INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, ET AL., PETITIONERS V. WILLIAM E. BROCK,
SECRETARY OF LABOR

   No. 84-1777

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Respondent

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Summary of argument
   Argument:
      Petitioners could not properly maintain this suit
      I. In the circumstances of this case, petitioners
         lacked standing to sue and could not properly
         invoke the authority of the federal courts
         A. Under existing principles, neither the Union
            nor its individual members could bring this
            action
            1. No individual union member would have
               standing to bring this action
            2. Even if a union member had standing to
               sue in federal court for prospective relief,
               petitioners could not sue for retrospective
               relief to support a claim in a state
               proceeding
            3. The Union did not have representative
               standing to sue because it sought
               retrospective relief that requires
               participation of individual union members and
               the suit is not germane to the organization's
               purpose
            4. Post-judgment certification of a class
               action is not appropriate and cannot be used
               to remedy the Union's lack of standing
         B. At least absent particularized need,
            representative standing should not be
            recognized and the class action provisions
            of Rule 23 should be applied instead
     II. In seeking the reopening and reprocessing of
         individual benefit claims previously denied by a
         state agency, petitioners were required to join
         the responsible state agency as a necessary party.
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A9) is reported
at 746 F.2d 839.  The opinion of the district court (Pet. App.
A10-A29) is reported at 568 F. Supp. 1047.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. A32-A33) was
entered on October 23, 1984.  A petition for rehearing was denied on
January 11, 1985 (Pet. App. A34-A35).  On April 3, 1985, the Chief
Justice extended the time within which to file a petition for a writ
of certiorari to and including May 11, 1985.  The petition was filed
on May 10, 1985, and was granted on October 15, 1985.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether, in the circumstances of this case, petitioners had
standing to bring this action and could properly invoke the authority
of the federal courts.

   2. Whether the cooperating state agencies that administer the trade
readjustment allowance program under the Trade Act of 1974 were
required to be joined in this litigation seeking the reopening and
redetermination of adverse benefit decisions by the state agencies.

                               STATEMENT

   1. The Trade Act of 1974, 19 U.S.C. (& 1976 ed.) 2101 et seq.,
establishes a program of trade readjustment allowance (TRA) benefits
as a supplement to state unemployment insurance in order to assist the
adjustment of workers who have lost their jobs due to import
competition.  19 U.S.C. (1976 ed.) 2291-2294.  Both federal and state
agencies are involved in the administration of the TRA program.  Under
the Act, a group of workers, or their union or other authorized
representative, may petition the Secretary of Labor to certify that
the workers' firm has been adversely affected by imports.  19 U.S.C.
(1976 ed.) 2271-2273.  /1/ A worker covered by a group certification
may then file an application for TRA benefits based on the eligibility
standards for individuals under the Act.  19 U.S.C. (1976 ed.) 2291;
29 C.F.R. 91.6.  State agencies that administer state unemployment
insurance laws may enter into agreements with the Secretary to
determine the eligibility of individual workers for TRA benefits and
to provide payment to eligible workers.  19 U.S.C. (1976 ed.) 2311(a).
 Such agencies are designated as "cooperating State() agencies" (19
U.S.C. (1976 ed.) 2311(a);  see also 19 U.S.C. (1976 ed.) 2319(9) and
(10)) and act under the agreement as the "agent of the United States"
(19 U.S.C. (1976 ed.) 2311(a), 2313(a)).  State agency determinations
of entitlement to TRA benefits are reviewable "in the same manner and
to the same extent as determinations under the applicable State
(unemployment insurance) law and only in that manner and to that
extent." 19 U.S.C. (1976 ed.) 2311(d);  see also 19 U.S.C. (1976 ed.)
2319(10).  Program benefits and state administrative costs are funded
by the federal government.  19 U.S.C. (1976 ed.) 2313(a), 2317(a).
/2/

   Eligiblity for TRA benefits is a function of both federal and state
criteria.  19 U.S.C. (1976 ed.) 2291-2294, 2319(13);  see also 19
U.S.C. 2319(14) and (15).  Insofar as relevant here, the Act requires
that, to qualify for benefits, a worker separated from employment must
have "had, in the 52 weeks immediately preceding * * * separation, at
least 26 weeks of employment at wages of $30 or more a week in
adversely affected employment with a single firm or subdivision of a
firm." 19 U.S.C. (1976 ed.) 2291(2).  The Secretary explained his
interpretation of this provision in a 1975 policy handbook, which
advised the cooperating state agencies that "(p)eriods in which
service is not being performed, such as leave of absence, sick or
annual leave or vacation leave, and periods in which service is being
performed for other than the adversely affected employer, such as
military service, temporary loan or detail to another employer, or
work for another employer while attached to the adversely affected
employer, may not be considered as employment for an adversely
affected firm or subdivision thereof" (J.A. 85).  /3/

   On August 13, 1981, the Omnibus Budget Reconciliation Act of 1981
(OBRA) was signed into law.  Pub. L. No. 97-35, 95 Stat. 357 et seq.
Section 2503 of OBRA, 95 Stat. 881, 19 U.S.C. 2291, amended the Trade
Act to provide that a limited number of weeks of compensated leave --
including "leave for purposes of vacation, sickness, injury,
maternity, or inactive duty or active duty military service for
training" (19 U.S.C. 2291(a)(2)(A)) -- are to be included in
determining an employee's period of employment with an adversely
affected firm.  Congress explained that it intended this provision to
be a "limit(ed) * * * liberalization of the 26-weeks pre-layoff
employment requirement." H.R. Conf. Rep. 97-208, 97th Cong., 1st Sess.
1002-1003 (1981).  This amendment to the Trade Act applies to TRA
benefits "payable for weeks of unemployment which begin after
September 30, 1981." OBRA, Section 2514(a)(2)(B), 95 Stat. 889, 19
U.S.C. 2291 note.  The OBRA amendment thus superseded the 1975
handbook on a prospective basis, and the Secretary notified the
cooperating state agencies of this statutory change.  See U.S. Dep't
of Labor General Administration Letter No. 4-82, at 11 (Nov. 13,
1981).

   2. On August 20, 1981 -- one week after passage of OBRA --
petitioners filed this action challenging the interpretation of the
Trade Act expressed by the Secretary in the 1975 handbook.  Alleging
that cooperating state agencies in California, Michigan, and Delaware
had erroneously denied TRA benefits to the named individual plaintiffs
in reliance on the handbook, /4/ the individual plaintiffs and the
Union, suing on behalf of its members, contended that the handbook
provision constituted an incorrect interpretation of Section 231 of
the Trade Act, 19 U.S.C. (1976 ed.) 2291, and, to the extent it
related to military leave, violated the Veterans' Employment and
Readjustment Act of 1972, 38 U.S.C. 2013, and the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 2021, 2024.
As relief, petitioners sought a declaration that the handbook
interpretation "violates" these statutes and an injunction "requiring
the Secretary of Labor * * * (t)o notify all coopearting state
agencies" that the handbook is invalid and "(t)o direct all
cooperating state agencies to review all cases in which TRA has been
denied, to notify all workers denied benefits in accordance with (the
handbook) that they may now be entitled to benefits, and to reprocess
said cases in accordance with (the correct interpretation of the Trade
Act)" (J.A. 19-20).

   On cross-motions to dismiss the complaint and for summary judgment,
the district court concluded that, with respect to pre-OBRA benefit
claims (see Pet. App. A12-A13), the handbook provision was
inconsistent with Section 231 of the Trade Act and the 1972 veterans'
statute (Pet. App. A10-A29).  /5/ Based on that conclusion, the court
ordered (id. at A28-A29) the Secretary to "(n)otify all cooperating
state agencies" of the court's interpretation of the Trade Act and to
direct all cooperating state agencies to:

      (1) review all cases in which TRA benefits were denied * * *
      prior to October 1, 1981, in order to identify those cases in
      which benefits were denied * * * (because of the handbook
      provision,) (2) notify claimants in such cases that they may be
      entitled to benefits, and (3) reprocess such cases.

   The government sought a stay pending appeal on the ground that the
district court's order would require the review of approximately
220,000 case files and the reopening and redetermination of some
73,000 claims, at an expense of more than $200 million in benefit
payments and $14 million in administrative costs (J.A. 74, 76-78).
The district court granted the requested stay (Pet. App. A30-A31).

   3. Without reaching the merits, the court of appeals reversed (Pet.
App. A1-A9).  Initially, the court found that the Union was neither
suing in its own right based on an injury to itself nor a proper
representative of TRA claimants who were not its members (id. at A5).
With respect to those claimants who were union members, the court held
that under Warth v. Seldin, 422 U.S. 490 (1975), the Union did not
have standing as a plaintiff to represent them because "(t)he object"
of this suit, although framed in terms of declaratory and injunctive
relief, was in actuality "to obtain judicial review of the thousands
of old administrative claims (denying TRA benefits)" (Pet. App. A6).
The court also concluded that this defect in the Union's standing
could not be cured by a "post-judgment class certification" (id. at
A4), explaining that Fed. R. Civ. P. 23 requires a class to be
certified at "an early stage in the proceedings" (Pet. App. A4) and
that it would be "unfair" to allow certification "after a favorable
judgment, when an unfavorable judgment would not have been binding
upon one who now wishes to embrace the benefits of the judgment" (id.
at A5).  Finally, although assuming for purposes of decision that
federal jurisdiction was proper (id. at A7-A8), the court held that
the individual plaintiffs could not proceed in this action because
they had not joined as party-defendants the cooperating state agencies
that had denied their claims (id. at A6-A9).

   Judge Wright dissented, noting that he would affirm for the reasons
stated by the district court (Pet. App. A9).

                          SUMMARY OF ARGUMENT

   1. Under the existing standard for representative standing, an
organization can sue on behalf of its members only if the members
themselves could bring suit in federal court, if the interests
asserted in the litigation are germane to the purpose of the
organization, and if the participation of the individual members in
the lawsuit is not necessary.  See Hunt v. Washington Apple
Advertising Comm'n, 432 U.S. 333, 343 (1977);  Warth v. Seldin, 422
U.S. 490, 511, 515 (1975).  This standard is not satisfied in the
present case.

   a. As the Union now concedes, it cannot bring suit on behalf of TRA
claimants who are not its members.  Nor, as the Union further
concedes, could it bring suit on behalf of its members whose claims
were previously denied in state court proceedings and thus are
foreclosed by principles of res judicata.

   In addition, the Trade Act provides that TRA benefit claims are to
be determined pursuant to state administrative and judicial
procedures.  See 19 U.S.C. (1976 ed.) 2311(d).  Under this provision,
an individual whose benefit claim was denied in an administrative
decision that had become final could not bring suit in federal court.
To permit such an action would substitute the federal judiciary for
the state system expressly adopted by Congress and would amount to a
federal collateral attack to obtain the reopening of a closed state
denial.

   Likewise, an individual who had a live claim that could be pursued
in a state forum should not be allowed to circumvent that process by
filing a federal lawsuit;  because of his failure to avail himself of
an available state procedure, the claimant is not entitled to seek
relief from a federal court.  Moreover, such a claimant might have
been awarded TRA benefits, notwithstanding the Secretary's
construction of the Trade Act, if he had exhausted his state remedies;
 alternatively, he might have been found to be ineligible for reasons
entirely unrelated to that construction.  In either event, such a
claimant would have suffered no injury as a result of the Secretary's
challenged interpretation.

   b. Even if an action could be brought for prospective relief by
individual union members whose claims had not been finally resolved in
state proceedings, that would not justify this primarily retrospective
suit.  At the time the complaint in this case was filed, the 1975
handbook provision had been superseded by the OBRA amendment to the
Trade Act and thus applied only to claims for pre-OBRA periods.
Furthermore, the vast majority of those claims had already been denied
and become final, and petitioners specifically sought retroactive
relief requiring the reopening and redetermination of the closed
claims.

