Last month I outlined three “procedural hurdles” to affirmance in Mulhall: a possible absence of a private right of action, inadequate pleading, and mootness. In a good essay just posted on SSRN, Thomas Frampton, a Berkeley law grad and a law clerk for Judge Jack Weinstein (E.D.N.Y.), has identified a potential fourth problem: Respondent (and plaintiff) Martin Mulhall lacks standing to bring the lawsuit, thus depriving the court of subject matter jurisdiction. As Frampton notes, the district court in 2009 accepted a version of this argument, but the Eleventh Circuit reversed, concluding that “Mulhall has a legally cognizable associational interest . . . at imminent risk of invasion, because Mardi Gras’ provision of considerable and varied organizing assistance pursuant to the MOA will substantially increase the likelihood that Mulhall will be unionized against his will.”
Thomas analyzes and rejects this and a number of other possible arguments for standing. His most trenchant point, I think, is that Mulhall cannot be “unionized against his will” or suffer prospective associational harm from the enhanced likelihood of unionization as a result of the neutrality agreement because Florida is a right-to-work state, which means that Mulhall cannot be compelled to join the union or pay a “fair share fee” for collective bargaining expenses incurred on his behalf.
Neither Petitioner’s briefs nor the amicus briefs on its behalf raise the standing issue. But of course standing goes to subject matter jurisdiction and can be raised at any time, including by the Court sua sponte.