Lodge 511, on advice of the Brotherhood's President, no action to terminate plaintiffs' employment would be taken by the Brotherhood.
None of the foregoing is contradicted in the affidavits filed by plaintiffs, and the depositions taken by plaintiffs' counsel confirm the fact that plaintiffs' applications for membership in the lodges designated by each of them are awaiting the action of these lodges. Moreover, the deposition of the Brotherhood's General Chairman shows beyond dispute that no action required under the union shop agreement to terminate an employee's services for failure to comply with its terms has been taken by either defendant.
Under such circumstances i cannot agree that plaintiffs are, as they contend in their brief, 'literally subject to the penalty of dismissal from service as provided for in the agreement', or that the facts establish the existence of a real and substantial dispute between the parties as to their respective rights under the union shop amendment to the Railway Labor Act. As i see it, the record here plainly shows that any violation of plaintiffs' rights to continued employment rests upon an assumed course of action by defendants which is so dependent and contingent on the happening of hypothetical future events as to be not only remote but completely uncertain of occurrence. What plaintiffs seem to be seeking is a declaration of their rights under the statute without having had them challenged. As yet, no action has been taken by defendants with respect to plaintiffs' 'continued employment' which would give rise to an actual dispute between the parties as to the requirements of the statute. Such a case is manifestly premature and not properly the subject of a declaratory judgment of injunctive relief.
In addition to what has been said heretofore concerning the speculative nature of any termination of employment, plaintiffs' argument that their discharge has been 'threatened' by agents of both defendants appears to me to be governed by the decision of the Court of Appeals of this jurisdiction in National War Labor Board v. Montgomery Ward & Co., Inc., 79 App.D.C. 200, 144 F.2d 528, certiorari denied 323 U.S. 774, 65 S. Ct. 134, 89 L. Ed. 619. In dismissing a suit to enjoin and annul a directive of the War Labor Board, the court held that it could not entertain an action based on mere forecasts and predictions of irreparable injury which might never occur. In the course of its opinion the court said, 144 F.2d 528, 531:
'* * * if the complaint were interpreted as alleging that threats have been made, the allegation would come only to this, that the defendants have used unspecified and perhaps vague or tentative expressions which, in the plaintiff's opinion, indicate a sufficient inclination toward taking some step or other for the enforcement of the Board's order so that they may be characterized as threatening. The complaint therefore alleges no facts which indicate more than a possibility of any action by the defendants which might cause injury to the plaintiff. It follows that the complaint states no valid claim for review of the Board's order.'
The logic of the court's reasoning applies with equal force here. As has been shown, not only is plaintiffs' discharge completely uncertain and speculative, but at present so also is action on their applications for membership in the particular union lodge of their choice, before which no question concerning discharge could ever arise.
In Douglas Auto Parts, Inc., v. Fleming D.C.D.C., 50 F.Supp. 928, Judge Bailey of this Court reasoned to the same effect in granting defendant's motion for summary judgment for failure to present a justiciable controversy in an action involving certain alleged threats by a subordinate official of the Wage-Hour Division. With reference to such threats, Judge Bailey said:
'In this and in the conversations with Elson there is no threat. Elson had no authority to prosecute, and there is nothing to show that the Administrator had been requested to take action or that he contemplates taking action against the plaintiff.'
Similarly here, no action seeking to terminate plaintiffs' employment has been taken by either defendant, and the affidavit and deposition of the Brotherhood's General Chairman disclose that no such action is contemplated. Even assuming the Brotherhood were to initiate action under Section 4(a) of the union shop agreement to secure the termination of plaintiffs' employment, defendant B. & O. might find the requested discharge unjustified under the agreement. Accordingly, as of now, any deprivation of plaintiffs' employment is completely uncertain of occurrence.
Courts of other jurisdictions have also applied the principles of this District of Columbia cases and denied declaratory or injunctive relief under factual circumstances analogous to those here presented for failure to present a justiciable controversy. England v. Devine, D.C. Mass. 59 F.Supp. 379; San Francisco Lodge No. 68 of the Internal Association of Machinists v. Forrestal, D.C.N.D. Cal., 58 F.Supp. 466, 468. In the last cited case, the court denied injunctive relief and a declaratory judgment and dismissed the complaint on the ground that it failed to present a justiciable controversy, stating:
'It appears to the court that no justiciable controversy in the legal sense exists and therefore the court should not exercise its power under the Federal Declaratory Judgment Act. That the exercise of this power is within judicial discretion is so declared by respectable authority (citing cases). An actual controversy is not one which may occur, but one which in fact exists. * * * The record here conclusively shows that plaintiff's claim rests upon an anticipation as to the future course of action of defendants and not upon a present actual factual issue.
'I am also of the opinion that the record does not disclose any grounds for general equitable relief by restraining order, injunction or the like. That a member of plaintiff association may violate the rules of employment, that he may be discharged therefor, that he may be consequently denied clearance and referral- these are speculative and conjectural factors.'
Like the foregoing case, here too the record shows that plaintiffs' claim rests upon a speculative anticipation of a future course of action by defendants which may never occur, and not upon a present actual factual issue. This being the case, were the Court to grant the relief requested, it would be doing no more than rendering an advisory opinion upon a hypothetical set of facts.
Plaintiffs' motion for an injunction pendente lite is denied. Defendants' motion for summary judgment is granted, and the cause is dismissed for failure to state a claim upon which relief can be granted.
Counsel will present an order in conformity with this opinion.