   In these circumstances, petitioners could not properly invoke the
authority of the federal courts to seek such a retrospective ruling.
There was no occasion for a prospective interpretation of the pre-OBRA
statute with respect to the claims that previously had been denied.
In addition, individual TRA benefit claims cannot be heard in federal
court but must be resolved in the state system.  Accordingly, this
suit is simply an effort to obtain a federal judicial ruling to be
used as the basis for a state claim that could not be brought directly
in federal court.  Such an attempt to split a TRA cause of action, and
to seek a federal adjudication of one part of that claim in order to
lay the predicate for a state proceeding, is an inappropriate ground
for a federal lawsuit.  See Green v. Mansour, No. 84-6270 (Dec. 3,
1985).

   c. Even if individual union members could have brought this suit,
the Union did not have representative standing to sue on their behalf.

   First, assuming that retrospective relief could ever be ordered to
require the reopening and reprocessing of a previously denied
individual benefit claim, the propriety of that relief would depend
upon the circumstances of the particular claim.  Among the relevant
considerations would be such factors as whether the denial became
final at the administrative or judicial stage;  whether further review
could have been sought in the state system and, if so, the reasons
that it was not;  whether the basis for the requested reopening could
have been presented in connection with the original claim or only
arose thereafter;  whether the claimant had been diligent in seeking
reopening, including the period of time that the denial had been
final;  and whether the reopening and redetermination of closed claims
would prove burdensome for the government.  Because the availability
of this relief "would require individualized proof" (Warth, 422 U.S.
at 515-516) and necessitate "the participation of individual members
in the lawsuit" (Hunt, 432 U.S. at 343), the Union could not sue as
the representative of its members.

   Second, the interest of union members in government benefits under
the TRA program is not sufficiently germane to the purpose of the
Union to enable it to bring suit on their behalf.  The purpose of a
union is to facilitate joint employee activities in labor matters and
to serve as the exclusive collective bargaining agent with the
employer.  An individual member's eligibility for benefits under the
TRA statute is unrelated to those functions.

   d. Post-judgment class certification is not appropriate under Fed.
R. Civ. P. 23 and could not be used here to remedy the Union's lack of
standing.  Rule 23(c)(1) requires that the issue of class
certification be decided at an early stage of the proceeding.
Moreover, approval of a class is especially inappropriate once the
court has passed on the merits of the case;  such untimely
certification is tantamount to the "one-way intervention" that Rule 23
was specifically intended to prohibit.  And post-judgment
certification comes too late to permit the litigation to be conducted
in conformity with the provisions of Rule 23, which are designed both
to protect the interests of absent class members and to ensure the
binding effect of the judgment.

   2. For these reasons, under existing law the Union lacked
representative standing to sue on behalf of its members.
Alternatively, we submit that the Court should reconsider the doctrine
of representative standing in light of general standing principles and
the class action provisions of Fed. R. Civ. P. 23.  Such an analysis
demonstrates that an organization does not have standing to sue based
on the rights of its members;  instead, an action seeking the
collective adjudication of the members' rights should be brought
pursuant to Rule 23.

   The fundamental principle of standing is well established:  a
plaintiff in federal court must allege a personal injury to himself
and cannot sue on the basis of injury to third parties.  The doctrine
of representative standing, which permits an organization that has
suffered no injury of its own to sue solely because of the injuries of
its members, is a singular exception to that principle.

   Moreover, in view of Fed. R. Civ. P. 23, there is no justification
for the anomalous doctrine of representative standing.  Both Rule 23
and representative standing are designed to accomplish the same
objective:  the efficient resolutoin of legal questions common to
third parties in a manner that fairly and adequately protects their
interests.  In contrast to the minimal standard governing
representative standing, Rule 23 specifically addresses the factors
necessary to ensure that the absent members are properly represented
and that the judgment will be binding on all concerned;  most
importantly, it focuses directly on the adequacy of the representation
afforded by the named plaintiff.  The safeguards contained in Rule 23
reflect the considered judgment of the legal community concerning the
desired procedures for determining the rights of absent third parties.
 These safeguards are equally applicable to the problems that arise in
associational suits and are better designed than the doctrine of
representative standing to achieve the salutary end of a fair and
efficient judicial system.

   3. If any of the petitioners could bring this suit, joinder of the
state agencies was necessary in light of the request for retrospective
relief requiring the reopening and reprocessing of individual benefit
claims that the agencies had previously denied.  While the state
agencies act as the "agent" of the Secretary in the TRA program, the
Secretary does not, as in the usual principal-agent relationship, have
absolute legal control over the state agency.  Thus, the district
court's retrospective relief, which is directed solely to the
Secretary due to the absence of the state agencies, may not be
effective.

   In addition, as discussed above, such retrospective relief, if
available at all, would turn on the circumstances of the claimant's
individual case.  The state agency that processed the claim, not the
Secretary, possesses the information relevant to that issue.
Likewise, although the Secretary would ultimately provide
reimbursement for the cost of reprocessing the previously denied
claims, the state agencies would bear the onus of implementing the
district court's order in the first instance, and that burden would
affect their ongoing operations and responsibilities.  Finally, the
presence of the state agencies would be necessary for the court to
monitor and enforce compliance with its order to identify and
reprocess the individual benefit claims.

                               ARGUMENT

           PETITIONERS COULD NOT PROPERLY MAINTAIN THIS SUIT

   For several independent reasons, petitioners could not properly
maintain this suit, and thus the complaint must be dismissed.  First,
the individual union members, including the named individual
plaintiffs, did not have standing to sue either because they had
suffered no injury from the challenged interpretation of the Trade Act
or because they were precluded on various procedural grounds from
initiating the action.  In addition, this suit, which contests the
validity of an administrative provision that Congress had
prospectively superseded and seeks a retrospective federal judgment to
support state claims that could not be brought directly in federal
court, constitutes an inappropriate invocation of federal judicial
authority and should not be permitted.

   Because the individual union members were not entitled to bring
suit themselves, the Union could not do so on their behalf.  Beyond
that, under existing principles, the Union did not have representative
standing to sue to obtain retrospective relief requiring the reopening
and reprocessing of individual benefit claims that had previously been
denied and become final.  Nor could the Union correct its lack of
standing by requesting post-judgment certification of a class action
under Fed. R. Civ. P. 23.

   Alternatively, with respect to the issue of the Union's standing,
this case provides the Court an opportunity to reconsider the doctrine
of representative standing and to harmonize that doctrine with general
principles of standing and with the class action provisions of Rule
23.  Under this analysis as well, the Union would not have standing to
sue on behalf of individual claimants.

   Finally, if any of the petitioners could bring this suit, joinder
of the state agencies was necessary in view of the nature of the
injunction petitioners requested.  Absent the responsible state
agencies, petitioners could not seek the reopening and reprocessing of
individual benefit claims that had been finally denied by those
agencies.  /6/

 I. IN THE CIRCUMSTANCES OF THIS CASE, PETITIONERS LACKED STANDING TO
SUE AND COULD NOT PROPERLY INVOKE THE AUTHORITY OF THE FEDERAL COURTS

   As the court of appeals recognized (Pet. App. A5), the Union does
not contend that it has standing to sue in its own right based on an
alleged injury to itself.  Rather, the Union's claim of standing is
entirely derivative of the standing of the individual TRA applicants
whom it seeks to represent in this action.

   Moreover, the court of appeals also recognized that the Union "is
not an appropriate representative of those TRA claimants who were not
its members" (Pet. App. A5).  /7/ The Union concedes as much in its
brief in this Court, stating that it is suing "on behalf of its
affected members" (Pet. Br. 12) and that it "has standing to represent
its members' interests" (id. at 19).  /8/

   Petitioners' principal contention is that the Union was entitled to
sue, on behalf of its members, to challenge the Secretary's
interpretation of the Trade Act prior to the OBRA amendment and to
seek the reopening and reprocessing of claims that had been denied by
the cooperating state agencies under the Secretary's interpretation.
Petitioners rely on Warth v. Seldin, 422 U.S. 490 (1975), and in
particular on Hunt v. Washington Apple Advertising Comm'n, 432 U.S.
333 (1977), for the existing standards for determining whether an
association that has not suffered injury to itself will be permitted
to bring suit on behalf of its members.  As stated in Hunt, "an
association has standing to bring suit on behalf of its members when:
(a) its members would otherwise have standing to sue in their own
right;  (b) the interests it seeks to protect are germane to the
organization's purpose;  and (c) neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit." 432 U.S. at 343 (emphasis added).  Because the Union is
not able to satisfy any of these requirements, it does not have
standing to bring this action and therefore the case should be
dismissed.  /9/

 A. Under Existing Principles, Neither The Union Nor Its Individual
Members Could Bring This Action

 1. No Individual Union Member Would Have Standing To Bring This
Action

   Under existing law, the first and most important condition that
must be satisfied by an association seeking to sue on behalf of its
members is that the members have standing to bring suit in their own
right.  As the Court has explained, "standing imports justiciability:
whether the plaintiff has made out a 'case or controversy' between
himself and the defendant." Warth, 422 U.S. at 498.  "The standing
question thus bears close affinity to questions of ripeness -- whether
the harm asserted has matured sufficiently to warrant judicial
intervention -- and of mootness -- whether the occasion for judicial
intervention persists" (id. at 499 n.10).  Accordingly, an
organization may sue on behalf of its members only if they "are
suffering immediate or threatened injury as a result of the challenged
action of the sort that would make out a justiciable case had the
members themselves brought suit" (id. at 511).  See also Allee v.
Medrano, 416 U.S. 802, 830-831 (1974) (Burger, C.J., concurring in the
result in part and dissenting in part);  13 C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure:  Jurisdiction Section 3531.9,
at 623 (1984) (hereinafter cited as Wright, Miller, & Cooper).

   The initial question, therefore, is whether the individual union
members could have brought suit in this case.  In order to analyze
their standing to sue as potential plaintiffs, the union members can
be divided into several categories.  As we now discuss, none of these
categories had standing.  /10/

   The first category of potential plaintiffs consists of TRA
claimants who have been awarded benefits and whose cases have been
finally resolved in their favor on judicial review.  /11/ Plainly,
these claimants have not been injured by the challenged interpretation
of the Trade Act, and therefore they lack standing to litigate the
issue.

   In addition, claimants who have been denied benefits in final state
judicial decisions are not entitled to bring this action.  /12/ These
judicial decisions are conclusive as to the claims of such individuals
and cannot be reopened on the asserted ground that they were based on
a legal error.  See Federated Dep't Stores, Inc. v. Moitie, 452 U.S.
394 (1981);  Powell v. Ward, 643 F.2d 924, 933-934 (2d Cir.), cert.
denied, 454 U.S. 832 (1981);  Restatement (Second) of Judgments
Section 42(2) & comment g (1982);  see also Migra v. Warren City
School Dist., 465 U.S. 75, 84 (1984);  Kremer v. Chemical Constr.
Corp., 456 U.S. 461 (1982).  In their reply brief at the petition
stage (at 3 n.5), petitioners expressly concede that any such claim is
barred by the prior judgment, and therefore these claimants have no
stake in the outcome of the lawsuit that would confer standing on
them.  /13/

   The third category of potential plaintiffs comprises those union
members who were granted TRA benefits in the state administrative
process and whose awards either had not been appealed by the state or
were pending on judicial review in state court.  /14/ Once again,
these successful claimants have not been injured by the challenged
interpretation of the Trade Act and thus lack standing to sue.
Moreover, Congress specifically provided in the Trade Act that "(a)
determination by a cooperating State agency with respect to
entitlement to program benefits * * * is subject to review in the same
manner and to the same extent as determinations under the applicable
State (unemployment insurance) law and only in that manner and to that
extent" (19 U.S.C. (1976 ed.) 2311 (d));  it would be contrary to
Congress's incorporation of the state system into the administration
of the Trade Act, and an affront to the integrity and authority of the
state courts, to allow claimants whose cases were under state judicial
review to pretermit that process by proceeding in federal court.  Cf.
Middlesex Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,
431-432 (1982);  Trainor v. Hernandez, 431 U.S. 434, 443-446 (1977);
Huffman v. Pursue, Ltd., 420 U.S. 592, 605-611 (1975).  /15/

   For this same reason, suit could not be brought by an individual
union member whose TRA benefit claim had been administratively denied
and who was seeking judicial review of that decision in state court;
such a claimant is not entitled to commence a federal action in order
to short-circuit the state procedure adopted by Congress for judicial
review.  Likewise, a claimant who did not seek state judicial review
of an administrative denial cannot bring suit in federal court in lieu
of that state court proceeding.  Cf. Heckler v. Lopez, 464 U.S. 879,
881 (1983) (Stevens, J., dissenting in part).  /16/ By failing to
pursue the available right of state judicial review, these claimants
permitted the administrative denials to become final.  For all that
appears, they simply abandoned their claims for benefits, perhaps
because they were convinced of the correctness of the Secretary's
interpretation of the Act or concluded that the matter did not warrant
the additional time and expense of further litigation.  Whatever the
reason, such final administrative decisions cannot be reopened and
collaterally attacked in a subsequent federal action.  Cf. United
States v. Utah Constr. Co., 384 U.S. 394, 418-422 (1966).

