Dan Clark v. City of Seattle , 899 F.3d 802 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAN CLARK; TAMI DUNLAD; ALI No. 17-35693
HASSAN; JENNIFER IMMEL; GARY
KUNZE; ELISABETH LOWE; DALE D.C. No.
MONTZ; ABDI MOTAN; FREDRICK 2:17-cv-00382-
RICE; MICHAEL RIEBS; FIREW RSL
TESHOME,
Plaintiffs-Appellants,
OPINION
v.
CITY OF SEATTLE; SEATTLE
DEPARTMENT OF FINANCE AND
ADMINISTRATIVE SERVICES; FRED
PODESTA, in his official capacity as
Director of the Seattle Department of
Finance and Administrative Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Senior District Judge, Presiding
Argued and Submitted February 5, 2018
Seattle, Washington
Filed August 9, 2018
2 CLARK V. CITY OF SEATTLE
Before: MILAN D. SMITH, JR. and MARY H.
MURGUIA, Circuit Judges, and EDUARDO C.
ROBRENO, * District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Labor Law
The panel affirmed the district court’s dismissal as
unripe of an action brought by for-hire drivers, challenging
a Seattle ordinance that establishes a multistep collective-
bargaining process between “driver-coordinators,” such as
Uber Technologies and Lyft, Inc., and for-hire drivers who
contract with those companies.
The drivers contended that the ordinance was preempted
by §§ 8(b)(4) and 8(e) of the National Labor Relations Act
and that the ordinance violated the drivers’ First Amendment
rights.
The panel held that the drivers’ NLRA claims were
constitutionally unripe because they did not allege an injury
in fact that was concrete and particularized. The panel
concluded that disclosure of the drivers’ personal
information to a union was neither a concrete nor a
*
The Honorable Eduardo C. Robreno, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CLARK V. CITY OF SEATTLE 3
particularized injury. Further, no contract governing the
manner in which the drivers did business with Uber or Lyft
was imminent, and the drivers did not show that they would
be subject to a coercive union campaign in violation of
§ 8(b)(4).
The panel held that the drivers’ First Amendment claim
was unripe for the same reasons.
COUNSEL
William L. Messenger (argued) and Amanda K. Freeman,
National Right to Work Legal Defense Foundation Inc.,
Springfield, Massachusetts; James G. Abernathy, Freedom
Foundation, Olympia, Washington; for Plaintiffs-
Appellants.
P. Casey Pitts (argued), Peder J. Thoreen, Stacey M. Leyton,
and Stephen P. Berzon, Altshuler Berzon LLP, San
Francisco, California; Josh Johnson, Sara O’Connor-Kriss,
Michael K. Ryan, and Gregory C. Narver, Assistant City
Attorneys; Peter S. Holmes, City Attorney; Seattle City
Attorney’s Office, Seattle, Washington; for Defendants-
Appellees.
Deborah J. La Fetra, Pacific Legal Foundation, Sacramento,
California, for Amicus Curiae Pacific Legal Foundation.
Catherine L. Fisk, Berkeley, California; Charlotte Garden,
Fred T. Korematsu Center for Law & Equality, Ronald A.
Peterson Law Clinic, Seattle University School of Law,
Seattle, Washington, for Amici Curiae Labor Law
Professors.
4 CLARK V. CITY OF SEATTLE
OPINION
M. SMITH, Circuit Judge:
In December 2015, the Seattle City Council passed
Ordinance 124968, an Ordinance Relating to Taxicab,
Transportation Network Company, and For-Hire Vehicle
Drivers (Ordinance). Chamber of Commerce of the U.S. v.
City of Seattle, 890 F.3d 769, 775 (9th Cir. 2018). The
Ordinance establishes a multistep collective-bargaining
process between “driver coordinators,” such as Uber
Technologies (Uber) and Lyft, Inc. (Lyft), and for-hire
drivers who contract with those companies. Id.
