                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Douglas E. Massey,                        )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                 Civil No. 1:15-cv-02112 (APM)
                                          )
American Federation of Government         )
Employees, et al.,                        )
                                          )
      Defendants.                         )
_________________________________________ )


                         MEMORANDUM OPINION AND ORDER

I.     INTRODUCTION

       Plaintiff Douglas Massey once held the elected union position of Second Vice President of

the American Federation of Government Employees, or AFGE, Local 17. His termination from

that post arose out of events that took place at AFGE’s 2015 National Convention. At the

Convention, Plaintiff had a tense encounter with Defendant William A. Preston, Local 17’s

President and a supporter of Defendant J. David Cox, the National AFGE President, who was then

running for re-election. Plaintiff was in the lobby of the hotel at which the Convention was held,

distributing leaflets that accused Cox of misusing union funds and opposed Cox’s re-election,

when Preston approached him. Preston urged Plaintiff to cease the leafleting and to support Cox.

Preston then went further, suggesting that he would take away a critical benefit of Plaintiff’s

elected position if Plaintiff maintained his opposition to Cox. Plaintiff responded by placing his

arm around Preston and telling him, “Bill, I’m the wrong guy to bully. You can’t bully me

anymore. Do you understand?”
       Plaintiff alleges that, following this encounter, Preston and Cox undertook a series of

retaliatory actions against him. Plaintiff avers that, while at the Convention, Preston and Cox filed

a false report with the local police accusing Plaintiff of threatening and assaulting Cox. He also

alleges that Preston and Cox caused him to be expelled from the Convention and prevented him

from voting on union matters. Plaintiff further contends that, after the Convention, Preston and

Cox made good on Preston’s threats and, among other things, removed him from his elected

position; barred him from the local union office; made defamatory statements to Plaintiff’s

supervisor, which resulted in his placement on administrative leave for three weeks; and filed a

frivolous application for a temporary restraining order against him. In response to these alleged

actions, Plaintiff filed an internal complaint with AFGE Local 17, which he asserts Cox improperly

took jurisdiction over in order to protect his ally Preston.

       Plaintiff now seeks to hold Defendants Preston, Cox, and AFGE liable for infringing his

speech, voting, and assembly rights as a union member. He brings this action asserting violations

of what is known as the Bill of Rights for Union Members, which is contained within the Labor

Management Reporting and Disclosure Act. All three Defendants have moved to dismiss all

claims against them. For the reasons explained below, Preston’s Motion is denied in its entirety;

AFGE’s Motion is granted in part and denied in part; and Cox’s Motion is granted in its entirety.

II.    BACKGROUND

       A.      Factual Background

       Defendant American Federation of Government Employees (“AFGE”) is a labor

organization that serves employees of the Department of Veterans Affairs (the “VA”), along with

employees of other government agencies. Compl., ECF No. 1, ¶ 5; Def. Preston’s Mot. to Dismiss,




                                                  2
 
ECF No. 13, Mem. in Support, ECF No. 13-1 [hereinafter Preston’s Mot.], at 1. Defendant

J. David President Cox is the National President of AFGE. Compl. ¶ 6.

       Defendant William A. Preston is the President of a local chapter of AFGE, Local 17. Id.

¶ 7. Preston was elected to serve a two-year term, starting in 2014. Id. ¶ 9. As President, Preston’s

primary responsibility is to supervise the local chapter. Id. He also served as a delegate to and a

“sergeant-at-arms” at AFGE’s annual National Convention in 2015. Id.

       Plaintiff Douglas Massey is a lawyer employed by the VA. Defs. AFGE and J. David

Cox’s Mot. to Dismiss, ECF No. 14 [hereinafter AFGE and Cox’s Mot.], at 2. He is a member of

Local 17 and, like Preston, was elected to serve a two-year term as a union officer—as Second

Vice President—starting in 2014. Compl. ¶¶ 4, 8. Since January 2012, Plaintiff “has been on

100% official time with Local 17,” meaning that he conducts union business on a full-time basis

rather than spending part of his time working for the VA. Id. ¶ 10.

               1.      Plaintiff’s Opposition to Cox

       Like Preston, Plaintiff was elected as a delegate to AFGE’s 2015 National Convention,

which was held in Orlando, Florida, in August of that year (the “National Convention” or the

“Convention”). Id. ¶ 8. Before the Convention, a rift began to develop between Plaintiff and

Preston. It began when Plaintiff voted against one of Preston’s specific directives, which involved

sending a newly-appointed Local 17 steward to arbitration training. Id. ¶ 13.

