Goldsboro Christian Schools, Inc. v. United States Motion for Leave to File and Supplemental Brief Amici Curiae

    Nos. 81-1 and 81-3

I n  T h e

§>ttproxt? ( ta r t  uf tl|p Imtrb States
October T e r m , 1981

Goldsboro C h r istia n  S chools, I n c .
Petitioner,v.

U n it ed  States of A m erica .

Bob J ones U n iv ersity ,
Petitioner, v. ’

U n it ed  States of A m erica .

On Writs of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

MOTION FOR LEAVE TO FILE; SUPPLEMENTAL BRIEF 
AND SUPPLEMENTAL BRIEF OF THE LAWYERS’ 

COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., THE AMERICAN CIVIL 
LIBERTIES UNION, AND' THE' AMERICAN JEWISH 

COMMITTEE, AS AMICI CURIAE

E. Richard Larson 
American Civil Liberties 

Union
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Samuel Rabinove 
American J ewish Committee 
165 East 56th Street 
New York, New York 10020 
(212) 751-4000 

[Listing of Attorneys for 
American Civil Liberties 
Union and American Jewish 
Committee continued inside 
cover]

Richard C. Dinkelspiel 
Maximilian W. Kempner 

Co-Chairmen 
William L. Robinson 
Norman J. Chaciikin *
Frank R. Parker 

Attorneys
Lawyers’ Committee for 
Civil Rights Under Law 
733 15th Street, N.W.,

Suite 520
Washington, D.C. 20005 
(202) 628-6700 

[Listing of Attorneys for 
Lawyers’ Committee for Civil 
Rights Under Law continued 
inside cover]

[Listing of Attorneys for NAACP Legal Defense and 
Educational Fund, Inc. inside cover]

W il s o n  - E p e s  P r in t in g  C o . .  In c . - 789-0096 - W a s h in g t o n , D.C. 20001

eo



Nadine Strossen *
Deborah J. Stavile 
H. Stow Lovejoy 

125 Broad Street 
New York, New York 10004 
(212) 558-4000 

Attorneys for American Civil 
Liberties Union and American 
Jewish Committee

Robert H. Kapp 
J oseph M. Hassett 
Sara-Ann  Determan 
David S. Tatel 
Walter A. Smith, J r.
Nancy G. Yates 
Sylvia Schwarz 

Hogan & Hartson 
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 331-4500 

Attorneys for Lawyers’ 
Committee for Civil Rights 
Under Law 

(* Counsel of Record)
J ack Greenberg 
Beth J. Lief

NAACP Legal Defense and 
E ducational F und, I nc.

10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Leon Silverman, P.C.*
Robert H. Preiskel, P.C.
Linda R. Blumkin 
Ann  F. Thomas 
Marla G. Simpson 

Fried, Frank, Harris,
Shriver & J acobson 

(A partnership which includes 
professional corporations) 

One New York Plaza 
New York, New York 10004 
(212) 820-8000 

Attorneys for NAACP Legal 
Defense and Educational 
Fund, Inc.

(* Counsel of Record)

Attorneys for Amici Curiae



I n  T h e

î ujjrpmp GImtrt uf %  WmUb
October T e r m , 1981

Nos. 81-1 and 81-3

Goldsboro Ch r istia n  Schools, I n c .
Petitioner, v. ’

U n it ed  States of A m erica .

B ob J ones U n iv ersity ,
Petitioner, v. ’

U n ited  States of A m erica .

On Writs of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF 
OF THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW, THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., THE AMERIC AN CIVIL 
LIBERTIES UNION, AND THE AMERICAN JEWISH 

COMMITTEE, AS AMICI CURIAE

Pursuant to Rules 36 and 42 of the Rules of this 
Court, the Lawyers’ Committee for Civil Rights Under 
Law, NAACP Legal Defense and Educational Fund, Inc., 
American Civil Liberties Union, and American Jewish 
Committee (“amici”) move for leave to file the attached 
supplemental brief. In support of this motion, amici 
state as follows:



