In Re Moriarty

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-302


In re Grievance of John Moriarty             Supreme Court

                                             On Appeal from
                                             Labor Relations Board

                                             October Term, 1990


Charles H. McHugh, Chairman

Michael R. Zimmerman, VSEA Staff Attorney, Montpelier, for plaintiff-
  appellant

Jeffrey L. Amestoy, Attorney General, and Michael Seibert, Assistant
  Attorney General, Montpelier, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned


     GIBSON, J.  John Moriarty, formerly a Vermont State Police Lieutenant,
appeals from a Vermont Labor Relations Board decision that he had failed to
prove that his transfer of duty station was disciplinary rather than admin-
istrative.  We dismiss the appeal as moot.
     On August 11, 1987, Moriarty's supervisors informed him that they were
preferring disciplinary charges.  Minutes later he was told he was being
temporarily transferred from Brattleboro to Waterbury, assertedly for admin-
istrative reasons.  Shortly thereafter, Moriarty learned that the transfer
was permanent.
     Moriarty filed a complaint with the Board on September 10, 1987.  The
purpose was to have the transfer order declared invalid on the ground that
the proper procedures for a disciplinary transfer had not been followed.  He
hoped thereby to continue employment with the State Police in the Brattle-
boro area.  He made no damages claim.  In response, the State argued that
Moriarty was transferred because of a concern that he could no longer
effectively supervise the Brattleboro station due to lack of judgment.  On
May 27, 1988, the Board issued its ruling, holding that Moriarty had failed
to establish by a preponderance of the evidence that the transfer was not an
administrative transfer made for a legitimate management reason.  After
Moriarty appealed the order to this Court, and while his appeal was pending,
he resigned his position with the State Police.  Pursuant to the parties'
stipulation, we remanded the matter to the Board for findings on the issue
of mootness.  Following hearing, the Board issued findings of fact, but
reached no conclusions of its own on the issue of mootness.  The Board's
procedure accorded with the instructions from this Court.
     On the day after the Board's ruling on the merits, Moriarty applied for
employment at the Vermont Yankee nuclear power plant in Vernon, Vermont.
In late September, Vermont Yankee offered him employment as security super-
visor.  Moriarty subsequently submitted a written request for a leave of
absence to Public Safety Commissioner A. James Walton, explaining that the
five-hour-per-day commute between his home in Vernon and the Waterbury duty
station was disrupting both his work and family life.  Upon denial of the
request, Moriarty resigned his position with the State Police effective
October 27, 1988, and went to work for Vermont Yankee.
     On appeal, Moriarty continues to argue that his transfer was in fact
disciplinary.  He contends the matter is not moot because (1) the label
attached to the transfer affects his future employment prospects, (2) he
might apply for reemployment with the State Police if he succeeds on appeal,
(3) the underlying issues are important to others who may be similarly situ-
ated in the future, and (4) his resignation was in reality a constructive
discharge.  The State confines its argument to the issue of mootness.  We
hold that inasmuch as there no longer is a justiciable controversy, the
matter has become moot, and we therefore do not reach the merits.
     "The general rule is that a case becomes moot 'when the issues
presented are no longer "live" or the parties lack a legally cognizable
interest in the outcome.'"  In re S.H., 141 Vt. 278, 280, 448 A.2d 148, 149
(1982) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396
(1980)).  "A case is moot if the reviewing court can no longer grant effec-
tive relief."  Sandidge v. State of Washington, 813 F.2d 1025, 1025 (9th
Cir. 1987).  A controversy must remain alive throughout the course of
appellate review.  Winton v. Johnson & Dix Fuel Corp., 147 Vt. 236, 239, 515 A.2d 371, 373 (1986).  Even though there was once an actual controversy, a
change in the facts can render an issue or entire case moot.  Id.  "Where
future harm is at issue, the existence of an actual controversy 'turns on
whether the plaintiff is suffering the threat of actual injury to a pro-
