David Noble, Jr. v. National Association of Letter Carriers

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2023 Decided May 28, 2024

No. 23-7012

DAVID W. NOBLE, JR.,

APPELLANT

v.

NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, ET

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-01613)

Daniel F. Olejko argued the cause and filed the briefs for

appellant.

Peter DeChiara argued the cause and filed the brief for

appellees. Kate M. Swearengen entered an appearance.

Before: HENDERSON and CHILDS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge CHILDS.

Concurring opinion filed by Senior Circuit Judge

EDWARDS.

2

Dissenting opinion filed by Circuit Judge HENDERSON.

CHILDS, Circuit Judge: The National Association of Letter

Carriers (“NALC” or “the Union”) is a national labor

organization and the exclusive bargaining agent for 280,000

active and retired city letter carriers employed by the United

States Postal Service (“the USPS”). NALC holds officer

elections every four years. Since NALC’s founding in 1889,

only one challenger has ever defeated an incumbent president.

The most recent election was held in October 2022, and the

dispute here arises out of events leading up to that election.

Appellant David W. Noble, Jr. (“Noble”) was a candidate

for president in NALC’s October 2022 election, running on a

platform to “rid the union of an incompetent and corrupt

leadership.” JA000024. As part of his campaign, he sought

to publish his campaign material in the February 2022 edition

of NALC’s magazine, the Postal Record. The Postal Record

is mailed to every NALC member and may be viewed at any

time on the NALC website. It is owned in equal shares by the

Union membership. The magazine contains content such as

messages from the president and other NALC officers, updates

on the USPS Board of Governors, human interest pieces about

NALC members, information about USPS-NALC agreements,

and an in-memoriam section.

NALC allows officer candidates to place paid campaign

advertisements in the Postal Record’s designated election

issue. NALC denied Noble’s request to publish his campaign

ads in multiple editions of the Postal Record pursuant to this

internal policy. Noble sued NALC, asserting that the Union

was required to publish his campaign material under Section

401(c) of the Labor-Management Reporting and Disclosure

Act (“the LMRDA”). 73 Stat. 532, 29 U.S.C. § 481. NALC

moved to dismiss the complaint for failure to state a claim on

3

which relief can be granted, and the district court granted

NALC’s motion. On appeal, Noble argues that the district

court’s dismissal was based on an overly narrow interpretation

of the LMRDA’s Section 401(c). NALC not only responds

that the district court’s interpretation of the LMRDA was

appropriate, but also that compelling the Union to publish

campaign literature in any issue of the Postal Record, as

opposed to just the dedicated campaign issue, would violate the

First Amendment.

We hold that dismissal was premature because the district

court failed to make sufficient findings to determine the

reasonableness of Noble’s request under the balancing of

hardships required by International Organization of Masters,

Mates & Pilots v. Brown, 498 U.S. 466 (1991). We further

hold that NALC, as a non-media organization, does not have a

free speech right to decline to print a campaign advertisement

in the Postal Record, as it is merely hosting the speech in its

magazine and is not accompanying the advertisement with

speech of its own. We reverse and remand for further

consideration of Noble’s complaint.

I.

Noble was hired by the USPS in 1975 and joined NALC

shortly thereafter. He was an officer candidate in the Union’s

2022 election. The September/October issue of the Postal

Record was the designated election issue for the 2022 officer

election. In December 2021, Noble emailed NALC president

Fredric Rolando, inquiring about the publication rates and the

deadline to submit his campaign material for publication,

starting with the February 2022 edition of the magazine.

NALC denied his request in keeping with internal union policy

which only allows political advertisements to be run in the

Postal Record’s designated election issue.

4

Noble brought the present lawsuit pro se in the district

court, alleging that the Union violated the LMRDA’s Section

401(c) by refusing to distribute his campaign material, seeking

declaratory judgment and an injunction requiring NALC to

publish his campaign material. Section 401(c) governs

unions’ responsibilities regarding union election campaign

material. It requires that labor organizations:

shall be under a duty, enforceable at the suit of any

bona fide candidate for office in such a labor

organization … to comply with all reasonable

requests of any candidate to distribute by mail or

otherwise at the candidate’s expense campaign

literature in aid of such person’s candidacy to all

members in good standing of such labor organization.

29 U.S.C. § 481(c). 1 NALC moved to dismiss Noble’s

complaint, arguing that Noble failed to state a claim under

1

Section 401(c) of the LMRDA provides:

Every national or international labor organization, except

a federation of national or international labor

organizations, and every local labor organization, and its

officers, shall be under a duty, enforceable at the suit of

any bona fide candidate for office in such labor

organization in the district court of the United States in

which such labor organization maintains its principal

office, to comply with all reasonable requests of any

candidate to distribute by mail or otherwise at the

candidate's expense campaign literature in aid of such

person's candidacy to all members in good standing of such

labor organization and to refrain from discrimination in

favor of or against any candidate with respect to the use of

lists of members, and whenever such labor organizations

or its officers authorize the distribution by mail or

5

Federal Rule of Civil Procedure 12(b)(6) because Section

401(c) did not require NALC to publish Noble’s campaign

advertisement in the Postal Record. The district court agreed.

