                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    DAVID W. NOBLE,

                Plaintiff,

         v.
                                                         Civil Action No. 17-1255 (DLF)
    NATIONAL ASSOCIATION OF LETTER
    CARRIERS, AFL-CIO,

                Defendant.


                                 MEMORANDUM OPINION

        This dispute arises from a membership ratification vote held in the summer of 2017 by

Defendant National Association of Letter Carriers, AFL-CIO (“NALC”). Before the Court is

Defendant’s Motion to Dismiss Counts I, II, III, IV, and V of Plaintiff’s First Amended

Complaint. Dkt. 19. For the reasons that follow, the Court will grant the motion. 1

I. BACKGROUND

        In May 2017, NALC and the United States Postal Service (“USPS”) agreed to a tentative

collective bargaining agreement (“CBA”) to replace their expired agreement. First Am. Compl.

¶ 6, Dkt. 18. Under the terms of NALC’s constitution, NALC members must ratify a new CBA

before it goes into effect. Accordingly, NALC held a ratification vote. NALC mailed ballots to

certain members in late June 2017, with completed ballots due by July 29, 2017. Id. ¶¶ 5, 9;

Def.’s Mem. in Support of Mot. to Dismiss at 3, Dkt. 19-1. Before the ratification vote was



1
 Also before the Court is Defendant’s Motion to Stay Discovery Pending Resolution of the
Motion to Dismiss. See Dkt. 19. Because the Court now resolves the Motion to Dismiss, the
Motion to Stay Discovery will be denied.
completed, however, NALC member and retired letter carrier David W. Noble (“Noble”), acting

pro se, challenged the vote, alleging various violations of the Labor-Management Reporting and

Disclosure Act (“LMRDA”).2

A.     The Labor-Management Reporting and Disclosure Act

       The LMRDA applies to votes held by Defendant NALC, the exclusive bargaining

representative for city letter carriers employed by USPS. The LMRDA provides that members

of labor organizations “shall have equal rights and privileges” to participate in the organization’s

elections and referendums, “subject to reasonable rules and regulations in such organization’s

constitution and bylaws.” 29 U.S.C. § 411(a)(1). The LMRDA also states that members shall

have the right to “assemble freely with other members,” “express any views,” and “express

[views] at meetings of the labor organization,” provided that “nothing herein shall be construed

to impair the right of a labor organization to adopt and enforce reasonable rules as to the

responsibility of every member toward the organization as an institution and to his refraining

from conduct that would interfere with its performance of its legal or contractual obligations.”

Id. § 411(a)(2). In addition, labor organizations must “comply with all reasonable requests of

any candidate to distribute by mail or otherwise at the candidate’s expense campaign literature in

aid of such person’s candidacy to all members in good standing of such labor organization.” Id.

§ 481(c).




2
  Plaintiff Noble filed the original complaint in this action with Thomas Houff, an active USPS
letter carrier, but Houff is no longer a plaintiff. See Original Compl. ¶ 4, Dkt. 1; First Am.
Compl. ¶ 4, Dkt. 18.

                                                 2
B.     Procedural History

       1.      Original Complaint

       Plaintiff Noble, with Thomas Houff, filed the original complaint in this action on June

27, 2017. Original Compl. ¶ 4, Dkt. 1. The original complaint asserted five counts. Count I

alleged that NALC “concealed from the membership” the number of non-career City Carrier

Assistants (“CCAs”) that USPS could employ under the proposed CBA. Id. ¶¶ 23-24. By not

releasing this information “until after the ratification ballots were mailed,” NALC allegedly

violated the LMRDA. Id. Count II also asserted an LMRDA violation by alleging that

“[u]known supporters of [NALC President] Rolando interfered with and prevented” Noble from

internet live-streaming a “rap session” meeting held in Atlantic City, New Jersey on June 14,

2017. Id. ¶¶ 27-28. Likewise, Counts III and IV asserted that NALC violated the LMRDA by

publishing false information about the tentative CBA before the ratification vote and unlawfully

excluding retired members from the ratification vote. Id. ¶¶ 31-32, 35-36. Finally, Count V

alleged that NALC “refus[ed] to permit opponents of ratification to use NALC’s email list,” thus

violating the LMRDA. Id. ¶¶ 38-40.

       For relief, the plaintiffs requested that the Court “[o]rder NALC to cancel the ratification

referendum begun during the week of June 19, 2017,” “[o]rder NALC to permit plaintiffs to use

NALC’s list of members’ email addresses” to oppose ratification, and issue a declaratory

judgment stating that NALC violated the LMRDA. Id. ¶ 41.

       2.      TRO and Preliminary Injunction Motion

       On July 10, 2017, the plaintiffs moved for a temporary restraining order requiring NALC

“to refrain from opening the [ratification] ballots” and for a preliminary injunction requiring

NALC “to cancel that ratification referendum.” Pls.’ Mot. for TRO & Prelim. Inj. at 1, Dkt. 5.

