Amicus Curiae Brief — Food and Commercial Workers v. Brown Group, Inc.

Supreme Court, Us

FILED

DEC 5S 1995

In the Supreme Court of the United States

OCTOBER TERM, 1995

UNITED Foop AND COMMERCIAL WORKERS UNION

LOCAL 751, PETITIONER

v.

BROWN GROUP, INC., D/B/A BROWN SHOE COMPANY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

Drew S. Days, III

THOMAS S. WILLIAMSON, JR. Solicitor General

Solicitor of Labor EDWIN S. KNEEDLER

ALLEN H. FELDMAN Deputy Solicitor General

Associate Solicitor ALAN JENKINS

NATHANIEL I. SPILLER Assistant to the Solicitor

Counsel for Appellate General

Litigation Department of Justice

MARK S. FLYNN Washington, D.C. 20530

Senior Appellate Attorney (202) 514-2217

Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

The Worker Adjustment and Retraining Notification

Act, 29 U.S.C. 2101 et seqg., requires covered employers to

give an employee union advance notice of a plant closing

or mass layoff, and expressly authorizes suits in federal

court by unions to obtain monetary relief on behalf of

their members for violations of the Act. The question

presented is whether a union has standing under Article

III of the United States Constitution to bring such a suit.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ................ccccccccccseeeeerereeceee 1

LTD 2

a x

Argument:

A union representing employees affected by a

violation of the WARN Act has standing to sue

the employer to recover back pay and benefits

on behalf of the employees........................ccceeeeeees 10

A. Petitioner has direct standing in its own

right to sue respondent under the WARN

ES EEE 1]

B. Petitioner's WARN Act claim is consistent

with traditional forms of representational

iE

litigation

C. Petitioner has associational standing to sue

respondent under the WARN Act ................

Conclusion ............. EE Ee

eS

TABLE OF AUTHORITIES

Cases:

Air Line Pilots vy. O'Neill, 494 U.S. 65 (1991) .......... 23

Allen v. Wright, 468 U.S. 737 (1984) ........... 6, 11, 17, 22

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680

ELAS ATED 27

Baker v. Carr, 369 U.S. 186 (1962) 0000000000000... 26

Breininger v. Sheet Metal Workers, 493 U.S. 67

SUIIIIIED eneiibaniinpdtenansentenenessessecnesseccesssseocssscccsecccoceseccoeses 23

Director, Office of Workers’ Compensation v.

Newport News Shipbuilding & Dry Dock Co.,

a 28

Duke Power Co. v. Carolina Environmental Study

Group, 438 U.S. 59 (1978) .00..........cccccccccccescceeeeeeeeeee 26

First National Maintenance Corp. v. NLRB, 452

Sinn TITTY ceitidtecntestesssnsceenensececsesnsnsesscoscssee 16, 17, 25

Flast v. Cohen, 392 U.S. 83 (1968) .......................02. 22

(III)

IV

Cases—Continued: Page

Gladstone, Realtors v. Village of Bellwood,

a eee 11, 12, 14, 26

General Telephone Co. v. Equal Employment

Opportunity Commission, 446 U.S. 318 (1980) ..... 27, 28

Havens Realty Corp. v. Coleman, 455 U.S. 363

AOU cessnitisissiansindnmesaaieaiadianleameidiabatemmadd 12, 13, 17

Holden v. Hardy, 169 U.S. 366 (1898) .................. 25

Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333 (1977) .........ccccccccceeeeeeeees 5, 24

International Union v. Brock, 477 U.S. 274

SARTRE ESS SES 14, 16, 24, 26, 29

International Union vy. Hoosier Cardinal Corp.,

SEB UB, GBB CIBGID nccceccccccocnsscssesccscsccsscecs 7, 20, 21, 23, 29

Laborers Health & Welfare Trust Fund v.

Advanced Lightweight Concrete Co., 484 US.

), 19

Linda R.S. v. Richard D., 410 U.S. 614 (1973)... 6, 11-12

Lujan v. Defenders of Wildlife, 504 U.S. 555

CETTE .....ccsssnnesstateemeamieamanaaialas 10, 14, 17, 18, 28

Muskrat v. United States, 219 U.S. 346 (191)) ..... 18

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) ..... 3

North Star Steel Co. v. Thomas, 115 8. Ct. 1927

CUTIE, ..scciesssniitiaianntiaeimaieniiaiiansiidecleatas timed 2, 12, 19

Northeastern Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, 113 5.

Cd, BIE CBBTD ccececccceccccccscssecccscescsssncossesssserscsesssnsees 6, 12

Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

a 28

Rostker v. Goldberg, 453 U.S. 57 (1981) .................0 11

Sierra Club v. Morton, 405 U.S. 727 (1972) ........... 12, 18

Simon v. Eastern Kentucky Welfare Rights Organ-

ization, 426 U.S. 26 (1976) .........ccccccceeeeeeeeeeeeeeneeeeees 24

Singleton v. Wulff, 428 U.S. 106 (1976) ..............00. 25

Trafficante v. Metropolitan Life Ins. Co., 409 US.

BIB CITED ccccenccccveccescccsccccvescescccecencsssesnscsnsacssssasseosses 12, 18

Cases—Continued: Page

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464

SUITE ntnistiahtitiiidetnniideiieatieairirpapentaiabieliinecescsenimmasntns 22, 26

Walters v. National Ass'n of Radiation Survivors,

aR ee ee ED ctetenerteptcccccmctnenersnninnectscmpen 11

Warth v. Seldin, 422 U.S. 490 (1975)...... 4, 6, 11, 18, 24, 26

Whitmore v. Arkansas, 495 U.S. 149 (1990) .............. 22

Constitution, statutes, regulations and rule:

Se I, Gs TEE cuccndenienteniennstinensmmnerenecseces passim

Black Lung Benefits Act, 30 U.S.C. 932(k) ................ 27-28

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

GB GBM, cccceysccsseccesnssccsccagssccascccesesssconsascsscosaneceseoescoeses 27

RT 27

Fair Housing Act of 1968, 42 U.S.C. 3601 et seq.:

§ 804(d), 42 U.S.C. BGO) 20........ccccccccceeeeeeeeeeseees 13

§ 812(a), 42 U.S.C. 3612(a) (1982) .............ccccceeee 12-13

Fair Labor Standards Act of 1938, 29 U.S.C. 201

GB GUND cennsecsnnsnnssssssecssssessscsssessesesecescscsssccesnsccnsoessesecs 26

Lk 28

Job Training Partnership Act:

ep EE UL, ccnesnsengeneunmnnenssasnenmmscneesssante 15

EOI, sccinrnstnscnennenneninmmmennneren 2

Labor Management Relations Act, 29 U.S.C. 141

et seq.:

ae arrears nacenreraemameeiin 7

to § Df) Se 20

Longshore and Harbor Workers’ Compensatior ‘.°.

