Appeal from the United States District Court for the Northern District of Illinois - No. 73 C 2104 Hubert L. Will, Judge.
Swygert, Chief Judge, Pell, Circuit Judge, and Barnes, Senior Circuit Judge.*fn* Pell, Circuit Judge, dissenting.
Afternoon Session, Monday, November 11, 1974.
BARNES, Senior Circuit Judge.
This is an appeal from the dismissal of plaintiffs' action without prejudice for mootness. (C.T. 22, 25-27). We reverse.
Plaintiffs are tenured faculty members of Southwest College who were ordered transferred to different public Junior Colleges pursuant to a resolution of defendant Board passed on July 3, 1973. Plaintiffs, on August 16, 1973 (alleging that the transfers (1) were in reprisal for plaintiffs' exercise of protected speech, (2) were made without giving adequate notice of the reason for the transfer, (3) were promulgated under an unduly vague and indefinite policy, and (4) denied plaintiffs a prior hearing commensurate with the demands of due process), brought this action seeking injunction and declaratory relief. The district court on September 11, 1973 issued a preliminary injunction; but before the case was heard on the merits, defendants entered into a new collective bargaining agreement with plaintiffs' union which placed a "freeze" on faculty transfers during the period of the agreement: i.e., until June 30, 1975. On December 4, 1973 defendant Board, reciting the litigation herein and the collective bargaining agreement entered into, passed a resolution specifically revoking the transfer orders of July 3, 1973 affecting plaintiffs.
The district court then dismissed plaintiffs' action on December 20, 1973, reciting in a subsequent memorandum of February 6, 1974 that it did so for mootness in light of: (1) the agreement, and (2) the Board's resolution.
It is established doctrine that the voluntary cessation of the complained of action is not sufficient to moot litigation. It must appear with assurance "that 'there is no reasonable expectation that the wrong will be repeated, '" United States v. W. T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953); Aurora Education Ass'n. v. Board of Education, etc., 490 F.2d 431, 435 (7th Cir. 1974); cf. DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164, 42 U.S.L.W. 4578, 4579 (1974). The defendants have the "heavy burden of persuasion," United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 21 L. Ed. 2d 344, 89 S. Ct. 361 (1968). Here the defendants have not sustained that heavy burden. There is indeed a reasonable expectation that the wrong alleged may be repeated. That expectation is not a mere "speculative [contingency]." DeFunis, supra, note 4.
The protections of the collective bargaining agreement which plaintiffs presently enjoy will terminate as of June 30, 1975, at which time plaintiffs may again become exposed to the threat of transfer. If, as plaintiffs allege, defendants' motivation behind the transfers in the instant case was to squelch plaintiffs' opposition and dissent to their policies, then it seems apparent that there is little or no assurance that defendants will not attempt the transfers again next July. Indeed, this case itself arises out of the second attempted transfer of plaintiff Kaufman. Defendants have not withdrawn or repudiated the rule under which they have acted.