Brookens v. American Federation of Government Employees

• Court: District Court, District of Columbia
• Decided: June 5, 2018
• Docket: Civil Action No. 2017-2206
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BENOIT BROOKENS,

Plaintiff,

v. Civil Action No. 17-2206 (RDM) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

Defendant.

MEMORANDUM OPINION

Defendant American Federation of Government Employees (“AFGE”) placed one of its

local chapters, Local 12, under trusteeship and cancelled the Local 12 elections of officers that

were scheduled to take place two weeks later. Dkt. 1-1 at 9–11. Plaintiff Benoit Brookens,

proceeding pro se, had planned to run for several positions and, after the elections were

cancelled, he filed this action in D.C. Superior Court challenging the imposition of trusteeship.

See Dkt. 1-1. AFGE removed the case to this Court, Dkt. 1, and has now moved to dismiss for

lack of standing and for failure to state a claim, Dkt. 26. Because Brookens lacks Article III

standing to maintain this action in federal court, and because 28 U.S.C. § 1447(c) mandates that

district courts remand removed actions “[i]f at any time before final judgment it appears that the

. . . court lacks subject matter jurisdiction,” the Court will GRANT in part and DENY in part

AFGE’s motion to dismiss and will REMAND the case to D.C. Superior Court.

I. BACKGROUND

Brookens, a former Department of Labor employee, alleges that he is a member of AFGE

Local 12. Dkt. 1-1 at 1 (Compl. ¶ 3). Local 12 was scheduled to conduct elections for several positions on October 18, 2017. Id. (Compl. ¶¶ 1, 3–4). On October 4, 2017, however, AFGE

notified the membership of Local 12 that it was placing the Local under trusteeship “to safeguard

and protect the Local.” Id. at 10 (memorandum from AFGE National President to members of

Local 12). Following imposition of the trusteeship, AFGE cancelled the October elections,

removed the existing officers and ex officio delegates from the offices that they held at that time,

and authorized the trustee “to appoint a secretary-treasurer and any other officers he deem[ed]

necessary to assist him.” Id. at 9–10. Those actions have given rise to another lawsuit now

pending in this Court brought by the officers who were removed at the time the trustee was

appointed. See Bastani v. Am. Fed. of Gov’t Emps., No. 18-63 (D.D.C.).

Although Brookens was not an officer of Local 12 at the time the trusteeship was

imposed, he had hoped to participate in the upcoming elections. Dkt. 1-1 at 1 (Compl. ¶ 4).

Unhappy with the imposition of the trusteeship and the cancellation of those elections, Brookens

filed this action in D.C. Superior Court on October 16, 2017 and, simultaneously, moved for a

temporary restraining order and a preliminary injunction. Dkt. 1-1 at 1; Dkt. 1-2 at 1; Dkt. 1-3 at

1. Eight days later, AFGE removed the action to this Court pursuant to 28 U.S.C. §§ 1446(b),

1441(a). See Dkt. 1.

Brookens alleges that he “was a candidate, in the October 18, 2017 election[s], for the

positions of Head Steward, Delegate to the AFGE National Convention, scheduled for August

2018, and Delegate to the AFGE Council,” id. at 1 (Compl. ¶ 4), but was notified “[o]n October

4, 2017 . . . that the election[s]” had been “cancelled” because Local 12 had been placed in

trusteeship, id. at 4 (Compl. ¶ 17). According to Brookens’s complaint, AFGE’s decision to

place Local 12 in trusteeship, and the resulting cancellation of the elections, violated the Labor-

Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 401 et seq., in

2 numerous respects. Those alleged violations correspond with the six causes of action set forth in

the complaint, each of which alleges a distinct violation of the LMRDA. See Dkt. 1-1 at 4–7

(Compl. ¶¶ 20–45) (citing violations of 29 U.S.C. §§ 462, 481, 484).