In interpreting the statute, the district court concluded that

Section 401(c) does not require a union to publish a candidate’s

campaign advertisements, but instead only requires that a union

coordinate the delivery of a candidate’s standalone, already-

printed campaign material to its membership. The district

court also concluded that Noble’s request was unreasonable

because the statute does not give union members “license to

alter the nature of the Postal Record by requiring it to print

advertising and campaign material it otherwise would not.”

Noble v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 2022 WL

17613057, at *6 (D.D.C. Dec. 13, 2022). Noble now appeals.

otherwise to members of campaign literature on behalf of

any candidate or of the labor organization itself with

reference to such election, similar distribution at the

request of any other bona fide candidate shall be made by

such labor organization and its officers, with equal

treatment as to the expense of such distribution. Every

bona fide candidate shall have the right, once within 30

days prior to an election of a labor organization in which

he is a candidate, to inspect a list containing the names and

last known addresses of all members of the labor

organization who are subject to a collective bargaining

agreement requiring membership therein as a condition of

employment, which list shall be maintained and kept at the

principal office of such labor organization by a designated

official thereof. Adequate safeguards to insure a fair

election shall be provided, including the right of any

candidate to have an observer at the polls and at the

counting of the ballots.

29 U.S.C. § 481(c).

6

The district court had federal question jurisdiction to hear

Noble’s claims under 29 U.S.C. § 481(c) and 28 U.S.C. § 1331.

We have jurisdiction to review the district court’s final order

dismissing Noble’s complaint under 28 U.S.C. § 1291. We

review the district court’s interpretation of the LMRDA de

novo. Noble v. Dunn, 895 F.3d 807, 810 (D.C. Cir. 2018).

II.

Because his issue on appeal is one of statutory

interpretation, we first analyze whether Noble’s request to

publish his ad in the Postal Record falls within LMRDA

Section 401(c). Section 401(c) mandates that unions

“distribute” any candidate’s campaign material. NALC

argues that “distribute” is distinct from “publish,” because

publishing is expressive conduct while distributing is not. We

disagree.

“In addressing a question of statutory interpretation, we

begin with the text.” City of Clarksville v. FERC, 888 F.3d

477, 482 (D.C. Cir. 2018). The text must be read in the

context of the entire statute. Sierra Club v. Wheeler, 956 F.3d

612, 616 (D.C. Cir. 2020); Petit v. U.S. Dept. of Educ., 675

F.3d 769, 781 (D.C. Cir. 2012). After examining the plain

text, we move on to the statute’s structure, purpose, and

legislative history. Genus Med. Techs., LLC v. FDA, 994 F.3d

631, 641 (D.C. Cir. 2021). However, we need not address

legislative history if “after analyzing the text, structure and

context, we conclude that the language is unambiguous.”

Eagle Pharms., Inc. v. Azar, 952 F.3d 323, 338–39 (D.C. Cir.

2020).

The relevant statutory text in this case is Section 401(c),

which provides that labor organizations:

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shall be under a duty, enforceable at the suit of any

bona fide candidate for office in such a labor

organization … to comply with all reasonable

requests of any candidate to distribute by mail or

otherwise at the candidate’s expense campaign

literature in aid of such person’s candidacy to all

members in good standing of such labor organization.

29 U.S.C. § 481(c) (emphasis added). While our Circuit has

said that “the very essence of publishing is making the decision

whether to print or retract a given piece of content,” Klayman

v. Zukerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014), we have

also held that posting content is synonymous with distributing

content, Cause of Action v. FTC, 799 F.3d 1108, 1123 (D.C.

Cir. 2015) (clarifying that posting qualifies as publishing even

if readers have to “affirmatively access” the content as opposed

to having it “delivered to their doorsteps or beamed into their

homes”); see also Nat’l Sec. Archive v. U.S. Dep’t of Def., 880

F.2d 1381, 1386 (D.C. Cir. 1989) (“intended distribution of

[the] document [] entails the kind of initiative we associate with

‘publishing or otherwise disseminating’ that information.”)

Because our Circuit views “distribute” and “publish” as

synonymous, Noble’s request that NALC “publish” his

advertisement falls within the text of the statute.

NALC also argues that the words “or otherwise” in Section

401(c) refer to non-mail methods of distribution, not

publication of campaign materials. The Union relies on a non-

precedential district court decision, Dimondstein v. Am. Postal

Workers Union, 964 F. Supp. 2d 37 (D.D.C. 2013), to support

its argument. We find that the Union’s reliance on the

decision is misplaced. In Dimondstein, the district court held

that a candidate’s request to distribute campaign materials via

email was reasonable, explaining that “a union must still abide

8

by reasonable candidate requests to use alternative forms of

distribution . . . if the union uses these alternative forms to

disseminate information to its members.” Id. at 43. Here,

NALC regularly uses the Postal Record to disseminate

information to its members – it published eleven volumes in

2022, and there are Postal Record archives dating back to 2010.

Moreover, the words “or otherwise” indicate that courts should

broadly interpret the statute. United States v. Fischer, 64

F.4th 329, 338 (D.C. Cir. 2023). First, the use of “or” is a

strong indication that Congress intended alternative choices.

See Loving v. IRA, 742 F.3d 1013, 1019 (D.C. Cir. 2019); see

also Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 80

(2018) (“‘[O]r’ is almost always disjunctive.”) (cleaned up).

