Third District Court of Appeal
State of Florida
Opinion filed December 13, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1849
Lower Tribunal No. 98-7760
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Fraternal Order of Police, Miami Lodge No. 20,
Appellant,
vs.
City of Miami,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.
Klausner, Kaufman, Jensen & Levinson, and Robert D. Klausner and Paul
A. Daragjati (Plantation), for appellant.
Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellee.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
ROTHENBERG, C.J.
The Fraternal Order of Police, etc. (“the FOP”) appeals from the trial court’s
entry of a final order determining that the FOP lacks standing to seek damages
against the City of Miami (“the City”) on behalf of some of the FOP’s members.
Based on our review of the record on appeal and the relevant case law, we agree
with the trial court’s determination that the FOP lacks standing to pursue damages
on behalf of its members because the determination of damages will require the
individual participation of the affected FOP members.
BACKGROUND
This appeal concerns a promotional exam for the position of police sergeant
administered by the City in 1994. In 1996, the FOP filed a complaint, and
ultimately a second amended complaint, seeking declaratory relief, injunctive
relief, and damages against the City, alleging that the oral portion of the exam was
unlawful. Following discovery, the trial court entered an order bifurcating the
liability and damages phases of the litigation. After conducting a bench trial on
liability, the trial court entered a partial final declaratory judgment in 2007 in favor
of the FOP, declaring the oral portion of the exam invalid.
Thereafter, the City sought clarification as to the FOP’s associational
standing to recover damages on behalf of its individually affected members. The
trial court entered an order in 2008 finding that, although the FOP may possess
associational standing to seek declaratory, injunctive, or other prospective relief for
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its members, it lacks associational standing to recover damages on behalf of the
members affected by the flawed promotion examination. Specifically, the trial
court found that because the determination of the damages sought by the FOP will
require extensive and individualized discovery to determine whether and to what
extent each individual member was damaged, the FOP does not have standing to
recover damages on their behalf.
Five years after the trial court entered its order finding that the FOP lacked
standing to pursue damages on behalf of its affected members, the FOP filed a
motion for reconsideration of that order, but failed to set the motion for a hearing.
Three years later, at the City’s prompting, the motion was heard and denied. The
FOP now seeks a reversal of the trial court’s determination that it lacks standing to
seek damages in its representational capacity on behalf of its members.
ANALYSIS
“Generally, the determination of whether a plaintiff has standing is a legal
issue subject to de novo appellate review. . . . To the extent that the trial court’s
standing determination involves factual findings, we uphold such findings only if
supported by competent, substantial evidence.” Citibank, N.A. v. Olsak, 208 So.
3d 227, 229 (Fla. 3d DCA 2016) (citations omitted).
At the outset, we note that this case appears to present an issue of first
impression. Neither of the parties on appeal have cited to any Florida case that
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directly addresses whether and in what circumstances a union has standing to seek
damages on behalf of its members, nor have we found such a case. However, based
on our review of other union standing cases and related case law in the context of
associational standing, we conclude that a union does not have standing to seek
damages solely on behalf of its members where the union’s claims for damages
require individualized participation by and proof from its members.
1. The Federal Associational Standing Doctrine
Although the specific issue before us has not been resolved in Florida, it has
been addressed in a number of cases before the federal courts. While we
acknowledge that these federal authorities are not binding, we nevertheless find
them to be persuasive and compatible with Florida law. Accordingly, our analysis
begins with the development and application of associational standing in federal
case law before turning to our analysis of Florida law.
The specific test that governs when an association has standing in its
representational capacity to bring suit on behalf of its members can be traced to
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). In
Hunt, the United States Supreme Court held that an association may have standing
to bring a lawsuit on behalf of its members in its representational capacity, even if
it has suffered no direct injury, so long as three requirements are met: “(a) its
members would otherwise have standing to sue in their own right; (b) the interests
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it seeks to protect are germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Id. at 343. As to the third prong of the Hunt test, which is
the focus of our analysis in the present case, the Court elaborated:
[W]hether an association has standing to invoke the court’s remedial
powers on behalf of its members depends in substantial measure on
the nature of the relief sought. If in a proper case the association seeks
a declaration, injunction, or some other form of prospective relief, it
can reasonably be supposed that the remedy, if granted, will inure to
the benefit of those members of the association actually injured.
Indeed, in all cases in which we have expressly recognized standing in
associations to represent their members, the relief sought has been of
this kind.