Several weeks after his case was removed to this Court, Brookens renewed his motions

for a temporary restraining order and a preliminary injunction, requesting that the Court dissolve

the trusteeship and restore Local 12’s authority. Dkt. 13; Dkt. 14. AFGE, in turn, moved to

dismiss for lack of subject matter jurisdiction and for failure to state a claim. Dkt. 8. On January

5, 2018, the Court heard argument on those motions. Dkt. 18. At the hearing, Brookens clarified

that his “only claim in this case” is that AFGE “did not follow the proper procedures in placing

[AFGE] [L]ocal [12] in trusteeship,” and, in particular, that it did not “satisfy” “the factors set

forth in Article IX, Section 5(a)(1) through (4)” of AFGE’s constitution. Id. at 38, 41 (Oral Arg.

Tr. 38:14–15, 41:6–9). The Court, ruling from the bench, denied Brookens’s motion for a

temporary restraining order and held the motion for a preliminary injunction in abeyance to

afford Brookens the opportunity to retain counsel. Minute Entry (Jan. 5, 2018). The Court also

offered Brookens the opportunity to supplement his motion for a preliminary injunction,

regardless of whether he was able to retain an attorney. 1 See Dkt. 18 at 30 (Oral Arg. Tr. 30:19–

22).

In the course of the argument, the Court also asked Brookens to describe the “personal

injury” that he alleges he has sustained—or is sustaining—due to AFGE’s actions. Id. at 42

(Oral Arg Tr. 42:15–17). Although Brookens’s response was not entirely clear, he appeared to

argue that imposition of the trusteeship led to the cancellation of the Local 12 elections and thus

deprived him of the opportunity to run for office. To avoid any uncertainty on this issue, and to

1 Brookens was ultimately unsuccessful in his effort to obtain counsel. 3 help determine whether it has jurisdiction over Brookens’s claims, the Court instructed Brookens

to “submit evidence” establishing that he has “standing under Article III of the Constitution.” Id.

at 43 (Oral Arg. Tr. 43:15–24). The Court also denied AFGE’s motion to dismiss without

prejudice but granted AFGE leave to file a renewed motion to dismiss in combination with its

opposition to Brookens’s motion for a preliminary injunction. Id. at 35–36 (Oral Arg. Tr. 35:17–

36:3).

Brookens filed a supplement to his motion for a preliminary injunction on January 17,

2018, Dkt. 19, and AFGE renewed its motion to dismiss approximately a month later, Dkt. 26.

Brookens, in turn, filed a combined reply and opposition, Dkt. 28, and AFGE filed a reply, Dkt.

30. The Court, then, heard oral argument on Brookens’s motion for a preliminary injunction and

AFGE’s motion to dismiss on March 16, 2018. Dkt. 33. Ruling from the bench, the Court

denied Brookens’s motion for a preliminary injunction, finding that Brookens had not carried his

burden of establishing a likelihood of success on the merits; that “standing [presents] a

substantial hurdle in this case;” and that Brookens had failed to show that a preliminary

injunction was necessary to avoid an irreparable injury. Id. at 63–64 (Oral Arg. Tr. 63:24–

64:11). The Court explained, in particular, that it was likely that a decision setting aside the

trusteeship would actually delay, rather than advance, the date on which the Local 12 elections

would take place. Id. at 64 (Oral Arg. Tr. 64:13–16). In short, because the elections planned

under the trusteeship were imminent, while removal of the trustee and reinstatement of the prior

officers would require the rescheduling of the elections, granting the requested relief would

likely have delayed the elections. For a plaintiff whose only identified injury was the delay in

conducting elections, setting aside the trusteeship would have had the unfortunate effect of

“snatching defeat from the jaws of victory.” Id. at 65 (Oral Arg. Tr. 65:1–3).

4 Concluding that it needed additional information to address the question of standing, the

Court took AFGE’s motion to dismiss under advisement at the conclusion of the hearing. Id. at

66 (Oral Arg. Tr. 66:2–5). After the parties submitted supplemental briefs, the Court issued a

further order directing AFGE to “update[] the Court on the timeline for the . . . Local 12[] . . .

election[s]” and to address Brookens’s showing that he was qualified to participate in the

upcoming elections. Minute Order (May 18, 2018). AFGE complied with that order on May 23,

2018. Dkt. 40. In doing so, it conceded that Local 12 had determined that Brookens was

qualified to participate in the elections, and it provided the Court with a copy of a notice to the

Local 12 membership stating that the elections will take place on June 7, 2018. Id.; see also Dkt.

