Petty v. American Federation of Government Employees ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHAWN PETTY,
Plaintiff,
v. Civil Action No. 21-3161 (CKK)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
Defendant.
MEMORANDUM OPINION
(December 17, 2021)
Following allegations of sexual misconduct, Plaintiff Shawn Petty resigned from his
position as a National Vice President of Defendant American Federation of Government
Employees (“Defendant” or “AFGE”). In the evening of December 8, 2021, Plaintiff filed a [9]
Motion for a Temporary Restraining (“TRO Motion”), seeking—among other relief—to enjoin an
internal trial committee hearing that was then scheduled for 11:00 a.m. on December 9, 2021.
Plaintiff argued that he had not received timely notice of the trial committee proceeding or the
charges against him. He also argued that his resignation as a National Vice President was
“ineffective,” that he continues to hold that position, and, therefore, that AFGE must proceed with
any disciplinary actions pursuant to Article XIII of its National Constitution—instead of the
procedures provided by Articles IX and XXIII, which guide disciplinary procedures for members.
Plaintiff seeks a temporary restraining order (1) reinstating him as National Vice President; (2)
requiring AFGE to send a letter informing all AFGE members and officers that he did not resign
1
from his national position; and (3) cancelling the trial committee hearing, which is now scheduled
to take place no earlier than December 20, 2021. 1
Upon review of the pleadings, 2 the relevant legal authority, and the record as it stands at
this early juncture, the Court concludes that Plaintiff has failed to carry his burden to demonstrate
that he is entitled to the drastic relief of a temporary restraining order preventing the trial committee
hearing from proceeding on December 20, 2021 or later, reinstating Plaintiff as a national officer,
and requiring that AFGE inform its members that Plaintiff did not resign. Accordingly, the Court
DENIES the remainder of Plaintiff’s Motion for a Temporary Restraining Order.
I. BACKGROUND
Defendant American Federation of Government Employees (“AFGE”) is a national labor
union, which maintains its principal office in Washington, D.C. and is comprised of 1,067 local
affiliates. Compl. ¶¶ 10, 11, ECF No. 1. AFGE is governed by a National Executive Council (the
1
Plaintiff’s TRO Motion also sought to enjoin a special election scheduled for December 11, 2021 to fill
the position from which Plaintiff had resigned. The Court previously addressed that portion of the motion
and denied Plaintiff’s request for a TRO to prevent that election from proceeding. See Order, ECF No. 28;
Mem. Op., ECF No. 29. This Memorandum Opinion addresses the remaining relief requested by Plaintiff
in his TRO Motion. See Order, ECF No. 20.
2
The Court’s consideration has focused on the following:
x Plaintiff’s Motion for Temporary Restraining Order (“Pl.’s TRO Mot.”), ECF No. 9;
x Plaintiff’s Memorandum of Points & Authorities in Support of Plaintiff’s Motion for a Temporary
Restraining Order (“Pl.’s TRO Mem.”), ECF No. 12;
x Defendant AFGE’s Opposition to Plaintiff’s Motion for a Temporary Restraining Order (“Def.’s
Opp’n”), ECF No. 21;
x Plaintiff’s Reply on the Issue of Whether Plaintiff Timely Rescinded his Resignation or Whether
Kelley Had Authority to Accept Resignation Without Approval of the NEC (“Pl.’s Reply”), ECF
No. 22;
x Defendant AFGE’s [Second] Opposition to Plaintiff’s Motion for a Temporary Restraining Order
(“Def.’s (2d) Opp’n”), ECF No. 32;
x Plaintiff’s Reply to Defendant AFGE’s Opposition to Plaintiff’s Motion for a TRO (“Pl.’s (2d)
Reply”), ECF No. 34.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of
assistance in rendering a decision. See LCvR 7(f).
2
“Council”), comprised of the National President, the National-Secretary Treasurer, the National
Vice President for Women and Fair Practice, and twelve National Vice Presidents. Plaintiff Shawn
Petty is a member of AFGE’s Local 916, which represents employees of the U.S. Department of
Defense at Tinker Air Force Base in Oklahoma City, Oklahoma. Id. ¶ 7. Plaintiff was elected to
serve as “National Vice President for District 9” on October 3, 2020. Id. ¶¶ 1, 5, 8.
In this action, Plaintiff alleges that he was forced to resign from his position as a National
Vice President following allegations that he had sexually harassed and/or assaulted an AFGE
member at a union-hosted event in October 2021. See id. ¶¶ 114–36. Plaintiff now claims that his
resignation was not “effective” because it was not “approved” by the Council before he
communicated to AFGE’s National President that he wanted to rescind his resignation. Id.
