Court raised the possibility that the fifth amendment claim might be moot.
Plaintiff, in his supplementary brief on this point, opposes a determination of mootness. He argues that while there may be no coercive relief due him as a result of this particular violation of his rights by defendants, there is no guarantee that they will not harm him, or others, in the same way in the future. While he does not assert that defendants have intentionally attempted to moot this case by removing the charges from his file in order to prevent a binding judgment from issuing against them, his argument suggests that their actions could have that effect. The result, he adds, would be that "(defendants) would be free to engage in the same kind of unconstitutional conduct in the future toward this plaintiff or toward others." Plaintiff's Opposition at 30. To foreclose this possibility, plaintiff requests the Court to issue a declaratory judgment striking down the statute and regulations permitting the dismissal of a probationary employee for stated reasons of misconduct without a prior hearing. Id.
A decision to issue a declaratory judgment would require the Court to decide first that the fifth amendment claim is not moot, and second, since issuance of declaratory relief is discretionary with the Court,
that the case is appropriate for a declaratory judgment. Since the Court has concluded that the fifth amendment claim is moot, however, it does not reach the second question.
While plaintiff expresses his concern that in the future defendants will violate not only his rights again, but also those of others, it is clear that he has standing only to seek judicial protection for his own rights. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343 (1975); Marden v. Int'l Ass'n of Machinists, 576 F.2d 576, 581-82 (5th Cir. 1978). Thus, the possibility that others may be harmed by the same conduct will not save his case from a determination of mootness.
In advancing his argument that this case is not moot, plaintiff relies on the doctrine articulated in United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953), and United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 202-04, 89 S. Ct. 361, 363-64, 21 L. Ed. 2d 344 (1968). The Phosphate case, upon which plaintiff's argument draws most heavily, involved eleven corporate members of an association formed to sell phosphates to Korea in conjunction with a U.S. Aid to International Development (AID) program. Although such a course of conduct was legitimate in certain circumscribed circumstances, the Justice Department attacked this particular association's conduct as concerted activity violative of the Sherman Act and sought injunctive relief.
During the course of the litigation AID promulgated regulations which the defendants contended made it uneconomical for their association to remain in existence. The association therefore dissolved itself, and the defendants subsequently argued that the case should be dismissed as moot.
The Supreme Court, observing that the AID regulation did not cover all contracts upon which such an association might bid, ruled that the dissolution of the association did not necessarily moot the case. It held that:
The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave "(t)he defendant . . . free to return to his old ways." United States v. W. T. Grant Co., 345 U.S. 629, 632, (73 S. Ct. 894, 897, 97 L. Ed. 1303) (1953).