Id. (quoting Warth v. Seldin, 422 U.S. 490, 515 (1975)). The Court concluded that
the Washington State Apple Advertising Commission met each of the three
associational standing requirements, and although the Washington State Apple
Advertising Commission was a state agency, rather than a traditional voluntary
membership organization, it was nevertheless permitted to seek declaratory and
injunctive relief in its representational capacity on behalf of the apple growers and
dealers who formed its constituency.
Since the United States Supreme Court’s decision in Hunt, the apple has not
fallen far from the tree. Nearly a decade later, the Hunt test was applied when a
labor union sought to file suit in its representational capacity against the United
States Department of Labor. Int’l Union, United Auto., Aerospace & Agric.
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Implement Workers of Am. v. Brock, 477 U.S. 274, 290 (1986). Although it
suffered no injury, the union sought injunctive and declaratory relief on behalf of
its members, who were denied certain unemployment benefits. After carefully
examining the type of relief the union sought, the Court found that the union had
standing in its representational capacity because the lawsuit did not actually
require the individual participation of union members. Instead, the case “raise[d] a
pure question of law: whether the Secretary properly interpreted the Trade Act’s
[trade readjustment allowance] eligibility provisions.” Id. at 287. In so holding, the
Court reaffirmed the established limitation on associational standing: a labor union
cannot seek damages on behalf of its members where the alleged injury “is
peculiar to the individual member concerned, and both the fact and extent of injury
would require individualized proof.” Id. at 287 (quoting Warth, 422 U.S. at 515-
16).1
One decade after International Union, the United States Supreme Court
reiterated the general rule that associational standing is precluded when a union
“seeks damages on behalf of its members.” United Food & Commercial Workers
Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554 (1996). The Court went
on to find, however, that the third prong of the Hunt test is prudential, unlike the
1 Although some individualized relief was allegedly sought in International Union,
the Court noted that such claims were actually left to the state authorities, which
would specifically consider the unique facts of each member’s claim before any
member could receive benefits allegedly due. Int’l Union, 447 U.S. at 288.
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first two prongs of the Hunt test, which are constitutional. Thus, the Court
concluded that Congress may abrogate the requirements of the third prong of the
Hunt test by passing a statute that expressly provides unions with the authority to
recover for its members’ individualized claims.2 However, the United States
Supreme Court specifically noted that the value of the third prong of the Hunt test
is not somehow diminished by the fact that its requirements are not constitutional.
Id. at 556 (stating, among other things, that the third prong may well “guard
against the hazard of litigating a case to the damages stage only to find the plaintiff
lacking detailed records or the evidence necessary to show the harm with sufficient
specificity” and “hedge against any risk that the damages recovered by the
association will fail to find their way into the pockets of the members on whose
behalf injury is claimed”).
Notwithstanding cases where Congress expressly permitted associations to
pursue individualized claims on behalf of their members, several federal courts
since United Food have honored the general prudential requirements of the third
prong of the Hunt test. They have reaffirmed time and again that an association, (a
word broadly construed to cover entities such as trade associations, non-profit
associations, certain state agencies, and unions), cannot invoke the doctrine of
associational standing in order to seek damages on behalf of its members, whose
2We note that the instant case does not involve a similar statutory right to recover
damages on behalf of union members.
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claims depend upon individualized proof. Connecticut State Dental Ass’n v.
Anthem Health Plans, Inc., 591 F.3d 1337, 1354 (11th Cir. 2009) (“Although [the
association] seeks both declaratory and injunctive relief, which are normally
appropriate relief for associational standing, it also seeks compensatory and
punitive damages on behalf of its members, which will require individualized
proof of harm. Thus, [the association] could not establish all the requirements for
associational standing.”); Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir.
2004) (“We know of no Supreme Court or federal court of appeals ruling that an
association has standing to pursue damages claims on behalf of its members.”);
Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278,
284 (3d Cir. 2002) (“Had the [association] continued to press its claims for
damages on appeal, dismissal under Rule 12(b)(6) would be entirely
appropriate.”); BankUnited, N.A. v. Milliman, Inc., 2016 WL 1321559, at *2
(M.D. Fla. Apr. 5, 2016); Black Farmers & Agriculturists Ass’n v. Veneman, 2005
WL 711821, at *2 (D.D.C. Mar. 29, 2005) (“There can be no question that ‘any
award of monetary compensation would require the participation of individual
members in the lawsuit.’ . . . It is clear that [the association] lacks standing to sue
for damages on behalf of its members.”) (citing Air Transp. Ass’n of Am. v. Reno,
80 F.3d 477, 483 (D.C. Cir. 1996)); Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356,
1360-61 (S.D. Fla. 2004) (“While [the association] has sufficiently alleged facts to
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establish that it has standing to pursue declaratory and injunctive relief on behalf of
its members, [it] lacks standing to bring its claims for compensatory damages,
damages for mental suffering, anguish, loss of dignity, and any other intangible
injuries, punitive damages before this Court.”) (internal quotation omitted).