¶¶ 137–53, 159–60. Based on that claim, Plaintiff filed a Motion for Temporary Restraining Order
(“TRO Motion”) on December 8, 2021, seeking, among other relief, to enjoin a December 9, 2021
trial committee hearing and a December 11, 2021 special election to fill the position from which
he resigned. See Pl.’s TRO Mem. at 1. With both parties’ agreement, the trial committee hearing
was postponed until at least December 20, 2021. See Order, ECF No. 20. The Court has already
denied Plaintiff’s request to enjoin the special election. See Order, ECF No. 28.
To provide context for Plaintiff’s last-minute request to enjoin these events, the Court shall
present the facts—as they are alleged in the Complaint or otherwise presented on the current
record—underlying Plaintiff’s resignation and his efforts to rescind his resignation. The Court
shall then discuss Plaintiff’s present request for immediate injunctive relief, as it pertains to the
remaining portions of Plaintiff’s TRO Motion that were not addressed by the Court in its December
10, 2021 Order and Memorandum Opinion, ECF Nos. 28, 29.
3
A. Factual Background
Plaintiff attended a three-day training session sponsored by AFGE at a Days Inn in Altus,
Oklahoma from October 19–22, 2021. Compl. ¶¶ 23, 24. He claims that, during that event, he
had a “consensual physical contact” with an “Unnamed Female,” who is also an AFGE member.
Id. ¶ 40. The “contact” purportedly occurred in the presence of witnesses and was captured by the
hotel’s surveillance cameras. Id. ¶¶ 106, 108. Plaintiff claims that this “Unnamed Female”
initiated the “contact” by flirting with him and massaging his shoulders, and that she did not
complain to other AFGE local and national officers present at the conference that the contact was
“unwelcomed.” Id. ¶¶ 66, 89.
Plaintiff alleges that on October 25, 2021, he received a telephone call from AFGE’s
National President, Everett Kelley. Id. ¶ 113. Mr. Kelley told him that the Unnamed Female had
filed charges against Plaintiff. Id. ¶ 114. Mr. Kelley then told Plaintiff that he had viewed the
surveillance video from the Days Inn and that “it doesn’t look good.” Id. ¶ 117. Mr. Kelley then
allegedly told Plaintiff that it would be “best” for Plaintiff’s family and AFGE’s National
Executive Council for Plaintiff to resign from his position as a National Vice President. Id. ¶ 130.
Plaintiff responded that he wanted to go on “stress leave” for a few weeks before making any
decision, but Mr. Kelley refused this proposal. Id. ¶¶ 131–32. Mr. Kelley then allegedly informed
Plaintiff that if he did not immediately submit a letter of resignation, Mr. Kelley would “call an
emergency meeting with the [National Executive Council] tomorrow, and with everything going
on, it would be political suicide for the [Council] not to remove you from your position. It would
be best if you made it easy for yourself and the [Council] by resigning.” Id. ¶ 133. Plaintiff told
Mr. Kelley that he would consider resigning. Id. ¶ 134.
Plaintiff alleges that, approximately 90 minutes after this phone call, Mr. Kelley called him
again and “pressured him to resign.” Id. ¶ 136. At 9:45 p.m. on October 25, 2021, Plaintiff sent
4
an email to Mr. Kelley, stating, “Due to personal reasons, I am resigning as 9th District National
Vice president effective today, October 25, 2021.” Def.’s Opp’n Ex. 4, 10/25/21 9:45 PM Email
from S. Petty to E. Kelley, ECF No. 21-4. Less than one hour later, Mr. Kelley responded, “I accept
your resignation effective immediately. You are no longer authorized to act on behalf of AFGE,
and you have relinquished all rights and privileges of your office.” Def.’s Opp’n Ex. 5, 10/25/21
10:22 PM Email from E. Kelley to S. Petty, ECF No. 21-5. The same email noted that AFGE
“reserves it rights to investigate the conduct alleged against you and take any and all action it
deems appropriate.” Id.
After Mr. Kelley accepted Plaintiff’s resignation, he immediately notified the Council. See
Def.’s Opp’n at 10; Def.’s Opp’n Ex. 2, 10/25/21 Mem. re: Vacancy in District 9 National Vice
President Position, ECF No. 21-2; Def.’s Opp’n Ex. 7, 10/25/2110:45 PM Email from E. Kelley
to “NEC Only,” ECF No. 21-7. Mr. Kelley also informed “District 9 Leaders” on October 26,
2021 that Plaintiff had resigned from his position and that Mr. Kelley had accepted his resignation.