       Their relationship further deteriorated when, two months before the Convention, Plaintiff

made known his opposition to Cox’s re-election as President of AFGE. Id. ¶¶ 14-15. Plaintiff,

during a meeting in Cox’s office, said that he objected to the national union’s donation of $400,000

to the American Friends of the Yitzhak Rabin Center, as well as a trip to Israel taken by Cox and

other AFGE leaders that was entirely funded by union dues. Id. Plaintiff believed that the donation



                                                 3
 
and trip did not benefit AFGE and its members and told Cox that he “would have to seriously

consider supporting one of President Cox’s opponents at the National Convention.” Id.

        The acrimony between Plaintiff and Preston came to a head at the National Convention.

Plaintiff had decided he could not support Cox, and in fact actively opposed him. Two days before

the Convention’s official start, on August 15, 2015, Plaintiff stood in the Convention hotel’s lobby

and distributed flyers encouraging AFGE delegates to vote against Cox. Id. ¶¶ 15, 17. The flyers

stated “VOTE NO TO CORRUPTION!” and “VOTE YES TO REPRESENTATION!” and

identified tens of thousands of dollars of profligate union expenditures allegedly authorized by

Cox, specifically: $51,539 spent at Charlie Palmer Steakhouse; $23,510 spent for Cox’s birthday

party; and $10,000 spent for a voice coach. Id. The flyer urged members “NOT TO VOTE FOR

PRESIDENT COX” and accused Cox of using union dues to “finance [his] lavish and luxurious

lifestyle.” Id.

        The next day, Preston confronted Plaintiff in the lobby of the hotel. Id. ¶ 17. Preston said

to Plaintiff: “I’m asking you as a friend and a colleague to support . . . President Cox,” adding,

“I’m asking you as your boss.” Id. ¶ 18. Plaintiff then asked: “Does that mean you’ll take away

my official time [if I don’t support President Cox]?” Preston replied, “Yes!” Id. Plaintiff then

put his arm around Preston and said, “Bill, I’m the wrong guy to bully. You can’t bully me

anymore. Do you understand?” Id. ¶ 19.

                  2.   Retaliatory Actions against Plaintiff

        Following their confrontation in the hotel lobby, Preston filed a false police report accusing

Plaintiff of threatening and assaulting him. Plaintiff became aware of the report when, that

afternoon, two police officers and the hotel’s head of security questioned him about the incident.

They did not arrest him, and he was permitted to remain at the hotel. Id. ¶ 20.



                                                  4
 
       The next day, August 17, 2015, two AFGE sergeants-at-arms notified Plaintiff “that he was

banned from the Convention hall until a hearing could be held to determine whether or not he

could vote at the Convention.” Id. ¶ 22. The next evening, a panel of sergeants-at-arms (the

“Sergeant-at-Arms Panel”) interviewed both Plaintiff and Preston and determined that Plaintiff

had “tended to disrupt” the Convention—even though Plaintiff’s hotel lobby run-in with Preston

occurred two days before the Convention officially started. The Sergeant-at-Arms Panel decided

that, although Plaintiff could vote for national officers the following day, he would not be

permitted to participate in any subsequent Convention activities, including voting on other union

issues. Id. ¶ 23.

       That did not end the matter, however. After the Convention, on August 23, 2015, Preston

notified Plaintiff by email that he would be removing him from his “official time” position, which

meant that Plaintiff would no longer be able to work full-time for the Union and instead would

have to return to his job at the VA. Id. ¶ 24. Preston also effectively removed Plaintiff from his

elected position. Preston told him that he could no longer represent employees at the VA’s Central

Office, one of his key responsibilities as Second Vice President. Compl. ¶¶ 8, 24. And he further

instructed Plaintiff to come to his union office the next work day to “turn over his files, turn in his

office key, and clean out his workstation.” Id. ¶ 29. Preston also changed the lock on the union

office’s door. Id.

       On August 24, 2015, instead of following Preston’s directives and reporting to his union

office, Plaintiff reported to his VA office. Id. ¶¶ 29-31. Later that day, Preston came to Plaintiff’s

VA office and told Plaintiff’s supervisor that “he feared for his safety because Plaintiff had

threatened and assaulted him at the Convention.” Id. ¶ 31. “Plaintiff was immediately escorted

out of the building by security and placed on administrative leave pending the agency’s three-week



                                                  5
 
investigation.” Id. The agency’s investigator later allowed Plaintiff to return to work “with no

proposed discipline.” Id.

