Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Northern District of Illinois, E.D

December 19, 1980


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


Defendants Professional Air Traffic Controllers Organization and its O'Hare Local 316 (though they are separate entities, for convenience this opinion will refer to them collectively by use of the singular term "PATCO"), Richard Scholz ("Scholz") and Thomas Brockett ("Brockett") have filed a Second Amended Counterclaim ("Counterclaim") for declaratory, injunctive and mandamus relief against plaintiff United States of America. On the motion of the United States, the Counterclaim is dismissed for lack of jurisdiction over the subject matter.*fn1

"Case or Controversy" and Standing

Article III of the Constitution limits the power of federal courts to decision of "cases or controversies." That concept overlaps, though it does not coincide with, the doctrine of standing developed by the case law.*fn2 Defendants' counterclaim is wanting under either concept.

Essentially defendants assert in Counterclaim ¶ 7 that the Federal Aviation Administration ("FAA") has promulgated "written procedures governing the safety and control of air traffic throughout the United States. . . . [that] have been adopted and collected in an Air Traffic Control Handbook, FAA Order 7110.65 B (1980) (Handbook)." Those procedures relate "primarily to the separation of aircraft in and above all airport facilities in the United States." But, defendants complain in Counterclaim ¶ 9:

  For a number of years, air traffic controllers at
  O'Hare terminal have been encouraged, ordered
  and/or forced by their FAA supervisors to
  disregard mandatory separation Handbook
  provisions. O'Hare terminal FAA supervisors
  routinely condone, instruct and/or affirmatively
  sanction numerous violations of the Handbook.

  As their claimed means of entry into this Court, defendants assert in Counterclaim ¶¶ 12, 14 and 16 the following consequences of what they term "FAA's disregard of its Handbook":

    (1) possible reprimand, suspension or removal
  of air controllers for failing to "observe the
  various laws, rules, regulations, and other
  authoritative instructions brought to his
  attention by competent FAA authority" (quoting
  from the Conduct and Discipline Section of a 1969
  FAA Order);

    (2) possible "severe financial sanctions
  resulting from civil negligence in wrongful death
  actions brought by crash victims" against air
  traffic controllers "who work below the minimum
  Handbook standards";

    (3) "discipline and harassment potentials"
  faced by controllers who are also "faced with
  orders and encouragement to violate the
  separation requirements";

    (4) "reprimands, suspensions, removals and
  criminal penalties [that] await controllers who
  engage in an improper slowdown or strike";*fn3

    (5) "severe physical, emotional and
  psychological stress of air controllers"
  resulting from "uncertainty in terms of job
  security and personal financial well-being
  created by such dilemmas"; and

    (6) PATCO's potential "decertification as the
  exclusive bargaining representatives of air
  traffic controllers in negotiations with the FAA
  if they condone an illegal slowdown" in the form
  of "compliance with the Handbook separation

There is no question that defendants and the United States have some difference in their views of the responsibilities of air traffic controllers — a "controversy" in the colloquial sense of the word. And were the disagreement on the opposite side of the coin — were FAA requiring the controllers to comply with Handbook procedures on threat of discipline, while the controllers were challenging such enforcement for any reason — the parties would have a "controversy" in the constitutional sense as well.

But that constitutional sense is a specialized one, as described in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 229, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937):

  A justiciable controversy is thus distinguished
  from a difference or dispute of a hypothetical
  character; from one that is academic or moot. The
  controversy must be definite and concrete,
  touching the legal relations of parties having
  adverse legal interests. It must be a real and
  substantial controversy admitting of specific
  relief through a decree of a conclusive
  character, as distinguished from an opinion
  advising what the law would be upon a
  hypothetical state of facts.

There has been no change in the basic Constitutional interpretation in this area since Aetna. It still requires a current real threat of harm arising from the parties' dispute and not an excursion "into the area of speculation and conjecture." O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974).

No such situation is involved here. Defendants speak of "possible reprimand, suspension or removal" — yet no actual threat of any such discipline is asserted, and the very gravamen of defendants' basic complaint wholly belies that possibility because it stems from FAA's alleged disregard and violation (not enforcement) of the Handbook's provisions. Defendants speak of "severe financial sanctions resulting from civil negligence and wrongful death actions" confronting controllers — yet there is nothing to indicate that this is a venture outside of "the area of speculation and conjecture," as O'Shea put it.*fn5 Defendants speak of "severe physical, emotional and psychological stress" — yet those traumas are claimed to stem from "uncertainty in terms of job security and personal financial well-being created by such dilemmas," which in turn are based on the same non-existent threats referred to earlier in this paragraph. It is not necessary to extend the parsing of defendants' claims, for each obviously suffers from the same speculative and hypothetical characteristics.

As the Supreme Court put it in United States v. Scrap, 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1972):

  Pleadings must be something more than an
  ingenious academic exercise in the conceivable. A
  plaintiff must allege that he has been or will in
  fact be perceptibly harmed by the challenged
  agency action, not that he can imagine
  circumstances in which he could be affected by
  the agency's action.

But the "challenged agency action" in this case is FAA's alleged failure to enforce the Handbook's provisions, and there is no showing that such failure has harmed or will in fact perceptibly harm any of the defendants here.

Thus defendants assert nothing more than speculative and hypothetical harms that do not rise to the level of "controversy" in the justiciable sense of the term. On the closely related subject of standing, it is necessary that a complaining party be able to demonstrate injury to a legally protected interest (Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940)). Even though an association such as PATCO may have standing as the representative of its members, Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975), that standing requires injury on the part of the members sufficient for individual standing, Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Here there is no allegation that any member of either PATCO union or either of the individual counterclaimants (or indeed anyone else) has suffered any of the hypothetical harms posed in the Counterclaim. On that score too, then, the Counterclaim is fatally deficient.


Defendants' Second Amended Counterclaim fails to surmount the threshold requirements for federal jurisdiction: the existence of a "case or controversy" in the Article III sense, and parties having standing to assert a valid claim.*fn6 Accordingly, the Second Amended Counterclaim is dismissed for want of jurisdiction over the subject matter.*fn7 This action being terminated, the existing TRO is dissolved as a matter of law.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.