40-1 (2018 Election Notice).

II. LEGAL STANDARD

“The party invoking federal jurisdiction bears the burden of establishing” each of the

elements of Article III standing, although “the manner and degree of evidence required” varies

with “the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). “At the pleading stage, general factual allegations of injury resulting from the

defendant’s conduct” will often suffice. Id.; see also Owner-Operator Indep. Drivers Ass’n v.

Dep’t of Transp., 879 F.3d 339, 346–47 (D.C. Cir. 2018). But, “[w]here a motion to dismiss a

complaint present[s] a dispute over the factual basis of the court’s subject matter jurisdiction[,]

. . . the court may not deny the motion to dismiss merely by assuming the truth of the facts

alleged by the plaintiff and disputed by the defendant.” Feldman v. FDIC, 879 F.3d 347, 351

(D.C. Cir. 2018) (internal quotation marks and citation omitted). Rather, the Court “must go

beyond the pleadings and resolve any disputed issues of fact . . . necessary to a ruling []on the

motion to dismiss;” in doing so, however, the Court must also ensure that Plaintiffs have been

5 accorded “ample opportunity to secure and [to] present evidence relevant to the existence of

jurisdiction.” Id. (internal quotation marks and citations omitted). Prior to discovery, the Court

must accord Plaintiffs “the benefit of all reasonable inferences,” and, in the absence of

“evidentiary offering[s],” the Court must avoid “assessing the credibility of [their] allegations.”

Id.

III. ANALYSIS

Before reaching the merits of a dispute, federal courts must satisfy themselves that they

have Article III jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95

(1998). To satisfy Article III, the plaintiff must have standing—that is, “‘a personal stake in the

outcome of the controversy [sufficient] to warrant . . . federal-court jurisdiction.’” Chamber of

Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Summers v. Earth Island Inst.,

555 U.S. 488, 493 (2009)). “[T]he irreducible constitutional minimum of standing contains three

elements,” Lujan, 504 U.S. at 560:

First, the plaintiff must allege (and must eventually prove) that she has suffered, or faces an imminent threat of suffering, an “injury in fact.” Conjectural or hypothetical threats of injury will not suffice. Second, the plaintiff must allege (and must eventually prove) facts sufficient to establish a “causal connection between [that] injury and the conduct complained of.” In other words, the injury must “be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party.” Third, the injury must be redressable “by a favorable decision.” Again, speculation will not suffice; rather, the plaintiff must allege (and must eventually prove) that it is “likely” that judicial intervention will rectify or prevent the asserted wrong. Public Citizen, Inc. v. Trump, 297 F. Supp. 3d 6, at 17 (D.D.C. Feb. 26, 2018) (quoting Lujan,

504 U.S. at 560–61 (internal quotation marks, citations, and alterations omitted)).

Because federal courts are “obligated to consider sua sponte issues,” like standing, that

“go[] to [their] subject-matter jurisdiction,” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012), this

Court has repeatedly asked Brookens to identify the injury that he contends that he has suffered,

6 or will suffer, if relief is not granted; to explain how that injury is causally connected to AFGE’s

conduct; and to clarify whether and how a favorable decision would redress his alleged injury.

See, e.g., Dkt. 18 at 43 (Oral Arg. Tr. 43:14–24) (explaining the requirements of Article III

standing). In response, Brookens has offered two theories of standing, neither of which passes

constitutional muster.

A. Interference With Ability to Seek Office

Brookens’s first—and principal—argument posits that by placing Local 12 under

trusteeship, AFGE interfered with his ability to seek election to three offices in October 2017: (1)

head steward of Local 12; (2) delegate to the AFGE National Convention; and (3) delegate to the

AFGE Council. Dkt. 33 at 34 (Oral Arg. Tr. 34:10–16); see Dkt. 1-1 at 1 (Compl. ¶ 4); Dkt. 19

at 3. In his view, the imposition of the trusteeship—and subsequent cancellation of the

elections—“eliminate[d] [him] as a candidate for a major position in the union and as a

delegate.” Dkt. 18 at 11 (Oral Arg. Tr. 11:9–15). It is far from clear that Brookens can show

that he has sustained, or is likely to sustain, any injury in fact or that AFGE caused that injury by

placing Local 12 in trusteeship. But, even if the Court assumes for present purposes that

Brookens could satisfy the injury-in-fact and causation requirements, he unquestionably fails to

clear the third and final “irreducible” element standing—redressability.