       Also, on August 24, 2015, Preston filed an application for a temporary restraining order

against Plaintiff in D.C. Superior Court. Id. ¶ 32. Preston’s application was denied. Id. In denying

the application, the presiding Judge stated: “I think you’re using this Court to further the interests

you have against [Plaintiff] . . . . I do not credit your testimony as to this threat that he has made

to you.” Id.

       On September 9, 2015, Plaintiff filed a complaint against Preston with Local 17’s

Executive Board, alleging that Preston: (1) had engaged “in conduct unbecoming a union member

based on false and defamatory allegations he made to law enforcement officials at the Convention

and to Plaintiff’s supervisor”; (2) had violated “Local 17 Bylaws by undoing an election and

removing Plaintiff’s duties as second Vice President”; and, rather oddly, (3) that Preston was “an

active member of the Communist Party.” Id. ¶ 33. The Executive Board of Local 17 appointed

an independent committee (the “Local Committee”) to investigate Plaintiff’s allegations. Id. ¶ 34.

The Local Committee ultimately found there to be “probable cause”—of what is not clear from

the Complaint—against Preston. Id.

       That is when Cox stepped in to protect Preston. As President of National AFGE, Cox

exercised his authority to dismiss the Local Committee and ordered the National AFGE to take

over the matter. Id. Two months later, Cox appointed a National Committee to review the charges

against Preston. Id. ¶ 36. As of Plaintiff’s filing of the Complaint, the National Committee had

not commenced its investigation. Id.




                                                  6
 
       B.      Procedural History

       On December 7, 2015, Plaintiff filed a six-count complaint against Preston, Cox, and

AFGE, alleging violations of subsections (a)(1) and (a)(2) of the “Bill of Rights for Union

Members” under the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(1),

(a)(2). Id. ¶ 1. Preston filed a Motion to Dismiss, and AFGE and President Cox filed a separate

joint Motion to Dismiss, with each Defendant seeking dismissal of all claims. See generally

Preston’s Mot.; AFGE and Cox’s Mot. Those Motions are now before the court.

III.   LEGAL STANDARD

       Preston has moved to dismiss all counts against him (Counts I through V) pursuant to

Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust remedies and Rule 12(b)(6) for

failure to state a claim. Preston’s Mot. at 4-13. AFGE and Cox likewise have moved to dismiss

all counts against them under Rule 12(b)(6) and, additionally, Count VI under Rule 12(b)(1) for

lack of standing. AFGE and Cox’s Mot. at 1. The governing legal standards for motions made

under those rules are as follows.

       A.      Rule 12(b)(1)

       On a motion to dismiss brought, as here, under Rule 12(b)(1), a federal court must presume

that it “lack[s] jurisdiction unless the contrary appears affirmatively from the record.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (citation omitted) (internal

quotation marks omitted). The burden of demonstrating the contrary, including establishing the

elements of standing, “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Standing must be demonstrated “for each claim” and “for each form of relief sought,”

DaimlerChrysler, 547 U.S. at 352 (citation omitted) (internal quotation marks omitted), “with the



                                                7
 
manner and degree of evidence required at the successive stages of litigation,” Lujan, 504 U.S. at

561. In evaluating a Rule 12(b)(1) motion, a court has broad discretion to consider relevant and

competent evidence—including materials outside the pleadings. Finca Santa Elena, Inc. v. U.S.

Army Corps of Eng’rs, 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B Charles Wright &

Arthur Miller, Federal Practice & Procedure § 1350 (3d ed. 2004)).

         B.     Rule 12(b)(6)

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(citing Twombly, 550 U.S. at 556). The factual allegations in the complaint need not be “detailed”;

however, the Federal Rules demand more than “an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. (citing Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,

550 U.S. at 555). If the facts as alleged fail to establish that a plaintiff has stated a claim upon

which relief can be granted, a court must grant the defendant’s Rule 12(b)(6) motion. See Am.

Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C.

2013).

         When evaluating a motion to dismiss under Rule 12(b)(6), the court must accept a

plaintiff’s “factual allegations . . . as true,” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 67

(D.C. Cir. 2015), and “construe the complaint ‘in favor of the plaintiff, who must be granted the

benefit of all inferences that can be derived from the facts alleged.’” Hettinga v. United States,


                                                  8
 
677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.

Cir. 1979)). The court need not accept as true, however, “a legal conclusion couched as a factual

allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), or “inferences . . . unsupported by the

facts set out in the complaint,” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.

1994). 

