Super Tire Engineering Company v. Lloyd W. McCorkle Commissioner of the Department of Institutions and Agencies of the State of New Jersey
469 F.2d 911
3rd Cir.
1972
Check Treatment

*2 McLAUGHLIN, Before ADAMS and GIBBONS, Judges. Circuit OPINION OF THE COURT ADAMS, Judge. Circuit case, appellants In this claim three Jersey programs pro- New welfare striking vide benefits to certain work- constitution, ers, the federal fed- violate state eral statutes statutes. Appellants,2 alleging em- their Working gram; 1. There Aid Families of the lias considerable confusion seq., programs Poor, et state over which 44:13-1 welfare New Jer N.J.S.A. Assistance, sey operates. currently argu program; Public N. From oral General program. subsequent ap seq., ment and et a state memoranda J.S.A. 44:8-107 pears appellants challenging are following programs: Super Engineering Appellants, three Tire Aid for De pendent Company Supercap Corporation, (A.F.D.C.), N.J.S.A. Children corporations; appellant, seq., joint pro- Jersey 44:10-1 et A. state-federal New engaged ployees 10, 1971, complaint giv while an economic On June challenged ing litigation filed, strike received aid under the rise to this programs, restrain- and on June 14 the District or officials, appel- Jersey hearing request dered various New that a on the continuing here,3 provide preliminary injunction lees be held on June *3 payments hearing 24.6 under these At that workers the state officials programs. and the union moved dismiss the em ployers’ complaint pursuant to Rule forcefully It contended that these is 12(b)(6), judge, F.R.Civ.P. The trial directly programs interfere welfare with persuaded by Lamp ITT Division v. bargaining, poli- free a federal collective Minter, (1st 1970), 435 F.2d 989 Cir. cy acts, in the labor 29 U. enunciated denied, 1526, cert. 157-158, and are unconstitu- S.C. §§ 868, rehearing denied, 28 L.Ed.2d they tional because contravene Su- L.Ed.2d premacy Clause of the Constitution. July on 13 dismissed the com They further assert that inclusion of plaint preliminary motion for a striking programs employees injunction. abridges the federal statute under which funded,4 programs one of The union states that the strike “end- Jersey pursuant New to which statutes immediately prior ed to the June reg- promulgated the state officials have hearing.”' employers allege striking employees.5 affecting ulations “employees that did not return to case, disposition until June Under ei- our work 1971.” Critical situation, sequence May new contract factual is the of events. On ther having ratified,7 accepted three-year at the conclusion of a undergirding dispute contract, having negotiations clear that the labor been to challenge Jersey pro- unfruitful, employees point to the New be- grams gan Shortly been concluded before there- an economic strike. long allege, judge after, employers dismissed the action and trial as the certain argued appeals sought public filed or employees assistance programs. this Court. under of these welfare one Schaevitz, questions not do Robert payer is a citizen tax- of state Jaw. We of and on Jersey, presi- not because would of New as well as issue address this ap- determines dent officer of until and chief executive be reached Court jurisdiction. pellant corporations. the case is within Co., 312 v. Pullman Railroad Commission 3. The Local No. Teamsters Union 85 L.Ed. 971 bargaining repre- the certified collective production sentative for all mainte- corporate-appel- employees jurisdiction the District Court nance lants, of the 6. The permission grounded granted by alleged on 28 U.S.C. the Dis- applicability of trict defendant-appellees. to intervene on behalf of the 1337. § 1331 and § ap- discussed, for, it not be need § pearing the amount joint program

4. §10,000., jurisdiction A.F.D.C. federal-state exceeds Security created 402 of the Social § on § based Act, 42 U.S.C. § hearing before the District Court 7. At the preliminary question plaintiffs’ regulations 5. The motion for a whether transcript governing injunction, programs comport of which each of appendix Jersey .pears pages the New 52a-72a statute under which they promulgated plaintiff-appellants, counsel is one of filed state law. might Resolution of stated: issue render unnecessary ended as of . the strike was a decision on “. . the basic con- yesterday challenges. our contract latest stitutional In such circum- Membership stances, normally duty it is ratified Union of fed- was yesterday plan they abstain, awaiting return eral courts a defini- Appendix pronouncement at 65a. tive from a tomorrow.” state court work many important questions hypothetical Although law would be state argued ably and briefed facts.’ Aetna Life v. Ha Ins. Co. law have worth, appears 227, 240-241, sides, to this it now both underly- (1937). However, the resolution L.Ed. 617 squarely questions require the is- raises ‘[m]oot no answer.’ Missouri, Kansas of mootness. & Texas sue R. Co. Ferris, 602, 606, I. 45 L.Ed. 337 Mootness is a jurisdictional question because Article III Constitution empowered ‘is decide pow judicial the federal commands that questions proposi moot or abstract contro to cases and er shall extend tions,’ United States v. Alaska S. S. lacking Thus, or contro a case versies. *4 Co., 113, 116, 448, 253 U.S. 40 S.Ct. 64 ju versy, without federal courts are the (1920), quoting L.Ed. 808 California Rice, v. North Carolina risdiction. Co., v. San Pablo & Tulare R. 149 U.S. 244, 402, 30 L.Ed.2d 404 92 S.Ct. U.S. 308, 314, 876, 13 S.Ct. 37 L.Ed. 747 (1971), Supreme states 413 the (1893); impotence our ‘to review an III explicitly that mootness is Article require moot cases from derives the issue, setting jurisdictional the forth ment of Article III of the Constitution fundamental considerations: judicial under the exercise which of urged “Although party has neither power depends upon the existence of a of this case resolution controversy.’ Jafco, case or Liner v. question is essential if federal Inc., 301, 3, 84 375 U.S. 306 n. S.Ct. to function their courts are within 391, (1964). 11 L.Ed.2d 347 See also sphere authority. constitutional of McCormack, 486, Powell v. history, Early in its this Court 496 n. 89 L.Ed.2d 23 491 power advisory no to issue it had (1969). arising in Even cases Hayburn’s Case, opinions, 2 Dall. courts, question state of mootness (1792), interpreted in 1 L.Ed. 436 as is a federal one which a federal court States, v. United Muskrat juris must resolve before assumes 346, 351-353, 250, 55 L.Ed. 31 S.Ct. Henry Mississippi, diction. 379 U. v. (1911), frequently re 246 has 443, 447, L.Ed.2d S. 13 peated without that federal courts are (1965). Jafco, Inc., Liner su 408 v. power questions can to decide pra, 391.” 375 at rights litigants in not affect of U.S. at 246, 404. 92 S.Ct. at the ease before them. Oil Workers Missouri, 363, 367, however, Beyond dictates, Unions these broad (1960). 4 L.Ed.2d 373 about mootness suffer statements cognizable court, general infirmity in a To be a federal discussions same as concrete, subjects.8 Though suit ‘must be definite about most abstruse touching legal parties problem, relations of mootness is a constitutional having legal specific parameters interests. adverse articulation assayed It be a real and sub must of the doctrine has never been spe admitting Rather, Supreme stantial Court.9 through prptean a decree of con cific relief a in na- doctrine mootness is distinguished character, assuming shapes ture, as dif- clusive different opinion advising Indeed, what from an cases ferent times. the recent Processing In Association of Data Id. at worthless such.” Serv Camp, Organizations, ice Inc. v. at 829. Douglas Appeal generally, Note, Justice ascribed to discussions Mootness on See applicable standing quality equally Court, Supreme in 83 Harv.L.Rev. Ap Note, (1970); to “Generaliza discussions mootness. Moot on Cases largely Power, standing peal: tions to about sue are A Limit on the Judicial (1955). 103 U.Pa.L.Rev. confronting enjoin appear issue collection of would the tax as levied against produce unitary, it. Before coherent reached line. Supreme Court, Singer, pursu- still problem litigation, paid Al- the tax. presents recurring refrain several though acknowledging that an action for types Analysis them reveals cases. restitution, which would raise the same Supreme four concerns issues, might lie, dis- They addresses terms mootness. nothing missed the case as moot because judicial are: sort of decree be some enjoined. See, remained to be Commer- possible, parties remain Burleson, cial Cable Co. posture sufficiently ef adverse to insure 39 S.Ct. generally, See litigation, in con fective issue Note, Appeal in Mootness concrete, and that tention continue Supreme Court, 83 Harv.L.Rev. the yet not be one recur issue that will 1674-5 Beyond unreviewable. these ob Much of the recent motion servations, however, become conclusions in mootness field has occurred difficulty least in difficult. This is at volving convicted have criminals who part proximity attributable leading prison. been released justiciability several other mootness precepts, cases, separated twenty-five years, il tendency of courts *5 and emphasis lustrate the Court’s shift just doctrine unclear as to which become on an effective decree to a more func example, applicable. For concern approach in tional the context of a crim adversity is related with sufficient situation, looking in inal for sufficient “standing,” question the fear and adversity parties. and terest between ap regarding loss of concreteness States, U. v. United 319 Both Pierre St. beclouding proaches ripeness. Further 41, 910, 1199 63 S.Ct. 87 L.Ed. S. congruence, seeming problem is the York, (1943), New 392 U. and Sibron v. times, jurisdictional require at of the 40, 1889, 20 L.Ed.2d 917 88 S.Ct. S. declaratory judgments ments for and the by per challenges brought (1968), were g., mootness doctrine. See e. Golden v. prison com had been terms sons whose pleted. 956, 103, Zwickler, 22 394 89 S.Ct. U.S. Pierre, dis court In St. (1969). spite In the im L.Ed.2d 113 moot, stating: missed as pediments attempting involved draw conclusions about the content argument conceded it was “On doctrine, mootness resolution fully petitioner served his requires the concerns grant- certiorari was sentence before responds developed. which mootness opinion that the case is are of ed. We because, petitioner’s serv- after moot early The mootness were bot- eases expiration, of his sentence ice unwillingness tomed on the Court’s longer subject matter no a there was act it could that par- unless issue a decree judgment of this Court on which the legal rights would affect the of the operate. court A federal could litigation. frequently ties to the There ques- power moot to decide without underpinning was no discussion of the advisory opinions give or to tions concept, but is clear rights of the affect the cannot which “judi- phrase Court considered United litigants it. in the case before power” encompassed cial situations Co., 253 U.S. v. Alaska S. S. States in which an effective decree could be 448, 115-116, 64 L.Ed. 113, 40 S.Ct. rendered, or that such was a situation cited; v. States 808, United Sing- “controversy.” not or a “case” 466, Co., Hamburg-American U.S. 239 Manufacturing Wright, 141 er Co. v. U. 387.” 212, L.Ed. 60 36 S.Ct. 103, 696, L.Ed. 906 12 35 S. S.Ct. 42, at 911. 