   Another category of potential plaintiffs includes union members
whose claims were pending in the state administrative process.  Since
they had not been denied benefits, such individuals suffered no injury
as a result of the challenged interpretation of the Trade Act and
consequently cannot be heard to complain;  indeed, applicants with
pending administrative claims might be determined either to be
eligible for benefits notwithstanding the Secretary's interpretation
(see pages 15-16 not 14, supra) or to be ineligible on grounds
independent of that interpretation.  Nor may claimants circumvent the
required administrative process by filing suit in court.  Cf. Heckler
v. Ringer, No. 82-1772 (May 14, 1984), slip op. 18;  Weinberger v.
Salfi, 422 U.S. 749, 762, 764 (1975);  Heckler v. Lopez, 463 U.S.
1328, 1334-1335 (Rehnquist, Circuit Justice), subsequent order, 464
U.S. 879 (1983).

   The same conclusion is also applicable to the final category of
potential plaintiffs -- union members who had not submitted a claim
for TRA benefits at all.  Cf. Lloyd v. United States Dep't of Labor,
637 F.2d 1267, 1272 (9th Cir. 1980).  As above, one who has not even
applied for benefits -- and who, if benefits were to be sought, might
be found eligible despite the Secretary's interpretation or found
ineligible for valid and unrelated reasons -- has neither been injured
by the challenged interpretation nor exhausted his administrative
remedies.  Cf. Heckler v. Ringer, slip op. 17-18;  Weinberger v.
Salfi, 422 U.S. at 764;  Heckler v. Lopez, 463 U.S. at 1335
(Rehnquist, Circuit Justice).  Unless the disputed eligibility
requirement has been invoked to deny his claim, a person is not
entitled to sue in federal court to obtain a ruling on the validity of
that requirement.  Cf. Iron Arrow Honor Society v. Heckler, 464 U.S.
67, 71 & n.1 (1983);  Steffel v. Thompson, 415 U.S. 452, 459 (1974);
Longshoremen's Union v. Boyd, 347 U.S. 222 (1954).

 2. Even If A Union Member Had Standing To Sue In Federal Court For
Prospective Relief, Petitioners Could Not Sue For Retrospective Relief
To Support A Claim In A State Proceeding

   We have shown above that no union member would have standing to
bring suit in federal court to challenge the Secretary's
interpretation of the Trade Act.  But even if the Court finds that a
union member whose claim for benefits had not yet been denied could
sue for prospective relief, that would not justify the broad
retroactive relief that the Union seeks in this suit.  The Union
cannot invoke the authority of the federal judiciary to obtain a
restrospective construction of a superseded provision of the Trade Act
in order to support a state TRA benefit claim that could not be
brought directly in federal court.

   As explained above (see pages 3-4, supra), when the complaint in
this case was filed, the OBRA amendment to the Trade Act had been
signed into law.  Similarly, when the case was litigated and the
district court's decision issued, that amendment had taken effect.
Thus, by the time judgment was rendered by the district court, the
Secretary's interpretation of the Act in the 1975 handbook challenged
by petitioners had been superseded and was applicable only to claims
for pre-OBRA periods.

   Not only would the OBRA amendment rather than the 1975 handbook
govern future benefit periods, but petitioners specifically sought,
and the district court granted, retrospective relief that requires the
reopening and reprocessing of all benefit claims that had previously
been denied on the basis of the 1975 handbook provision.  See pages
4-5, supra.  As the court of appeals recognized (Pet. App. A4),
"(t)here was no exception (in the district court's order) for the
cases that are no longer subject to review under applicable state
law." To require the redetermination of individual claims in which the
denial of benefits had already become final is retroactive relief of
the clearest sort.  While, as petitioners note, a small number of
pre-OBRA claims had not yet been decided, the predominant character of
the district court's relief was not prospective but retrospective.
/17/

   Accordingly, rather than being a typical proceeding to obtain a
prospective ruling to ensure that federal officials comply with
federal law in their ongoing administration of the TRA program, this
suit is primarily an effort to secure a retrospective judgment
governing the resolution of claims that had accrued under a superseded
statute for prior periods of unemployment, including those that had
previously been rejected in decisions that had already become final.
In these circumstances, the court of appeals correctly concluded (Pet.
App. A6, A7) that, although petitioners "sought only declaratory and
injunctive relief(, t)he object * * * was to obtain judicial review of
the thousands of old administrative claims.  * * * (T)he whole purpose
of the litigation was to obtain a declaratory judgment that the state
agencies had misinterpreted the statute and a mandatory injunction
requiring the Secretary to direct the state agencies to mend their
ways and award benefits * * *." This was an improper invocation of
federal judicial authority.

   In Green v. Mansour, No. 84-6270 (Dec. 3, 1985), this Court
recently held that "applicable principles governing the issuance of
declaratory judgments forbid" (slip op. 1) a federal court from
awarding relief if the purpose of the litigation is to establish the
predicate for a subsequent suit in state court on a claim that the
federal court cannot itself adjudicate.  In Green, plaintiffs brought
an action in federal court to challenge the state's calculation of
AFDC benefits.  While the suit was pending, Congress amended the
federal AFDC statute to authorize the state's method of computation,
thus mooting plaintiffs' request for prospective relief.
Nevertheless, plaintiffs continued to seek a declaratory judgment that
the state violated federal law in the past, which they intended to
"offer() in state court proceedings as res judicata on the issue of
liability * * * (in a suit for) damages or restitution" (slip op. 9).
This Court held that, because such monetary relief against the state
could not be awarded in federal court under the Eleventh Amendment, a
federal court equally could not enter a declaratory judgment whose
only purpose was to support plaintiffs' monetary claim in a state
court suit.  Noting that "the issuance of a declaratory judgment in
these circumstances would have much the same effect as a full-fledged
award of damages or restitution by the federal court," the Court
explained that "a declaratory judgment is not available when the
result would be a partial 'end run' around (the limitations on federal
judicial authority)" (ibid.).  Rather, "a declaratory judgment that
(the state) violated federal law in the past would have to stand on
its own feet as an appropriate exercise of federal jurisdiction" (id.
at 10).  See also New York City Health & Hospitals Corp. v. Blum, 708
F.2d 880, 885 n.4 (2d Cir. 1983);  Hospital Ass'n of New York State,
Inc. v. Toia, 577 F.2d 790, 798 (2d Cir. 1978).

   The principle of Green is controlling here.  As in Green, the OBRA
amendment to the Trade Act rendered unnecessary a prospective judicial
interpretation of the eligibility requirements in the pre-OBRA statute
except, possibly, as to a small number of yet undecided claims (see
page 19 note 17, supra).  In addition, under the Trade Act, an award
of individual TRA benefits cannot be obtained in federal court but
must be pursued through the state system.  See 19 U.S.C. (1976 ed.)
2311(a), (d).  Accordingly, this suit, like Green, is an impermissible
attempt to gain a federal judicial ruling to serve as the predicate
for a state claim that could not be brought directly in federal court.
 In essence, petitioners seek to split a TRA benefit claim into two
parts and have a federal court resolve one of them, thereby "lift(ing)
the case out of the state (process) before the state agency or court
can hear it" (Green, slip op. 8).  Cf. Heckler v. Ringer, slip op. 12.
 This is an inappropriate exercise of federal judicial power (see
Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 246-247 (1952)) and
fails to give due regard to the state agency and courts, which are
fully able to rule on petitioners' contention and "bound equally with
the federal courts by * * * (federal) laws" (id. at 247-248).  Cf.
Trainor v. Hernandez, 431 U.S. at 446;  Huffman v. Pursue, Ltd., 420
U.S. at 604, 608-609.  /18/

   Petitioners seek to avoid this analysis by arguing (Pet. Br. 7 n.9)
that the district court's order is prospective because it applies to
benefit claims arising under the pre-OBRA Trade Act -- that is, claims
for weeks of unemployment prior to September 30, 1981 (see page 4,
supra) -- that were either pending or had not yet been filed.  /19/
However, we have assumed arguendo for purposes of the present
discussion that an action solely for prospective relief as to the few
remaining pre-OBRA claims could be maintained.  Our point here is that
the fundamentally retrospective character of this litigation is not
altered by the existence of some claims under the pre-OBRA statute
that had not yet been determined.  Indeed, petitioners were not
satisfied with a judicial declaration of the meaning of the pre-OBRA
statute, which of its own force would have applied to claims that were
still in process or subsequently submitted (see Bradley v. Richmond
School Board, 416 U.S. 696, 711-716 (1974));  instead, they
specifically requested and received retroactive injunctive relief.
Even now, the Union acknowledges (Pet. Br. 32) that "this litigation
(was designed) to redress the denial of TRA benefits to (union)
members by seeking such relief (to reopen benefit claims previously
denied)."

   Thus, even if this suit was properly brought and adjudicated with
respect to pre-OBRA claims that had not yet been resolved, it could
not encompass claims that had been resolved.  No union member could
have sued to reopen closed claims because those denials were final and
hence not the appropriate subject of a prospective judicial decree
regarding the future application of the pre-OBRA eligibility
requirements;  likewise, they could not be considered by a federal
court merely in order to lay a predicate for a state proceeding.
Accordingly, under Green, these previously denied claims were not
properly presented in this action.  That defect is not cured, and the
principle underlying Green may not be circumvented, by the simple
expedient of joining such previously denied claims with others that
are "prospective" and therefore, arguendo, support the exercise of
federal judicial power.  It would be legally inappropriate, and truly
a case of the tail wagging the dog, for the relative handful of
unresolved claims to justify the otherwise improper adjudication of
the much larger number of previously denied claims.

 3. The Union Did Not Have Representative Standing To Sue Because It
Sought Retrospective Relief That Requires Participation Of Individual
Union Members And The Suit Is Not Germane To The Organization's
Purpose

   Even if suit for retrospective relief could be brought by
individual union members whose benefit claims had previously been
denied, the Union would not have standing to sue on their behalf.  As
set forth above, under existing law representative standing requires
not only that the organization's members themselves be able to sue,
but also that "neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit" and
that "the interests (the organization) seeks to protect (must be)
germane to the organization's purpose." Hunt, 432 U.S. at 343.  See
also Warth, 422 U.S. at 511. Assuming that the first of these
conditions is met here (but see pages 13-23, supra), the Union
nonetheless lacked representative standing.

   As this Court has explained, "whether an association has standing
to invoke the court's remedial powers on behalf of its members depends
in substantial measure on the nature of the relief sought." Warth, 422
U.S. at 515.  An association can be an appropriate representative of
its members "in a proper case (in which) the association seeks * * *
prospective relief" (ibid.).  "Indeed, in all cases in which * * *
(the Court has) expressly recognized standing in associations to
represent their members, the relief sought has been of this kind"
(ibid.).

   Under this prong of the standing test, the court of appeals
concluded that the Union does not have standing to represent its
members in seeking retrospective relief requiring the reopening and
reprocessing of individual benefit claims that were previously denied.
 This is not "the type of relief that an association c(an) properly
pursue on behalf of its members." Hunt, 432 U.S. at 343.  Rather, like
the damages remedy in Warth (422 U.S. at 515-516), it does not support
representative standing.

