City of Milwaukee v. Saxbe, No. 76-1163

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before SWYGERT and PELL, Circuit Judges, and CAMPBELL; PELL
• Citation: 546 F.2d 693
• Parties: 13 Fair Empl.Prac.Cas. 1425, 12 Empl. Prac. Dec. P 11,235 CITY OF MILWAUKEE, Plaintiff-Appellant, v. William SAXBE, in his capacity as Attorney General of the United States of America, his officers, agents, officials and employees, their successors and all others acting in concert or cooperation with them or at their direction or control, Defendants-Appellees.
• Decision Date: 12 November 1976
• Docket Number: No. 76-1163

Page 693

546 F.2d 693 13 Fair Empl.Prac.Cas. 1425,
12 Empl. Prac. Dec. P 11,235 CITY OF MILWAUKEE, Plaintiff-Appellant,
v.
William SAXBE, in his capacity as Attorney General of the
United States of America, his officers, agents, officials
and employees, their successors and all others acting in
concert or cooperation with them or at their direction or
control, Defendants-Appellees. No. 76-1163. United States Court of Appeals,
Seventh Circuit. Argued Sept. 23, 1976.
Decided Nov. 12, 1976.

Page 696

Thomas E. Hayes, James C. Newcomb, Milwaukee, Wis., for plaintiff-appellant.

Stephen E. Kravit, William J. Mulligan, Leah M. Lampone, Milwaukee, Wis., for defendants-appellees.

Before SWYGERT and PELL, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

PELL, Circuit Judge.

The City of Milwaukee (City) appeals from a final judgment dismissing on the merits an action against the Attorney General of the United States ¹ seeking declaratory and mandamus relief from an alleged policy and practice of discriminatory enforcement of the civil rights laws. The principal issues presented in this appeal concern questions of standing, jurisdiction, and the sufficiency of the complaint.

By way of background, commencing in May 1973, the Attorney General instituted an investigation into alleged discriminatory employment practices of the City of Milwaukee Fire and Police Departments which investigation, despite claimed City efforts toward realizing standards federally recommended, was followed by a suit based on the Attorney General's assertion that City was engaged in a pattern and practice of discrimination on the basis of race and sex with respect to employment opportunities in the two departments.

This suit was commenced on September 25, 1974. The complaint invoked jurisdiction pursuant to 28 U.S.C. § 1331, § 1343(4) and § 1361, alleging that the amount in controversy exceeded $10,000 and that the action was authorized by 42 U.S.C. §§ 1981 and 1983. After setting forth the facts recited hereinbefore, the complaint alleged that the defendant had not investigated any of the other eighteen municipalities located in Milwaukee County or any other municipality located in the four county Standard Metropolitan Statistical Area (SMSA) of Milwaukee.

The complaint alleged that the defendants were engaged in the policy and practice of investigating employment discrimination, recommending increasing the representation of minorities in employment and test validation, and initiating legal action against City while doing nothing of the same or similar nature to secure compliance with the law in surrounding municipalities within the metropolitan community. The core of City's claim appears in Paragraph 13 of the complaint, which reads as follows:

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This policy and practice of discriminatory enforcement has the effect of denying job opportunities throughout the community to blacks and Spanish speaking citizens of the City of Milwaukee and of limiting protection of the laws to within the City of Milwaukee for those who may be qualified for the position of fire fighter or patrolman and therefore is in violation of the Fifth Amendment of the United States Constitution, the Fourteenth Amendment of the United States Constitution, 42 USC §§ 1981 and 1983, 42 USC § 2000, et seq., the State and Local Assistance Act of 1972, P.L. 92-5112 (sic, P.L. 92-512); 31 USC § 1221; and the Omnibus Crime Control and Safe Streets Acts, P.L. 90-351, as amended. This policy and practice of discriminatory enforcement has the effect of confining blacks and Spanish speaking persons within the City of Milwaukee and therefore of perpetuating racial segregation in the community in violation of the aforementioned provisions of the constitution and laws.

City's prayer for relief demanded a preliminary injunction enjoining the defendants from further continuing their policy and practice of discriminatory enforcement of the law, a declaratory judgment adjudging the discriminatory practices and policy of the defendants to be in violation of the Constitution and in excess of their authority under the law, and a mandatory injunction compelling the defendants to commence an investigation into discriminatory employment practices in Police and Fire Departments in the metropolitan community, compelling them to make recommendations thereupon, and to apply the same or similar nondiscriminatory enforcement policies and practices with respect thereto.