Second, “otherwise” indicates that the statutory provision

reaches beyond the specific examples listed in the statutory

text, making the provision a catch-all provision. Fischer, 64

F.4th at 338; United States v. Bingert, 605 F. Supp. 3d 111, 125

(D.D.C. 2022) (citation omitted). Therefore, “or otherwise”

should include publication of campaign literature in a union

magazine. The district court’s conclusion that a union is only

required to coordinate the delivery of a candidate’s standalone,

already-printed campaign materials renders “or otherwise”

superfluous. We must reject this narrow interpretation

because we presume that Congress would not include empty

words in the statutory provision. Mercy Hosp., Inc. v. Azar,

891 F.3d 1062, 1068 (D.C. Cir. 2018). Our reading of “or

otherwise” further supports that Noble’s claim falls within

Section 401(c)’s statutory text.

We next find that Noble’s request is supported by the

LMRDA’s structure and purpose. Genus Med. Techs., 994

F.3d at 641. In Brown, the Supreme Court noted that other

rights that the LMRDA confers onto union members are

qualified. For example, a member’s right to run for union

office is “made expressly subject to the ‘reasonable

9

qualifications uniformly imposed’ by the Union”; and a

member’s right to speech and to vote in the election are

governed by other LMRDA sections and “‘subject to

reasonable rules’ in the union’s constitution.” Brown, 498

U.S. at 475–76 . On the other hand, Section 401(c) is not

cabined by other statutory provisions or union policies.

Therefore, the Supreme Court has deemed the 401(c) right as

“unqualified.” Id. at 476.

The dissent offers the view that the LMRDA’s legislative

history supports the district court’s interpretation of Section

401(c). We disagree. In Brown, the Court clarified that “[a]

broad interpretation of the candidate’s rights is also consistent

with the statute’s basic purpose of ensuring free and democratic

union elections by offsetting the inherent advantage incumbent

leadership has over potential rank and file challengers.” Id. at

467. The Court further recognized testimony in support of the

LMRDA highlighting that in a union election, an incumbent

enjoys certain advantages regarding the “union newspaper

which is the chief vehicle for communication with its

members.” Id. at 476. The dissent argues that because

Section 401(c) is the manifested compromise between House

and Senate proposals on the issue of candidates accessing their

union’s membership list, our reading of the statute extends

NALC’s duty beyond the statutory text. We disagree that an

obligation to grant a member’s reasonable request to

disseminate their campaign literature via the union publication

runs the risk of a union losing control over its membership list

because a union does not need to give the candidate its

membership list to grant the candidate’s request.

Furthermore, Noble’s appeal does not implicate this issue,

raised solely by the dissent. Here, NALC is not objecting to

whether the material can be included, but instead it is seeking

to control which editions of the Postal Record can include

campaign material.

10

In sum, traditional canons of statutory construction and

Supreme Court precedent support that Noble’s claim falls

within Section 401(c).

III.

Having determined that Noble’s request falls within

LMRDA Section 401(c), we now turn to whether that request

was reasonable. We hold that the district court misapplied the

reasonableness standard by inquiring whether NALC’s internal

policy was reasonable instead of whether Noble’s request was

reasonable.

The seminal case for Section 401(c) interpretation is

International Organization of Masters, Mates & Pilots v.

Brown, where a candidate sought his union’s mailing list to

mail his campaign literature in advance of the upcoming union

nomination convention. 498 U.S. at 469. The union denied

his request because an internal union rule prohibited such

preconvention mailing. Id. at 467–68. The Supreme Court

squarely held that Section 401(c) does not require a court to

evaluate the reasonableness of a union’s rule before

determining the reasonableness of a candidate’s request: “apart

from the fact that [the candidate’s] request violated the union

rule against preconvention mailings, there is no basis for

contending that the request was not ‘reasonable’ within the

meaning of [Section 401(c)].” Brown, 498 U.S. at 475. The

Court also placed the burden on the union to show that a

candidate’s request is unreasonable. Id. at 478. Here, Brown

makes clear that Noble’s request cannot be held unreasonable

solely because it conflicted with NALC’s internal rule. Noble

sought to publish his campaign material prior to the

September/October issue of the Postal Record just as the

candidate in Brown wanted to distribute campaign material

before the designated distribution period. Id. at 467–68. A

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union’s argument that a candidate’s request is per se

unreasonable simply because it conflicts with their internal rule

is “unpersuasive.” Id. at 478. Accordingly, NALC cannot

rest its case on internal policies because “expressions of respect

for internal union rules are notably absent in § 401(c).” Id.

When evaluating a union’s argument that a candidate’s request

is unreasonable, courts should instead consider factors such as

any financial hardship suffered by the union, any

administrative burden imposed on the union, and any

discrimination against other candidates. Id. The district

court failed to make sufficient findings to determine

reasonableness vel non of Noble’s request under the balancing

of hardships required by Brown. Dismissal was therefore

premature.

IV.

In the alternative, NALC argues that requiring it to publish

Noble’s campaign material would run afoul of the First

Amendment’s prohibition on compelled speech. Though the

Union presented this argument below, the district court did not

consider whether interpreting Section 401(c) to require

publication of Noble’s campaign advertisements would violate

the First Amendment. We find that requiring publication of

Noble’s campaign material, at his own financial expense,

would not constitute compelled speech in violation of the First

Amendment.