Plaintiffs-Appellants Dan Clark, Tami Dunlap, Ali
Hassan, Jennifer Immel, Gary Kunze, Elisabeth Lowe, Dale
Montz, Abdi Motan, Fredrick Rice, Michael Riebs, and
Firew Teshome (collectively, the Drivers), are for-hire
drivers who contract with Uber and Lyft. Together, the
Drivers filed suit against Defendants-Appellees the City of
Seattle, the Seattle Department of Finance and
Administrative Services (the Department), and the
Department’s Director, Fred Podesta (collectively, the City),
challenging the Ordinance on federal law grounds. On
appeal, the Drivers contend that the Ordinance is preempted
by sections 8(b)(4) and 8(e) of the National Labor Relations
Act (NLRA), 29 U.S.C. § 158, and that the Ordinance
violates the Drivers’ First Amendment rights.
The district court dismissed the Drivers’ action as unripe,
without reaching the merits of the Drivers’ claims. We
affirm.
CLARK V. CITY OF SEATTLE 5
FACTUAL AND PROCEDURAL BACKGROUND
A. The Ordinance 1
The Ordinance establishes a complex collective-
bargaining process between driver coordinators and for-hire
drivers. 2 Seattle, Wash., Ordinance 124968 § 1(I). The
process begins with the election of a “qualified driver
representative” (QDR). Seattle, Wash., Municipal Code
§§ 6.310.110, 6.310.735(C). An entity seeking to represent
for-hire drivers operating within Seattle first applies to the
Director for designation as a QDR. Id. § 6.310.735(C). The
entity must submit its application within thirty days of the
“commencement date” promulgated by the Director. Id.
The Director then provides the entity with written notice of
his determination within fourteen days of the application. Id.
Within fourteen days of its designation as a QDR, the
QDR notifies the driver coordinator of its intent to represent
that driver coordinator’s for-hire drivers. Id.
§ 6.310.735(C)(2). After receiving notice from the QDR,
the driver coordinator must, within seventy-five days of the
commencement date, disclose to the QDR the names,
addresses, email addresses, and phone numbers of all of its
“qualifying drivers.” Id. § 6.310.735(D). To be a qualifying
driver, a for-hire driver must have “dr[iven] at least 52 trips
originating or ending within the Seattle city limits for a
particular Driver Coordinator during any three-month period
1
Our discussion of the Ordinance is adapted from our decision in
Chamber of Commerce, 890 F.3d 769.
2
The Ordinance defines a “driver coordinator” as “an entity that
hires, contracts with, or partners with for-hire drivers for the purpose of
assisting them with, or facilitating them in, providing for-hire services to
the public.” Seattle, Wash., Municipal Code § 6.310.110.
6 CLARK V. CITY OF SEATTLE
in the 12 months preceding the commencement date.”
Seattle, Wash., Qualifying Driver and Lists of Qualifying
Drivers, Rule FHDR-1.
The QDR contacts the qualifying drivers to solicit their
interest in being represented by the QDR. Seattle, Wash.,
Municipal Code § 6.310.735(E). The QDR then submits to
the Director signed statements of interest from qualifying
drivers indicating that they wish to be represented by the
QDR in negotiations with the driver coordinator. Id.
§ 6.310.735(F)(1). The QDR must submit the statements of
interest to the Director within 120 days of receiving the
qualifying drivers’ contact information. Id.
The Director then makes a determination within thirty
days of receiving the statements of interest. Id.
§ 6.310.735(F)(2). If a majority of qualifying drivers
consent to representation by the QDR, the Director certifies
the QDR as the “exclusive driver representative” (EDR) for
all for-hire drivers for that particular driver coordinator. Id.
If more than one QDR is able to demonstrate that a majority
of qualifying drivers wish to be represented by that QDR, the
Director will designate the QDR with the largest number of
statements of interest to be the EDR. Id.
If no QDR has successfully garnered the support of a
majority of qualifying drivers, the Director will announce
that no QDR has met the threshold for EDR certification. Id.
§ 6.310.735(F)(3). In the event no EDR is certified for a
driver coordinator, “the Director shall, upon the written
request from a designated QDR or from an entity that seeks
to be designated as a QDR, promulgate a new
commencement date applicable to that driver coordinator
that is no later than 90 days after the request.” Id.
§ 6.310.735(G). Following the promulgation of a new
commencement date, the QDR, or another entity that wishes
CLARK V. CITY OF SEATTLE 7
to be designated as the EDR, will then repeat the steps
outlined above. Id. In any event, the Ordinance provides
that “no driver coordinator shall be subject to the [EDR
certification] requirements of Section 6.310.735 more than
once in any 12-month period.” Id.
