Opposition Brief — Shirley v. Schraer

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No. 88-712 |

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

RALPH B. SHIRLEY, ET AL., PETITIONERS

Vv.

JOSEPH G. SCHRAER, POSTMASTER, UNITED STATES

POSTAL SERVICE, SAN ANTONIO DIVISION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

ROBERT S. GREENSPAN

LOWELL V. STURGILL, JR.

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTION PRESENTED —

Whether petitioners’ challenge to the Postal Service’s is-

suance in 1987 of special cancellation stamps to com-

memorate the September 1987 visit of Pope John Paul II

to the United States is moot.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Barrett v. Roberts, 551 F.2d 662 (Sth Cir. 1977) ......... 7

Bowen v. Kendrick, No. 87-253 (June 29, 1988) ......... 6

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........ 4,5

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Hall v. Board of School Comm'rs, 656 F.2d 999 (Sth Cir.

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Lynch v. Donnelly, 465 U.S. 668 (1984) ............... 6

Murphy v. Hunt, 455 U.S. 478 (1982) ............... ie ye

Valley Construction Co. v. Marsh, 714 F.2d 26 (Sth Cir.

STS a ee ee 7

Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-712

RALPH B. SHIRLEY, ET AL., PETITIONERS

V.

JOSEPH G. SCHRAER, POSTMASTER, UNITED STATES

POSTAL SERVICE, SAN ANTONIO DIVISION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 33-35) is

reported at 851 F.2d 1419 (Table). The opinion of the

district court (Pet. App. 29-30) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 8, 1988. The petition for a writ of certiorari was filed

on October 6, 1988. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

On July 29, 1987, the United States Postal Service an-

nounced plans to offer pictorial philatelic cancellations in

each of the nine United States cities that Pope John Paul

Il planned to visit from September 10 to September 19,

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2

1987 (Pet. App. 33). On request by a postal customer,

designated postal stations in each of the nine cities would

hand-cancel the customer’s postcards or first-class letters

with a special rubber stamp bearing the emblem of the

Vatican city state. The Postal Service selected the 1987

visit of Pope John Paul II as the subject of a pictorial

philatelic cancellation because the visit was an event of

widespread national interest by virtue of the Pope’s posi-

tion as a world leader and head of state. See Declaration

of W.L. Davidson 44 3, 7, 9, 10, 23.' One of the nine cities

that the Pope planned to visit was San Antonio, Texas

(Pet. App. 18).

On August 25, 1987, petitioners filed a complaint

against the United States Postmaster General and the

Postmaster of San Antonio in the United States District

Court for the Western District of Texas. The complaint

sought temporary and permanent injunctive relief barring

respondents from issuing the pictorial cancellation as

described above (Pet. App. 34).

After the district court denied petitioners’ motion for a

preliminary injunction by order of September 11, 1987

(Pet. App. 25), the Pope completed his visit to the United

States, and the Postal Service issued the cancellation

stamps in question. The district court later granted the

Postal Service’s motion to dismiss the case as moot, reject-

ing petitioners’ argument that the case falls within the

category of cases that are “capable of repetition, yet

evading review” (Pet. App. 29). Citing this Court’s deci-

sion in Murphy v. Hunt, 455 U.S. 478 (1982), the district

court explained that a case falls within that category only

when “(1) the challenged action is in its duration too short

to be fully litigated prior to its cessation or expiration, and

' The Davidson declaration is in the record as an attachment to re-

spondents’ Opposition to petitioners’ motion for a preliminary injunc-

uion.

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3

(2) there is a reasonable expectation that the same com-

plaining party will be subjected to the same action again”

(Pet. App. 29). The court further explained that “[m]Jere

physical or theoretical possibility is not sufficient. Rather,

there must be a reasonable expectation or a demonstrated

probability that the same controversy will recur involving

the same party” (Pet. App. 29-30 (citations omitted)).

