National Association of Government Employees v Mulligan et al
Filing
71
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER; "In accordance with the foregoing, 1) because NAGE lacks associational standing to bring claims for political affiliation discrimination on behalf of its members, defendants' motions to dismiss (Docket No. 31 , 33 and 49 ) are ALLOWED, 2) the Amended Complaint (Docket No. 16 ) is DISMISSED, and 3) defendants' motion to stay proceedings (Docket No. 29 ) is DENIED as moot. So ordered."(Moore, Kellyann)
United States District Court
District of Massachusetts
________________________________
)
NATIONAL ASSOCIATION OF
)
GOVERNMENT EMPLOYEES,
)
Plaintiff,
)
)
Civil No.
v.
)
11-11123-NMG
)
HON. ROBERT MULLIGAN, JOHN
)
O’BRIEN, BERNARD DOW, FRANCES
)
WALL, RONALD CORBETT, JR.,
)
WILLIAM BURKE, ELIZABETH TAVARES )
and PATRICIA WALSH,
)
Defendants.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
The Complaint alleges that the Massachusetts Office of the
Commissioner of Probation (“the Probation Department”), at the
insistence of then-Commissioner John O’Brien and with the active
assistance of other senior officials, systematically based
employment decisions on political affiliation in violation of the
First Amendment to the United States Constitution.
The facts and procedural history of this case were recounted
in a Memorandum and Order issued by this Court on March 21, 2012
and will be supplemented here only to the extent necessary.
On
March 21, 2012, the Court allowed the joint motion to intervene
filed by the United States and the Commonwealth of Massachusetts,
denied the motion to abstain filed by Chief Mulligan and Ronald
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Corbett, Jr. and held in abeyance the motions to dismiss.
In a
supplemental Memorandum and Order issued on March 30, 2012, this
Court denied the motion to dismiss filed by Bernard Dow and
retained under advisement the remaining motions to dismiss.
On
April 24, 2012, the Court heard oral argument on defendant’s
motions to dismiss for lack of standing and failure to state a
claim of political affiliation discrimination and took those
motions under advisement.
Upon further reflection and analysis,
the Court now renders the following decision.
I.
Standing
National Association of Government Employees (“NAGE”) brings
this action in its associational capacity on behalf of those of
its members aggrieved by the allegedly discriminatory hiring
practices of the Probation Department.
Ordinarily, an injured
party “must assert his own legal rights and interests, and cannot
rest his claim to relief on the legal rights or interests of
third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).
A
limited exception, known as the doctrine of “representational” or
“associational” standing, allows an association to sue on behalf
of its members if:
1) its members would otherwise have standing to sue in
their own right, 2) the interests it seeks to protect are
germane to the organization’s purpose and 3) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Hunt, 432 U.S. at 343.
The doctrine recognizes that associations
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are typically organized for the purpose of protecting the
interests of their members and, accordingly, usually have a
substantial stake in the litigation they pursue on their behalf.
Coll. of Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co., 858
F.3d 33, 40 (1st Cir. 2009).
Defendants Burke, O’Brien, Walsh, Corbett and Chief Mulligan
contend that NAGE lacks associational standing because the relief
it seeks (rescission of the tainted probation appointments) pits
the interests of one faction of its membership (NAGE members who
obtained those appointments through the alleged “Pay for Play”
scandal) against the interests of another faction (NAGE members
who purportedly were fraudulently denied those appointments).
That conflict of interest, they maintain, prevents NAGE from
satisfying the third associational standing requirement, i.e.,
its claims cannot be adjudicated nor the requested relief awarded
without the extensive participation of its members.
Plaintiff
acknowledges the conflict but responds that it does not bear upon
its standing to represent its members.
To ascertain what the Supreme Court meant when it announced
that “extensive member participation” may defeat associational
standing, the Court defers to the Hunt decision and its progeny.
In Hunt, the Supreme Court stated that an association may not
bring suit on behalf of its members unless “neither the claim
asserted nor the relief requested requires the participation of
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individual members in the lawsuit.” 432 U.S. at 343.
Considered
in isolation, that language could mean that associational
standing is not permitted if the participation of any member is
necessary.
Subsequent decisions have clarified, however, that it
is an imprecise paraphrase of the following more detailed
principle announced by the Court in an earlier decision:
[S]o long as the nature of the claim and of the relief
sought does not make the individual participation of each
injured party indispensable to proper resolution of the
cause,
the
association
may
be
an
appropriate
representative of its members entitled to invoke the
court’s jurisdiction.