a ey PE OD cerrmennepesnsnsesestansenennssscnnnscnesensnee 28

fk Aen 28

National Labor Relations Act, 29 U.S.C. 151 et seg. ... 3, 22

fF SO 3

OS ET 3, 16

Omnibus Trade and Competitiveness Act of 1988,

Pub. L. No. 100-418, 102 Stat. 1107 ......................00. 15

Railway Labor Act, 45 U.S.C. 152 .................ccccceceeeees 3

VI

Statutes, regulations and rule—Continued: Page

Worker Adjustment and Retraining Notification Act,

SD es BE OED, ccsescrscnssessnensnentiginnntnifeanatinemnes l

SD Ws ENED concnsnceinsesinznnenibiensentassvelvcnaeee 3, 22

ep ts HE ieenecneninnecessistnstansinstrarmenseneabidnseasennts 12

BP Fee ED crnssacecsccstcinsnciniiuceanserssiitinnstniies 2

BP Ce SEED cceccsenemmnsmniutninntsremeneniinaties 3, 25

I 15, 16

SP Se SIE cccncsesudutiensesenesnnnntebenionensmectedes 4

i ee 1, 3, 19

EO 3

CE 3

ee 1,4

BD Ws ED ctcncscsssessesssscnscesenenenees 3, 4, 7, 11

ee CR ED cnnnnnidearsriptunipnsniinasetasishiimesaiaids 1,4

ES een 1, 3,4

i ES IEEE cneccasnninadiionsinesnssstneingnntianseiesiens 2

20 C.F.R.:

ee = 16

eID ccucstcntstitsnnenesisiitenciniiiegmentnasitiiimmednienesanes 2

SP CEEEEEED cnscreccnrsuniscsenerereneemmmmminmensidinininiinale 2, 16

8 a eee eee 27

Miscellaneous:

134 Cong. Rec. (1988):

Oh, GEE? cchanennsiinidsnnensvetntmnennsinnaninnenentpueninnnaitiasens 14

1, Te cccesssussnssessastuanannscenssnsneneseninmemsisanmenes 15, 19

BD, GED cnstsesmnacnsnspantenranemnscnaninieeamestiovnnedinitnians 15, 16

Di EEG tbiitecnsenctutscteninensesensnntniageneinediiimmepminineensens 16

2, TEP GEEEED csascrmvensnsstestesnsinintoniatiimpngiamemnanes 16

a TEE? cctttcisenssnsensemiscnnteentiincsiminentinnninnainimeniin 20

De, GETEED cisevencarensscestansecssensenenepapaiatiamanienmsnsennesens 15, 20

H.R. 3, 100th Cong., Ist Sess. (1987) ...............cccc000 14, 15

H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess.

GREEN coccsssnscamnmsensegennansenssqenignsnimepemasteinenrtensesumpennes 14

Report of the Secretary of Labor's Task Force on

Economic Adjustment and Worker Dislocation in

a Competitive Society (Dec. 1986) ...............c..0eeeeeeees 16

2 Restatement (Second) of Contracts (1981) ........... 21

S. Rep. No. 62, 100th Cong., Ist Sess. (1987) ........... 15, 16

Vil

Miscellaneous—Continued:

Barbara L. Schlei & Paul Grossman, Employment

Discrimination Law (2d ed. 1983) ........ccccccccccccceceees

13 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure (1984) ................

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 15-340

UNITED FooD AND COMMERCIAL WORKERS UNION

LOCAL 751, PETITIONER

v.

BROWN GROUP, INC. D/B/A BROWN SHOE COMPANY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The Worker Adjustment and Retraining Notification

(WARN) Act, 29 U.S.C. 2101 et seg., requires covered

employers to give employee unions 60 days’ notice of a

plant closing or mass layoff. The Act expressly

authorizes federal suits by unions who represent

aggrieved employees, and provides that back pay and

benefits to such employees, the litigant’s costs and

attorney’s fees, and (under certain circumstances) a civil

penalty, “shall be the exclusive remedies for any

violation.” 29 U.S.C. 2104(b), 2104(a)(1), (3) and (6).

This case presents the question whether a union seeking

(1)

2

to utilize the WARN Act’s enforcement scheme in

federal court has standing under Article III of the

Constitution.

By holding that a union expressly authorized to sue

under the WARN Act lacked standing to do so, the court

of appeals effectively invalidated an important feature of

the Act. The United States has an interest in the proper

application of constitutional standing principles to the

federal cause of action created by Congress through the

WARN Act. In addition, the WARN Act grants the

Secretary of Labor authority to “prescribe such regula-

tions as may be necessary to carry out [the Act],” 29

U.S.C. 2107(a), and the Secretary has promulgated

regulations that “establish basic definitions and rules for

giving notice” under the Act. 20 C.F.R. 639.1(b). The

WARN Act’s notice provisions, moreover, are an impor-

tant part of dislocated worker assistance programs for

which the Department of Labor provides funding, stan-

dards, and assistance to the States. See Job Training

Partnership Act, Tit. III, 29 U.S.C. 1651 e@ seq.; 20

C.F.R. 639.1(f). The Secretary therefore has a sub

stantia] interest in furthering the policies and purposes of

the Act. The United States filed an amicus curiae brief

in North Star Steel Co. v. Thomas, 115 S. Ct. 1927 (1995),

which concerned the proper statute of limitations for

suits filed under the WARN Act.

STATEMENT

1. The WARN Act prohibits covered employers, with

exceptions not relevant here, from “order{ing) a plant

closing or mass layoff until the end of a 60-day period

after the employer serves written notice.” 29 U.S.C.

2102(a). See generally North Star Steel Co. v. Thomas,

115 S. Ct. 1927, 1929 (1995). The Act requires that the

employer serve notice “to each representative of the

3

affected employees * * * or, if there is no such

representative at that time, to each affected employee.”

29 U.S.C. 2102(a)(1). The Act defines “representative”

as “an exclusive representative of employees within the

meaning of section [9)(a) or [8)(f) of” the National Labor

Relations Act (NLRA), 29 U.S.C. 151 e seg. See 29

U.S.C. 2101(a)(4).'

An employer who violates the Act’s notice require-

ment “shall be liable to each aggrieved employee who

suffers an employment loss as a result of such closing or

layoff for * * * backpay for each day of violation,” 29

U.S.C. 2104(a)(1)(A), as well as certain employment

benefits, 29 U.S.C. 2104(a)(1)(B), for “the period of viola-

tion, up toa maximum of 60 days.” 29 U.S.C. 2104(a)(1).

The Act authorizes suits in district court by “{a] person

seeking to enforce such liability, including a representa-

tive of employees,” and further provides that the person

“may sue either for such person or for other persons

similarly situated, or both.” 29 U.S.C. 2104(a)(5). Sec-

tion 2104(b) of the Act provides that “{tJhe remedies pro-

' Section %a) of the NLRA provides in pertinent part:

Representatives designated or selected for the purposes of

collective bargaining by the majority of the employees in a unit

appropriate for such purposes, shall be the exclusive

representatives of all the employees in such unit for the purposes

of collective bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employment.

29 U.S.C. 15%a). Pursuant to Section %a), unions may be selected

through an election conducted by the National Labor Relations Board,

by obtaining authorization cards signed by a majority of the employees

within the unit, or by other methods that present “convincing evidence

of majority support.” NLRB v. Gissel Packing Co., 395 U.S. 575, 596

(1969). The term “representative” under the WARN Act includes

exclusive representatives under the Railway Labor Act, 45 U.S.C. 152.