Def.’s Opp’n Ex. 12, 10/26/21 12:22 PM Email from E. Kelley, ECF No. 21-12. He noted that a
special election would be held to fill the vacancy. Id.
On October 28, 2021, Plaintiff changed his mind about resigning. Compl. ¶ 146. He sent
a letter by email to Mr. Kelley, indicating that he wanted to rescind his resignation. Id. ¶ 147. In
a subsequent telephone conversation, Mr. Kelley told Plaintiff that he did not know whether or not
Plaintiff could withdraw his resignation, but that he would speak with AFGE’s General Counsel
about the matter. Id. ¶¶ 150, 152.
On October 29, 2021, Mr. Kelley responded to Plaintiff by letter, indicating that Plaintiff’s
resignation was “final and binding,” that his “attempted recission [sic] is not effective,” and that
“given the nature of the alleged misconduct, your attempted recission [sic] would not be accepted,
5
regardless.” Def.’s Opp’n Ex. 11, 10/29/21 Letter from E. Kelley to S. Petty, ECF No. 21-11. Mr.
Kelley’s letter recounts that Plaintiff had resigned from his position “first verbally and then in
writing, on Monday October 25, 2021,” and that Mr. Kelley had “responded in writing on that
same date accepting your resignation on behalf of AFGE.” Id. It further notes that Plaintiff’s
“alleged conduct, specifically an alleged sexual assault/sexual harassment, in a public area of a
hotel during an AFGE event with witnesses present and a security camera recording the entire
scene, was utterly egregious” and that he had “referred the matter to the Legal Rights Committee
for investigation and recommendations concerning what further actions, if any, AFGE should take
against [Plaintiff].” Id.
On November 1, 2021, Plaintiff’s counsel sent a letter to Mr. Kelley, all members of the
National Executive Council, and AFGE’s General Counsel, stating Plaintiff’s position that Mr.
Kelley had no legal authority to accept his resignation because only the Council had authority to
do so. Compl. ¶ 159. The same letter stated Plaintiff’s position that Mr. Kelley did not have
authority to reject Plaintiff’s attempt to rescind his resignation because the Council had not yet
voted to accept his resignation. Id. ¶ 160. Plaintiff’s counsel subsequently notified Defendant’s
counsel, on November 11, 2021, that Plaintiff intended to seek a temporary restraining order,
enjoining the special election. See Def.’s Opp’n Ex. 9, 11/11/21 8:37 PM Email from K. Morten
to D. Borer, R. Sanghvi, ECF No. 21-9.
On November 15, 2021, AFGE’s counsel sent to Plaintiff’s counsel a letter from Mr. Kelley
addressed to Plaintiff, indicating that, pursuant to Articles IX and XXIII of the AFGE National
Constitution, he was “preferring charges” against Plaintiff based on the allegations of
“inappropriate sexual conduct” during the training event in Oklahoma. See Def.’s Opp’n Ex. 3,
11/15/21 Letter from E. Kelley to S. Petty c/o K. Morton at 1, ECF No. 21-3. The same letter
6
indicates that, under Article IX, Section 5(e), Mr. Kelley would “appoint[ ] a trial committee to
adjudicate the charges against you.” Id. In his TRO Motion, Plaintiff indicates that he was not
“serve[d]” with these charges until December 6, 2021, when he received them by certified mail.
Pl.’s TRO Mem. at 14. Plaintiff also claims that he was only notified on December 6, 2021 that
the trial committee was scheduled to take place on December 9, 2021 at 11:00 a.m. Id.
On November 23, 2021, Plaintiff announced his candidacy for the National Vice President
for District 9 special election. Def.’s Opp’n Ex. 10, 11/23/21 Email from S. Petty to E. Bunn
(AFGE), ECF No. 21-10. After the Court denied Plaintiff’s TRO Motion to the extent it sought to
enjoin the special election, the election proceeded as scheduled on December 11, 2021; Plaintiff
was not elected to the National Vice President for District 9 position. See Def.’s (2d) Opp’n at 9.