2
Each of the movants has already filed with this Court 

briefs on the merits of this litigation, all of which sup­
port the decisions of the court of appeals. Subsequent 
to the filing of these amicus briefs, the United States, 
on January 8, 1982, filed a Memorandum informing the 
Court that

the Department of the Treasury has initiated the 
necessary steps to grant petitioner Goldsboro Chris­
tian Schools tax-exempt status under Section 501 (c) 
(3) of the Code, and to refund to it federal social 
security and employment taxes in dispute. Similarly, 
the Treasury Department has initiated the necessary 
steps to reinstate tax-exempt status under Section 
501(c) (3) of the Code to petitioner Bob Jones Uni­
versity, and will refund to it federal social security 
and unemployment taxes in dispute. Finally, the 
Treasury Department has commenced the process 
necessary to revoke forthwith the pertinent Revenue 
Ruluings that were relied upon to deny petitioners 
tax exempt status under the Code. [footnote 
omitted]

The Memorandum for the United States requested that 
the judgments of the court of appeals be dismissed as 
moot.

The question of mootness raised by the government’s 
actions and Memorandum had not previously arisen in 
this litigation, throughout which the United States had 
consistently opposed tax-exempt status for the two 
schools. Amici therefore could not have foreseen the 
existence of this question at the time they filed their 
briefs, since that question arises from a government 
decision announced without prior notice and which over­
turned the long-established practice of the Internal Reve­
nue Service.

Although supplemental briefs from amici are not usu­
ally entertained by the Court, this is an appropriate 
occasion for doing so. Despite the fact that the issue of 
mootness is of central importance to the disposition of



this litigation, and to the timely resolution of the under­
lying issues, none of the parties has yet analyzed it in 
their submissions to this Court.

3

Because of the pressing national importance of the 
issues presented in the pending cases, and the necessity 
that the mootness determination sought by the United 
States receive the most thorough consideration, we re­
spectfully suggest that the filing of the annexed brief 
arguing that the cases are not moot will help to provide 
the essential adversarial arguments “upon which the 
Court so largely depends for illumination of difficult 
constitutional questions.” Baker v. Carr, 369 U.S. 186, 
204 (1962).

Accordingly, amid respectfully request that their mo­
tion for leave to file the attached supplemental brief be 
granted.

E. Richard Larson 
American Civil Liberties 

Union
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Samuel Rabinove 
American J ewish Committee 
165 East 56th Street 
New York, New York 10020 
(212) 751-4000

Nadine Strossen *
Deborah J. Stavile 
H. Stow Lovejoy 

125 Broad Street 
New York, New York 10004 
(212) 558-4000 

Attorneys for American Civil 
Liberties Union and American 
Jewish Committee 

(* Counsel of Record)

Respectfully submitted,
Richard C. Dinkelspiel 
Maximilian W. Kempner 

Co-Chairmen 
William L. Robinson 
Norman J. Chachkin *
F rank R. P arker 

A ttorneys
Lawyers’ Committee for 
Civil Rights Under Law 
733 15th Street, N.W.,

Suite 520
Washington, D.C. 20005 
(202) 628-6700

Robert H. Kapp 
J oseph M. Hassett 
Sara-Ann  Determan 
David S. Tatel 
Walter A. Smith, J r.
Nancy G. Yates 
Sylvia Schwarz 

H ogan & Hartson 
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 331-4500 

Attorneys for Lawyers’ 
Committee for Civil Rights 
Under Law 

(* Counsel of Record)



4

J ack Greenberg 
Beth J. Lief

NAACP Legal Defense and 
E ducational F und, Inc.

10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Leon Silverman, P.C.*
Robert H. Preiskel, P.C.
Linda R. Blumkin 
Ann  F. Thomas 
Marla G. Simpson 

F ried, F rank, Harris, 
Shriver & J acobson 

(A partnership which includes 
professional corporations) 

One New York Plaza 
New York, New York 10004 
(212) 820-8000 

Attorneys for NAACP Legal 
Defense and Educational 
Fund, Inc.

(* Counsel of Record)
Attorneys for Amici Curiae



TABLE OF AUTHORITIES
Cases: Page

Bob Jones University v. Simon, 416 U.S. 72:5
(1974) .......................... .......................... ...... ........  1-2

Bob Jones University v. United States, 639 F.2d
147 (4th Cir. 1980) _______________ _______  6n-7n

Brown v. Hartlage (No. 80-1285), 50 U.S.L.W.
3300 (U.S., Oct. 19, 1981) ____ ____ ___ _____  8

Cheng Fan Kwok v. INS, 392 U.S. 206 (1969).......  8
Church of Scientology v. United States, 485 F.2d

313 (9th Cir. 1973) ............................................. . 4, 5
County of Los Angeles v. Davis, 440 U.S. 625

(1979) ............... ...................... ................. .......... . 7n
DeFunis v. Odegaard, 416 U.S. 312 (1974) _____  3, 5n
FTC v. Goodyear Tire & Rubber Co., 304 U.S.