The redressability requirement limits Article III jurisdiction to those cases in which the

relief sought will remedy the injury alleged. See Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens,

529 U.S. 765, 771 (2000); Steel Co., 523 U.S. at 107. Although certainty is not required, “the

[plaintiff] must demonstrate ‘that it is likely as opposed to merely speculative that the injury will

be redressed by a favorable decision of the court.’” Spectrum Five LLC v. FCC, 758 F.3d 254,

260 (D.C. Cir. 2014) (citation omitted). In this manner, the requirement “limit[s] the federal

7 judicial power ‘to those disputes . . . which are traditionally thought to be capable of resolution

through the judicial process.’” Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97

(1968)). Sensibly, it means that, if a favorable judicial decision is unlikely to correct the alleged

wrong, there is no case or controversy within the meaning of Article III.

This is such a case. According to Brookens, the principal injury that he has sustained—

and is sustaining—is the inability to run for election to various union posts. When asked at oral

argument whether the entire injury he is “asserting comes back to the question of whether [he

was] allowed [to run for office in October 2017] and since then,” Brookens responded, “Right.”

Dkt. 33 at 37 (Oral Arg. Tr. 37:6–10); see also id. at 29–30 (Oral Arg. Tr. 29:17–30:5); id. at 41

(Oral Arg. Tr. 41:5–18). The Court repeatedly pressed Brookens on this issue and, with the one

exception of the injury discussed below, that is all that he identified. Significantly, despite

multiple opportunities to do so, Brookens did not identify any monetary or other compensable

loss. That omission, moreover, is not surprising. As the Local 12 bylaws make clear, even if the

October 2017 elections had proceeded as scheduled, and even if Brookens had been elected to

office, he would not have received any compensation. See Dkt. 35-2 at 5 (“The [L]ocal shall

have no paid officers.”). Thus, at least for purposes of Brookens’s first theory of standing, the

sole injury that he asserts is the lost opportunity to run for office in October 2017 and during the

intervening months.

The relief that he seeks—dissolution of the trusteeship and reinstatement of the

previously elected officers—however, would do nothing to redress that injury. Brookens did not

hold office at the time the trusteeship was imposed, so reinstating the previously elected officers

would not directly benefit him. The undisputed evidence also shows neither dissolution of the

8 trusteeship nor reinstatement of the previously elected officers would remedy the cancellation of

the October 2017 elections or accelerate the timing of rescheduled elections. By Brookens’s

own account, if the Court were to dissolve the trusteeship and reinstate the previously elected

officers, it would take several months to “send out the nominations notice,” to “advertise” the

elections, to permit an opportunity for “campaigning,” to appoint “an election[s] committee,”

and to conduct the elections. Dkt. 18 at 15. In contrast, according to Nathaniel Nelson, the

trustee who was appointed to oversee Local 12, those currently charged with managing Local 12

intend “to hold elections for local officers” and “elections for delegates to participate in AFGE’s

2018 National Convention” in the very near future. Dkt. 25-2 at 2 (Nelson Decl. ¶¶ 5–10). In

January 2018, Nelson predicted that those elections would take place “in or about May 2018,” id.

at 2 (Nelson Decl. ¶¶ 7, 9), and, although the schedule has slipped by about a week, the elections

are now scheduled to occur on June 7, 2018, Dkt. 40-1 at 1. That date, moreover, is apparently

firm; Local 12 has provided formal notice to its members that voting will occur between 10:00

a.m. and 2:00 p.m. on June 7, 2018 at four locations and by absentee ballots. Id. Of equal

importance, Brookens will appear on the ballot for each of the three positions he seeks: head

steward, delegate to the AFGE National Convention, and delegate to the AFGE Council. Dkt. 36

at 11–12. Accordingly, absent intervention by the Court, Brookens will soon receive all the

relief that he seeks in this case. Moreover, by dissolving the trusteeship and removing the

current officers, as Brookens requests, the Court would only cast doubt on the upcoming

elections and risk postponing the very elections that Brookens seeks to compel.