B. Plaintiff’s Motion for a Temporary Restraining Order
In the evening of December 8, 2021, Plaintiff filed a [9] Motion for Temporary Restraining
Order and later, at 11:02 p.m., filed a [12] Memorandum of Points and Authorities in support
thereof. On December 9, 2021, at 9:15 a.m., the Court held the first of two teleconferences with
the parties. During this first teleconference, the Court discussed with the parties the more
imminent event Plaintiff sought to enjoin—the trial committee hearing then-scheduled to begin
less than two hours later, at 11:00 a.m. The Court discussed with the parties what notice Plaintiff
had received of the charges against him and of the trial committee hearing date. Plaintiff indicated
that AFGE’s National Constitution requires that he receive 14-days’ notice of the charges against
him and of the trial committee hearing date, but that he did not receive notice of either until
December 6, 2021. AFGE’s counsel indicated that AFGE had provided Plaintiff notice of the
charges by letter to his counsel on November 15, 2021 and that it had notified Plaintiff of the
December 9, 2021 hearing date as of November 24, 2021. Plaintiff’s counsel responded that, at
the time Mr. Kelley preferred charges against Plaintiff on November 15, 2021, the scope of her
7
representation of Plaintiff did not encompass the internal disciplinary proceedings initiated by
AFGE, which she claims was conveyed to AFGE’s counsel when she informed AFGE that she
would not accept “service” of the charges on Plaintiff’s behalf. The Court directed the parties to
provide to the Court their communications showing when Plaintiff received notice of the charges
and the hearing date.
Upon review of these communications, the Court concluded that whether Plaintiff’s
counsel had clearly communicated the scope of her representation and whether Plaintiff had
received sufficient notice of the charges and hearing date was not clear-cut. Accordingly, after its
initial review of these communications, the Court held a second teleconference with the parties, at
12:30 p.m. on December 9, 2021 to discuss how to proceed with addressing Plaintiff’s TRO
Motion. See Minute Order (Dec. 9, 2021).
During the second teleconference, the parties agreed that the trial committee hearing would
be postponed until at least December 20, 2021—14 days after Plaintiff indicates he received formal
“service” of the charges against him and notice of the trial committee hearing date. The parties
also agreed that they would first proceed with briefing Plaintiff’s claims pertaining to his request
for a TRO enjoining the December 11, 2021 special election. See Order, ECF No. 20. The Court
denied that portion of the TRO Motion on December 10, 2021. See Order, ECF No. 28; Mem.
Op., ECF No. 29. 3
The remainder of Plaintiff’s TRO Motion is now before the Court. Plaintiff seeks an order
“reinstating” him as the National Vice President for District 9; directing AFGE to “send a letter”
to “all AFGE members, officers, and staff informing them that that [Plaintiff] did not resign due
3
On December 12, 2021, Plaintiff filed a [30] Motion for Reconsideration of the Court’s order denying
Plaintiff’s TRO Motion to the extent it sought to enjoin the special election. The Court denied the motion
for reconsideration on December 13, 2021. See Order, ECF No. 31.
8
to allegations of misconduct, but rather that he rescinded his resignation and denies that he engaged
in misconduct”; and “[c]anceling” the “trial committee hearing” and “restraining” Mr. Kelley from
“appointing a trial committee” to adjudicate the “Article XXIII charges.” Pl.’s TRO. Mem. at 34.
II. LEGAL STANDARD
“Temporary restraining orders and preliminary injunctions are ‘extraordinary remed[ies]
that should be granted only when the party seeking the relief, by a clear showing, carries the burden
of persuasion.’” Lofton v. District of Columbia, 7 F. Supp. 3d 117, 120 (D.D.C. 2013) (quoting
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). An
application for a TRO is analyzed using the same factors applicable to a request for preliminary
injunctive relief. See, e.g., Gordon v. Holder, 632 F.3d 722, 723–24 (D.C. Cir. 2011) (applying
preliminary injunction standard to district court decision denying motion for TRO and preliminary
injunction); Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011) (articulating TRO elements
based on preliminary injunction case law).
Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“[A] preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” (internal quotation marks omitted)). A plaintiff
seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the
balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v.
Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (internal citation and quotation marks omitted).
When seeking such relief, “the movant has the burden to show that all four factors, taken together,
9
weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (internal
citation and quotation marks omitted). “The four factors have typically been evaluated on a
‘sliding scale.’” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009).
Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one
of the factors, then it does not necessarily have to make as strong a showing on another factor.”
Id. at 1291–92.
It is unclear whether the United States Court of Appeals for the District of Columbia
Circuit’s sliding-scale approach to assessing the four preliminary injunction factors survives the
Supreme Court’s decision in Winter. See Save Jobs USA v. Dep’t of Homeland Sec., 105 F. Supp.
3d 108, 112 (D.D.C. 2015). Several judges on the D.C. Circuit have “read Winter at least to
suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for
a preliminary injunction.’” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296(Kavanaugh, J., concurring)). However, the D.C. Circuit has yet to hold definitively that Winter
has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112.
In light of this ambiguity, the Court shall consider each of these factors and shall only evaluate the
proper weight to accord the likelihood of success if the Court finds that its relative weight would
affect the outcome.
