced to a term of imprisonment of 10 to 25 years. Id.
at 892. He filed a state habeas petition after learning that the
sole witness to testify against him had a criminal history that
was not disclosed by the state as ordered by the court. Id.
Rosales-Martinez then entered into a stipulated agreement
with the state in which he agreed to withdraw his habeas
petition and to plead guilty to one of the counts for which he
20               ROBERTS V. CITY OF FAIRBANKS

was charged in exchange for the state’s recommending
vacatur of his other convictions “based on the cumulative
errors” he alleged and recommending to the court that he be
sentenced only to time served. Id. at 893.

     The state court accepted the agreement, vacated three of
the four counts, and imposed a punishment of time served,
whereupon Rosales-Martinez was released from prison. Id.
at 894. He then filed a § 1983 action in federal district court
based on the state’s alleged Brady violations. Id. at 892. The
district court concluded that Rosales-Martinez’s § 1983
claim was untimely because he failed to file it within the
two-year statute of limitations. Id. at 895. The court based
its decision on the rule that “[a] federal claim accrues when
the plaintiff knows or has reason to know of the injury which
is the basis of the action.” 9 Id. (internal quotation marks and
citation omitted).

    We reversed, pointing to the Supreme Court’s holding in
Heck that “a § 1983 action challenging a conviction or
sentence does not ‘exist[]’ until the conviction or sentence is
invalidated.” Id. at 896 (alteration in original) (citation
omitted). Applying this rule, we stated, “Heck therefore
teaches that Rosales-Martinez’s claims did not accrue until
the Nevada court vacated those convictions on December 2,
2008.” Id. We thus implicitly held that vacating a
conviction pursuant to a settlement agreement serves to
invalidate the conviction under Heck. Specifically, we stated
that “Rosales-Martinez pleaded guilty to one of the four

     9
     The court applied a statute of limitations of two years as provided
by Nevada state law. “Nevada law provides the statute of limitations
because, in the absence of a federal provision for § 1983 actions, the
analogous state statute of limitations for personal injury claims applies.”
Rosales-Martinez, 753 F.3d at 895.
              ROBERTS V. CITY OF FAIRBANKS                 21

counts of his original conviction, with the other three being
held invalid.” Id. at 899 (emphasis added).

    We went on to remand the case so the district court could
determine how Rosales-Martinez’s guilty plea to one count
under the release-dismissal agreement should be addressed:

       The fact that Rosales-Martinez was
       reconvicted following the vacation of his
       initial convictions, means that he still has an
       outstanding conviction. This outstanding
       conviction raises the question whether
       Rosales-Martinez’s § 1983 action is barred
       by Heck’s holding that “[a] claim for
       damages [based] on a conviction or sentence
       that has not been so invalidated is not
       cognizable.”

Id. at 897 (quoting Heck, 512 U.S. at 487) (alterations in
original). Indeed, our decision reversing the lower court was
contingent upon the finding that Heck does not bar a suit for
damages based on convictions that were vacated pursuant to
a settlement agreement.

    The dissent’s attempt to distinguish Rosales-Martinez is
unconvincing. The dissent argues that Rosales-Martinez
does not support our holding here because in that case we
remanded “so the district court could address the viability of
the plaintiff’s complaint in the first instance.” Post, at 42.
But the dissent misreads our opinion in Rosales-Martinez.
We remanded that case not because we doubted that the state
court’s vacatur of Rosales-Martinez’s three convictions
invalidated them for purposes of Heck, but because his plea
to the remaining count “suggest[ed] a continuous validity to
a portion of his original conviction and sentence,” and,
therefore, “a possible inconsistency between it and a § 1983
22              ROBERTS V. CITY OF FAIRBANKS

action.” Rosales-Martinez, 753 F.3d at 899. Indeed, on the
same page of the opinion that the dissent cites for the
proposition that we remanded the case “so the district court
could address the viability of the plaintiff’s complaint in the
first instance,” post, at 42, we instructed the district court to
determine Rosales-Martinez’s prospects for compensatory
damages “based on the convictions that were vacated as
invalid,” Rosales-Martinez, 753 F.3d at 899 (emphasis
added). Guided by these decisions and the plain language of
Heck, we must order reversal here. 10

                                  C

    Nevertheless, the district court held, and the dissent
argues, that vacatur-by-settlement does not qualify as
invalidation under Heck. See Roberts, 2018 WL 5259453,
at *8 (“All the Superior Court did was vacate plaintiffs’
convictions pursuant to the settlement agreements and the
stipulation. The Superior Court did not declare their
convictions invalid.”); see post, at 41. The dissent’s view
that a conviction vacated by settlement is not “declared
invalid” under Heck appears to arise out of its conflation of
the favorable-termination rule in the tort of malicious



     10
       There is a fundamental difference in how we and the dissent read
Heck. The dissent cites language defining an “outstanding criminal
judgment” in McDonough v. Smith, 139 S. Ct. 2149 (2019) (quoting
Wallace v. Kato, 549 U.S. 384, 393 (2007)). See post, at 47. The dissent
ignores the very next sentence in the Wallace opinion, which explains
that the Heck rule for deferred accrual “delays what would otherwise be
the accrual date of a tort action until the setting aside of an extant
conviction.” 549 U.S. at 393. There are no extant convictions here. All
convictions were set aside. In the absence of any remaining convictions,
Heck does not bar § 1983 claims. Our reading of Heck comports with
that of our circuit precedent in Taylor and Rosales-Martinez.
                ROBERTS V. CITY OF FAIRBANKS                         23

prosecution with Heck’s four distinct means of favorable
termination. 11 See post, at 48–51.

    To be sure, Heck did create a favorable-termination rule,
see Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139 (9th Cir.
2005), and the Supreme Court in Heck called malicious
prosecution the “closest analogy” to a § 1983 suit for
wrongful conviction, 512 U.S. at 484. But Heck’s favorable-
termination requirement is distinct from the favorable-
termination element of a malicious-prosecution claim.
Compare Awabdy, 368 F.3d at 1068 (malicious-prosecution
plaintiff must “establish that the prior proceedings
terminated in such a manner as to indicate his innocence”),
with Heck, 512 U.S. at 486–87 (favorable-termination rule
satisfied when conviction or sentence is (1) reversed on
direct appeal, (2) expunged by executive order, (3) declared
invalid by a state court, or (4) called into question by a
federal court’s issuance of a writ of habeas corpus).

