Jackson v. Dukakis

526 F.2d 64, 11 Fair Empl. Prac. Cas. (BNA) 917, 1975 U.S. App. LEXIS 11693, 10 Empl. Prac. Dec. (CCH) 10,526
CourtCourt of Appeals for the First Circuit
DecidedDecember 1, 1975
DocketNo. 75-1251
StatusPublished
Cited by27 cases

This text of 526 F.2d 64 (Jackson v. Dukakis) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Dukakis, 526 F.2d 64, 11 Fair Empl. Prac. Cas. (BNA) 917, 1975 U.S. App. LEXIS 11693, 10 Empl. Prac. Dec. (CCH) 10,526 (1st Cir. 1975).

Opinion

McENTEE, Circuit Judge.

This appeal arises from a class action brought by appellant and two other plaintiffs against the governor of Massachusetts and the heads of sixteen state agencies. Jackson v. Sargent, 394 F.Supp. 162 (1975). The three plaintiffs below sought injunctive and declaratory relief to redress injuries claimed to be [65]*65suffered by themselves and others similarly situated as a result of alleged racially discriminatory hiring practices of the defendants’ state agencies in the city of Boston. The discrimination claim is based essentially on certain statistics proffered by plaintiffs which if true indicate an underrepresentation of minority persons employed in the defendants’ state agencies in Boston as compared to Boston’s minority population, as a whole. Id. at 170-72. Plaintiffs claim this underrepresentation establishes a prima facie case of racial discrimination in contravention of the Equal Protection Clause and 42 U.S.C. §§ 1981 and 1983 (1970). In addition plaintiffs claim that the defendants historically had, and have continued to engage in discriminatory hiring and employment practices which serve to perpetuate the effects of past racial discrimination. The district court dismissed plaintiff-appellant Jackson from the action for lack of standing.1 We affirm.

Appellant Jackson is a black resident of Boston. He is an honorably discharged veteran of the United States Navy who has completed high school and has more than one year of college credit. Jackson has been employed in the past as a job developer, job recruiter, youth counselor and office administrator. He claims to be qualified for similar positions in the various defendants’ agencies. However, Jackson has never applied for employment with any of these agencies. He states he has not applied because he does not want to subject himself to the racial discrimination allegedly practiced by these agencies. Appellant Jackson avers he would seek a job with the defendants’ agencies if their discriminatory practices were enjoined. The district court held that since Jackson “failed to perform even [the] miniscule act” of applying for a job with one or more of the defendants’ agencies, he was unable to establish any causal link between his injuries and the employment discrimination allegedly practiced by the defendants. Jackson v. Sargent, supra at 169.

A plaintiff to have standing to sue must have “a personal stake in the outcome of the controversy.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). His allegations must indicate, first, “that the challenged action has caused him injury in fact, economic or otherwise” and, second, that “the interest sought to be protected . is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). See H. Hart & H. Wechsler, The Federal Courts and the Federal System, 152-56 (2d ed. 1973). Our inquiry is focused on the first of these requirements since, as the district court correctly held and appellees concede, appellant Jackson satisfies the second. A review of the record indicates that appellant fails to satisfy the first requirement.

Jackson claims to have suffered economic and psychological injury due to the defendants’ actions. But in light of appellant’s failure even to apply for a job with defendants’ agencies this claim cannot avail. Although the categories of judicially cognizable injury have been broadened to include noneconomic injuries, see Association of Data Processing Service Organizations, Inc. v. Camp, supra at 154, 90 S.Ct. 827; Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954), the Supreme Court has recently “stressed that the broadening of categories ‘is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.’ ” Schlesinger v. Reservists to [66]*66Stop the War, 418 U.S. 208, 218-19, 94 S.Ct. 2925, 2931, 41 L.Ed.2d 706 (1974).

Appellant seeks to rescue his claim by pointing to the Court’s approval of the statement that “an identifiable trifle is enough for standing to fight out a question of principle.” United States v. SCRAP, 412 U.S. 669, 689, n. 14, 93 S.Ct. 2405, 2417, 37 L.Ed.2d 254 (1973). However, by failing to apply to any of the agencies appellant made it impossible for the district court to establish except by conjecture any connection between the claimed injuries and the allegedly discriminatory acts. Even where the injury or threat of injury is “trifling,” it nevertheless “must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

Further, appellant claims he has standing to challenge defendants’ recruitment practices which deter him from applying. But framing the challenge in this way does not appreciably aid appellant in showing that he has been directly injured in fact. While the Supreme Court has afforded individuals who had not yet been identifiably injured by the government practice standing to contest the constitutionality of governmentally sanctioned or imposed organizational membership requirements or employment practices, see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), it has done so because of a concern about the possible “deterrent, or ‘chilling,’ effect of governmental” actions. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972). See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 167-68, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).2 Appellant has alleged no effects from defendants’ practices which involve the chilling of any fundamental rights.

In a further effort to salvage standing, appellant contends that the “gist” of his claim is that the defendants’ allegedly discriminatory practices prevent him from completing the application process. However, this claim cannot avail. In Moose Lodge No.

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Bluebook (online)
526 F.2d 64, 11 Fair Empl. Prac. Cas. (BNA) 917, 1975 U.S. App. LEXIS 11693, 10 Empl. Prac. Dec. (CCH) 10,526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-dukakis-ca1-1975.