Applying that standard, the district court found that the

cancellation stamp that commemorated the September

1987 visit of John Paul II was developed for that one event

and is no longer in use (Pet. App. 30). The district court

also found that another visit by John Paul II is “only a

possibility,” since there are “no plans for another visit here

by this Pope” and since “[nJumerous events could tran-

spire hereafter which could affect such a possibility”

(ibid.). Based on those findings, the district court con-

cluded that a ruling on the constitutionality of the

cancellation stamp would be “a mere advisory opinion

which may never have legal consequences” (ibid.).

The court of appeals affirmed, holding that petitioners

“have not established a ‘demonstrated probability’ or a

‘reasonable expectation’ that the current pope or his suc-

cessor will visit the U.S. and that the Postal Service will

commemorate the event with special cancellations” (Pet.

App. 35). Rather, the court of appeals found, petitioners

“have shown no more than a speculative possibility of such

occurrences” (ibid. (citing Murphy v. Hunt, supra, and

Weinstein v. Bradford, 423 U.S. 147 (1975)}. The court of

appeals rejected petitioners’ contention that the Postal

Service’s issuance of cancellation stamps in connection

with previous papal visits to the United States and “the

great pastoral and financial success of the Pope’s most re-

cent visit” satisfy the “demonstrated probability” test (Pet.

App. 34-35).

4

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or another

court of appeals. Further review is not warranted.

1. Petitioners concede that the district court and the

court of appeals applied the correct legal standard to the

facts of this case. They acknowledge that this case is moot

unless there is a “demonstrable probability that the same

controversy will recur involving the same complaining par-

ty” (Pet. 5-6 (citing Murphy v. Hunt, supra)). Accord City

of Los Angeles v. Lyons, 461 U.S. 95, 108-109 (1983);

Weinstein v. Bradford, supra. Thus, the only issue

presented by the petition is whether that standard was cor-

rectly applied to the facts of this case.

Petitioners fail to establish that the district court or the

court of appeals erred in its application of settled

mootness principles. For example, petitioners fail to ex-

plain why a future visit by the Pope to the United States is

anything more than a mere possibility on the present

record. As the district court noted, the record contains no

evidence of any plans for another visit here by the Pope

(Pet. App. 30), and numerous future events could affect

such a possibility (ibid.). For example, religious and

political conditions in the United States and the rest of the

world might very well lead the Pope and the Catholic

Church to conclude that the Pope’s time and attention is

needed elsewhere, or that the goals of the Church would

be advanced more significantly if he were not to return to

the United States.

Furthermore, as the court of appeals observed (Pet.

App. 35), there is no demonstrated probability on the

present record that the Posiai Service will commemorate

any possible return by the Pope to the United States with

special pictorial cancellations. Although the Postal Service

has issued such cancellation stamps in the past, the record

contains no evidence that it has decided to do so in the

future, and umerous circumstances might lead it to

decide not to do so. For example, the Postal Service might

decide that issuing such stamps would not be worth the

time and effort, or might decide to refrain from issuing

another stamp to commemorate a papal visit simply to

avoid lawsuits such as the present one.?

Finally, petitioners have not demonstrated any prob-

ability that the present issue would evade review if it were

to recur. If it should happen that another papal visit oc-

curs and is accompanied by another commemorative

stamp cancellation, then there is no reason why petitioners

or others with like interests cannot (as petitioners did in

this case) file a lawsuit sufficiently in advance of any

2 Similar contingencies have led this Court to conclude in several

cases that there was no “demonstrated probability” that the same con-

troversy would recur between the same parties. See City of Los

Angeles v. Lyons, 461 U.S. at 108 (holding plaintiffs claim for injunc-

tive relief barring city police from using chokeholds in the future moot

because the likelihood of the plaintiffs being subject to the chokehold

again was based on mere speculation); Murphy v. Hunt, 455 U.S. at

482-483 (holding criminal defendant’s suit challenging state court’s

denial of request for pretrial bail moot after defendant was convicted

in state court because there was no “reasonable expectation” that he

would ever be in the position of seeking pretrial bail again); Weinstein

v. Bradford, 423 U.S. at 148 (holding plaintiffs challenge to pro-

cedures of his parole moot after he was released from supervision

because there was no “demonstrated probability” that he would be

subject to the state’s parole system again). In each case, the challeng-

ing party’s past involvement with the criminal justice system was in-

sufficient to create a reasonable likelihood that he would be subject to

the complained-of actions again, just as in this case, for the reasons

stated above, the Postal Service’s past decisions to issue cancellation

stamps in connection with papal visits to the United States are insuffi-

cient to demonstrate that the present controversy will recur, and that it

will evade review if it does.

