                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2004

Amer Fedr Govt Empl v. Styles
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1291




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     NO. 04-1291
                                    ____________

 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; BOBBY
    L. HARNAGE, NATIONAL PRESIDENT AMERICAN FEDERATION OF
    GOVERNMENT EMPLOYEES, AFL-CIO; AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2006; AMERICAN FEDERATION
   OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 940; JUDY XIM INES;
                        JAMES R. HESLIN

                                                           Appellants
                                           v.

        ANGELA B. STYLES, ADMINISTRATOR; UNITED STATES OFFICE OF
       MANAGEMENT AND BUDGET; AUSTIN SMYTHE, ACTING DIRECTOR,
           UNITED STATES OFFICE OF MANAGEMENT AND BUDGET

                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 03-cv-3944)
                        District Judge: Hon. Harvey Bartle III
                                    ____________

                               Argued December 6, 2004

 BEFORE: AM BRO, and VAN ANTWERPEN, Circuit Judges and SHADUR,1 Senior
                            District Judge

                               (Filed December 28, 2004)



   1
    Honorable Milton I. Shadur, Senior United States District Judge for the Northern
District of Illinois, sitting by designation.
Martin R. Cohen, Esq. (Argued)
American Federation of Government Employees
Suite 117
10 Presidential Boulevard
Bala Cynwyd, Pennsylvania 19004

Counsel for Appellants

Peter D. Keisler, Esq.
Patrick L. Meehan, Esq.
Mark B. Stern, Esq.
Thomas M. Bondy, Esq. (Argued)
United States Department of Justice
Civil Division, Room 9548
601 D Street, N.W.
Washington, D.C. 20530

Counsel for Appellees
                                      ____________

                                        OPINION
                                      ____________

VAN ANTWERPEN, Circuit Judge

       Because we write only for the parties, we need not restate the facts of this case.

Before this Court, Appellant union articulates only two injuries for which it seeks redress:

(1) the union’s overall goals and mission of promoting the welfare and morale of its

members have been frustrated by the OMB Circular alleged to contain an illegal, overly-

inclusive definition of “inherently governmental work,” and (2) the union has been forced

to expend additional resources to respond to the OMB Circular.

       The District Court concluded that the union and its members had not demonstrated

injury-in-fact and therefore granted the Government’s motion to dismiss. We now affirm

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the decision of the District Court.

       Article III’s cases and controversies requirement demands that all litigants in

federal court demonstrate that they have suffered a concrete, legally cognizable injury-in-

fact that is either actual or imminent. U.S. Const. art. III, § 2. It is incumbent on the

party invoking federal jurisdiction to establish this and every other prerequisite for

standing. FW/PBS Inc. v. Dallas, 493 U.S. 215, 231 (1990).

       In this case, the union has failed to allege an injury-in-fact sufficient to defeat the

Government’s motion to dismiss. As to the union’s first alleged injury, frustration of its

organizational goals, we conclude that any damage that has occurred to the union

members’ morale and welfare is not a legally cognizable interest. The union has pointed

to no cases in which a federal employee’s concern that his job may be improperly

outsourced has been recognized as a legally cognizable interest, nor can we find one.

Instead, the union merely points to Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982), for support. In Havens, the Supreme Court concluded that a fair housing

organization had suffered injury to its organizational goals sufficient to confer Article III

standing when two minority testers were discriminated against by a particular housing

unit. In that case, the plaintiff organization was able to point to a right to equal access to

housing information for minorities, a legally protected interest guaranteed by the Fair

Housing Act that was infringed upon by the housing unit’s racial discrimination. Here by

contrast, the union can point to no constitutional, statutory or common law ground in



                                               3
which a federal employee’s right to peace of mind against potential improper outsourcing

is enshrined. As such, the union’s first alleged interest is not legally cognizable.

       The union’s second alleged injury fares little better. Regardless of whether or not

the union has or will continue to expend funds in response to what it perceives as an

unlawful definition in the OMB Circular, the fact remains that the union cannot point to a

single job that has been improperly outsourced. As such, its preemptive action, while

perhaps prudent, cannot be the basis for injury sufficient to satisfy Article III. To hold

otherwise would allow the union to manufacture its injury-in-fact, cf. Fair Hous. Council

of Suburban Phila. v. Montgomery Newspapers, 141 F.3d 71, 79 (3d Cir. 1998), and

effectively eviscerate the Article III bar. Until such time as wrongful job loss is either

actual or imminent, any amount of resources diverted by the union to prepare for this

“someday occurrence” is not sufficient injury to confer standing.

       Because the union has not alleged a legally cognizable injury-in-fact that is either

actual or imminent, we affirm the decision of the District Court.




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