       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 13, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1849
                          Lower Tribunal No. 98-7760
                             ________________


           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



                                         3
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.



                                          5
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.

                                          6
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



                                          8
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.



                                          9
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



                                         11
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



                                        12
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.

                                           14
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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