After the Director certifies the EDR,
the driver coordinator and the EDR shall
meet and negotiate in good faith certain
subjects to be specified in rules or regulations
promulgated by the Director, including, but
not limited to, best practices regarding
vehicle equipment standards; safe driving
practices; the manner in which the driver
coordinator will conduct criminal
background checks of all prospective drivers;
the nature and amount of payments to be
made by, or withheld from, the driver
coordinator to or by the drivers; minimum
hours of work, conditions of work, and
applicable rules.
Id. § 6.310.735(H)(1). In the event they reach an agreement,
the driver coordinator and the EDR submit the agreement to
the Director for review. Id. § 6.310.735(H)(2). The Director
reviews the agreement for compliance with the Ordinance
and Chapter 6.310 of the Seattle Municipal Code, which
governs taxicabs and for-hire vehicles. Id. In conducting his
review, the Director may seek and consider additional
evidence, including by conducting public hearings or
requesting more information from the parties. Id.
The agreement becomes final and binding on all parties
only if the Director finds the agreement compliant. Id.
§ 6.310.735(H)(2)(a). The agreement does not take effect
8 CLARK V. CITY OF SEATTLE
until the Director makes an affirmative compliance
determination. Id. § 6.310.735(H)(2)(c). If the Director
deems the agreement noncompliant, the Director remands it
to the parties with a written explanation of the agreement’s
failures, and may offer recommendations for remedying the
agreement’s inadequacies. Id. § 6.310.735(H)(2)(b).
If the driver coordinator and the EDR fail to reach an
agreement within 90 days of the EDR’s certification, “either
party must submit to interest arbitration upon the request of
the other,” in accordance with the procedures and criteria
specified in the Ordinance. Id. § 6.310.735(I). The interest
arbitrator then proposes an agreement compliant with
Chapter 6.310 and the City’s public policy goals. Id.
§ 6.310.735(I)(2). The interest arbitrator’s proposed
agreement undergoes the same review process as an
agreement proposed by the parties. Id. § 6.310.735(I)(3).
The Ordinance also specifies various amendment
procedures that may be invoked after an agreement becomes
final. The parties may propose amendments to an approved
agreement, subject to the Director’s review and approval. Id.
§ 6.310.735(J). The Director can withdraw approval of an
agreement during its term if the Director finds that the
agreement no longer complies with the Ordinance or furthers
the City’s public policy goals. Id. § 6.310.735(J)(1).
Finally, an EDR may be decertified through a driver-
initiated petition process. Id. § 6.310.735(L).
B. The Drivers
The Drivers are for-hire drivers who contract with Uber.
Two of the Drivers, Clark and Lowe, also contract with Lyft.
All of the Drivers, with the exception of Clark and Dunlap,
are qualifying drivers under the terms of the Ordinance. The
Drivers object to the Ordinance and the prospect of
CLARK V. CITY OF SEATTLE 9
representation by Teamsters Local 117 (Local 117): They
do not wish to become members of, or be represented by,
Local 117, and they do not wish to be bound by any future
agreement Local 117 may reach with Uber or Lyft.
C. Procedural History
Because the present case has proceeded in parallel with
the Chamber of Commerce of the United States of America’s
(the Chamber) lawsuit challenging the same Ordinance, we
briefly recount the procedural history of both cases.
After the Ordinance took effect on January 22, 2016, the
Chamber filed suit on March 3, 2016, challenging the
Ordinance as preempted by the Sherman Antitrust Act and
the NLRA. The district court dismissed the Chamber’s
action as unripe, because no entity had as yet applied for
certification as a QDR. See Chamber of Commerce of the
U.S. v. City of Seattle, No. C16-0322RSL, 2016 WL
4595981, at *2, *4 (W.D. Wash. Aug. 9, 2016).
On March 3, 2017, the Director designated Local 117 as
a QDR. On March 7, 2017, Local 117 notified Uber, Lyft,
and ten other driver coordinators that it intended to seek
EDR certification for those companies. Local 117 requested
the contact information of the driver coordinators’
qualifying drivers pursuant to the Ordinance’s disclosure
provisions. In response, the Chamber quickly filed suit
again on March 9, 2017, seeking a declaration that the
Ordinance is unenforceable, and a preliminary injunction
enjoining the City from enforcing the Ordinance.