   The relief in this case specifically required the reconsideration
of claims that had been conclusively rejected in state proceedings and
had become final.  In its nature, this relief is retrospective and
necessarily relates to the benefit determination for each individual
claimant.  As the court below explained (Pet. App. A6), petitioners'
"object * * * was to obtain judicial review of the thousands of old
administrative claims(, and t)he relief requested was in no sense
prospective * * *." Thus, in contrast to other cases in which the
Court has upheld representative standing, the relief in this case is
not prospective and is not divorced from prior individual
adjudications.

   Moreover, because such relief "would require individualized proof"
(Warth, 422 U.S. at 515-516), the presence of the individual claimants
was needed.  As previously discussed (see pages 15-17, supra), we do
not believe that such retrospective relief to reopen closed benefit
claims would ever be appropriate.  But at the least, this relief, if
available at all, ought not be granted on a categorical basis and
instead should turn on the circumstances of the particular claim.  Cf.
Califano v. Yamasaki, 442 U.S. 682, 696-697 (1979);  Klaips v.
Bergland, 715 F.2d 477 (10th Cir. 1983).  /20/ Included among the
relevant considerations would be such factors as the stage at which
the denial of the benefit claim became final (for example, whether the
denial was entered in a judicial or an administrative proceeding, see
page 15, supra;  cf. Kremer v. Chemical Constr. Corp., 456 U.S. at
477-478);  whether a failure to seek judicial review of an
administrative deniel reflected a deliberate choice by the claimant or
resulted from inadvertence, oversight, or mistake;  whether the
claimant is relying on newly discovered evidence or advances some
other ground that could not have been presented at the time of the
original claim;  /21/ the length of time that the denial had been
final and the diligence with which reopening was sought;  and the
difficulties that the government would face and the burdens that would
be imposed in reprocessing the claim, and those of other claimants
similarly situated, in light of the delay involved.  /22/ Manifestly,
these issues cannot be adequately resolved in the absence of the
affected individual, and the Union is not an appropriate
representative plaintiff to seek this relief.  /23/

   It is also far from clear that the individual member's interest in
TRA benefits is sufficiently germane to the Union's purpose that the
Union is a proper representative under Warth and Hunt.  See
International Union v. Johnson, 674 F.2d 1195, 1199-1200 (7th Cir.
1982).  A union, after all, is organized to facilitate joint employee
activity in labor matters and to serve as the exclusive collective
bargaining representative of workers in the bargaining unit;  it is
not an ombudsman for the economic interests of its members in
government benefit programs.  /24/ Nor is the Union's asserted
"long-term dedication" (Pet. Br. 9) and "demonstrated commitment" (id.
at 15) to its members' economic security a sufficient ground to
establish representative standing.  See Simon v. Eastern Kentucky
Welfare Rights Org. (EKWRO), 426 U.S. 26, 39-40 (1976);  Sierra Club
v. Morton, 405 U.S. 727, 736, 738-740 (1972);  see also Valley Forge
College v. Americans United, 454 U.S. 464, 476 n.14, 486-487 (1982).

   The Union also relies (Pet. Br. 15) on the provisions in the Trade
Act that allow a union to petition the Secretary to certify that a
group of workers has been adversely affected by foreign competition,
thus enabling those workers to apply for TRA benefits.  See 19 U.S.C.
(1976) ed.) 2271(a), 2272.  However, there is no comparable provision
authorizing union participation with respect to an individual worker's
claim for benefits.  Moreover, because the group certification depends
on overall conditions in the workers' firm and the effect of foreign
competition on those workers as a class (see 19 U.S.C. (1976 ed.)
2272), it is sensible for Congress to have permitted a union -- which
generally should be well able to provide such aggregate information --
play a role in that process.  By contrast, that rationale has no
bearing on a benefit claim by an individual in a certified group,
since the worker's eligibility is solely a function of his particular
circumstances.  See 19 U.S.C. (1976 ed.) 2291.  Thus, a union's
authorized function in the group certification process does not
establish or contribute to its standing to represent individual union
members in connection with their claims for TRA benefits.  In fact,
the statute's explicit provision for union involvement at the
certification stage, and its equally clear provision that benefit
claims be reviewed individually through state administrative and
judicial processes, suggests that Congress did not intend that unions
play a role at the benefit determination stage.  Cf. Block v.
Community Nutrition Institute, No. 83-458 (June 4, 1984), slip op. 6;
United States v. Erika, Inc., 456 U.S. 201, 208 (1982).

 4. Post-Judgment Certification Of A Class Action Is Not Appropriate
And Cannot Be Used To Remedy The Union's Lack Of Standing

   Petitioners contend that if the Union did not have representative
standing, the court of appeals should have remanded the case to allow
them to seek certification of a class under Fed. R. Civ. P. 23.
However, as discussed above, the individual union members also lacked
standing and the authority of the federal courts was not properly
invoked to obtain the relief sought in this case.  These barriers
could not be surmounted by petitioners' request for class
certification.

   In any event, even with respect to the issue of the Union's
representative standing, post-judgment class certification would be
inappropriate.  Fed. R. Civ. P. 23(c)(1) specifically provides that
"(a)s soon as practicable after the commencement of an action brought
as a class action, the court shall determine by order whether it is to
be so maintained." As the court of appeals correctly understood (Pet.
App. A4), Rule 23 "requires action on the question of class
certification in an early stage in the proceedings." See also Swisher
v. Brady, 438 U.S. 204, 214 n.11 (1978);  Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 178 (1974);  American Pipe & Constr. Co. v.
Utah, 414 U.S. 538, 552 (1974).  And of course this provision of Rule
23, like the other requirements of the Rule, must be "carefully
appl(ied)" and "rigorous(ly)" observed.  General Telephone Co. v.
Falcon, 457 U.S. 147, 160, 161 (1982).  See also East Texas Motor
Freight v. Rodriguez, 431 U.S. 395, 405 (1977);  Eisen, 417 U.S. at
176.  Absent the timely certification of a class, a plaintiff has no
right to proceed on a class basis.  See Baxter v. Palmigiano, 425 U.S.
308, 310 n.1 (1976);  Board of School Comm'rs v. Jacobs, 420 U.S. 128,
129-130 (1975).

   Belated certification of a class is especially inappropriate after
judgment on the merits has been entered in favor of the party seeking
class treatment.  In that situation, class certification would be
tantamount to the improper "one-way intervention" that Rule 23 was
specifically intended to prevent.  See 1966 Advisory Committee Note to
Amended Rule 23(c)(3);  American Pipe, 414 U.S. at 547.  As explained
in Alexander v. Trustees of Boston University, 766 F.2d 630 (1st Cir.
1985), in which the district court held a class action motion to be
untimely because the court had previously granted a preliminary
injunction based on the plaintiffs' likelihood of success on the
merits, "'(a)llowing plaintiffs first to see whether they can obtain a
favorable ruling and only after so doing then to expand their
complaint into one seeking relief on behalf of a nationwide class is
unfair to defendants and contrary to the spirit of the federal rules'"
(766 F.2d at 636 (quoting district court)).  See also Phillips
Petroleum Co. v. Shutts, No. 84-233 (June 26, 1985), slip op. 7
("(w)hether it wins or loses on the merits, (a defendant) has a
distinct and personal interest in seeing the entire plaintiffs class
bound by res judicata just as (the defendant) is bound").  To prevent
this unfairness, Rule 23(c)(1) was designed "to assure that members of
the class would be identified before trial on the merits" (American
Pipe, 414 U.S. at 547).  /25/

   Arguing that this case could be certified as a class action under
Fed. R. Civ. P. 23(b)(2), petitioners contend that post-judgment class
certification is permissible for a (b)(2) class.  However, we doubt
that this case would qualify as a (b)(2) class.  Rule 23(b)(2)
provides that a class action may be maintained under that provision if
(in addition to the requirements of Rule 23(a)) "the party opposing
the class has acted or refused to act on grounds generally applicable
to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole"
(emphasis added).  As the Rule makes clear, both of its conditions --
challenged action generally applicable to the class and appropriate
final relief for the overall class -- must be met in order for a
(b)(2) class to be certified.  See 3B J. Moore & J. Kennedy, Moore's
Federal Practice Paragraph 23.40(2), at 23-290 (2d ed. 1985).  Here,
however, as we have previously discussed (see pages 25-26, supra),
retrospective relief regarding the reopening and reprocessing of
previously denied individual benefit claims, if available at all,
would depend on the particular circumstances of each claimant.  Thus,
such relief would not be appropriate "with respect to the class as a
whole." See 7A C. Wright & A. Miller, Federal Practice and Procedure:
Civil Section 1775, at 22 (1972).

   In any event, even if this case might come within Rule 23(b)(2),
that would not justify post-judgment class certification.  First, Rule
23(c)(1) requires prompt certification of a class in all suits;  it
contains no exception for (b)(2) class actions.

   Second, there is no merit to petitioners' argument that
post-judgment certification here would not pose the problem of
"one-way intervention" because "the court of appeals has yet to decide
the merits" (Pet. Br. 34) and thus the district court's judgment in
petitioners' favor does not conclude the litigation.  The fact that
judgment on the merits has been entered only by the district court
does not distinguish this case from "one-way intervention," which also
generally arose after a ruling by the trial court.  See, e.g.,
American Pipe, 414 U.S. at 547.  Moreover, success in the trial court
is surely a material consideration in calculating the benefits and
risks of seeking inclusion in the judgment.  See also Alexander v.
Trustees of Boston University, supra (class motion untimely after
district court entered preliminary injunction).  As this Court
recognized in Eisen, 417 U.S. at 177-178, an inquiry into the merits
prior to the resolution of the class issue

      contravenes the Rule by allowing a representative plaintiff to
      secure the benefits of a class action without first satisfying
      the requirements for it.  He is thereby allowed to obtain a
      determination on the merits of the claims advanced on behalf of
      the class without any assurance that a class action may be
      maintained.  This procedure is directly contrary to the command
      of subdivision (c)(1) that the court determine whether a suit
      denominated a class action may be maintained as such "(a)s soon
      as practicable after the commencement of (the) action . . ."

   Third, petitioners further contend (Pet. Br. 33-34 & n.32;  see
also id. at 31) that its members would have been bound by an adverse
judgment against the Union in its representative capacity and
therefore that the problem of "one-way intervention" does not exist
here.  While we agree with petitioners' conclusion about the
preclusive effect of a judgment on the members of the representative
plaintiff (see pages 42-44, infra), /26/ this Court has never squarely
so held, /27/ and the question is not yet settled.  /28/ Moreover, the
binding effect of a judgment on absent members of the organization
depends upon the adequacy of the organization's representation and its
authority (implied or express) to proceed on their behalf, /29/ and
issues of res judicata and collateral estoppel can be determined only
by the court in which the judgment is later asserted against the
members, not in the court entering the original judgment.  /30/
Because of the risk that a judgment would be held not to bind an
organization's members, the unfairness of "one-way intervention" in
representative standing cases remains.

   Beyond that, the question of the preclusive effect of the judgment
is not, as petitioners assert (Pet. Br. 33), the only consideration
bearing on the propriety of post-judgment class certification.
Rather, the course of the litigation could have been quite different
in a variety of ways if the district court had complied with Rule 23.
For example, Rule 23(c)(3) requires the court to determine the
definition of the class and include in the judgment a description or
specification of its members.  Litigants and courts have substantial
latitude in framing the scope of a class action to be broad or narrow
(geographically and otherwise), and the definition of the class may be
influenced in a significant but often unprovable fashion if the
certification occurs after judgment rather than before.  Furthermore,
even in a (b)(2) class action in which notice to absent class members
is not mandatory, /31/ a court has discretion to require that notice
be given to class members in order to allow them to intervene (see
Fed. R. Civ. P. 23(d)(2)), and it may take other steps to conduct the
litigation in a manner that protects their interests (see Fed. R. Civ.
P. 23(d)(2), (3), and (4)).  Accordingly, it simply cannot be said
that a representative suit is no different from a properly certified
class action.  /32/

 B. At Least Absent Particularized Need, Representative Standing
Should Not Be Recognized And The Class Action Provisions Of Rule 23
Should Be Applied Instead

   For the reasons discussed above, the judgment of the court of
appeals dismissing this action should be affirmed.  In particular,
under existing principles of law, the Union did not have
representative standing to sue on behalf of its members.

