12 F.3d 885 (9th Cir. 1993), 91-35770, Leonard v. Clark

Docket Nº:91-35770.
Citation:12 F.3d 885
Party Name:Randy LEONARD, Grant Coffey, Tom Chamberlain, Richard Grace, Manuel Fagundes, Portland Fire Fighters Association, Local 43 I.A.F.F., Plaintiffs-Appellants, v. J.E. CLARK, Richard Bogle, Earl Blumenauer, Mike Lindberg, et al., Defendants-Appellees.
Case Date:December 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 885

12 F.3d 885 (9th Cir. 1993)

Randy LEONARD, Grant Coffey, Tom Chamberlain, Richard Grace,

Manuel Fagundes, Portland Fire Fighters

Association, Local 43 I.A.F.F.,



J.E. CLARK, Richard Bogle, Earl Blumenauer, Mike Lindberg,

et al., Defendants-Appellees.

No. 91-35770.

United States Court of Appeals, Ninth Circuit

December 27, 1993

Argued and Submitted Nov. 4, 1992.

As Amended March 8, 1994.

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Kathryn T. Whalen, Bennett & Durham, Portland, OR, for plaintiffs-appellants.

Marianna Kanwit, Deputy City Atty., Portland, OR, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: TANG, BRUNETTI, and FERNANDEZ, Circuit Judges.

BRUNETTI, Circuit Judge:

Appellants, the Portland Fire Fighters Association (the "Union") and several of its individual members (the "individual plaintiffs"), brought a 42 U.S.C. Sec. 1983 action against appellees, the City of Portland and several of its officials (collectively, the "City"). The Union and the individual plaintiffs sought to have the district court declare a provision of its collective bargaining agreement with the City a violation of the First Amendment and enjoin its enforcement. On cross-motions for summary judgment, the district court first dismissed the individual plaintiffs from the action and then granted the City's motion, 758 F.Supp. 616. We affirm.


The Union is the exclusive bargaining representative for various classifications of fire fighters employed by the City. The individual plaintiffs are fire fighters employed by the City; they are also members of the Union's bargaining unit. Four of the individual plaintiffs also serve in official capacities for the Union: Randy Leonard as president, Tom Chamberlain as Secretary-Treasurer, Grant Coffey as a member of the Executive Board, and Richard Grace as a member of the negotiating team.

The current labor agreement between the Union and the City contains the following provision, which is the subject of the instant dispute:

Article V--Credit for Legislated Benefits

During the life of the agreement, legislative issues specifically endorsed or sponsored by the Portland Fire Fighters Association that result in action by the state legislature and which result in any new economic or benefit improvement causing increased payroll costs to the City beyond those stipulated at the time of mutual contract ratification, such costs shall be charged against applicable salary agreement whenever the changes become effective.

The language of this provision was originally proposed by the Union in 1981 and has been included in every labor agreement concluded since then. The City has never invoked Article V.

Leonard was elected president of the Union in 1986. Since then, the Union and the City have concluded three successive labor agreements, in 1986, 1989, and 1990. During the negotiations leading to these agreements, the Union consistently opposed Article V as an unconstitutional restriction on its First Amendment right to petition the government. Nevertheless, when the dust from the bargaining settled, the labor agreements continued to include Article V.

Leonard, the other individual plaintiffs, and the Union filed this lawsuit in 1990 to

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challenge the constitutionality of Article V. Both sides moved for summary judgment. The district court first held that because Article V on its face applied only to the Union, the individual plaintiffs could not demonstrate the existence of a case or controversy and therefore could not invoke the court's jurisdiction. The district court then denied the Union's motion for summary judgment and granted the City's, on the ground that the Union had waived the unrestricted exercise of any First Amendment rights arguably at stake by voluntarily entering into the labor agreement with the City. The Union moved for reconsideration but the trial court affirmed its prior ruling and denied the motion. The Union and the individual plaintiffs appeal.


