United States District Court, W.D. Washington, Seattle
COLIN MAYCOCK, as a member of Local 1849, as President of Local, 1849, as a member of the Executive Board of Council 2, Washington State Council of County & City Employees, and as a member of the American Federation of State, County & Municipal Employees, AFL-CIO; LOCAL 1849, an affiliate of Council 2, Washington State Council of County & City Employees, and a labor union operating in the State of Washington; JAEL KOMAC, as a member of Local 114, as President of Local 114, and as a member of the American Federation of State, County, & Municipal Employees, AFL-CIO; and, LOCAL 114, an affiliate of Council 2, Washington State Council of County & City Employees, and a labor union operating in the State of Washington, Plaintiffs,
CHRISTOPHER DUGOVICH, President and Executive Director of Council 2, Washington State Council of County & City Employees; COUNCIL 2, WASHINGTON STATE COUNCIL OF COUNTY & CITY EMPLOYEES, a legal entity operating in the State of Washington; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, a labor union operating in the State of Washington, Defendants.
S. Zilly, United States District Judge
MATTER comes before the Court on Defendants Christopher
Dugovich, Council 2, and American Federation of State, County
and Municipal Employees' Motion to Dismiss, docket no.
14, and Motion for Leave to File Declaration in Response to
Plaintiff's Declaration, docket no. 35. Having reviewed
all papers filed in support of and in opposition to the
motion, the Court enters the following order.
in this case are two union members and the local unions they
represent. First Amended Complaint, docket no. 2,
(“FAC”) ¶¶ 2.1-2.4. They have sued the
state-level affiliate of their local unions, Council 2, and
Christopher Dugovich, who serves as President and Executive
Director of Council 2. Id. ¶¶ 2.5-2.6.
They have also sued the international union with which they
are affiliated, the American Federation of State, County and
Municipal Employees (“AFSCME”). Id.
bring a single claim for breach of contract and violation of
federal labor statutes, alleging that they were wrongfully
denied access to specific information regarding compensation
paid to certain employees of Council 2. FAC ¶¶
5.1-5.6. Specifically, Plaintiff Maycock requested the
following information regarding Defendant Dugovich:
1) Gross wages paid in 2017; 2) 2017 Monthly employer medical
contribution; 3) The 2017 annual employer-paid amount of
H.R.A. or H.S.A. plans; 4) The 2017 annual value of
employer-paid per diem; 5) The 2017 annual amount of
employer-paid car allowance; 6) The 2017 annual amount of
employer-paid pension contributions; 7) The 2017 annual
amount of employer-paid contributions to deferred comp plan;
8) The 2017 annual amount of employer-paid contributions to
401-k (or equivalent) plan; 9) The 2017 annual amount of
employer-paid post-retirement health plans.
Id. ¶ 4.2. This request was denied, which
prompted Maycock to file an internal appeal to Council 2.
Id. ¶¶ 4.3-4.4. Judicial Panel Member
Theodorah McKenna denied that appeal in a decision dated
January 4, 2019. Id. ¶ 4.5. Plaintiff Komac
also “made a substantially similar, if not identical,
request for information from Council 2. Id. ¶
4.6. Maycock appealed McKenna's denial to AFSCME's
Full Judicial Panel on February 1, 2019. Id. ¶
4.7. Plaintiffs Local 114 and Komac requested to intervene in
Maycock's appeal, but that request was denied.
Id. ¶ 4.8. No explanation for the denial was
provided. Id. After a hearing, the Full Judicial
Panel denied Maycock's appeal and affirmed McKenna's
decision without explanation on April 2, 2019. Id.
¶ 4.10. On April 15, 2019, Maycock appealed the decision
to the International Convention of AFSCME, which is scheduled
to convene in July 2020. Id. ¶ 4.11. Plaintiffs
filed this action on the same day and amended the complaint
one day later on April 16, 2019.
10, 2019, AFSCME's President, Lee Saunders, wrote a
letter to the Full Judicial Panel requesting reconsideration
of its decision and expressing “concern that the
decision of the Judicial Panel as it relates to the right of
members to inspect certain financial information does not
comport with [the President's] interpretation of the
International Constitution or with earlier Judicial Panel
precedent.” Ex. A to Dugovich Decl. (docket no. 15). He
further requested that the panel hear the matter “on an
expedited basis” and “that written reasons be
provided for either upholding or overturning the Hearing
Officer's decision.” Id.
11, 2019, Maycock's counsel objected to Saunders'
proposal, writing, “[g]iven Mr. Saunder[s']
epiphany came only after my clients filed suit in federal
court . . . my clients remain skeptical of the bona
fides of Mr. Saunder[s'] direction that the matter
be reconsidered. It appears that this direction was motivated
by expediency rather than his actual belief as to how the
rules should and do apply.” Ex. 11 to Maycock Decl.
(docket no. 11 at 95). On May 13, 2019, counsel for Maycock
reiterated this objection, calling Saunders' proposal a
“thinly-veiled attempt to engineer a different outcome
reached by the Full Judicial Panel in an effort to avoid
embarrassment, and to buttress . . . a forthcoming defense
that [Plaintiffs'] claims in the federal court litigation
should be dismissed as moot.” Id. at
3, 2019, the Judicial Panel reconvened and heard argument.
Dugovich Decl. ¶ 4 (docket 15 at 1). The next day, the
Panel issued a new decision, reversing its earlier conclusion
and directing Council 2 to provide Maycock with all of the
specific information he sought. Ex. B to Dugovich Decl.
(docket no. 15 at 7-12). The decision also stated that
“[g]oing forward, it is expected that Council 2 will
comply with this decision and make arrangements to permit
Brother Maycock, and any other requesting member, to view the
requested information under reasonable conditions intended to
preserve the confidentiality of such information.”
Id. at 12. Council 2 subsequently informed Maycock
and Komac that the requested information would be made
available. Dugovich Decl. ¶ 6 (docket 15 at 2).
Standard of Review
to Federal Rule of Civil Procedure 12(b)(1), a court must
dismiss an action if the court lacks “jurisdiction over
the subject matter.” “A party invoking the
federal court's jurisdiction has the burden of proving
the actual existence of subject matter jurisdiction.”
Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.
1996) (citing Trentacosta v. Frontier Pac. Aircraft
Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987)).
Mootness, because it pertains to a federal court's
subject-matter jurisdiction, is “properly raised in a
motion to dismiss under [FRCP] 12(b)(1).” White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Rule
12(b)(1) jurisdictional attacks can be either facial or
factual.” Id. Where the attack is factual, a
court may look beyond the complaint and “need not
presume the truthfulness of the plaintiffs'
allegations.” Id. (citing Moore's
Federal Practice ¶ 12.30, at 12-38 (3d ed.
1999); see also Savage v. Glendale Union High Sch.,
343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (“Once the
moving party has converted the motion to dismiss into a
factual motion by presenting affidavits or other evidence
properly brought before the court, the party opposing the
motion must furnish affidavits or other evidence necessary to
satisfy its burden of establishing subject matter
jurisdiction.”); Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In
resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary