Sunday, June 24, 2018

ARGUMENT

 

I. PLAINTIFFS LACK STANDING TO MAINTAIN THIS ACTION.

 

Federal courts must determine standing at the outset of every case, see Wolf, 95 F.3d at 544, and a plaintiff bears the burden to allege facts “demonstrating that he is a proper party to invoke judicial resolution of the dispute.” Renne v. Geary, 501 U.S. 312, 316 (1991) (quotation omitted). The Amended Complaint does not come close to meeting that burden. While it focuses on the issue plaintiffs seek to litigate - the practice of slavery - the doctrine of standing requires focus “on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99 (1968) (emphasis added).

This focus “involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise.” Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999) (quotation omitted). Specifically, Article III requires a plaintiff to establish “a personal injury” that is “fairly traceable to the defendant's allegedly unlawful conduct” and that is “likely to be redressed by the requested relief.” Baaske v. City of Rolling Meadows, 191 F. Supp. 2d 1009, 1014 (N.D. Ill. 2002) (citing Allen v. Wright, 468 U.S. 737, 751 (1984); Johnson v. Allsteel, Inc., 259 F.3d 885, 887 (7th Cir. 2001)).

Beyond these constitutional limitations, “courts also impose “prudential limitations' on the class of persons who may invoke federal jurisdiction.” Massey, 196 F.3d at 739. These prudential limitations prompt courts to “refrain[] from adjudicating “abstract questions of wide public significance' which amount to “generalized grievances,' pervasively shared and most appropriately addressed in the representative branches.” Locals 666 & 780 v. United States Dep't of Labor, 760 F.2d 141, 143-44 (7th Cir. 1985) (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472 (1982)). Prudential limitations also require that a litigant “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citing United States v. Raines, 362 U.S. 17, 22-23 (1960)).

The Amended Complaint falls far short of satisfying these standing requirements. As with all of the named plaintiffs in the original complaints, ten of the named plaintiffs in the Amended Complaint allege that they are “descendants of enslaved African-Americans,” Am. Compl. „ 1, and they seek - just as they did by their separate actions - reparations for slavery as it existed between 1619 and 1865. As discussed below, these plaintiffs cannot meet the constitutional and prudential standing requirements necessary to pursue this historical wrong. The Amended Complaint now adds, for the first time, nine new plaintiffs (eight unidentified) who allege that they were held against their will and forced to work without compensation, after Emancipation, in the early decades of the last century. See Am. Compl. ml 75, 89, 91. But the addition of these new plaintiffs does nothing to save the Amended Complaint from dismissal because they, too, lack standing to sue these defendants. The Amended Complaint should be dismissed, just as numerous other complaints for slavery reparations have been dismissed. See, e.g., Cato, 70 F.3d at 1109-10;see also supra pp. 2-3 n.2 (citing numerous cases).

 

A. The Plaintiffs Who Allege They Are Descendants of Enslaved African-Americans Fail To Satisfy the Requirements of Article III.

The plaintiffs in this action who allege that they are the descendants of African-Americans who were enslaved in this country before 1865 cannot establish the constitutional standing requirements necessary to sue these defendants.

1. The Amended Complaint fails to demonstrate any “distinct and palpable” injury to these plaintiffs.

The most basic requirement for access to the courts, often described as “injury in fact,” requires a plaintiff, at an “irreducible minimum,” to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Valley Forge, 454 U.S. at 472 (quotation omitted) (emphasis added); accord Massey, 196 F.3d at 739-40;Baaske, 191 F. Supp. 2d at 1014. A plaintiff cannot circumvent this requirement through general allegations of injury to a class to which plaintiff claims to belong. See Warth, 422 U.S. at 502. To establish standing, the plaintiff himself or herself must be among the injured. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992). And the plaintiff's injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Plotkin v. Ryan, 239 F.3d 882, 885-86 (7th Cir. 2001) (quotation omitted).

The Amended Complaint does not begin to satisfy this basic requirement. It recites the suffering of slaves generally in America during the period between 1619 and 1865 when slavery was permitted in some places, see Am. Compl. „„ 9-26, and it alleges that plaintiffs' ancestors were enslaved. Yet a plaintiff cannot establish a “concrete and particularized” personal injury by merely identifying a tort victim and alleging some familial relationship. See, e.g., Simonsen v. Bd. of Educ., No. 01 C 3081, 2001 WL 1250103, at *7 (N.D. Ill. Oct. 17, 2001) (dismissing claims brought by wife and children of teacher suspended without pay) (“That they may be indirectly suffering the consequences of his being suspended does not create standing ....”); Patterson, 1995 WL 714372, at *2 n.4 (slave descendant “lacks standing to assert constitutional deprivations suffered by his ancestors”); Langley, 1995 WL 714378, at *2 n.3 (same); cf. infra § I.C.