Although Brookens would have preferred that the elections occur in October, he does not

seek any backward-looking relief, and a “past harm” cannot, standing alone, justify “forward-

looking relief.” Morgan Drexen, Inc. v. CFPB, 785 F.3d 684, 689 (D.C. Cir. 2015); see also

9 City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (“Past exposure to illegal conduct does not

in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by

any continuing, present adverse effects.” (internal quotation marks and citation omitted)). The

relevant question, therefore, is not whether Brookens suffered some past wrong, but whether his

alleged injury—his inability to stand for election—“is likely to be redressed by a favorable

decision on the merits.” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (quoting Humane

Soc’y v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015)). The answer to that question is plain: a

favorable decision would not only fail to remedy Brookens’s alleged injury, it would worsen it.

This, then, raises one final set of issues: is the relevant question one of standing or

mootness, and, if it is mootness, does that make a difference? Although standing and mootness

are closely related concepts, the doctrines—and relevant considerations—are distinct. See

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189–90 (2000). Both

doctrines ask whether a case or controversy exists. See Arizonans for Official English v.

Arizona, 520 U.S. 43, 67 (1997). Standing poses this question at the time the litigation is

commenced, while mootness considers whether the requisite controversy continues to exist

throughout the litigation. Id. at 67 n.22 (citation omitted). The doctrines differ, however, in

important respects; most significantly, the courts recognize exceptions to the mootness doctrine

that do not extend to standing, most notably the “capable of repetition, yet evading review” and

voluntary cessation exceptions. See Friends of the Earth, Inc., 528 U.S. at 190–91, 193.

In this case, it is difficult to know whether Brookens’s claim was redressable at the

moment he brought suit. He did not bring suit until October 16, 2017, after the elections were

cancelled and just two days before the date on which those elections were to have occurred. Dkt.

1-1. It is possible that, had the Superior Court or this Court immediately dissolved the

10 trusteeship and reinstated the previous officers, those officers might have been able to hold the

elections as planned or to reschedule the elections for a date prior to June 7, 2018. But, even if

that had occurred, the Court cannot discern any cognizable injury that Brookens would have

suffered by virtue of whatever brief gap might have existed between that hypothetical election

date and June 7, 2018. For present purposes, however, the Court is prepared to assume, without

deciding, that Brookens’s claims were redressable on the day he filed suit.

That, however, does not change the Court’s conclusion that it lacks Article III jurisdiction

because Brookens’s claims are, in any event, moot, and none of the exceptions to the mootness

doctrine is applicable in this case. A claim becomes moot if, among other things, it is no longer

“likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7

(1998). In other words, the Article III “‘case-or-controversy requirement subsists throughout all

states of federal judicial proceedings.’” Id. (quoting Lewis v. Continental Bank Corp., 494 U.S.

472, 477–78 (1975)). For the reasons discussed above, Brookens’s claims fail this test; the union

has already scheduled the elections, which will take place in just a few days.

Thus, the only question is whether any of the exceptions to the mootness doctrine are

applicable. They are not. There is no reason to believe that the present controversy is capable of

repetition, yet evades review because there is no reason to believe that Local 12 will be placed in

trusteeship again, much less that such an action would likely occur on the eve of an election.

Nor does the voluntary cessation doctrine apply in this context. Under that doctrine, “a

defendant claiming that its voluntary compliance moots a case bears a formidable burden of

showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Friends of the Earth, Inc., 528 U.S. at 190; see also Already, LLC v. Nike,

Inc., 568 U.S. 85, 91 (2013). The purpose of this rule is to prevent defendants from “engag[ing]

11 in unlawful conduct, stop[ping] when sued to have the case declared moot, then pick[ing] up

where [they] left off, [only to] repeat[] this cycle until [they] achieve[] all [their] unlawful ends.”

