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GRANT v. COHEN

November 5, 1985

MARY GRANT, on behalf of herself, her family and the class they represent
v.
WALTER W. COHEN, et al.



The opinion of the court was delivered by: GILES

 GILES, J.

 Pursuant to Fed. R. Civ. P. 23(a), plaintiffs have moved for certification of a class consisting "of all residents of Pennsylvania requesting or eligible for the addition of children to their Aid to Families with Dependent Children (AFDC) grants, upon the children's return from foster care placements." *fn1" On behalf of the proposed class, the named plaintiffs, Mary Grant, Dorothy Perry and the Philadelphia Citizens in Action Group, seek both declaratory and injunctive relief which would ultimately result in defendants being judicially compelled to coordinate state and federal assistance programs such that children who are removed from their homes for foster care placement receive assistance promptly upon return home.

 Defendants challenge the proposed class on several grounds: (1) there are insufficient questions of law and fact common to the proposed class members; (2) the claims of the representative parties are not typical of the claims of the class; and (3) the proposed class representatives will not adequately protect the interests of the class. Defendants simultaneously filed a motion to dismiss, *fn2" challenging plaintiff Mary Grant's standing to seek relief in this court. Because defendants focused on Grant's lack of standing as a factor precluding class certification, defendants did not press the issue of standing as to the remaining named plaintiffs. Def's Mem. in Resp. to Pls' Am. Mot. for Cl. Determ. at 3. However, because this court has plenary power over the issue of standing under Art. III of the Constitution, I will sua sponte rule on whether each has presented a sufficient case or controversy to withstand constitutional and jurisprudential limitations. *fn3"

 Because I find that each of the named plaintiffs has failed to present a justiciable case or controversy, the above-captioned matter is dismissed without prejudice.

 I.

 The doctrine of standing in the federal court delimits the persons who are permitted to challenge the legality of an act. In order to invoke the jurisdiction of the federal courts, a plaintiff must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). In order to present a live case or controversy, a plaintiff must show that he has "'sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983) (quoting, e.g., Golden v. Zwickler, 394 U.S. 103, 109-110, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969)).

 Art. III requirements prohibit plaintiffs' reliance on abstract injury alone. No named plaintiff in the present action is immune from such a standard. If none of the named plaintiffs alleged to be class representatives establishes the requisite case or controversy with the defendants, none may seek relief on behalf of herself or any other member of the class.

 II. DISCUSSION

 In the case before me, the controversy centers not on plaintiffs' request for monetary damages arising out of allegedly illegal activity, but rather, on a showing that plaintiffs are entitled to the requested equitable relief. The line of Supreme Court cases which guides this court begins with O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974). In O'Shea, the Court observed that past exposure to some illegal conduct does not in itself demonstrate a case or controversy regarding injunctive relief, unless such past exposure is accompanied by continuing and present adverse effects. Id. at 495-96. Past wrongs are but evidence bearing on the issue of whether there is a real and immediate threat of repeated injury. The prospect of future injury must be both real and immediate. Id. at 496.

 The O'Shea Court found that respondent had failed to demonstrate that it was more than speculation that he would be again exposed to prosecution under state criminal laws. The Court additionally found that even assuming the existence of Art. III standing, respondent had failed to state an adequate basis for equitable relief. In so concluding, the Court recognized the inherent overlap of case or controversy analysis where equitable relief is sought and the determination as to whether a complaint states a sound basis for equitable relief.

 In City of Los Angeles v. Lyons, 461 U.S. 95, 109, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983), the result and reasoning of O'Shea was extended to cases where the plaintiff seeks to enjoin a sanctioned state practice assertedly violative of constitutional rights. Id. at 108-109. In Lyons, respondent sought an injunction prohibiting the use of "chokeholds" by Los Angeles police officers. Lyons alleged that he had been the victim of a police stranglehold after having been stopped for a minor traffic violation.

 The Court, in reversing the Ninth Circuit's injunction against the City of Los Angeles prohibiting their use of strangleholds, held that Lyons had failed to demonstrate a case or controversy which would justify equitable relief. Id. at 105. While the chokehold may have given rise to a constitutional claim for damages under § 1983, the past injury and injuries did nothing to establish a real and immediate threat that he would again be subjected to such conduct. The Court stated that, for Lyons to establish a case or controversy, he would have to allege not only another encounter with the police but also, that he would again be subjected to another chokehold. The Court concluded that the alleged prospect of repetitious illegal conduct was purely speculative.

 The Court went on to reject the Ninth Circuit's conclusion that the case should be analysed under the doctrine of mootness. Despite the fact that the case involved government action of unusually short duration, *fn4" the Lyons Court stated that the issue was not whether the claim was moot, but rather, whether Lyons met the preconditions for asserting injunctive relief. Id. at 109. Nevertheless, the Court proceeded to consider "normal rules of equity" which may be applied to cases where the illegal act complained of is terminated, yet for equitable reasons it should remain a justiciable case or controversy. The Court rejected the Ninth Circuit's contention that the mere cessation of the alleged illegal act did not end the continuing nature of the controversy. The Court concluded that the cessation of the allegedly illegal activity was unrelated to the reason for his lack of standing -- the speculative nature of his claim that he will again experience injury as the result of the police force practice should it continue. Id. As to the "capable of repetition yet evading review" exception to the mootness doctrine, the Court found that Lyons' § 1983 claim gave a proper channel for review. Id. Further, the Court reasoned that the doctrine applies only to "exceptional ...


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