Nor do the plaintiffs' sweeping, general allegations that African-Americans today are subjected to the vestiges of slavery, and lag behind other citizens in terms of “literacy, life expectancy, income and education,” Am. Compl. „ 50, come close to alleging the required “injury-in-fact.” Read in the light most favorable to plaintiffs, at best the Amended Complaint alleges that some putative class members have been exposed to general social and economic injustices. As a matter of law, such exposure does not constitute the “concrete and particularized” individual injury required to establish standing. See, e.g., Plotkin, 239 F.3d at 886 (“[Plaintiff's injury] is too speculative and generalized to constitute an injury-in-fact for standing purposes.”).

For example, in Cato, 70 F.3d 1103, the Ninth Circuit held that the plaintiff, who sued for slavery reparations and complained of “disparities in employment, income, and education,” lacked standing “to litigate claims based on the stigmatizing injury to all African Americans caused by racial discrimination.” Id. at 1109-10. “Without a concrete, personal injury that is not abstract and that is fairly traceable to the government conduct that she challenges as unconstitutional, [plaintiff] lacks standing.” Id. at 1109. Similarly, the United States District Court for the Northern District of California dismissed complaints seeking reparations for injuries that included “miseducation [and] lack of knowledge of self, culture, social facets, [and] indigenous religion.” Miller, 1994 WL 224815, at *1. In dismissing the complaints, the court emphasized the absence of a particularized injury: “These claimed injuries are not of the character to create standing, as they do not represent the type of sufficiently particularized injury that courts have deemed constitutionally necessary in order to find the existence of a case or controversy.” Id. at *1; accord Mahone, 1994 WL 225095, at *1 (same).

Like these prior plaintiffs who sought reparations for slavery, the named plaintiffs in this case who are the alleged descendants of enslaved African-Americans cannot satisfy the first and most basic requirement of constitutional standing - a concrete and particularized personal injury.

2. The Amended Complaint fails to allege any injury “fairly traceable” to these defendants.

In addition, plaintiffs fail to allege a sufficient connection between any “injury” and these defendants. To establish standing, a plaintiff must demonstrate “that the injury can be fairly traced to the challenged action of the defendant and not from the independent action of some third party not before the court.” Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) (citing Lujan, 504 U.S. at 560-61). Courts cannot confer standing where the causal link is tenuous, and where speculativeie inferences are necessary to connect the[] injury to the challenged actions of [defendants].” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976); see also Linda R.S. v. Richard D., 410 U.S. 614, 618-19 (1973); Shakman v. Dunne, 829 F.2d 1387, 1396-97 (7th Cir. 1987); Plotkin v. Ryan, No. 99 C 53, 1999 WL 965718, at *4 (N.D. Ill. Sept. 29, 1999), aff'd,239 F.3d 882 (7th Cir. 2001). Thus, for example, even though deprivation of the opportunity for an integrated education was “one of the most serious injuries recognized in our legal system,” that allegation of injury did not establish standing when the theory of causation by the defendants' acts was “attenuated at best.” Allen, 468 U.S. at 756-57.

The Amended Complaint seeks to obtain relief from 18 present-day companies for the “vestiges” of events that occurred beginning in 1619 and extending to the abolition of slavery in 1865. See Am. Compl. „„ 46, 49-52. Yet it does not identify any conduct committed at any time by any named defendant that is “fairly traceable” to any injury suffered by any plaintiff. Indeed, the Amended Complaint does not aver any contact between any one of these plaintiffs (none of whom were living in the period 1619-1865) and any one of these defendants (many of which did not even exist in that time period). Nor does the Amended Complaint allege even a connection between any defendant and any of plaintiffs' ancestors. Even at its most general level, in fact, the Amended Complaint does not aver a causal connection between the actions of these defendants and the general social and economic inequities allegedly suffered by some members of the putative class.