257 (1938) ........ ................... ............... ............. ....  3n
Flast v. Cohen, 392 U.S. 83 (1968) .... ......... ..... . 9
Franks v. Bowman Transp. Co., 424 U.S. 747

(1976) _________ ____ _______ __________ __ 9
Granville-Smith v. Granville-Smith, 349 U.S. 1

(1955) ....... -........... ......... ...... .............. ........... ...... 8
Gray v. Sanders, 372 U.S. 368 (1963) ....................  3n
Green v. Connally, 330 F. Supp. 1150 (D.D.C.), 

aff’d mem. sub nom.Coit v. Green, 404 U.S. 997
(1971) ---------------------------- -----------------------  5,6

Green v. Kennedy, 309 F. Supp. 1127 (D.D.C.), 
appeal dismissed sub nom. Cannon v. Green, 398
U.S. 956 (1970) ......................... ............ ......... ..... 5

Moore v. Ogilvie, 394 U.S. 814 (1969) ................... 5n
Powell v. McCormack, 395 U.S. 486 (1969) __ __  8-9
Quern v. Mandley, 436 U.S. 725 (1978) .................  5n
Richardson v. Ramirez, 418 U.S. 24 (1974) ...........  8n
Roe v. Wade, 110 U.S. 113 (1973) ................ ....... . 5n
Sibron v. New York, 392 U.S. 40 (1968) ...... ........  8
Sosna v. Iowa, 419 U.S. 393 (1.975) ....... .......... ......  8n
South Spring Hill Gold Mining Co, v. Amador 

Medean Gold Mining Co., 145 U.S. 300 (1892).. 8n 
Southern Pacific Terminal Co. v. ICC, 219 U.S.

498 (1911) .......................... ............ .......... ...... . 5n
Super Tire Engineering Co. v. McCorkle, 416 U.S,

155 (1974) ___ _________ _____ _____ _______  5n



ii

TABLE OF AUTHORITIES—Continued
Page

Swift & Co. v. Hocking Valley R.R., 243 U.S. 281
(1917)  ...... .................................................. ...  8n

United States v. Concentrated Phosphate Export
Ass’n, 393 U.S. 199 (1968)_____ ___ _______  3, 7

United States v. Lovett, 328 U.S. 303 (1946)......... 8
United States v. Munsingwear, Inc., 340 U.S. 36

(1950) ...... ............ ......................................... . 7n
United States v. Trans-Missouri Freight Ass’n, 166

U.S. 290 (1897) ............ ... .................. .... .......... 3n
United States v. W.T, Grant Co., 345 U.S. 629

(1953)............................ ...... ............. ....... ........ 3, 7
Utah Public Serv. Comm’n v. El Paso Natural Gas

Co., 395 U.S. 464 (1969) .......................... ......... 8
Vermont Yankee Nuclear Power Corp. v. Nat­

ural Resources Defense Council, Inc., 435 U.S.
519 (1978)  .......... ....................................... . 5n

Vitek v. Jones, 445 U.S. 480 (1980) ..................... 3n
Walling v. Helmerich & Payne, Inc., 323 U.S. 37

(1944).................................................. .......... . 3n
Young v. United States, 315 U.S. 257 (1942)......... 8

Other Authorities:
N.Y. Times, Feb. 4, 1982 (city ed.) ................... 4n



In The

Bnpmnt ( ta rt of %  Inttrti Stairs
October Term, 1981

Nos. 81-1 and 81-3

Goldsboro Christian Schools, Inc.
Petitioner, v. ’

United States of America.

Bob J ones University,
Petitioner, v. ’

United States of America.

