IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 No. 81-1 GOLDSBORO CHRISTIAN SCHOOLS, PETITIONER.. UNITED STATES OF AMERICA No. 81-3 BOB JONES UNIVERSITY, PETITIONER V. UNITED STATES OF AMERICA ON WRITS OF CERTIORARI TO THE THE FOURTH CIRCUIT MOTION FOR LEAVE TO FILE BRIEF OUT OF TIME Pursuant to Rule 42 of the Rules of this Court, the Solicitor General respectfully moves for leave to file the Brief for the United States on the merits in the above-entitled cases out of time. On October 13, 1981, the Court granted the petitions for writs of certiorari and consolidated the cases to consider the correctness of the court of appeals' decisions upholding Internal Revenue Service rulings that were applied to petitioners, because of certain racially discriminatory practices, to deny them tax-exempt status as "religious" or "educational" institutions under Section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.c.). On December 31, 1981, the Court granted our application for a ten-day extension of time to file our brief on the merits to and including January 10, 1982. By January 6, 1982, the government's brief had been prepared and was ready to be sent to the printer in order to meet the extended due date. That brief, however, was not filed. Instead, on January 8, 1982, we advised the Court in a Memorandum that since the filing of our brief acquiescing in the granting of certiorari in these cases, the Department of the Treasury has initiated the necessary steps to accord tax-exempt status to petitioners under Section 501(c)(3) of the Code, and to refund to them federal social security and unemployment taxes in dispute. We further advised the Court that the Treasury Department had commenced the process necessary to revoke forthwith the pertinent Revenue Rulings that were relied upon to deny petitioners such tax exempt status. We therefore asked that the judgments of the court of appeals be vacated as moot. Subsequently, on January 18, 1982, the President submitted proposed legislation to the Congress, which would give the Secretary of the Treasury and the Internal Revenue Service express authority to deny tax-exempt status to private nonprofit educational organizations with racially discriminatory policies. In a Supplemental Memorandum filed on February 4, 1982, we informed the Court of these developments, and appended thereto copies of the pertinent documents. Hearings on the President's legislative proposal were held by the Senate Finance Committee and the House Ways and Means Committee in early February 1982, and that proposal is now under advisement. On February 18, 1982, the United States Court of Appeals for the District of Columbia Circuit in Wright v. Regan, No. 80-1124, pending on petition for a writ of certiorari, No. 81-970, directed the Secretary of the Treasury and the Commissioner of Internal Revenue "not to grant or restore federal tax-exempt status pursuant to 26 U.S.C. § 501(c)(3) to any school that unlawfully discriminates on the basis of race see Runyon v. McCrary, 427 U.S. 160 (1976), by failing to. maintain a 'racially nondiscriminatory policy as to students,' as that term is defined in the declaratory judgment in Green v. Connally, 330 F. Supp. 1150, 1179 (D.D.C.), aff'd mem. sub. nom. Coit v. Green, 404 U.S. 997 (1971)." A copy of that order is attached. The District of Columbia Circuit's order in Wright changes the posture of these cases before the Court. In light of that court's order, the Secretary has determined not to grant or restore tax-exempt status to petitioners, or to revoke the pertinent Revenue Rulings, pending final disposition of these cases by this Court. Our previous suggestion of mootness is therefore no longer appropriate. In these circumstances, we believe it would be appropriate for this Court to proceed with adjudication of the issues on which certiorari was granted. We therefore seek leave to file our brief on the merits out of time. Copies of the brief will be filed and served in typescript this week, with printed copies to follow as soon as they are available. Respectfully submitted. FEBRUARY 1982 LAWRENCE G. WALLACE Acting Solicitor General */ The Solicitor General is disqualified in these cases. BEFORE: Wright, Tamm and Ginsburg, Circuit Judges ORDER On consideration of movants' request for an injunction pending appeal in No. 82-1134, for an injunction under the "All Writs Act" to preserve the status quo and protect the potential effectiveness of this court's decision in No. 80-1124, and for consolidation of Nos. 82-1134 and 80-1124, it is hereby ORDERED that the application to consolidate Nos. 82-1134 and 80-1124 is denied; and it is further ORDERED that the motion for an injunction pending appeal in No. 82-1134 be referred forthwith to the motions panel for expeditious consideration; and it is further United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 80-1124 82-1134 September Term, 19 81 ORDERED that the motion for relief under the "All Writs Act" in No. 80-1124 be filed and that a response thereto by the Secretary of the Treasury and the Commissioner of Internal Revenue be filed. within fifteen days of the date of this order; and it is further ORDERED, that to preserve the status quo pending response to the motion in No. 80-1124 and, thereafter, the court's determination of its authority to consider and decide the issues preserted, see United States v. United Mine Workers, 330 U.S. 258 (1947), the Secretary of the Treasury and Commissioner of Internal Revenue are directed not to grant or restore federal tax-exempt status pursuant to 26 U.S.c. $ 501(c)(3) to any school that unlawfully discriminates on the basis of race, see Runyon v. McCrary, 427 U.S. 160 (1976),, by failing to maintain a "racially nondiscriminatory policy as to students," as that term is defined in the declaratory judgment in Green v. Connally, 330 F.Supp. 1150, 1179 (D.D.C.), aff'd mem. sub nom. Coit v. Green, 404 U.S. ̧997 (1971). Per Curiam |