   In the alternative, we submit that, at least absent a showing of
particularized need, an organization should not be allowed to bring
suit to assert the individual rights of its members.  Rather, cases
seeking the collective adjudication of members' rights should be
governed by the class action provisions of Fed. R. Civ. P. 23.

   We do not question, of course, the standing of an association to
sue on its own behalf for injury to itself.  See, e.g., Havens Realty
Corp. v. Coleman, 455 U.S. 363, 378-379 & n.19 (1982);  Arlington
Heights v. Metropolitan Housing Corp., 429 U.S. 252, 261-263 (1977);
Warth, 422 U.S. at 511.  Moreover, Congress may create rights that, if
violated, would establish sufficient injury to entitle the association
to sue in federal court.  See Gladstone Realtors v. Bellwood, 441 U.S.
91, 100 (1979);  Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3
(1973);  Sierra Club, 405 U.S. at 731-732.  Indeed, Congress did just
that in the sections of the Trade Act that give unions the right to
petition the Secretary of Labor for certification that a firm has been
adversely affected by imports and to seek review of an unfavorable
determination.  See page 2 & note 1, supra.  See also 29 U.S.C.
185(b), discussed in note 24, supra.  The arguments set forth below
address only situations where an association has no injury to itself
and sues solely to vindicate the rights of its members.

   The general rule is well settled that a plaintiff in federal court
must allege a personal injury to himself and cannot bring suit based
on injury to the rights of third parties.  See, e.g., Secretary of
State of Maryland v. Joseph H. Munson Co., No. 82-766 (June 26, 1984),
slip op. 6-8;  Valley Forge College, 454 U.S. at 472-474;  Arlington
Heights, 429 U.S. at 261-264;  Singleton v. Wulff, 428 U.S. 106,
112-114 (1976);  Warth, 422 U.S. at 498-501, 511;  Tileston v. Ullman,
318 U.S. 44 (1943).  /33/

   The doctrine of representative standing is a marked exception to
this rule.  It allows an organization that has suffered no injury of
its own to sue based solely on the injuries of its members.  See
Schweiker v. Gray Panthers, 453 U.S. 34, 40 n.8 (1981);  Hunt, 432
U.S. at 342-344;  Simon v. EKWRO, 426 U.S. at 40;  Warth, 422 U.S. at
511;  National Motor Freight Ass'n v. United States, 372 U.S. 246
(1963) (per curiam).  Such imputed or vicarious injury is insufficient
to satisfy the requirement of personal injury-in-fact.  Although the
Court has recognized that the injury requirement is applicable to
representative standing suits (see Warth, 422 U.S. at 511), the
attribution to the organization of the injury of its members is at
odds with general principles of standing.  See Burnham, Aspirational
and Existential Interests of Social Reform Organizations:  A New Role
for the Ideological Plaintiff, 20 Harv. C.R.-C.L. L. Rev. 153, 163
n.45 (1985);  Note, Associational Standing and Due Process:  The Need
for an Adequate Representation Scrutiny, 61 B.U. L. Rev. 174, 176
(1981);  see also 13 Wright, Miller, & Cooper, supra, Section 3531.9,
at 604.  /34/

   In addition, in light of the class action provisions of Fed. R.
Civ. P. 23, we see no justification for the anomalous doctrine of
representative standing.  Such standing is a creation of this Court,
and we submit that it would be appropriate for the Court to reconsider
the doctrine in light of the practical and analytical difficulties it
presents and the superior ability of Rule 23 to deal with these
difficulties.  /35/

   Although not explained in the Court's opinions, the doctrine of
representative standing is apparently intended to facilitate, in a
fair and efficient manner, the collective adjudication of the common
rights of an association's members.  But the class action provisions
of Fed. R. Civ. P. 23 are designed to serve precisely the same
purpose.  Cf. Cooper v. Federal Reserve Bank, No. 83-185 (June 25,
1984), slip op. 12-13;  Califano v. Yamasaki, 442 U.S. 682, 700
(1979).  Under Rule 23, judges, lawyers, and scholars have devoted
considerable effort to analyzing and resolving the problems that arise
when a representative plaintiff is permitted to seek a determination
of the rights of third parties who are not personally before the
court.  There is no reason to disregard this accumulated wisdom and
experience simply because the representative plaintiff is an
association appearing on behalf of its members.  We believe that
representative standing by an association should generally not be
recognized and that the class action provisions of Rule 23 should be
applied instead.  In fact, the class action approach offers advantages
over representative standing with respect to both of the major areas
of concern in class actions and associational suits -- (1) the
fairness of the process to the absent third parties and the adequate
protection of their interests, and (2) the efficient resolution of
legal questions common to the third parties and the sound
administration of the judicial system.  /36/

   Under Hunt, an association has representative standing if, among
other things, "the interests it seeks to protect are germane to the
organization's purpose" and "neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit" (432 U.S. at 343).  This standard provides little assurance
that the association is a satisfactory representative of its members
and that the rights of the absent third parties will be adequately
protected.  While these elements of the Hunt test may exclude suits in
which the association plainly would not be a suitable representative,
this negative proscription provides only a minimal safeguard and does
not directly address or ensure the adequacy of the association's
representation.  /37/

   An association may be an inappropriate representative for
innumerable reasons.  In some instances, for example, it may have
insufficient resources or experience to allow it to bind its members
in litigation on an important issue of federal law.  See Note,
Associational Third-Party Standing and Federal Jurisdiction under
Hunt, 64 Iowa L. Rev. 121, 134-136 (1978).  So, too, it might lack
authorization from its members to proceed on their behalf (indeed, it
may not have notified them of the suit at all) or exceed the scope of
its authority.  See Comment, From Net to Sword:  Organizational
Representatives Litigating Their Members' Claims, 1974 U. Ill. L.F.
663, 670-671, 672.

   An association may also have interests that diverge from those of
its members.  For example, the association may litigate a case with an
eye to other suits that to its officers, but not to injured members,
are more important.  See 18 Wright, miller, & Cooper, supra, Section
4456, at 491.  Or the association may prefer a litigation strategy --
such as a comprehensive and well-publicized test case, or a litigated
judgment rather than a settlement -- that is not necessarily in the
best interest of individual members.  See Note, supra, 61 B.U. L. Rev.
at 180.

   Likewise, there may be discrepant positions among the members that
render the association an inadequate representative.  See Note, supra,
61 B.U. L. Rev. at 180-181, 184, 185;  cf. Harris v. McRae, 448 U.S.
297, 320-321 (1980).  This may occur even where the participation of
the individual members is not necessary to the resolution of the suit.
 For example, if Congress had appropriated limited funds for payment
of TRA claims, a lawsuit such as this seeking to expand the number of
persons eligible for TRA benefits would be contrary to the interests
of union members previously determined to be eligible.  Moreover,
legal arguments may be available or persuasive for only some of the
association's members;  to raise such arguments would highlight the
relative weakness of the claims of the other members.  /38/
Additionally, members may disagree about the most desirable form of
relief to seek on behalf of the entire group or may disagree about the
desirability of a settlement proposal.  Cf. General Telephone Co. v.
EEOC, 446 U.S. 318, 331 (1980);  Note, Certifying Classes and
Subclasses in Title VII Suits, 99 Harv. L. Rev. 619, 632-633 (1986).

   Of necessity, organizations require some mechanism for determining
collective action -- for example, a vote by the majority of its
members (see Pet. Br. 14, 23 n.21, 28 n.26).  The interests of the
nonprevailing members within the organization are thus subordinated to
those of the greater number.  And it may be unrealistic or impossible
for members dissatisfied about a litigation matter to withdraw from
the organization, given the array of issues of concern to an
organization and its members, the importance of countless
organizations in our society, and the frequently mandatory nature of
membership in some organizations (see Hunt, 432 U.S. at 345).
However, litigation rights are individual, not majoritarian.
Organization members should not be impressed into a lawsuit in which
the organization will not adequately represent them.

   Similar problems can arise, of course, in class actions.  But
unlike the doctrine of representative standing, Fed. R. Civ. P. 23
makes specific provision for detecting and correcting such problems.
Most importantly, Rule 23(a)(4) expressly requires the district court
to determine, as a condition for certifying the class (see Fed. R.
Civ. P. 23(b), (c)(1)), that "the representative parties will fairly
and adequately protect the interests of the class." In addition, Rule
23(d)(2) authorizes the district court in any class action to require
that notice be given to absent class members in order to ascertain
whether the representation is fair and adequate or to allow those
members to intervene.  See Note, supra, 99 Harv. L. Rev. at 633-635.
The court may also impose appropriate conditions on the class
representative.  See Fed. R. Civ. P. 23(d)(3).  If divergent interests
exist among class members, the class certification may be limited to
particular issues or subclasses may be established.  See Fed. R. Civ.
P. 23(c)(4);  Note, supra, 99 Harv. L. Rev. at 635-639.  And a class
action may not be dismissed or settled without the approval of the
court and notice to the class members.  See Fed. R. Civ. P. 23(c).
Finally, if the class action becomes inappropriate at any time prior
to the decision on the merits, the court may modify the class
certification or decertify the class altogether.  See Fed. R. Civ. P.
23(c)(1).

   Rule 23 thus provides an elaborate and carefully constructed
procedure that is designed to address the very problems left
unresolved by the representative standing doctrine and to ensure that
the representative plaintiff fairly and adequately protects the
interests of the class members.  While that procedure is not
infallible and will not avoid difficult questions in some cases, it
does reflect the considered opinion of the bench and bar as to the
most desirable means of addressing the problems raised by the
collective adjudication of the rights of absent third parties.  The
amorphous doctrine of associational standing is not a substitute for
the judgment -- tested over time and continually re-evaluated and
refined both in litigation and in the proceedings of the Advisory
Committee -- of the need for and appropriateness of the provisions of
Fed. R. Civ. P. 23.  /39/

   The same conclusion also applies to the second concern that arises
in the area of representative standing -- the efficient resolution of
legal disputes common to the members of an organization.  The
rationale for representative standing is that such legal questions can
be more quickly and economically decided in a collective lawsuit
brought by the organization than in individual suits prosecuted by
individual members.  But that salutary objective provides no basis for
allowing representative standing suits rather than requiring the class
action rules to be followed.

   The premise of this justification for representative standing is
that the judgment in the organization's suit will bind the members of
the organization and conclusively determine their rights.  As
discussed above (see pages 31-32, supra), we agree with this premise
regarding the preclusive effect of the litigation.  /40/ Accordingly,
members of the organization will be able to take advantage of a
judgment in their favor without being put to the task of further
litigation;  conversely, a prevailing defendant will be spared the
burden of successive suits by the individual members.  /41/ In either
event, both the litigants and the judicial system will avoid the
prospect of a multiplicity of lawsuits involving questions common to
the members.  /42/

   However, consistently with due process, a judgment may be binding
on absent members only if the representative party adequately
represented their interests in the litigation.  In addition, the court
issuing the judgment cannot determine its preclusive effect, and the
absent members may collaterally attack the adequacy of the
representation when the prior judgment is asserted against them in a
subsequent suit.  See pages 31-32, supra.

   By failing to provide meaningful safeguards that the representation
will be adequate, the doctrine of representative standing affords
scant guarantee that the desired litigation efficiencies will be
achieved.  Instead, it leaves substantial uncertainties about the
binding effect of a judgment and virtually invites burdensome
collateral litigation over the issue.  In contrast, one of the
specific purposes of Fed. R. Civ. P. 23 is to attempt to ensure, at
the time of the proceeding, the adequacy of the class representation,
thus enhancing the conclusiveness of the judgment and minimizing both
the need for and difficulty of later challenges.  See 1966 Advisory
Committee Note to Amended Rule 23(c)(3).  Accordingly, Rule 23 is
better suited than representative standing to promoting the finality
of judgments, the conservation of judicial resources, and the
avoidance by the parties of repetitive lawsuits.