III. DISCUSSION
A. Likelihood of Success on the Merits
In order to receive a TRO, the moving “party must show, among other things, ‘a substantial
likelihood of success on the merits.’” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913
(D.C. Cir. 2015) (emphasis added) (quoting Mills v. District of Columbia, 571 F.3d 1304, 1308
(D.C. Cir. 2009)). “The merits on which plaintiff must show a likelihood of success encompass
not only substantive theories but also establishment of jurisdiction.” Elec. Priv. Info. Ctr. v. Dep’t
10
of Com., 928 F.3d 95, 104 (D.C. Cir. 2019) (internal quotations and citations omitted). Therefore,
“[t]o establish likelihood of success on the merits, Plaintiffs must first establish that their claims
are justiciable.” Rai v. Biden, No. 21-CV-863-TSC, 2021 WL 4439074, at *4 (D.D.C. Sept. 27,
2021) (citing Food & Water Watch, Inc., 808 F.3d at 913). A plaintiff who fails to show a
substantial likelihood of jurisdiction is “not entitled to any relief, let alone the extraordinary
remedy” of preliminary injunctive relief. See Schindler Elevator Corp. v. WMATA, 514 F. Supp.
3d 197, 212 (D.D.C. 2020), aff’d No. 21-7008, 2021 WL 4928730 (D.C. Cir. Oct. 22, 2021).
As discussed below, Plaintiff has failed to carry his burden of demonstrating a substantial
likelihood of success on the merits of his remaining requests for relief, and he has similarly failed
to carry his burden of demonstrating that the Court has jurisdiction. Therefore, this first factor
weighs decidedly against granting the drastic relief Plaintiff seeks here.
1. Plaintiff’s Claims Regarding Lack of Notice Are Moot Due to the
Postponement of the Trial Committee Hearing.
In his TRO Motion, Plaintiff sought to enjoin the trial committee hearing from proceeding
on December 9, 2021 based, in large part, on his claim that he had not received 14 days’ notice of
the hearing date and had not been “served” with the charges at issue until December 6, 2021. See
Pl.’s TRO Mem. at 14, 23, 32, 34. The AFGE Constitution requires that “the presiding officer
shall notify the accused and those who preferred the charges by registered or certified mail of the
time and place of trial, and such trial shall be held promptly but shall not be held less than two
weeks after the mailing of the notice[.]” AFGE Constitution Art. XXIII § 4.
AFGE agreed to postpone the trial committee hearing until at least December 20, 2021—
14 days after Plaintiff indicates that he was “served” with the charges and notice of the hearing
date. See supra Section I(B); Order, ECF No. 20. Accordingly, Plaintiff’s request for a TRO to
enjoin the trial committee hearing based on lack of adequate notice is no longer a live issue.
11
2. Plaintiff Has Failed to Demonstrate a Substantial Likelihood of Success on the
Merits of His Remaining Claims for Relief.
In addition to challenging the timing of the trial committee hearing, Plaintiff also seeks an
order “cancelling” the trial committee hearing altogether, based on his claim that AFGE must
follow the procedures provided in Article XIII of the AFGE Constitution, which applies to charges
against national officers. See Pl.’s (2d) Reply at 20–21 (“[Mr.] Kelley should have filed
disciplinary charges against Plaintiff under Article XIII which governs disciplinary charges filed
against national officers. Instead, Kelley filed Article IX and Article XXIII charges[.]”). Mr.
Kelley appointed the trial committee pursuant to Articles IX and XXIII, which provide the
procedures for addressing misconduct of members. See Def.’s Opp’n Ex. 3, 11/15/21 Letter from
E. Kelley to S. Petty c/o K. Morton at 1, ECF No. 21-3; Def.’s (2d) Opp’n at 19.
But Plaintiff’s argument that AFGE has relied on the incorrect constitutional provision
hinges on his argument that he is likely to succeed in demonstrating that his resignation was
“ineffective” and therefore that he remains a national officer who is entitled to the disciplinary
procedures provided in Article XIII. See Pl.’s (2d) Reply at 4. As the Court previously concluded,
Plaintiff has not demonstrated that he likely to succeed on the merits of such a claim. See Mem.