    The dissent’s contention to the contrary—that the
analogy to malicious prosecution means that a § 1983 suit is
barred by Heck unless the plaintiff could bring a claim for
malicious prosecution at common law, see post, at 49—is
simply wrong. That argument contravenes the plain
    11
        The dissent quotes from the Supreme Court’s recent opinion in
McDonough to support its apparent claim that Heck establishes an exact
replica of the favorable-termination rule from the malicious-prosecution
context. See post, at 37. McDonough—a statute-of-limitations case—
holds no such thing. Describing when a plaintiff may bring a § 1983 suit
alleging fabrication of evidence, the Court wrote: “Only once the
criminal proceeding has ended in the defendant’s favor, or a resulting
conviction has been invalidated within the meaning of Heck . . . will the
statute of limitations begin to run.” McDonough, 139 S. Ct. at 2158
(internal citation omitted) (emphasis added). By posing the favorable-
termination rule and invalidation under Heck disjunctively, McDonough
firmly undermines the dissent’s insinuation that they are coterminous.
24               ROBERTS V. CITY OF FAIRBANKS

language of Heck, because convictions’ being “called into
question by a federal court’s issuance of a writ of habeas
corpus,” Heck, 512 U.S. at 487—the fourth listed exception
to the Heck bar—does not necessarily indicate the innocence
of the accused, as is required for a malicious-prosecution
action to be maintained. The Second Restatement of Torts—
the very source upon which the dissent relies, see post,
at 49—states that, where “new proceedings for the same
offense have been properly instituted and have not been
terminated in favor of the accused,” there has been no
“sufficient termination to meet the requirements of a cause
of action for malicious prosecution.” Restatement (Second)
of Torts § 660; see also id. § 660 cmt. g (“When the charge
has been properly revived under the criminal procedure of
the particular jurisdiction, there can be no liability . . . until
the new proceedings have terminated in favor of the
accused.”). Prosser & Keeton on Torts is in accord: “Any
disposition of the criminal action which does not terminate
it but permits it to be renewed . . . cannot serve as a
foundation for the action [of malicious prosecution].” W.
Page Keeton et al., Prosser & Keeton on Torts § 119, at 874
(5th ed. 1984). Thus, a “favorable” final order or disposition
must “preclude[] the bringing of further proceedings against
the accused.” Restatement (Second) of Torts § 659 cmt. g;
see also id. § 660 cmt. a (“Proceedings are ‘terminated in
favor of the accused,’ . . . only when their final disposition
is such as to indicate the innocence of the accused.”). In
short, there is no favorable termination in the malicious-
prosecution context when new proceedings for the same
offense have been instituted and are not subsequently
terminated in favor of the accused. 12


     12
       The common-law treatises cited by the dissent, see post, at 49 n.9,
are in harmony. See 8 Stuart M. Speiser et al., American Law of Torts
                ROBERTS V. CITY OF FAIRBANKS                         25

    In light of these well-established common-law
principles, the dissent’s suggestion that vacatur-by-
settlement cannot qualify as a favorable termination under
Heck because settlement was not considered a favorable
termination at common law must fail. Convictions “called
into question by a federal court’s issuance of a writ of habeas
corpus” routinely terminate in a manner that could not
sustain a malicious-prosecution action. Indeed, it is not
uncommon in the context of habeas relief for an individual
to be subsequently re-tried and re-convicted on the same
charges. See, e.g., Jackson, 749 F.3d at 758. Our sister
circuits are in accord. See, e.g., Pratt v. United States,
129 F.3d 54, 56 (1st Cir. 1997); United States v. Whitley,
734 F.2d 994, 996 (4th Cir. 1984); Gamble v. Estelle,
551 F.2d 654, 654–55 (5th Cir. 1977); Mullreed v. Kropp,
425 F.2d 1095, 1096–97 (6th Cir. 1970).

    Thus, the dissent’s reading of Heck’s favorable-
termination rule simply cannot be maintained. Both the
common-law principles discussed above and our precedents
in Rosales-Martinez and Taylor make clear that the law of
our circuit is not that Heck bars a § 1983 suit unless the

§ 28:5 (2019) (regurgitating the standard recited in the Second
Restatement); 54 C.J.S. Malicious Prosecution § 60 (“With respect to
the malicious prosecution requirement that the prior proceeding must
have terminated in plaintiff’s favor, termination of the prosecution must
be in such a manner that it cannot be revived.” (emphasis added)); id. at
§ 61 (“The inquiry into whether a termination of a criminal prosecution
was favorable to the defendant focuses on whether it was dispositive as
to the defendant’s innocence of the crime for which the defendant was
charged.”). Cf. id. § 63 (“A criminal proceeding in which the accused
was originally convicted, but the conviction was reversed on appeal
following a determination that the evidence on which the conviction was
based had been obtained pursuant to a faulty search warrant, does not
result in a favorable termination for the accused and thus cannot provide
a basis for a malicious prosecution claim.”).
26               ROBERTS V. CITY OF FAIRBANKS

plaintiff could succeed in a malicious-prosecution action, as
the dissent would apparently hold. 13

                                    D

    The dissent accuses us of creating “a fifth method of
favorable termination” in addition to Heck’s four—namely,
vacatur-by-settlement. Post, at 47. Not so. We merely hold
that where, as here, a § 1983 plaintiff’s conviction is vacated
by a state court, that conviction has been “declared invalid
by a state tribunal authorized to make such determination,”
Heck, 512 U.S. at 487 (the third exception to Heck’s bar),
and that Heck is therefore no bar to the suit.

    The dissent also claims that our holding today would
allow “criminal defendants who served their sentences” to
“subsequently bring § 1983 actions to establish that they had
been wrongfully convicted.” Post, at 46. That, too, is
incorrect. That reasoning conflates “conviction” and
“incarceration.”     A person who is released from
incarceration after fully executing his sentence would be

     13
       The dissent cites language from Manuel v. City of Joliet, Ill.,
137 S. Ct. 911 (2017), arguing that it appears to undermine the
contention that “favorable termination” is not coterminous in the
malicious-prosecution and Heck contexts. Post, at 38. Explaining its
reliance on common-law principles “[i]n defining the contours and
prerequisites of a § 1983 claim,” the Supreme Court in Manuel cited
Heck in support of the assertion that “[s]ometimes, th[e] review of
common law will lead a court to adopt wholesale the rules that would
apply in a suit involving the most analogous tort.” 137 S. Ct. at 920–21.
However, regardless of what the Court meant by its “adopt wholesale”
statement, it cannot be interpreted in a manner inconsistent with the plain
language of Heck itself. As described above, interpreting this passing
statement to mean that the favorable-termination requirement is
coextensive in both the malicious-prosecution and Heck contexts
contravenes a plain reading of Heck and our circuit’s case law.
                ROBERTS V. CITY OF FAIRBANKS                         27

barred from bringing a § 1983 suit based on that conviction
because the conviction remains “extant.” 14 Wallace,
549 U.S. at 393. Indeed, as noted above, our holding adheres
to Heck’s requirement that a conviction be invalidated in
accordance with one of the four methods set out by the
Court.

                                   E

    The dissent’s effort to demonstrate the continuing
validity of Plaintiffs’ vacated convictions is based on an
incomplete analysis of the Settlement Agreement’s
stipulations. The dissent claims that the convictions are still
valid, even post-vacatur, based in part on the following
stipulation agreed to by the parties: “[T]he original jury
verdicts and judgments of conviction were properly and
validly entered based on proof beyond a reasonable doubt.”
That conclusion is problematic for two reasons.

