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American Federation of Railroad Police Inc. v. National Railroad Passenger Corp.

decided: October 28, 1987.

AMERICAN FEDERATION OF RAILROAD POLICE, INC. (AFRP), PLAINTIFF-APPELLANT,
v.
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), RAYMOND INGALLS, ROBERT HERMAN, OSCAR BENJAMIN, SAM NICKERSON, AND ROBERT BAGOSY, DEFENDANTS-APPELLEES



Appeal from a judgment of the United States District Court for the Southern District of New York, Richard Owen, Judge, dismissing for lack of subject matter jurisdiction plaintiff union's complaint under 42 U.S.C. § 1983 challenging defendants' policy of evicting homeless persons from railroad station. Affirmed.

Van Graafeiland, Kearse, and Mahoney, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Plaintiff American Federation of Railroad Police ("AFRP"), the recognized collective bargaining representative of certain policemen employed by defendant National Railroad Corporation ("Amtrak"), appeals from a judgment of the United States District Court for the Southern District of New York, Richard Owen, Judge, dismissing for failure to state a claim and for lack of subject matter jurisdiction its complaint brought under 42 U.S.C. § 1983 (1982), alleging that Amtrak's policy of ejecting homeless persons from Pennsylvania Railroad Station ("Penn Station") in New York City violated various constitutional rights of both the homeless and the Amtrak police officers required to enforce the policy. The district court held that AFRP had no standing to assert claims on behalf of homeless persons and that the claims asserted on behalf of Amtrak policemen were either premature or were work rule disputes that, under the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (1982), were within the exclusive jurisdiction of the National Railroad Adjustment Board ("NRAB"). On appeal, AFRP contends principally that the court should not have dismissed the complaint, because Amtrak policy requires the use of force at a constitutionally impermissible level, and because the NRAB has no power to adjudicate claims of constitutional violations. For the reasons below, we affirm the judgment of the district court.

I. BACKGROUND

In June 1985, Amtrak articulated a policy of ejecting "homeless and undesirable[]" persons from Penn Station. It thereafter repeatedly instructed its police officers to "eject all undesirables with whom they come in contact" and to "escort these loiterers out of Penn Station." Amtrak regarded the failure of its policemen to eject such indigents as a ground for disciplinary action.

AFRP, which represents Amtrak policemen having a rank of lieutenant or lower, including those assigned to patrol Penn Station, commenced the present action in late 1986. The complaint alleged that the Amtrak policy (1) violated the rights of homeless persons to due process, equal protection, liberty, freedom of expression and assembly, and the privileges and immunities secured by the Fourteenth Amendment to the Constitution, and (2) violated the rights of Amtrak policemen by exposing them to (a) discipline for failing to enforce the policy, the details of which the complaint alleged were vague both in defining "homeless" and "undesirable" and in describing the procedures to be followed, (b) physical and emotional injury for policemen who attempted to enforce the policy, and (c) liability for civil rights violations for attempting to enforce it. AFRP sought a declaratory judgment that Amtrak's policy was unconstitutional, an injunction against Amtrak's requiring its policemen to carry out the policy, and $10 million in compensatory and/or punitive damages.

Amtrak promptly moved to dismiss for failure to state a claim on which relief can be granted and for lack of subject matter jurisdiction; AFRP cross-moved for a preliminary injunction. The district court granted Amtrak's motion. In an endorsed memorandum, the court ruled that AFRP's claim that its members might suffer personal injury in enforcing it reflected a dispute over work rules and working conditions, the resolution of which lay within the exclusive jurisdiction of the NRAB, see 45 U.S.C. § 153 First (i). It ruled that AFRP's claim that its members risked exposure to liability for violating the civil rights of any homeless persons ejected from the station was not ripe for consideration since the exposure was conjectural or hypothetical rather than real and immediate. The court ruled that AFRP had no standing to assert the constitutional rights of homeless persons.

II. DISCUSSION

On this appeal, AFRP argues principally that the court should not have dismissed its complaint (1) because it alleges constitutional violations that are not within the province of the NRAB, and (2) because Amtrak's policy "mandates false arrest and excessive force" by Amtrak policemen and thereby "deprives innocent persons their constitutional and common law rights and protections." For the reasons below, we conclude that AFRP's claims of injury to Amtrak policemen fail to state any claim, other than one within the exclusive jurisdiction of the NRAB, on which relief can be granted by the federal courts, and that as to the claim that the policy violates the rights of homeless persons, AFRP lacks standing.

A. The Rights of the Amtrak Policemen

AFRP alleges four types of injury to its members: (1) risk of physical injury to those who attempt to enforce Amtrak's policy of ejecting the homeless, (2) emotional injury, pain, and suffering, (3) exposure to civil liability for enforcing the policy, and (4) risk of discipline or loss of employment for failing to enforce it. The first two are insufficient to invoke the jurisdiction of the federal court; the third is premature and speculative; and the fourth, to the extent that it is not within the exclusive jurisdiction of the NRAB, is insufficient to state a claim.

1. Physical Injury

AFRP's claim that Amtrak's policy exposes its members to physical injury is based on the premise that the persons Amtrak policemen seek to eject from Penn Station will respond with violence. The premise is insufficient to support a claim on which relief can be granted. Violent resistance to police orders would of course be unlawful, and no basis has been presented for believing that the routine response of a homeless person to an ejectment order would be violence. The Supreme Court has ruled that a claim based on speculation that a given class of persons will engage in unlawful conduct must be dismissed. See City of Los Angeles v. Lyons, 461 U.S. 95, 103, 105-06, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (holding that plaintiff would have had standing to request injunction against police use of "chokeholds" only if ...


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