63 319 U.S. Georgia alleged (1891), to dis- tax Ellis, 80 362 U.S. v. Parker impermissibly two See between criminate (1960). Sib- brought 4 L.Ed.2d Singer suit classes of retailers. operative however, ron, to moot v. Medical SEC Committee asserted, Rights, because, the brev- for Human 92 S. as the Court (1972), ity before Ct. where made review sentence enduring ruling impossible, ef- that Dow and the Commission release anti-napalm proposal that Sib- need not include conviction assured fects of the litigate ques- diligently proxy in its 1968 was held ron would tion, solicitations longer finding no in a concrete factual context. reviewable. Stubbs, voluntary 92 mootness was on Dow’s based See Mancusi v. (1972). proposal A L.Ed.2d 293 inclusion of the licitation, its 1971 so support the motiva- seemed lack of concreteness less-than-3% time, proposal in North of mootness received at tion for Rice, supra. regulations permitted Aikens v. v. See Dow SEC Carolina California, years proposal 92 S.Ct. delete for three support.12 L.Ed.2d 511 such limited frequently those group quoted eases includes cases of Another most something pas- voluntary type other than are United in which cessation sage Co., the mootness T. time creates States v. W. Grant & (1953) involves 629, ease problem.10 This class 97 L.Ed. 1303 voluntary ces- changed Trans-Missouri circumstances United States activity. Thus, Freight Assn., questioned sation changing led to times have at Both in- conditions doctrine. volved conduct defendants claimed an invocation Harrison-Allentown, Guys antitrust laws. From be in violation of In Two McGinley, defendants, case, ceasing Inc. 1135, in each activity, urged enact- allegedly illegal L.Ed.2d 551 Sunday-clos- brought by govern- proceedings *6 ato ment of an amendment statute, new ing plus of a the election thus moot. In each ment had become looking Court, an assault prosecutor public held to moot to the in- were case v. In Golden “Blue Laws.” in on the enforcement of antitrust terest challeng- Zwickler, Zwickler, supra, law, possibility was that the defend- and the prohibiting might repeat questioned activi- New York statute ants a anonymous ty, handbills. not moot. held that the distribution cases distribute he desired to considerations The handbills The decisive Grant Multer, Congressman an incum- as clear as attacked Trans-Missouri are not running Be- 1964. for reelection Neverthe- bent some other mootness cases. government less, Su- heard U.S. fore the case was the interest of the Court, Jus- preme seeing a Multer had become not evaded laws be activity ceasing York. Supreme practice questioned New tice of having target govern- challenged, removed thus been His when assure unlikely reap- litigant. politics The from active will be an active ment activity not to pear, questionable held was Zwiekler’s fact any longer.11 justiciable two being These the liti- the start of conducted at by pro- gation both exemplify appeared concern the Court’s aid the Court cases controversy. viding See Unit- with the concreteness a concrete continuing Phosphate nature Ex- adverse and the parties. ed States Concentrated v. port Inc., Assn., elements seem 199 same U.S. The 393 problem dealing posing with that have but under the elections one Cases expired Nevertheless, Declaratory Judgment jdace, that have taken orders Act. review, injunctions frequently have as mootness case. it is cited type lapsed, infra, third discussed are 12. See Johnson v. New York State Educ. of case in mootness occurs. Dep’t, 92 30 L. S.Ct. earlier, .2dEd 785 As discussed Golden v. Zwick- ler, technically supra, is not a mootness

917 dealing Party Another line of Socialist Labor the statute comprised mootness of those in which attacked as unconstitutional was amend- ed, passage correcting many of time has caused the im- of the infirmities object litigation alleged by plaintiffs. mediate to be- that had been Typical disputes Party The attempted come unobtainable. Socialist Labor way challenge keep by pointing in some election laws. their suit alive to an private provision. eases Court, In these plaintiff citizen the unamended oath government and the is the de- the heart of the suit had problem removed, arises permit fendant. refused it to be passed. pursued tangential Three election has because on this issue.13 appeared cases which this issue have greater A number of cases wherein moot, Brockington Rhodes, held v. passed the election has held have been U.S. S.Ct. L.Ed.2d 209 Gray Sanders, not moot. In v. (1969); Beals, Hall 9 L.Ed.2d 821 (1969); L.Ed.2d 214 and Georgia’s primary county-unit system Party Gilligan, Socialist Labor Though was assailed. the use of the specific system enjoined in had been brought (1972). Brockington was a suit court, Party, district and the Democratic Congress for a would-be candidate primary challenged, whose was the one seeking requiring a writ the election actually popular held the election on a ballot, a to list his name on the board basis, Supreme Court did not find step the board had refused to take since the case moot. The Court stated two nominating petitions filed the as- proceeding reasons for to the merits. required pirant were short of num- First, reg- the district court’s signatures. ber only present election, ulated dis- stated that because the election was Georgia missal the case would restore passed, the case moot since the quo ante, e., to the status i. able con- unavailing. relief was now county- future under the duct elections Brockington appear would to be a re- citing system. Second, unit United turn, perhaps anachronistically, Grant, supra, the v. W. T. States “effective decree” standard. voluntary the Democrats’ ab- challenge Hall was a to Colorado’s challenged activity from the did stention residency requirement six-month guarantee in the next such restraint *7 voting. An amendment the Though statute election. nowhere so articulat- reducing months, requirement the to two ed, approach this indicates that the if passage and the the election were activity in a is imbedded controverted appeal. held to moot the statute, rendering high probability the Since the reducing residency amendment the re- complainants repetition, and the will quirement permitted the would have repetition, there is suffer with each then vote, and, they eli- would