                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUM B IA

                                                 )
EUGENE HUDSON, JR., et al.,                      )
                                                 )
                P laintiffs,                     )
                                                 )
                v.                               )        No. 17-cv-2543 (KBJ)
                                                 )
AMERICAN FEDERATION OF                           )
GOVERNMENT EMP LOYEES,                           )
                                                 )
                Defendant.                       )
                                                 )


                 M EM ORANDUM OPINION AND ORDER
          REQUIRING PLAINTIFFS TO AM END THEIR COM PLAINT

        P laintiffs Eugene Hudson, Jr. and Dana Duggins, who are campaigning to be

union officeholders, have filed the instant lawsuit against their union, the American

Federation of Government Employees (“AFGE”). (See Compl., ECF No. 1.) Because

this Court cannot assure itself of its own jurisdiction to resolve several of the claims

that P laintiffs say they are now seeking to litigate (see P ls.’ Resp. to AFGE’s Suppl. Br.

(“P ls.’ Resp.”), ECF No. 19, at 3–5)—which appear nowhere in the complaint—

P laintiffs must amend their pleading. 1

                                                     I.

        The complaint in this matter was filed on November 28, 2017. In this one-count

pleading, P laintiffs allege that AFGE “has denied [them] access to the AFGE

TrueBallot email system” for the distribution of their campaign literature, in violation


1
 Pag e numbers herein refer t o those t hat t he Court’s electronic case-filing system automatically
as signs.




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of their rights under the Labor-Management Reporting and Disclosure Act (“LMRDA”),

29 U.S.C. § 401 et seq . (Compl. ¶ 40.) And in both the complaint and P laintiffs’

second motion for a preliminary injunction, P laintiffs specifically ask this Court to

“[d]irect AFGE to grant access to the TrueBallot email system for distribution of

campaign literature[.]” (Id., Relief Requested, ¶ 2; see also P ls.’ Revised Mot. for

P relim. Inj. (“Second Mot. for P I”), ECF No. 8, at 1 (asking the Court to “[r]equire

[AFGE] to give P laintiffs immediate access to its email distribution system or to the

TrueBallot e-mail system for distribution of campaign literature to the membership or

selected groups of members”).)

       This request was seemingly fulfilled on January 5, 2018, when the contractor

whom AFGE had hired to prepare the TrueBallot email system for use by candidates to

distribute campaign literature completed its work, and P laintiffs were granted access to

that email system. (S ee Def.’s Surreply in Opp’n to P l.’s Revised Mot. for P relim. Inj.

(“Def.’s Surreply”), ECF No. 15, at 1.) But P laintiffs apparently harbor qualms about

the operation and scope of the TrueBallot system, and they have also expressed

concerns about the union’s delay in granting them access to that system. (See P ls.’

Resp. to Order to Show Cause (“P ls.’ Resp. to Show Cause”), ECF No. 16, at 4.) Thus,

P laintiffs have refused to concede that their receipt of access to TrueBallot moots their

case, and instead, have pivoted toward making various other contentions about AFGE’s

purported violations of the law.

       Specifically, in their response to this Court’s Order to Show Cause regarding

mootness (see Min. Order of Jan. 18, 2018), P laintiffs represented that three

outstanding legal questions remain in this action: (1) whether AFGE’s refusal to




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accommodate P laintiff Hudson’s request for email access at an earlier point in time (in

January of 2017) violated the LMRDA; (2) whether P laintiffs are entitled to litigation

costs and attorney’s fees in connection with their filing of this lawsuit; and (3) whether

granting the candidates access to the TrueBallot email system actually fulfills AFGE’s

obligations under the LMRDA, because even with such access, candidates allegedly

were not permitted to distribute literature to local delegates until all local delegates are

elected, nor could candidates reach the entire membership of rank-and-file members,

including those for whom the union has only a government or union email address on

file. (S ee P ls.’ Resp. to Show Cause at 5– 6, 9–14.)

       P laintiffs’ position shifted yet again after AFGE’s counsel orally represented

during this Court’s motion hearing that AFGE will permit candidates to make

distributions to local delegates using the TrueBallot email system on a rolling basis.

(S ee Tr. of P relim. Inj. Mot. Hr’g at 55:8– 18, 63:8– 12.) Indeed, the parties have

continued to negotiate various access issues, and P laintiffs have informed the Court

regarding the status of their talks and certain concessions that P laintiffs are apparently

willing to make in light of AFGE’s representations. (See P ls.’ Resp. at 1–3.) In their

most recent filing, P laintiffs indicate that, now, the following are the only issues that

remain in dispute: (1) “[w]hether the LMRDA gives candidates the right to distribute

campaign literature to a specific portion of the membership if such distribution is

practical” (i.e., whether any email system that AFGE provides must permit candidates

“to select specific portions of the membership” to email); (2) whether P laintiff Hudson

“obtained the [physical] mailing labels [for union members] in 2016 improperly”; (3)

whether “AFGE’s conduct was inconsistent with the LMRDA’s requirements beginning




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in January 2017”; and (4) whether “P laintiffs are entitled to be reimbursed for their

litigation costs and reasonable attorneys’ fees.” (Id. at 3–5.) P laintiffs also report that

they have offered to withdraw certain previous claims “[b]ased upon conversations with

AFGE’s counsel . . . p rovided that” AFGE fulfills their new requests. (See id. 2–3

(emphasis in original).)

       Thus, P laintiffs appear to believe that this Court stands ready to act as referee

and counselor with respect to the parties’ perpetual renegotiations of their respective

positions on various issues based on real-time developments in the factual landscape as

this case proceeds. For the reasons explained below, P laintiffs are sorely mistaken.