NALC primarily relies on cases involving newspaper

regulation to support its First Amendment argument. See

Passaic Daily News v. N.L.R.B., 736 F.2d 1543, 1558 (D.C.

Cir. 1984); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241,

258 (1974). While “laws that single out the press, or certain

elements thereof, for special treatment ‘pose a particular

danger of abuse by the State’” and are thereby “always subject

12

to at least some degree of heightened First Amendment

scrutiny,” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640–

41 (1994), the same is not true for union publications because

unions are not news organizations. 2 Therefore, we should turn

to precedent on First Amendment protections for non-media

entities, that do not enjoy heightened scrutiny, to guide our

analysis of NALC’s First Amendment defense.

Other cases illustrate that when a non-media organization

hosts content, the content is not considered to be theirs unless

a reasonable observer would attribute the content back to the

organization. For example, in Rumsfeld v. Forum for

Academic and Institutional Rights, Inc. (“FAIR”), the Supreme

Court explained that “[t]he expressive component of [an

entity’s] actions is not created by the conduct itself but by the

speech that accompanies it.” 547 U.S. 47, 66 (2006); see also

303 Creative LLC v. Elenis, 600 U.S. 570, 580 (2023) (holding

that because the plaintiff created wedding websites, the state

law that would force her to create speech she did not believe in

violated the First Amendment.)

Here, Noble is only asking NALC to host his own speech.

NALC is not speaking when it publishes member-candidates’

campaign literature created by the member. Furthermore,

publishing this literature does not “sufficiently interfere” with

NALC’s message. FAIR, 547 U.S. at 64. NALC cannot

assert a First Amendment injury because it is merely

facilitating union elections by publishing candidate campaign

literature.

2

In fact, the Supreme Court has allowed government regulation

of unions, even when First Amendment values are at stake. See,

e.g., Brown, 498 U.S. at 471 (affirming district court decision

requiring union to disclose membership lists. The Court did not

consider mandatory disclosure to qualify as compelled speech.).

13

NALC cites Pacific Gas. & Electric Co. v. Public Utilities

Commission of California to show that even non-media entities

have constitutional rights to not publish third-party content.

475 U.S. 1 (1986) (holding that compelling a private

corporation to provide a forum for views other than its own

infringes its freedom of speech). Pacific Gas had distributed

a newsletter in its monthly billing envelope to customers. The

newsletter “included political editorials, feature stories on

matters of public interest, tips on energy conservation, and

straightforward information about utility services and bills.”

Id. at 5. A state commission allowed a third-party to

disseminate materials in the newsletter, and the Supreme Court

found that “[c]ompelled access like that ordered in this case

both penalizes the expression of particular points of view and

forces speakers to alter their speech to conform with an agenda

they do not set.” Id. at 9; see also Forum for Acad.&

Institutional Rts. v. Rumsfeld, 390 F.3d 219, 236 (3d Cir. 2004)

(stating that Pacific Gas stands for the proposition that

“government action that forces a private speaker to

accommodate or include another private speaker’s message” is

impermissible compelled speech). Noble’s case is entirely

distinguishable from Pacific Gas because several factors make

it less likely that a reasonable observer would attribute Noble’s

campaign advertisement to the Union’s agenda. In Pacific

Gas, the corporation was forced to publish the third-party

entity’s content in the newsletter distributed to Pacific Gas

customers. Meanwhile, Noble is a union member, seeking to

publish an advertisement for his candidacy in the union’s

leadership, in the union’s internal publication (a publication

that is owned in equal shares by union membership, including

Noble). NALC opens the Postal Record for campaign

advertisements in certain issues, and members can place

mutual transfer advertisements in any issue. Considering

these relevant distinctions, a reasonable reader of the Postal

14

Record would not take the publication of a candidate’s

campaign material in the union magazine as the NALC’s

endorsement of the candidate’s message.

*****

For the foregoing reasons, we reverse the district court’s

dismissal of Noble’s claim against NALC and remand for

further proceedings consistent with this opinion.

So ordered.

EDWARDS, Senior Circuit Judge, concurring: To survive a

motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its

face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Noble’s

complaint easily satisfies this standard. Indeed, I am “hard-

pressed to imagine what more [Noble] need[ed] to allege to

satisfy the ‘lesser showing required at the pleading stage,’

particularly in light of the kind of claim [he] brings.”

Washington All. of Tech. Workers v. U.S. Dep’t of Homeland

Sec., 892 F.3d 332, 343 (D.C. Cir. 2018) (quoting Am. Soc. for

Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d

13, 18 (D.C. Cir. 2011)).

Noble plausibly claims that he has a right under the Labor-

Management Reporting and Disclosure Act (“LMRDA”) to

seek distribution of his campaign materials through his Union’s

publication. Indeed, the Supreme Court has confirmed that

“Labor unions have a statutory duty to distribute campaign

literature to their membership in response to the reasonable

request of any candidate for union office.” Int’l Org. of

Masters, Mates & Pilots v. Brown, 498 U.S. 466, 467 (1991).