Op. at 10–14, ECF No. 29. As the Court previously explained, Plaintiff has not identified any
portion of the AFGE Constitution guaranteeing him any “right” to have a resignation “approved”
by the Council before it is deemed effective. Id. at 11. To the contrary, Plaintiff concedes that
AFGE’s Constitution is “silent” as to this issue. Id. (citing Pl.’s Reply at 8). Instead, Plaintiff
argues that Roberts Rules of Order apply in this situation, and those rules of procedure direct that
the power to accept resignations lies solely with the Council, see Pl.’s Reply at 8; Compl. ¶¶ 142,
143 (“In order for NVP Petty’s resignation to have become effective, the members of the NEC
would have had to have met and accepted it.”). The Court rejected this argument, concluding that
12
Plaintiff had failed to demonstrate that Robert’s Rules apply in this situation, and, even if they did,
they suggest that the Council does not, in fact, have the power to accept the resignation of an NVP,
let alone the sole and exclusive power to accept such resignations. 4 See Mem. Op. at 12–13. The
Court also previously concluded that, “[b]ecause neither the text of the Constitution nor Robert’s
Rules of Order specify that the power to accept resignations lies exclusively with the Council,”
Plaintiff has “not demonstrated a likelihood of success on the merits on his claim that his
resignation was ‘ineffective.’” Id. at 14.
Despite the Court’s earlier conclusion, Plaintiff’s most recent Reply seeks to re-litigate the
issues of who has the authority to “accept” his resignation and whether or not Plaintiff still holds
the National Vice President position. 5 See Pl.’s (2d) Reply at 2–7. The Court previously
concluded that Plaintiff has failed to carry his burden of demonstrating a substantial likely of
success on the merits of his claim that his resignation was “ineffective,” and so he has also failed
to demonstrate a substantial likelihood of success on the merits of his claim that he is entitled to
the procedures applicable to “national officers” in Article XIII. Accordingly, Plaintiff is not
entitled to a TRO to enjoin the trial committee proceeding brought under Articles IX and XXIII,
which shall address the future status of his membership in AFGE. See Def.’s (2d) Opp’n at 19–
20. Plaintiff’s failure to demonstrate a substantial likelihood of success on the merits of his claim
4
Plaintiff now argues that Roberts Rules “prevail when not inconsistent with the National Constitution and
NEC Policy,” Pl.’s (2d) Reply at 7, but does not offer any analysis as to how that alters the Court’s earlier
reasoning. Nor does it address the Court’s conclusion that even if Roberts Rules applied, they would not
direct the outcome Plaintiff seeks here. See Mem. Op. at 13.
5
In his efforts to persuade the Court to alter its previous analysis, Plaintiff analogizes his situation, guided
by the AFGE’s National Constitution, to what would happen under the United States Constitutions if a
member of the United States House of Representatives resigned. See Pl.’s (2d) Reply at 3–6; id. at 6 (“If
the full House of Representatives cannot accept the resignation of a House member, certainly, the Speaker
cannot do so. Likewise, if the full NEC cannot accept a resignation of a National Vice President, then NP
Kelley certainly cannot.”). It is unclear to the Court how this comparison applies; the two constitutions are,
of course, entirely different.
13
that his resignation was “ineffective” also undermines the other facets of the TRO he seeks—
requiring AFGE to send a “letter” to AFGE members indicating that he did not resign and ordering
that Plaintiff be reinstated to the National Vice President position. See TRO Mem. at 34.
Finally, in his Reply, Plaintiff argues that the Court should “enjoin Defendant from
removing Plaintiff . . . as a member based solely on hearsay allegations and without first affording
Plaintiff an opportunity to defend himself[.]” Def.’s (2d) Reply at 11. This argument, in Plaintiff’s
own words, puts the “cart before the horse,” as the trial committee hearing has not yet occurred,
and it is unknown what the outcome of that proceeding will be. Id. at 9. Moreover, as AFGE
notes, any decision by an internal trial committee regarding his AFGE membership status may be
appealed to the [Council].” Def.’s (2d) Opp’n at 5.
In sum, Plaintiff has failed to demonstrate a substantial likelihood of success on the merits
of his claims that he is entitled to a TRO to enjoin the trial committee and to require AFGE to take
other actions based on his claim that he is still the National Vice President.
3. Plaintiff Has Failed to Demonstrate A Likelihood of Success that the Court
Has Jurisdiction to Consider Claims Regarding the Trial Committee Hearing.
In light of the Court’s earlier conclusion that Plaintiff has failed to carry his burden of
demonstrating that he is likely to succeed on his claim that he did not “resign” from the National
Vice President position, the Court also finds that he has failed to demonstrate that the Court has
jurisdiction to proceed with the claims pertaining to AFGE’s internal trial committee proceeding.
See Obama v. Klayman, 800 F.3d 559, 564 (D.C. Cir. 2015) (“[T]he ‘merits’ on which a plaintiff
must show a likelihood of success encompass not only substantive theories but also establishment
of jurisdiction.”).