Already, LLC, 568 U.S. at 91. That concern, however, has no bearing on the present case.

AFGE has not mooted—or attempted to moot—the “case simply by ending its [allegedly]

unlawful conduct once sued,” id., indeed, it has not stopped the allegedly unlawful trusteeship,

which other plaintiffs continue to challenge in another case pending in this Court, see Bastani v.

Am. Fed. of Gov’t Emps., No. 18-63 (D.D.C.). Rather, all that has changed is that the union has

now rescheduled the elections that were interrupted as a collateral consequence of the imposition

of the trusteeship. In short, this is not a case that poses the question whether the “allegedly

wrongful behavior [can] be expected to recur,” Friends of the Earth, Inc., 528 U.S. at 190. That

conduct is ongoing, and all that has changed is the effect of that conduct on one of the many

affected parties.

The Court, accordingly, concludes that neither of the “two [principal] exceptions to

mootness,” Am. Bar Ass’n v. FTC, 636 F.3d 641, 647–48 (D.C. Cir. 2011), applies here and that

Brookens’s election-interference theory is insufficient to establish an ongoing case or

controversy.

B. Brookens’s Representation in Other Litigation

When pressed at oral argument, Brookens identified one additional injury that he

allegedly suffered due to the imposition of the trusteeship. Although not mentioned in his

complaint, Brookens asserted at oral argument that, as a result of the imposition of the

trusteeship, a union lawyer designated to represent him in another case before this Court

experienced a delay in obtaining files relating to that case, which were maintained at the offices

of Local 12. See Dkt. 33 at 43 (Oral Arg. Tr. 43:20–22). At oral argument, the Court heard from

12 both Brookens and the union lawyer, Eleanor Jenkins, about the issue. Although both were

undoubtedly aggravated by the difficulty of obtaining access to files stored at Local 12’s office,

neither identified any harm that Brookens had suffered. Accordingly, even if this alternative

theory of standing were properly before the Court, it would fail to satisfy the injury-in-fact

requirement.

The episode at issue arose in the context of a case Brookens brought years ago against the

Department of Labor, alleging that he was fired due to his race and age and in retaliation for his

union activity. See Brookens v. Acosta, 297 F. Supp. 3d 40 (D.D.C. 2018). Brookens brought an

administrative challenge before the Merit Systems Protection Board (“MSPB”), which concluded

that he had failed to substantiate his claims. Id. at 43. At the time the MSPB rejected

Brookens’s claims, it informed him that he could seek review of his discrimination claims before

the Equal Employment Opportunity Commission or could seek review in federal district court

within 30 days of his “receipt of [the MSPB’s] order.” Id. Brookens, however, did not take

either approach and, instead, appealed the MSPB’s decision to the Federal Circuit. Id.

Ultimately, the Federal Circuit concluded that it lacked jurisdiction and transferred the case to

this Court. Id. at 44. The Department of Labor, then, moved to dismiss on the ground that

Brookens failed to timely file. Id. That motion was fully briefed before AFGE placed Local 12

in trusteeship, see Brookens v. Acosta, No. 16-1390, Dkt. 16; Dkt. 18; Dkt. 20, and thus

Brookens cannot claim that the trusteeship had any effect on the briefing of the motion.

All that happened after the Local was placed in trusteeship is that the Court asked the

parties to address one question: when did Brookens “receive notice” of the MSPB’s decision for

purposes of 5 U.S.C. § 7703(b)(2), the provision that requires an aggrieved party to file suit

“within 30 days after the date the individual filing the case received notice of the judicially

13 reviewable action.” Brookens v. Acosta, No. 16-1390, Minute Order (Feb. 1, 2018). In response

to that narrow question, Brookens’s counsel asserted that she “does not contest (and has never

contested) that at the time [the] MSPB rendered its decision, she was an MSPB e-filer” and thus

received “the decision on the date it was rendered.” Brookens v. Acosta, No. 16-1390, Dkt. 23 at

1–2. Although Brookens’s supplemental brief makes additional arguments, none is responsive to

the Court’s order. The Court’s decision in Brookens v. Acosta turned on only one fact—the fact

that Brookens did not file suit within 30 days of receiving notice of the MSPB’s decision—and

that fact was undisputed. 297 F. Supp. 3d at 44. Against this background, it is therefore

unsurprising that, at oral argument, neither Jenkins nor Brookens could identify any connection

between Jenkins’s lack of access to the documents held by the union and the Court’s decision

dismissing Brookens’s discrimination and retaliation suit. See Dkt. 33 at 49–50 (Oral Arg. Tr.