IV.       DISCUSSION

          A.    The Bill of Rights for Union Members

          Title I of the Labor Management Reporting and Disclosure Act (LMRDA) contains what

is known as the Bill of Rights for Union Members. The Bill of Rights originated from the concern

that the original bill that eventually became the LMRDA “did not provide general protection to

union members who spoke out against the union leadership.” United Steelworkers of Am. v.

Sadlowski, 457 U.S. 102, 109 (1982). Title I was “designed to guarantee every union member

equal voting rights, rights of free speech and assembly, and a right to sue.” Id.; see also Local No.

82, Furniture and Piano Moving v. Crowley, 467 U.S. 526 (1984) (“Title I [of the LMRDA] is

designed to guarantee every union member equal rights to vote and otherwise participate in union

decisions, freedom from unreasonable restrictions on speech and assembly, and protection from

improper discipline.”); Finnegan v. Leu, 456 U.S. 431, 435-36, 442 (1982) (“[The LMRDA’s]

concerns [are] with promoting union democracy, and protecting the rights of union members from

arbitrary action by the union or its officers.”). As the Supreme Court has observed, the legislative

history of Title I “reveals that Congress modeled [it] after the [Constitution’s] Bill of Rights,” and

although Title I does not reach as far as the First Amendment itself, “the legislators intended

§ 101(a)(2) [of Title I] to restate a principal First Amendment value—the right to speak one’s mind




                                                  9
 
without fear of reprisal.” Sadlowski, 457 U.S. at 111.

         Two provisions of the Bill of Rights lie at the center of this case. First, Section 101(a)(1),

entitled “Equal Rights,” provides:

         Every member of a labor organization shall have equal rights and privileges within
         such organization to nominate candidates, to vote in elections or referendums of the
         labor organization, to attend membership meetings, and to participate in the
         deliberations and voting upon the business of such meetings, subject to reasonable
         rules and regulations in such organization’s constitution and bylaws.

29 U.S.C. § 411(a)(1). Section 101(a)(2), entitled “Freedom of Speech and Assembly,” provides

that, subject to reasonable rules,

         [e]very member of any labor organization shall have the right to meet and assemble
         freely with other members; and to express any views, arguments, or opinions; and
         to express at meetings of the labor organization his views, upon candidates in an
         election of the labor organization or upon any business properly before the meeting,
         subject to the organization’s established and reasonable rules pertaining to the
         conduct of meetings.

29 U.S.C. § 411(a)(2). An infringement of the rights enumerated in Sections 101(a)(1) or (a)(2),

including retaliation for exercising such rights, is actionable under Section 102. See 29 U.S.C.

§ 412.

         Plaintiff’s Complaint contains six counts, each alleging a violation of Section 101(a)(1) or

(a)(2). In the first five counts, asserted against all three Defendants, Plaintiff advances a claim

arising out of each of the five discrete retaliatory events that allegedly occurred after the hostile

encounter he had with Preston in the Convention hotel lobby, starting with Preston’s filing of a

false police report and concluding with Preston’s abusive filing of the frivolous temporary

restraining order. The sixth count, brought against Cox and AFGE only, concerns Cox’s alleged

improper removal to the National Committee of the investigation into Preston’s actions. Before

addressing the sufficiency of these claims, the court must first address Preston’s argument that




                                                  10
 
Plaintiff failed to exhaust internal union grievance procedures before filing this lawsuit.

        A.     Failure to Exhaust Internal Union Procedures

        Preston argues that Section 101(a)(4) of the LMRDA, 29 U.S.C. § 411(a)(4), “requires”

union members to exhaust reasonable hearing procedures before commencing legal proceedings.

Preston’s Mot. at 11. Thus, he contends, because an internal union investigation into Plaintiff’s

allegations is ongoing, Plaintiff has not exhausted his internal remedies and therefore his claims

must be dismissed. Id. Preston’s argument is unpersuasive.

        First, Preston is simply wrong that Section 101(a)(4) “requires” administrative exhaustion

before filing suit. To the contrary, Section 101(a)(4) provides that “[n]o labor organization shall

limit the right of any member thereof to institute an action in any court . . . [p]rovided, [t]hat any

such member may be required to exhaust reasonable hearing procedures . . . within such

organization, before instituting legal or administrative proceedings.” 29 U.S.C. § 411(a)(4)

(emphasis added). By using the word “may” Congress gave “courts . . . discretion to decide

whether to require exhaustion of internal union procedures.” Clayton v. Int’l Union, 451 U.S. 679,

689 (1981). And in exercising such discretion, courts, as the Supreme Court has instructed, are to

consider three factors:

        [F]irst, whether union officials are so hostile to the employee that he could not hope
        to obtain a fair hearing on his claim; second, whether the internal union appeals
        procedures would be inadequate either to reactivate the employee’s grievance or to
        award him the full relief he seeks . . . and third, whether exhaustion of internal
        procedures would unreasonably delay the employee’s opportunity to obtain a
        judicial hearing on the merits of his claim.