Thus, plaintiffs here cannot satisfy the causal connection requirement of standing, just as prior plaintiffs seeking slavery reparations failed to meet this requirement. See, e.g., Cato, 70 F.3d at 1110;Patterson, 1995 WL 714372, at *2;Langley, 1995 WL 714378, at *2;Bey, 1996 WL 413684, at *1;Hamilton, 1994 WL 412433, at *1;Nelson, 1994 WL 398513, at *1;Farr, 1994 WL 285037, at *1. Put simply, “ “[t]he remote possibility, unsubstantiated by allegations of fact, that the plaintiffs' situation might have been better had the defendants acted otherwise, and might improve were the court to afford relief' is simply insufficient” to establish standing. Shakman, 829 F.2d at 1394 (quoting Warth, 422 U.S. at 507) (brackets and citation omitted).

B. Prudential Limitations Also Prevent Adjudication of the Claims of the Alleged Descendants of Enslaved African-Americans.

In addition to its constitutional standing deficiencies, the Amended Complaint fails to meet prudential standing requirements. The federal courts are not “publicly funded forums for the ventilation of public grievances.” Valley Forge, 454 U.S. at 473. Thus, federal courts refrain from “adjudicating “abstract questions of wide public significance' which amount to “generalized grievances,' pervasively shared and most appropriately addressed in the representative branches.” Id. at 475 (quoting Warth, 422 U.S. at 499-500).

Yet plaintiffs are trying to use the federal courts for precisely that purpose: to “ventilate” a “generalized grievance” over an entire chapter in our nation's history. Their Amended Complaint, which starkly illustrates the reasons for prudential standing limitations, mirrors multiple prior complaints seeking reparations for identical grievances. Those prior attempts to ventilate these same grievances through the courts repeatedly have been dismissed on standing grounds. For example, in Miller, 1994 WL 224815, at *1, after concluding that the plaintiffs failed to demonstrate an injury in fact, the district court found that prudential standing limitations also required dismissal: “Here, plaintiffs' grievances are claimed to arise from the fact of their inclusion in a racial group, and are therefore insufficient to overcome the problem that they constitute a “generalized grievance' which does not give them standing to bring this lawsuit.”Id. at *1; see Mahone, 1994 WL 225095, at *1 (same); accord Bell, 2001 WL 1041792, at *2 (same); Langley, 1995 WL 714378, at *2 (same); Patterson, 1995 WL 714372, at *2 (same). Similarly, the Ninth Circuit agreed that a slavery reparations plaintiff lacked standing to pursue “a generalized, class-based grievance.” Cato, 70 F.3d at 1109;id. at 1109-10 (“Neither does [this plaintiff] have standing to litigate claims based on the stigmatizing injury to all African Americans caused by racial discrimination.”). The legislature, not the judiciary, remains the appropriate forum for plaintiffs' grievances. See id. at 1105; cf. infra § III.

C. Plaintiffs Lack Third-Party Standing To Sue for Injuries to Their Ancestors.

To the extent that plaintiffs seek redress for the injuries suffered by their ancestors, constitutional and prudential standing limitations - as well as state law prohibitions - foreclose those claims as well.

A litigant in federal court “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499;see also Massey, 196 F.3d at 740 (federal courts “hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of rights of third persons not parties to the litigation”) (quotation omitted). Before a litigant is permitted to seek vindication of the rights of some third party, the plaintiff must establish not only (1) that the third party would have standing to sue, but also (2) that the plaintiff himself or herself (a) has suffered an injury-in-fact, (b) has a close relation to the third party, and that (c) there exists some hindrance to the third party's ability to protect his or her own interests. See Massey, 196 F.3d at 739-41. Here, plaintiffs have failed to establish any of these requirements.

First, although plaintiffs apparently seek to stand in the shoes of their ancestors, the Amended Complaint does not identify any conduct committed by any named defendant that is “fairly traceable” to any injury suffered by any one of those ancestors. Thus, the Amended Complaint fails to establish that plaintiffs' ancestors would themselves have had standing to sue these defendants. Yet, inherent in the law of third-party standing is the requirement that the third party on whose behalf the suit is being brought actually possess a valid legal claim against the defendant. Cf. Warth, 422 U.S. at 516 (an association can have standing to sue as the representative of its members “only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit”). Where, as here, the complaint fails to show that the third party would have standing to sue, a fortiori there can be no derivative action to assert that third party's rights - there are simply no rights to enforce. On this ground alone, plaintiffs' attempt to assert the claims of their ancestors must fail.