    First, Plaintiffs allege the stipulations were the product
of an unenforceable agreement to waive their civil-rights
claims. The adjudication of that claim may well result in a
very different outcome on remand. Second, even if the
Settlement Agreement were deemed enforceable, reading
this stipulation to mean that Plaintiffs agree the convictions
are currently valid ignores the very next stipulation, which

     14
        The dissent accuses us of “play[ing] word games” in reaching this
conclusion. Post, at 46 n.6. However, the dissent provides no authority
for its assertion that, based on our reasoning, “a court could conclude
that a defendant who has fully served a sentence has satisfied or
discharged the convictions so that it is no longer ‘outstanding’ or
‘extant’” for purposes of Heck. Id. Nor can it. We explicitly disclaim
that characterization of our opinion: under our holding today, a person
who has served his sentence but whose conviction remains unimpeached
is barred by Heck from bringing a § 1983 suit based on that conviction.
28             ROBERTS V. CITY OF FAIRBANKS

acknowledges that new evidence now undermines the
validity of the original verdicts and “requires vacation of the
conviction or sentence in the interest of justice” pursuant to
Alaska Statute § 12.72.010(4) (emphasis added). That
stipulation declares that “[t]he parties stipulate and agree that
there is sufficient new evidence of material facts that a new
trial could be ordered under AS § 12.72.010(4).” Id. Indeed,
these stipulations reflect the parties’ agreement that (1) the
original verdicts were properly and validly entered in 1997,
and (2) now, a new trial could be ordered based on new
evidence calling into question whether Plaintiffs were
actually the killers, thus requiring vacatur of their once-valid
convictions.

    While we do not make a finding regarding the newly
introduced evidence, we do note that the dissent’s
conclusion that the vacated convictions are still valid is
undermined by its failure to look at the actual result of the
Settlement Agreement. There are no charges pending
against any of these men four years after the Settlement
Agreement was entered into. Nor do they stand convicted of
anything.

                               IV

    Defendants argue, in the alternative, that joinder
requirements under Federal Rule of Civil Procedure 19 bar
Plaintiffs’ § 1983 claims because the State of Alaska is an
indispensable party to this litigation. We reject this
argument.

    In deciding whether a party is indispensable, we “must
determine: (1) whether an absent party is necessary to the
action; and then, (2) if the party is necessary, but cannot be
joined, whether the party is indispensable such that in equity
and good conscience the suit should be dismissed.”
               ROBERTS V. CITY OF FAIRBANKS                   29

Dawavendewa v. Salt River Project Agr. Imp. & Power
Dist., 276 F.3d 1150, 1155 (9th Cir. 2002) (internal
quotation marks and citation omitted). Under Rule 19, a
party is required to be joined, if feasible, when:

        (A) in that person’s absence, the court cannot accord
           complete relief among existing parties; or

        (B) that person claims an interest relating to the
            subject of the action and is so situated that
            disposing of the action in the person’s absence
            may:

            (i) as a practical matter impair or impede the
            person’s ability to protect the interest; or

            (ii) leave an existing party subject to a substantial
            risk of incurring double, multiple, or otherwise
            inconsistent obligations because of the interest.

Fed. R. Civ. P. 19.

     We have held that joinder is “contingent . . . upon an
initial requirement that the absent party claim a legally
protected interest relating to the subject matter of the action.”
United States v. Bowen, 172 F.3d 682, 689 (9th Cir. 1999)
(quoting Northrop Corp. v. McDonnell Douglas Corp.,
705 F.2d 1030, 1043 (9th Cir. 1983)). In Thomas, Head &
Greisen Employees Trust v. Buster, we similarly held that an
entity was not an indispensable party to an action because
“[it] had not claimed an interest in [the defendant’s] limited
partnership . . . at the time of the default judgment and the
district court was able to craft appropriate and meaningful
relief in the absence of [the entity] which . . . did not
prejudice [its] property rights.” 95 F.3d 1449, 1460 n.18 (9th
Cir. 1996).
30            ROBERTS V. CITY OF FAIRBANKS

    The State of Alaska is not a necessary party here because
it has not claimed any interest relating to the subject of this
action, as confirmed by Defendants. Plaintiffs may obtain
complete relief through their § 1983 claims against the City
of Fairbanks and its officers—the alleged perpetrators of the
§ 1983 violations—if their action is successful. We
therefore hold that the State is not an indispensable party
under Rule 19 and reject Defendants’ alternate ground for
affirmance.

                              V

    Defendants also argue that Plaintiffs’ § 1983 claims may
be dismissed based on the equitable doctrine of judicial
estoppel, and that Plaintiffs failed to state claims for
malicious prosecution, even if not barred by Heck, because
they did not allege a favorable termination. Because these
arguments turn in part on the enforceability of the Settlement
Agreement—an issue not passed upon below—we will
allow the district court to address these issues in the first
instance. See Town of Newton v. Rumery, 480 U.S. 386,
392–93 (1987); Lynch v. City of Alhambra, 880 F.2d 1122,
1125 (9th Cir. 1989).

    In Rumery, the Supreme Court considered “whether a
court properly may enforce an agreement in which a criminal
defendant releases his right to file an action under 42 U.S.C.
§ 1983 in return for a prosecutor’s dismissal of pending
criminal charges.” 480 U.S. at 389. Rumery filed § 1983
claims against the town and its officers, alleging that they
had “violated his constitutional rights by arresting him,
defaming him, and imprisoning him falsely.” Id. at 391. But
before bringing suit, Rumery had agreed to release any
claims he might have against the town and its officials to
obtain the dismissal of criminal charges that had been
brought against him. Id. at 390–91. In evaluating whether
                 ROBERTS V. CITY OF FAIRBANKS                          31

Rumery was free to bring § 1983 claims despite the release-
dismissal agreement, the Court, in a plurality decision, held
that the enforceability of the agreement must first be
established. Id. at 392–93. The Court adopted a case-by-
case approach to determine (1) whether the agreement was
entered into voluntarily, and (2) whether enforcement is in
the public interest. Id. at 398 (“[W]e conclude that this
agreement was voluntary, that there is no evidence of
prosecutorial misconduct, and that enforcement of this
agreement would not adversely affect the relevant public
interests.”); see also id. at 399–401 (O’Connor, J.,
concurring). We later concluded in Lynch that “Rumery
requires the district court to hear the evidence and evaluate
whether the public interest is served by enforcement of the
release-dismissal agreement.” 880 F.2d at 1128. 15

    Here, the district court dismissed Plaintiffs’ claims at the
pleading stage and did not hear any evidence to determine
whether Plaintiffs voluntarily entered into the Settlement
Agreement or whether enforcement is in the public
interest. 16 Therefore it is premature for us to address

    15
        Following Rumery, we acknowledged that “the availability of
release-dismissal agreements creates a risk that public officials will use
the threat of criminal prosecution to suppress civil rights claims.” Lynch,
880 F.2d at 1127 (citing Rumery, 480 U.S. at 394). Given the facts
before us in Lynch, we found that “[t]he limited empirical evidence
available suggests that this may be the case.” Id. We do not address that
question here since the district court did not conduct a Rumery hearing.