Id. at 689.

        Preston’s exhaustion defense founders on the second factor. Generally, “[t]he burden is on

the [movant] to establish that [the union’s] internal procedures meet the requirements for the

application of the exhaustion of remedies doctrine to union members’ claims.” 48A Am. Jur. 2d

                                                 11
 
§ 1116; Maddalone v. Local 17, United Bhd. of Carpenters and Joiners of Am., 152 F.3d 178, 186

(2d Cir. 1998); Santo v. Laborers’ Int’l Union of N. Am., 836 F. Supp. 2d 100, 112 (E.D.N.Y.

2011). Here, Preston has failed to meet his burden. In fact, he has offered no evidence at all of

the union’s internal grievance procedures. Preston’s Mot. at 11-12. Tellingly, AFGE itself has

not joined in Preston’s exhaustion defense. Rather, the union states that “the AFGE Constitution

does not require exhaustion [of] internal union remedies before a member can proceed to Court.”

Defs. AFGE and Cox’s Reply to Pl.’s Mem., ECF No. 19 [hereinafter AFGE’s Reply], at 8 n.2

(emphasis added). AFGE adds that that “[t]he doctrine of exhaustion of internal remedies would

apply where there are internal union charges or other charges pending against Massey; here,

Massey has no internal union remedies to exhaust.” Id. In light of Preston’s complete failure to

demonstrate that internal union procedures could award Plaintiff the full relief he seeks, the court

rejects his exhaustion argument.

          B.      Preston’s Rule 12(b)(6) Motion

          The court now turns to the sufficiency of Plaintiff’s claims, starting with the challenges

    raised by Preston. Preston first argues that the claims against him are insufficiently pled because

    they do not identify which rights he allegedly violated under Section 101 of the LMRDA.

    Preston’s Mot. at 6. That argument easily fails, however, as Plaintiff clearly has alleged violations

    of the rights contained in Sections 101(a)(1) and (a)(2). Compl. ¶ 39 and ¶¶ 41, 43, 46, 49

    (incorporating all previous allegations).

          Next, Preston contends that Plaintiff “fails to allege sufficient facts to make a plausible

    claim against [him].” Preston’s Mot. at 7. Specifically, as to both Counts I and II—which pertain

    to Preston’s filing of the false police report that led to Plaintiff’s removal from the Convention—

    Preston argues that “there are no facts supporting the allegation that [the police report] was



                                                    12
 
    somehow false.” Id. at 7. That just is not so. Viewing the allegations in the light most favorable

    to Plaintiff, it is not at all implausible to infer that whatever Preston reported to the police and

    others was false. Plaintiff describes merely placing his arm around Preston and telling Preston

    that he could not bully him. See Compl. ¶ 18. To portray such inoffensive conduct as criminal

    to the authorities and union officials plausibly constitutes not just false reporting, but false

    reporting for the purpose of retaliating against Plaintiff for his opposition to Cox.

          Additionally, Preston asserts that Count II cannot stand because he personally did not

    prevent Plaintiff from voting or otherwise participating in Convention activities; rather, he argues,

    the Sergeant-at-Arms Panel was responsible for removing Plaintiff. Preston’s Mot. at 8. But that

    argument ignores the larger picture. Plaintiff has alleged that Preston’s false report caused the

    Sergeant-at-Arms Panel to remove him from the Convention. Such an allegation is sufficient to

    state a claim at the motion to dismiss stage.

          Finally, as to Counts III through IV, Preston argues for the first time in his reply brief that

those claims are not viable because none of the conduct alleged—all of which occurred after the

Convention—“actually prevented Massey from exercising his right to free speech and assembly.”

Def. Preston’s Reply to Pl.’s Mem., ECF No. 18 [hereinafter Preston’s Reply], at 3. Preston’s

argument, however, is foreclosed by Sheet Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347

(1989). The Supreme Court held in Lynn that the plaintiff’s removal from his position as an elected

official in retaliation for his protected expression was actionable under the LMRDA, even though

that removal did not actually prevent the plaintiff from exercising his Title I rights. “Given that

[the plaintiff] was removed from his post as a direct result of his decision to express disagreement

with [a] dues proposal at the special meeting, and that his removal presumably discouraged him




                                                    13
 
from speaking out in the future, [the plaintiff] paid a price for the exercise of his membership

rights.” Lynn, 488 U.S. at 354.