Second, prudential standing limitations (and state law prohibitions) preclude plaintiffs from litigating the claims of their now-deceased ancestors.

(a)As discussed supra, plaintiffs cannot demonstrate that they have suffered an injury-in-fact. The absence of a cognizable injury to these plaintiffs precludes them from asserting the rights of their ancestors. See Massey, 196 F.3d at 739-40 (physician lacked standing to assert third-party claims on behalf of [alleged victims] in part because he lacked a constitutionally sufficient injury-in-fact).

(b)Moreover, plaintiffs lack a legally sufficient relation with the ancestors on whose behalf they purport to sue. No plaintiff alleges that he or she has been appointed executor, administrator, or any other type of duly-appointed representative of the estates of any of their ancestors. Only such a representative has standing to assert causes of action belonging to a decedent. The “well-established rule ... is that the executor or administrator of a decedent's estate has standing to file suit on behalf of the decedent, but the legatees, heirs, and devisees have no such standing.” McGill v. Lazzaro, 416 N.E.2d 29, 31 (111. App. Ct. 1980) (affirming dismissal of action brought by decedent's children for lack of standing). Thus, for example, the Southern District of Florida recently dismissed a claim seeking compensation for property seized during World War II on this very ground, among others. See Ungaro-Benages, No. 01-CV-2547, mem. op. at 32-33 (decedent's heirs lacked capacity to sue for seized property; such claims could be pursued only by the personal representative of the estate).

(c)In addition, although the Amended Complaint asserts generally that there were barriers preventing newly emancipated African-Americans from asserting their legal rights, see Am. Compl. „„ 192-196, there are no allegations that these plaintiffs' ancestors - on whose behalf these plaintiffs purport to sue - sought to and were prevented from ever asserting their rights following the abolition of slavery. See, e.g., Massey, 196 F.3d at 741 (“[t]here is no allegation ... that the [alleged victims] have any obstacle preventing them from properly asserting their own rights”); cf. Johnson, 45 App. D.C. at 441 (reparations claims by three former slaves in 1916).

In light of these same incurable deficiencies, other plaintiffs similarly seeking reparations for slavery have been denied third-party standing. See, e.g., Patterson, 1995 WL 714372, at *2 n.4 (alleged slave descendant “lacks standing to assert constitutional deprivations suffered by his ancestors”); Langley, 1995 WL 714378, at *2 n.3 (same).

D. The New Plaintiffs Who Allege They Were Formerly Enslaved Do Not Have Standing To Sue These Defendants.

The recent addition of nine plaintiffs who allege that they were enslaved during the early decades of the last century does not cure the standing defects in this action. These new plaintiffs also fail to demonstrate a fundamental constitutional requirement of standing: a causal connection between their alleged injury and the challenged actions of these defendants. The Amended Complaint does not allege that any defendant participated in the enslavement of any one of these nine plaintiffs. Indeed, the Amended Complaint does not aver any contact whatsoever between any defendant and any one of these nine plaintiffs - let alone any wrongdoing by a defendant that injured one of these plaintiffs personally. At most, the Amended Complaint alleges, “[u]pon information and belief,” that “in or about the 1920's-1930's some/or all of Defendants corporate entities doing business in Mississippi or Louisiana had reason to know of the construction of forms of slavery yet failed to take steps to eliminate same.” Am. Compl. „ 90. This vague assertion adds nothing to the Amended Complaint, and fails to establish standing on behalf of these nine plaintiffs. See, e.g, Simon, 426 U.S. at 45 (a plaintiff cannot establish a causal connection where “[s]peculativeie inferences are necessary to connect the[] injury to the challenged actions of [defendants]”); Shakman, 829 F.2d at 1394 (”” “[t]he remote possibility, unsubstantiated by allegations of fact, that the plaintiffs' situation might have been better had the defendants acted otherwise, and might improve were the court to afford relief' is simply insufficient” to establish standing) (quoting Warth, 422 U.S. at 507) (brackets and citation omitted).

The AmendedComplaint itself makes clear that any injuries suffered by these nine plaintiffs were caused by the independent actions of unidentified third parties who are not before the Court, rather than by the defendants. See Am. Compl. „„ 75, 89, 91. Accordingly, like the other named plaintiffs, these nine newly added plaintiffs have no standing to maintain this lawsuit.

 

 

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