E.g., Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83,
(3d Cir. 1991) (quoting Warth, 422 U.S. at 512).
It is thus resolved that an association may bring a claim
that requires some participation by some of its members.
much participation is the crucial question.
How
The Supreme Court
has left unresolved when member participation becomes so
“extensive” and an inquiry sufficiently “fact-intensive” to
defeat associational standing.
To answer that question, the
Court reviews three decisions of the First Circuit Court of
Appeals.
In Playboy Enterprises, Inc. v. Public Service Commission of
Puerto Rico, 906 F.2d 25, 35 (1st Cir. 1990), a trade association
challenged the criminal prosecution of cable operators under an
obscenity statute on the grounds that the conduct at issue was
protected by the First Amendment and the Cable Communications
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Policy Act.
Specifically, the association sought 1) a
declaration that the obscenity statute, as applied, violated
federal statutory and constitutional law and 2) an injunction
enjoining the defendants from prosecuting cable operators under
it. Id.
The First Circuit decided that the extensive member
participation requirement was not an obstacle to standing because
the pre-emption claims “turn[ed] on a question of law which is
not particular to each member of the Association,” and the
declaration and injunction “applied equally to all members of the
Association.” Id.
In Pharmaceutical Care Management Association v. Rowe, No.
Civ. 03-153-B-H, 2005 WL 757608 (D. Me. Feb. 2, 2005), aff’d 429
F.3d 294 (1st Cir. 2005) a closer case was presented.
There, an
association sought to litigate claims for regulatory takings on
behalf of its members.
The district court held that “prudence
caution[ed] against further entertaining” the takings challenges
of the association.
It reasoned that
the
viability
of
PCMA’s
takings
claim
varies
member-by-member, not based on the threshold question of
whether a given member does business in Maine and
complies with the statute, but based on the highly
individualized, underlying factual questions of whether
and how a given member protects the information at issue
and
whether
the
confidential
disclosure
of
the
information to specific benefits providers or “covered
entities” strips the information of all value as a trade
secret or causes economic injury of constitutional
proportion.
2005 WL 757608, at *12.
Although it found that the association
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lacked standing, the district court nonetheless went on to
dismiss the takings challenges on the merits. Id. at *12-23.
The First Circuit affirmed the district court’s dismissal on
appeal but the panel disagreed with the district court’s denial
of associational standing.
Writing for the panel, Circuit Judge
Torruella explained that even though takings inquiries are
“intensely fact specific” and plaintiffs needed to introduce
proof of specific member practices and effects of the law on
specific members, the Pharmaceutical Care Management Association
had standing to bring claims on behalf of its members because it
was not necessary for them to participate in the litigation as
parties. Id. at 306-07.
In so holding, Judge Torruella suggested
that associational standing never becomes an issue where claims
are for injunctive relief only.
Then-Chief Circuit Judge Michael Boudin and Circuit Judge
Timothy Dyk of the Federal Circuit, sitting by designation,
concurred in the judgment affirming the dismissal but wrote
separately to express their disagreement on the associational
standing issue, which they acknowledged was “difficult.”
They
began by noting the absence of any “well developed test in this
circuit as to how the third prong of the Hunt test . . . applies
in cases where injunctive relief is sought.” Id. at 314-15.
went on to distinguish Playboy Enterprises as factually
inapposite and made clear that the decision was
-6-
They
not an open door for association standing in all
injunction cases where member circumstances differ and
proof of them is important.
Id.
They then expressed their doubt that associational standing
would have been proper had the case not been dismissed on other
grounds, noting that the regulatory takings claims “could in
principle be significantly strengthened or weakened by the
particularized circumstances of each individual member” and
pointing out the considerable variation in the circumstances of
each member company. Id. at 314.
The logic of the concurring judges was vindicated by a
unanimous panel of the First Circuit in New Hampshire Motor
Transport Association v. Rowe, 448 F.3d 66 (1st Cir. 2006).
In
describing the requirements for establishing the third Hunt
factor, the Court reiterated that it
did not embrace the proposition that, under Playboy
Enters. the third Hunt factor is always satisfied where
an association seeks injunctive relief on behalf of all
of its members.
Id. at 72.
It then confirmed that associational standing is
“inappropriate” if adjudicating the merits or determining damages
requires the court to engage in a “fact-intensive-individual
inquiry.” Id.
Against that backdrop, this Court considers
defendants’ challenge to NAGE’s associational standing.
NAGE does not base its claim for political affiliation
discrimination on the circumstances of one particular appointment.