The Drivers filed the present action on the heels of the
Chamber’s refiling. On March 10, 2017, the Drivers filed a
Complaint challenging the Ordinance primarily on federal
labor law and First Amendment grounds. In their
10 CLARK V. CITY OF SEATTLE
Complaint, the Drivers asserted five claims: (1) that the
Ordinance is preempted by NLRA section 8(e); (2) that the
Ordinance is preempted by NLRA section 8(b)(4); (3) that
the Ordinance is preempted under a Garmon theory because
it regulates conduct regulated by NLRA sections 8(b)(4) and
8(e), and/or preempted under a Machinists theory because it
regulates conduct Congress intended to be left to the free
play of economic forces; (4) a 42 U.S.C. § 1983 claim that
the Ordinance violates the First and Fourteenth
Amendments; and (5) that the Ordinance is preempted by the
Drivers’ Privacy Protection Act. 3 The Drivers sought a
declaration that the Ordinance is unlawful, an injunction
enjoining the City from enforcing the Ordinance, and
damages.
On March 21, 2017, the City filed a motion to dismiss
the Chamber’s case. On April 4, 2017, before ruling on the
City’s motion to dismiss the Chamber’s case, the district
court granted the Chamber’s motion for a preliminary
injunction. After the district court granted the Chamber’s
motion for a preliminary injunction, it denied as moot the
Drivers’ motion for a preliminary injunction.
On April 13, 2017, the City moved to dismiss the
Drivers’ Complaint.
On August 1, 2017, the district court granted the City’s
motion to dismiss the Chamber’s case. The district court
entered judgment on August 4, 2017. The Chamber timely
appealed.
3
The Drivers have waived their Drivers’ Privacy Protection Act
claim on appeal because they did not raise it in their opening brief. See
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137 n.13 (9th Cir. 2012)
(stating that issues not raised in an opening brief are waived).
CLARK V. CITY OF SEATTLE 11
On August 24, 2017, the district court granted the City’s
motion to dismiss the Drivers’ case. The Drivers timely
appealed.
On August 28, 2017, the Chamber filed an emergency
motion for an injunction pending appeal in this court. On
September 8, 2017, we granted the emergency motion and
enjoined enforcement of the Ordinance pending the
Chamber’s appeal. After we granted the Chamber’s motion
for a preliminary injunction pending appeal, the Drivers
withdrew their motion for a preliminary injunction.
On May 11, 2018, we reversed in part, affirmed in part,
and remanded the Chamber’s case for further proceedings.
Chamber of Commerce of the U.S., 890 F.3d at 776.
STANDARD OF REVIEW
We review de novo a district court’s order dismissing a
case for lack of subject matter jurisdiction. Bishop Paiute
Tribe v. Inyo County, 863 F.3d 1144, 1151 (9th Cir. 2017).
We have a “continuing, independent obligation” to ensure
that we have subject matter jurisdiction over a case. Mashiri
v. Dep’t of Educ., 724 F.3d 1028, 1031 (9th Cir. 2013).
ANALYSIS
I. The Drivers’ NLRA Preemption Claims Are Unripe.
Article III of the Constitution empowers us to adjudicate
only “live cases or controversies,” not “to issue advisory
opinions [or] to declare rights in hypothetical cases.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
1138 (9th Cir. 2000). Ripeness is one of the justiciability
doctrines that we use to determine whether a case presents a
live case or controversy. “[R]ipeness is ‘peculiarly a
12 CLARK V. CITY OF SEATTLE
question of timing,’ designed to ‘prevent the courts, through
avoidance of premature adjudication, from entangling
themselves in abstract disagreements.’” Id. (citation
omitted) (first quoting Blanchette v. Conn. Gen. Ins. Corps.,
419 U.S. 102, 140 (1974); then quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 148 (1967), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
“Although ripeness, like other justiciability doctrines, is ‘not
a legal concept with a fixed content or susceptible of
scientific verification,’ the Supreme Court has observed that
the doctrine ‘is drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to
exercise jurisdiction.’” Id. (citation omitted) (first quoting
Poe v. Ullman, 367 U.S. 497, 508 (1961); then quoting Reno
v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).