    16
        Generally, the burden of pleading and proving the enforceability
of a release-dismissal agreement would fall to defendants. Perry v. Merit
Sys. Prot. Bd., 137 S. Ct. 1975, 1986 n.9 (2017) (“In civil litigation, a
release is an affirmative defense to a plaintiff’s claim for relief, not
something the plaintiff must anticipate and negate in her pleading.”
(citing Fed. R. Civ. P. 8(c)(1) and Rumery, 480 U.S. at 391)); see also
Lynch, 880 F.2d at 1125 (“Justice O’Connor, agreeing with the
32               ROBERTS V. CITY OF FAIRBANKS

whether the Settlement Agreement is enforceable, and we
leave that issue for the district court.

                                   VI

    We hold that the district court erred in applying the Heck
rule to dismiss Plaintiffs’ claims. We therefore vacate the
district court’s dismissal order and remand for further
proceedings consistent with this opinion.

    REVERSED, VACATED, and REMANDED with
instructions.



IKUTA, Circuit Judge, dissenting:

    The Supreme Court could not have been more clear:
“[T]o recover damages for allegedly unconstitutional
conviction or imprisonment,” a § 1983 plaintiff “must prove
that the conviction or sentence has been [1] reversed on
direct appeal, [2] expunged by executive order, [3] declared
invalid by a state tribunal authorized to make such
determination, or [4] called into question by a federal court’s

plurality’s result, wrote separately to emphasize that the burden of
establishing the enforceability of such agreements is borne by the civil
rights defendants.” (emphasis added)); id. at 1126 n.5 (“We note,
therefore, that a majority of the Supreme Court in Rumery expressed the
view that the burden of establishing that a release-dismissal agreement
does not violate public policy rests with the civil-rights defendant
seeking to invoke the agreement as a defense.”). Thus, to win on their
judicial estoppel defense, Defendants have the burden of proving the
enforceability of the Settlement Agreement. However, insofar as
Plaintiffs have alleged the unenforceability of the Settlement Agreement
to meet elements of their claims for relief, they would bear the burden of
proof on enforceability.
              ROBERTS V. CITY OF FAIRBANKS                  33

issuance of a writ of habeas corpus.” Heck v. Humphrey,
512 U.S. 477, 486–87 (1994) (emphasis added). In other
words, to claim tort damages for a wrongful conviction, the
plaintiff must prove that a court (or the executive)
recognized that the conviction was invalid and wiped out the
conviction. In holding that the plaintiffs here can bring
§ 1983 claims without meeting this requirement, the
majority squarely contradicts Supreme Court precedent. I
therefore dissent.

                               I

    A brief description of some key facts is in order. The
plaintiffs were all tried and convicted of murder in 1997.
Several years later, they filed petitions for post-conviction
relief based on new evidence. The majority recounts in
detail the striking and persuasive evidence adduced by the
plaintiffs at a post-conviction hearing—but this evidence is
irrelevant, as there was no judicial determination that the
facts recited by the majority are true or the witnesses
credible. All we know is that the plaintiffs chose not to wait
for the state court’s ruling on their petitions, but instead
entered into settlement agreements with the state and the
City of Fairbanks that left the truth about their underlying
convictions undecided. In fact, the settlement agreements
expressly state they do not address issues related to the
underlying convictions: the parties agreed that they had “not
reached agreement as to . . . actual guilt or innocence.”
Rather than resolve the merits of their prior convictions,
plaintiffs (all of whom were represented by counsel) agreed
to withdraw their petitions for post-conviction relief, as well
as all claims of actual innocence and all allegations of police
and prosecutorial misconduct. The plaintiffs also agreed to
release the state and the City of Fairbanks (and their
34            ROBERTS V. CITY OF FAIRBANKS

employees) from all liability arising out of or related to their
arrests and convictions.

    As required by the settlement agreements, the parties
filed a stipulation with the state court that went even further
than the settlement agreements. Rather than describe the
prior convictions as wrongful or invalid, the parties agreed
that “the original jury verdicts and judgments of conviction
were properly and validly entered based on proof beyond a
reasonable doubt.” The parties then agreed that the state
court could vacate the judgment of conviction and order a
new trial. Upon the court doing so, the state would dismiss
the indictments. The court would then be obliged to order
the plaintiffs’ release.

    Faced with the settlement agreements and the
stipulation, the state court made clear that it was not opining
on the merits of the underlying convictions or the terms of
the settlements. At a hearing on December 17, 2015, a
relative of the murder victim protested the settlements. In
response, the state court explained that the attorney general
was exercising his lawful authority to settle civil litigation,
and the court had “no power of review or approval.” “The
duty of this Court, once that inherent authority is exercised,
using the structures of the law, is to ministerially sign the
orders necessary to [e]ffect the decision of the attorney
general.”      Because the settlement agreements were
procedurally proper, the state court explained, it was
required to enter the “appropriate order” to vacate the
plaintiffs’ convictions. And once the plaintiffs’ convictions
were vacated, the state attorney general had the authority to
dismiss the indictments. Under state law, the court had no
power to block this exercise of authority; rather, the court
“would violate the separation of powers in any attempt to
stop him.” As the court summed up, “[t]hat’s a long way of
              ROBERTS V. CITY OF FAIRBANKS                   35

saying that this is a lawful settlement conducted under lawful
procedure, under the inherent authority of the attorney
general, over which this Court has no authority to . . . review
or to criticize.” The same day, the state court vacated the
plaintiffs’ judgments of conviction and commitment.

    About two years later, on December 7, 2017, the
plaintiffs filed a complaint against the City of Fairbanks and
the police officers who were involved in obtaining the
plaintiffs’ convictions. The plaintiffs asked the court to
order that the settlement agreements were unenforceable,
which would relieve them from their agreements that their
convictions were properly and validly entered as well as
relieving them from their broad releases of liability. But the
plaintiffs did not request vacatur of the stipulation, which
was the basis for the dismissal of their indictments and
vacatur of their convictions. Rather, the plaintiffs alleged
that the dismissal of their indictments and vacatur of their
convictions were “valid and cannot be undone even though
the release cannot be enforced against” them. Thus,
realizing the benefits of the stipulation while ignoring the
obligations imposed by the settlement agreement, the
plaintiffs alleged that the officers’ “unlawful, intentional,
willful, deliberately indifferent, reckless, and bad-faith acts
and omissions caused [the plaintiffs] to be falsely arrested
and imprisoned, unfairly tried, wrongfully convicted, and
forced to serve more than 18 years imprisoned.” The district
court dismissed the complaint as barred by Heck, and this
appeal followed.

                               II

    Given that the plaintiffs did not wait for a judicial ruling
that their prior convictions were invalid, but instead chose to
vacate those convictions by means of settlements, the
question arises whether the plaintiffs can nevertheless bring
36            ROBERTS V. CITY OF FAIRBANKS

constitutional tort claims for wrongful conviction under
§ 1983. The answer under Heck v. Humphrey, 512 U.S. 477
(1994), is no.