See 29 U.S.C. 2101(a)4).

vided for in this section shall be the exclusive remedies

for any violation of this chapter.” 29 U.S.C. 2104(b).*

2. Petitioner is the exclusive representative of em-

ployees at a shoe manufacturing plant operated by re-

spondent. Pet. App. 13a-l14a; Compl. 4 5.° Petitioner

brought suit pursuant to 2104(a)(5) of the Act, alleging

that respondent failed to provide proper notice to it of

the closing of respondent’s Dixon, Missouri plant‘ and the

consequent layoff of 277 employees represented by peti-

tioner.° Compl. 44 6-7. Pursuant to Section 2104(a), peti-

tioner sought back pay and fringe benefits for each

aggrieved employee for each day of employment loss that

the employee suffered before the expiration of the sixty-

day notice period. Pet. App. 14a; Compl. 4 10a. Peti-

tioner also sought to recover its costs and attorney’s fees.

Pet. App. 14a; Compl. 4 10b.

2 In addition to back pay and benefits, prevailing plaintiffs may

recover costs and attorney’s fees. 29 U.S.C. 2104(aX6). An employer

who fails to give the requisite WARN Act notice to an affected unit of

local government “shall be subject to a civil penalty of not more than

$500 for each day of such violation.” 29 U.S.C. 2104(aX3). A local

government aggrieved under that provision may bring an action in

district court to recover the civil penalty. 29 U.S.C. 2104(a\5).

3% The district court’s decision was rendered on respondent's motion

to dismiss. The court was therefore required to accept all well-pleaded

allegations in the complaint as true. See Warth v. Seldin, 422 U.S. 490,

501 (1975). This statement of the facts reflects that procedural posture.

* Petitioner alleged that a January 17, 1992 letter stating that

respondent's plant would be closed beginning on March 20, 1992, was

improperly mailed to an employee of the international union, and that,

even if the notice was legally adequate, employees represented by

petitioner were discharged before the sixty-day statutory period had

elapsed. Pet. App. 2a; Compl. ¢4 7-9.

® Petitioner attached to its complaint, inter alia, a copy of its

collective bargaining agreement with respondent and a list naming

each of the 277 affected employees. Compl. App. A, ©.

5

3. The district court dismissed the action on the

ground that petitioner lacked standing to sue for back

pay and benefits for the affected employees. The court

acknowledged that the WARN Act expressly authorizes

such suits, but held that petitioner had failed to demon-

strate the minimum requirements for standing under

Article III of the Constitution. Pet. App. 14a.

Stating that petitioner “has not alleged any injury to

itself” (Pet. App. 14a), the court proceeded to consider

the standing question solely in terms of whether the

union could establish “associational” standing under the

three-part test articulated by this Court in Hunt v.

Washington State Apple Advertising Commission, 432

U.S. 333, 343 (1977). Under the Hunt test, the district

court explained, an organization has standing to raise

claims on behalf of its members if: (1) the organization’s

members would have standing to sue in their own right;

(2) the interests the organization seeks to protect are ger-

mane to the organization’s purpose; and (3) neither the

claim asserted nor the relief requested requires the

participation of individual members in the lawsuit. Pet.

App. l4a-l5a (citing Hunt, 432 U.S. at 343). The court

held that petitioner could not meet the third prong of the

Hunt test because it sought only monetary relief on be-

half of its members, and such claims would necessarily

require the participation of individual members in the

suit. Pet. App. 15a.°

6 The district court subsequently denied a motion to alter or amend

the judgment, in which petitioner asked the court to accord it standing

based on “the special nature of the relationship of a labor organization

* * * and its members” or, alternatively, to grant petitioner 30 days

in which to file an amended complaint seeking declaratory relief and

adding affected individual employees as parties. Pet. App. 17a. The

court declined to revisit its standing ruling, and denied petitioner's

request for leave to amend its complaint. /d. at 18a-19a.

6

4. The court of appeals affirmed. Pet. App. 1la-12a.

The court acknowledged that petitioner is an employee

representative statutorily entitled to bring suit under the

WARN Act. Jd. at 4a. The court observed, however,

that while “{a] federal statute may give a putative

plaintiff the right to bring suit, thus relieving him of the

judicially-created, prudential standing requirements,

* * * the party seeking to have his claim heard never-

theless must comply with the Article III constitutional

case or controversy requirements.” /d. at 4a-5a (cita-

tions omitted).

The court first considered the union’s direct standing

to seek monetary relief under the WARN Act. In doing

so, it analyzed whether petitioner had “alleg{ed] personal

injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the

requested relief.” Pet. App. 5a (quoting Allen v. Wright,

468 U.S. 737, 751 (1984)). The court concluded that peti-

tioner had satisfied the first two requirements. With re-

gard to the “injury” requirement, the court stated that

the “gravamen” of petitioner’s claim was the injury suf-

fered by its members. /d. at 5a. Nonetheless, the court

held that, construing the complaint liberally, it would

“assume” that the complaint’s allegation of failure to

receive notice under the WARN Act alleged an injury to

petitioner itself. Jd. at 6a. The court reasoned, more-

over, that because the “actual or threatened injury re-

quired by Art. III may exist solely by virtue of statutes

creating legal rights,” ibid. (quoting Warth v. Seldin, 422

U.S. 490, 500 (1975), quoting Linda R.S. v. Richard D.,

410 U.S. 614, 617 n.3 (1973)), petitioner “[aJjrguably” had

“alleged ‘an invasion of a legally protected interest’ that

is concrete and actual.” Jd. at 6a (quoting Northeastern

Fla. Chapter of Associated Gen. Contractors of Am. v.

City of Jacksonville, 113 S. Ct. 2297, 2302 (1993)). The

court concluded that the second requirement—that the

injury be fairly traceable to the alleged conduct of the

defendant—was “not an issue in thfe] case.” Pet. App.

6a.

The court held, however, that the relief requested by

petitioner would not redress its asserted injury. Pet.

App. 6a-7a. Specifically, the court concluded that “[aJn

award of monetary damages to any aggrieved employees

would do nothing to remedy the alleged failure of notice

to [petitioner].” Jd. at 7a. The court further found that

petitioner’s request for “‘such other and further relief

on its behalf and that of the aggrieved employees as may

be proper,’” was “boiler-plate remedies language” that

failed to “comport{] with the constitutional requirements

of redressability.” bid. (quoting Compl. 4 10c).

The court of appeals distinguished /nternational Un-

ion v. Hoosier Cardinal Corp., 383 U.S. 696 (1966), in

which this Court found that a union had standing to

recover monetary damages for union members in a suit

under Section 301 of the Labor Management Relations

Act, 29 U.S.C. 185. The court reasoned that “[t]he union

had individual, direct standing [in Hoosier Cardinal

Corp.| because its cause of action arose from a contract to

which it was a party,” while here, “{iJn contrast, the

claims [petitioner] makes * * * are based on the WARN

Act, rather than on a collective bargaining agreement.”

Pet. App. 7a n.5.

In addition, the court of appeals agreed with the dis-

trict court that petitioner had not demonstrated asso-

ciational standing on behalf of its members because it did

not meet the third element of the Hunt test. Pet. App.