Thus, in conducting a traditional ripeness inquiry, we
evaluate both “a constitutional and a prudential
component.” 4 Bishop Paiute Tribe, 863 F.3d at 1153.
4
The Supreme Court recently cast doubt on the prudential
component of ripeness in Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334 (2014). The Court suggested, but did not decide, that once a court
“conclude[s] that [a plaintiff] ha[s] alleged a sufficient Article III injury,”
any remaining prudential ripeness concerns do not render a plaintiff’s
claim nonjusticiable: “To the extent [a defendant] would have us deem
[a plaintiff’s] claim[] nonjusticiable ‘on grounds that are “prudential,”
rather than constitutional,’ ‘[t]hat request is in some tension with our
recent reaffirmation of the principle that “a federal court’s obligation to
hear and decide”’ cases within its jurisdiction “is virtually unflagging.”’”
Id. at 2347 (last alteration in original) (quoting Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014)). Finding
that the prudential ripeness factors were “easily satisfied” in the case, the
Court declined to “resolve the continuing vitality of the prudential
ripeness doctrine” in Susan B. Anthony List. Id. Here, we similarly need
not decide this issue. As we explain, the Drivers do not satisfy the
constitutional component of ripeness.
CLARK V. CITY OF SEATTLE 13
“For a case to be ripe, it must present issues that are
‘definite and concrete, not hypothetical or abstract.’” Id.
(quoting Thomas, 220 F.3d at 1139). Because “[s]orting out
where standing ends and ripeness begins is not an easy task,”
Thomas, 220 F.3d at 1138, “[c]onstitutional ripeness is often
treated under the rubric of standing because ‘ripeness
coincides squarely with standing’s injury in fact prong,’”
Bishop Paiute Tribe, 863 F.3d at 1153 (quoting Thomas,
220 F.3d at 1138). Given that “the focus of our ripeness
inquiry is primarily temporal in scope, ripeness can be
characterized as standing on a timeline.” Thomas, 220 F.3d
at 1138.
We thus turn to the well-established requirements for an
injury in fact: A “plaintiff must have suffered an ‘injury in
fact’—an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) ‘actual or imminent,
not “conjectural” or “hypothetical.”’” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992) (citations omitted)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
“[T]he injury-in-fact requirement requires a plaintiff to
allege an injury that is both ‘concrete and particularized.’”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016)
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180–81 (2000)). “For an injury
to be ‘particularized,’ it ‘must affect the plaintiff in a
personal and individual way.’” Id. at 1548 (quoting Lujan,
504 U.S. at 560 n.1). For an injury to be concrete, it must
“‘actually exist[]’; in other words, it is ‘real, and not
abstract.’” Bassett v. ABM Parking Servs., Inc., 883 F.3d
776, 779 (9th Cir. 2018) (quoting Spokeo, 136 S. Ct. at
1548). “Intangible harms and a ‘risk of real harm’ can be
sufficiently concrete.” Id. (quoting Spokeo, 136 S. Ct. at
1549).
14 CLARK V. CITY OF SEATTLE
The Drivers have not satisfied any of these requirements.
The Drivers offer three reasons for why their NLRA
preemption claims are constitutionally ripe. We reject each
of them.
First, the Drivers argue that the Ordinance “will infringe
on their privacy rights, as several Drivers’ personal
information will be disclosed to the Teamsters under the
Ordinance’s disclosure provisions.” The Drivers assert that
harm is imminent, because the injunction pending in the
Chamber of Commerce case is the sole bulwark halting the
disclosure of their information to Local 117. The Drivers’
argument is flawed. Even assuming arguendo that the
disclosure is imminent, the disclosure of the Drivers’
personal information is neither a concrete nor a
particularized injury.
To start, the Drivers do not identify the legal wellspring
of their claimed privacy rights. Nor do they show how the
disclosure of the information presents a “risk of real harm”
to each Driver “personal[ly] and individual[ly].” Spokeo,
136 S. Ct. at 1548–49 (quoting Lujan, 504 U.S. at 560 n.1);
see also Or. Prescription Drug Monitoring Program v. DEA,
860 F.3d 1228, 1233 (9th Cir. 2017) (“[S]tanding is not
dispensed in gross,” but instead “requires careful judicial
examination of a complaint’s allegations to ascertain
whether the particular plaintiff is entitled to an adjudication
of the particular claims asserted.” (first quoting Davis v.
