United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER REQUIRING PLAINTIFFS TO
AMEND THEIR COMPLAINT
KETANJI BROWN JACKSON United States District Judge.
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 Plaintiffs
say they are now seeking to litigate (see Pis.'
Resp. to AFGE's Suppl. Br. ("Pis.'Resp."),
ECF No. 19, at 3-5)-which appear nowhere in the complaint-
Plaintiffs must amend their pleading.
complaint in this matter was filed on November 28, 2017. In
this one-count pleading, Plaintiffs allege that AFGE
"has denied [them] access to the AFGE TrueBallot email
system" for the distribution of their campaign
literature, in violation 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
Plaintiffs' second motion for a preliminary injunction,
Plaintiffs specifically ask this Court to "[d]irect AFGE
to grant access to the TrueBallot email system for
distribution of campaign literature[.]" (M, Relief
Requested, ¶ 2; see also Pis.' Revised Mot.
for Prelim. Inj. ("Second Mot. for PI"), ECF No. 8,
at 1 (asking the Court to "[r]equire [AFGE] to give
Plaintiffs 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
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 Plaintiffs were granted
access to that email system. (See Def.'s Surreply in
Opp'n to Pl's Revised Mot. for Prelim. Inj.
("Def.'s Surreply"), ECF No. 15, at 1.) But
Plaintiffs 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 Pis.' Resp. to Order to
Show Cause ("Pis.' Resp. to Show Cause"), ECF
No. 16, at 4.) Thus, Plaintiffs 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.
in their response to this Court's Order to Show Cause
regarding mootness (see Min. Order of Jan. 18,
2018), Plaintiffs represented that three outstanding legal
questions remain in this action: (1) whether AFGE's
refusal to accommodate Plaintiff Hudson's request for
email access at an earlier point in time (in January of 2017)
violated the LMRDA; (2) whether Plaintiffs 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. (See Pis.' Resp. to Show Cause at 5-6,
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. (See Tr. of Prelim. Inj. Mot.
Hr'g at 55:8-18, 63:8-12.) Indeed, the parties have
continued to negotiate various access issues, and Plaintiffs
have informed the Court regarding the status of their talks
and certain concessions that Plaintiffs are apparently
willing to make in light of AFGE's representations. (See
Pls.' Resp. at 1-3.) In their most recent filing,
Plaintiffs 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
Plaintiff Hudson "obtained the [physical] mailing labels
[for union members] ¶ 2016 improperly"; (3) whether
"AFGE's conduct was inconsistent with the LMRD
A's requirements beginning in January 2017"; and (4)
whether "Plaintiffs are entitled to be reimbursed for
their litigation costs and reasonable attorneys
'fees." (Mat3-5.) Plaintiffs also report that they
have offered to withdraw certain previous claims
"[b]ased upon conversations with AFGE's counsel . .
. provided that" AFGE fulfills their new
requests. (See Id. 2-3 (emphasis in original).)
Plaintiffs 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, Plaintiffs are sorely mistaken.
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. Ill. § 2, cl. 1; see also Iron
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 Plaintiffs' various
responses-have "outrun the controversy" that
Plaintiffs 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.
McBryde v. Comm. to Review Circuit Council Conduct &
Disability Orders of Judicial Conference of U.S., 264 F
.3d 52, 55 (DC. Cir. 2001).
simply, the unquestionable gravamen of Plaintiffs' charge
against AFGE as set forth in the complaint is that AFGE
violated the LMRDA by denying Plaintiffs access to the
TrueBallot email system. (See Compl. ¶ 40 (alleging
that "AFGE has 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 Plaintiffs have been granted access to AFGE's
TrueBallot email system and are free to contact delegates
whenever they want, they seek to sustain various new
claims about the adequacy of the TrueBallot system
(see, e.g. , Pls.' 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 Plaintiffs'
own views about how it should operate (see, e.g.,
Pis.' Resp. at 4 (asserting that one unresolved issue is
whether AFGE must provide "a method for Plaintiffs to be
able to select specific portions of the membership" to
for Plaintiffs, the purportedly "remaining issues"
related to the features of the TrueBallot system or the
propriety of how Plaintiff Hudson obtained physical mailing
labels (id. at 3) were not squarely presented in
Plaintiffs' complaint, and Plaintiffs 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 implicitly,
through subsequent briefing or otherwise, see Colbert v.
District oj Columbia, 78 F.Supp.3d 1, 13 (D.D.C. 2015);
therefore, Plaintiffs' current catalog of disputed issues
has no legal effect.
additional complication has arisen with respect to the one
issue that Plaintiffs have identified as the sole remaining
dispute requiring preliminary injunctive relief- i.e.,
whether AFGE must accommodate Plaintiffs' request to
"be able to select specific portions of the
membership" to email. (Pis.' 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.
(See 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
Plaintiffs.").) Thus, this new legal claim is manifestly
unripe, and the Court has no power to review it. Cf.
Socialist 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. United States, 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)).
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 ...