At the motion hearing, the Court found that the plaintiffs “ha[d] not established a likelihood of

                                                 3
success on the merits of their claims,” nor had they established that the balance of harms

weighed in their favor or that “it [was] in the public interest for the Court to enjoin the counting

of the ratification vote.” Tr. of Mot. Hr’g at 127-28, July 28, 2017, Dkt. 15.

       The Court acknowledged that plaintiffs could suffer irreparable harm because “the Court

assumes, along with the parties, that the challenged ratification vote on the proposed agreement

[cannot] be undone if the instant case proceeds on the merits.” Id. at 142 (emphasis added); see

also id. at 128 (acknowledging potential harm because “there can’t be a do-over” of the

ratification vote). Because that concern “d[id] not outweigh the other preliminary injunction

factors,” the Court denied the motion. Id.; see also Order, Dkt. 14.

       As a result, the ratification vote continued as scheduled. On August 7, 2017, NALC

announced that voters ratified the CBA by a vote of 78,935 in favor and 4,732 against. Renfroe

Second Decl. ¶ 3, Dkt. 19-2.

       3.      First Amended Complaint

       After the vote, Noble filed an amended complaint, this time without Thomas Houff as a

plaintiff. First Am. Compl. ¶ 4, Dkt. 18. The amended complaint asserts six counts. The first

five counts in the amended complaint are identical to the five counts asserted in the original

complaint. Id. ¶¶ 28-47; see also supra Section I.B.1. Only Count VI is new; it asserts that

NALC violated the LMRDA on August 7, 2017 by “refusing to allow plaintiff to send e-mails

[regarding the 2018 NALC presidential election] to the members using NALC’s list.” Id. ¶¶ 49-

50. Nobel requests the same relief set forth in the original complaint: that the Court “[o]rder

NALC to cancel the ratification referendum begun during the week of June 19,” “[o]rder NALC

to permit plaintiff to use NALC’s list of members’ email addresses,” and issue a declaratory

judgment stating that NALC violated the LMRDA. Id. ¶ 47.



                                                  4
         On September 25, 2017, NALC moved to dismiss the first five counts of the amended

complaint as moot. Dkt. 19. On December 4, 2017, the case was transferred to the undersigned

judge.

II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action

or claim when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to

dismiss for mootness is properly brought under Rule 12(b)(1) because “mootness itself deprives

the court of jurisdiction.” Indian River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18-19 (D.D.C. 2017).

“Federal courts lack jurisdiction to decide moot cases because their constitutional authority

extends only to actual cases or controversies.” Conservation Force, Inc. v. Jewell, 733 F.3d

1200, 1204 (D.C. Cir. 2013) (quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70

(1983)); see also U.S. Const. art. III, § 2. To ensure an actual controversy remains extant,

mootness must be assessed at “all stages of review, not merely at the time the complaint is filed.”

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013).

         A case or claim is moot “when the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome.” Schmidt v. United States, 749 F.3d 1064, 1068 (D.C.

Cir. 2014) (quoting Larsen v. U.S. Navy, 525 F.3d 1, 3-4 (D.C. Cir. 2008)). This occurs when,

for example, “intervening events make it impossible to grant the prevailing party effective

relief,” Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008), or when the Court’s decision

“will neither presently affect the parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” Aref v. Lynch, 833 F.3d 242, 250 (D.C. Cir. 2016) (quoting Am.

Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011)).




                                                  5
       “The initial ‘heavy burden’ of establishing mootness lies with the party asserting a case is

moot, but the opposing party bears the burden of showing an exception applies.” Honeywell

Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (citations

omitted). An exception arises when a dispute is “capable of repetition yet evad[es] review.”

United Bhd. of Carpenters v. Operative Plasterers’ Int’l Ass’n, 721 F.3d 678, 687 (D.C. Cir.

2013). This exception applies if “(1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that

the same complaining party would be subjected to the same action again.” Id. (quoting Murphy

v. Hunt, 455 U.S. 478, 482 (1982)).

       “When ruling on a Rule 12(b)(1) motion, the court must treat the complaint’s factual

allegations as true and afford the plaintiff the benefit of all inferences that can be derived from

the facts alleged.” Jeong Seon Han v. Lynch, 223 F. Supp. 3d 95, 103 (D.D.C. 2016) (internal

quotation marks and citation omitted). Those factual allegations, however, receive “closer

scrutiny” than they would in the Rule 12(b)(6) context. Id. Also, unlike the Rule 12(b)(6)

context, a court may consider documents outside the pleadings to evaluate whether it has

jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If

the court determines that it lacks jurisdiction because a claim is moot, the court must dismiss the

claim. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

III. ANALYSIS

       The parties do not contest that the ratification vote cannot be undone. See Pl.’s Opp. at 1-

2, Dkt. 21; Tr. of Mot. Hr’g at 142, July 28, 2017, Dkt. 15. Even so, Noble challenges the

completed vote in Counts I-V of his amended complaint, asserting violations of the LMRDA.