A union may deny a candidate’s distribution request if it is not

reasonable. However, as the Court has made clear, a union

member’s request is not “per se unreasonable simply because

it conflicts with a union rule.” Id. at 478. Rather, the union

carries the burden to show that a member’s request is

unreasonable because, inter alia, it may cause “administrative

or financial hardship to the Union” or “discriminat[ion] against

. . . other candidate[s].” Id. Because the District Court

dismissed this case on the pleadings, the Union did not have

the opportunity to present any evidence to satisfy its burden of

proof as required by Brown.

Noble has pressed a straightforward complaint that

obviously falls within the LMRDA’s ambit. Noble is a bona

fide candidate seeking to distribute campaign literature at his

2

own expense. And the Union does not dispute that it has

declined to distribute Noble’s campaign materials as he prefers.

Noble’s complaint plainly states a claim for relief that is

plausible on its face and generally in line with other requests

that courts have deemed reasonable under the LMRDA. See,

e.g., Mims v. Teamsters Loc. No. 728, 821 F.2d 1568, 1569,

1571 (11th Cir. 1987) (noting grant of preliminary injunction

for candidate’s request to distribute campaign literature to

union membership at his expense); Yablonski v. United Mine

Workers of Am., 466 F.2d 424, 426, 431 (D.C. Cir. 1972)

(same). And, as already noted, the Union has not presented any

evidence to support its view that Noble’s request is

unreasonable. This is a matter that must be considered by the

District Court in the first instance pursuant to summary

judgment or after trial. See, e.g., Marshall v. Provision House

Workers Union, Loc. 274, 623 F.2d 1322, 1324-25 (9th Cir.

1980) (affirming summary judgment issued by the district court

finding that a union rule regarding distribution of campaign

literature was reasonable).

This is not to suggest that Noble has raised a meritorious

claim under the LMRDA. That remains to be seen after the

Union has had an opportunity to challenge the reasonableness

of Noble’s request. The statute requires only that unions

“comply with all reasonable requests of any candidate to

distribute by mail or otherwise at the candidate’s expense

campaign literature.” 29 U.S.C. § 481(c) (emphasis added). As

the Supreme Court has articulated, “Section 401(c) simply

prescribes a straightforward test: Is the candidate’s distribution

request reasonable?” Brown, 498 U.S. at 478. I agree with the

majority opinion that “distribute” in section 401(c) of the

LMRDA subsumes requests to post campaign material in a

union newspaper. It does not follow, however, that every such

request is “reasonable.”

3

Summary judgment or trial will afford the Union an

opportunity to demonstrate that Noble’s request is

unreasonable. Although, as mentioned above, a union

member’s request is not “per se unreasonable simply because

it conflicts with a union rule,” id., the reasonableness of the

Union rules at issue in this case obviously will weigh in the

balance. If the Union’s rules reasonably apply to Noble’s

request, then Noble’s request may be unreasonable by virtue of

the justifications underlying the Union’s rules. None of these

showings, however, can be made by the Union on a motion to

dismiss, at least not on the record that thus far has been

developed in this case.

Finally, because we leave open the issue of whether the

Union must publish Noble’s campaign literature pending a

determination on the reasonableness of Noble’s request, there

is no good reason to reach the First Amendment issue raised by

the Union. Furthermore, it is noteworthy that there is no First

Amendment issue here emanating from competing messages

from different speakers. Rather, in my view, the issue raised by

the Union obliquely questions whether Congress may

permissibly place restrictions on how a union orders its internal

operations. However, the Supreme Court made it clear years

ago that the regulatory reach of the LMRDA does not raise

viable causes for concern under the First Amendment. See

Trbovich v. United Mine Workers of Am., 404 U.S. 528, 530-

31 (1972) (LMRDA passed because “[h]aving conferred

substantial power on labor organizations, Congress began to be

concerned about the danger that union leaders would abuse that

power, to the detriment of the rank-and-file members.”); Wirtz

v. Loc. 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 471

(1968) (LMRDA represents congressionally struck balance of

“how best to legislate against revealed abuses in union

elections without departing needlessly from [Congress’s] long-

4

standing policy against unnecessary governmental intrusion

into internal union affairs.”).

I agree that we must reverse and remand the case so that

the District Court may properly consider, pursuant to summary

judgment or trial, whether the Union has met its burden to show

that Noble’s request to seek distribution of his campaign

materials through his Union’s publication is unreasonable.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

Section 401(c) of the Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA) grants all candidates for

union office the opportunity to disseminate their campaign

materials to the union’s members. One way it does so is by

obliging the union “to comply with all reasonable requests of

any candidate to distribute by mail or otherwise at the

candidate’s expense campaign literature in aid of such person’s

candidacy to all members in good standing.” 29 U.S.C. §

481(c) (emphasis added). The majority concludes that section

401(c) encompasses a candidate’s request to purchase

advertising space in a union magazine in order to publish a

campaign advertisement and it remands for further proceedings

to determine whether such a request is “reasonable” under the

circumstances.

But the duty imposed by section 401(c) is limited.

Interpreted in context, section 401(c) only requires a union to

send — or otherwise arrange for the delivery of — campaign

materials a candidate provides it. Recognizing a right of

publication — the affirmative right to compel union

publications to open their pages to content they may not wish

to carry — distorts the ordinary meaning of the union’s duty

“to distribute . . . campaign literature.” Because I think Noble’s

request for publication falls outside the scope of section 401(c),

I would affirm the district court’s dismissal.