On Writs of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

SUPPLEMENTAL BRIEF OF THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW, THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 
INC., THE AMERICAN CIVIL LIBERTIES UNION, AND 

THE AMERICAN JEWISH COMMITTEE,
AS AMICI CURIAE

These cases raise important statutory and constitu­
tional questions relating to the granting of tax-exempt 
status to racially discriminatory private schools. Although 
the cases arose as suits by petitioners for the return of 
certain disputed tax payments, these suits were simply 
a means, expressly suggested by this Court, for raising 
the underlying statutory and constitutional issues. Bob



2
Jones University v. Simon, 416 U.S. 725, 746 (1974). 
The fund-raising advantages resulting from the deducti­
bility of contributions made to schools with tax-exempt 
status are far more important to petitioners than the 
particular sums for which they brought suit.

On January 8, 1982, the United States announced in 
a Memorandum filed with this Court that it would re­
fund the disputed tax payments, had begun the process 
of granting or restoring petitioners’ tax-exempt status, 
and was revoking the Revenue Rulings and Revenue 
Procedures pursuant to which that status had been 
withheld. Thus, as of January 8 it appeared that the 
United States intended to confirm to petitioners the tax- 
exempt status which these cases were commenced to 
obtain.

However, only 10 days later, the President announced 
that the government actually opposes granting tax-exempt 
status to petitioners and other racially discriminatory 
private schools and was submitting legislation to Congress 
to prevent this result. See Appendix to February 3, 1982 
Supplemental Memorandum for the United States (“U.S. 
Supp. Mem. App.” ) in these cases, at 10a. The proposed 
legislation specifically provides that tax-exempt status 
will not be granted to any organization maintaining a 
school with racially discriminatory policies, even if those 
policies are religiously based {id. at 7a-8a) and would 
have an effective date of July 9, 1970, thus assuring that 
the specific taxes in dispute in these cases would have 
to be paid by petitioners {id. at 9a).

Moreover, at the same time the President declared 
that, pending Congressional action on the legislative 
proposal, the Internal Revenue Service would “not act 
on any applications for tax exemptions filed in response 
to the IRS policy announced on January 8” {id. at 11a). 
A Treasury Department release on the same date clarified 
this newest policy by making a special exception for the 
petitioners in these cases, who would be granted tax-



3

exempt status “as required by the memorandum in 
support of the motion to vacate as filed in the Supreme 
Court on January 8, 1982” {id. at 12a) (emphasis added). 
Finally, the government has indicated that it is con­
tinuing to comply with injunctive decrees barring tax 
exemptions for racially discriminatory private schools 
located in Mississippi {id. at 2a, 3a, 13a-14a).

In these circumstances, the pending cases are not 
moot. It is well settled that “a voluntary cessation of 
the [tax] practices complained of could make this case 
moot only if it could be said with assurance ‘that “there 
is no reasonable expectation that the wrong [denial of 
tax exemption] will be repeated.” ’ United States v. 
W.T. Grant Co., [345 U.S. 629,] 633 [(1953)]. Other­
wise, ‘[t]he defendant is free to return to his old ways,’ 
id., at 632 . . . .” DeFunis v. Odegaard, 416 U.S. 312, 
318 (1974). The heavy burden upon parties arguing 
for dismissal as moot was summarized in United States 
v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 
203 (1968) :

The test for mootness in cases such as this is a strin­
gent one. Mere voluntary cessation of allegedly il­
legal conduct does not moot a ease; if it did, courts 
would be compelled to leave “ [t]he defendant . . . 
free to return to his old ways.” . . .  A case might 
become moot if subsequent events made it absolutely 
clear that the allegedly wrongful behavior could not 
reasonably be expected to recur.

Failure to satisfy this heavy burden will “prevent moot­
ness because of the ‘public interest in having the legality 
of the practices settled.’ ” DeFunis v. Odegaard, supra, 
416 U.S. at 318, quoting United States v. W.T. Grant Co., 
supra.1

1 Accord, Vitek v. Jones, 445 U.S. 480, 487 (1980); Gray v. 
Sanders, 372 U.S. 368, 375-76 (1963); Walling v. Helmerich & 
Payne, Inc., 323 U.S. 37, 42-43 (1944); FTC v. Goodyear Tire & 
Rubber Co., 304 U.S. 257, 260 (1938); United States v. Trans- 
Missouri Freight Ass’n, 166 U.S. 290, 308-10 (1897).