9a.’ The court noted that petitioner did not seek de-

7 The court determined that the other two elements of the Hunt

test were met. Section 2104(a)(5) of the WARN Act allows suits by

8

claratory or injunctive relief or damages for the union’s

own monetary loss, and that it did not have an assign-

ment from its members of their monetary claims. Jd. at

Ya-10a. The court also observed that, in determining the

appropriate back pay and benefits relief for any WARN

Act violation, the district court would have to analyze

each individual employee’s circumstances and determine

his or her date of termination, piecework pay rate, and

medical expenses, in order to calculate damages. Jd. at

10a. Because it believed that the relief petitioner sought

would require the participation of each aggrieved union

member, the court held that petitioner lacked associa-

tional standing. Jd. at 1la.*

SUMMARY OF ARGUMENT

A. In order to establish direct standing to sue in

federal court, a party must allege an injury to itself that

is fairly traceable to the defendant’s challenged conduct

and is likely to be redressed by the relief sought.

Petitioner’s claim satisfies that standard.

The WARN Act imposes a legal duty on covered em-

ployers to notify unions of plant closings, and expressly

authorizes suits by unions for breaches of that duty. The

union members who are aggrieved employees, and those employees

would be able to satisfy the Article III requirements of injury,

causation and redressability. Thus, the court concluded, petitioner's

members would have standing to sue in their own right. Pet. App. 8a.

The court also found that the interest in obtaining WARN Act notice of

a plant closure, and of redressing the loss of pay and benefits, suffered

by the employees it represents, is “germane” to petitioner’s purpose as

the exclusive bargaining agent with respect to the employees’ terms

and conditions of employment with respondent. Pet. App. 9a.

* The court of appeals also held that the district court acted within

its discretion in denying petitioner leave to amend its complaint. Pet.

App. 12a; see note 6, supra. Petitioner did not seek review of that

question in its petition for certiorari.

Act thereby affords unions a legal right, the invasion of

which satisfies the requirement of personal injury. In

enacting the WARN Act, moreover, Congress recognized

the tangible harm to unions that unannounced plant

closings cause, as well as the important role that properly

notified unions play in worker retraining and readjust-

ment efforts. An employer’s failure to provide notice as

required by the Act also impairs a union’s role as ex-

clusive bargaining representative under the federal labor

laws, and damages the union’s relationship with the em-

ployees it represents.

Petitioner’s allegation that respondent failed to pro-

vide adequate notice of the closing of its Dixon plant

clearly satisfies the requirement that the injury asserted

be fairly traceable to the defendant’s conduct.

The redressability requirement for standing is also

satisfied. Just as Congress may exercise its legislative

power to confer statutory rights, the invasion of which

creates an injury within the meaning of Article III, it has

authority to prescribe the remedies that will, in its

judgment, appropriately redress the infringement of

those rights. Here, Congress reasonably concluded that

the injury to a union’s role in the readjustment and

collective bargaining processes that is caused by a WARN

Act violation will be ameliorated by a remedy that im-

proves the fiscal security of its members.

B. Another factor relevant to the standing inquiry is

the extent to which a dispute is one traditionally thought

to be capable of judicial resolution. Because unions have a

pre-existing duty of fair representation toward members

of their bargaining unit, permitting them to litigate on

behalf of aggrieved employees is consistent with tradi-

tional forms of representational litigation, such as suits by

trustees, guardians, or “next friends.”

10

C. Petitioner’s suit also satisfies the constitutional re-

quirements for associational standing. Petitioner’s mem-

bers would have standing to sue in their own right, and

the interests petitioner seeks to protect are germane to

its statutory and organizational purposes. While the

court of appeals found petitioner to lack associational

standing because the relief it requested would require

the participation of individual employees, we believe that

the “individual participation” rule is a prudential con-

sideration that may be displaced by Congress. The rule

appears to derive from concerns about judicial man-

agement and litigation by third parties that this Court

has held to be prudential rather than constitutional in

nature. Moreover, the courts routinely entertain repre-

sentative suits for damages to aggrieved individuals

where Congress has authorized such litigation.

ARGUMENT

A UNION REPRESENTING EMPLOYEES AFFECTED BY

A VIOLATION OF THE WARN ACT HAS STANDING TO

SUE THE EMPLOYER TO RECOVER BACK PAY AND

BENEFITS ON BEHALF OF THE EMPLOYEES

Article III of the Constitution limits the jurisdiction of

the federal courts to “Cases” or “Controversies.” This

Court has defined that limitation through a number of

principles, including the requirement of standing. The

standing doctrine includes both constitutional and “pru-

dential” elements. The constitutional elements are “an

essential and unchanging part of the case-or-controversy

requirement of Article III.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). The prudential con-

siderations, by contrast, are aspects of “judicial self-

government,” ibid., by which “the judiciary seeks to

avoid deciding questions of broad social import where no

individual rights would be vindicated and to limit access

>

11

to the federal courts to those litigants best suited to assert

a particular claim.” Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 99-100 (1979). Accordingly, where

the requirements of Article III are satisfied, Congress

may, by legislation, permit litigation by parties “who

would otherwise be barred by prudential standing rules.”

Warth v. Seldin, 422 U.S. 490, 501 (1975).

In this case, there can be no question that Congress has

expressly authorized a union in petitioner’s position to

sue. See 29 U.S.C. 2104(a)(5). By holding that petitioner

nevertheless lacks standing to do so, the court of appeals

effectively held unconstitutional an important feature of

the WARN Act. “Judging the constitutionality of an Act

of Congress is properly considered ‘the gravest and most

delicate duty that this Court is called upon to perform.’”

Walters v. National Ass'n of Radiation Survivors, 473

U.S. 305, 319 (1985) (quoting Rostker v. Goldberg, 453

U.S. 57, 64 (1981)). Here, the court of appeals failed to

give the deference owed to the judgment of Congress

that a union is a proper party to vindicate the WARN

Act rights of employees it represents.

A. Petitioner Has Standing In Its Own Right To Sue

Respondent Under The WARN Act

In order to establish direct standing to sue in federal

court, a party must allege (1) “personal injury” that is

(2) “fairly traceable to the defendant’s allegedly unlawful

conduct” and (3) is “likely to be redressed by the re-

quested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).

Petitioner has satisfied each of these requirements.

1. It is well established that “(tJhe actual or threatened

_» injury required by Art. III may exist solely by virtue of

‘statutes creating legal rights, the invasion of which

creates standing.” Warth v. Seldin, 422 U.S. at 500

(quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3

12

(1973)); see also Havens Realty Corp. v. Coleman, 455

U.S. 363, 373 (1982); Trafficante v. Metropolitan Life

Ins. Co., 409 U.S. 205, 208-212 (1972). “[NJoneconomic

injuries,” moreover, “may suffice to provide standing.”

Gladstone, Realtors, 441 U.S. at 112; see also Sierra Club

v. Morton, 405 U.S. 727, 734-735 (1972). In this case,

petitioner alleged in its complaint that respondent failed,

in violation of Section 2102 of the WARN Act, to notify

the union that it planned to close its Dixon plant and

discharge 277 employees represented by petitioner. Pet.

App. 6a; Compl. 4 7. That contention clearly alleged the

“invasion of a legally protected interest” possessed by

petitioner, Northeastern Fla. Chapter of Associated Gen.

Contractors v. City of Jacksonville, 113 S. Ct. 2297, 2302

(1993), and satisfied the constitutional requirement of

personal injury.

Section 2102 imposes a legal duty on covered em-

ployers to provide a union 60 days’ notice of a plant

closing or mass layoff. See North Star Steel Co. v.