Accordingly, based on these abundant federal authorities, we conclude that
under federal law, generally, a union may not file suit solely in its representational
capacity to seek damages on behalf of its members if individualized proof from the
union’s members would be required in the litigation.
2. A Union’s Standing to Sue in its Representational Capacity in Florida
Next, we consider the law in Florida. Florida has not adopted the Hunt test
for associational standing. However, as demonstrated below, its “modified”
associational standing doctrine contains requirements that closely resemble its
federal counterpart, the Hunt test. Similarly, the few cases dealing with a union’s
standing to sue in its representational capacity have only permitted unions to seek
declaratory or injunctive relief, and those claims did not require individualized
participation from the unions’ members.
Florida’s “modified” associational standing doctrine applies primarily in the
context of an association’s rule challenges under section 120.56, Florida Statutes,
where the association “is acting solely as the representative of its members.” Fla.
Home Builders Ass’n v. Dep’t of Labor & Emp’t Sec., 412 So. 2d 351, 353 (Fla.
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1982); see also Palm Point Prop. Owners’ Ass’n of Charlotte Cty., Inc. v. Pisarski,
626 So. 2d 195, 197 (Fla. 1993) (stating that “our recognition of associational
standing in the chapter 120 context was not a blanket adoption of the doctrine”).
But see Hillsborough Cty. v. Fla. Rest. Ass’n, 603 So. 2d 587, 588 (Fla. 2d DCA
1992) (holding that an association has standing to seek injunctive and declaratory
relief to challenge the enactment of a county ordinance on the ground that it is
unconstitutional).3 In order to initiate a rule challenge in its representational
capacity on behalf of its members, an association must meet the requirements of
the following test enunciated in Florida Home Builders:
[A]n association must demonstrate that a substantial number of its
members, although not necessarily a majority, are “substantially
affected” by the challenged rule. Further, the subject matter of the rule
must be within the association’s general scope of interest and activity,
and the relief requested must be of the type appropriate for a
trade association to receive on behalf of its members.
Fla. Home Builders, 412 So. 2d at 353-54 (emphasis added). Although we
recognize that the modified associational standing doctrine relied on in Florida
Home Builders does not apply in all contexts, we find that it is nevertheless
instructive because its precepts mandate that an organization does not have
3 We note that the Second District Court of Appeal, when deciding Hillsborough
County, did not have the benefit of the Florida Supreme Court’s limitation on the
modified associational standing doctrine, as handed down in Palm Point. However,
in Hillsborough County, the plaintiff requested injunctive and declaratory relief,
and its holding does not obstruct our analysis. Hillsborough Cty., 603 So. 2d at
588.
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associational standing in Florida if the relief requested is not “of the type
appropriate for a trade association to receive on behalf of its members.” Id. at 354.
We specifically note that immediately after articulating the modified associational
standing test in Florida Home Builders, the Florida Supreme Court clarified that
“the only issue to be resolved in a section 120.56(1) proceeding is whether an
agency rule is valid,” and noted that a section 120.56(1) proceeding “does not
involve association or individual claims for money damages.” Id. at 354
(emphasis added). This quote suggests that if the proceeding had involved
individual claims for money damages, the Florida Supreme Court would have
found that the organization lacked associational standing to pursue damages on
behalf of its members.
The Florida Supreme Court’s ruling in Florida Home Builders highlights the
United States Supreme Court’s comment in United Food, wherein the United
States Supreme Court stated that one of the important purposes achieved by
limiting associational standing to those circumstances where individualized
participation of members in the litigation is not required is the protection such a
limitation provides “against any risk that the damages recovered by the association
will fail to find their way into the pockets of the members on whose behalf injury
is claimed.” United Food, 517 U.S. at 556. Accordingly, while not identical, it is
apparent that the Hunt test and Florida’s modified associational standing doctrine
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are closely aligned when it comes to the limitation of associational standing in
cases where damages are sought.
