# Memorandum — Hijar v. Burrus > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0176%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1985 - **Citation:** 474 U.S. 816 ## Text —_—_— j Supreme Court, U.S. (u) FILED No. 84-1736 NOX 21 1965 | IOSEPH €. ae re JR. In the Supreme Court of the Hnited States q Octopser TERM, 1985 MIGUEL HIJAR, SUPERINTENDENT, FEDERAL PRISON CAMP AT Boron, CALIFORNIA, PETITIONER v. JAMES ROBERT BURRUS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MEMORANDUM FOR THE UNITED STATES SUGGESTING MOOTNESS CHARLES FRIED Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 “BEST AVAILABLE COPY 7 il TABLE OF AUTHORITIES Page Cases: : ; ee BOE UGE 4 ecccccceccccescee 3 DeFunis v. Odegaard, 416 U.S. 312 ............ 4 Golden v. Zwickler, 394 U.S. 103 .............. 3 Great Western Sugar Co. v. Nelson, Re gas nc EL, ewes eee 5 Iron Arrow Honor Society v. Heckler, TY Bubb nuk c wees ¥UbS 66 6ecees be eae r= 8 Jit % eee 3 Micklus v. Carlson, 632 F.2d 227 .............. 3 Murphy v. Hunt, 455 U.S. 478 ...........0005- 3 North Carolina v. Rice, 404 US 244 .......... 4 SEC v. Medical Committee For Human CS eS ree 3 Staie ex rel. Otterstetter v. McManus, 309 Minn. 68, 243 N.W. 2d 730 .............. 4 United States vy. Alaska Steamship Co., EE ee ee errr ree 5 United States v. Dobson, 585 F.2d 55, ee, RD koe cc ck cc cccccccecs 4 United States v. Munsingwear, Inc., eves eeeeeees 5 United States v. Reed, 620 F.2d 709, cert. denied, 439 U.S. 899 ........ cece eee ee 4 (I) Cases—Continued: Pies v. Sean, Ge Ue GF ovccccncesedéacésen 3 Vun Cannon v. Breed, 565 F.2d 1096 .......... 3 Weinstein v. Bradford, 423 U.S. 147 ......... 3,5 Statutes and regulation: Interstate Agreement on Detainers, 1S OBA. FID. 2 ccccccacesccescedssadeavde I CS = MPrrrererrstT rer 3 Ce PP ee 2 SP ee ee ee 3 AMG, FEED cceseccscessacensseneeee 3 Add. CED We manner that would have substantial adverse repercussions in future litigation, we would have maintained our petition and requested, as we now do, that the Court vacate the decision of the court of appeals. ‘The possibility that respondent may be reimprisoned by the federal government because of future misconduct is too attenuated to prevent mootness. See Lane v. Williams, 455 U.S. 624, 633 n.13 (1982); Murphy v. Hunt, 455 U.S. 478 (1982); Weinstein v. Bradford, 423 U.S. 147 (1975). See also Jron Arrow Honor Society v. Heckler, 464 U.S. 67, 70-73 (1983); Vitek v. Jones, 436 U.S. 407 (1978); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406 (1972); Golden v. Zwickler, 394 U.S. 103, 108-109 (1969); Vun Cannon v. Breed, 565 F.2d 1096, 1101 (9th Cir. 1977); Allen v. Likins, 517 F.2d 532, 534-535 (8th Cir. 1975); but cf. Micklus v. Carlson, 632 F.2d 227, 232-233 (3d Cir. 1980). ‘Arizona's detainer was lodged explicitly under the IAD. It is clear that the IAD has no application to an individual who has been paroled. Articles III(a) and IV(a) of the IAD, 18 U.S.C. App. 2, at 545-546, have as a predicate that the detainer be lodged against a “prisoner” who is . serving a “term of imprisonment” in a penal or correctional institution. J The IAD speaks throughout of the “prisoner,” his “term of imprison- ment,” the “State in which the prisoner is incarcerated,” the “place of his imprisonment,” and “the warden, commissioner of corrections, or other official having custody of [him].” Further, Articles III(a) and IV(b) 4 understand, moreover, that respondent is residing in Arizona, and there is nothing in the injunction that is the subject of the instant case to prevent the State—which is not a party to this action—from detaining him.* Consequently, whether the injunction at issue here stands or falls has no impact upon the parties; this case accordingly presents only a“ ‘question{] that cannot affect the rights of litigants in the case before’ ” the Court. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974), quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971). And, since this case does not involve a class suit, a challenged action of necessarily short duration, or a reasonable expectation that the controversy will arise for provide for certification “stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision{s] of the State parole agency relating to the prisoner”; Article V(f) states that after the pri- soner has been turned over to the receiving state, “time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.” See United States v. Reed, 620 F.2d 709 (9th Cir.), cert. denied, 449 U.S. 880 (1980); United States v. Dobson, 585 F.2d 55 (3d Cir.), cert. denied, 439 U.S. 899 (1978); State ex rel. Otterstetter v. McManus, 309 Minn. 68, 69-73, 243 N.W. 2d 730, 731-733 (1976); Annot., 98 A.L.R. 3d 160, 185-187 (1980 & Supp. 1985) (“Validity, Construction, and Application of Interstate Agreement on Detainers”). *We are advised that the Arizona Court of Appeals has taken the position that it will not consider the State’s appeal seeking reinstate- ment of the prosecution against respondent—dismissed by the trial court (see Pet. App. 37a-38a)—until the instant case is resolved, and the Arizona prosecutors have decided that they will not detain respondent until the court of appeals acts. This delay in the state criminal case proceedings is apparently due to the possibility that this Court would reach and decide the merits of the IAD issue in the instant case, thereby settling the merits of the Arizona appéal as well. The fact that non- parties choose to await its outcome, howevei, cannot keep an otherwise moot case alive. In any event, if the decision below is vacated by this Court as moot, that action itself would presumably revive the proceed- ings in the Arizona courts. 5 these parties again, it is not within the “capable of repetition yet evading review” doctrine. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Accordingly, the case is moot. See United States v. Alaska Steamship Co., 253 U.S. 113, 116 (1920). The judgment of the court of appeals should therefore be vacated and the case remanded with directions to vacate the injunction entered by the district court. See, e.g., Great Western Sugar Co. v. Nelson, 442 U.S. 92 (1979); United States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950). Respectfully submitted. CHARLES FRIED Solicitor General NOVEMBER 1985 DOJ-1985-11 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0176%3A4. Public record. Not legal advice.