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future papal visit to allow a court to examine the issue

before any commemorative stamps are actually issued.

Petitioners’ response to this point —an assertion that it is

“improbable * * * that a lower court would grant an in-

junction against the Postal Service” (Pet. 9)—reflects

either an unfounded cynicism about the judical system or,

more likely, the grave substantive and _ procedural

weaknesses in petitioners’ case.?

2. Petitioners advance several arguments criticizing

the lower courts’ unanimous conclusions described above.

Petitioners claim, for example, that the Pope probably

will return to the United States because his last visit was a

“great pastoral and financial success” (Pet. 7). Petitioners

fail to cite any record evidence in support of that conclu-

sion, however, and fail to prove that the Pope will

evaluate the “success” of his last visit in those terms or

evalute the merit of a future visit along the same lines.

Petitioners also claim that, if John Paul II were to make

another pastoral visit to the United States, the Postal Serv-

ice would gain economically from using special pictorial

cancellation stamps again (Pet. 7-8). Once again, however,

petitioners cite no record evidence to support their sup-

position. Moreover, it is far from certain that the Postal

> Aside from the obvious improbability of petitioners’ First Amend-

ment theory in light of such cases as Lynch v. Donnelly, 465 U.S. 668

(1984), and Bowen v. Kendrick, No. 87-253 (June 29, 1988), it is ex-

tremely unlikely that petitioners have standing to challenge the Postal

Service’s issuance of commemorative stamps, at an appropriate price,

to those who care to obtain them. Petitioners’ tax dollars do not ap-

pear to have subsidized the issuance of the commemorative stamps in

1987 (see Pet. App. 19), so there is no “taxpayer standing” under Filasr

v. Cohen, 392 U.S. 83 (1968). Any other “injury” that petitioners

might assert is nothing more than “the psychological consequence

presumably produced by observation of conduct with which one

disagrees.” Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 485 (1982).

7

Service’s use of cancellation stamps will remain

economically worthwhile and that the Postal Service will

continue to consider the use of such cancellation stamps to

be in the public interest. Furthermore, this argument ad-

dresses only one of the multiple contingencies that beset

petitioners’ case, ignoring the possibilities that the Pope

will not return and that the controversy will not evade

judicial review even if he does.

Petitioners finally claim that this case is one in which the

Postal Service’s “voluntary cessation” of the cancellation

of stamps commemorating the 1987 visit should not be

allowed to moot their challenge to the practice (Pet. 10).

The “voluntary cessation” exception to the mootness doc-

trine does not apply to this case, however, because the ac-

tion complained of is contingent on an outside event not

within the Postal Service’s control—the Pope’s travel

plans.4

+ Thus, Hall v. Board of School Comm’rs, 656 F.2d 999 (Sth Cir.

1981), which petitioners cite (Pet. 10), is easily distinguishable. In that

case, the school board merely promised on the eve of trial to cease its

practice of allowing students to conduct devotional readings over the

school’s intercom system and allowing “Bible as literature” courses to

be taught in a manner that advanced religion. The actions complained

of were wholly within the school board’s control and not con-

tingent —as in this case — on outside events. The other court of appeals

cases that petitioners cite are equally distinguishable. In both Valley

Construction Co. v. Marsh, 714 F.2d 26 (Sth Cir. 1983), and Barrett v.

Roberts, 551 F.2d 662 (Sth Cir. 1977), a continuing course of conduct

between the parties was at issue, which made the dispute reasonably

likely to recur. No such continuing course of conduct exists here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

ROBERT S. GREENSPAN

LOWELL V. STURGILL, JR.

Attorneys

DECEMBER 1988

US GOVERNMENT PRINTING OFFICE 1988—241.699/00031