                              A

    Heck v. Humphrey held that § 1983 “creates a species of
tort liability,” and that “over the centuries the common law
of torts has developed a set of rules to implement the
principle that a person should be compensated fairly for
injuries caused by the violation of his legal rights.” Id.
at 483 (quoting Carey v. Piphus, 435 U.S. 247, 257–58
(1978)). Accordingly, the Court held that the common law
rules “defining the elements of damages and the
prerequisites for their recovery[] provide the appropriate
starting point for the inquiry under § 1983.” Id. (quoting
Carey, 435 U.S. at 257–58).

    In Heck, the petitioner had filed a suit in district court
under § 1983 against two state prosecutors and a police
investigator, alleging that they had engaged in an illegal
investigation leading to the petitioner’s conviction. Id.
at 478–79. The petitioner’s complaint sought compensatory
and punitive monetary damages. Id. at 479. Heck concluded
that “[t]he common-law cause of action for malicious
prosecution provides the closest analogy” to the petitioner’s
claims for damages because “it permits damages for
confinement imposed pursuant to legal process.” Id. at 484.

    Having identified malicious prosecution as the most
analogous common-law cause of action for a claim of
wrongful conviction, the Court focused on one of its key
elements: “One element that must be alleged and proved in
a malicious prosecution action is termination of the prior
criminal proceeding in favor of the accused.” Id. This
element of favorable termination “avoids parallel litigation
                 ROBERTS V. CITY OF FAIRBANKS                          37

over the issues of probable cause and guilt” and “precludes
the possibility of the claimant succeeding in the tort action
after having been convicted in the underlying criminal
prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising out
of the same or identical transaction.” Id. (cleaned up).
Accordingly, Heck concluded that “the hoary principle that
civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments,” which has
“always applied to actions for malicious prosecution,” is
equally applicable to § 1983 damages actions that require
“the plaintiff to prove the unlawfulness of his conviction or
confinement.” Id. at 486. In other words, if a plaintiff had
been convicted, and that conviction had not been invalidated
on appeal or through procedures for post-conviction relief,
the plaintiff cannot prevail in a civil tort suit that requires the
plaintiff to prove that the prior conviction or sentence was
invalid. See id. 1

    Since Heck, the Court has reaffirmed the requirement
that a plaintiff bringing a § 1983 malicious prosecution
action must establish termination of the prior conviction in
his favor. Indeed, just last year, the Court noted that “Heck
explains why favorable termination is both relevant and
required for a claim analogous to malicious prosecution that
would impugn a conviction, and that rationale extends to an
ongoing prosecution as well: The alternative would

    1
       Heck also stated that a § 1983 action cannot be used as a substitute
for a petition for writ of habeas corpus, 512 U.S. at 480, although under
Heck’s reasoning, the habeas statute and § 1983 “were never on a
collision course in the first place because, like the common-law tort of
malicious prosecution, § 1983 requires (and, presumably, has always
required) plaintiffs seeking damages for unconstitutional conviction or
confinement to show the favorable termination of the underlying
proceeding,” id. at 492 (Souter, J., concurring).
38            ROBERTS V. CITY OF FAIRBANKS

impermissibly risk parallel litigation and conflicting
judgments.” McDonough v. Smith, 139 S. Ct. 2149, 2160
(2019) (emphasis added); see also Manuel v. City of Joliet,
Ill., 137 S. Ct. 911, 920–21 (2017) (“Sometimes, . . . review
of common law will lead a court to adopt wholesale the rules
that would apply in a suit involving the most analogous tort.
See . . . Heck v. Humphrey.”); Huftile v. Miccio-Fonseca,
410 F.3d 1136, 1138–39 (9th Cir. 2005) (discussing Heck’s
“favorable termination rule”).

    After adopting malicious prosecution’s favorable-
termination rule, Heck articulated what satisfied the
necessary element of “termination of the prior criminal
proceeding in favor of the accused.” 512 U.S. at 484.
According to Heck, “to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been [1] reversed on
direct appeal, [2] expunged by executive order, [3] declared
invalid by a state tribunal authorized to make such
determination, or [4] called into question by a federal court’s
issuance of a writ of habeas corpus.” Id. at 486–87
(emphasis added); see also id. at 489 (“Even a prisoner who
has fully exhausted available state remedies has no cause of
action under § 1983 unless and until the conviction or
sentence is reversed, expunged, invalidated, or impugned by
the grant of a writ of habeas corpus.”).

    Eliminating any doubt that a plaintiff must show one of
these four terminations, Heck stated that “[a] claim for
damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under
§ 1983.” Id. at 487 (emphasis added). If a plaintiff cannot
make the necessary showing, the plaintiff cannot bring a
                 ROBERTS V. CITY OF FAIRBANKS                          39

§ 1983 malicious prosecution action that requires “the
plaintiff to prove the unlawfulness of his conviction or
confinement.” Id. at 486–87. Instead, the plaintiff can bring
only those § 1983 claims that do not “demonstrate the
invalidity of any outstanding criminal judgment against the
plaintiff,” such as “a suit for damages attributable to an
allegedly unreasonable search,” because “such a § 1983
action, even if successful, would not necessarily imply that
the plaintiff’s conviction was unlawful.” Id. at 487 & n 7. 2

                                    B

    As Heck makes plain, the plaintiffs here are precluded
from bringing a § 1983 malicious prosecution action
because their underlying convictions were not invalidated
but were instead vacated pursuant to settlement agreements.
The plaintiffs expressly agreed that they had “not reached
agreement as to . . . actual guilt or innocence” and stipulated
that “the original jury verdicts and judgments of conviction
were properly and validly entered based on proof beyond a


    2
       As we have explained, “under certain circumstances a plaintiff’s
§ 1983 claim is not Heck-barred despite the existence of an outstanding
criminal conviction against him.” Jackson v. Barnes, 749 F.3d 755, 760
(9th Cir. 2014). For example, “plaintiffs who had been convicted for
driving under the influence of alcohol could challenge the way in which
their blood had been drawn when they were arrested” because their
convictions were based on their pleas, “not [on] verdicts obtained with
supposedly illegal evidence.” Id. (quoting Ove v. Gwinn, 264 F.3d 817,
823 (9th Cir. 2001)). Similarly, “a plaintiff convicted of resisting arrest
could bring a § 1983 action for excessive use of force if the excessive
force was employed against him after he had engaged in the conduct that
constituted the basis for his conviction, because in such a case success
on his § 1983 action would not imply the invalidity of the conviction.”
Id. (citing Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en
banc)).
40               ROBERTS V. CITY OF FAIRBANKS

reasonable doubt.” 3 No court has ruled on the validity of the
plaintiffs’ prior convictions or made a finding as to the
plaintiffs’ guilt or innocence. Indeed, the state court
explained in great detail that it had no power to review,
approve, or block the attorney general’s discretionary
decision to vacate the convictions and dismiss the
indictments. As the state court summed it up, “this is a
lawful settlement conducted under lawful procedure, under
the inherent authority of the attorney general, over which this
Court has no authority to . . . review or to criticize.” Far
from declaring the plaintiffs’ convictions invalid, the state
court’s ruling was merely the ministerial recognition of
agreements between the plaintiffs and the state.