We review a district court's grant of summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir.1987). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-1340 (9th Cir.1989).

There is only one disputed issue of fact in this case. The City's primary argument, and the basis for the decision of the district court, is that the Union waived the full and unrestricted exercise of what it contends are its First Amendment rights by entering into the labor agreement containing Article V. However, the Union contends that the latest labor agreement between the parties prohibits the City from raising this argument. The terms of this agreement, which runs from July 1, 1990 through June 30, 1994, were embodied in a Memorandum of Agreement dated February 7, 1991. This Memorandum of Agreement contains the following provision at paragraph 12:

The parties agree that Article V, Credit for Legislative Benefits, shall remain in the Labor Agreement in its present form without change. The parties further agree that if the Association continues to pursue its lawsuit challenging the constitutionality of Article V in Federal Court, the fact that the Association has agreed that Article V will remain in the contract will not be used by the City in its defense of the lawsuit.

(Emphasis added). The Union argues that the highlighted language estops the City from raising the waiver defense. The district court disagreed, and found that the City was precluded only from arguing that the presence of Article V in the latest agreement was additional evidence that the Union waived any First Amendment rights affected by Article V.

We agree with the district court. To explain the meaning of paragraph 12, the City presented the affidavit of David Shaff, 1 its employee relations officer. Shaff, the City's chief spokesperson in its negotiations with the Union, stated:

Paragraph 12 ... was responsive to the concern of the Association that the "act" of the retention of the Article V language in the new Agreement could or would be used by the City in the litigation to argue that the [plaintiffs] had somehow given up on their claims. It was agreed by the participants to those discussions ... that the City would not make this argument and that paragraph 12 should reflect this. Furthermore, it was understood by all participants that paragraph 12 preserved the status quo of the litigation and nothing more.

At no time during the course of the negotiations or in ... other discussions involving the topic of the litigation in general was there mention or discussion by either side that the City was relinquishing its assertion that [plaintiffs] had waived their First Amendment rights through the bargaining process.

(Emphasis added). According to Shaff, then, the City merely agreed not to use the fact

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that the Union signed the new agreement to argue that the lawsuit should be dismissed as moot because the Union had signed a new, post-complaint agreement containing Article V. The City has not made this argument. The City is merely repeating its argument, made prior to the most recent agreement and thus part of the "status quo" of the litigation, that the Union waived its claimed First Amendment rights by signing agreements containing Article V.

Because the City has presented this evidence, the Union, to avoid an adverse grant of summary judgment, must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quotations omitted). On appeal, the Union cites no evidence to counter Shaff's statements. 2

For the grant of summary judgment to be reversed on the basis of the Union's paragraph 12 argument, this Court must find the existence of a "genuine" issue as to whether the City may raise the waiver defense. More specifically, the evidence must be such that a reasonable jury could return a verdict for the Union on this issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The plain language of paragraph 12 seems rather clear to us, and Shaff's affidavit states that the City never agreed not to raise the waiver defense. In fact, it would be surprising if the City had waived a major defense to the action against it in such an obtuse and backhanded manner. Therefore, we find that no reasonable jury could agree with the Union on this issue, and so we affirm the district court's decision.


We next address the district court's dismissal of the individual plaintiffs on the ground that they do not have standing to challenge Article V. 3 The general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others. Carey v. Population Services Int'l, 431 U.S. 678, 682, 97 S.Ct. 2010, 2014, 52 L.Ed.2d 675 (1977). Ordinarily, then, the district court's determination that the Union had standing would end the inquiry. However, because we hold infra that the Union waived the unrestricted exercise of any First Amendment rights which may have been at stake by signing the labor agreement, we must reach the issue of whether the individual plaintiffs have standing to challenge Article V. We agree with the district court that they do not.

To have Article III standing, a plaintiff must show "at an irreducible minimum" (1) "that he personally has suffered some...

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