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HOTEL & RESTAURANT EMPLES. UNION, LOCAL 25 v. SMIT

April 28, 1983

HOTEL & RESTAURANT EMPLOYEES UNION, LOCAL 25, Plaintiff,
v.
WILLIAM FRENCH SMITH, et al., Defendants



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY.

 I.

 PLAINTIFF HAS STANDING TO MAINTAIN THIS ACTION

 Defendants assert that plaintiff, a labor union, lacks standing to maintain this action on behalf of its Salvadoran members because the conduct in issue does not adversely affect plaintiff itself nor its members' associational ties. In support of this position, defendants cite the cases of Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977), and Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).

 However, plaintiff here has alleged injury both to itself and to its members' associational ties. Plaintiff alleges that defendants' actions injure it directly by hampering its ability to organize and retain Salvadoran members as well as its efforts to protect the rights of its existing Salvadoran members to be secure in their jobs. Plaintiff also alleges that defendants' actions affect its members' associational ties by causing their severance. These allegations are plainly sufficient to support standing by plaintiff here.

 Defendants seek to controvert plaintiffs allegations of standing by challenging the interests plaintiff has asserted. Defendants contend that plaintiff's Salvadoran members "have no right even to remain in the United States, let alone have a right to a job." As plaintiffs point out, however, this argument assumes the major issue in this suit -- it assumes that plaintiff's Salvadoran members should not be allowed to remain in the country. Moreover, even if some of plaintiff's Salvadoran members are in the country without defendants' authorization, that fact does not in any way diminish plaintiff's obligation to these members. It is well-settled that alien workers, regardless of their immigration status, fall under the definition of "employees" under the National Labor Relations Act. See NLRB v. Sure-Tan, Inc., 583 F.2d 355 (7th Cir. 1978). The NLRA also specifically precludes unions from discriminating against any one group of employees. Bell & Howell Co. v. NLRB, 194 U.S. App. D.C. 217, 598 F.2d 136 (D.C. Cir. 1978), cert. denied, 442 U.S. 942, 61 L. Ed. 2d 312, 99 S. Ct. 2885 (1979). Thus, plaintiff is indeed legally bound to provide protection to its alien members, as it seeks to do here.

 Any doubt about the appropriateness of plaintiff's standing here can be readily dispelled by reference to the Supreme Court's 1973 decision in United States v. SCRAP, 412 U.S. 669, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973). In SCRAP, the Supreme Court upheld the standing of a public interest organization to challenge the ICC's failure to suspend a surcharge on certain railroad freight rates. Plaintiff alleged that its members would be harmed because the failure to suspend would result in increased freight rates, which in turn would cause increased use of nonrecyclable commodities, which in turn would necessitate the use of more natural resources to produce such goods, some of which resources might be taken from the Washington metropolitan area, resulting in more refuse in the national parks in the Washington area, in which plaintiff's members regularly camped and "breathe[d] the air." Id. at 688. See also Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 45 n.25, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976) (explaining the appropriateness of SCRAP to a motion for dismissal). If the Supreme Court is willing to allow standing for such an indirect injury, surely standing must be allowed here, where plaintiff has alleged a direct injury to itself as well as to its members' associational ties. See Hunt v. Washington Apple Advertising Comm., 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).

 II.

 THE GRANT OR DENIAL OF EXTENDED VOLUNTARY DEPARTURE IS NOT A POLITICAL QUESTION

 Defendants contend next that what is in issue here is the decision whether to grant or deny extended voluntary departure and that that decision is a political question not subject to judicial review. In support of their position, defendants rely on Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), and the concurring opinion of Justice Powell in Goldwater v. Carter, 444 U.S. 996, 998, 62 L. Ed. 2d 428, 100 S. Ct. 533 (1980), which set forth three inquiries in determining whether a political question is presented: (1) Does the issue presented involve the resolution of questions committed by the text of the Constitution to a coordinate branch of government? (2) Does resolution of the question turn on standards that defy judicial application or go beyond judicial resources? (3) Do prudential considerations, such as a need for the government to speak with a single voice, weigh against judicial intervention? Defendant contends that, under these three tests this case presents a nonjusticiable political question.

 Even using defendants' tests, however, the Court finds that the grant or denial of extended voluntary departure is not a nonjusticiable political question. *fn1" As defendants admit, the control of immigration is not directly committed by the text of the Constitution to a coordinate federal branch. It is true that the political branches have been allowed broad leeway to regulate the flow of immigrants, but the Supreme Court has expressly left room for a "narrow standard of [judicial] review of decisions made by the Congress or the President in the area of immigration and naturalization." Mathews v. Diaz, 426 U.S. 67, 82, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976); see also Harisiades v. Shaughnessy, 342 U.S. 580, 584-90, 96 L. Ed. 586, 72 S. Ct. 512 (1952). Such review has long been exercised, as for instance in cases alleging a due process violation in immigration decisions, see, e.g., Japanese Immigrant Case, 189 U.S. 86, 23 S. Ct. 611, 47 L. Ed. 2d 721 (1903); Bilokumsky v. Tod, 263 U.S. 149, 68 L. Ed. 221, 44 S. Ct. 54 (1923), and more recently in challenges to the denial of political asylum, see e.g., Haitian Refugee Center v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980), aff'd, 676 F.2d 1023 (5th Cir. 1982).

 Second, the Court does not lack a standard or the resources to decide the issues presented in this case. As plaintiff points out, defendants themselves have in the past articulated a cognizable standard for the grant of extended voluntary departure to a group of aliens -- "wide-spread fighting, destruction and breakdown of public services and order" in the aliens' country of origin. 128 Cong. Rec. 5832 (daily ed. Feb. 11, 1982); see also 1A Gordon & Rosenfield, Immigration Law and Procedure, 5-48 (1982). At least one court has made findings as to the serious conditions that exist in El Salvador. Orantes-Hernandez v. Smith, 541 F. Supp. 351, 359 (C.D. Cal. 1982). *fn2" As to judicially-manageable resources, it is clear that courts have the power to take judicial notice of grave conditions in ...


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