        Such is the case here. Plaintiff also “paid a price” for exercising his Title I rights.

According to the Complaint, because Plaintiff dared to oppose Cox, Preston stripped him of his

union position and other official benefits (Count III); made false statements to Plaintiff’s

supervisor resulting in a three-week administrative leave (Count IV); and filed an abusive motion

for a temporary restraining order (Count V). All of those acts of retribution have the “potential

chilling effect on [the exercise of] Title I free speech rights.” Id. at 645. Moreover, as was the

case in Lynn, because Plaintiff was an elected official, other union members who observed what

happened to him “may well have concluded that one challenge[s] the union’s hierarchy, if at all,

at one’s peril.” Id. Plaintiff, therefore, in Counts III, IV, and V, has made out plausible claims

against Preston for a violation of his Title I rights.

        Finally, as to Count V, Preston argues that this court does not have subject matter

jurisdiction over the common law abuse-of-process claim alleged therein. Preston’s Mot. at 12-

14. But Preston misconstrues Count V. It is not, as he asserts, a common law abuse-of-process

claim. Rather, it is a statutory claim for a violation of Plaintiff’s protected right of expression

under Title I. As already discussed, Count V states a plausible claim for a violation of Title I.

        Preston’s Motion to Dismiss is therefore denied in its entirety.

        C.      AFGE’s Rule 12(b)(6) Motion: Counts I through V

        Plaintiff seeks to hold AFGE liable for Preston’s violations of the LMRDA under the

doctrine of respondeat superior liability. “It has long been established that a collective entity,

including a labor organization, ‘may only be held responsible for the authorized or ratified actions

of its officers and agents.’” Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395,



                                                   14
 
1427 (D.C. Cir. 1988) (citation omitted); see also N. River Energy Corp. v. United Mine Workers

of Am., 664 F.2d 1184, 1190 (11th Cir. 1981) (stating that common-law agency principles “hold a

union liable for all acts of its officers and agents within the scope of their general authority”).

“This standard of liability extends generally to situations in which an international union” or, as in

this case, a national union “is sued for the conduct of its affiliated local.” Berger, 843 F.2d at

1427. To hold the parent union liable for its affiliate’s actions, a “plaintiff must adduce specific

evidence that the [parent] ‘instigated, supported, ratified, or encouraged’ those actions, or ‘that

what was done was done by their agents in accordance with their fundamental agreement of

association.’” Id. (quoting Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 217-18

(1979)). AFGE asserts that the Complaint contains no factual allegations that would satisfy this

standard of liability.

        The court agrees with AFGE as to Counts III through V, but not as to Counts I and II. As

to Counts I and II, Plaintiff has made out a plausible claim to hold AFGE liable for Preston’s

conduct under a direct theory of respondeat superior. Plaintiff has alleged that, while at the

Convention, Preston not only was acting in his capacity as President of Local 17, but as a

Convention sergeant-at-arms for the AFGE. Compl. ¶ 9. As provided in AFGE’s Constitution,

which AFGE attached to its Motion, a sergeant-at-arms has various duties which generally include

“assist[ing] the presiding officer in the maintenance of order.” AFGE Const.. Art. XI. Reading

the Complaint in the light most favorable to Plaintiff, it is plausible to infer that, while Preston was

at the Convention, he was acting in his capacity as a sergeant-at-arms—a union official or agent—

when he made false reports about Plaintiff’s actions to both the police and the Sergeant-at-Arms

Panel. Accordingly, Plaintiff may proceed against AFGE on Counts I and II under a theory of




                                                  15
 
respondeat superior liability.

       The same cannot be said, however, for Counts III through V. Those counts concern

Preston’s conduct that took place after the Convention and thus, at least as alleged, after his role

as a sergeant-at-arms had come to an end. To the extent Preston was acting in any official capacity

as to Counts III through V, it was as President of Local 17. And, to hold AFGE liable for Preston’s

actions in that capacity, Plaintiff would have to allege facts from which a reasonable inference

could be drawn that AFGE “instigated, supported, ratified, or encouraged those actions” or that

Preston’s actions were done “in accordance with the fundamental agreement of association”

between AFGE and Local 17. Berger, 843 F.2d at 1427. The Complaint does not allege sufficient

facts to support such an inference. Indeed, the Complaint is devoid of any allegations that any

official or agent of AFGE collaborated with Preston or in any way supported the retaliatory actions

he took against Plaintiff after the Convention ended.