   The doctrine of representative standing is inadequate in another
way as well.  The judgment in the organization's suit, even if based
on adequate representation, would be binding only on those members who
were represented therein.  Significant difficulties can arise in
specifying or identifying those members.  For example, it is unclear
whether the relevant category consists of members on the date the
complaint was filed, the date the judgment was entered, or the date
the judgment became final on review in the court of appeals or in this
Court.  It is also unsettled whether the judgment can be extended to
individuals who join the organization thereafter.  These problems --
and the ensuing uncertainty and prospect of litigation -- are
especially significant in cases involving voluntary membership
organizations, where the decision to associate with or resign from the
organization could be influenced by the desire to obtain the benefit
or avoid the burden of the judgment in question.  Likewise, it is
unclear whether a member can timely opt out of the litigation, or
withhold authorization for the organization to sue on his behalf,
without withdrawing from the organization itself.

   All of these issues are addressed by the class action provisions of
Rule 23.  Under the rule, the district court is required to decide the
class issue "(a)s soon as practicable after the commencement of an
action" (Fed. R. Civ. P. 23(c)(1)) and to include in its judgment a
description or specification of those who are bound as members of the
class.  These procedures obviate questions about the scope of the
class, including whether it encompasses future class members.  See 3B
J. Moore & J. Kennedy, Moore's Federal Practice Paragraph 23.40(3), at
23-301 n.17 (2d ed. 1985);  cf. Ashley v. City of Jackson, cert.
denied, 464 U.S. 900 (1983) (Rehnquist, J., dissenting).  In addition,
Fed. R. Civ. P. 23(c)(2) and (3) prescribe the circumstances in which
class members can opt out of the suit and affords mandatory notice to
them of their right to do so.

   Finally, as discussed above, (see page 12, supra), an organization
can represent only its own members and not other individuals who are
also affected by the challenged conduct.  Accordingly, the resulting
judgment in a representative standing suit is less inclusive, and
hence less effective in achieving litigation economies, than the
corresponding judgment in a class action could be.

   The Court need not decide in this case whether representative
standing should be permitted upon a showing of particularized need to
proceed on that basis because of the unavailability of an adequate
alternative means for members of an organization to obtain a
determination of their rights.  Such circumstances will arise
infrequently at best and are not presented here.  /43/ However, at
least in the absence of an indication that those "persons who in fact
have been * * * (injured) are disabled from asserting their own right
in a proper case" (Warth, 422 U.S. at 510 (footnote omitted)), /44/
suits on behalf of an organization's members must be brought under the
class action provisions of Fed. R. Civ. P. 23.  Adherence to Rule 23
will achieve the same objectives of fair and efficient litigation that
underlie the doctrine of representative standing, while avoiding the
analytical and practical problems that representative standing
creates.  /45/

 II. IN SEEKING THE REOPENING AND REPROCESSING OF INDIVIDUAL BENEFIT
CLAIMS PREVIOUSLY DENIED BY A STATE AGENCY, PETITIONERS WERE REQUIRED
TO JOIN THE RESPONSIBLE STATE AGENCY AS A NECESSARY PARTY

   If, contrary to the foregoing, the Court concludes that any of the
petitioners could properly bring this suit, there remains the question
of joinder of state agencies.  We submit that because petitioners
sought retrospective relief involving the reopening and reprocessing
of individual benefit claims previously denied by the responsible
state agencies, those agencies were necessary parties that petitioners
were required to join.  Only by the presence of the state agencies
could this relief be effectively granted by the district court.  Cf.
Kendig v. Dean, 97 U.S. 423 (1878).  /46/

   The district court's injunction requires the Secretary to
"(d)irect" (Pet. App. A29) all state agencies to identify and
reprocess those individual benefit claims that had been denied on the
basis of the 1975 handbook provision.  This "convoluted" (Pet. App.
A6) form of relief "does not expend itself directly upon the state
agencies;  it is only by indirection that the district court ordered
them to reprocess the claims and to award benefits" (id. at A7).
However, under the Trade Act, the state agencies have no mandatory
obligation to comply with the Secretary's instruction to reopen and
redetermine those claims.  Of course, as petitioners emphasize, a
state agency that elects to enter into an agreement with the Secretary
to determine TRA benefit claims is designated as a "cooperating State
agency" and acts pursuant to the agreement as the "agent" of the
Secretary.  See 19 U.S.C. (1976 ed.) 2311(a), 2313(a).  Moreover, as
petitioners elsewhere discuss (Pet. Br. 6), a state may be subject to
sanctions for failing to abide by the terms of the TRA program.  See
29 C.F.R. 91.63(e).  And we do not deny that the Secretary undoubtedly
anticipates that state agencies will follow his instructions.  See 29
C.F.R. 91.54.  But in the end, unlike a true principal-agent
relationship, the Secreatry does not have absolute legal control over
the state agencies.  /47/ Accordingly, as the court of appeals
observed (Pet. App. A9), "(t)he district court's order * * * may be a
futile thing except to the extent that (the state agencies') voluntary
compliance with the request of the Secretary may be expected."

   In addition, the district court could not properly decide, in the
absence of the state agencies, to grant the requested retrospective
relief requiring the reopening and reprocessing of individual benefit
claims that the state agencies had previously denied.  As discussed
above (see pages 25-26, supra), such relief, if available at all,
would necessarily turn on the particular circumstances of each case,
including the equities and diligence of the individual claimant and
the burdens and difficulties that the state agency would confront in
reprocessing.  The state agency, not the Secretary, has the necessary
information bearing on these questions, and its participation is
needed to enable the district court to make a meaningful decision
concerning relief.

   Furthermore, the onus of the district court's reprocessing order
will fall in the first instance on the state agencies.  To be sure,
they ultimately will be reimbursed by the Secretary for their
administrative costs in undertaking those redeterminations.  See 19
U.S.C. (1976 ed.) 2313(a), 2317(a).  But that is not a complete answer
to the problems and disruptions immediately facing the agencies in
implementing the court's order, such as locating the records (if they
still exist) for claims that have long been closed (see J.A. 76-77);
having the personnel available to handle the unexpected contingency of
reviewing the case files for every one of the 220,000 benefit claims
denied since 1975 and reprocessing the predicted 73,000 claims that
would be affected by the district court's interpretation of the Trade
Act, and doing so in a way that does not interfere with the ongoing
administration of trade adjustment and other programs (see J.A. 74,
76-77);  attempting to update or supplement the information in the
case files involving events that occurred as long as a decade or more
ago (J.A. 77);  and then making (and defending on appeal) benefit
determinations based on unavoidably stale and incomplete facts.  The
district court should have heard from the affected state agencies
before it required that individual benefit claims be reopened and
reprocessed.

   Finally, the presence of the state agencies would be necessary for
the district court to monitor and enforce compliance with its order.
Cf. O'Shea v. Littleton, 414 U.S. 488, 501-502 (1974).  For example,
there may be disputes about the adequacy of the process for
identifying and redetermining benefit claims in accordance with the
court's order.  Likewise, problems of implementation could arise if
the records necessary to carry out the order no longer exist.  Unless
the district court intended its order to be essentially unenforceable
once the Secretary had issued the specified directive, joinder of the
state agencies was necessary.  /48/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   CAROLYN B. KUHL

      Deputy Solicitor General

   MARK I. LEVY

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   WILLIAM G. COLE

      Attorneys

   FEBRUARY 1986

   /1/ A final determination by the Secretary not to issue a
certification of group eligibility was previously subject to review in
the appropriate court of appeals (19 U.S.C. (1976 ed.) 2322) and is
now reviewable by the United States Court of International Trade and
thereafter by the United States Court of Appeals for the Federal
Circuit (19 U.S.C. 2395).  Under those provisions, review may be
sought by "(a) worker, group of workers, certified or recognized
union, or authorized representative of such worker or group aggrieved
by" the Secretary's determination.

   /2/ The Secretary has entered into agreements with the state
unemployment insurance agencies in all the states (including the
District of Columbia and Puerto Rico) to administer TRA benefits under
the Act.  In the absence of such an agreement, the Act directs the
Secretary to administer program benefits.  19 U.S.C. (1976 ed.)
2312(a).  A determination of entitlement by the Secretary is subject
to review in federal district court "in the same manner and to the
same extent" as is provided by Section 205(g) of the Social Security
Act, 42 U.S.C. 405(g).  19 U.S.C. (1976 ed.) 2312(b).

   /3/ The Secretary first adopted this interpretation under the Trade
Expansion Act of 1962, Pub. L. No. 87-794, 76 Stat. 872 et seq., which
was the predecessor of the Trade Act of 1974 and used the same
statutory phrase "weeks of employment at wages." The Secretary adhered
to this position under the reenacted statutory language of the 1974
Trade Act.

   /4/ As discussed in more detail below (see page 15 note 14, infra),
at the time of the filing of the complaint four of the named
individual plaintiffs had been administratively determined to be
eligible for TRA benefits.

   /5/ The court also rejected the Secretary's argument that 19 U.S.C.
(1976 ed.) 2311(d), by providing that TRA determinations would be
"subject to review in the same manner and to the same extent as
determinations under the applicable State law and only in that manner
and to that extent," vested exclusive review in state court and
therefore precluded federal jurisdiction over this action (Pet. App.
A13-A16).

   /6/ In the court below, the government did not raise the issues of
standing and joinder that the court of appeals decided.  In light of
its rulings on those issues, the court of appeals did not reach the
questions that the government had presented, including principally the
lack of federal jurisdiction over this case, the merits of the
Secretary's interpretation of the Trade Act, and the inappropriateness
of the sweeping relief granted by the district court.  If, contrary to
our submission, this Court reverses the judgment below, it should
remand the case to the court of appeals for consideration of the
issues that were not previously addressed.

   /7/ See also Minority Police Officers Ass'n v. City of South Bend,
721 F.2d 197, 202 (7th Cir. 1983);  Society Hill Civic Ass'n v.
Harris, 632 F.2d 1045, 1060 (3d Cir. 1980);  13 C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure:  Jurisdiction Section
3531.9, at 626 (1984).

   /8/ It is estimated that approximately 58% of the workers certified
as eligible to apply for TRA benefits are not members of the Union
(see Pet. Br. 15).  At the least, the district court's order was
erroneous in extending relief to TRA claimants who were not members of
the Union.

   /9/ For purposes of this discussion, we assume, as did the court of
appeals (see Pet. App. A7;  see also Pet. Br. 40, 42), that there was
federal jurisdiction over this action in the district court.  But see
page 12 note 6, supra.

   /10/ Whether the individual union members could bring this suit --
that is, whether they suffered an injury for which they were entitled
to seek redress in federal court -- is, we believe, properly viewed as
a question of standing.  At the same time, analysis of the ability of
union members to sue in this case turns in part on principles of
ripeness and finality that, as the Court recognized in Warth, are
closely related to the doctrine of standing.  The ultimate issue here,
whether or not considered to be strictly a matter of standing, is one
of justiciability:  would there be a "justiciable case" (Warth, 422
U.S. at 511) if the members themselves had brought suit?

   /11/ None of the named plaintiffs is within this category.

   /12/ At the time of the filing of the complaint, none of the
individual named plaintiffs fell within this category.  Thereafter, on
December 29, 1982, the Michigan Employment Security Board of Review
set aside the preceding administrative denial of the claim of
plaintiff Mitchell and determined that he was eligible for benefits.
See J.A. 57-58;  C.A. App. 170.  However, although it is not reflected
in the record, we are advised that a Michigan state court reversed
plaintiff Mitchell's benefit determination on April 18, 1983, and that
no further review of that decision was sought.  See Michigan
Employment Security Comm'n v. Mitchell, No. 83-301682-AE (Mich. Cir.
Ct.).

   /13/ For this reason as well, the district court, at the least,
erred in ordering that these claims be reopened and reprocessed.

   /14/ At the time the complaint was filed in this case, plaintiffs
de la Cruz, Diga, Ealy, and Peterson had been determined in the
California state administrative process to be eligible for TRA
benefits notwithstanding the Secretary's interpretation;  at the time
of the district court's decision, plaintiffs Baxter and Graham had
also been found to be eligible for benefits in California.  Judicial
review was sought in state court of the awards to de la Cruz, Diga,
and Peterson;  the record does not indicate that review was sought in
the cases of Baxter, Ealy, and Graham.  In addition, in December 1982,
plaintiff Mitchell was found eligible for benefits in the Michigan
state administrative process.  That decision was reversed by a state
court on April 18, 1983 (see page 15 note 12, supra).  See J.A. 57-59;
 C.A. App. 169-170.