     3
       The majority argues that it is improper to consider the parties’
stipulation, because the plaintiffs allege that the “stipulations were the
product of an unenforceable agreement to waive their civil-rights
claims.” Maj. at 27. The majority is mistaken; this allegation appears
nowhere in the record. Rather, the record establishes that the plaintiffs
rely on the validity of the stipulation by alleging that “[t]he dismissal of
the indictment[s] and vacation of [their] conviction[s]” are “valid and
cannot be undone even though the release[s]” are unenforceable.
Because the dismissal and vacatur are based on the stipulation, the
continued existence of the stipulation is vital to the plaintiffs’ claims.

     Alternatively, the majority argues that the stipulation that plaintiffs’
convictions were valid does not mean that plaintiffs agreed their
convictions are currently valid, because the parties also stipulated that
“there [was] sufficient new evidence of material facts that a new trial
could be ordered under AS 12.72.010(4).” Maj. at 27–28. This is a red
herring. As the majority acknowledges, the only relevant issue for Heck
purposes is whether the plaintiffs’ convictions were “declared invalid by
a state tribunal authorized to make such determination.” Maj. at 16. The
state court did not do so here, and the parties’ agreement that the
convictions could be vacated for a new trial is merely a vacatur by
agreement.
              ROBERTS V. CITY OF FAIRBANKS                   41

    Because the plaintiffs’ convictions were not “declared
invalid by a state tribunal authorized to make such
determination,” nor reversed on direct appeal, expunged by
executive order, or called into question by a federal court’s
issuance of a writ of habeas corpus, Heck, 512 U.S. at 486–
87, the plaintiffs are unable to show that their criminal
proceedings were terminated in their favor. They are
therefore barred from using a civil action to establish they
were wrongly convicted. Thus, the plaintiffs’ claim for
damages stemming from their allegedly wrongful
convictions are “not cognizable under § 1983.” Id. at 487.
Heck’s clear holding resolves this appeal.

                               C

    The majority raises two arguments to support its
assertion that a conviction that is vacated by settlement is the
same as a conviction that is “declared invalid by a state
tribunal,” 512 U.S. at 487, and therefore qualifies as a
favorable termination for Heck purposes, Maj. at 16–22.
Neither has merit.

    First, the majority asserts that there is no difference
between vacatur of a conviction by settlement and a
declaration that a conviction is invalid because a dictionary
defines “vacate” to mean “invalidate.” Maj. at 16–17. But
this theory is contrary to Heck. Heck refers to convictions
that are “declared invalid by a state tribunal authorized to
make such determination,” 512 U.S. at 487, and a vacatur by
agreement of the parties does not constitute a state court’s
declaration that the conviction is invalid. While the word
“vacate” could mean “invalidate” in certain contexts, it does
not carry that meaning in this context. “In law as in life . . .
the same words, placed in different contexts, sometimes
mean different things.” Yates v. United States, 135 S. Ct.
1074, 1082 (2015). Accordingly, there is no fair way to read
42            ROBERTS V. CITY OF FAIRBANKS

Heck’s reference to a conviction or sentence that is “declared
invalid by a state tribunal authorized to make such
determination,” 512 U.S. at 487, to mean a conviction or
sentence that is vacated pursuant to a settlement agreement.

    Second, the majority contends that two Ninth Circuit
cases support the position that vacatur by settlement is the
same as a declaration of invalidity. See Rosales-Martinez v.
Palmer, 753 F.3d 890 (9th Cir. 2014); Taylor v. Cty. of Pima,
913 F.3d 930 (9th Cir. 2019). But the majority’s reliance is
misplaced because neither holds that a vacatur by settlement
qualifies as a favorable termination under Heck.

     Rosales-Martinez v. Palmer, 753 F.3d 890 (9th Cir.
2014), does not help the majority because instead of
addressing whether a vacatur by settlement constituted a
favorable termination, we remanded so the district court
could address the viability of the plaintiff’s complaint in the
first instance.

    Rosales-Martinez considered a plaintiff’s § 1983
complaint, which alleged that the state court had granted his
state habeas petition and ordered his release from prison. Id.
at 892. On appeal, the government filed a last-minute
motion for judicial notice of several documents showing that
this was incorrect; in fact, the parties had agreed to vacate
the plaintiff’s conviction on cumulative error grounds, and
in return, the plaintiff agreed to plead guilty to one offense.
Id. at 893. We took judicial notice of the documents
proffered by the government, and noted the complexity they
added to the case. See id. at 894–95. After considering the
potential impact of these documents, we ultimately
concluded that “[t]he viability and scope” of the plaintiff’s
“§ 1983 claim, in relation to Heck v. Humphrey . . . should
be evaluated by the district judge on remand.” Id. at 899.
We explained that “[a] court of appeals should not rule on
              ROBERTS V. CITY OF FAIRBANKS                   43

the significance of [the plaintiff’s] plea in the absence of a
complete record and the comments of both sides, plaintiff
and defendants, and without the benefit of the district court’s
analysis.” Id.

    Contrary to the majority, our decision in Rosales-
Martinez to reverse the district court was not based on the
finding that Heck permits a § 1983 action whenever a
conviction has been vacated pursuant to a settlement
agreement. Maj. at 20–21. Instead, Rosales-Martinez held
only that the district court erred in dismissing the plaintiff’s
claims as untimely, because the claims—to the extent they
were viable at all—could not have accrued until the Nevada
court vacated the underlying convictions. 753 F.3d at 896.
Because we refrained from resolving the question whether
the plaintiff’s claims were viable, the district court, on
remand, felt obliged to refer the case to a pro-bono program
“for the purpose of identifying counsel to assist Plaintiff with
addressing the threshold question of whether his § 1983
claims are barred under Heck v. Humphrey.” Martinez v.
Palmer, No. 3:10-cv-00748-MMD-VPC, 2015 WL
5554147, at *5 (D. Nev. Sep. 21, 2015). Given our failure
to rule on the viability of plaintiff’s § 1983 claims, the
majority errs in relying on Rosales-Martinez for any
authoritative ruling on this issue.

    Nor does Taylor v. County of Pima, 913 F.3d 930 (9th
Cir. 2019), support the majority’s position, because that case
ruled on an entirely different issue. In Taylor, a plaintiff who
had been convicted of 28 counts of felony murder for starting
a fire at a Tucson hotel brought a state post-conviction
petition, raising a new theory based on an affidavit from an
expert: the hotel fire was not caused by arson. Id. at 932.
In light of this new evidence, the government and the
plaintiff entered an agreement to vacate the original
44               ROBERTS V. CITY OF FAIRBANKS

conviction and replace it with a new conviction, and the state
court resentenced the plaintiff to time served. Id. The
plaintiff then brought a § 1983 action against the
government based on alleged unconstitutional practices in
securing the original conviction. Id.

