July 6, 1992 ____________________
No. 91-1633
AMERICAN POSTAL WORKERS UNION, ET AL.,
Plaintiffs, Appellants,
v.
ANTHONY M. FRANK, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Young,* District Judge.
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James F. Lamond for appellants.
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Robert V. Zener, Appellate Litigation Counsel, with whom Stuart
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M. Gerson, Assistant Attorney General, Wayne A. Budd, United States
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Attorney, R. Andrew German, Assistant General Counsel, and Suzanne
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Hassell Milton were on brief for appellees.
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*Of the District of Massachusetts, sitting by designation.
COFFIN, Senior Circuit Judge. The American Postal Workers
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Union seeks declaratory and injunctive relief requiring the
United States Postal Service to stop mandatory drug testing of
applicants for employment.1 Because we find that the Union
lacks standing, we are constrained to dismiss this case without
reaching the sensitive constitutional issue at the heart of the
litigation.
I. Background
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This lawsuit challenges, as violative of Fourth Amendment
privacy rights, the Postal Service's policy of requiring job
applicants to submit to urinalysis drug testing. The Union
represents individuals who presently are postal service
employees. Some of those employees underwent drug testing before
they were hired, but this lawsuit does not request damages for
the asserted violation of their rights. Rather, the Union seeks
a declaration that the policy is unconstitutional, and an
injunction barring future testing of applicants. The Union thus
pursues remedies that will benefit only would-be Union members.
The district court, in a ruling from the bench, granted
summary judgment for the Postal Service. Although the court
referred to "a problem with standing," it nevertheless reached
the merits to conclude that the balance of interests weighed in
favor of the Postal Service's need to exclude drug-using
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1 Both the national union and the Boston area local are
plaintiffs. For the sake of simplicity, we refer to them
collectively throughout the opinion as "the Union."
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individuals from employment. Accordingly, the court held that
the Postal Service's pre-employment drug testing is a reasonable
search under the Fourth Amendment. See Tr. of Hearing, April 22,
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1991, at 13.
II. Discussion
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A. Principles of Standing
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Case or Controversy
Case or Controversy
Article III of the Constitution confines federal courts to
deciding only actual cases and controversies. Allen v. Wright,
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468 U.S. 737, 750 (1984). This limitation on federal
jurisdiction underlies the standing doctrine, which is designed
to assure that issues are presented to the court "in the context
of a specific live grievance," Golden v. Zwickler, 394 U.S. 103,
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110 (1969). Standing is thus a threshold question in every
federal case, requiring the court to determine "whether the
plaintiff has `alleged such a personal stake in the outcome of
the controversy' as to warrant his invocation of federal-court
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jurisdiction and to justify exercise of the court's remedial
powers on his behalf."
Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (emphasis in
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original) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
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The standing inquiry has three elements. A litigant must
[1] "`show that he personally has suffered some actual or
threatened injury as a result of the putatively illegal conduct
of the defendant' and [2] that the injury `fairly can be traced
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to the challenged action' and [3] `is likely to be redressed by a
favorable decision.'" Valley Forge Christian College v.
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Americans United for Separation of Church & State, 454 U.S. 464,
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472 (1982) (footnote and citations omitted). See also County of
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Riverside v. McLaughlin, 111 S. Ct. 1661, 1667 (1991); Allen v.
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Wright, 468 U.S. at 751; Playboy Enterprises, Inc. v. Public
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Service Comm'n, 906 F.2d 25, 36 (1st Cir. 1990).
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The personal injury prong of the inquiry has triggered the
most Supreme Court scrutiny and a substantial body of precedent
devoted to defining the nature of the requisite harm. United
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States v. AVX Corp., No. 91-1895 (1st Cir. April 21, 1992), slip
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op. at 9-10 (citing cases). The alleged injury, for example,
must be real and immediate rather than abstract or conjectural.
Id. A mere interest in a situation -- no matter how deeply felt,
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or how important the issue -- will not substitute for actual
injury. Id. The Court has noted that
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the decision to seek review must be placed "in the
hands of those who have a direct stake in the outcome."
Sierra Club v. Morton, 405 U.S. 727, 740 (1972). It is
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not to be placed in the hands of "concerned
bystanders," who will use it simply as a "vehicle for
the vindication of value interests." United States v.
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SCRAP, 412 U.S. 669, 687 (1973).
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Diamond v. Charles, 476 U.S. 54, 62 (1986).
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The less visited second and third components of the standing
inquiry -- "traceability" and "redressability" -- denote two
forms of causation. "[T]he former examines the causal connection
between the assertedly unlawful conduct and the alleged injury,
whereas the latter examines the causal connection between the
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alleged injury and the judicial relief requested." Allen v.
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Wright, 468 U.S. at 753 n.19. See also Haitian Refugee Center v.
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Gracey, 809 F.2d 794, 798-99 (D.C. Cir. 1987).
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When a litigant has met all three requirements, it can
fairly be assumed that a case or controversy has been
established, and that "the particular plaintiff is entitled to an
adjudication of the particular claims asserted," Allen v. Wright,
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468 U.S. at 752.
