Reid v. Department of Commerce

• Decision Date: 30 May 1986
• Docket Number: 85-2281,Nos. 85-2011,s. 85-2011
• Parties: Terrie G. REID, et al., Petitioners, v. DEPARTMENT OF COMMERCE, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 277

793 F.2d 277

Terrie G. REID, et al., Petitioners, v. DEPARTMENT OF COMMERCE, Respondent.

Appeal Nos. 85-2011, 85-2281

United States Court of Appeals, Federal Circuit.

May 30, 1986.

Phillip R. Kete, Washington, D.C., for petitioners.

Sandra P. Spooner, of Dept. of Justice, Wash., D.C., for respondent. With her on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan, Asst. Director and David B. Stinson. Of counsel were Jon Pearson, Thomas C. Conley and Carol Anning, of the Office of Gen. Counsel, Dept. of Commerce, Wash., D.C.

Before SMITH, NIES, and ARCHER, ^* Circuit Judges.

ORDER

ARCHER, Circuit Judge.

The American Federation of Government Employees, Local 2782 (AFGE Local 2782 or Union), has moved to enter this case as petitioner. The motion is denied.

Background

The named petitioners herein were involved in an agency-wide reduction-in-force (RIF) conducted by the Census Bureau of the Department of Commerce. They signed authorization cards designating AFGE Local 2782 as their representative before the Merit Systems Protection Board (MSPB or Board) and were so represented by the Union's designee in those proceedings. 5 U.S.C. Sec. 7701(a)(2). The decisions of the MSPB being adverse, an attorney retained by AFGE Local 2782 represented petitioners in prior appeals to this court. ¹ See, e.g., Crispin v. Department of Commerce, 732 F.2d 919 (Fed.Cir.1984); Austin v. Department of Commerce, 738 F.2d 453 (Fed.Cir.1984) (unpublished opinion); Nightengale v. Department of Commerce, 738 F.2d 453 (Fed.Cir.1984) (unpublished opinion). We remanded the cases to the MSPB for full hearings to determine whether the agency had properly established the various competitive levels for the employees' positions as used in the RIF. On remand, the MSPB again rendered decisions adverse to petitioners.

Thereafter, an attorney retained by AFGE Local 2782 filed a consolidated appeal in this court purporting to represent the named petitioners. During oral argument, the court questioned whether appeal had been authorized by the petitioners. Counsel admitted he had had no communication with any of them, but instead was employed by the Union to represent them. Counsel was directed to advise the court whether each petitioner had been contacted by the Union regarding the adverse decision of his or her case by the MSPB and had authorized an appeal. The response makes clear that the "named petitioners did not, in fact, direct the filing of these petitions after receipt of the MSPB decisions being challenged...." Counsel for petitioners noted, however, that Union representatives believe the individual petitioners, when they signed the MSPB representation forms, understood and desired that the Union would provide representation for any necessary judicial appeals. AFGE Local 2782 has now moved to enter this case as petitioner in an attempt to cure the absence of specific appeal authorization by the individual petitioners, other than Terrie G. Reid, ² and we must determine if it has standing to do so.

OPINION

A. Whether the Union has standing to be a petitioner in this case requires inquiry into both the constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). The rules of standing are threshold determinants of the propriety of judicial intervention and it is the responsibility of the Union in this case to demonstrate that it is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Id. at 517, 95 S.Ct. at 2214-15. For this purpose, we will accept the facts set forth in the Union's motion as true.

Article III of the Constitution restricts the exercise of federal judicial power to actual "cases" and "controversies." Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315 3324, 82 L.Ed.2d 556 (1984); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). This restriction imposes the requirement on the person seeking judicial relief to allege a "distinct and palpable injury to himself." Warth, 422 U.S. at 501, 95 S.Ct. at 2206. He must also show that "the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision.' " Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); see also Allen, 104 S.Ct. at 3325.