Outside of the context of Florida’s modified associational standing doctrine,
there are only a few cases in Florida where a union attempted to file suit in its
representational capacity. However, these cases have dealt only with injunctive or
declaratory relief. See, e.g. Fredericks v. School Bd. of Monroe Cty, 307 So. 2d
463, 465 (Fla. 1975) (holding that a labor organization has standing to file a
lawsuit on behalf of its members to compel a school board to exhaust its adopted
grievance procedure); Cannery, Citrus, Drivers, Warehousemen, & Allied Emps.
of Local 444 v. Winter Haven Hosp., 279 So. 2d 23, 27 (Fla. 1973) (holding that a
labor organization has standing, under the facts of that case, “to seek injunctive
relief against asserted employer coercion” on behalf of the employees it
represents).
In the final analysis, we find that in both federal case law and Florida case
law, the results are nearly uniform. In both contexts, if a union seeks and obtains
injunctive or declaratory relief, it will often immediately “inure to the benefit of
those members of the association actually injured,” and individual participation
will not be required of the union’s members. See Warth v. Seldin, 422 U.S. 490,
515 (1975). However, when a union seeks damages on behalf of its members,
rather than automatically inuring to the benefit of those members who suffer from
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an individualized injury, damages claims are often neither “common to the entire
membership, nor shared by all in equal degree,” and the injuries are often “peculiar
to the individual member concerned,” with “both the fact and extent of injury”
requiring individualized proof. Id. at 515-516.
Thus, while an association may have standing to seek injunctive or
declaratory relief on behalf of its members due to the automatic application of the
relief to its injured members, an association does not have standing to seek
damages on behalf of its members where individual participation from the
association’s injured members is “indispensable to proper resolution of the cause.”
Id. at 511. In short, disputes about claims for individualized damages are typically
not “properly resolved in a group context.” Hunt, 432 U.S. at 344; see Fla. Home
Builders, 412 So. 2d at 353-54.4 Accordingly, we find, consistent with both federal
law and Florida law, that it is generally inappropriate for a union to seek damages
solely in its representational capacity on behalf of its members when the
calculation of those damages will depend on individualized participation from the
union members.5
4 We decline to address situations where the association has suffered a direct injury
or received an assignment of rights from its members because neither factual
situation has occurred in the instant case.
5 Our conclusion finds further support among the fundamental principles of
standing. The concept of standing contains the “requirement that the claim be
brought by or on behalf of one who is recognized in the law as a ‘real party in
interest.’” Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1183 (Fla. 3d DCA
1985). The “real party in interest” is “the person in whom rests, by substantive law,
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3. The FOP Lacks Standing to Seek Damages on Behalf of its Members
Our application of this principle to the instant case leads to a clear result.
The trial court correctly found that the FOP cannot seek as a remedy damages for
its members, as “[t]he determination of these damages will require extensive and
individualized discovery to determine whether and to what extent each individual
member was damaged” by the unlawful promotional exam. Some of its members
were later promoted at different times, some were never promoted, and some might
not have scored high enough to receive a promotion even if the oral examination
portion of the test had not been flawed. Thus, the damages suffered by individuals
who were not promoted according to the now invalid promotional exam are by no
means uniform, and determining entitlement to such damages will be a fact-
dependent process. Accordingly, we agree with the trial court that the FOP lacks
standing to seek damages on behalf of these differently situated members, from
the claim sought to be enforced.” Id. (citation and quotation omitted); see also Fla.
R. Civ. P. 1.210; Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936,
941 (Fla. 2002) (“Under traditional jus tertii jurisprudence, ‘In the ordinary course,
a litigant must assert his or her own legal rights and interests, and cannot rest a
claim to relief on the legal rights or interests of third parties.’”) (citation omitted).
The purpose behind the real party in interest rule is “to protect a defendant from
facing a subsequent similar action brought by one not a party to the present
proceeding and to ensure that any action taken to judgment will have its proper
effect as res judicata.” Kumar, 462 So. 2d at 1178 (quoting Prevor-Mayorsohn
Caribbean, Inc. v. Puerto Rico Marine Mgmt., Inc., 620 F.2d 1, 4 (1st Cir.1980)).
Our conclusion that a union does not have standing to seek damages on behalf of
its members where their individualized participation is required coheres with these
general standing principles.
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whom individual participation in the damages portion of this litigation will be
required.
CONCLUSION
In summary, we hold that a union generally lacks standing to seek damages
solely in its representational capacity on behalf of its members where their
individualized participation in the litigation is required. Accordingly, because the
FOP’s members in this case would be required to participate in the litigation and
prove the existence and extent of their damages stemming from the unlawful
promotional exam, we find that, on these facts, the FOP lacks standing to pursue
damages on behalf of its affected members. We also find the FOP’s remaining
arguments to be without merit, and we therefore decline to address them further.
Affirmed.
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Fraternal Order of Police, Miami Lodge No. 20 v. City of Miami
Combined Opinion