Associational Standing
Associational Standing
The Union does not contend that it has suffered any
"personal" injury from the drug testing. Instead, it invokes the
doctrine of "associational," or "representational," standing,
which permits organizations, in certain circumstances, to premise
standing entirely upon injuries suffered by their members. UAW
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v. Brock, 477 U.S. 274, 281-82 (1986); Hunt v. Washington State
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Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977); Warth v.
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Seldin, 422 U.S. at 511; AVX, slip op. at 16. This doctrine does
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not eliminate the constitutional requirement of a live case or
controversy between the parties, but it recognizes that injury to
an organization's members may satisfy Article III and allow the
organization to litigate in federal court on their behalf.
Brock, 477 U.S. at 281.
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The test for associational standing is -- like the basic
standing inquiry -- tripartite. The plaintiff association must
show that (a) at least one of its members possesses standing to
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sue in his or her own right -- i.e., that the member can satisfy
the three requirements of injury, traceability and
redressability; (b) the interests the suit seeks to vindicate are
germane to its purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit. Brock, 477 U.S. at 282; Hunt, 432 U.S.
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at 343; AVX, slip op. at 16.
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To establish its right to bring the instant action, the
Union must demonstrate compliance with these prerequisites. As
we discuss in Section B below, it cannot do so. Because the
Union members are unable to meet the redressability prong of the
basic standing inquiry, they lack standing. As a result, the
Union is unable to fulfill the first condition for associational
standing -- that at least one member possess standing to sue as
an individual. In light of this deficiency, we do not consider
whether the Union could satisfy the other two prongs of the
associational standing test.2
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2 The district court probably was skeptical about the Union's
ability to meet the second prong of the associational standing
inquiry, requiring it to demonstrate that the interests at issue
in the suit are germane to its purpose. This concern arose after
the National Labor Relations Board ruled that the Union "waived
any right of collective bargaining over the issue of applicant
drug testing," American Postal Workers Union v. Frank, 734 F.
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Supp. 40, 41 (D. Mass. 1990) (McNaught, J.), suggesting that such
testing was not sufficiently central to its purpose to satisfy
the associational standing doctrine. The court previously had
held that the Union satisfied the first prong of the inquiry,
stating that "[t]here is no question that union members could
bring suit on their own if they so desired," American Postal
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Workers Union v. Frank, 725 F. Supp. 87, 89 (D. Mass. 1989)
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(McNaught, J.).
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B. Union Members' Standing
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If the question at this juncture were simply whether any of
the Union's members could allege harm from the disputed policy,
we might well resolve the standing issue in its favor. Among the
Union's present membership are individuals who submitted to the
drug test. These members have a concrete claim of injury -- that
they were subjected to an unreasonable search in violation of the
Fourth Amendment.3
Supreme Court caselaw teaches, however, that while the past
injury suffered by these members would give them standing to
bring actions for damages, it is an insufficient predicate for
equitable relief. In Los Angeles v. Lyons, 461 U.S. 95, 111
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(1983), the Court reaffirmed the principle that past exposure to
harm will not, in and of itself, confer standing upon a litigant
to obtain equitable relief "[a]bsent a sufficient likelihood that
he will again be wronged in a similar way." See also Lujan v.
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Defenders of Wildlife, 60 U.S.L.W. 4495, 4498 (U.S. June 12,
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1992); Rizzo v. Goode, 423 U.S. 362, 371-73 (1976); O'Shea v.
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Littleton, 414 U.S. 488, 495-96 (1974).
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The plaintiff in Lyons alleged that police officers who
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stopped him for a traffic violation unconstitutionally applied a
chokehold that rendered him unconscious and damaged his larynx.
He sued the City of Los Angeles and four officers, and obtained a
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3 We express no opinion on the viability of any such claim, if
brought.
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preliminary injunction barring use of the procedure except when
death or serious bodily injury was threatened.
The Supreme Court reversed. It found that Lyons "has failed
to demonstrate a case or controversy with the City that would
justify the equitable relief sought," 461 U.S. at 105. Lyons's
standing to seek such relief, the Court held, depended upon
whether "he is realistically threatened by a repetition of his
experience of October 1976," 461 U.S. at 109. See also id. at
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105.
That Lyons may have been illegally choked by the police
on October 6, 1976, while presumably affording Lyons
standing to claim damages against the individual
officers and perhaps against the City, does nothing to
establish a real and immediate threat that he would
again be stopped for a traffic violation, or for any
other offense, by an officer or officers who would
illegally choke him into unconsciousness without any
provocation or resistance on his part.
Id.
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In other words, because Lyons could not show that an
injunction barring future use of the chokehold would provide
relief to him, personally, he had no standing to seek that
remedy. The Court deemed far too speculative the possibility
that Lyons would have another encounter with the police that
would result in an illegal application of the chokehold. And the
allegation in his complaint that Los Angeles police officers
routinely apply the chokehold unconstitutionally was insufficient
"to establish a case or controversy between these parties," id.