Defendant NALC argues that Counts I-V should be dismissed on mootness grounds.



                                                  6
       All five counts allege that Noble was wronged in an election that concluded months ago.

Counts I and III allege that NALC concealed material information and published false

information about the tentative CBA before the vote. First Am. Compl. ¶¶ 30, 38, Dkt. 18.

Count II alleges that NALC unlawfully prevented Noble from live-streaming the “rap session” in

Atlantic City before the vote was completed. Id. ¶ 34. Count IV alleges that NALC unlawfully

excluded retired members from voting. Id. ¶ 42. And Count V alleges that NALC unlawfully

prevented Noble from using NALC’s email list to oppose the proposed CBA. Id. ¶ 46.

       Based on these allegations, Noble asserts that NALC “denied members their equal right

to vote” and “prevented members from having an informed and meaningful vote on the

ratification of the tentative agreement,” thus violating the LMRDA. Id. ¶¶ 30, 34, 38, 42, 46.

For relief, Noble maintains his request that the Court “[o]rder NALC to cancel the ratification

referendum begun during the week of June 19,” “[o]rder NALC to permit plaintiff to use

NALC’s list of members’ email addresses” to oppose ratification, and issue a declaratory

judgment stating that NALC violated the LMRDA. Id. ¶ 47.

       Although such claims may have presented a live controversy before the ratification vote,

“intervening events”—namely, the ratification vote—“make it impossible to grant [Noble]

relief.” Lemon, 514 F.3d at 1315. This Court “has no power to alter the past.” Herron for Cong.

v. FEC, 903 F. Supp. 2d 9, 13 (D.D.C. 2012). Therefore, it cannot grant the relief requested by

Noble: the Court cannot enjoin or cancel the ratification vote months after it was held, nor can

the Court permit Noble to use NALC’s email list to oppose a vote that already occurred.

Because Noble’s claims no longer present a live controversy, they are moot. See Virginians

Against a Corrupt Cong. v. Moran, No. 92-5498, 1993 WL 260710, at *1 (D.C. Cir. June 29,

1993) (granting motion to dismiss for mootness because “[t]he passage into history of the 1992



                                                7
election makes it impossible for this or any court to grant meaningful relief with respect to that

election.”); Endeley v. United States Dep’t of Def., No. 17-cv-0733, 2017 WL 3327569, at *6

(D.D.C. Aug. 3, 2017) (“[T]he Court cannot enjoin or otherwise provide a non-monetary remedy

(such as declaratory relief) for a past event.”); Sibley v. Alexander, 916 F. Supp. 2d 58, 62

(D.D.C. 2013) (granting motion to dismiss for, inter alia, mootness where plaintiff “sought to

enjoin the electors from casting their ballots” in an vote that “already occurred”).

       Noble does not argue that Counts I-V survive via the exception for claims that are

“capable of repetition yet evade review,” see Pl.’s Opp. at 1-2, but the exception does not apply

to his claims. For a dispute to be “capable of repetition,” there must be a “reasonable

expectation that the same complaining party would be subjected to the same action again.”

United Bhd. of Carpenters, 721 F.3d at 687. “This prong requires that the same parties will

engage in litigation over the same issues in the future.” Id. at 688.

       In this dispute, Noble has not shown that the same issues are likely to recur in the future.

In Count I, Noble alleges that NALC concealed information that was material to the upcoming

ratification vote, specifically the number of CCAs that USPS could employ under the proposed

CBA. First Am. Compl. ¶ 29. Similarly, Count III alleges that NALC falsely stated in May and

June 2017 that the proposed CBA narrowed the compensation gap between CCAs and career

letter carriers. Id. ¶¶ 6, 37. Noble has not shown, however, that these alleged actions amounted

to anything more than a “one-time event.” Herron, 903 F. Supp. 2d at 15. NALC only holds a

ratification vote when it successfully reaches an agreement with USPS. When NALC and USPS

do not reach an agreement, an arbitration board decides the CBA’s terms, without a ratification

vote. Renfroe Second Decl. ¶ 2, Dkt. 19-2. Before the CBA ratification vote challenged by

Noble, ten years had passed since the last NALC contract ratification vote. Id. As a result, any



                                                  8
future need to negotiate a new CBA, and thus any future CBA ratification vote, remains

speculative at this time. And it remains unknown whether any future CBA would include the

same terms as the CBA opposed by Noble, whether NALC would take the same alleged actions

to conceal or misrepresent the CBA’s terms, and whether the same legal issues would arise.

