Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67 (1983)

JUSTICE BRENNAN, dissenting.

In my view, the issue of mootness is sufficiently dependent on uncertain factual issues concerning the University’s present intention and future conduct that I would grant the petition for certiorari, vacate the decision of the Court of Appeals, and remand for resolution of this issue.

1. The Court continues to follow this test for mootness. See, e.g., Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980).

2. In taking this action, the Court does something that none of the parties ask it to do. The Government does not contend that the question of mootness is so clear that dismissal at this juncture would be appropriate; all it requests is that the Court remand the case to the District Court for a hearing on the question of mootness. See Brief for Federal Respondents 15-16, 18.

3. While I need not, and do not, question the sincerity of the University’s change of heart, it appears that petitioners do question it. The existence of a factual dispute on this point is presumably why the Government does not request that the Court simply order the case dismissed as moot, but rather that it remand the case for an evidentiary hearing. Nevertheless, the Court, without explanation, declines to follow this suggestion.

4. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982); Allee v. Medrano, 416 U.S. 802, 810-811 (1974); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974) (per curiam); United States v. Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968); Gray v. Sanders, 372 U.S. 368, 375-376 (1963); United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); Walling v. Helmerich & Payne, 323 U.S. 37, 42-43 (1944); United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 309-310 (1897). See also Los Angeles v. Lyons, 461 U.S. 95, 100-101 (1983).

5. No finding of fact has been made that this is not the case, and the Court does not purport to make such a finding.

6. See also Reeves, Inc. v. Stake, 447 U.S. 429, 434, n. 7 (1980).

7. The Court attempts to distinguish these cases by arguing that they only apply to defendants to lawsuits, and not to nondefendants. Putting aside the fact that the University is not only a defendant, but also an indispensable party, in this lawsuit, the Court itself seems to recognize that the principles regarding voluntary cessation apply where the cessation of activity is by a third party, and not a defendant. Ante at 72 (citing St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531, 537-538 (1978)). See also Phosphate Export Assn., supra, at 202-204. Moreover, the reason that the doctrine is normally applied to defendants in lawsuits is that, when a defendant ceases its activity, it does so under the threat of a coercive sanction. In this case, the University did just that.