4

This heavy burden has not been met in these cases. 
It is anything but “absolutely clear” that the disputed 
withholding of tax-exempt status “could not reasonably 
be expected to recur.” Indeed, the United States quite 
clearly intends to revert to its “old ways” by denying 
petitioners tax-exempt status in the future, and to that 
end is actively seeking to “prohibit tax exemptions for 
any schools that discriminate on the basis of race” (U.S. 
Supp. Mem. App. at 10a). Were the President’s proposed 
legislation enacted, petitioners would have any newly 
restored or granted tax-exempt status revoked retro­
actively and would again be in the posture of having 
to sue the United States based upon the same constitu­
tional challenges advanced in these proceedings.2 3 Even 
if the legislation were not enacted, there is reason to 
believe that upon some other signal of agreement from 
the Congress, the government might resume its pre- 
January 8, 1982 stance with regard to the eligibility of 
racially discriminatory private schools for exemption.8 
In that event, petitioners again would lose their tax- 
exempt status and would again be suing the United 
States on the constitutional and statutory theories ad­
vanced in their briefs in these cases. Thus, the requisite 
showing that the controversy between the parties has 
quite clearly come to an end, and is highly unlikely to 
recur, simply has not been made.

The posture of these cases bears a striking resemblance 
to Church of Scientology v. United States, 485 F.2d 313 
(9th Cir. 1973), where the government’s offer to refund 
the Church’s assessed tax deficiencies was held not to 
moot the Church’s challenge to the government’s denial 
to it of tax-exempt status. Noting that “the status of

2 The only change in petitioners’ cases would presumably be that 
they would not be attacking the revocation of their tax-exempt 
status on statutory-interpretation grounds.

3 See, e.g., N.Y. Times, Feb. 4, 1982, at 1 col. 1 (city ed.) (ad­
ministration “may accept” sense-of-Congress resolution in lieu of 
legislation).



5

[the Church] as an exempt organization is a continuing 
one . . . [which] recurs each year” (id. at 317) and that 
the government had indicated that it might dispute the 
Church’s tax-exempt status in later years, the Court of 
Appeals relied upon the W.T. Grant Co., supra, line of 
cases as well as the decisions of this Court rejecting 
mootness claims where the controversy is “capable of 
repetition, yet evading review” 4 and ruled that the 
Church of Scientology case was not moot.

The mootness claim in these cases also approximates 
that made by the government in Green v. Connolly, 
330 F. Supp. 1150 (D.D.C.), aff’d mem. sub nom. Coit v. 
Green, 404 U.S. 997 (1971). There, the plaintiffs at­
tacked the policy of granting tax exemptions to racially 
discriminatory private schools on both constitutional and 
statutory grounds. After a preliminary injunction was 
issued, Green v. Kennedy, 309 F. Supp. 1127 (D.D.C.), 
appeal dismissed sub nom. Cannon v. Green, 398 U.S. 956 
(1970), the government voluntarily announced the policy 
which it has now sought in these cases to repudiate. On 
the basis of its voluntary announcement, it then asked 
that the lawsuit be declared moot. See Green v. Con­
nolly, supra, 330 F. Supp. at 1170. The three-judge 
district court correctly foresaw the possibility that a later 
national administration might not wish to adhere to the 
voluntarily adopted policy, thus depriving the plaintiffs 
of their rights. Is therefore rejected the claim of moot- 
ness:

We think plaintiffs are entitled to a declaration of 
relief on an enduring, permanent basis, not on a basis 
that could be withdrawn with a shift in the tides of

4 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); 
accord, Super Tire Engineering Co. v. McCorkle, 416 U.S. 155, 122 
(1974) ; Roe v. Wade, 410 U.S. 113, 125 (1973); Moore v. Ogilvie, 
394 U.S. 814, 816 (1969) ; see DeFunis v. Odegaard, supra, 416 U.S. 
at 318-19; see also Quern v. Mandley, 436 U.S. 725, 733 n.7 (1978); 
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense 
Council, Inc., 435 U.S. 519, 535 n.14 (1978).



6

administration, or changing perceptions of sound dis­
cretion.

Id. at 1170-71. The soundness of this approach is demon­
strated, eleven years later, by the government’s unilateral 
abandonment of the very policy upon which its earlier 
claim of mootness had been based.