       The issue in Count II is also unlikely to recur. Noble asserts that NALC violated the

LMRDA by preventing him from live-streaming the “rap session” in Atlantic City on June 14,

2017. First Am. Compl. ¶¶ 33-34. Noble has given no reason to expect that (i) there will be

future rap sessions; (ii) he or others will seek to live-stream them; (iii) such actions will conflict

with future NALC policies; (iv) NALC will act to prevent live-streaming; and (v) the same legal

issue will arise. A decision on Noble’s claim, then, would “no[t] have a more-than-speculative

chance of affecting [Noble’s rights] in the future.” Aref, 833 F.3d at 250 (quoting Am. Bar

Ass’n, 636 F.3d at 645).

       Likewise, Noble has not shown a reasonable expectation that NALC will subject him to

the same actions to limit retiree voting as alleged in Count IV. First Am. Compl ¶¶ 41-42.

Again, any future CBA ratification vote remains speculative. Moreover, the NALC convention

has the authority to change NALC’s voting rules for future votes. Renfroe Second Decl. ¶ 4. In

the event of a future vote, it is unknown whether NALC would seek to limit retiree voting,

whether NALC’s voting rules would treat the voting rights of retirees in the same manner, and

whether the same legal issues would arise.

       The issue in Count V is also unlikely to recur. Noble asserts that NALC violated the

LMRDA by refusing to permit him to use NALC’s email list to oppose ratification of the

proposed CBA. First Am. Compl. ¶¶ 44-46. Noble has given no reason to expect, however, that

NALC would take the same alleged action to prevent opponents of any future CBA from using



                                                   9
NALC’s email list.3 As a result, there is not a reasonable expectation that the same actions and

issues alleged in Count V—as well as Counts I-IV—will arise again.

       In addition, even if those actions and issues arose again, there is not a reasonable

expectation that NALC would subject the “same complaining party”—Noble—“to the same

action[s].” United Bhd. of Carpenters, 721 F.3d at 687. As discussed above, future CBA

ratification votes remain speculative. In the same way, Noble’s involvement in any future CBA

ratification votes remains speculative. Therefore, Noble has not shown that his claims in Counts

I-V are sufficiently “capable of repetition” to survive dismissal for mootness.

       Finally, Noble is not aided by his requests for declaratory judgment. He argues that his

claims are not moot because the Court can provide declaratory relief. Pl.’s Opp. at 1-2. But

“[g]enerally, if a case is moot, a request for declaratory judgment will not resuscitate the lawsuit,

unless an exception to the mootness doctrine applies.” Ctr. for Biological Diversity v. Tidwell,

239 F. Supp. 3d 213, 226 (D.D.C. 2017). In particular, “[w]here an intervening event renders the

underlying case moot, a declaratory judgment . . . affords the plaintiff[] no relief whatsoever.”

NBC-USA Hous., Inc., Twenty-Six v. Donovan, 674 F.3d 869, 873 (D.C. Cir. 2012). Here, the

completed vote rendered Noble’s claims moot, so he does not stand to gain any relief from a

declaratory judgment that NALC violated the LMRDA before the vote. Id.; Tidwell, 239 F.

Supp. at 226-27; see also Sibley, 916 F. Supp. at 62-63 (challenge to votes cast by electors

rendered moot after vote was held, even though plaintiff sought a declaratory judgment). Thus



3
 Moreover, to the extent that Noble’s amended complaint seeks NALC’s email list for future
purposes, Count VI still enables Noble to pursue relief. Count VI asserts that NALC violated the
LMRDA by refusing to permit Noble to use NALC’s email list on August 7, 2017 to distribute
campaign materials for his candidacy for the 2018 NALC presidential elections. First Am.
Compl. ¶¶ 49-51. NALC did not move to dismiss Count VI, so this opinion does not address
Count VI and the Court takes no position on its merits.

                                                 10
Noble’s requests for declaratory relief do not save his claims from mootness. The Court, in sum,

“is not in the practical or constitutional position to grant the declaratory and injunctive relief

requested by plaintiff[].” Newdow v. Roberts, 603 F.3d 1002, 1008 (D.C. Cir. 2010).

                                          CONCLUSION

       For the reasons stated above, the Court grants Defendant’s Motion to Dismiss Counts I,

II, III, IV, and V of Plaintiff’s First Amended Complaint. Accordingly, Counts I, II, III, IV, and

V are dismissed without prejudice.

       Because the Court now resolves Defendant’s Motion to Dismiss, Defendant’s Motion to

Stay Discovery Pending Resolution of the Motion to Dismiss is denied.

       A separate order accompanies this Memorandum Opinion.



                                                               ________________________
                                                               DABNEY L. FRIEDRICH
                                                               United States District Judge
Date: January 4, 2018




                                                  11
