534 F. 2d 1251 - Calvin v. B Conlisk

On February 23, 1976, the Supreme Court granted certiorari with respect to our judgment entered pursuant to our opinion reported in 520 F.2d 1. Simultaneously, the Court vacated our judgment with costs and remanded the cause to us for further consideration in light of Rizzo v. Goode, 423 U.S. ----, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Upon remand, we requested supplemental briefs from the parties. After consideration of those briefs and analysis of the Supreme Court's decision in Rizzo, we affirm the order of the District Court.

It is unnecessary to reach the question of whether this case is distinguishable on the merits from Rizzo, because we conclude that plaintiffs lack the standing Rizzo has shown to be necessary.

The individual plaintiffs' conclusory allegations of the threat of renewed police misconduct1 are not different in substance from those found wanting in Rizzo as "hypothetical" complaints about what some unknown policeman "might do to (the plaintiffs) in the future because of that unknown policeman's perception of departmental disciplinary procedures."2 423 U.S. at ----, 96 S.Ct. at 605, 46 L.Ed.2d at 570. See also O'Shea v. Littleton, 414 U.S. 488, 495-497, 94 S.Ct. 669, 675-676, 38 L.Ed.2d 674, 683-684 (1974), the applicability of which is made clear by Rizzo, 423 U.S. at ----, 96 S.Ct. at 604-605, 46 L.Ed.2d at 570. Absent specific allegations that the individual plaintiffs are threatened in a manner in which members of the public generally are not, those plaintiffs lack standing.

Application of Rizzo to the allegations here also defeats the standing of the organization plaintiffs. An organization "can have standing as the representative of its members only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit." Warth v. Seldin, 422 U.S. 490, 516, 95 S.Ct. 2197, 2214, 45 L.Ed.2d 343, 365 (1975). Because under Rizzo the possibility of injury to any individual member of either organization is too remote to confer standing, the organizations lack standing to sue as representatives of their members.

The organizations' other alleged basis for standing, viz., that they will incur expenses in processing claims of police misconduct unless the federal equity court intervenes, assuming this amounts to injury in fact,3 is not within the zone of interests protected by the Fourteenth Amendment or42 U.S.C. § 1983. See Data Processing Service v. Camp, 397 U.S. 150, 153-154, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184, 188 (1970); Barlow v. Collins,397 U.S. 159, 164-165, 90 S.Ct. 832, 836-837, 25 L.Ed.2d 192, 198 (1970); and see generally Hart and Wechsler, The Federal Courts and The Federal System 151-157 (2d ed. 1973). Moreover, to allow standing on this basis would be to circumvent principles which the Supreme Court has carefully delineated and observed. It would leave nothing of the limitations imposed by the Court in Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636, 645 (1972). See also Warth v. Seldin, supra, 422 U.S. at 498-502, 95 S.Ct. at 2205-2207, 45 L.Ed.2d at 354-356. It would also give any organization with a particularized interest the right to bring suit in order to spare itself the expense of continued efforts to further that interest. The Sierra Club could have maintained its suit in order to avoid the future expense of attempting to police the encroachments upon the environment which would inevitably accompany the operation of the Mineral King Valley recreation project. An organization devoted to the defense of cases it believed to infringe civil liberties, could facially attack any statute touching on civil liberties in order to avoid the future expense of defending cases brought under the law. The effect would be to undermine the prudential rules of standing.

Our ruling is without prejudice to the filing of an amended complaint by any plaintiff or plaintiffs in an attempt to satisfy the standing requirement of the Rizzo case. By this qualification of our affirmance, we do not imply that we have any opinion concerning whether it will be possible for any plaintiff to allege facts establishing such standing. We only wish to preserve any right to proceed which is undisturbed by Rizzo.

The order appealed from is affirmed. The case is remanded for further proceedings with respect to issues still pending in the District Court. On remand that court will amend the order in accordance with the preceding paragraph of this opinion.

AFFIRMED AND REMANDED.