    We concluded that because all of the time that plaintiff
served in prison was supported by a valid replacement
conviction, he could not recover incarceration-related
damages. Id. at 935. Although Taylor stated in passing that
a plaintiff in a § 1983 action could challenge a conviction
that had been “vacated by [a] state court,” this statement was
not necessary to its holding, because the resolution of the
case was based on the determination that the plaintiff’s valid
replacement conviction barred his § 1983 claim. Id. 4
Accordingly, Taylor offered no reasoning to support its
offhand comment, and it is inconsistent with Heck; such
statements “made in passing, without analysis, are not
binding precedent.” In re Magnacom Wireless, LLC,
503 F.3d 984, 993–94 (9th Cir. 2007). 5


     4
      Although the majority refers to “Taylor’s understanding that a
vacated conviction was ‘declared invalid’ under Heck,” Maj. at 19
(emphasis added), the majority cannot—and therefore does not—point
to any statement in Taylor to that effect; indeed, the words “declared
invalid” never even appear in the opinion.
     5
       The majority argues that Taylor’s comment that Heck does not
apply when a conviction is “vacated by a state court” was not made in
passing, because we later said that it was “[c]ritica[l]” that the time
Taylor served in prison was supported by a new conviction. Maj. at 19.
Far from supporting the majority’s position, this fact undermines it. It
was “[c]ritica[l]” that a new conviction supported Taylor’s entire period
of incarceration because, at that point, it made no difference that Taylor’s
earlier conviction was “declared invalid”: “even if Taylor proves
constitutional violations concerning the 1972 conviction, he cannot
                ROBERTS V. CITY OF FAIRBANKS                         45

    In sum, the plaintiffs’ convictions were not “declared
invalid by a state tribunal.” Heck, 512 U.S. at 487. Rather,
the convictions were vacated pursuant to settlement
agreements, such that the “criminal judgment[s]” are still
“outstanding,” precluding the plaintiffs’ claims for relief. Id.
at 486–87. Neither Rosales Martinez nor Taylor are to the
contrary.    Therefore, the plaintiffs cannot make the
necessary showing to bring their § 1983 malicious
prosecution action.

                                   D

    Although the plaintiffs fail to show that their vacated
convictions were favorably terminated in one of the four
methods specified by Heck, the majority suggests that the
plaintiffs can sidestep Heck to bring their § 1983 action.

    First, according to the majority, Heck does not apply to
a vacated conviction because the conviction is no longer
“outstanding.” 512 U.S. at 486–87; Maj. at 16. To support
this theory, the majority points to Heck’s statement that “if
the district court determines that the plaintiff’s action, even
if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in the absence of some
other bar to the suit.” 512 U.S. at 487; Maj. at 16. According
to the majority, this means that if a criminal judgment is no
longer outstanding, i.e., it has been discharged or satisfied in
some way, the criminal defendants may bring a § 1983

establish that the 1972 conviction caused any incarceration-related
damages.” Id. at 935. Thus, the assumption that Taylor’s earlier
conviction was “declared invalid” was “merely a prelude to another legal
issue [i.e., the effect of Taylor’s new conviction] that command[ed] the
panel’s full attention.” United States v. Johnson, 256 F.3d 895, 915 (9th
Cir. 2001).
46               ROBERTS V. CITY OF FAIRBANKS

action without showing that the judgment was invalidated in
one of the four ways identified in Heck. See Maj. at 16.

    On its face, this conclusion is contrary to Heck. First,
Heck precludes plaintiffs from bringing a § 1983 action
unless they have shown that their conviction was invalidated
by one of the four specific means. 512 U.S. at 486–87. The
majority, by contrast, allows plaintiffs to bring a § 1983
action if their conviction was discharged or satisfied by any
means. 6 Second, Heck explains that one purpose of the
favorable-termination rule is to avoid the risk that a criminal
conviction could be deemed valid in the criminal context and
invalid in the civil context. See id. at 484–85. Under the
majority’s rule, this exact scenario could arise. If a
conviction merely needs to be discharged or satisfied by
some means, then criminal defendants who served their
sentences could subsequently bring § 1983 actions to
establish that they had been wrongfully convicted. And here
the plaintiffs are attempting to invalidate their criminal
judgments in a civil proceeding on the ground that they were
“unfairly tried” and “wrongfully convicted,” even though
their criminal judgments were never invalidated in a criminal
proceeding.

    Of course, Heck did not hold that plaintiffs could use
civil actions to challenge convictions that had been
discharged by any means. Read in context, it is clear that

     6
       The majority plays word games by claiming that a vacated
conviction, but not a conviction that has been satisfied by service of the
sentence, can be the basis for a § 1983 malicious prosecution action.
Maj. at 27 & n.14. No binding precedent forecloses a court from
concluding that a defendant who has fully served a sentence has satisfied
or discharged the conviction so that it is no longer “outstanding” or
“extant”; like a vacated conviction, a satisfied conviction is a historical
fact but not a current condition.
                 ROBERTS V. CITY OF FAIRBANKS                         47

Heck’s reference to “outstanding criminal judgments” is a
reference to judgments that have not been invalidated by one
of the four methods of favorable termination listed in Heck.
Id. at 487. This common-sense reading is supported by the
Court’s subsequent use of the phrase “outstanding criminal
judgment” as a synonym for a judgment invalidated by one
of these four means: “[T]he Heck rule comes into play only
when there exists a conviction or sentence that has not been
. . . invalidated, that is to say, an outstanding criminal
judgment.” McDonough, 139 S. Ct. at 2160 (internal
quotation marks omitted) (quoting Wallace v. Kato, 549 U.S.
384, 393 (2007)). 7 Because the majority’s conclusion that a
plaintiff can bring a § 1983 malicious prosecution action so
long as the underlying criminal judgment was discharged by
any means is contrary to Heck, the majority’s interpretation
must be rejected.

     Second, by claiming that vacatur by settlement qualifies
as a favorable termination, even though it is not on Heck’s
list of four qualifying methods of termination, the majority
implicitly holds that vacatur by settlement is a fifth method
of favorable termination. Maj. at 22–23. In other words, the
majority asserts that a plaintiff can bring a § 1983 malicious
prosecution claim to “demonstrate the invalidity” of a
criminal judgment that has been vacated by agreement of the
parties—even if the underlying conviction has not been
reversed, declared invalid by a state court, expunged by

    7
       The majority implies that it can ignore this definition of
“outstanding criminal judgment,” Maj. at 22 n.10, because the Supreme
Court has stated that, in light of Heck, the statute of limitations for
bringing a § 1983 claim does not accrue “until the setting aside of an
extant criminal conviction,” Wallace, 549 U.S. at 393. But the context
makes clear that this statement merely echoes Heck’s rule that a plaintiff
cannot bring a § 1983 action until a conviction has been favorably
terminated in one of the four ways listed in Heck.
48               ROBERTS V. CITY OF FAIRBANKS

executive action, or called into question by a grant of habeas
corpus. 512 U.S. at 486–87. This approach also fails.