The National Association of Letter Carriers (NALC) elects

its officers every four years. David Noble, a longtime member

of the union and frequent candidate for office, ran for president

in the October 2022 election. Ten months earlier, Noble

emailed NALC about purchasing advertising space for his

campaign ads in the Postal Record, the union’s monthly

magazine, beginning in February 2022. NALC declined,

explaining that “[i]n accordance with longstanding NALC

policy, NALC does not run political ads in the Postal Record,

2

with the exception of one issue every four years, preceding the

NALC national officer elections. The rates and deadline for

political ads for that issue have not yet been determined.” JA24.

Noble sued, arguing that LMRDA section 401(c) requires

NALC to publish his advertisement.

The issue is whether Noble’s request falls within the duty

section 401(c) imposes on NALC. I believe it does not. As

discussed below, the statute’s text and legislative history

confirm — at least, to me — that a duty to distribute is

narrower — and therefore different — than a duty to publish.

I.

Section 401(c) provides a procedure by which candidates

for union office must go through the union to circulate their

campaign materials because the union controls access to the

union members’ names and addresses. The statute imposes four

duties on unions to ensure that all candidates have an equal

opportunity to reach the voting audience. It provides that every

union

shall be under a duty, enforceable at the suit of

any bona fide candidate for office in such labor

organization in the district court of the United

States in which such labor organization

maintains its principal office, [1] to comply

with all reasonable requests of any candidate to

distribute by mail or otherwise at the

candidate’s expense campaign literature in aid

of such person’s candidacy to all members in

good standing of such labor organization and

[2] to refrain from discrimination in favor of or

against any candidate with respect to the use of

lists of members, and [3] whenever such labor

organizations or its officers authorize the

3

distribution by mail or otherwise to members of

campaign literature on behalf of any candidate

or of the labor organization itself with reference

to such election, similar distribution at the

request of any other bona fide candidate shall be

made by such labor organization and its

officers, with equal treatment as to the expense

of such distribution. [4] Every bona fide

candidate shall have the right, once within 30

days prior to an election of a labor organization

in which he is a candidate, to inspect a list

containing the names and last known addresses

of all members of the labor organization.

29 U.S.C. § 481(c) (alterations added). Our focus is on the first

duty. Does Noble’s request to purchase advertising space in the

Postal Record constitute a request “to distribute by mail or

otherwise . . . campaign literature?”

The majority answers that question in the affirmative

because it reads “distribute” as “synonymous” with “publish.”

Op. at 7. It reaches that conclusion not by simply examining

section 401(c)’s text but by turning to our holding in Cause of

Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015). In Cause of

Action, we dealt with a fee waiver provision of the Freedom of

Information Act available to “representative[s] of the news

media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). An individual can

qualify as a news media representative only if he “distributes

[his] work to an audience.” Id. § 552(a)(4)(A)(ii). It is in that

specific context that we held that “posting content to a public

website can qualify as a means of distributing it.” Cause of

Action, 799 F.3d at 1123. My colleagues now make two leaps

from that statement, equating “posting content” with

“publishing” and then “publishing” with “distributing.” See

Op. at 7 (Cause of Action “clarif[ies] that posting qualifies as

4

publishing.”). But I believe Cause of Action sheds little light on

the statute here for at least two reasons.

First, and most importantly, statutory meaning stems from

its context and the Cause of Action context bears little

resemblance to section 401(c)’s context. The majority assumes

that “distribute” must mean the same in section 401(c) as it

does in FOIA but the United States Supreme Court has

frequently “give[n] a different reading to the same language”

when it “appear[s] in separate statutes or in separate provisions

of the same statute.” Smith v. City of Jackson, 544 U.S. 228,

260–61 (2005) (O’Connor, J., concurring); see, e.g., Fogerty v.

Fantasy, Inc., 510 U.S. 517, 522–25 (1994) (interpreting

“virtually identical language” differently in separate statutes);

Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595

(2004) (rejecting the argument “that the word ‘age’ has the

same meaning wherever the [Age Discrimination in

Employment Act of 1967] uses it”). The majority does not

explain how a FOIA fee waiver provision helps us understand

section 401(c). And there is little reason to think that it does;

unlike the FOIA provision at issue in Cause of Action, section

401(c) contains other terms that bear on the scope of

“distribute.” I submit the two statutes have material differences

both in wording and subject matter that preclude treating them

as interchangeable. 1

Even assuming its relevance, Cause of Action does not

mean that distribution is “synonymous” with publishing. It

simply states that “posting content to a public website can

1

The majority’s reliance on National Security Archive is

similarly misplaced because it addressed the same FOIA fee waiver

provision. See Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381,

1386 (D.C. Cir. 1989). Again, the majority does not explain why the

meaning of section 401(c) flows from an unrelated and differently

worded statute.

5

qualify as a means of distributing it.” Id. at 1123 (emphasis

added); see also id. (“Even with the recognition that online

dissemination can qualify as a means of distribution…”

(emphasis added)). All Cause of Action says is that online

posting can sometimes amount to distributing information

depending on the facts. That is a far cry from holding the terms

to be equivalent. Moreover, the type of publishing at issue in

Cause of Action — online posting — differs from the

traditional print publication Noble’s request involves.