FEC, 554 U.S. 724, 734 (2008); then quoting Allen v.
Wright, 468 U.S. 737, 752 (1984), abrogated on other
grounds by Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377 (2014))). Indeed, the
Drivers’ own conduct belies their assertion of injury: In
order to operate in the City of Seattle, all for-hire drivers
must obtain business licenses and disclose much of the same
CLARK V. CITY OF SEATTLE 15
information in a public and searchable municipal database
online as must be disclosed pursuant to the Ordinance. See
Seattle, Wash., Municipal Code §§ 6.208.010,
5
6.310.130(F). Moreover, even if the Drivers could identify
a basis for their claimed privacy rights, “a bare procedural
violation, divorced from any concrete harm,” does not
“satisfy the injury-in-fact requirement of Article III.”
Spokeo, 136 S. Ct. at 1549–50 (“It is difficult to imagine how
the dissemination of an incorrect zip code, without more,
could work any concrete harm.”). Where, as here, there is
not only a lack of any concrete harm, but also a lack of any
predicate legal violation, the injury-in-fact requirement is
not satisfied.
Second, the Drivers argue that “certification of an
exclusive driver representative will result in a contract
governing the manner in which [they] can do business with
Uber and/or Lyft.” In other words, the Drivers assert that
they are poised to suffer a violation of NLRA section 8(e).
Such an injury is neither actual nor imminent. Section 8(e),
by its plain language, requires a “contract or agreement”:
It shall be an unfair labor practice for any
labor organization and any employer to enter
into any contract or agreement, express or
implied, whereby such employer ceases or
refrains or agrees to cease or refrain from
handling, using, selling, transporting or
otherwise dealing in any of the products of
any other employer, or to cease doing
business with any other person, and any
5
Licensees’ names, addresses, and phone numbers are publicly
available at http://www.seattle.gov/business-licenses-and-taxes/find-a-
licensed-business.
16 CLARK V. CITY OF SEATTLE
contract or agreement entered into heretofore
or hereafter containing such an agreement
shall be to such extent unenforcible and void
....
29 U.S.C. § 158(e). Here, no contract or agreement is
imminent. No QDR has successfully procured the support
of the majority of either Uber or Lyft’s qualifying drivers. It
is speculative whether Local 117, another entity, or no entity
at all, will become the EDR for Uber and Lyft’s drivers.
With no EDR in sight to reach an agreement with either Uber
or Lyft, the Drivers’ assertion of a section 8(e) injury is
wholly speculative. We thus reject the Drivers’ second
injury-in-fact theory.
Third, the Drivers argue that “the Ordinance’s
certification process will violate the Drivers’ federal right
under Section 8(b)(4) not to be subject to union campaigns
prohibited by that statute.” NLRA section 8(b)(4) provides,
in relevant part:
It shall be an unfair labor practice for a labor
organization or its agents . . .
(ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry
affecting commerce, where in either case an
object thereof is—
(A) forcing or requiring any employer or
self-employed person to join any labor or
employer organization or to enter into
any agreement which is prohibited by
subsection (e);
CLARK V. CITY OF SEATTLE 17
(B) forcing or requiring any person to
cease using, selling, handling,
transporting, or otherwise dealing in the
products of any other producer,
processor, or manufacturer, or to cease
doing business with any other person, or
forcing or requiring any other employer
to recognize or bargain with a labor
organization as the representative of his
employees unless such labor organization
has been certified as the representative of
such employees . . . .
Id. § 158(b)(4)(ii)(A)–(B). The Drivers observe correctly
that section 8(b)(4) does not require a union to achieve an
agreement or contract proscribed by section 8(e). Rather,
conduct with the “object” of achieving a forbidden
agreement—even if such an agreement is never attained—
falls within the proscriptive ambit of section 8(b)(4). Id.
However, the plain language of the statute makes clear
that not just any conduct will trigger section 8(b)(4)’s
proscription: The conduct must be “threaten[ing],
coerc[ive], or restrain[ing].” Id.; see also Overstreet v.
United Bhd. of Carpenters, Local Union No. 1506, 409 F.3d
1199, 1212 (9th Cir. 2005) (explaining that “[a]
§ 8(b)(4)(ii)(B) violation has two elements,” the first of
which is that “a labor organization must ‘threaten, coerce, or
restrain’ a person engaged in commerce (such as a customer
walking into [a] secondary business[])” (quoting 29 U.S.C.