be adversity. Bullock v. sufficient See gible election, in to vote the next this Carter, 17, 134, 141 n. 92 general- 405 U.S. perhaps explained (1972). case is as a decision 849, L.Ed.2d 92 See 31 adversity. on ly Note, based lack of 83 Harv.L.Rev. at 1684-5.14 to Hocialint Labor Diffender Similar eases thus seem to indicate Chuck, Baptist fer v. Central will not act the main issue Court when (1972). only L.Ed.2d 567 has been resolved and incidental tax-exemption Diffenderfer, ac In issue remains to be decided. parking corded a church-owned lot under questioned. a Florida statute was After 14. The Court three recent election situ amended, appeal appeal statute was ations has held not moot cases on Supreme Court, passed. reached the after the election lias In Fort speculative ques Toombs, it would not decide son v. statute, (1965), tions about the new 13 L.Ed.2d another case arising Georgia, the matter was not moot. Both these from vacated series of introduces an- preserved justiciabili- A final cases considerations ty element into mootness doc- other of an attack a Tennessee resi- brought by parties dency-for-voting are requirement trine. These eases in Dunn v. injury Blumstein, of a 330, 333-334, who suffer from effects 92 S. government short-lived preme order. The Su- Ct. 31 L.Ed.2d 274 n. 2 ' that if the im- Court has stated In Carroll v. President Commis- pact always pass of such order will be- County, sioners of Princess Anne possible, fore review then case is moot, not for a of mootness (1968), prevention potentially in- any possibility would foreclose re- flammatory supremacist” “white rallies progenitor type view. of this of by ten-day injunction onwas suit is Southern Pacific Terminal Co. v. Supreme impossibility Court. The ICC, ten-day of review of a had ordered ICC Southern expiration persistence and the giving preferences Pacific to cease to petitioners, by pursuing legal both shippers, certain the order to continue questions by agitating with “con- years. ap- for two Southern Pacific’s tinuing programs,” activities and fore- peal the order heard was not holding closed a of mootness. until after two- Having compo- discussed these various provision year of the order had ended. doctrine, nents of the mootness it re- Holding the not the Court mains to relate them the assault finding of mootness would stated that a “interpretive regulations” of New which, be- create a class situations Jersey’s program presently welfare be- cause of the short duration direc- many respects, fore this Court. tive, engage government could ac- case, arguments is a close ing seem- with the “capable repetition, yet evading tions nicely to be balanced. review.” 219 U.S. at 31 S.Ct. at urge employers they suf- fering continuing injury from mere Recent have relied on this doc- programs. existence of the welfare Un- Ogilvey, In Moore trine. argument accepted, less this 89 petitioners 23 L.Ed.2d pears that this case is moot. challenge had raised a to an sought by employers relief requirement potential Illinois that a could now be of use would be a de- signatures fifty nominee amass coun- claratory Though judgment. such a dec- Citing Pacific, ties. Southern might impermissible, laration justiciable, held that this case was encompassed considerations in the moot- though passed, for if the the election had doctrine need ness be addressed. tested, 50-county requirement were not judged by high degree Adversity there be a certain- must be would ty objective Here, that it would control- an continuing injury, standard. absent a continue *8 ling posture from election The same the of the to election. finding three-judge and the of remanded decree of a mootness followed vacation court, might district but not hold the the lower court's order result did case vacation, remand, procedure challenged moot. in the return The and how- of the ever, may lawsuit, and well have been motivated reinstitution of the approaching concerns would raise the concreteness the same issues. pro- Roudebush, involving In element of the mootness doctrine. a suit the Chavis, priety ordering Whitcomb v. a re- a state court’s (1971), 29 L.Ed count in a .2d 363 and contest for the office of U. S. Hartke, Senator, Roudebush v. the constitutional issue of who (1972), ultimately judge arose the result of the race, Whitcomb, state, in the or the Indiana. a multimember U. S. Senate re- legislative-district clearly contention, plan question. barring in in mained a Although election, finding after the the of mootness. proceeded to decide this case because a antag- sufficiently Thus, holding may avoid this not be that case swpm, Beals, one must found either As in Hall be that onistic. injured im- into but will be this falls who has been Southern Pacif- spec- category, presence paired only in the if certain ic or that of the future on-going contingencies pass programs has an direct effect come ulative litigation. longer pursue appellants. properly no willingness Moreover, of the state II. policies adequately to defend officials threatened, injunction, an now not with analysis The doctrine judgment, may declaratory but persisting vitality of indicates Having substantially be diminished.15 this turns on close issues: two this, important note the stated “continuing question and the effects” intervention of the Teamsters Union question. A resolution Southern Pacific curiae, participation, amicus is, however, simpler Supreme made of Commerce of the United Chamber ease, centrally important to deter- parties presence States. of these The mining ap- to this the answers crucial suggest on-going interest in the does peal. litigation. in issue raised this 8-6, Oil, Chemical and In Local No. procedural posture The of this case Int’l, Workers, Union, Atomic AFL-CIO makes it the antithesis of a “concrete” Missouri, dispute. testimony taken, No has been union, repre- L.Ed.2d 373 findings adduced, no no evidence