49:23–50:16).

“The party invoking federal jurisdiction bears the burden of establishing” each of the

elements of standing, including injury in fact, and that burden varies with the stage of the

proceeding. Lujan, 504 U.S. at 561. At the pleading stage, as here, the plaintiff need only allege

facts sufficient to establish standing, id., and, because Brookens is proceeding pro se, the Court

will also consider facts he has identified in other pleadings and at oral argument, Greenhill v.

Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007). But, even applying that liberal approach, the

Court cannot discern any factual allegation or assertion that would satisfy the injury-in-fact

requirement. At best, Brookens’s claim of injury is unduly speculative, see Attias v. Carefirst,

Inc., 865 F.3d 620, 626 (D.C. Cir. 2017) (“An injury in fact must be concrete, particularized, and

most importantly for our purposes, ‘actual or imminent’ rather than speculative.”), and, more

pointedly, it is wholly unfounded.

14 The Court, accordingly, concludes that Brookens’s second theory of standing fails

because he has not identified any actual or imminent injury in fact that he has suffered or will

suffer due to a lack of access to the litigation documents maintained by Local 12.

C. Next Steps

Having concluded that Brookens has failed to carry his burden of showing that the Court

has Article III jurisdiction to consider his claims, the Court must decide whether to dismiss the

action or to remand it to the Superior Court. The governing statute—28 U.S.C. § 1447(c)—

provides a clear answer to this question: “[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be remanded.” Id. (emphasis

added). Despite this unqualified language, at least one court of appeals has suggested that a

district court may dismiss a case when a remand would be futile. See Boaz Legacy, L.P. v.

Roberts, 628 Fed. App’x 318 (5th Cir. 2016) (mem.) (“[D]ismissal, rather than remand, may be

proper if . . . the state court in which it was brought also would lack jurisdiction.”). Most other

courts of appeals, however, have concluded that the clear language of the statute is dispositive.

See, e.g., Albingia Versicherungs A.G. v. Schenker Int’l Inc., 344 F.3d 931, 938 (9th Cir. 2003),

amended, 350 F.3d 916; Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 1225–26 (10th

Cir. 2012) (collecting cases from the Third, Fourth, Sixth, Seventh, Tenth, and Eleventh

Circuits). Moreover, although the D.C. Circuit has not addressed whether § 1447(c) is subject to

a futility exception, it has broadly observed that a district court without subject matter

jurisdiction “must remand the case” under § 1447(c); see Republic of Venezuela v. Philip Morris

Inc., 287 F.3d 192, 196 (D.C. Cir. 2002); Randolph v. ING Life Ins. & Annuity Co., 486 F. Supp.

2d 1, 10–11 (D.D.C. 2007). The Supreme Court, too, has stressed the mandatory nature of §

1447(c), even though it ultimately did not decide whether the statute admits of a futility

15 exception. See Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89

(1991).

Although a futility exception comports with principles of judicial economy and common

sense, it does not comport with the plain language of the statute, which, as the Supreme Court

has observed, commands: “where subject matter jurisdiction is lacking, the removed case shall

be remanded.” Id. (internal quotation marks omitted). This is such a case. The Court will

therefore order that this action be remanded to the Superior Court, which may then address

whether it has jurisdiction over Brookens’s claims under the LMRDA.

CONCLUSION For the reasons stated above, the Court will GRANT in part and DENY in part AFGE’s

motion to dismiss for lack of subject matter jurisdiction, Dkt. 26, and will REMAND this case to

D.C. Superior Court.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: June 5, 2018