498 F.2d 802. This is an appeal from a declaratory judgment rendered by the United States District Court for the Western District of New York, Henderson, J., which held unconstitutional certain provisions of the New York State Code of Rules and Regulations (7 N.Y.S.C.R.R., Chap. V) relating to prison disciplinary hearings, and which further prescribed the proper procedures to be implemented in all such hearings. The case was decided January 30, 1974, Nieves v. Oswald, 498 F.2d 802; rehearing was ordered on March 8, 1974 and argument was heard on April 4, 1974.
Oakes, Circuit Judge (dissenting). Moore and Oakes, Circuit Judges; Tyler, District Judge*fn*
Following this court's decision of January 30, 1974, Nieves v. Oswald, 498 F.2d 802 (1974), a petition for rehearing was granted in order to clarify certain aspects of the record. Argument was heard on April 4, 1974. Familiarity with the facts at issue will be assumed.
In response to this court's question in the January 30th opinion about the state's intentions concerning the holding of disciplinary hearings, counsel for the state secured and filed a statement from Peter Preiser, Commissioner of the New York State Department of Correctional Services. In that statement, the Department made it clear that it will not hold disciplinary proceedings concerning the behavior of any of the inmates in the Attica disturbance of September 9-13, 1971. Defendants-Appellants Second Supplemental Brief, filed April 3, 1974. At oral argument the following day, leave to submit briefs on the issue of mootness was granted. The last of these briefs was received on May 6, 1974, and decision by this court is now appropriate. We conclude that this case is moot.
In DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164, 42 U.S.L.W. 4578 (1974), the Supreme Court, in a case analogous to the instant one, vacated the judgment of the state court because it found that events occurring subsequent to the filing of the suit had rendered the case moot. DeFunis involved a challenge to the procedures and criteria employed by the Law School Admissions Committee of the University of Washington on the grounds that they violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the petitioner, DeFunis, claimed that he had been denied admission to the law school because of his race. The trial court ordered his admission to the law school, and by the time the case reached oral argument before the Supreme Court, DeFunis had registered for the final quarter of his last year in law school. Furthermore, respondents stated that regardless of the outcome of the appeal, DeFunis would be awarded his J.D. degree at the end of the academic year. The Supreme Court held that "because the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this court might reach on the merits of this litigation, we conclude that the court cannot, consistently with the limitations of Article III of the Constitution, consider the substantive constitutional issues tendered by the parties." 42 U.S.L.W. at 4579.
The reasoning of the Supreme Court in DeFunis is controlling in the instant case. There is no longer a possibility that any of the members of plaintiffs' class*fn1 will be subject to disciplinary hearings as a result of the events at Attica between September 9th and 13th. The controversy is thus no longer "definite and concrete", Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 81 L. Ed. 617, 57 S. Ct. 461 (1937). The question of what safeguards would have been required at disciplinary proceedings, if the state had not decided to forego these proceedings, is surely an academic one.
It does not matter, in this case, that the circumstances which have led to the dropping of any possible disciplinary proceedings stem from the voluntary action of the state. The state has made its decision not to proceed with disciplinary proceedings as a matter of record, and there is certainly no reason to believe that, once this case is dismissed, the state will then reinstitute disciplinary charges. As was pointed out in DeFunis, 42 U.S.L.W. at 4579, "it has been the settled practice of the Court in contexts no less significant, fully to accept representations such as these as parameters for decision. See Gerende v. Elections Board, 341 U.S. 56, [95 L. Ed. 745, 71 S. Ct. 565] (1951); Whitehill v. Elkins, 389 U.S. 54, 57-58, [19 L. Ed. 2d 228, 88 S. Ct. 184] (1967); Ehlert v. United States, 402 U.S. 99, 107, [28 L. Ed. 2d 625, 91 S. Ct. 1319] (1971); cf. Law Students Research Council v. Wadmond, 401 U.S. 154, 162-163, [27 L. Ed. 2d 749, 91 S. Ct. 720] (1971)." Moreover, this is not one of those cases where the respondent has changed its disciplinary practices and thus attempted to deprive the court of the power to hear the case. See, e.g., United States v. Phosphate Export Assn., 393 U.S. 199, 21 L. Ed. 2d 344, 89 S. Ct. 361 (1968); Gray v. Sanders, 372 U.S. 368, 9 L. Ed. 2d 821, 83 S. Ct. 801 (1963); United States v. W. T. Grant Co., 345 U.S. 629, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). As in DeFunis, the general policy here remains unchanged, but the individuals bringing the suit are no longer the present targets of disciplinary proceedings.
It is of course, true that some of the members of the present class still remain in prison and hence, many possibly become once again the subject of both disciplinary and criminal proceedings. This is not a case, however, like Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1694, 40 L. Ed. 2d 1, 42 U.S.L.W. 4507 (1974), where the governmental activity "by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties." 42 U.S.L.W. at 4509. In Super Tire, the issue was whether striking workers were eligible for assistance from state welfare programs. The Supreme Court, in a 5 to 4 decision, held the case not to be moot even though before the case was tried the strike had come to an end. The court found that the availability of state welfare assistance had a continuing effect on the present interests of the parties. As petitioners there argued, the eligibility of striking workers to receive benefits "affects the collective bargaining relationship, both in the context of a live labor dispute when a collective bargaining agreement is in process of formulation, and in the ongoing collective bargaining relationship, so that the economic balance between labor and management, carefully formulated and preserved by Congress in the federal labor statutes, is altered by the State's beneficent policy toward strikers." 42 U.S.L.W. at 4510.
In the instant case, the disciplinary procedures employed by the state do not have such an effect on any legitimate present interests of the class members. Furthermore, the threat of governmental action here, unlike in Super Tire, is "two steps removed from reality." 42 U.S.L.W. at 4509. In Super Tire, once the workers went on strike, the reception of welfare assistance was automatic. Here, even if inmates commit a criminal offense, the state must still decide, in each case, if it is going to hold disciplinary as well as criminal proceedings.
Since this case involves governmental action, the question as to whether or not the issues here are "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911), must be considered. Super Tire, 42 U.S.L.W. at 4509; Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). If this were found to be such a case, it could well be found to be "amenable to federal adjudication even though it might otherwise be considered moot." DeFunis, 42 U.S.L.W. at 4579. This is not such a case. As has been argued by petitioners, both in their brief of April 26, 1974, and at oral agreement, the situation where a prison inmate is subject to both criminal and disciplinary proceedings is not an uncommon one. The dropping of disciplinary proceedings in the present case certainly cannot be taken to mean that the state will follow this course in all future actions. It must be realized that it is in the interests of the state to have its disciplinary proceedings passed upon so that subsequent disciplinary hearings will not also be stayed. Moreover, due to the intricacies of three-judge court procedure, see Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973), and the necessity for granting a rehearing, this case has taken an unusually long time to decide. It is likely, therefore, that future cases raising this issue will be ripe for decision much earlier than 2 1/2 years after the event in issue.
Because disciplinary hearings are no longer contemplated against any of the inmates involved in the Attica disturbances of September, 1971, we remand this case to the district court with the direction to enter an order dismissing the action as moot.