made. senting private company employees of a Thus, prospect we are not with the faced challenged selling gas, the con- natural stating go lengthy must that a trial statutory stitutionality a Missouri nought. Rather, we are asked to de- King-Thomp- scheme, referred to as the “questions cide law” somewhat legislation pro- Act. The Missouri son setting. Moreover, an abstract the real that, upon condi- certain vided possibility change regulations present, could seize tions Governor conjectural.16 renders this case public operate privately-owned Finally, struck, being utility we strikes must deal with the conten- and that government against program tion is a facilities after take- such Having “capable yet evading repetition, re- be unlawful. struck over would gas developed, infra, company, then view.” As will Governor enjoined seized, employees contention was raised but met Minter, supra. stoppages, presence, ITT v. accord- from further work case, program. dispute statutory active labor ance with still issued, argument injunction day raises doubts about after capable evading un- this is a situation month later re- ended. One strike Kirby, derlying view. See Russo v. F.2d was resolved and (2d 1971). cognizant Nevertheless, that, Cir. the seizure was eleven weeks after required perfect appeals of the time union continued terminated. peal both to this and to the issuance Court, review the Missouri unavailable a declaration that interfering majority unconstitutional, of Cases such this. statute was Grant, supra, plaintiff-appellants’ complaint 15. In T. Trans- W. 16. As *9 Missouri, supra, support willingness their motion defendants’ memorandum in of clear, injunction preliminary to defend be assumed to have been make interpreta- by type challenge motivated a desire avoid is aimed at an tbe their by government regulation promulgated of relief defendant- tbe tive Interpretative regulations subsequent private treble-damage a fear of Commissioner. actions, strong rapidly changing among motivators indeed. the most components oft-changed of welfare programs. 920 ground workings statute, that the contro- on the

with the National Labor Suprem- become moot. In both basis of versies had Relations Act—the underlying cases, however, acy those Workers Clause claim both Oil dispute present been and new settled further —and agreements bargaining alleging con- collective there was a violation litigation cluded clause of the Fourteenth time Due Process Here, Although by con- reached Su- this Court. the Missouri Amendment. dispute adjudicated trast, preme the labor remains unre- the union’s merits, peal solved.” 374 U.S. at 83 S.Ct. United States Su- (Emphasis added). expiration preme at held that the la- and settlement that, employers de- here contend dispute rendered the case moot. bor spite dispute, the settlement of the labor 1287, support Employees present v. not moot. In In Division Bus is urge 74, 1657, position Missouri, they their that the ter- 374 U.S. 83 S.Ct. (1963), mination of the does not L.Ed.2d the same Missouri strike end they injury suffer, challenged, statute but rather that their was there the con- bargain collectively dispute ability text of a labor unsettled even Supreme when the union is terminated case reached the when contract holding hampered Court, very Court. The Bus Em- existence of the distinguished ployees adjudicable, programs. They welfare that, Oil next claim bargaining Battle, Workers and since collective has Harris v. 348 U.S. 34, on-going process,17 held to an 99 L.Ed. 634 be there Workers, dispute adjudicated, on in still an earlier case relied Oil active injury. they and stated that the resolution or contin- and that continue to suffer uation of the labor was determi- argument The second crucial to avoid- native mootness. for mootness dismissal maintains “Reliance for the claim of mootness this case should be considered in placed upon limited, this Court’s decisions Southern class Pacific Battle, evading “capable repetition, yet v. Harris 75 eases Lamp 99 L.Ed. and Oil review.” In Work- ITT Division18 Missouri, Appeals ers Unions Court of 361 U.S. for the First Circuit presented quite L.Ed.2d In the was with a case similar present Responding Oil case the Workers Court declined to one.19 challenges issue, consider constitutional to mootness First Circuit stated King-Thompson Act, appear problem and in the indeed to be did ‘recurring catego- question’ Harris case declined to rule on the “close to the constitutionality Virginia citing ry,” Pacific, aof similar Southern 435 F.2d 17. Our attention has called to the conclusions be drawn from the denial Fishgold Drydock Maryland v. Sullivan & of certiorari. See v. Baltimore Repair Corp., Show, Inc., Radio (1946) (1950) (Frankfurter, 90 L.Ed. and Aero- 94 L.Ed. 562 Lodge ) ; Wechsler, nautical Industrial District H. M. Hart H.& J. The Federal Campbell, and the Federal Courts System 93 L.Ed. 1513 Both cases dealt rights reemployment with the of vet- Circuit, 19. The First there returning erans from the Second World preemption was not a federal they War. AVhile it is clear that can be balancing of the effects each other proposition said to stand for the that col- joint of the federal-labor and the federal- on-going process, lective is an policies required', state welfare they problem do address similar jjroperly a role more to the one raised here and thus cannot played Congress affirmed dispositive problem. of the mootness District Court’s denial relief. Appellants point disposition case, out the United view of our we States Court denied certiorari need not comment further on the First ITT, and did not vacate as moot. No Circuit’s actions. *10 Circuit, however, King-Thompson Act, 991. The First did under which required not decide nor ‘posses was decide the Governor had ordered that whether issue was within South- sion’ be company taken of a transit case, ambit, employees ern for