No. 21-1058

JOHN DOE; CHARLES COE; JANE ROE; DEBORAH A. TAYLOR, as guardian for SCOTT STEPHEN JOHNSTONE, on behalf of themselves and all others similarly situated,

Plaintiffs, Appellees,

NEW HAMPSHIRE HOSPITAL ASSOCIATION; ALICE PECK DAY MEMORIAL HOSPITAL; ANDROSCOGGIN VALLEY HOSPITAL; CATHOLIC MEDICAL CENTER; CHESHIRE MEDICAL CENTER; COTTAGE HOSPITAL; ELLIOT HOSPITAL; FRISBIE MEMORIAL HOSPITAL; HCA HEALTH SERVICES OF NEW HAMPSHIRE, (Parkland Medical Center and Portsmouth Regional Hospital); HUGGINS HOSPITAL; LITTLETON HOSPITAL ASSOCIATION, (Littleton Regional Hospital); LRGHEALTHCARE, (Franklin Regional Hospital and Lakes Region General Hospital); MARY HITCHCOCK MEMORIAL HOSPITAL; MONADNOCK COMMUNITY HOSPITAL; NEW LONDON HOSPITAL; SPEARE MEMORIAL HOSPITAL; UPPER CONNECTICUT VALLEY HOSPITAL; VALLEY REGIONAL HOSPITAL; WEEKS MEDICAL CENTER,

Intervenor-Plaintiffs, Appellees,

v. LORI SHIBINETTE, in her official capacity as Commissioner of the N.H. Department of Health and Human Services,

Defendant, Appellant,

SOUTHERN NEW HAMPSHIRE MEDICAL CENTER; CONCORD HOSPITAL; ST. JOSEPH'S HOSPITAL, Nashua; MEMORIAL HOSPITAL, North Conway,

Defendants/Intervenor-Plaintiffs, Appellees,

NEW HAMPSHIRE CIRCUIT COURT DISTRICT DIVISION,

Defendant,

HONORABLE DAVID D. KING,

Third-Party Defendant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges

Samuel R.V. Garland, Assistant Attorney General, with whom Anthony J. Galdieri, Senior Assistant Attorney General, and Daniel E. Will, Solicitor General, were on brief, for appellant Lori Shibinette. Aaron J. Curtis, with whom Gilles Bissonette, Henry Klementowicz, American Civil Liberties Union of New Hampshire, Theodore E. Tsekerides, Colin McGrath, and Weil, Gotshal & Manges LLP were on brief, for class appellees. Michael D. Ramsdell, with whom James P. Harris and Sheehan Phinney Bass & Green, P.A. were on brief, for hospital appellees.

October 26, 2021 BARRON, Circuit Judge. This case comes to us on an interlocutory appeal by the Commissioner of the New Hampshire Department of Health and Human Services (the "Commissioner"). It concerns the extent of the state's legal obligations to people who are deemed to need emergency mental health treatment. The plaintiffs are a class of individuals who claim to have been held against their will for too long without due process on the basis of a certification of their need for such treatment, and a group of hospitals who claim to have been forced, in violation of their federal constitutional rights, to retain persons certified to be in need of such treatment.

The Commissioner challenges the District Court's denial of her motion to dismiss the plaintiffs' complaints on the ground that each set of plaintiffs lacks standing and that, in any event, the Eleventh Amendment independently bars their claims against her. The Commissioner now also contends to us that, in consequence of the New Hampshire Supreme Court's recent ruling in Jane Doe v. Commissioner of the New Hampshire Department of Health and Human Services, ---A.3d----, No. 2020-0454, 2021 WL 1883165 (N.H. May 11, 2021), which was decided while this appeal was pending in our Court, there is yet another jurisdictional bar to all the claims of all the plaintiffs: they are moot.

We see no merit to the Commissioner's challenges to the District Court's standing and Eleventh Amendment immunity rulings,

- 3 - and so we a