On October 10, 1974, the defendant Attorney General moved the court, pursuant to Rules 12(b)(1) and 12(b)(6), to dismiss the action for lack of subject matter jurisdiction and for failure of the plaintiff City to state a claim upon which relief could be granted. On November 21, 1975, the district court filed a Decision and Order ruling that 28 U.S.C. § 1361 was a grant of subject matter jurisdiction for an action claiming that a federal official has violated a federal statute or constitutional provision. Accordingly, the district court denied the Attorney General's motion to dismiss for want of jurisdiction. However, the district court further ruled that the complaint failed to state a claim for relief. Pursuant to the requirements of Rule 58, Fed.R.Civ.P., the district court entered the final judgment challenged in this appeal.

I. Standing to Prosecute the Action

In the district court the Attorney General did not challenge the standing of the plaintiff to pursue this litigation. The issue was not raised, perhaps for obvious reasons, by City, and apparently was given no consideration by the court. We have some hesitancy ourselves in bringing the issue forward for attention, confessedly finding the guidelines in this type of case for determining standing not of the precision for easy resolution of the question. Nevertheless, because lack of standing in recent Supreme Court cases has been the dispositive factor in cases analogous to the one before us, we find it necessary to address the problem.

The Attorney General's motion to dismiss was filed some months prior to the Supreme Court's decision in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), although that case was in the books prior to the district court's dismissal of the present action. Warth clearly establishes that "(t) he rules of standing, whether as aspects of the Art. III case-or-controversy requirement or as reflections of prudential considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention." Id. at 517-18, 95 S.Ct. at 2215. In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues; and the inquiry involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. Id. at 498, 95 S.Ct. 2197. Assuming that a claim is otherwise justiciable, a plaintiff must show "an injury to himself that is likely to be redressed by a favorable decision." Simon

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v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).

In the present case, City's principal goal appears to be to enforce the right of its citizens to be considered for public employment as fire fighters or patrolmen in other municipalities of the metropolitan community. The plaintiff's concern for the right of its citizens does not automatically confer standing. If that were the case, the representative respondents in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), would have met the threshold standing requirement. In any case where a municipal corporation seeks to vindicate the rights of its residents, there is no reason why the general rule on organizational standing should not be followed. Cf. Local 194, Retail, Wholesale and Department Store Union v. Standard Brands, Inc., 540 F.2d 864, 866 (7th Cir. 1976). Unless City has alleged an injury to itself, it can establish standing only as a representative of its citizens who have been injured in fact. See Simon, supra at 38, 96 S.Ct. at 1924.

Nowhere in the complaint is there an allegation that the outlying " perimeter" communities in the SMSA have excluded from public employment any black, Spanish-speaking, or female citizens of the City of Milwaukee. Absent such an allegation, it was inappropriate to allow City to invoke the judicial process as a representative of its citizens. See Warth, supra at 514, 95 S.Ct. at 2197. City's claim against the Attorney General has been cast in a form which attempts to raise the putative rights of others. Its failure to allege that perimeter communities have, in actual fact, discriminated against Milwaukee residents on the basis of race or sex means that the complaint cannot be fairly read as making out a claim that the rights of City's residents have been subjected to a deprivation. See Warth, supra at 513 n. 21, 95 S.Ct. at 2197 n. 21. Our post-Warth decision of Local 194, supra, is no support for concluding that standing exists in this case. There, the union had formally alleged discrimination in hiring and promotion directed against its black, Spanish-speaking, and female members. Id. at 865.

City also complains that it has been the object of a selective and discriminatory prosecution which has the effect of perpetuating racial segregation. Assuming that such a challenge to the exercise of prosecutorial discretion would be otherwise justiciable, this court experiences difficulty in locating the requisite allegation of injury in fact to City itself. City's averment that it has expended considerable sums of money in response to the Attorney General's recommendations does not allege that the expenditures were a result of the asserted non-enforcement of the civil rights laws in the suburban communities. Voluntary expenditures designed to achieve full compliance with the law of the land cannot fairly be characterized as a...