A close examination of section 401(c)’s text shows that

distribution does not encompass publication. In 1959, when the

Congress enacted LMRDA, “distribute” meant what it does

today: “to divide and bestow in shares; deal out; allot.”

Distribute, The American College Dictionary 353 (1958)

(“DISTRIBUTE implies apportioned, individualized, and, often,

personal giving, esp. of something that is definite or limited in

amount or number”); see also Distribute, 1 Funk & Wagnall’s

Standard Dictionary of the English Language (International

Edition) 371 (1960) (“To divide and deal out in shares;

apportion; allot.”); Distribute, Webster’s New Twentieth

Century Dictionary of the English Language 535 (2d ed. 1977)

(“[I]n the postal service, to place (the various pieces of mail) in

the proper receptacle.”). Noble argues that publication qualifies

as one type of distribution, see Appellant’s Br. 23, and some

dictionaries do connect the two concepts. See Publish, Black’s

Law Dictionary 1246 (7th ed. 2009) (“[T]o distribute copies (of

a work) to the public.”) 2 But our job is to give the statute its

ordinary meaning, not necessarily the broadest literal reading a

dictionary definition can support. See Niz-Chavez v. Garland,

2

Other dictionaries, however, draw a distinction between

distribution and publication. See Publish, The Online Oxford English

Dictionary (“To prepare and issue copies of (a book, newspaper,

piece of music, etc.) for distribution or sale to the public.” (emphases

added)).

6

593 U.S. 155, 168–69 (2021) (“[W]hen interpreting this or any

statute, we do not aim for ‘literal’ interpretations…. We simply

seek the law’s ordinary meaning.”). Statutory context cuts

against the literalism that Noble urges and the majority adopts.

Critically, publication is a more involved process than

what the statute’s type of distribution envisions. Section 401(c)

instructs the union to “distribute by mail or otherwise.” In plain

English, “distribute by mail” means “send by mail” so it

follows that “or otherwise” means “send by means other than

mail.” See United States v. Fischer, 64 F.4th 329, 336 (D.C.

Cir. 2023), cert. granted, 144 S. Ct. 537 (2023) (“otherwise”

means “in another way” or “by other means”). Sending

something is a one-step, almost ministerial process.

Publication, by contrast, requires more. Consider what exactly

Noble requested: He asked NALC to sell him advertising space

in the Postal Record, thus requiring NALC to place and format

his advertisement within the magazine, print the magazine and,

only after these steps, send the magazine to the union’s

members. Here, publication is a multistep process, including

deciding where to place the advertisement within the

publication. Distribution does not go that far. 3

3

Additionally, the ordinary meaning of “campaign literature”

(which statutory language the majority does not discuss) suggests

that the union’s duty to distribute applies only to standalone

campaign materials, unlike Noble’s advertisement. “Literature”

connotes discrete printed materials such as pamphlets and circulars.

See Literature, The American College Dictionary, supra, at 712

(“Colloq. printed matter of any kind, as circulars or advertising

matter.”); 1 Funk & Wagnall’s, supra, at 744 (“Any printed matter

used or distributed for advertising or political purposes, etc.:

campaign literature.”); Merriam-Webster Unabridged Dictionary

(3d ed. 1961) (“[L]eaflets, handbills, circulars, or other printed

matter of any kind.”). I read “campaign literature” not in its literal

7

My interpretation does not render “or otherwise” in the

statute superfluous, contrary to the majority’s suggestion. See

Op. at 7–8. That language authorizes the union to send or

deliver campaign materials via means other than the mail. It

might, for instance, encompass a request that the union hand

out flyers to members leaving a jobsite. Or it might allow for

technological change, such as distributing discrete campaign

materials by email rather than mail. See Dimondstein v. Am.

Postal Workers Union, 964 F. Supp. 2d 37, 49 (D.D.C. 2013)

(section 401(c) includes distribution by email).

In sum, how section 401(c) commands the union to

distribute campaign literature requires reading the statute to

impose on the union the duty to deliver only. The obligation

“to distribute by mail or otherwise . . . campaign literature” is

not naturally read to embrace a duty to publish.

II.

To the extent the statutory text is ambiguous, the

legislative history supports my interpretation. See Goldring v.

D.C., 416 F.3d 70, 74 (D.C. Cir. 2005) (“Reference to statutory

design and pertinent legislative history may often shed new

light on congressional intent, notwithstanding statutory

language that appears superficially clear.” (alteration and

quotation omitted)). Section 401(c) was a congressional

compromise that kept the names and addresses of the union’s

members private in return for the union circulating the

candidate’s campaign materials on his behalf. The legislative

history shows that the Congress intended section 401(c) to

require the union to provide for the delivery of campaign

sense of “[a]ny printed matter” but more specifically as printed

matter that is discrete and not included in a larger work.

8

materials, thus allowing all candidates the benefit of the

membership list.

Section 401(c) emerged as a compromise between dueling

House and Senate proposals about how to ensure that all

candidates could reach their constituents with their campaign

materials. The Congress recognized that incumbent officers

enjoyed an electoral advantage over their challengers by having

access to a list of the union’s members and their addresses. See

U.S. Department of Labor, Legislative History of the Labor-

Management Reporting and Disclosure Act of 1959: Titles I–

VI (LMRDA Titles I–VI) 810 (1964); 2 National Labor

Relations Board, Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959 (LMRDA Legislative

History) 1240 (1959). The House proposed giving all

candidates the “right to inspect and copy a list containing the

names and last known addresses” of the union’s members so

that challengers and incumbents alike could reach the

membership directly. House Rep. 86-741, at 41 (1959).

