Dan Clark v. City of Seattle

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.