Defendant argues that Plaintiff’s claims pertaining to its internal disciplinary process are
preempted by the Civil Service Reform Act (“CSRA”), and therefore the Court lacks jurisdiction
14
to consider them. See Def.’s (2d) Opp’n at 20–23. The CSRA “establishes a comprehensive
scheme to deal with labor relations[.]” AFGE v. U.S. Sec’y of Air Force, 716 F.3d 633, 636 (D.C.
Cir. 2013) (quoting Dep’t of Def. v. FLRA, 685 F.2d 641, 644 (D.C. Cir. 1982)). This
“comprehensive scheme” conveys Congress’s intent that “individuals bringing membership and
election claims of the type governed by the CSRA must seek redress through its administrative
pathway, not through the district court.” Hudson v. AFGE, Civil Action No. 19-2738, 2020 WL
3035039, at *5 (D.D.C. June 5, 2020); see also Elgin v. U.S. Dep’t of Treasury, 567 U.S. 1, 11
(2012) (“[E]xtra statutory review is not available to those employees to whom the CSRA grants
administrative and judicial review.”). At least one other district court in this jurisdiction has
concluded that the CSRA preempts claims against AFGE by a former-federal-employee member
brought pursuant to the LMRDA. See Hudson, 2020 WL 3035030, at *5.
Plaintiff responds only with the conclusory assertion that he remains the National Vice
President for District 9 and therefore “his claims . . . are not preempted by the CSRA.” Pl.’s (2d)
Reply at 7. This assertion rests on his Plaintiff’s reasoning that, as a national officer of AFGE, he
is a “private sector employee” and therefore the CSRA does not apply to him. Pl.’s Reply at 3–4;
Pl.’s (2d) Reply at 7. But, as the Court has previously concluded , Plaintiff has failed to carry his
burden of demonstrating a substantial likelihood of success that he does remain in that position—
and so, this argument fails. See Mem. Op. at 10–14.
Furthermore, Plaintiff does not provide any supporting argument or legal authority for the
proposition that the CSRA does not apply to him when, as Defendant notes, his membership in the
AFGE appears to be predicated on his status as a former federal employee. See Def.’s (2d) Opp’n
at 22. In Hudson, for example, the Court concluded that the plaintiff’s LMRDA claim against
AFGE was preempted by the CSRA even though the plaintiff had retired from federal service.
15
Hudson, 2020 WL 3035039, at *6; see also Buesgens v. Coates, 435 F. Supp. 2d 1, 2–4 (D.D.C.
2006) (concluding that the court lacked jurisdiction over federal-sector retiree’s claim against his
union because it was covered by CSRA and could be brought only before the appropriate
administrative agency). At most, Plaintiff pointed out in an earlier pleading that the district court
in Hudson did not consider whether the CSRA preempts claims of former-federal employees
currently holding private sector positions because that argument was not raised. See Pl.’s Opp’n
at 2, ECF No. 18. But, again, Plaintiff has failed to carry his burden that he is likely to succeed in
showing that he continues to hold his National Vice President position. He relies exclusively on
the conclusory proposition that this Court “has subject matter jurisdiction to hear his claims
because they are not preempted by the CSRA.” Pl.’s (2d) Reply at 7. This assertion—devoid of
any legal reasoning or supporting legal authority—is insufficient for Plaintiff to carry his burden
of demonstrating the likelihood that the Court has jurisdiction over his claims.
The Court finds that Plaintiff has failed to carry his burden of showing a likelihood of
success on the merits of his claims. Although failure to show a likelihood of success on the merits
alone is sufficient to defeat a motion for a TRO, the Court shall nonetheless briefly address the
remaining TRO factors. See Ark. Dairy Co-op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir.
2009); Apotex, Inc. v. FDA, 449 F.3d 1249, 1253–54 (D.C. Cir. 2006).
B. Irreparable Harm
The Court next considers whether Plaintiff has demonstrated “irreparable harm.” CityFed
Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). The D.C. Circuit
“has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290, 297 (D.C. Cir. 2006). To constitute “irreparable harm,” the injury alleged must be
“both certain and great, actual and not theoretical, beyond remediation, and of such imminence
that there is a clear and present need for equitable relief.” Mexichem Specialty Resins, Inc. v. EPA,
16
787 F.3d 544, 555 (D.C. Cir. 2015) (internal quotation marks and citation omitted). And
“[p]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the
absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (internal
citations omitted). A “possibility of irreparable harm” is not enough. Id. “[P]roving ‘irreparable’
injury is a considerable burden, requiring proof that the movant’s injury is ‘certain, great and
actual—not theoretical—and imminent, creating a clear and present need for extraordinary
equitable relief to prevent harm.’” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204
(D.D.C. 2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). For the
reasons set forth below, the Court finds that Plaintiff has not adequately demonstrated a certainty
of irreparable harm arising from allowing the trial committee hearing to proceed no sooner than
December 20, 2021. This shortcoming weighs heavily against Plaintiff’s request for a TRO.