a second whose were on Al strike. Pacific raising challenge, though dispute the same labor-welfare the labor was subse already joined appeal, quently had settled and the seizure termi yet nated, in the latter ease the strike had pro the trial court nevertheless been resolved.20 ceeded to decide the merits of the case, holding that the seizure was con Workers, however, responds to Oil Battle, stitutional. Harris v. 32 L.R. questions employ- both essential Virginia Supreme R.M. 83. argument. Workers, just ers’ In as Oil appeal. Court refused an Harris v. present strike, ease, in the the threat to Battle, Va. lxxxviii. In this Court principal weapon, labor’s economic urged controversy it was wa's program. affected a state The em- continuing not moot because of the ployees in Oil Workers could have con- threat of state seizure in future labor bargaining tended that ability their collective disputes. argued It was hindered their em- alleged State’s abandonment uncon ployer’s knowledge that a strike could objective activity stitutional after its provoke terminating an accomplished had been should not be stoppage, resolving work without permitted to forestall decision as to dispute.21 present ease would validity of the statute under pear Here, to be the obverse of this. purported which the State had to act. employers arguably claim that It was contended that the situation bargaining ability their collective was akin to cases like Southern Pae. employees’ knowledge hindered Terminal Co. v. Interstate Commerce might that a strike be made more endur- Comm’n, 498, 514-516, 219 U.S. 31 S. through receipt able of welfare benefits. Ct. L.Ed. 310. Supreme Court, Workers, in Oil the Court citing its earlier dismissal of Harris v. necessarily rejected all these conten Battle, supra, squarely rejected both tions. 348 U.S. 75 S.Ct. portions argument: appellants’ Upon authority L.Ed. 634. Battle, “In Harris v. that decision the same contentions princi- 99 L.Ed. rejected present these must be case. ples given application Union, concrete See also Barker Co. v. Painters parallel a context explicitly so as disposition primary 967; control is- Commercial Cable Co. v. Burle originated sue here. That case son, 63 L. enjoin action to the enforcement of a Ed. 1030. Virginia statute, markedly similar to 361 U.S. at 395.22 Indeed, Judge stated, 20. Coffin after dis lective the “back- because of cussing' doctrine, argument, alone, tlie Southern ground fears” is not Pacific any event, however, appeal “In weighty enough keep alive a contro- joined appeal Maurice Concrete versy. [the ITT, dispute in which the had continued] Three Justices dissented Oil Work- presents question.” the identical F. dissent, however, ers. Their was bot- 2d at 991. possibility striking tomed on the un- The fact strike was still ex- monetary might ion members be liable for istence at the time the was before damages seniority, question loss the First Circuit indicates that evasion majority properly held not to be be- of review is not inevitable. expressed fore the No Court. one Emloyees, supra, In Bus the Court doubts the resolution of the labor stated major the threat of reinvocation of mooted the issue case, constitutionality injunc- seizure act in Oil Workers was speculative. This well be read to tion. indicate that the detrimental effect on col- *11 pro- immediacy solidity

More recent and of interest neces- sary support jurisdiction on mootness in labor cases to nouncements is reflected significantly atmosphere abstraction, undercut the here have not ambiguity, conjecture surrounding Workers rule that settlement Oil and dispute, special underlying Accordingly, this matter. labor absent we now dis- holding circumstances, requires appeal miss as moot with directions Sears, & Co. v. to Roebuck court, mootness. See district to va- remand, Layers, Carpet 90 S.Ct. cate and dismiss for the same reason. Munsingwear, 25 L.Ed.2d 637 See United States v. U.S. L.Ed. 36 Jafco, Inc., In Liner v. Party Labor Socialist v.- Cf. Gilligan, n. picketing enjoined court Tennessee state (Douglas, 32 L.Ed.2d 317. site, building required the con- and at a dissenting). J. injunction tractors who had indemnify post petitioners to bond disposition This is consonant “wrongfully” sued if the proper appreciation with a of the role of Appeals, out. The Tennessee Court the federal judiciary when asked de site at the construction constitutionality cide the of state stat completed, had been dismissed programs. cases, utes In such our challenge enjoined picketers’ moot. conjuring up task does not involve situa holding Supreme Court, The U. S. preserve quiescent tions an otherwise question, a federal consid- mootness is assignment issue, nor does our include petition- ered issues raised adjudication constitutional such is unless petition- ers. held The Court necessarily implicated in the decision of rights ers, federally protected whose squarely a case might abridged, have TVA, the Court. See Ashwander v. posted, whose the bond benefit had 288, 346-348, 80 L.Ed. continuing had a substantial stake (1936) (Brandeis, concurring). J. rights litigation had both because their required, Because we act when transgressed already been and because legitimately we all. The act at issue provision been made to redress such had presented now deprivation In the if found unlawful. therefore, stay we must our hand. pending, such considerations case now prepared, remanding An order will be present. Moreover, court are not state dispo- the case to the District Court for argua- problems interference opinion. sition consistent with this jurisdiction bly within the exclusive is a Su- NLRB matter GIBBONS, Judge (dissent- Circuit important preme particularly ing). compelled previously, therefore felt adjudicate the case. This is an from a dismissal pursuant the district court to Rule The cases discussed Part I of this 12(b)(6), Fed.R.Civ.P., for