WILLIAM FRENCH SMITH, ET AL., PETITIONERS V. ANTHONY J. PRISCO,
JR., ET AL.

   No. 88-1039

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Memorandum Regarding Mootness

   Pursuant to the Court's request, petitioners submit the following
memorandum on the question of mootness.

   1. The court of appeals held that petitioners Meese and Morris
could not appeal from an order denying their claim of qualified
immunity because these petitioners were also being sued for injunctive
and declaratory relief in their official capacity.  Since the court of
appeals issued its decision, Mr. Meese has ceased to be Attorney
General and therefore is no longer subject to suit in his official
capacity.  The basis for the court of appeals' jurisdictional ruling
with respect to Mr. Meese has thus ceased to exist, and the issue
raised by that ruling is, in our view, moot.

   In such circumstances, this Court might ordinarily vacate the
ruling below and remand to the court of appeals so that petitioner
Meese's appeal could be heard on the merits.  In the present case,
however, that course would serve no purpose, because in its analysis
of petitioner Smith's qualified immunity defense, the court of appeals
has already reviewed and rejected the bases of petitioner Meese's
qualified immunity claim.  The court of appeals has announced its view
that respondent has alleged a violation of a clearly established
constitutional right, and has held that it will not consider the legal
sufficiency of respondent's pleadings.  Thus, in the event of a
remand, the court would almost certainly affirm the denial of
petitioner's Meese's claim of immunity for the same reasons it offered
with regard to petitioner Smith.

   Accordingly, although the first, jurisdictional question raised by
our petition has become moot with respect to petitioner Meese, a
remand at this stage would be inappropriate.  The issues raised by the
second question of our petition with respect to petitioner Smith are
also live for petitioner Meese, and those issues independently merit
review by this Court.

   2. The first, jurisdicitonal question remains live with respect to
petitioner Morris, who continues to serve as the Director of the
Marshals Service.  In our petition to this Court, we argued that the
court of appeals' jurisdictional ruling was in error for two reasons.
First, that court's ruling lacked any basis in this Court's teachings
and was contrary to the ruling of every other circuit court to
consider the question.  Pet. 9-13.  Second, respondent's prayer for
injunctive and declaratory relief had become moot when Lauren Prisco
left the Witness Protection Program before the court of appeals
considered this case.  /1/ Pet. 13 n.14.  Because Lauren is no longer
in the program and the state court custody proceedings referred to in
the complaint have now been completed, there remained no further
prospective relief for the court to grant.  Although the court of
appeals was aware of those facts, it made no reference to them in
ruling that petitioners Meese and Morris would be required to stand
trial in their official capacity in respondent's suit for prospective
relief.  /2/

   If the first, jurisdictional question were the only issue before
the Court, the errors in the ruling below might constitute grounds for
summary reversal with respect to petitioner Morris.  But as with
petitioner Meese, a remand to the court of appeals at this stage would
serve no purpose in light of the court's earlier ruling with regard to
petitioner Smith.

   3. In sum, the Court should grant the petition.  The questions of
the court of appeals' jurisdiction over the appeals of petitioners
Meese and Morris may not require plenary review, for the reasons
stated herein, but the Court should defer any remand with respect to
their appeals until it has resolved the second question in the
petition with respect to petitioner Smith.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   MAY 1989

   /1/ Count I of respondent's complaint stated the following request
for declaratory and injunctive relief (C.A. App. 17a-18a):

         a. For Declaratory Judgment that the conduct of the
      defendants herein violated the constitutional rights of
      plaintiff Anthony J. Prisco, Jr. and Lauren Prisco as contained
      in U.S.C.A. Constitution Amendments 5 & 14 and therefore is
      impermissible conduct under the circumstances;

         b. For an Injunction to issue against all defendants herein
      and all agents, servants or employees of defendants herein from
      in any way concealing or refusing to disclose to plaintiff any
      information to plaintiff with regard to the whereabouts of his
      daughter Lauren Prisco and further enjoining the defendants
      herein and their agents servants and employees from in any way
      interfering with the normal contact between plaintiff and his
      daughter Lauren Prisco;

         c. Directing defendants herein and anyone acting under their
      control to immediately disclose to plaintiff, Anthony J. Prisco,
      any and all information about his daughter Lauren Prisco
      including but not limited to the following:

         1) her name;

         2) her address;

         3) her telephone number

         4) her school address and phone number

         d. For an injunction directed to defendants herein their
      agents, servants and employees enjoining them from in any way
      restricting, limiting controlling or being involved in
      visitation between plaintiff and Lauren Prisco;

         e. Directing the defendants herein and their agents servants
      and employees to immediately turn over custody of Lauren Prisco
      to plaintiff, Anthony J. Prisco;

         f. For an Injunction preventing and enjoining defendants
      herein their agents, servants and employees including the United
      States Attorney from participating in any way in the matter of
      Prisco v. Prisco which is currently pending in the Court of
      Common Pleas of Philadelphia County, Pennsylvania;

         g. For such other relief as the Court may deem just and
      proper under the circumstances.

   /2/ We informed the court of appeals in our opening brief (at 4)
that Lauren had left the Witness Protection Program, and we argued in
our petition for rehearing and suggestion for rehearing en banc (at 8
n.3) that this fact had rendered moot respondent's prayer for
injunctive relief.