§ 158(b)(4)(ii))). The Supreme Court has made clear that
“more than mere persuasion is necessary to prove a violation
of § 8(b)(4)(ii)(B): that section requires a showing of threats,
coercion, or restraints.” Edward J. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
18 CLARK V. CITY OF SEATTLE
578 (1988) (holding that a union’s distribution of handbills
at the entrances of a shopping mall was not threatening,
coercing, or restraining within meaning of section 8(b)(4)
because there had been “no violence, picketing, or
patrolling,” and “no suggestion that the leaflets had any
coercive effect on customers of the mall”); see also Int’l
Longshoremen’s Union, Local 32 v. Pac. Mar. Ass’n, 773
F.2d 1012, 1018 (9th Cir. 1985) (requiring “‘proof which if
viewed realistically tends to show’ a coercive effect” for a
section 8(b)(4)(ii) violation (quoting NLRB v. Int’l Bhd. of
Elec. Workers, Local Union No. 769, 405 F.2d 159, 162 (9th
Cir. 1968))). The Court has cautioned that the words
“threaten, coerce, or restrain” are “‘nonspecific, indeed
vague,’ and should be interpreted with ‘caution’ and not
given a ‘broad sweep.’” DeBartolo, 485 U.S. at 578
(quoting NLRB v. Drivers, Local Union No. 639, 362 U.S.
274, 290 (1960)); cf. Overstreet, 409 F.3d at 1212 (“The only
activity that appears to be clearly proscribed by the statute is
‘ambulatory picketing’ of secondary businesses.” (quoting
DeBartolo, 485 U.S. at 587)).
The Drivers anticipate that they will be subject to a
“coercive campaign” by Local 117. Tellingly, however,
they do not provide any facts about the foreseen campaign,
much less offer any facts showing that such a campaign
would be coercive within meaning of section 8(b)(4).
Whether Local 117 will engage in conduct that is
“sufficiently ‘intimidat[ing],’” Overstreet, 409 F.3d at 1213
(alteration in original) (quoting DeBartolo, 485 U.S. at 580),
is wholly speculative.
Troublingly, Clark and Dunlap admit in the Complaint
that they are not even “qualifying drivers” within meaning
of the Ordinance. Thus, Clark and Dunlap will not be
subject to the Ordinance’s provisions regarding disclosure of
CLARK V. CITY OF SEATTLE 19
qualifying driver information. Nor will they play any role in
the EDR certification process. Any injury Clark and Dunlap
claim they will suffer is removed even further than the other
Drivers’ asserted injuries. Clark and Dunlap’s claims are
therefore unripe for these additional reasons.
Finally, the Drivers cite to authorities that do not support
their position. The Drivers cite to Babbitt v. United Farm
Workers National Union, 442 U.S. 289 (1979), for the
proposition that the Drivers need not “await the
consummation of threatened injury to obtain preventive
relief.” Id. at 298 (quoting Pennsylvania v. West Virginia,
262 U.S. 553, 593 (1923)). However, the Drivers ignore the
language surrounding the quoted sentence, which makes
clear that an injury that is “certainly impending . . . is
enough,” id. (emphasis added) (quoting Pennsylvania,
262 U.S. at 593), and that “[a] plaintiff who challenges a
statute must demonstrate a realistic danger of sustaining a
direct injury as a result of the statute’s operation or
enforcement,” id. (emphasis added) (citing O’Shea v.
Littleton, 414 U.S. 488, 494 (1974)). As discussed above,
the Drivers’ theories of injury do not meet these criteria.
The Drivers’ citation to American Trucking Ass’ns, Inc.
v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009), is
similarly unavailing, as the plaintiffs in that case faced
certain, “imminent harm.” Id. at 1057–59 (concluding
irreparable harm was likely, where plaintiff motor carriers
were subject to an immediate “Hobson’s choice” of either
signing agreements, which would cause them to “incur large
costs” and “disrupt and change the whole nature of [their]
business[es],” or refusing to sign the agreements, which
would entail “a loss of customer goodwill,” at minimum, or
an entire loss of business). Here, while the Drivers point to
the Ordinance’s civil penalty provisions for driver
20 CLARK V. CITY OF SEATTLE
coordinators who fail to comply with the Ordinance’s
disclosure and negotiation provisions, see Seattle, Wash.,
Municipal Code § 6.310.735(D), (H)(1), (M)(1)(b), such
injuries, even if they materialized, would not be
particularized to the Drivers. The Drivers cannot claim for
themselves any imminent injuries that Uber and Lyft are
poised to incur.