The standing doctrine also embraces several judicially self-imposed limits on the exercise of federal jurisdiction. These prudential restrictions include a general prohibition precluding a litigant from raising another person's legal rights, a rule barring adjudication of generalized grievances more appropriately addressed in the representative branch, and a requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. Allen, 104 S.Ct. at 3324-25.

B. With respect to the Article III injury requirement, the Supreme Court has recognized that an association may have standing to assert the claims of its members, even where the association itself has not suffered injury from the challenged action. ³ Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 342, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977) (associational standing). The association may be the appropriate representative of its members, entitled to invoke the jurisdiction of a federal court, when:

(i) its members would otherwise have standing to sue in their own right;

(ii) the interests it seeks to protect are germane to the organization's purpose; and

(iii) neither the claims asserted nor the relief requested requires the participation of the individual members in the lawsuit.

Id. at 343, 97 S.Ct. at 2441.

There can be little doubt the Union satisfies the first two of the Hunt requirements. The Union argues that it also satisfies the third requirement in this case because "(c)ourt of appeals review of administrative decesions [sic] is a perfect example of a case where individual participation is not necessary." In its view, the record already exists and there is no opportunity for the development of facts personal to each affected employee.

The third Hunt factor cannot be glossed over so lightly. In Warth, the Court said that in all cases in which it had recognized association standing, based on injury to the members, the type of relief sought was a "declaration, injunction or some other form of prospective relief...." 422 U.S. at 515, 95 S.Ct. at 2213. The association there sought relief in damages for alleged injuries to its members and the damage claims were not common to the entire membership or shared by all in equal degree. In rejecting the association's standing to pursue this type of relief, the Court stated:

whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents' practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf.

Id. at 515-16, 95 S.Ct. at 2214.

The Union here, if permitted to enter as petitioner, would similarly be seeking particularized relief dependent on the individual circumstances of each employee. While damages are not sought, reinstatement relief (and concommitant back pay) similarly requires that the injured union members be parties to the action.

Furthermore, we are not convinced that the third Hunt requirement can be avoided solely because an appellate court does not engage in fact finding. Indeed, the Union has cited no authority for its broad contention and we find none. The decision herein, even though the cases are consolidated for appeal and argument, must separately address the facts and legal conclusions of the Board with respect to each named petitioner.

C. Turning to the prudential considerations, they also lead to the conclusion that the Union lacks association standing in this case. In this inquiry, the focus is whether the Union is within the intendment of the jurisdictional statute in seeking to assert the legal rights or interests of third persons. ⁴

Congress, through the exercise of its legislative power, can resolve the question of prudential limitations on standing one way or the other. Data Processing Service, 397 U.S. at 154, 90 S.Ct. at 830. It may, by statute, grant a right of action, either expressly or by clear implication, to persons seeking relief on the basis of the legal rights or interests of third persons. Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Logically, Congress can also deny such a right of action. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Stark v. Wickard, 321 U.S. 288, 312, 64 S.Ct. 559, 572, 88 L.Ed. 733 (1944) (Frankfurter, J., dissenting) ("whether judicial review is available at all, and if so, who may invoke it, ... are questions that depend for their answer upon the particular enactment under which judicial review is claimed").

Under 28 U.S.C. Sec. 1295(a)(9) (1982), ⁵ this court has exclusive subject matter jurisdiction over final orders and decisions of the MSPB pursuant to, inter alia, 5 U.S.C. Sec. 7703(b)(1). ⁶ Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 1634, 84 L.Ed.2d 674 (1985); Yarbrough v. Office of Personnel Management, 770 F.2d 1056, 1059 (Fed.Cir.1985); Bronger v. Office of Personnel Management, 769 F.2d 756, 757 (Fed.Cir.1985) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 882, 88 L.Ed.2d 918 (1986). These provisions do not provide guidance as to who is the proper litigant to invoke this jurisdiction for they do not create the litigant's legal right to appeal. ⁷ Thus, when...