In his TRO Motion, Plaintiff indicates only that he would “suffer irreparable harm” if the
trial committee were to proceed on December 9, 2021—based on his claim that he received
insufficient notice and time to prepare. Pl.’s TRO Mem. at 32. As indicated supra Section
III(A)(1), is no longer at issue in light of AFGE’s agreement to postpone the trial committee
proceeding until at least December 20, 2021—two weeks after Plaintiff indicates he received
notice of the charges and hearing date. See Pl.’s TRO Mem. at 14, 23; Def.’s (2d) Opp’n at 25.
As to Plaintiff’s claim that the trial committee was improperly constituted under the
incorrect provision of AFGE’s National Constitution, he provides no argument or analysis
demonstrating that permitting the trial committee hearing to proceed would “irreparably harm”
him. At most, Plaintiff argues that suspension or loss of his membership would cause “irreparable
damage to Plaintiff’s reputation within the AFGE organization[.]” Pl.’s TRO Mem. at 30–31. But
these claims of “damage” are speculative, as they turn on the outcome of the trial committee
17
proceeding. And, as Defendant notes, the AFGE National Constitution provides a process to
appeal the outcome of a trial committee hearing to the Council in the event Plaintiff disagrees with
the outcome. See Def.’s (2d) Opp’n at 26. Accordingly, Plaintiff has failed to demonstrate his
burden of demonstrating that any alleged harm is actual, imminent, and irreparable. Mexichem
Specialty, 787 F.3d at 555.
Similarly, in his Reply, Plaintiff contends that the alleged “unlawful removal” from his
position as National Vice President amounts to irreparable harm because “it will become
permanent” the trial committee hearing proceeds on December 20. See Pl.’s (2d) Reply at 7. This
argument too rests on speculation, and it ignores the Court’s reasoning in its earlier Memorandum
Opinion that loss of employment is typically not “irreparable harm” that can warrant a TRO. See
Mem. Op. at 17–18.
C. Balance of the Equities and Public Interest
“The final two factors the Court must consider when deciding whether to grant a
preliminary injunction [or a temporary restraining order] are the balance of harms and the public
interest.” Sierra Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9, 41 (D.D.C. 2013). When
“balanc[ing] the competing claims of injury,” the Court must “consider the effect on each party of
the granting or withholding of the requested relief.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 24 (2008).
Plaintiff’s conclusory nods to the final two TRO factors—public interest and balance of
equities—fail to establish that he is entitled to the drastic remedy of a TRO. In his TRO Motion,
Plaintiff contends only that “any harm from enjoining the proposed December 9, 2021 trial
committee. . . would be outweighed by the antidemocratic effects of AFGE unlawfully removing
an officer elected by District 9 AFGE members and depriving those members of the representative
of their choice.” Pl.’s TRO Mem. at 33. As the Court has previously discussed, Plaintiff has not
18
demonstrated a substantial likelihood of success on his claim that he was “unlawfully removed as
an officer.” See Mem. Op. at 10–14. In his Reply, Plaintiff claims only that “the balance of
equities and public interest demand that Plaintiff’s request be granted because AFGE and the
public will be seriously harmed [if] AFGE is permitted to proceed with the December [20, 2021]
hearing under Article XXIII.” Pl.’s (2d) Reply at 7. This bare assertion—devoid of any supporting
analysis—is insufficient to demonstrate that these final TRO factors weigh in Plaintiff’s favor.
AFGE, on the other hand, contends that granting Plaintiff’s requested TRO would undermine the
results of its special election and preemptively interfere with its internal disciplinary procedures
and available appeals process. See Def.’s (2d) Opp’n at 25–26.
Weighing these competing interests, the Court concludes that that Plaintiff has not carried
his burden to demonstrate the balance of equities tips in his favor, or that the public interest requires
the Court to enjoin the trial committee hearing, require him to be reinstated, or to direct AFGE to
inform its members that he did not resign.
IV. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court concludes that Plaintiff
has failed to carry his burden of demonstrating a substantial likelihood of success on the merits of
his claims, a certainty of irreparable harm, or that the balance of hardships and the public interest
weigh in his favor. Accordingly, the Court DENIES the remainder of Plaintiff’s Motion for a
Temporary Restraining Order that was not previously addressed by the Court in its [28] Order.
An appropriate Order accompanies this Memorandum Opinion.
Dated: December 17, 2021
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
19