Green bears upon the present issue in another impor­
tant sense. The declaratory judgment in that case, see 
330 F. Supp. at 1179, aff’d mem. sub nom. Coit v. Green, 
404 U.S. 997 (1971), interprets the Internal Revenue 
Code to bar federal tax exemptions for racially discrimi­
natory private schools. The government concedes that it 
must continue to enforce that interpretation at least with 
respect to private schools in Mississippi (U.S. Supp. Mem. 
App. at 2a, 3a, 13a-14a) ; and renewed litigation in the 
Green case is now pending in the U.S. Court of Appeals 
for the District of Columbia Circuit on the question 
whether the declaratory judgment also binds the govern­
ment as to private discriminatory schools outside Mis­
sissippi.5 It is thus far from “absolutely clear” that 
the government is legally free to make refunds and to 
grant exemptions to the petitioners in these cases. In­
deed, it would appear that the government cannot 
consummate the restoration of petitioners’ tax exemptions 
and the refund of amounts previously paid under protest 
unless and until the judgments of the court- of appeals are 
vacated.6 Much the less may it be said that the United

5 The Green plaintiffs on January 13, 1982 sought injunctive 
relief from the district court to enforce the declaratory judgment 
on a nationwide basis. (The pleading reprinted in the United States’ 
Supplemental Memorandum (U.S. Supp. Mem. App. at la-16a) was 
filed in response to the plaintiffs’ motion.) On February 4 the dis­
trict court ruled that the Green case was limited to Mississippi 
schools. Plaintiffs in Green have noticed an appeal and filed a 
request for emergency injunctive relief with the Court of Appeals, 
which is presently pending.

6 See Bob Jones University v. United States, 639 F.2d 147, 155 
(4th Cir. 1980) (“ [t]he judgment of the district court is reversed



7

States has carried its “heavy burden” of showing that it 
“could not reasonably be expected to” reassert petitioners’ 
tax liabilities. See United States v. W.T. Garni Co., 
supra; United States v. Concentrated Phosphate Export 
Ass’n, supra.

The government has in fact made no attempt whatever 
to justify its request that the judgments below be vacated 
on the basis of mootness. It has filed no document in 
this Court explaining its January 1982 shifts in position. 
And, although some government officials have recently 
indicated in testimony before Congressional Committees 
that they disagree with the construction of the Internal 
Revenue Code underlying the court of appeals’ decisions 
in the present cases (the same construction of the Code 
mandated by the Green declaratory judgment), the gov­
ernment has not sought to obtain from this Court a 
definitive interpretation of the Code.

Yet there is ample precedent under which the govern­
ment could have proceeded in an orderly fashion rather 
than by seeking to moot these cases and avoid an au­
thoritative judicial ruling. It could, for example, have 
“confessed error” on the statutory interpretation issue,7 
in which case this Court would have made an independent

with instructions to dismiss the University’s claim, for refund of 
1975 FUTA taxes, and to reinstate the government’s claim for the 
years 1971 to 1975 and enter appropriate judgment thereon for 
defendant”) (emphasis supplied). Cf. United States v. Munsing- 
wear, Inc., 340 U.S. 36 (1950) (res judicata effect of unvaeated 
judgment in case mooted prior to review by this Court). For this 
reason, the second part of the test for mootness applied by this 
Court in County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) 
(“complet[e] and irrevocabl[e] eradicat[ion of] the effects of the” 
challenged practice) has not been satisfied.

7 There is no indication that the United States agrees with peti­
tioners’ position on the First Amendment questions in these cases; 
to the contrary, the proposed legislation (U.S. Supp. Mem. App. at 
8a) indicates that the government rejects petitioners’ First Amend­
ment claims.



8

examination of the record before reaching a disposition. 
See, e.g., Sibron v. New York, 392 U.S. 40, 58-59 (1968) ; 
Young v. United States, 315 U.S. 257, 258-59 (1942) ; 
see also Utah Public Service Commission v. El Paso 
Natural Gas Co., 395 U.S. 464 (1969). Even if it had 
not “confessed error,” the government was not obliged 
to defend the pre-1982 policy, but it could have argued 
with petitioners that the rulings below incorrectly con­
strued the Code.8 9 Had it done so, this Court could have 
appointed an amicus curiae to argue in support of the 
judgments below. E.g., Brown v. Hartlage (No. 80-1285), 
50 U.S.L.W. 3300 (U.S., Oct. 19, 1981) ; Cheng Fan Kowk 
v. Immigration & Naturalization Service, 392 U.S. 206, 
210 n.9 (1968) ; Granville-Smith v. Granville-Smith, 349 
U.S. 1, 4 (1955) ; cf. United States v. Lovett, 328 U.S. 
303 (1946). This avenue is still open in the instant 
cases and amici stand ready to assist the Court.