Thomas, 115 S. Ct. 1927, 1929 (1995). In so doing, the

provision confers on unions a corresponding right to

receive such notice at the time, and in the manner, re-

quired by the Act. The statutory right to notice created

by the WARN Act, moreover, falls comfortably within

the range of legal interests that this Court has recognized

as sufficient to confer standing. In Havens Realty, for

example, the Court considered the standing of various

individuals and organizations to sue under Section 812(a)

13

of the Fair Housing Act of 1968, 42 U.S.C. 3612(a).° The

Court concluded that, by making it unlawful under

Section 804(d) for a party covered by the Fair Housing

Act “[t]o represent [falsely] to any person because of race,

color, religion, sex, handicap, familial status, or national

origin that any dwelling is not available for inspection,

sale, or rental,” 42 U.S.C. 3604(d), and by making that

prohibition enforceable through Section 812(a), “Congress

has * * * conferred on all ‘persons’ a legal right to

truthful information about available housing.” Havens

Realty, 455 U.S. at 373. Accordingly, the Court found

that a “tester” plaintiff in Havens Realty who received

false housing information from a real estate agent had

standing to sue, notwithstanding the fact that “the tester

may have approached the real estate agent fully

expecting that he would receive false information, and

without any intention of buying or renting a home.” /d.

at 374."

The right to notice established by the WARN Act

closely parallels the right to truthful housing informa-

tion at issue in Havens Realty. There is no question,

moreover, that petitioner “has suffered injury in pre-

® Section 812(a) of the 1968 Act provides in pertinent part:

The rights granted by sections 3603, 3604, and 3606 of this title

may be enforced by civil actions in appropriate United States

district courts without regard to the amount in controversy and

in appropriate State or local courts of general jurisdiction.

42 U.S.C. 3612(a) (1982).

” In contrast, the Court held that a second tester, who did not

receive false information, “hald) alleged no injury to his statutory

right to accurate information concerning the availability of housing,”

Havens Realty, 455 U.S. at 375, and therefore lacked standing under

the Fair Housing Act.

14

cisely the form the statute was intended to guard

against.” 455 U.S. at 373.

Nor is the injury petitioner asserts merely a

“generalized grievance * * * common to all members of

the public.” Lujan v. Defenders of Wildlife, 504 U.S. at

575 (internal quotation marks omitted)."” As Congress

recognized when it passed the WARN Act, unions are

directly affected by mass layoffs of their members, and

they have an integral role to play in the coordination

of retraining, financial assistance, and other services,

before and after the displacement occurs. Cf. Jnterna-

tional Union v. Brock, 477 U.S. 274, 286 (1986) (by giving

unions a role in the administration of the trade

readjustment allowance benefit program, Congress “({rJec-

ognizied] the interest of organized labor in obtaining

benefits for its workers”).

Congress viewed prior notice of plant closings as essen-

tial to successful worker readjustment programs.” See,

" This aspect of the holding in Lujan was limited to “suits against

the Government.” 504 U.S. at 578. Accordingly, it remains an open

question what limits Article III imposes on Congress's ability to confer

standing on members of the public to challenge in court the conduct of

private parties. In any event, for the reasons we discuss herein,

Congress’s conferral of standing on the exclusive representative of

employees aggrieved by mass layoffs does not approach the outer

limits of congressional authority.

® Plant-closing provisions nearly identical to the WARN Act were

initially passed by Congress in an omnibus trade bill, H.R. 3, 100th

Cong., Ist Sess. (1987), that contained a worker adjustment program.

The plant-closing notification provisions of that legislation were

viewed as complementary to the worker adjustment program. See

H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 1045 (1988) (“the

Conferees reaffirm that advance notice is an essential component of a

successful worker readjustment program and * * * [that] the two

Subtitles [pertaining to worker adjustment and plant closings) are

closely related”). The trade bill was vetoed by President Reagan,

15

e.g., 1384 Cong. Rec. 15,928 (Sen. Metzenbaum) (“(t)he

important element in our bill is to see to it that people

have the time to seek readjustment and retraining while

they are working”); id. at 15,518 (1988) (Sen. Chafee)

(WARN Act’s notice provision was designed to permit

“worker[s} and the community to prepare for the crisis,

to respond to the need for job placement, retraining,

education, financial assistance—all the demands that arise

in these situations”). Accordingly, Congress sought to

facilitate the beneficial role that unions play in the

readjustment process when they receive adequate notice.

See, e.g., S. Rep. No. 62, 100th Cong., Ist Sess. 1045 (1987)

(“A strong union role also generates trust and confidence

in the workforce about the overall utility of the

program.”); 134 Cong. Rec. 15,514 (1988) (Sen. Byrd)

(“every sector of the community—management, labor,

local government, and other local businesses—must be

given time to adjust to an unwanted and traumatic

business situation”) (emphasis added);” ibid. (Sen. Byrd)

largely because of the plant-closing provisions. 134 Cong. Rec.

12,130 (1988) (veto message). The trade bill was subsequently enacted

without the plant-closing provisions. See Pub. L. No. 100-418, 102 Stat.

1107. Congress passed the WARN Act, which contains provisions

nearly identical to the plant-closing provisions of H.R. 3, and the

President permitted the law to take effect without his signature.

There is thus a clear connection between plant notification provisions

and worker adjustment programs. See 29 U.S.C. 2102(a)(2) (requiring

employers to give notice of plant closing or mass layoff to state

dislocated worker unit designated or created under the Job Training

Partnership Act, 29 U.S.C. 1501 et seq.).

3 In addition to requiring notice to employee representatives and

employees, the WARN Act requires employers to give notice of plant

closings and mass layoffs to “the chief elected official of the unit of

local government within which [the] closing or layoff is to occur,” and

to “the State dislocated worker unit (designated or created under title

Ill of the Job Training Partnership Act ((JTPA)] (29 U.S.C. 1651

16

(“[The WARN Act] makes sense because it breaks new

ground in management-labor relations. * * *

Management and labor must forge a new relationship if

America is to compete against our foreign com-

petition.”); see also Report of the Secretary of Labor's

Task Force on Economic Adjustment and Worker Dis-

location in a Competitive Society 4 (Dec. 1986) (the Brock

Report) (“the most effective and successful dislocated

worker adjustment programs are those where the

employer and workers (and their unions if they are

present) are directly involved in the design and

delivery”) (emphasis added); see also S. Rep. No. 62,

supra, at 1045 (quoting foregoing language from Brock

Report)."

In addition, a central purpose of the employee-union

relationship that is recognized and facilitated by the

federal labor laws is the union’s participation in collective

bargaining negotiations on behalf of employees “in

respect to rates of pay, wages, hours of employment, or

other conditions of employment.” 29 U.S.C. 159%a)

(National Labor Relations Act); see Brock, 477 U.S. at

286. While an employer has no duty to bargain with its

employees’ union over its decision to terminate

operations at a given facility, or to initiate a partial shut-

down, First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1981), it is required to bargain in good faith

et seq.]).” 29 U.S.C. 2102(aX2). Employer notice to state dislocated

worker units is a first step in the activation of employment and

training programs for dislocated workers under the JTPA. 20 C.F.R.

639.1(a) and (f ).

