                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 17 1998
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    NATIONAL ASSOCIATION
    FOR THE ADVANCEMENT OF
    COLORED PEOPLE, a voluntary
    association incorporated under the
    laws of the State of New York;                    No. 97-1217
    COLORADO SPRINGS BRANCH                    (D.C. No. 96-WY-2268-WD)
    OF THE NATIONAL ASSOCIATION                         (D. Colo.)
    FOR THE ADVANCEMENT OF
    COLORED PEOPLE, a constituent
    and subordinate unit of the National
    Association for the Advancement
    of Colored People,

               Plaintiffs-Appellees,

    v.

    JAMES TUCKER, an individual,

               Defendant-Appellant.




                           ORDER AND JUDGMENT *



Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Appellant James Tucker appeals from the district court’s order of summary

judgment dismissing his second counterclaim against the National Association for

the Advancement of Colored People (NAACP). In his second counterclaim,

appellant charged that NAACP wrongfully expelled him from membership, thus

violating his contract rights and his “common law right to natural justice and due

process.” Appellant’s App., Vol. I at 60.

      Appellant is a former life member and president of the Colorado Springs,

Colorado Branch of the NAACP. The NAACP is a nonprofit membership

corporation, organized under the laws of the State of New York. See id. at 1, 57.

It operates through chartered branch affiliates, such as the Colorado Springs

Branch, which are independent unincorporated associations. See id. at 128-29;

see generally NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 451-52

(1958) (explaining NAACP corporate structure). The NAACP provides a pattern

form of constitution and bylaws for its affiliates, referred to as the “Branch

Constitution.”


                                         -2-
      Article X of the Branch Constitution provides a procedure by which

NAACP members may bring a complaint against a member or officer of the

NAACP with the national NAACP Board of Directors. The Board of Directors

has the authority to act on such a complaint by suspending, expelling or taking

other disciplinary action against the member or officer. In August and September

1995, members of the Colorado Springs Branch filed two such complaints against

appellant, charging him with misconduct as branch president.

      Appellant filed an answer to each of the complaints. In his answers, he did

not request a hearing. Upon review of the complaints and appellant’s responses,

on October 21, 1995, the NAACP’s national board ordered appellant suspended

from his position as president of the Colorado Springs Branch.

      On November 6, 1995, appellant for the first time formally requested

a hearing on the allegations contained in the complaints. On April 19, 1996,

the NAACP notified appellant that a hearing would be held on May 3, 1996,

in Colorado Springs. Appellant announced through his attorney that he would

not attend the meeting on such short notice. He also announced publicly that he

was reclaiming his presidency of the Colorado Springs Branch, and that he would

hold an NAACP meeting on May 11, 1996.

      On May 3, the NAACP held the scheduled hearing. Appellant did not

appear. At the hearing, new charges were made against appellant relating to his


                                        -3-
continued assertions that he was president of the Colorado Springs Branch, and

his continued practice of holding meetings as its president. The special hearing

panel which held the hearing recommended not only that appellant’s suspension

as president be upheld, but also that his life membership in the NAACP be

revoked based on the new allegations. The national NAACP’s Board of Directors

adopted the recommendation, and revoked appellant’s life membership in the

NAACP.

      The national NAACP and the Colorado Springs Branch thereafter sued

appellant to prevent him from continuing to use the name “NAACP” and the

NAACP logo, and from continuing to hold himself out as president of the

Colorado Springs Branch. Appellant countersued, claiming that he was

wrongfully removed from the presidency and that his membership was terminated

without due process and in violation of the Branch Constitution. The district

court granted summary judgment for the NAACP on all claims. Only appellant’s

counterclaim relating to his expulsion from the NAACP is at issue in this appeal.

      We review summary judgment rulings de novo, applying the same
      standard as the district court. Summary judgment is proper when
      “the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show that
      there is no genuine issue as to any material fact and that the moving
      party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
      56(c). When a moving party makes a properly supported summary
      judgment motion, the nonmoving party has the burden of showing
      a genuine issue for trial, by any of the kinds of evidentiary materials
      listed in Rule 56(c), except the mere pleadings themselves.

                                         -4-
Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quotations

omitted).

      In its decision on appellant’s motion for summary judgment, the district

court found that the NAACP was entitled to summary judgment, because it had

terminated appellant’s membership for a proper reason:

      Mr. Tucker’s continued defiance [to] the board’s decision and his
      attempt to [reclaim] the president’s office provide sufficient basis
      to terminate his membership . . . . It is beyond dispute that
      Mr. Tucker’s attempts to reclaim the president’s office, after he
      was properly suspended, threatened the very existence of the
      Colorado [Springs] branch of the NAACP.

Appellant’s App., Vol. II at 343.

      Appellant does not challenge this finding, other than to state that it is

irrelevant to his procedural claims. See Appellant’s Br. at 17. Appellant’s

failure to contest the district court’s summary judgment finding has important

consequences, however. By failing to contest this finding, he is deemed to have

conceded that there were proper grounds for his expulsion. Cf. Strickland Tower

Maintenance, Inc. v. AT&T Communications, Inc., 128 F.3d 1422, 1426

(10th Cir. 1997) (holding choice of law issue was waived where neither party

challenged district court’s finding on appeal). Given this concession, we must

determine whether he is entitled to any relief.

      In his complaint, appellant sought: (1) reinstatement as a life member of

the NAACP; (2) a declaratory judgment concerning his eligibility to run for local

                                         -5-
or national office in the NAACP; and (3) damages in an amount to be determined

at trial. Appellant fails to show his entitlement to any of these forms of relief.

He is not entitled to reinstatement, because he cannot show that he would have

been retained as a member if the NAACP had observed the proper procedures.

Cf. McGhee v. Draper, 639 F.2d 639, 646 (10th Cir. 1981) (stating, in 42 U.S.C.

§ 1983 case involving deprivation of hearing, that “[i]f the plaintiff can prove that

she would in fact have been retained had full procedural due process been

provided, she may be reinstated.”).

      As appellant is not entitled to reinstatement, he cannot run for office in

the NAACP, and is not entitled to a declaratory judgment to that effect. He also

is not entitled to compensatory damages for termination of his membership.

Cf. Carey v. Piphus, 435 U.S. 247, 260 (1978) (stating petitioners who claimed

they were suspended from school without procedural due process, would not be

entitled to compensatory damages unless they could show that they would not

have been suspended if a proper hearing were held). 1 As it is impossible to grant


1
       Carey held that a plaintiff deprived of due process would at least be entitled
to nominal damages, and to compensation for any mental and emotional distress
which he could prove was suffered as the result of the deprivation. See Carey,
435 U.S. at 264, 266; cf. also Rogers v. Board of Trustees, 859 P.2d 284, 290
(Colo. Ct. App. 1993) (upholding jury’s award of nominal damages on contract
claim brought by employee alleging that he was terminated in violation of
procedural provisions of personnel policies handbook, where good cause existed
for termination of employment). Assuming such a right carries over to the
                                                                       (continued...)

                                          -6-
appellant any of the relief requested in his complaint, this appeal is dismissed as

moot. See Johnson v. Board of County Comm’rs, 85 F.3d 489, 492 (10th Cir.),

cert. denied, 117 S. Ct. 611 (1996).

      The appeal is DISMISSED as moot.



                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




1
 (...continued)
associational context, which is based on contractual rather than constitutional
principles, appellant is not entitled even to nominal damages. As we read his
complaint, it seeks damages for the loss of his membership in the NAACP, not for
deprivation of his procedural rights. No damages can be awarded for the loss of
membership, which was justified.

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