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at 105 (emphasis added). The Lyons holding derives from the
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third prong of the standing inquiry, conditioning justiciability
on whether the plaintiff's injury is likely to be redressed by
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the requested relief. It is based on the obvious proposition
that a prospective remedy will provide no relief for an injury
that is, and likely will remain, entirely in the past.
The relationship in this case between asserted injury and
requested remedy is indistinguishable from that in Lyons.
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Because the drug testing policy is applied only to job
applicants, no Union member faces a realistic risk of future
exposure to it. Consequently, the declaratory and injunctive
relief sought by the Union will not alleviate its members'
injuries. Like Lyons, the Union members have live claims for
damages. The presence of viable damages claims, however, does
not establish a "present case or controversy regarding
[equitable] relief," O'Shea, 414 U.S. at 495-96. For such
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relief, therefore, the Union's members, and thus the Union, lack
standing. Cf. Society of Separationists, Inc. v. Herman, No. 90-
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8660, slip op. at 4191 (5th Cir. April 17, 1992) (en banc).4
The Union argues that this case differs in a significant
respect from Lyons and other cases in which plaintiffs sought
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equitable relief based on past injury. The focus in those cases,
according to the Union, was on the unlikely recurrence of the
challenged conduct. Here, however, because the Postal Service
continues to perform pre-employment drug testing on a daily
basis, there is "a very real and substantial conflict for which
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4 Although the emphasis in Lyons, O'Shea and Rizzo was on
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injunctive relief, the same principles apply with respect to
declaratory judgments, which are authorized only "[i]n a case of
actual controversy," 28 U.S.C. 2201. See Golden v. Zwickler,
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394 U.S. 103, 108 (1969).
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the issuance of declaratory relief would be particularly
appropriate." Reply Brief at 5.
The factual distinction drawn by the Union is accurate. In
none of the Supreme Court cases addressing the question of
standing to obtain equitable relief was the challenged practice a
routine, daily procedure implemented as a matter of policy by the
defendants. Neither the unprovoked use of chokeholds at issue in
Lyons, the prisoner transfer in Preiser v. Newkirk, 422 U.S. 395
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(1975), the police treatment in Rizzo, nor the criminal justice
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procedures in O'Shea was explicitly implemented as standard
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operating procedure by the defendants.
This distinction is not, however, pertinent. Indeed, the
Court in Lyons rejected a similar attempt to distinguish that
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case from the precedent of O'Shea and Rizzo, where equitable
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relief had been denied because the prospect of future injury to
plaintiffs was too speculative. The appeals court in Lyons had
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deemed the O'Shea-Rizzo cases inapposite to the issue before it
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because it viewed them as involving "massive structural" relief
against local law enforcement systems while Lyons sought only to
enjoin an "established," "sanctioned" police practice. 461 U.S.
at 108. The Supreme Court was unpersuaded by the circuit court's
reasoning, and ruled that O'Shea and Rizzo "cannot be so easily
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confined to their facts," id. at 108-09. If Lyons is unable to
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show a realistic threat of repetition of his experience, the
Court held, then he has failed to establish standing for seeking
an injunction in federal court, "whether the injunction
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contemplates intrusive structural relief or the cessation of a
discrete practice." Id. at 109.5
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That the Postal Service consistently imposes the drug test
on applicants demonstrates that a live dispute exists, but it
does not demonstrate that the Union has a direct stake in that
dispute. The Union does not explain how its members -- all of
whom, by definition, are postal service employees, rather than
applicants -- are hurt by the continuing use of the test on non-
member job applicants. Nothing in the relevant caselaw suggests
that guaranteed repetition of the injury to someone lessens the
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need for a particularized dispute between the plaintiff and
defendant.
We recognize that the Union has a serious claim of
constitutional magnitude. Even an important substantive issue
cannot be brought to federal court, however, if a plaintiff fails
to satisfy Article III's requirements. See Separationists, slip
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op. at 4192 ("We must not shrink from our duty to decide a
controversy, but that duty includes faithful obedience to the
limits of our mandate.") While the concept of standing defies
precise definition or mechanical application, AVX, slip op. at 9;
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5 We similarly find unavailing another distinction between this
case and Lyons. In Lyons, and in the precedent upon which it
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relied, plaintiffs sought federal intervention into state police
practices or other state institutions. This prompted the Court
to invoke principles of comity and federalism in support of its
decisions against federal jurisdiction. See Lyons, 461 U.S. at
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94. While the issue here may be more appropriate for federal
court, federal court is nevertheless "not the proper forum to
press such claims unless the requirements for entry . . . are
satisfied," id. at 112.
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Allen v. Wright, 468 U.S. at 751, the Court made it quite clear
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in Lyons that the baseline requirements are unyielding. A
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plaintiff must demonstrate a concrete injury caused by the
defendant and remediable by the requested relief to satisfy
Article III. Measuring the facts of this case against those
well-established foundational criteria requires us to conclude
that the Union lacks standing.
Accordingly, the judgment of the district court granting
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summary judgment for defendants is vacated, and the cause is
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remanded with instructions to dismiss the complaint for lack of
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jurisdiction. Costs to appellees.
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