4 Supporters of the WARN Act repeatedly cited the Brock Report

as a source of empirical evidence of the beneficial effects of notice of

plant closings. See, e.g., 134 Cong. Rec. 15,518 (1988) (Sen. Gore); id. at

15,779 (Sen. Simon); id. at 15,782-15,784 (Sen. Riegle); S. Rep. No. 62,

supra, at 9.

17

regarding the effects of such a decision. Jd. at 681.

Where a sudden, unannounced plant closing or layoff

results in the termination of the employees that a union

represents, that role is frustrated. See Havens Realty,

455 U.S. at 379 & nn.20, 21 (frustration of organizational

function and activities sufficient to confer standing

where statutory right is infringed).

2. As the court of appeals correctly observed (Pet.

App. 6a), petitioner’s claim clearly satisfies the require-

ment that the injury asserted be “fairly traceable to the

defendant’s allegedly unlawful conduct.” Allen, 468 U.S.

at 751. Respondent’s failure to notify petitioner of the

impending plant closing at the time, and in the manner,

specified by the WARN Act resulted in a denial of peti-

tioner’s right to notice under the statute.

3. The redressability prerequisite for standing is also

met in this case. Just as Congress may exercise its

legislative power to confer statutory rights, the invasion

of which creates an injury within the meaning of the

Article III inquiry, it has authority to fashion remedies

that will, in its judgment, appropriately redress the

infringement of those rights. Indeed, where, as here, the

legal interest asserted did not exist prior to Congress’s

intervention, the right and remedy in question are

inextricably intertwined, and it is necessarily within Con-

gress’s power to create a remedial scheme that it deems

likely to redress a statutorily based harm.” Where Con-

gress expressly determines that a particular form of

relief will suitably compensate for or rectify the infringe-

ment of a right it has created, the entertainment of suits

% Cf. Lujan v. Defenders of Wildlife, 504 U.S. at 572 n.7 (“The

person who has been accorded a procedural right to protect his con-

crete interests can assert that right without meeting all the normal

standards for redressability and immediacy.”).

18

for such relief under the designated statutory framework

is in no way “inconsistent with the judicial function”

under Article III. Sierra Club, 405 U.S. at 732 n.3; see

Muskrat v. United States, 219 U.S. 346, 357 (1911) (cases

and controversies refer to “the claims of litigants brought

before the courts for determination by such regular

proceedings as are established by law or custom for the

protection or enforcement of rights, or the prevention,

redress, or punishment of wrongs”; a case exists when-

ever a claim “takes such form as the judicial power is

capable of acting upon it”).

In this case, the court of appeals found an inadequate

nexus between the right asserted and the remedy sought

because, in its view, “[aJn award of monetary damages to

any aggrieved employees would do nothing to remedy

the alleged failure of notice to [petitioner].” Pet. App.

7a. Contrary to the court of appeals’ assumption, how-

ever, the fact that the relief sought by petitioner will

have the effect of benefiting third parties (aggrieved

employees) does not lead to the conclusion that the relief

will not also remedy the injury alleged by petitioner.

See, e.g., Trafficante, 409 U.S. at 208-212 (housing

applicant’s statutory right not to be denied housing based

on race conferred on current residents a legal interest in

living in a racially integrated community); Lujan v.

Defenders of Wildlife, 504 U.S. at 578 (discussing

Trafficante); cf. Warth v. Seldin, 422 U.S. at 501 (where

Article III injury requirement is satisfied, “persons to

whom Congress has granted a right of action * * * may

have standing to seek relief on the basis of the legal

rights and interests of others, and, indeed, may invoke

the general public interest in support of their claim”).

Here, moreover, the third parties who will benefit

financially from the relief awarded by the court are not

strangers to the dispute. The WARN Act’s requirement

19

that notice be given to the union is ultimately for the

benefit of the employees it represents, and as we have ex-

plained, a primary aspect of the injury to unions in peti-

tioner’s position is an impairment of their ability to aid

aggrieved employees in obtaining retraining and place-

ment in new positions. See, eg., 134 Cong. Rec. 15,514

(1988) (Sen. Byrd) (“(The WARN Act] allows the

communities and the workers and management * * *

the opportunity to put into place retraining programs

while there is still time, while the workers are still getting

a paycheck.”) (emphasis added). The union’s ability to

recover for the employees the back pay and benefits

owed by the employer under the Act serves to make up

for the union’s inability to furnish timely assistance to

those employees, as a result of the employer’s violation.

The nature of the remedy in a case such as this thus is

precisely tailored to the nature of the violation: the

employer’s failure to give notice to the union for the

ber.efit of the employees gives rise to a suit by the union

for the benefit of the employees. In short, it requires no

leap of logie to conclude that ameliorating the

devastating economic impact of unannounced layoffs on

affected employees will also benefit the labor unions that

serve them.

The remedial scheme prescribed by the WARN Act

also has an important deterrent function that reinforces

the reasonableness of the remedial scheme. Cf. North

Star Steel, 115 S. Ct. at 1929 (referring to employer’s

liability for “penalties” under 29 U.S.C. 2104(a)(1)). The

Act’s relief provisions are designed in large part to

discourage employers from disregarding the advance

notice requirement. Cf. Laborers Health & Welfare

Trust Fund v. Advanced Lightweight Concrete Co., 484

U.S. 539, 547 (1988) (“Congress added [the Employee

Retirement Income Security Act’s] strict remedies to

20

give employers a strong incentive to honor their con-

tractual obligations to contribute” to employee pension

funds.). Indeed, Congress rejected an amendment to the

bill that would have permitted employers to provide

severance pay in lieu of prior notice.”

Back pay and benefits awards to affected employees

serve to ameliorate the damage to the union’s role in the

collective bargaining and worker readjustment processes

that results from a WARN Act violation. Unions

directly benefit from the availability of monetary dam-

ages against noncomplying employers because the pro-

spect of an award of damages, like an injunction, serves

to deter violations, and thereby to safeguard the role of

unions generally when plant closings and mass layoffs

occur. And because the employees will have dispersed

after the violation, the union often may be in the best

position to effectuate the remedial and deterrent pur-

poses of the Act by ensuring that the employer will not

avoid its liability to some or all of the employees it

injured.

4. Contrary to the court of appeals’ conclusion (Pet.

App. 7a-8a n.5), International Union v. Hoosier Cardinal

Corp., 383 U.S. 696 (1966), strongly supports union

standing in this case. In Hoosier Cardinal, the Court

held that a union had standing under Section 301(b) of

the Labor Management Relations Act” to seek wages and

In opposing an amendment by Senator Quayle that would have

permitted employers to comply with the Act by giving “severance pay

in lieu of notice,” 134 Cong. Rec. 15,926 (1988), Senator Metzenbaum,

the Act's principal sponsor in the Senate, emphasized that “the bill is

about giving notice. It is not a mandatory severance bill.” /d. at

15,928.

" Section 301(b) provides in pertinent part that “{aJny * * * labor

organization may sue * * * in behalf of the employees whom it

represents in the courts of the United States.” 29 U.S.C. 185(b).

21

vacation pay on behalf of employees for the violation of a

collective bargaining agreement to which the union was a

party. 383 U.S. at 699-700. The court below sought to

distinguish Hoosier Cardinal on the ground that there

the union alleged the breach of a collective bargaining

agreement, while here petitioner alleges a violation of an

Act of Congress. Pet. App. 7a-8a n.5. In each case,

however, the union relied on Congress’s determination

that it could sue for back pay in order to vindicate its

representational interests. That the right asserted by the

union in this case is statutory rather than contractual has

no bearing on the question of Article III standing.”