failure opinion, indicating perhaps some while upon state a claim granted. which relief lessening stricture, do appellants are two New viability appear to affect the of Oil Jersey engaged corporations tire If Oil Workers in labor context. According service sales and business. Workers is to be found not harmonious production complaint, all their of the moot- with the current contours employees represented service should, doctrine, ness decision defendant, intervenor Teamsters Local must, perhaps U. Su- be made S. May 14, No. 676. On Union preme Court. expiration of a collective requires agreement which been in The Oil Workers case effect appeal. May 15, The lack of since local struck that we as a dismiss this *12 Labor-Management parties’ failure to reach a the of the Relations Act result According agreement. amended, to com of as the U.S.C. new § progress seq.; plaint, et an intrusion that strike was still constitutes Jersey complaint the into the field was filed on June State New when hearing labor-management only relations which was that hearing Congress pre-empted occupied That has held on June and, pre plaintiffs’ powers; motion for a to the full extent of its was on the accordingly, VI, liminary support injunction, in of which Article Clause violates plaintiffs prepared 2 of to offer the Constitution of the United were hearing testimony. States.’’ At the the interven defendant, ing was Local Union No. hearing plaintiffs pre- At the were intervene; Attorney permitted pared testimony support to offer General, representing public official availability their claim that the of wel- defendants, permitted to make an fare for benefits strikers did in fact in- juris oral motion to for lack of dismiss infringe upon terfere with and free 1337, upon diction under 28 U.S.C. § bargaining. collective The absence of which the court never ruled. The inter proof hearing upon pre- such at the vening permitted defendant was to make liminary injunction upon by relied oral motion to dismiss for failure reason, among the Minter court as one upon may state a claim which relief be others, affirming the denial of a granted. advancing the Rule preliminary injunction in that case. 12(b)(6) motion, counsel for the local Here, prepared to of- upon opinion relied Cir First evidence, fer such but the court ruled Minter, Lamp cuit ITT Division v. complaint failed to state a cause (1st 1970), F.2d 435 nied, Cir. cert. de Reading complaint action. as a L. whole, paragraph 14, particularly although, (1971); Ed.2d 868 as that gravamen perfectly clear that the opinion clear, makes court district charge availability is that decision reviewed was the of a denial power strike benefits adds the economic preliminary after an eviden side, of the state to the union and there- tiary hearing. The district court below by bargain- interferes with the collective testimony, declined to take and dis ing relationship. solely upon missed the basis of the alle gations complaint. Thus, in the Thus, assum controversy only this is moot justiciable, case is still our (1) if welfare benefits strikers are no legal review would be confined to the longer available, (2) if no there is sufficiency allegations longer com bargaining a collective relation- plaint, particular allegations in ship which can be affected such

paragraph 14: availability. It is clear from the briefs public on filed behalf of the defendants “Plaintiffs believe and therefore aver that welfare are still benefits available payment by that the the State of New Jersey, strikers in New and that the Jersey through its instrumentalities present chang- state no has intention of political pursuant subdivisions, to ing policy respect pay- with to such interpretative regula- aforesaid Thus, upon ments. basis which tion, public public assistance and be classified as welfare benefits to individuals and the longer moot is a that there is no voluntarily families of individuals who bargaining collective relationship employment leave their directly en- can be affected the acknowl- gage actively participate in an edged availability continued of welfare against economic strike employ- their benefits for strikers. er, infringes interferes with upon free guaran- collective testimony Since no was taken in the teed Congress Plaintiffs court, under district the record is almost total- year respect ly three-year to were in devoid of facts one of a clause, of the collective bar- contract with agree the actual status a no-strike I would judges gaining relationship. controversy might too conflicting repre- speculative majority act to warrant decision. Short situation, impact as to the date of counsel sentations opinion bargaining relationship termination of the strike. collective availability states: of welfare benefits to strik- *13 may quite ers be real and immediate. “The union that the strike ‘end- states simply But we do not know sit- what the immediately prior ed to the June plaintiffs uation prived is because de- were hearing.’ employers allege The making opportunity a ‘employees that the did not return to analyt- record in the court. district The work 1971.’ Under ei- until June majority’s ical posi- unsoundness situation, ther a new contract factual reliance, sup- tion is reflected having ratified, accepted and it port conclusion, of its mootness on that is clear under- that the very deprivation. opinions The states: girding challenge to the New Jer- sey programs immediacy solidity been concluded “The be- lack of and judge necessary support juris- fore the trial dismissed the ac- of interest long appeals tion and before diction is reflected here in the atmo- (foot- argued sphere abstraction, filed ambiguity, or this Court.” omitted) conjecture surrounding note this matter.” deference, long logical leap With a ambiguity it is If there is it abstraction very from the little information fur- arises from If the absence of a record. upon agree, nished to conjecture, conjecture by us counsel which there is is by majori- majority panel. conclusion drawn of this Their con- ty. Among questions the unanswered clusion that there is no collective bar- gaining relationship are may these: af- by availability fected of welfare ben- contract, A. There is a but entirely conjectural. efits to strikers is long or short duration ? Appellate making decision re- cannot be disputation duced to scholastic about duration, B. If it is of short will previously rules to be from drawn decid- bargaining collective over terms ground- ed cases. It must first of all be renewal, of its extension or modi- ed in justifica- facts. There is no more fication continue while it is in ef- making hypothetical conjec- tion for fect? alleged upon tural decision an issue of long C. Whether it is or of short upon going mootness than issue duration, binding does have a the merits. grievanee/arbitration no- regarded having This case can as provision, or strike is the union been made moot the termination grievances free to strike over ? only the strike if we construe the com- availability D. Will the of welfare plaint protection as addressed any benefits to strikers ef- have integrity bargaining of the collective bargaining fect relation- relationship during only pendency ship of the above situa- fairly a strike. But it cannot con- be so tions? bargaining strued. over con- Collective vigorously goes on assert tract terms more often than bargaining relationship for months a strike. still affected Collective go availability bargaining grievances on of strike benefits. If over complaint parties continuously. record established seeks Jersey regulation rela New unfetter collective on welfare bene- alleged tionship challenged here, interference fits to strikers interfer- Jersey. relationship relationship regulation New for which ence protection preempted paramount of the court has been which has been continuing one. NLRB See federal law. While the case Ledger, Morning peal governor v. Newark F.2d terminated the sei- (3d Cir.), denied, urged mootness, cert. zure. Missouri then relying on Oil Workers Unions Mis- souri, L. protection the context involving Ed.2d 373 a case continuing relationship perhaps two identical declined The Court statute. many discussed in the decisions dismiss held the Missouri Fishgold majority opinion relevant, statute unconstitutional. It distin- Corp., Drydock Repair v. Sullivan & guished Oil Workers because 90 L.Ed. 1230 *14 case both the labor and the sei- Missouri, Employees (1946); Bus ended, zure in had whereas Bus Em- L.Ed.2d 763 ployees the strike had not ended and the availability of the seizure device as an Fishgold off was laid a veteran terminating available means it had an compliance employer the sen- his in with ongoing Employees, again, effect. Bus bargain- iority provisions of a collective only analogous authority the since ing agreement. employer He sued protection of the damages judg- declaratory for a for and right right strike, lawful under the layoff in violation of ment that his National Act which Labor Relations 8(c) Training Section Selective attempted Missouri to make unlawful. 1940, U.S.C.App. Act of and Service § But issue the case is on taking intervened, union 301. The labor recognizes closely quite point, in for validity position of the defense availability interfer- of state provisions. seniority The dis- contract upon ongoing effect ence have an damages money trict court awarded relationship, the collective appealed. veteran, union and controversy over such availa- and that a Meanwhile, one-year statutory veter- long bility as the affect- is not original period preference for an’s relationship ed exists. employment plaintiff’s ex- had veteran are of consid- issues in this case pired. held that the likely interest, public re- and erable ongoing union, relation- because part Overanxiety fed- cur. ship employer vir- between and non-justi- cases eral to find such courts contract, standing tue of the labor judicial our not consistent with ciable is appeal. still contract was Since the Judge obligations. said Coffin As existence, not moot. the case was similar context: authority course, only Fishgold is, of analogy. by way But against the instant “Although ITT was the strike analogy issue, than settled, closer we subsequently judges in the ma- experience, has our own know jority rely. sought appellate review vainly earlier likely again to be and is majority opin- in this circuit Employees, Bus as the ‘recur- raised, bringing it close validity points out, with ion dealt signifi- category, ring where question’ gover- gave the statute which a Missouri rights involved public are cant authority to seize nor that state not, possible, ought if review utility court public aof the facilities Co. v. Terminal Pac. See So. avoided. strike, operate them and to event of a I.C.C., 219 U.S. public The statute interest. (1911) Marc- challenged as is on the same basis Director,

hand v. U. S. Probation Of- cock Mutual Life Insurance Co. v. Com- fice, (1st 1970).” 421 F.2d Insurance, missioner Cir. 349 Mass. Lamp Minter, supra, ITT Division v. 208 N.E.2d 516 I would remand 435 F.2d at 991. the case to the district court for a hear- first, to determine the actual collec- properly We cannot without a record bargaining relationship tive between the hold that this case is At moot. the same parties, next, way, in what factual- time, record, is no since there we cannot ly, relationship affected, that actual if possibility rule the situation out all, by availability of welfare ben- changed parties as to ren- has so Only efits to strikers. with such a der the case moot. issues involved properly record can we decide if there is complex proper their resolution genuine controversy, still a Compare case or Lamp far ITT Di- from clear. Minter, supra, so, Han- if vision John how it should be resolved.