tected legal interest, or is merely speculating about the impact of some
generalized grievance.'"  In re Boocock, 150 Vt. 422, 424, 553 A.2d 572, 574
(1988) (quoting Town of Cavendish v. Vermont Pub. Power Supply Auth., 141
Vt. 144, 147, 446 A.2d 792, 794 (1982)).
     Moriarty argues that his future employment prospects are hindered
because any prospective employer given access to his employment file would
conclude that the transfer was disciplinary.  A similar argument was pre-
sented in Boocock, where the grievant was disputing an adverse job perform-
ance evaluation.  Boocock argued that even though he had resigned his
position with the Vermont State Police, and commenced employment with the
federal government, his case was not moot because the adverse evaluation
might hinder future employment opportunities.  We held that in the absence
of a specific job pursuit, no actual controversy existed, noting that
Boocock's employment "with the federal government with no apparent plans to
leave, removed the threat of actual injury to his legal interests . . . . "
Id. at 425 n.3, 553 A.2d  at 575 n.3.  Boocock's negative performance evalu-
ation would, if anything, have a greater adverse impact on future employment
opportunities than Moriarty's transfer.  As in Boocock, there remains no
actual controversy in the instant case. (FN1) See Sandidge, 813 F.2d  at 1025-26
(having left the national guard, plaintiff's claims that his unfavorable
evaluation might adversely affect other unspecified job opportunities were
speculative and his case moot).
     Moriarty contends that Boocock is inapplicable since Boocock did not
intend to leave his new job, whereas Moriarty might seek reemployment with
the State Police.  The mere possibility that one might seek reemployment is
not, however, sufficient to transform a nonjusticiable controversy into a
justiciable one.  See Bois v. Marsh, 801 F.2d 462, 466 (D.C. Cir. 1986)
(plaintiff's claim moot where she voluntarily resigned from military service
even though she stated that she could be interested in resuming an Army
career if the procedures being complained of were changed); Backus v.
Baptist Medical Center, 671 F.2d 1100, 1102-03 (8th Cir. 1982) (plaintiff's
challenge to hospital's job assignment policies rendered moot by his volun-
tary resignation and his failure to seek reinstatement, pursue a damages
claim, or institute class action relief).  Moriarty concedes that he does
not have any legal right to reemployment.  Moreover, he has failed to ex-
plain why his application for reemployment would be treated more favorably
by the State Police if he should succeed with his appeal.  In these circum-
stances, Moriarty is merely "'speculating about the impact of some general-
ized grievance.'"  Boocock, 150 Vt. at 424, 553 A.2d  at 574 (quoting Town of
Cavendish, 141 Vt. at 147, 446 A.2d at 794).
      Moriarty next argues that others will find themselves in a similar
position and the Court should therefore address the merits.  This contention
is without merit inasmuch as Vermont has not adopted a general public-
interest exception to the mootness doctrine.  In re M.A.C., 134 Vt. 522,
523, 365 A.2d 254, 255 (1976) (per curiam).
     Moriarty argues finally that the case has "the earmarks of a
constructive discharge," citing In re Bushey, 142 Vt. 290, 455 A.2d 818
(1983), since the employer, by selecting transfer as a penalty, could not
have picked a surer way to drive him from state service.  Moriarty has,
however, waived this argument inasmuch as he did not pursue it before the
Board.  In re Gorruso, 150 Vt. 139, 141, 549 A.2d 631, 633 (1988); In re
McMahon, 136 Vt. 512, 514, 394 A.2d 1136, 1138 (1978).  In any event,
Moriarty does not make any claim that he was transferred for the purpose of
forcing his resignation.  See In re Bushey, 142 Vt. at 298, 455 A.2d  at 822
(an "involuntary" resignation must be "the product of purposeful actions
directed at obtaining the resignation").
     Appeal dismissed.

                                   FOR THE COURT:


                                   __________________________________
                                   Associate Justice




FN1.   Although the issue in Boocock was whether the Board had jurisdiction
to hear the grievance, the analysis rested upon principles of standing and
justiciability.  Boocock is therefore applicable to the instant case.  See
13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure {
3531.12 (2d ed. 1984) (discussing close relationship of mootness, ripeness,
and standing doctrines).