The Senate, however, feared that a right to copy the list

could be abused. As then-Senator John F. Kennedy warned,

such a right would “create[] grave danger that stooges would

obtain the membership lists for subversive organizations or

commercial use.” LMRDA Titles I–VI, supra, at 833; see also

2 LMRDA Legislative History, supra, at 1240 (Senator John

McClellan explaining that “there was apprehension that a

person might become a candidate and then might use the list

for improper purposes”). Some House members similarly

argued that a right to copy the list would “provide[] protection

for the pro forma candidate for office who is really a company

spy or a Communist agent, pretending to union candidacy for

the sole purpose of obtaining membership lists for nefarious

purposes.” House Rep. 86-741, at 86 (1959) (Supplementary

views of Reps. Powell, Bailey, Weir, Roosevelt, Zelenko,

9

Holland, Dent and Pucinski). The Senate proposed an

amendment that included the right to campaign literature

distribution that ultimately made its way into section 401(c) but

it did not provide for direct access to the membership list or to

the members’ addresses. LMRDA Titles I–VI, supra, at 833; id.

at 834.

A conference committee proposed keeping the Senate’s

distribution right unchanged and supplementing it with the one-

time right to inspect, but not copy, the list within thirty days of

the election. 1 LMRDA Legislative History, supra, at 938, 957.

Senator Kennedy supported the right of inspection “as a way of

checking the accuracy of the union’s mailing list, for the

candidate will thus be able to ascertain whether the union has

in fact mailed his campaign literature to those he knows to be

union members.” LMRDA Titles I–VI, supra, at 833. Rejecting

the central feature of the House proposal, the Congress decided

that the union, not the candidates, would distribute campaign

material. It crafted section 401(c) to keep the membership list

in union hands while effectively giving challengers the same

access to the list that incumbents had. 4

4

The distribution debate manifests that the Congress expected

that the union would simply mail or otherwise send campaign

materials the candidate provided. One Senator explained that the

provision “would simply permit [a candidate] to send his campaign

materials to the union and have the union mail it out.” Id. at 800

(statement of Senator John McClellan). Another Senator, introducing

the amendment that became section 401(c), said that it “require[d]

the union to send [a candidate’s] political pamphleteering to the

members of the union.” Id. at 798 (statement of Senator Thomas

Kuchel). Yet another stated that it “guarantees to every candidate the

use of union mailing lists and distribution machinery.” Id. at 805

(statement of Senator Wayne Morse). And Senator Kennedy,

speaking after the conference committee had reached its

compromise, stated that section 401(c) “provided that mailings must

10

The legislative history manifests that there is no mismatch

between the text and the Congress’s intent. It wanted to level

the playing field between incumbents and challengers without

giving challengers direct access to the list. The solution was to

require the union to make use of the list on behalf of any

candidate who requested it to do so. My colleagues’

interpretation, I believe, departs therefrom by extending the

union’s duty beyond making use of the list on the challenger’s

behalf. 5

be made by the union” and “required a union to mail out all members

campaign literature submitted by candidates.” Id. at 831, 833. What

these statements have in common is the understanding that the union

had to give all candidates the benefit of the union’s mailing list. No

one suggested the union’s duty extended further, and for good

reason: the point of the provision was to neutralize the advantage

incumbents enjoyed by having access to the list.

Several Senators read “campaign literature” to refer to

standalone materials like circulars and pamphlets. New York Senator

Jacob Javits, the amendment’s author, noted that the amendment

referred to the “use of mailings or circulars.” Id. at 799. Another

summarized the amendment as dealing with “political

pamphleteering.” Id. at 798. And Senator Barry Goldwater, who

preferred giving candidates direct access to the list, predicted that

“[g]iven the hoodlum control of some unions, it is more than likely

that the campaign literature of the rival candidate will find its way

into the sewer or the incinerator.” Id. at 811. He apparently

anticipated candidates would submit standalone materials for

delivery — the type that could go missing.

5

My colleagues note that I raise an issue not discussed by the

parties, see Op. at 9, but they misunderstand my point. My argument

is not that Noble’s request “runs the risk of a union losing control

over its membership list,” see id., but that the legislative history

confirms that a union’s duty extends only to using its membership

list on behalf of candidates. Noble’s request for publication goes

beyond that duty and therefore falls outside section 401(c), whose

11

In my view, the district court properly dismissed Noble’s

claim. Accordingly, I respectfully dissent.

meaning is the issue. And, even if the parties had not raised the issue,

we have an independent duty to “say what the law is” when

interpreting a statute. Marbury v. Madison, 1 Cranch 137, 177, 2

L.Ed. 60 (1803). “[T]he court is not limited to the particular legal

theories advanced by the parties, but rather retains the independent

power to identify and apply the proper construction of governing

law.” U.S. Nat. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508

U.S. 439, 446 (1993); see also Lesesne v. Doe, 712 F.3d 584, 588

(D.C. Cir. 2013).