   /15/ The district court concluded (Pet. App. A15-A16) that, because
the Department of Labor had notified the California state agency of
potential sanctions that could be imposed if the 1975 handbook
provision were not followed, the individual California plaintiffs who
had been awarded benefits at the administrative level did not have to
complete the process of state judicial review of those determinations
and had standing to bring this suit notwithstanding their benefit
awards.  Of course, the district court's concern that the state
procedures would be "fruitless" (Pet. App. A15) pertained only to the
California plaintiffs and in any event was belied by the fact that
these claimants had been granted benefits by the state agency.
Moreover, even if the court's reasoning would have excused the
claimants from further state administrative proceedings, it provides
no basis to dispense with state judicial actions.  Accordingly, for
the reasons discussed in text, these plaintiffs could not bring the
instant suit.

   /16/ Plaintiffs Browning, Calehuff, La Marra, and Sims were
administratively denied benefits;  the record does not indicate that
any of them sought judicial review of that denial.  See J.A. 57-59;
C.A. App. 169-170.

   /17/ In fact, although the point was not specifically developed in
the proceedings below, the record indicates that comparatively few
pre-OBRA claims were denied on the basis of the 1975 handbook
subsequent to the filing of the complaint on August 20, 1981.  For the
period October 1, 1981, through May 30, 1983, approximately 1600
pre-OBRA TRA claims were denied based on the 1975 handbook (J.A. 74,
78).  If it is assumed that the denials in September 1981 amounted to
one-twelfth of those for the entire fiscal year, an additional 1200
claims would be included, for a post-complaint total of approximately
2800 denials.  Of these, only 42% (see pages 12-13 note 8, supra), or
approximately 1200, involved members of the Union.  Thus, out of the
73,000 denied claims that are required to be reopened and reprocessed
under the district court's order, only 1.6% consist of claims of union
members that had not been denied at the time the complaint was filed.
And necessarily none of these claims was still pending when the
district court rendered its decision on July 28, 1983.  Of course, a
proper "case or controversy" must exist at all stages of the
litigation and not just at the inception of the suit.  See, e.g.,
Steffel v. Thompson, 415 U.S. 452, 459-460 & n.10 (1974);  Golden v.
Zwickler, 394 U.S. 103, 108-110 (1969).

   It is theoretically possible that some pre-OBRA claims might have
remained outstanding on May 30, 1983, or been submitted subsequent to
that date.  However, since those claims relate to weeks of
unemployment before September 30, 1981, such a possibility is highly
unlikely and presumably would have involved no more than a de minimis
number of claims.

   /18/ To be sure, this case, in contrast to Green, does not involve
the Eleventh Amendment.  But that does not obviate the rationale of
Green:  a litigant cannot, by dividing a state suit into two pieces,
sue in federal court in order to lay the predicate for a claim that
can only be adjudicated in state court.  Since individual TRA benefit
claims cannot be brought in federal court, the limitation recognized
in Green on the appropriate exercise of federal judicial authority is
fully applicable here.

   /19/ Petitioners define this class of "prospective" claims to be
those that were pending in the administrative process when the
complaint was filed on August 20, 1981, those that were filed between
the complaint and the effective date of the OBRA amendment on October
1, 1981, and those that were submitted after October 1 for periods of
unemployment before that date.

   /20/ Administrative systems generally impose stringent conditions
on the reopening of previously denied claims (if reopening is allowed
at all) and limit judicial review of the denial of a requies to
reopen.  See generally, e.g., INS v. Rios-Pineda, No. 83-2032 (May 13,
1985), slip op. 4-5, 7;  Califano v. Sanders, 430 U.S. 99, 108 (1977).
 If an individual union member had sought to reopen a previously
denied TRA claim, a showing of good cause in the particular
circumstances of this case would undoubtedly be required (assuming
that such relief is ever available).  Surely that focus does not
shift, or a lesser standard become applicable, simply because the
Union seeks the collective reopening of closed claims on behalf of its
members.

   /21/ It plainly would not be a sufficient ground for reopening that
the claimant failed to pursue, or did not succeed on, the challenge to
the 1975 handbook asserted by petitioners in this case.  Individuals
whose claims for benefits were denied based on the handbook provision
could have made the same legal argument that petitioners now present,
and the fact that they did not do so (or did not prevail) does not
entitle them to retrospective relief requiring that their claims be
reopened at this late date.

   /22/ Some of the difficulties and burdens of reprocessing claims in
this case are discussed below at pages 48-49, infra.

   /23/ To further the retraining and adjustment purposes of the TRA
program, it is "important that workers claim and receive benefits
promptly after discharge" Lloyd v. United States Dep't of Labor, 637
F.2d 1267, 1270 (9th Cir. 1980).  "Assistance under the Trade Act is
for certain specified purposes;  it is not intended to be merely a
supplemental unemployment benefit" (id. at 1271).  Accordingly, the
statute is designed to ensure that "affected workers receive
adjustment assistance promptly when it will do the most good" (ibid.).
 See generally 19 U.S.C. (1976 ed.) 2273(a) and (b)(1), 2293.  In
addition, there are "also other advantages -- such as freshness of
records and other evidence -- to be gained by promptness" (637 F.2d at
1270).  In few if any instances would the reopening of previously
denied claims be consistent with the intended operation of the TRA
program.  The absence of such retrospective relief would not
"penalize()" these claimants;  rather, by virtue of the passage of
time, "they simply are (n)o longer within the category Congress
intended to aid by this program" (id. at 1271).

   /24/ This case, of course, does not involve a union's traditional
responsibilities in the areas of joint employee labor activities or
collective bargaining contracts.  For this reason, petitioners rightly
eschew reliance (Pet. Br. 13 n.13) on Section 301(b) of the
Taft-Hartley Act, 29 U.S.C. 185(b).  See also, e.g., UAW v. Hoosier
Cardinal Corp., 383 U.S. 696, 700 & n.3 (1966);  Drywall Tapers &
Pointers v. Local 530, 91 F.R.D. 216, 218 (E.D.N.Y. 1981), aff'd, 742
F.2d 1432 (2d Cir. 1984) (Table).

   /25/ "One-way intervention" would be especially inappropriate in
suits against the federal government.  See United States v. Mendoza,
464 U.S. 154 (1984).

   /26/ See Pet. App. A5;  Bolden v. Pennsylvania State Police, 578
F.2d 912, 918 (3d Cir. 1978);  Ellentuck v. Klein, 570 F.2d 414,
425-426 (2d Cir. 1978);  Mosher Steel Co. v. NLRB, 568 F.2d 436, 440
(5th Cir. 1978);  Expert Electric, Inc. v. Levine, 554 F.2d 1227,
1235-1236 (2d Cir.), cert. denied, 434 U.S. 903 (1977);  Acree v. Air
Line Pilots Ass'n, 390 F.2d 199, 202 (5th Cir.), cert. denied, 393
U.S. 852 (1968);  Panza v. Armco Steel Corp., 316 F.2d 69, 70 (3d
Cir.), cert. denied, 375 U.S. 897 (1963).

   /27/ Cf. Nevada v. United States, 463 U.S. 110, 135 n.15, 144 n.16
(1983);  Hansberry v. Lee, 311 U.S. 32, 40-43 (1940).

   /28/ See Chicago-Midwest Meat Ass'n v. City of Evanston, 589 F.2d
278, 281 n.3 (7th Cir. 1978), cert. denied, 442 U.S. 946 (1979);
Rhode Island Chapter v. Kreps, 450 F. Supp. 338, 347 n.3 (D.R.I.
1978);  see also 18 C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure:  Jurisdiction Section 4456, at 486, 491
(1981).

   /29/ See Nevada v. United States, 463 U.S. at 144 n.16;  Sam Fox
Publishing Co. v. United States, 366 U.S. 683, 691 (1961);  Elgin, J.
& E.R. Co. v. Burley, 325 U.S. 711, 738 (1945), aff'd on rehearing,
327 U.S. 661 (1946);  Hansberry v. Lee, 311 U.S. at 40-43;  13 Wright,
Miller, & Cooper, supra, Section 3531.9, at 615, 624-627;  18 id.
Section 4456, at 490-491;  Note, Associational Standing and Due
Process:  The Need for an Adequate Representation Scrutiny, 61 B.U. L.
Rev. 174, 181, 186 (1981);  Comment, From Net to Sword:
Organizational Representatives Litigating Their Members' Claims, 1974
U. Ill. L.F. 663, 671 & n.48.

   /30/ See Zablocki v. Redhail, 434 U.S. 374, 381 n.6 (1978);
Hansberry v. Lee, supra;  1966 Advisory Committee Note to Amended Rule
23(c)(3);  Note, supra, 61 B.U. L. Rev. at 186.

   /31/ See Fed. R. Civ. P. 23(c)(2);  Quern v. Jordan, 440 U.S. 332,
335 n.3 (1979);  Sosna v. Iowa, 419 U.S. 393, 397 n.4 (1975);  Eisen
v. Carlisle & Jacquelin, 417 U.S. at 177 n.14.

   /32/ The court of appeals' decision not to remand for consideration
of post-judgment class certification is not, as petitioners contend,
inconsistent with Jimenez v. Weinberger, 523 F.2d 689 (7th Cir. 1975),
cert. denied, 427 U.S. 912 (1976).  In Jimenez, the district court
certified a (b)(2) class at the same time it entered judgment on the
merits in favor of the class.  The court of appeals recognized that
the requirement of prompt certification in Rule 23(c)(1) "is
applicable to all class actions" and contemplates that the
certification decision "should be made in advance of the ruling on the
merits" (523 F.2d at 697).  Thus, it concluded that the district
court's concurrent order "plainly did not comply with Rule 23" (523
F.2d at 699).  Nevertheless, the court held that the delay in
certifying the class did "not deprive the district court of the power
to enter an otherwise proper order" (ibid.) and that, in the
circumstance of that case, the court's certification was not
reversible error (id. at 699-702).

   Whatever the correctness of Jimenez on its particular facts, it is
not controlling here.  First, the plaintiff in Jimenez requested class
certification prior to judgment, and the district court certified the
class simultaneously with its ruling on the merits.  In that
situation, the risk of "one-way intervention," although not entirely
avoided, is less than in the case of post-judgment class
certification.

   Moreover, the district court in Jimenez did enter a class
certification order;  here, by contrast, no class has ever been
certified.  As the Seventh Circuit itself has stated, "in an appeal
from a decision on the merits made without the prior class
determination required by Rule 23(c)(1), the reviewing court will
treat the case as one brought by the named plaintiff only and not as a
class action." Roberts v. American Airlines, Inc., 526 F.2d 757, 762
(1975), cert. denied, 425 U.S. 951 (1976).  See also, e.g., Pharo v.
Smith, 621 F.2d 656, 664 (5th Cir. 1980).  Thus, even in the Seventh
Circuit, this case would be governed by Roberts rather than Jimenez.

   Finally, Jimenez establishes, at most, that an untimely class
certification order is not automatically reversible error.  See
Roberts, 526 F.2d at 763.  Thus, under Jimenez, it might have been
permissible for the court of appeals to remand the case to the
district court to consider the question of class certification.  But
Jimenez does not require a court to entertain untimely requests for
class certification or indicate that a decision not to do so would be
open to challenge as legal error.  Nothing in Jimenez prohibits a
court from complying with Rule 23 by declining to adopt the
undesirable practice of allowing post-judgment class certification.

   /33/ A related issue arises where a plaintiff who is properly in
federal court based on a personal injury to himself seeks to support
his claim for relief by relying on the rights of third parties.  As
the cases cited in text indicate, this issue of jus tertii has been
regarded by the Court to be a prudential matter rather than a
constitutional question under Article III.

