Indiana Employment Security Division v. Burney

• Decision Date: 17 January 1973
• Docket Number: No. 71-1119,71-1119
• Citation: 35 L.Ed.2d 62,409 U.S. 540,93 S.Ct. 883
• Parties: INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellants, v. Essie D. BURNEY
• Court: U.S. Supreme Court

409 U.S. 540

93 S.Ct. 883

35 L.Ed.2d 62

INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellants,

v Essie D. BURNEY.

No. 71-1119.

Argued Dec. 7, 1972.

Decided Jan. 17, 1973.

Rehearing Denied Mar. 5, 1973.

See 410 U.S. 970, 93 S.Ct. 1435.

Darrel K. Diamond, Indianapolis, Ind., for appellants.

Ivan E. Bodensteiner, Valparaiso, Ind., for appellee.

PER CURIAM.

We noted probable jurisdiction in this case, 406 U.S. 956, 92 S.Ct. 2058, 32 L.Ed.2d 342, to review the judgment of a three-judge district court, 347 F.Supp. 218, holding that Indiana's system of administering unemployment insurance was in conflict with § 303(a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U.S.C. § 503(a)(1).¹ Before the three-judge court entered its injunction, Indiana's practice was to discontinue unemployment benefits upon a determination of ineligibility, that determination taking place without the benefit of a full hearing for the erstwhile beneficiary.

After several months of effort, however, the class representative in this litigation, Mrs. Burney, succeeded in obtaining a reversal of the initial determination of ineligibility.² She has now received full retroactive compensation.

The full settlement of Mrs. Burney's financial claim raises the question whether there continues to be a case or controversy in this lawsuit. Though the appellee purports to represent a class of all present and future recip- ients of unemployment insurance, there are no named representatives of the class except Mrs. Burney, who has been paid. Cf. Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512. Accordingly, the judgment is vacated and the case is remanded to the District Court to consider whether it has become moot.

It is so ordered.

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.

I consider the remand ordered by the Court to be pointless. The only issue in this case is the right of a recipient of unemployment insurance benefits to a full evidentiary hearing before those benefits are terminated as the result of an administrative determination of ineligibility. The Court evidently concludes that this action may be moot as to Mrs. Burney since she has now received a full evidentiary hearing and settlement of her claim, and as to the affected class since Mrs. Burney is its only named representative in this action. I think it clear on the record before us, however, that nothing has occurred at either the administrative or judicial level since Mrs. Burney entered this suit that would suffice to moot her claim or that of the class.

Mrs. Burney's benefits were suspended beginning the week of March 23, 1971. On April 2, 1971, some three weeks before Mrs. Burney sought leave to intervene in this action,¹ she invoked the existing Indiana appeal pro- cedure, see Ind.Stat.Ann. § 52—1542a(e) (Supp.1970), now Ind.Stat.Ann. § 52—1542a(e) (Supp.1972), and requested an administrative hearing. She received such a hearing on July 1, 1971, while this action was still pending in the District Court. Although the hearing referee affirmed the suspension order, on December 6, 1971, the Division Review Board reversed the referee and held that Mrs. Burney's benefits had been erroneously suspended. Meanwhile, on October 27, 1971, the District Court granted summary judgment in favor of Mrs. Burney and the affected class.

Certainly the full administrative hearing that Mrs. Burney received during the pendency of this case in the District Court cannot be considered to be an indication that Indiana has voluntarily chosen to provide henceforth the pre-termination hearing that Mrs. Burney claims is required under both § 303(a) (1) of the Social Security Act, 42 U.S.C. § 503(a)(1), and the Due Process Clause. So far as appears, the hearing afforded Mrs. Burney was nothing more than the post-termination hearing for which provision is already made in Indiana law.² Nor can I accept any suggestion that Mrs. Burney's attack upon appellants' failure to provide a pre-termination hearing may be moot merely because she has received a full post-termination hearing and settlement of her claim since entering this litigation.³ A determination of mootness based on this line of reasoning would effectively bar the full and final litigation of whether a pre-termination hearing is legally required, while leaving Indiana free to continue to provide Mrs. Burney and other beneficiaries of unemployment insurance with only post-term termination hearings.

It is, by now, clear that a claim is not moot if it is 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). It is entirely possible that Mrs. Burney will, in the future, become employed and them once more became unemployed. If this action is deemed to be moot and the existing state procedure remains intact, she then may encounter the same problem of suspension of benefits without a prior hearing that she has encountered in this instance. And, inevitably, the post-termination administrative process will again be completed before final legal relief may be obtained as to the pretermination hearing question. Indeed, this sequence of events might repeat itself any number of times for Mrs. Burney if the mere provision of the post-termination hearing and settlement of her particular claim were considered sufficient to moot the issue whether a pre-termination hearing is required. The principle that a federal court will not pass upon a moot controversy does not require us to set in motion such a litigious merry-go-round where, as here, there is a shortlived controversy of a potentially recurring character.

It is no answer that there are other beneficiaries of unemployment insurance whose benefits may be terminated in advance of a full hearing and who might therefore institute litigation concerning the timing issue. Such litigation can be expected to fare no better, or worse, in terms of problems of mootness, than this case. As with Mrs. Burney's claim, the post-termination administrative process will invariably be completed before a final adjudication is obtained. In fact, appellants indicate that the post-termination hearing procedure has been speeded up significantly since Mrs. Burney's administrative appeal was processed.⁴

It is true that the District Court entered an injunction ordering Indiana to provide pre-termination hearings, and that injunction is currently in effect since no stay has been entered. As a result, pre-termination hearings are presently being provided in Indiana.⁵ But this certainly does not moot the case, for it is well established that compliance with a court order pendente lite does not moot the underlying controversy, see, e.g., Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792 (1948); Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981 (1885). A determination of mootness would require that the decision below be vacated and the action dismissed. See, e.g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Under such circumstances, appellants would be 'free to return to (their) old ways.' Ibid. For a case to be moot it...