Indeed, the right and remedy that arise from the

WARN Act are comparable in significant respects to the

operation of third-party-beneficiary contracts. Because

the union’s legal interest in both situations is in securing

economic benefits for third parties (aggrieved employ-

ees), the remedy best tailored to redressing an infringe-

nent of the union’s interest is payment by the employer

to the employees of the amounts owed to them, whether

under a contract entered into by the union or under a

statute in which Congress has given the union a com-

parable role.”

Moreover, in Hoosier Cardinal, the contract the union sued to

enforce was itself entered into pursuant to a statute (the NLRA)

enacted by Congress to regulate the collective-bargaining process.

' See 2 Restatement (Second) of Contracts § 305, at 451-452 (1981):

The promisee of a promise for the benefit of a beneficiary has the

same right to performance as any other promisee, whether the

promise is binding because part of a bargain, because of his

reliance, or because of its formal characteristics. If the promisee

has no economic interest in the performance, as in many cases

involving gift promises, the ordinary remedy of damages for

breach of contract is an inadequate remedy, since only nominal

22

B. Petitioner's WARN Act Claim is Consistent With

Traditional Forms of Representational Litigation

Another consideration relevant to the standing inquiry

is the extent to which the dispute at issue is one

“traditionally thought to be capable of resolution through

the judicial process.” Allen v. Wright, 468 U.S. at 752

(quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)); see also

Valley Forge Christian College v. Americans United For

Separation of Church and State, 454 U.S. 464, 472-473

(1982). A union’s cause of action under the WARN Act

is consistent with the many instances recognized in the

law in which a party is authorized to represent the

interests of another with whom it has a legally significant

relationship. “Trustees, guardians, and personal repre-

sentatives are familiar examples” of well accepted legal

surrogates, 13 C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure § 3531.9, at 627 (1984), as are

persons authorized to sue as “next friend” of a third

party. See Whitmore v. Arkansas, 495 U.S. 149, 161-162

(1990) (noting that “the concept of ‘next friend’ standing

* * * has long been an accepted basis for jurisdiction in

certain circumstances”). In each of those instances,

courts allow one party to sue on another’s behalf because

the litigant has an independent duty to pursue the third

party’s interests arising from “some significant relation-

ship” with that party. Jd. at 164.

The statutory relationship between unions and the em-

ployees they represent fits well within the historical

tradition of representational litigation. The WARN Act

adopts its definition of “representative” from the Na-

tional Labor Relations Act (NLRA), 29 U.S.C. 151 ef seg.

See 29 U.S.C. 2101(a)(4). Under the NLRA, unions are

selected by employees within a collective bargaining unit

through methods endorsed by Congress, see note 1,

supra, and they are recognized by an administrative

agency—the National Labor Relations Board—as the

exclusive representatives of those employees in the

collective bargaining process.

The NLRA imposes on a union a duty of fair rep-

resentation to unit employees that this Court has

described as “akin to the duty owed by other fiduciaries

to their beneficiaries.” Air Line Pilots v. O'Neill, 499

U.S. 65, 75 (1991). That duty includes “a statutory

obligation to serve the interests of all members without

hostility or discrimination toward any, to exercise its

discretion with complete good faith and honesty, and to

avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171,

177 (1967). The obligation is a continuing one and is not

strictly limited to matters of contract administration.

See, ¢.g., Breininger v. Sheet Metal Workers, 493 U.S. 67,

87-89 (1989) (duty applies where union operates a hiring

hall).

In light of that legislative background, Congress's de-

signation of labor unions to represent employees’ rights

under the WARN Act is unremarkable. A union’s inde-

pendent duty to represent employees’ interests in the

work place makes it a particularly appropriate party to

litigate those employees’ rights in the context of unan-

nounced layoffs or plant closings. Cf. Hoosier Cardinal,

383 U.S. at 700 (“[I)ndeed, the union's standing to

vindicate employee rights under §301 [of the Labor

Management Relations Act] implements no more than

the established doctrine that the union’s role in the

collective bargaining process does not end with the

making of the contract.”).

24

C. Petitioner Has Associational Standing to Sue

Respondent Under The Warn Act

For the reasons discussed above, petitioner has stand-

ing, both in its own right and in a statutorily conferred

representational capacity, to challenge respondent's fail-

ure to provide notice under the WARN Act and to seek

the statutory remedy of back pay and benefits for

aggrieved employees. As we shall now explain, peti-

tioner’s suit also satisfies the requirements of Article III

under the doctrine of associational standing.

“It has long been settled that ‘[e]ven in the absence of

injury to itself, an association may have standing solely as

the representative of its members.’” Brock, 477 U.S. at

281 (quoting Warth v. Seldin, 422 U.S. at 511). Although

the invocation of associational standing “does not elimi-

nate or attenuate the constitutional requirement of a case

or controversy,” Warth v. Seldin, 422 U.S. at 511, the

Court has held that, “under certain circumstances, injury

to an organization’s members will satisfy Article III and

allow that organization to litigate in federal court on

their behalf.” Brock, 477 U.S. at 281; see also Hunt v.

Washington State Apple Advertising Comm'n, 432 U.S.

333, 343 (1977); Simon v. Eastern Kentucky Welfare

Rights Organization, 426 U.S. 26, 40 (1976).

The Court has held that an association has standing to

bring suit on behalf of its members when:

(a) its members would otherwise have standing to

sue in their own right; (b) the interests 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.

Brock, 477 U.S. at 282. See also Hunt, 432 U.S. at 343;

Warth v. Seldin, 422 US. at 511.

In this case, the first and second requirements are

plainly satisfied. The aggrieved employees represented

by petitioner were directly affected by respondent's al-

legedly deficient notice, and they would unquestionably

benefit (in a manner contemplated by the Act) from a

back pay award. See Pet. App. 8a. The interests the

union seeks to protect through this litigation, moreover,

are germane both to petitioner’s role as an exclusive

bargaining representative, and to its status as the

intended recipient of plant-closing and layoff notification

under the WARN Act. 29 U.S.C. 2102(a)(1). See Pet.

App. 8a-9a. The decision to cease operations or lay off

employees en masse “touches on a matter of central and

pressing concern to the union and its member

employees.” First National Maintenance, 452 U.S. at

677.

The court of appeals concluded that the third re-

quirement for associational standing was not met because,

in its view, the back pay remedy authorized by the

WARN Act would require the participation of individual

employees in the lawsuit. Pet. App. 10a. In our view,

however, the concern expressed in associational standing

cases regarding the need for individualized proof is of

prudential, rather than constitutional, dimensions. Any

such impediment therefore is displaced in WARN Act

suits by Congress’s express authorization for a union to

bring an action for damages.

The “individual participation” rule appears to derive

from the concern that “[tJhe courts depend on effective

advocacy, and therefore should prefer to construe legal

rights only when the most effective advocates of those

rights are before them.” Singleton v. Wulff, 428 U.S.