       Returning to Count II, AFGE raises three additional objections. First, it argues that that

claim rests on mere procedural objections to the process that Plaintiff received (or did not receive)

before his expulsion from the Convention. AFGE and Cox’s Mot. at 8. And, because Plaintiff has

not brought a claim under Section 101(a)(5) for a violation of the procedural requirements for

union discipline, AFGE argues, that claim must be dismissed. AFGE, however, reads Count II too

narrowly. In Count II, Plaintiff does not allege a procedural violation, but alleges a deprivation of

his right to vote, assemble, and express himself at the Convention, which is clearly actionable

under Title I. Compl. ¶ 23 (alleging that Plaintiff was prevented from “participat[ing] in any

subsequent Convention activities, including the vote on the proposed per-capita tax increase”); see

also ¶ 42 (alleging the same).

       Second, AFGE contends that Plaintiff has not made out a Title I claim under Count II



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because he “was expelled from the Convention for conduct and not for statutorily protected

speech.” AFGE and Cox’s Mot. at 8. AFGE cites to the actual Sergeant-at-Arms Panel report

regarding Plaintiff, which states: “There was an incident on Sunday August 18, 2015 and a

delegate’s conduct tended to disrupt the National Convention.” Id., Ex. 1, ECF No. 14-1. The

Sergeant-at-Arms Panel’s report does not, however, specify what the “conduct” was that led to

Plaintiff’s dismissal. Based on the Complaint, it is readily conceivable that the “conduct” at issue

was Plaintiff’s electioneering and expression. The ambiguous Sergeant-at-Arms Panel report—

even assuming that it is properly before the court on a motion to dismiss—does not overcome the

reasonable inferences in Plaintiff’s favor that can be drawn from the well-pleaded facts of the

Complaint.

       AFGE’s final argument as to Count II is that Plaintiff essentially is attempting to re-litigate

the Sergeant-at-Arms Panel’s conclusion. AFGE and Cox’s Mot. at 9. Not so. Plaintiff is seeking

to remedy harms arising from an adverse action that was taken against him by the Sergeant-at-

Arms Panel, which was set in motion by Preston’s false and retaliatory reporting of criminal or

tortious acts. To prove such a violation, Plaintiff would not necessarily have to re-litigate the

correctness of the discipline the Sergeant-at-Arms Panel imposed.

       In light of the foregoing, AFGE’s Motion is denied as to Counts I and II, but granted as to

Counts III through V.

       D.       AFGE and Cox’s Rule 12(b)(1) Motion: Count VI
       In Count VI, Plaintiff asserts that “Cox improperly took jurisdiction of three serious

allegations Plaintiff had filed against Preston because of Preston’s political and financial support,

as well as Plaintiff’s opposition to President Cox and his policies, in violation of the ‘Bill of Rights

for Union Members.’” Compl. ¶ 53. Plaintiff alleges that, before Cox took over the investigation

into Preston’s behavior, the Local Committee found “probable cause” for Plaintiff’s allegations

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against Preston. Id. ¶ 34. As of the filing of the Complaint, the National Committee convened by

Cox had yet to interview a single witness. Id. ¶¶ 36, 53. AFGE and Cox raise a host of arguments

for dismissal of this claim, but the court need only address one: the court agrees that Plaintiff lacks

standing to assert Count VI because he has failed to allege any cognizable injury-in-fact.

       To establish standing, a plaintiff “must show an injury-in-fact that is ‘actual or imminent,

not conjectural or hypothetical,’ and must show causation and redressability.” R.J. Reynolds

Tobacco Co. v. U.S. Food & Drug Admin., 810 F.3d 827, 829 (D.C. Cir. 2016) (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Courts are generally “hesitant to find standing

when the asserted injury ‘depends on the unfettered choices made by independent actors not before

the courts.’” Id. at 831 (finding no standing where the plaintiffs’ allegations—that certain

committee members would likely disclose confidential information—were too speculative); see

also Arpaio, 797 F.3d at 22 (determining that a plaintiff lacked standing where the injury alleged

depended on the commission of future crimes).

