We noted probable jurisdiction in this case, 406 U.S. 956, to review the judgment of a three-judge district court, 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).
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.
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 recipients
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,
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.
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 (1911); see Moore v. Ogilvie, 394 U.S. 814, 816 (1969). It is entirely possible that Mrs. Burney will, in the future, become employed and then once more become 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 pre-termination hearing question. Indeed, this sequence of events might repeat itself any number of times for Mrs. Burney
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.
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.
In my view, then, this case remains viable as to both Mrs. Burney and the affected class. Accordingly, I see no need for the remand ordered by the Court.