    As an initial matter, Heck makes clear that plaintiffs
“must” show that their convictions were terminated in one
of four specific ways. 512 U.S. at 486–87. Vacatur by
settlement is not on the list, and the list is exclusive: Heck
does not permit other, unidentified ways of satisfying the
favorable-termination requirement. See id. Thus, any
attempt to recognize additional means of favorable
termination is contrary to Supreme Court precedent. See id.

    Moreover, recognizing vacatur by settlement as another
method of favorable termination is contrary to Heck’s
reliance on the common-law cause of action for malicious
prosecution, which was the Court’s “starting point” for
determining the viability of a § 1983 claim. 512 U.S. at 483–
84 & n.4 (reiterating its “reliance on malicious prosecution’s
favorable termination requirement as illustrative of the
common-law principle barring tort plaintiffs from mounting
collateral attacks on their outstanding criminal
convictions”). The common law did not recognize vacatur
by settlement as a method of favorable termination: For over
a century, courts have recognized that a claim for malicious
prosecution does not lie if the prosecution was abandoned
based on a settlement or compromise. 8 The treatises are in

     8
     See, e.g., Erie R. Co. v. Reigherd, 166 F. 247, 250 (6th Cir. 1909)
(“A termination of a prosecution by nol. pros. by consent of the
defendant, or by a compromise, is such a termination as to leave no
foundation for denying that there was probable cause.”); Woodson v.
McLauglin, 239 S.W. 735, 736 (Ark. 1922) (“The testimony being
undisputed that a compromise was effected as a result of which the
prosecution out of which this litigation arises, was settled, a verdict was
properly directed in defendants’ favor.”); Bell Lumber Co. v. Graham,
219 P. 777, 778 (Colo. 1923) (“It is well settled that a compromise
                 ROBERTS V. CITY OF FAIRBANKS                            49

accord. 9 Thus, if a criminal proceeding “is withdrawn or the
prosecution abandoned pursuant to an agreement of
compromise with the accused,” the resolution “is not a
sufficient termination to meet the requirements of a cause of
action for malicious prosecution.” Restatement (Second) of
Torts § 660 (1977).        “Although the accused by his
acceptance of a compromise does not admit his guilt, the fact
of the compromise indicates that the question of his guilt or
innocence is left open.” Id. § 660 cmt. c. As such, by
entering into a settlement agreement and “[h]aving bought
peace,” an accused “may not thereafter assert that the




voluntarily made, or a settlement by the consent of the accused, defeats
a recovery in an action for malicious prosecution based upon a criminal
proceeding.”); Leonard v. George, 178 F.2d 312, 313 (4th Cir. 1949)
(“Notwithstanding the protests and declarations of plaintiff made at the
time, we think that he is unquestionably preluded by the settlement from
suing for malicious prosecution with respect to the case thus disposed
of.”); Ferreira v. Gray, Cary, Ware & Freidenrich, 87 Cal. App. 4th 409,
413 (2001) (“[Plaintiff] may have received a favorable determination at
one point in the proceeding . . . [but] the litigation terminated as a result
of a negotiated settlement in which both sides gave up something of
value to resolve the matter.”).

    9
       See, e.g., 8 Stuart M. Speiser et al., American Law of Torts § 28:5
n.2 (2019) (“[T]ermination resulting from negotiation, compromise,
settlement, or agreement is not considered a favorable termination.”); W.
Page Keeton et al., Prosser & Keeton on Torts § 119, at 875 (5th ed.
1984) (“[W]here charges are withdrawn or the prosecution is terminated
. . . by reason of a compromise into which [the accused] entered
voluntarily, there is no sufficient termination in favor of the accused.”
(footnotes omitted)); 54 C.J.S. Malicious Prosecution § 67 (“Where both
sides give up anything of value . . . to end litigation, a party cannot later
claim he or she received a favorable termination . . . to establish
malicious prosecution.”).
50              ROBERTS V. CITY OF FAIRBANKS

proceedings have terminated in his favor.”            Id. 10
Accordingly, vacatur by settlement is not—and never was—
recognized as a favorable termination at common law, so the
majority’s attempt to recognize it as a fifth means of
favorable termination under Heck squarely contradicts
Heck’s reliance on the “common law of torts.” 512 U.S.
at 483. 11

     In sum, the majority has no authority to recognize a new
means of favorable termination; Heck’s list is exclusive. See
id. at 486–87. And even if the majority could recognize new
means of favorable termination, vacatur by settlement is not


     10
        The majority points out that some courts construing the four
means of favorable termination in Heck do not require a showing that the
termination was inconsistent with guilt. Maj. at 23–26; see, e.g., Pardue
v. City of Saraland, Ala., No. CV 99-0799-CG-M, 2004 WL 7338484, at
*6 (S.D. Ala. Aug. 11, 2004) (rejecting argument that Heck requires a
“final determination in favor of the accused”). Other courts require such
a showing. See DiBlasio v. City of New York, 102 F.3d 654, 658 (2d Cir.
1996) (issuance of a writ of habeas corpus was not an “indication of
innocence,” and thus did not qualify as a favorable termination under
Heck, because plaintiff “conceded both the possession and sale of the
cocaine”). But this subsequent elaboration of Heck has no bearing on
the question whether Heck contemplated that vacatur by settlement—
unanimously rejected as a favorable termination at common law—
qualifies as a favorable termination for purposes of a § 1983 action.

     11
        The majority mischaracterizes the dissent by arguing that the
dissent would hold that a § 1983 plaintiff must be able to satisfy the
common law’s favorable-termination rule. Maj. at 25–26. The dissent
would merely hold that the plaintiffs’ convictions were not “declared
invalid by a state tribunal authorized to make such determination,” as
required by Heck, and so the plaintiffs’ § 1983 claims are “not
cognizable.” 512 U.S. at 487; see supra Part II.B. The dissent discusses
the common law only to show that the majority has no principled basis
for recognizing vacatur by settlement as a fifth method of favorable
termination under Heck.
             ROBERTS V. CITY OF FAIRBANKS                51

a favorable termination at common law, so there is no basis
for deeming it a method of favorable termination here.

                            ***

    Simply stated, the plaintiffs did not have their prior
convictions “declared invalid by a state tribunal authorized
to make such determination,” Heck, 512 U.S. at 487, but
instead reached an agreement with the state to vacate their
convictions. Regardless of the plaintiffs’ reasons for doing
so, they cannot now claim that the prior convictions were
terminated in a manner that provides a basis for bringing
§ 1983 malicious prosecution claims. In holding otherwise,
the majority casts aside the favorable-termination rule
articulated by Heck v. Humphrey and thus is inconsistent
with Supreme Court precedent. Accordingly, I dissent.