       Plaintiff articulates his injury with respect to Count VI as follows. He assumes that because

the National Committee—appointed by Cox—is comprised of Cox’s political supporters, the

National Committee will decide against Plaintiff and in favor of Preston. And, because the Local

Committee had already found “probable cause,” it was likely to decide in his favor and against

Preston. Thus, Plaintiff’s claimed injury is that Cox’s taking of jurisdiction over his complaints

against Preston means that “Preston [will] escape punishment, thereby frustrating Plaintiff’s

administrative remedies.” Compl. ¶ 53.

       The problem with Plaintiff’s asserted injury is two-fold: it is not concrete and it is too

speculative. Recently, in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016), the Supreme Court

emphasized that, for purposes of establishing standing, concreteness requires that the injury



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“actually exist[s],” that is, the asserted injury must be “real” and “not abstract.” That is not to say

that an injury may not be “intangible.” Indeed, it certainly can be, but that type of injury, according

to the Court, must be evaluated in light of the harm that Congress intended to protect against. See

id. at 1549. Here, Title I of the LMRDA seeks to protect union members’ right to engage in the

governance of their own union through voting, expression, and assembly. In light of that concern,

it is difficult to conceive how Plaintiff’s alleged injury—“frustrati[on of his] administrative

remedies”—is truly concrete. Cox’s taking of jurisdiction does not directly infringe upon any of

Plaintiff’s Title I rights and, its chilling effect, if at all, is modest in comparison to the other adverse

actions he has alleged. Instead, his asserted injury is of the “abstract” variety that the Court in

Spokeo held did not satisfy the concreteness requirement.

        Moreover, Plaintiff’s alleged injury is far too speculative. It depends on highly conjectural

assumptions about both investigative committees and ultimately how each would rule. The Court

of Appeals recently confronted similar circumstances in R.J. Reynolds Tobacco, 810 F.3d at 827,

where various tobacco companies sought to challenge the appointment of three members to the

Tobacco Products Scientific Advisory Committee because of conflicts of interest. Among the

injuries the plaintiffs asserted was that the continued service of the three conflicted members

“increased [the] risk that the FDA will regulate menthol tobacco products adversely to plaintiffs’

interests.” Id. at 829. The Court of Appeals rejected that asserted injury, holding that “the

appointment of the challenged committee members by no means rendered the risk of eventual

adverse FDA action substantially probable or imminent.” Id. at 830. Indeed, the Court of Appeals

observed, whether the FDA itself would act on a proposed rule or what that rule might look like

“is quite speculative.” Id. The same is true here. Plaintiff’s assertion that Cox’s action increased

the risk that Preston would “escape punishment,” and thereby increased the risk that Plaintiff



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himself would lose, is entirely speculative. Plaintiff cannot allege, with any degree of certainty,

what the National Committee will do or what the Local Committee would have done if it had been

given the opportunity to see its investigation through to the end. Accordingly, the court concludes

that Plaintiff lacks standing to assert Count VI against AFGE and Cox.

          D.      Cox’s Rule 12(b)(6) Motion: Counts I through V

          Cox has moved to dismiss Counts I through V against him on the ground that Plaintiff has

    not made any particularized factual allegations about his conduct with respect to those claims.

    AFGE and Cox’s Mot. at 3 n.2. The court agrees. Other than the allegation that Cox unlawfully

    took over Plaintiff’s grievance against Preston—which the court already has dismissed for lack

    of standing—the Complaint makes no other averments about Cox’s actual conduct. Plaintiff

    alleges that Preston and Cox were close allies, see Compl. ¶ 14, but does not allege what, if

    anything, Cox actually did to violate his Title I rights.

          Plaintiff argues that his claims against Cox can survive because “the Complaint makes a

    plausible claim that Preston and President Cox collaborated to violate Plaintiff’s rights under the

    LMRDA.” Pl.’s Opp’n to AFGE and Cox’s Mot. to Dismiss, ECF No. 17, at 7. But for such a

    claim to survive a motion to dismiss, the complaint must state “enough factual matter (taken as

    true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. Here, the Complaint

    contains no allegations of fact that would suggest that Cox and Preston agreed to retaliate against

    Plaintiff for his opposition to Cox.

          Accordingly, having already dismissed Count VI against Cox, the court also dismisses

    Counts I through V against him and thus grants his Motion to Dismiss in its entirety.

IV.       CONCLUSION AND ORDER

          For the foregoing reasons, Preston’s Motion to Dismiss is denied in its entirety. AFGE’s



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Motion to Dismiss is denied as to Counts I and II, but granted as to Counts III through VI. And,

Cox’s Motion to Dismiss is granted in its entirety.




Dated: July 8, 2016                                   Amit P. Mehta
                                                      United States District Judge




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