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January 29, 1975


The opinion of the court was delivered by: Decker, District Judge.


On June 8, 1974, less than a month after Firefighters Local was chartered by plaintiff International Association of Firefighters, AFL-CIO (hereafter, "Firefighters International"), the defendants allegedly met with all captains and lieutenants of the Fire Department and indicated that anyone present who retained or obtained membership in Firefighters Local would be discharged from employment. Apparently, all the captains and lieutenants were in fact already members and they resigned their membership that day or about a week later.

Plaintiffs seek redress for infringement of the rights of freedom of speech, assembly and association under the First Amendment to the United States Constitution. Because defendant allegedly acted under state authority, jurisdiction is asserted under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. In the alternative, plaintiffs seek jurisdiction under 28 U.S.C. § 1331.

Defendants have moved to dismiss the complaint on the following grounds: (1) Plaintiff labor unions do not have standing under § 1983 because one cannot sue for the deprivation of another's civil rights; (2) plaintiffs have failed to meet the jurisdictional amount requirement of § 1331; and (3) the complaint fails to state a cause of action upon which relief can be granted. For the reasons stated below, defendants' motion will be denied.

I. Standing

It is true as a general rule that one cannot sue for the deprivation of the civil rights of others. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). This rule is most frequently invoked where an individual alleges a deprivation of rights suffered only by other individuals. E.g., Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); O'Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973); Brown v. Board of Trustees of LaGrange Ind. School Dist., 187 F.2d 20 (5th Cir. 1951); Krum v. Sheppard, 255 F. Supp. 994 (W.D.Mich. 1966). There have been exceptions to the rule, however, where the individual aggrieved party could not be represented in the context of the dispute before the court (Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)); where a property deprivation was the indirect result of a constitutional deprivation of an absent person (Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)); and where the aggrieved party would have been understandably unwilling to bring the suit himself. In N.A.A.C.P. v. Alabama, 360 U.S. 240, 79 S.Ct. 1001, 3 L.Ed.2d 1205 (1959), the attempt of members of an organization to prevent the state and the public from learning the identity of the individual members could hardly, as a practical matter, have been brought by the members themselves without revealing their identity. The policy oriented discussions of these cases suggests the propriety of something other than a rigid application of precedent.

A major concern underlying the standing requirement is that there would otherwise be too many potential plaintiffs and too much litigation. E.g., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1971); Brown v. Board of Trustees of LaGrange Ind. School Dist., supra. Also, there is the fear that a party not individually aggrieved would have insufficient motivation to do an adequate job of advocacy. Perhaps most important is the concern expressed in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), where the Court noted that without the aggrieved person before the court, a decision would be based on a speculative situation that might never arise. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); United States v. Raines, supra; Barrows v. Jackson, supra. Baker further emphasized the need for adequate advocacy:

  "Have the appellants alleged such a personal stake in
  the outcome of the controversy as to assure that
  concrete adverseness which sharpens the presentation
  of issues upon which the court so largely depends for
  the illumination, of difficult constitutional
  questions?" (369 U.S. at 204, 82 S.Ct. at 703.)

It remains to inquire whether the labor union plaintiffs in this suit are susceptible to the above concerns, and whether, in the absence of binding precedent, there is good reason not to give them standing.*fn1 In this case, the plaintiffs have filed suit not only for the purpose of representing the interests of the individual captains and lieutenants who might be aggrieved, but also to protect their own very existence. An individual's privilege of belonging to a union and the union's desire to increase or maintain its membership admit to no conflict. The court thus has every reason to believe that the union will represent with appropriate zeal the interest of the captains and lieutenants. See Lodge 1858, Amer. Fed. of Gov't. Emp. v. Paine, 141 U.S.App.D.C. 152, 436 F.2d 882 (1970); United Federation of Postal Clerks, AFL-CIO v. Watson, 133 U.S.App.D.C. 176, 409 F.2d 462 (1969); cf. Air Line Stew. and S. Ass'n Loc. 550 v. American Airlines, Inc., 490 F.2d 636 (7th Cir. 1973): Further, all possible parties are now represented in this suit, so there is no prospect of encouraging multiple litigation by allowing standing to the present plaintiffs.

Moreover, the position of plaintiffs in this case can be likened to the earlier mentioned exceptions. Although the practical difficulty of individual employees bringing suit does not match the predicament of the members in N.A.A.C.P. v. Alabama, supra, there is, nonetheless, the prospect that such a suit would bring an unwanted focus on an individual as plaintiff. Also, the unions have allegedly suffered a pecuniary loss of dues which results from a constitutional deprivation of others; cf. Pierce v. Society of Sisters, supra. An additional reason for finding that these plaintiffs have standing is that if a single captain or lieutenant were to step forward and bring suit, the action might be mooted if he then obtained other employment; cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). All of these reasons were relied upon by the Eighth Circuit Court of Appeals in conferring standing on an unincorporated association of teachers alleging racial discrimination against its members under § 1983. Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770, 777 (8th Cir. 1966).

There is no clear precedent in either the Supreme Court or the Seventh Circuit Court of Appeals for the proposition that a labor union can or cannot have standing to sue under § 1983. However, there is strong indication that an association should have such standing where, as in the present case, it has a loss or deprivation coincident with that of the member individuals, particularly where the loss to the association is of a constitutional magnitude.

  In Undergraduate Student Association v. Peltason, 359 F. Supp. 320
 (N.D.Ill. 1973) (three-judge court), an unincorporated
student association challenged a statute that sought to condition
revocation of a scholarship award on student misconduct. Writing
for a three-judge panel, Judge McLaren observed that,

"The courts have been increasingly willing to recognize the right
of organizations to sue on behalf of their members." (359 F. Supp.
at 322.) The Judge also observed two lines of thought on such
representative action, one premising such standing on
coincidental injury to the association and its members, and the
other centering on the representative quality of the association,
and not requiring actual injury to it. In some cases, the
distinction is quite clear: Alabama Education Ass'n (Inc.) v.
Wallace, 362 F. Supp. 682 (M.D.Ala. 1973) (teachers association
lacked standing to assert constitutional defects in school
requirement that teachers make a written verification of
compliance with advocacy regulation); Crossen v. Breckenridge,
446 F.2d 833 (6th Cir. 1971) (women's liberation group lacked
standing to challenge Kentucky abortion statute); Alameda
Conservation Ass'n v. State of Cal., 437 F.2d 1087 (9th Cir.
1971) (association, for development of area, which owned no land
had no standing to contest redevelopment plans); Protestants and
Other Americans, etc. v. Watson, 132 U.S.App.D.C. 329,
407 F.2d 1264 (1968) (if association did not pay taxes, it would not have
standing to contest postage stamp allegedly constitutionally
defective because of religious orientation).

Other cases have been more concerned with the quality of the representation in the relationship, in deciding whether an association has standing to sue under § 1983: Smith v. Board of Education of Morrilton School District No. 32, supra; Kennedy Park Homes Ass'n v. City of Lackawanna, 318 F. Supp. 669 (W.D.N Y 1970), aff'd, 436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) (civic organization had standing to contest alleged racial discrimination by city and mayor in disapproving development of subdivision); Council No. 34, Amer. Fed. of State, C. and M. Emp. v. ...

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