106, 114 (1976) (Blackmun, J.); see also Holden v. Hardy,

169 U.S. 366, 397 (1898) (assertion of third parties’ rights

would come with “greater cogency” from the third

26

parties themselves). The Court has stated repeatedly,

however, that the “third-party standing” prohibition,

which responds to that concern, is a prudential dictate.

See, e.g., Valley Forge Christian College, 454 U.S. at 474;

Gladstone, Realtors, 441 U.S. at 99; Duke Power Co. v.

Carolina Environmental Study Group, 438 U.S. 59, 80

(1978). Accordingly, the analogous rule concerning the

possible need for individual participation in a_ suit

brought by an association is similarly prudential in nature

and is not a barrier when a statute such as the WARN

Act expressly authorizes an organization to recover a

money judgment for the benefit of aggrieved individuals.

In addition, the “individual participation” rule’s focus

on the form—as opposed to the substance—of a plaintiff's

proof implicates judicial management concerns charac-

teristic of prudential standing requirements. See Warth

v. Seldin, 422 U.S. 515 (noting potential difficulties of

administering monetary relief to aggrieved individuals in

an associational suit); see also 13 C. Wright, A. Miller &

E. Cooper, Federal Practice and Procedure § 3531.9, at

621 (1984) (suggesting that the individual participation

rule may be based on the “significant burden [that] might

be entailed by the need [for the court] to supervise distri-

bution of any recovery from the organization to its

injured members”). While the pragmatic issues sur-

rounding the litigation of claims for individualized relief

are clearly relevant to judicial self-governance, they do

not diminish “that concrete adverseness” on which Arti-

cle III standing depends. Brock, 477 U.S. at 289 (quoting

Baker v. Carr, 369 U.S. 186, 204 (1962)).

The courts frequently entertain representative litiga-

tion under back pay statutes created by Congress. For

example, in litigation under the Fair Labor Standards

Act, 29 U.S.C. 201 et seg., courts commonly permit the

testimony of a few representative employees in order to

27

provide a basis for establishing back pay awards for all

affected employees. See generally Anderson v. Mt. Cle-

mens Pottery Co., 328 U.S. 680 (1946). More generally,

class actions brought pursuant to Rule 23 of the Federal

Rules of Civil Procedure are not limited to suits for

declaratory or injunctive relief. Rather, named plaintiffs

in such suits may litigate the case on behalf of the class,

irrespective of whether individual class members must

ultimately testify as to questions of liability or relief.”

See, e.g., Barbara L. Schlei & Paul Grossman, Employ-

ment Discrimination Law 1322 & 1454 (2d ed. 1983)

(describing litigation of class-wide disparate treatment

claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seq.). While this Court has not expressly

passed on the adequacy of such litigation schemes under

Article III, their prevalence in the modern legal land-

escape strongly suggests that they are within Congress’s

authority to create.

Similarly, a number of federal statutes expressly

authorize federal officials or agencies to sue in federal

court in order to recover monetary relief for aggrieved

individuals. For example, in General Telephone Co. v.

Equal Employment Opportunity Commission, 446 U.S.

318 (1980), the Court held that Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e-5(f)(1), authorizes

the EEOC to seek back pay relief on behalf of “those

persons adversely affected” by unlawful employment

discrimination “in an amount to be proved at trial.” 446

U.S. at 324; see also Black Lung Benefits Act (BLBA), 30

» Class actions differ in significant respects from suits premised on

associational standing. In both categories of cases, however,

a representative may establish unlawful conduct and seek relief on be-

half of third parties in a proceeding in which individualized proof is

required.

28

U.S.C. 932(k) (“The Secretary shall be a party in any

proceeding relative to [a] claim for benefits.”); Fair

Labor Standards Act, 29 U.S.C. 216 (authoriz-

ing Secretary of Labor to bring actions “to recover the

amount of unpaid minimum wages or overtime com-

pensation and an equal amount as liquidated damages”).

In Director, Office of Workers’ Compensation Pro-

grams v. Newport News Shipbuilding & Dry Dock Co.,

115 S. Ct. 1278, 1286 (1995), the Court considered

whether the Longshore and Harbor Workers’ Com-

pensation Act (LHWCA), 33 U.S.C. 901 e seq., confers

standing on the Director of the Office of Workers’

Compensation Programs in the Department of Labor to

seek judicial review of the denial of disability benefits to

individuals by the Benefits Review Board. The Court

held that the Director did not fall within the definition of

“person{s] adversely affected or aggrieved” by the

Board’s decision, to whom the statute granted a right to

judicial review. 33 U.S.C. 921(c). The Court observed,

however, that Congress has the constitutional authority

to confer such standing on federal officials when it

chooses to do so. Relying on its decisions in General

Telephone Co., supra, and Pasadena City Bd. of Educ. v.

Spangler, 427 U.S. 424 (1976), the Court concluded in

Newport News that “[tJhose two cases certainly establish

that Congress could have conferred standing upon the

Director without infringing Article [I] of the

Constitution; but they do not at all establish that Congress

did so.” 115 S. Ct. at 1286.

In light of the separation of powers concerns that

underlie the doctrine of standing, see Lujan v. Defenders

of Wildlife, 504 U.S. at 560, and because the federal gov-

ernment represents the public interest in litigation to

which it is a party, standing principles applicable to fed-

eral officials and agencies may not be entirely transfer-

rable to suits between private parties. Nonetheless, the

Court’s recognition of the appropriateness of enter-

taining suits brought by the government for individual-

ized relief that benefits aggrieved third parties strongly

supports the conclusion that the individual participation

aspect of associational standing doctrine in private litiga-

tion is prudential in nature.

Finally, the relationship between a union and the in-

dividual employees it represents makes the former an

appropriate party to assert the latter’s interests in obtain-

ing monetary relief under the WARN Act. As pre-

viously noted, the federal labor laws impose on unions a

duty of fair representation. See generally Vaca v. Sipes,

supra; see also Hoosier Cardinal, 383 U.S. at 700.

Unions, moreover, bring to WARN Aet litigation “a pre-

existing reservoir of expertise and capital,” as well a

“specialized expertise and research resources relating

to the subject matter of the lawsuit” that in-

dividual plaintiffs—here, unemployed workers—often

lack. Brock, 477 U.S. at 286 (internal quotation marks

omitted).“” Where, as here, Congress has expressly

designated a party as a proper guardian of the rights of

its members before the courts, Article III] does not

require that that choice be rejected.

21 As the Court recognized in Brock, 477 U.S. at 290, there may be

cases in which an organization asserting associational standing will be

unable to represent adequately the interests of all of its injured

members. In such cases, the Court observed, “a judgment won against

[the association] might not preclude subsequent claims by the

association's members without offending due process principles.” /bid.

In the present case, however, there is no indication that the union will

not adequately represent the legal interests of aggrieved employees.

30

CONCLUSION

The judgment of the court cf appeals should be reversed,

and the case should be remanded for proceedings on the

merits of petitioner’s claims.

Respectfully submitted.

Drew §S. Days, III

THOMAS S. WILLIAMSON, JR. Solicitor General

Solicitor of Labor EDWIN S. KNEEDLER

ALLEN H. FELDMAN Deputy Solicitor General

Associate Solicitor ALAN JENKINS

NATHANIEL I. SPILLER Assistant to the Solicitor

Counsel for Appellate General

Litigation

MARK S. FLYNN

Senior Appellate Attorney

Department of Labor

DECEMBER 1995