Instead, it alleges that the “Pay for Play” scheme operated by
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the Probation Department Defendants deprived a number of NAGE
members of their right to non-discriminatory consideration over a
seven-year period.
In connection with that claim, NAGE seeks two
forms of relief: 1) a declaratory judgment that the aggrieved
NAGE members “were discriminated against by the Probation Service
on the basis of political affiliation or association (or lack
thereof)” and thereby “suffered a deprivation of their
constitutional rights” and 2) an injunction directing Chief Judge
Mulligan to rescind any appointment made by the Probation
Department in which political association played a substantial
role and to reopen the tainted positions for competitive hiring.
Unlike most cases in which associational standing has been
upheld, e.g., Playboy Enters., 906 F.2d at 35, this case does not
turn on a pure question of law but rather on the application of
law to a series of different factual scenarios.
These claims for
political affiliation discrimination are similar to the
regulatory takings claims in Rowe in that each depends, in large
part, on “the particularized circumstances of each individual
member.” 429 F.3d at 314.
To adjudicate them, the Court will
need to review the individual circumstances surrounding each of
the tainted appointments to assess which positions, if any, were
filled through a discriminatory hiring process and which NAGE
members, if any, were discriminated against in that process.
The equitable relief requested will likewise require
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extensive member participation because it cannot be granted
through a declaration or injunction applicable to all members
equally.
Awarding relief here is more complicated than, for
instance, prohibiting certain business practices across the
board, College Of Dental Surgeons of P.R., 585 F.3d at 41, or
enjoining the enforcement of a criminal statute for certain
conduct, Playboy Enters., 906 F.2d at 35.
Here, the Court cannot
resolve the case without individualized consideration of each
appointment because a finding of discrimination against
representative members will be an insufficient basis on which to
ground 1) a judgment that all of the aggrieved NAGE members were
discriminated against or 2) an injunction directing the Trial
Court Defendants to re-open all appointments made during the
seven-year period.
All of which leads the Court to conclude that NAGE lacks
associational standing.
In so holding, this Court joins other
district courts which have denied standing to associations
seeking to litigate employment discrimination claims on behalf of
their members. See Nat’l Fed’n of the Blind of Neb., Inc. v.
Outlook Neb., Inc., No. 8:10CV418, 2011 WL 4802643, at *5-11 (D.
Neb. 2011); Educadores Puertorriqueños v. Rey Hernandez, 508 F.
Supp. 2d 164, 175 (D.P.R. 2007); Leaming v. Jackson Cnty., Mo.,
No. 03-00940-CV-W-SWH, 2006 WL 1046906, at *21-22 (W.D. Mo.
2006); Access for the Disabled, Inc. v. Rosof, No.
-9-
805CV1413T30TBM, 2005 WL 3556046, at *2 (M.D. Fla. 2005); Tex.
Peace Officers Ass’n v. City of Galveston, Tex., 944 F. Supp.
562, 563 (S.D. Tex. 1996).
II.
Jurisdiction
Because NAGE lacks standing to bring political affiliation
claims on behalf of its members, this Court lacks subject-matter
jurisdiction to hear them. See Katz v. Pershing, LLC, 672 F.3d
64, 75 (1st. Cir. 2012).
Accordingly, the Court declines to
address defendants’ contention that NAGE fails to state a claim
of political affiliation discrimination.
Individuals aggrieved
by the hiring policies of the Probation Department may very well
have actionable claims against some of the defendants for
political affiliation discrimination.
To vindicate any such
claims, however, they must bring them in their individual
capacities.
The Court declines to hear plaintiff’s remaining state-law
claims for fraud and intentional interference with contract, over
which it otherwise would have had supplemental jurisdiction.
The
dismissal of a federal claim which forms the basis for a district
court’s original jurisdiction does not automatically divest the
court of its supplemental jurisdiction over pendant state-law
claims but does require the court to assess pragmatically whether
retaining jurisdiction is in the interest of “fairness, judicial
economy, convenience, and comity.” Camelio v. Am. Fed’n, 137 F.3d
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666, 672 (1st. Cir. 1998).
Here, the balance of competing
factors weighs against the exercise of supplemental jurisdiction.
ORDER
In accordance with the foregoing,
1)
because NAGE lacks associational standing to bring
claims for political affiliation discrimination on
behalf of its members, defendants’ motions to dismiss
(Docket No. 31, 33 and 49) are ALLOWED,
2)
the Amended Complaint (Docket No. 16) is DISMISSED, and
3)
defendants’ motion to stay proceedings (Docket No. 29)
is DENIED as moot.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated September 11, 2012
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