The fact that all of the parties appear to agree that 
these cases should be treated as moot is, of course, not 
controlling. It is the responsibility of the Court, and not 
the parties, to determine its jurisdiction,® and the Court 
should avoid even the appearance that its jurisdiction, 
once invoked, can be manipulated by parties seeking to 
avoid possibly unfavorable adjudication of fundamentally 
important issues such as are involved in these cases.10

As amici have demonstrated above, these cases involve 
a dispute still “live” in which each of the parties retains 
a “legally cognizable interest in the outcome.” Powell v.

8 See note 7 supra.

9 See Sosna v. Iowa, 419 U.S. 393, 398 (1975); Richardson v. 
Ramirez, 418 U.S. 24 (1974) ; Swift & Co. v. Hocking Valley R.R., 
243 U.S. 281 (1917); South Spring Hill Gold Mining Co. v. Amador 
Medean Gold Mining Co., 145 U.S. 300 (1892).

10 See Utah Public Serv. Comm’n v. El Paso Natural Gas Co., 
395 U.S. 464 (1969) (refusing to grant Rule 60 motion to dismiss 
appeal and holding that remand order of lower court failed to carry 
out prior mandate of this Court).



9

McCormack, 395 U.S. 486, 496 (1969). They involve 
issues of compelling national importance which will in­
evitably find their way to this Court and which ulti­
mately must be decided by the Court. See Franks v. 
Bowman Transportation Co., 424 U.S. 747, 757 n.9 
(1976). The questions have been framed with “the nec­
essary specificity” and can be “contested with the neces­
sary adverseness and . . . vigor,” Flast v. Cohen, 392 
U.S. 83, 106 (1968). The cases are, therefore, not moot 
and the government’s suggestion to the contrary should 
be rejected. At the very least, in recognition of the post- 
January 8 modifications in the position of the United 
States and the substantial likelihood of significant further 
developments in the near future, resolution of the moot­
ness question should be deferred until after the Court 
has heard oral argument on the merits.

CONCLUSION
For the foregoing reasons, amici respectfully urge that 

the judgments of the court of appeals not be vacated as 
moot and that these cases be set down for oral argument 
on their merits. The Court may wish to request that 
the United States submit a brief and to invite an amicus 
of its choosing to file a brief in support of the judgments 
below and present oral argument.

E. Richard Larson 
American Civil Liberties 

Union
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Samuel Rabinove 
American J ewish Committee 
165 East 56th Street 
New York, New York 10020 
(212) 751-4000

Respectfully submitted,

Richard C. Dinkelspiel 
Maximilian W. Kempner 

Co-Chairmen 
William L. Robinson 
Norman J. Chachkin * 
Frank R. P arker 

Attorneys
Lawyers’ Committee for 
Civil Rights Under Law 
733 15th Street, N.W., 

Suite 520
Washington, D.C. 20005 
(202) 628-6700



10

Nadine Strossen *
Deborah J. Stavile 
H. Stow Lovejoy 

125 Broad Street 
New York, New York 10004 
(212) 558-4000 

Attorneys for American Civil 
Liberties Union and American 
Jewish Committee 

(* Counsel of Record)

Robert H. Kapp 
J oseph M. Hassett 
Sara-Ann  Determan 
David S. Tatel 
Walter A. Smith, J r.
Nancy G. Yates 
Sylvia Schwarz 

Hogan & Hartson 
815 Connecticut Avenue, N.W. 
Washington, D.C. 20006 
(202) 331-4500 

Attorneys for Lawyers’ 
Committee for Civil Rights 
Under Law 

(* Counsel of Record)
J ack Greenberg 
Beth J. Lief

NAACP Legal Defense and 
Educational F und, Inc.

10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Leon Silverman, P.C.*
Robert H. Preiskel, P.C.
Linda R. Blumkin 
Ann  F. Thomas 
Marla G. Simpson 

Fried, F rank, Harris, 
Shriver & J acobson 

(A partnership which includes 
professional corporations) 

One New York Plaza 
New York, New York 10004 
(212) 820-8000 

Attorneys for NAACP Legal 
Defense and Educational 
Fund, Inc.

(* Counsel of Record)
Attorneys for Amici Curiae