The Drivers’ reliance on case law from the context of
pre-enforcement challenges is also misplaced. See, e.g.,
Haw. Newspaper Agency v. Bronster, 103 F.3d 742, 746–47
(9th Cir. 1996) (holding that a preemption claim challenging
a state law was ripe where plaintiffs intended to violate the
law; the state expressed its intent to enforce the law against
plaintiffs; and compliance with the law would force
plaintiffs to disclose financial records that would otherwise
be confidential). Where a plaintiff intends to challenge a
statute prior to its enforcement, “generalized threats of
prosecution do not confer constitutional ripeness.” Bishop
Paiute Tribe, 863 F.3d at 1154. Rather, there must be “a
genuine threat of imminent prosecution.” Id. (emphasis
added) (citing Thomas, 220 F.3d at 1139). To determine
whether a genuine threat of imminent prosecution exists, we
use three factors: “[W]e look to whether the plaintiffs have
articulated a concrete plan to violate the law in question,
whether the prosecuting authorities have communicated a
specific warning or threat to initiate proceedings, and the
history of past prosecution or enforcement under the
challenged statute.” Id. (quoting Thomas, 220 F.3d at 1139).
Suffice to say, these three factors are absent in the present
case. The Drivers have not outlined a concrete plan to
engage in proscribed conduct; the municipal authorities have
not voiced intent to prosecute or otherwise penalize the
Drivers; and there has been no history of past prosecution or
enforcement under the Ordinance. The Drivers’ claims bear
CLARK V. CITY OF SEATTLE 21
no resemblance to the prototypical pre-enforcement
challenge case, in which “the threatened enforcement of a
law” against a plaintiff is imminent. Susan B. Anthony List
v. Driehaus, 134 S. Ct. 2334, 2342 (2014).
Thus, we conclude that the Drivers have not satisfied the
constitutional component of ripeness, and their NLRA
preemption claims are unripe. 6
II. The Drivers’ First Amendment Claim Is Unripe.
The Drivers’ First Amendment claim is unripe for the
same reasons. The Drivers assert that the Ordinance violates
their First Amendment rights “because it calls for
transferring [the] Drivers’ speech rights to an unwanted
representative.” They predict, “If the Ordinance’s
organizing process is permitted to proceed, [the] Drivers
could be collectivized at any time.” These arguments belie
the speculative nature of the Drivers’ asserted injuries in
fact.
The Drivers’ actual injuries hinge on a prospective chain
of events that have not yet occurred, and may never occur.
First, Local 117 must be elected the EDR for Uber or Lyft.
Second, Local 117 must then participate in collective
bargaining negotiations with Uber or Lyft. However, no
6
Because the Drivers have not met the constitutional component of
ripeness, we need not decide whether they have satisfied the prudential
component of ripeness. Even accepting for the sake of argument that
certain prudential considerations tip favorably to the Drivers, we cannot
alchemize prudential factors into Article III standing. Ultimately,
“[p]rudential considerations of ripeness are discretionary,” Bishop
Paiute Tribe, 863 F.3d at 1154 (quoting Thomas, 220 F.3d at 1142), and
mere satisfaction of prudential considerations, without satisfaction of the
constitutional component of ripeness, will not cure an unripe claim.
22 CLARK V. CITY OF SEATTLE
entity—union or otherwise—has achieved EDR
certification, much less impinged on the Drivers’ freedom of
speech by representing them at the negotiating table.
Accordingly, at this time, the Drivers’ First Amendment
claim is unripe.
CONCLUSION
“If a dispute is not a proper case or controversy, the
courts have no business deciding it, or expounding the law
in the course of doing so.” DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 341 (2006). Because the Drivers’ claims are
unripe, we lack jurisdiction to consider the merits. For the
foregoing reasons, we affirm the district court’s dismissal of
the Drivers’ action.
AFFIRMED.