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,

(D.D.C. 2013) (quoting

Chaplaincy of Full Gospel Churches v. England,

(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,

, 723–24 (D.C. Cir. 2011) (applying

preliminary injunction standard to district court decision denying motion for TRO and preliminary

injunction); Sibley v. Obama,

(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,

(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc.,

(2008)); see also

Mazurek v. Armstrong,

(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,

(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,

(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.,

(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.”

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.,

(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,

(quoting Davis,

(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,

.

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,

(D.C. Cir. 2015) (emphasis added) (quoting Mills v. District of Columbia,

(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.,

(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,

, at *4 (D.D.C. Sept. 27,

2021) (citing Food & Water Watch, Inc.,

). 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,

, 212 (D.D.C. 2020), aff’d No. 21-7008,

(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,

(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,

(D.C.

Cir. 2013) (quoting Dep’t of Def. v. FLRA,

(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,

, at *5 (D.D.C. June 5, 2020); see also Elgin v. U.S. Dep’t of Treasury,

(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,

, 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,

, at *6; see also Buesgens v. Coates,

, 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,

(D.C. Cir.

2009); Apotex, Inc. v. FDA,

, 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,

, 747 (D.C. Cir. 1995). The D.C. Circuit

“has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches v. England,

(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

(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.,

(2008) (internal

citations omitted). A “possibility of irreparable harm” is not enough.

“[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,

(D.D.C. 2005) (quoting Wis. Gas Co. v. FERC,

, 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,

.

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,

(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.,

(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