and accepting a monthly pension, the plaintiff is not within the category of potential employees who would be injured by discriminatory hiring practices of the defendant if such were found to exist. The plaintiff here has voluntarily relinquished his rights or expectations of re-employment or reinstatement prior to the time this suit was filed by applying for and accepting retirement benefits.
The plaintiff cites several cases for the proposition that his retirement does not render his claim for injunctive relief and reinstatement moot. See, Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); Banks v. Lockheed-Georgia Co., 46 F.R.D. 442 (N.D. Ga. 1968); Parham v. Southwestern Bell Tel. Co., 58 LC P9147 (E.D. Ark. 1968).
In each of these cases the courts held that a change in circumstances as to the representative member of the class after the suit was instituted did not moot the class actions seeking injunctive relief. Although the individual's claim for relief had become moot, once a civil rights action had been instituted the representative member of the class became a "private attorney general" to prosecute the claim for injunctive relief on behalf of all other members of the class. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968). These cases, however, are distinguishable from the present case. We are not here concerned with a post-suit conciliation agreement between the employer and the plaintiff-employee. Mootness is not in issue. The plaintiff here voluntarily altered his position by retiring prior to the filing of this suit and thus lacks standing to sue in the first instance.
Although a class action for injunctive relief is certainly permissible, and often desirable, under the Civil Rights Act, that class action must meet the requirements of Rule 23 of the Federal Rules of Civil Procedure. It is elementary that a party may not represent a class of which he is not a member. See, e. g., McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 59 L. Ed. 169, 35 S. Ct. 69 (1914). The class which the plaintiff seeks to represent herein is Negro persons who apply for employment or who might be employed by the defendant McGuire, or who may become members of Local 187. Since his retirement, the plaintiff is no longer in a position to represent this class. As the retirement occurred prior to the institution of this suit, the plaintiff has lacked standing from the outset so the "private attorney general" concept is not applicable to save the class action.
The court is mindful of the salutory purpose of the Civil Rights Act and the high priority which Congress placed on furthering the underlying policy of the Act. However, the fact of the plaintiff's voluntary retirement, and the terms of the retirement agreement itself, should not be totally disregarded. The plaintiff had the option of pressing his claims in court to determine the validity of his charges of discrimination and unlawful employment practices. He chose instead to apply for and accept the retirement benefits under the Pension Plan.
Since it has been found that the plaintiff lacked standing to sue under the Civil Rights Act in the first instance, it is unnecessary to pass upon the remaining points in the defendant's Motion to Dismiss.
And now, this 1st day of October, 1970, it is hereby Ordered that the defendants' Motion to Dismiss is Granted.