   The jus tertii issue differs from the present question of
representative standing in two fundamental ways.  First, the plaintiff
seeking to assert the third parties' rights under the jus tertii
doctrine is already in federal court on his own behalf and has
satisfied the requirement of injury-in-fact.  In contrast, the
representative plaintiff's presence in court rests entirely on the
cognizable injuries of others.  See Burnham, Aspirational and
Existential Interests of Social Reform Organizations:  A New Role for
the Ideological Plaintiff, 20 Harv. C.R.-C.L. L. Rev. 153, 163 nn. 43,
45, 197 n.161 (1985);  Note, supra, 61 B.U. L. Rev. at 176.  Second,
in the jus tertii situation, the plaintiff is attempting to obtain a
judicial remedy for itself;  it does not seek relief on behalf of the
third parties, and the judgment will not be binding on them.  In the
context of representative standing, however, the plaintiff is seeking
relief for the absent individuals rather than personal relief for
itself, and the adjudication will be conclusive on their rights.  See
Comment, supra, 1974 U. Ill. L.F. at 664, 665 n.12.  For these
reasons, analysis of the question of representative standing must be
informed by Article III considerations.  See 13 Wright, Miller, &
Cooper, supra, Section 3531.9, at 545, 551.  The Court's decisions
cited in text have distinguished between the constitutional
requirement of personal injury-in-fact and the prudential principle of
jus tertii.

   In any event, even if representative standing comports with the
minimum requirements of Article III, it should, for the reasons
discussed below, no longer be retained as a prudential matter.

   /34/ Analogously, a plaintiff in a class action must meet the
requirement of personal injury in order to represent the absent class
members and obtain an adjudication on their behalf.  See Simon v.
EKWRO, 426 U.S. at 40 n.20;  Warth, 422 U.S. at 502;  O'Shea v.
Littleton, 414 U.S. 488, 494 (1974).

   /35/ At the outset, we note that most of the Court's decisions on
representative standing are not of longstanding effect and that in the
leading decisions, to which subsequent cases have simply cited, the
recognition of possible standing by an association on hehalf of its
members was not part of the Court's holding.  For example, in Sierra
Club v. Morton, Warth v. Seldin, the Simon v. EKWRO, the Court denied
standing to the association;  thus, the further consideration of
representative standing was dictum.  Likewise, in Hunt v. Washington
Apple Advertising Comm'n, "(t)he only question presented" (432 U.S. at
344) was whether the particular nature of the plaintiff association
precluded its standing on behalf of its members;  the underlying
doctrine of representative standing, although discussed by the Court,
was not at issue.

   Furthermore, the circumstances involved in other decisions limit
the general applicability of the Court's rulings.  For instance, in
National Motor Freight Ass'n v. United States, which was decided in a
per curiam opinion on a petition for rehearing, standing to sue under
the Administrative Procedure Act to challenge an ICC order was upheld
for an association that had specific recognition in the Interstate
Commerce Act (see 372 U.S. at 247).  See also Pet. Br. 22.  In NAACP
v. Alabama, 357 U.S. 449 (1958), the association itself was adversely
affected by the challenged conduct, and it was seeking to protect the
associational rights of its members (see id. at 459-460);  in that
situation, the association "and its members are in every practical
sense identical" (id. at 459).  See also Pet. Br. 18 n.16.  In fact,
because the litigation involved the constitutional right not to
disclose membership in the association, there was a particularized
need to allow the association rather than the members to appear in
court to assert the right (see page 45 note 43, infra).  Moreover, the
association had been held in contempt for failing to disclose its
membership list, and therefore it had plainly suffered sufficient
injury-in-fact to establish standing under Article III;  whether it
could raise the rights of its members was thus a prudential question
under principles of jus tertii.

   Finally, this Court's decisions have not considered the proper
relationship between class actions and representative standing.
Indeed, prior to the 1966 amendments to Rule 23, the class action
provisions were of limited usefulness and not frequently invoked, and
in particular the res judicata effect of the judgment on absent class
members was unsettled;  Rule 23 was entirely revised in 1966
specifically to clarify its operation and enhance its utility.  See
1966 Advisory Committee Note to Amended Rule 23;  3B Moore's Federal
Practice, supra, Paragraphs 23.01(7), 23.02(1), at 23-19, 23-39 to
23-41;  7 C. Wright & A. Miller, Federal Practice and Procedure:
Civil Sections 1751, 1752, 1753, at 508-510, 511, 538-540 (1972).
Thus, when the Court rendered its initial decisions on representative
standing, the class action procedures may not have provided an
adequate alternative.  That, of course, is no longer true today.

   /36/ Courts and commentators have begun to note the inadequacies of
and limitations on the doctrine of representative standing.  See NCAA
v. Califano, 622 F.2d 1382, 1391-1392 (10th Cir. 1980);  Associated
General Contractors v. Otter Tail Power Co., 611 F.2d 684, 691 (8th
Cir. 1979);  International Woodworkers v. Georgia-Pacific Corp., 568
F.2d 64, 67-68 (8th Cir. 1977);  Local 194 v. Standard Brands, Inc.,
540 F.2d 864, 867-868 (7th Cir. 1976);  NRDC v. EPA, 507 F.2d 905, 910
& n.6(9th Cir. 1974);  Note, supra, 61 B.U.L. Rev. 174;  Comment,
supra, 1974 U. Ill. L.F. 663;  Note, Associational Third-Party
Standing and Federal Jurisdiction under Hunt, 64 Iowa L. Rev. 121
(1978).

   /37/ The Hunt test does afford some basis to infer that there was
at least implied authorization by the members for the organization to
represent them.

   /38/ In the present case, distinct legal issues pertained to TRA
claimants who were absent from work on military duty and those who
were absent for other reasons.

   /39/ This would not mean that whatever resources and experience the
organization could bring to the litigation would be lost.  An
organization would still be free to support a lawsuit brought by its
members.  It would have to do so, however, in connection with a case
that comported with proper rules of standing and adequately protected
the rights of absent members.  Moreover, representative standing is
not needed to avoid the potential mootness of the claim of an
individual plaintiff.  See, e.g., Sosna v. Iowa, 419 U.S. 393 (1975).

   Petitioners assert (Pet. Br. 23 n.21, 28) that the class action
protections are unnecessary in a representative standing suit because
the members of the organization have a commonality of interests and
exercise control over the organization.  However, while those
circumstances (when in fact they are present) may be taken into
account by the district court in applying Rule 23, they provide no
basis for dispensing altogether with the carefully considered
safeguards in the Rule.

   /40/ If the judgment did not have such binding effect, a
representative suit would achieve no litigation economies and there
would be no substantial justification for representative standing.
Moreover, where an organization has standing to sue based solely on
the rights of its members, it would violate the Article III "case or
controversy" requirement if the judgment did not bind the members with
respect to those rights;  absent such binding effect, the court's
ruling would be an abstract advisory opinion that would determine the
rights of no one.

   /41/ In analyzing this issue, it would be erroneous to make the
"'tacit assumption'" that "'all will be well for surely the plaintiff
will win and manna will fall on all members of the class.'" General
Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982) (citation omitted).
Rather, it must be remembered that one of the purposes of the
applicable legal rules is to provide protection to absent members in
the event the defendant prevails.  Moreover, fairness requires that
the preclusive effects of a judgment be reciprocal and equally binding
whether the plaintiff or the defendant succeeds;  this is especially
so where the government is the defendant.  See United States v.
Mendoza, 464 U.S. 154 (1984).

   /42/ This rationale suggests that representative standing should be
appropriate only if the affected members of the organization are
sufficiently numerous.  However, the Court has stated that an
organization can sue if "its members, or any one of them, are
suffering * * * injury." Warth, 422 U.S. at 511 (emphasis added).
Compare Fed. R. Civ. P. 23(a)(1) (class action may be maintained if
"the class is so numerous that joinder of all members is
impracticable").  See also Fed. R. Civ. P. 23(b)(3)(A), (B), and (C).

   /43/ That situation may be illustrated by NAACP v. Alabama, 357
U.S. 449 (1958).  See page 37 note 35, supra.  There, the issue was
whether the State of Alabama could require disclosure of membership in
the NAACP.  The Court was concerned that it might be impossible for an
NAACP member who wished to maintain his anonymity to bring suit on
behalf of all members to litigate their constitutional right to
withhold disclosure.  As the Court explained in upholding the
organization's standing to assert the rights of its members, the
alleged constitutional right "could not be effectively vindicated
except through an appropriate representative before the Court.  * * *
To require that it be claimed by the members themselves would result
in a nullification of the right at the very moment of its assertion"
(357 U.S. at 459).  See 13 Wright, Miller, & Cooper, supra, Section
3531.9, at 559-560.

   Note, however, that the difficulty in that case was not tied in any
way to the policies underlying the doctrine of representative
standing:  to permit the efficient adjudication of the common rights
of members of an organization.  Rather, the real issue was whether the
members would have to forgo their asserted constitutional right to
anonymity in order to litigate the very question of their entitlement
to that right.  Cf. Simmons v. United States, 390 U.S. 377 (1968).
The same problem could equally arise both in non-associational
contexts involving any alleged constitutional right to anonymity and
in individual (rather than class or organizational) suits.

   /44/ See also 13 Wright, Miller, & Cooper, supra, Section 3531.9,
at 580, but cf. Hunt, 432 U.S. at 342-343;  13 Wright, Miller, &
Cooper, supra, Section 3531.9, at 616.

   /45/ As discussed above (see pages 28-33, supra), post-judgment
class certification is generally inappropriate.  At the same time, we
recognize that the analysis of representative standing presented in
Section I-B, if accepted by the Court, would involve a significant
change from existing law.  Accordingly, in the event the Court affirms
the judgment of the court of appeals on the basis of this argument, it
may find it appropriate to remand the case for further proceedings
pursuant to Fed. R. Civ. P. 23.  Alternatively, following an
affirmance on this ground, individual members of the Union would be
free to institute a new lawsuit as a class action under Rule 23 to
assert the arguments that petitioners have made in this case.

   /46/ Contrary to the suggestion in petitioners' brief (at 39), the
joinder issue is presented if any of the petitioners could bring this
suit to obtain the reopening and reprocessing of closed benefit
claims;  it is not confined to the individual plaintiffs.

   Upon further reflection (compare Br. in Opp. 15-16), we agree with
petitioners that the joinder issue is governed by federal rather than
state law.  Nevertheless, although not controlling, the Trade Act
provision incorporating the state-law procedure for review of TRA
benefit determinations (19 U.S.C. (1976 ed.) 2311(d)) serves to
reinforce the conclusion we advance here.  As the court of appeals
noted (Pet. App. A8), the law in the states relevant to this case
requires that the state agency be joined in suits for judicial review.

   /47/ In fact, state administrative bodies in California and
Michigan declined to adhere to the 1975 handbook provision in some
cases (see pages 15-16 note 14, supra).

   /48/ Because this issue of joinder implicates the interests of the
absent state agencies and the adequacy of the relief that was entered,
petitioners are incorrect insofar as they assert (Pet. Br. 44-45) that
the question was waived by the Secretary in the district court and
could not be considered sua sponte by the court of appeals.  See
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102,
109-111 & n.4 (1968);  3A J. Moore & J. Lucas, Moore's Federal
Practice Paragraph 19.05(2), at 19-80 to 19-81 (2d ed. 1985);  7 C.
Wright & A. Miller, Federal Practice and Procedure:  Civil Section
1609, at 88-90 (1972).

   Petitioners are also incorrect in arguing (Pet. Br. 47-48) that
there is an intra-circuit conflict between the decision below and
Bermudez v. United States Dep't of Agriculture, 490 F.2d 718 (D.C.
Cir.), cert. denied, 414 U.S. 1104 (1973).  In that case, the federal
government argued that the states were indispensable parties because
they would bear part of the cost of retroactive food stamp benefits.
After concluding that the federal government was exclusively liable
for such benefits, the court of appeals held that joinder of the
states was not indispensable (490 F.2d at 724).  In so holding, the
court explained (ibid.) that the government's "argument as to the
indispensability of the States assumed the strength of its case on the
merits" and that, since the court found "the federal defendants and
not the States (to be) liable," there was no basis for the joinder
argument.  That reasoning is inapplicable here;  whatever the validity
of petitioners' contentions on the merits of this case, the state
agencies were required to be joined in light of the relief petitioners
requested and obtained.