                                             II.

       Federal courts are constrained by Article III of the U.S. Constitution to exercise

their powers only with respect to actual “[c]ases” or “[c]ontroversies[.]” U.S. Const.

art. III, § 2, cl. 1; see a lso Iro n Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983).

Given the above recitation of the manner in which this litigation has unfolded, there can

be no doubt that intervening events in the instant case—i.e., AFGE’s grant of access to

TrueBallot, and P laintiffs’ various responses—have “outrun the controversy” that

P laintiffs presented in their complaint, such that at least some of their initial claims are

now moot, and this Court “can grant no meaningful relief” with respect to them.

M cBryde v. Comm. to Review Circuit Co uncil Co ndu ct & Disab ility Orders o f Ju dicial

Co n f erence o f U.S., 264 F.3d 52, 55 (D.C. Cir. 2001).

       Stated simply, the unquestionable gravamen of P laintiffs’ charge against AFGE

as set forth in the complaint is that AFGE violated the LMRDA b y d en ying Pla intiffs

a ccess to th e TrueBallot email system. (See Compl. ¶ 40 (alleging that “AFGE has




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denied [them] access to the AFGE TrueBallot email system”); id . ¶ 45 (alleging that

“General Counsel Borer’s refusals to permit candidate Hudson to distribute campaign

literature through the TrueBallot system until after the election of all Convention

delegates violated the LMRDA”); id ., Relief Requested, ¶ 2 (asking the Court to

“[d]irect AFGE to grant access to the TrueBallot email system for distribution of

campaign literature”).) But now that P laintiffs have been granted access to AFGE’s

TrueBallot email system and are free to contact delegates whenever they want, they

seek to sustain various n ew claims about the adequacy of the TrueBallot system (see,

e.g., P ls.’ Resp. to Show Cause at 8–14 (arguing that the TrueBallot system does not

fulfill the requirements of the LMRDA)), including demands that AFGE alter

TrueBallot’s mechanisms to reflect P laintiffs’ own views about how it should operate

(see, e.g., P ls.’ Resp. at 4 (asserting that one unresolved issue is whether AFGE must

provide “a method for P laintiffs to be able to select specific portions of the

membership” to email)).

          Unfortunately for P laintiffs, the purportedly “remaining issues” related to the

features of the TrueBallot system or the propriety of how P laintiff Hudson obtained

physical mailing labels (id. at 3) were not squarely presented in P laintiffs’ complaint,

and P laintiffs themselves appear to recognize as much, given their repeated, updated

representations regarding the issues that the parties have yet to resolve. It is also clear

beyond cavil that a complaint’s claims cannot be amended imp licitly, through

subsequent briefing or otherwise, see Co lb ert v. District o f Co lumb ia, 78 F. Supp. 3d 1,

13 (D.D.C. 2015); therefore, P laintiffs’ current catalog of disputed issues has no legal

effect.




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       An additional complication has arisen with respect to the one issue that P laintiffs

have identified as the sole remaining dispute requiring preliminary injunctive relief—

i.e., whether AFGE must accommodate P laintiffs’ request to “be able to select specific

portions of the membership” to email. (P ls.’ Suppl. Resp. at 3–4.) It appears that

Defendant AFGE has not even responded to this claim, either orally or in writing, much

less responded in a manner that clearly demonstrates that a case or controversy exists

with respect to this contention. (S ee id . (“AFGE counsel said he understood the request

and would be following up with AFGE on the matter, but he did not waive AFGE’s

right to object to the legal obligation to provide such selection ability to P laintiffs.”).)

Thus, this new legal claim is manifestly unripe, and the Court has no power to review

it. Cf . S o cialist Labor Party v. Gilligan, 406 U.S. 583, 589 (1972) (finding a case

premature for adjudication where the remaining issue was “one that received scant

attention in [the] complaint” and in the briefing, and any injury was speculative); Texas

v. Un ited S tates, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it

rests upon contingent future events that may not occur as anticipated, or indeed may not

occur at all.” (internal quotation marks and citation omitted)).

       The bottom line is this: this Court knows full well that lawsuits can be catalysts

for change, and as such, they can sometimes evolve as the parties undertake real-time

reevaluations of their respective positions. But federal courts can only resolve live

disputes that are nonetheless pinned down sufficiently, so as to present concrete, actual

controversies for the court to dissect; we have neither the authority nor the ability to

adjudicate constantly moving targets. And the instant case has now morphed into a

being that bears no resemblance to the matter P laintiffs first presented to this Court.




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                                          III.

       Therefore, it is hereby

       ORDERED that, on or before M arch 16, 2018, P laintiffs shall file an amended

complaint that reflects their current claims against Defendant AFGE, and removes any

claims that have been mooted or withdrawn. For clarity, P laintiffs are encouraged to

plead those claims that pertain to different provisions of the LMRDA (and its related

regulations) in separate counts. It is

       FURTHER ORDERED that, in light of the anticipated amended complaint,

P laintiffs’ second motion for preliminary injunction (ECF No. 8) is DENIED

WITHOUT PREJ UDICE. If P laintiffs believe that preliminary injunctive relief is still

necessary with respect to any of the claims that are made in the amended complaint,

they may file a new motion for a preliminary injunction, on or before M arch 1 6, 20 18,

along with their amended complaint. Following P laintiffs’ submission of the amended

complaint and any preliminary injunction motion, the Court will issue an order that

addresses Defendant’s obligation to answer or otherwise respond to the amended

complaint.


DATE: March 2, 2018                              Ketanji Brown Jackson
                                                 KETANJI BROWN JACKSON
                                                 United States District Judge




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