ORDER RE DEFENDANT'S MOTION TO DISMISS (DOC. 15)

ANTHONY ISHII, District Judge.

I. INTRODUCTION

Plaintiff, Hilda L. Solis, the Secretary of the United States Department of Labor (the "Secretary"), brings this action under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. §§ 481-483, requesting an order directing Defendant, the National Emergency Medical Services Association ("NEMSA"), to conduct an election for the offices of Vice President, Treasurer, California Bay Area Regional Director 1, California Bay Area Regional Director 2, California Valley Regional Director, Southern California Regional Director, and Northeast Regional Director under the supervision of Plaintiff. Doc. 19, First Amended Complaint ("FAC"), at ¶ 1. Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that: (1) an election is currently being conducted by NEMSA for four of the positions listed above; and (2) the terms of the remaining three Directors do not expire until —. Doc. 15. Plaintiff opposes dismissal, arguing that: (1) NEMSA's promises to cure by holding an election do not justify dismissal; and (2) NEMSA's position that the three remaining Directors are not subject to re-election under LMRDA until — is without merit. Doc. 21. Defendant replied. Doc. 22. The motion was originally set for hearing on March 15, 2012, but the hearing was vacated and the matter submitted for decision on the papers.

II. FACTUAL AND LEGAL BACKGROUND

Passage of the LMRDA in 1959 "was based, in part, on a congressional finding `from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct,'" requiring action to protect the rights of employees and the public. Hall v. Cole, 412 U.S. 1, 7-8 (1973) (citing 29 U.S.C. § 401(b)). "In an effort to eliminate these abuses, Congress recognized that it was imperative that all union members be guaranteed at least `minimum standards of democratic process....'" Id. (quoting 105 Cong. Rec. 6471 (1959) (Sen. McClellan)).

Title IV of the LMRDA directs unions to conduct regularly-scheduled officer elections. 29 U.S.C. § 481. A "national" or "international" labor organization must elect its "officers"1 "not less often than once every five years...." § 481(a). A "local" labor organization must elect its officers "not less often than once every three years...." § 481(b).2 So long as an organization's constitution and bylaws are not inconsistent with the LMRDA, elections should be conducted in accordance with the organization's founding documents. § 481(e).

Here, it is undisputed that NEMSA's bylaws provide for election of all officers every three years. Bylaws, Art. VI, § 7. The Bylaws also provide that the terms of office for all Directors shall be "staggered so that fifty percent (50%) plus one of the exact number of directors... are elected in even numbered years." Id. The Bylaws further provide that directors and officers shall be elected by "a secret ballot ... distribut[ed] to all members ... collect[ed] ... during the week preceding the June 1st membership meeting (`election week') and ... tabulated and posted at the June 1st membership meeting." Id., Art VIII, § 1(A)-(B).

When NEMSA was established in 2004, it had four constitutional officers: President, Vice President, Secretary and Treasurer. FAC at ¶ 12. Between 2004 and 2007, there were no Regional Directors. FAC at ¶ 15A. In August 2007, the positions of California Valley Regional Director and California Bay Area Regional Director 1 were created. FAC at ¶ 15B. Individuals were appointed from each region to fill these positions for three-year terms. See Doc. 16, Declaration of Torren K. Colcord, at ¶ 10.3 In August 2010, the positions of Bay Area Regional Director 2, Southern California Regional Director, and Northeast Regional Director were created. FAC at ¶ 15C. Again, individuals were appointed to fill these positions for three-year terms. See Doc. 16, Colcord Decl., at ¶ 10.

With respect to the Vice President and Treasurer positions created in 2004, NEMSA has not conducted an election since in 2008. FAC at ¶ 14. The FAC alleges that Defendant was required to conduct an election for these positions in June 2011. Id. This did not occur. Id.

With respect to the two Regional Directorships created in 2007 (Valley and Bay Area Position 1), the FAC alleges, and NEMSA does not dispute, that elections were required in June 2010. FAC at ¶ 17. No such election took place. Id.

With respect to the three Regional Directorships created in August 2010, the FAC alleges that elections were required in June 2011. Id. No such election took place. Id.

After first exhausting any remedies available under a labor organization's constitution and bylaws, and within one month of exhaustion, any member of that labor organization may file a complaint with the Secretary alleging a violation of the LMRDA's election requirements. 29 U.S.C. 482(a). The LMRDA directs the Secretary to:

29 U.S.C. § 482(b). Here, the FAC alleges that NEMSA member, Louis Nizzari, protested the above described electoral conduct, pursued all available administrative remedies, and timely filed a complaint with the Secretary. Id. at ¶¶ 19-26. The Secretary investigated the complaint and found probable cause to believe NEMSA violated the LMRDA and that any such violations had not been remedied as of the date this case was filed. Id. at ¶ 27.

If, "upon a preponderance of the evidence after a trial upon the merits, the court finds ... that an election has not been held within the time prescribed by [LMRDA] section 481 ... the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization." 29 U.S.C. § 482(c).

III. STANDARDS OF DECISION

A. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of jurisdiction over the subject matter." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981).

A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004):

In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds, 963 F.2d 229 (9th Cir. 1992). "The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id.

The standards used to resolve motions to dismiss under Rule 12(b) (6) are relevant to disposition of a facial attack under 12(b)(1). See Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009), rev'd on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), to a motion to dismiss for lack of subject matter jurisdiction).

B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim.

Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b)(6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. 662, 129 S. Ct. at 1949 (internal quotation marks omitted).

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215 (2007). In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S. Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

IV. DISCUSSION

A. Subject Matter Jurisdiction.

Defendant argues that this Court lacks subject matter jurisdiction over the Secretary's claims concerning California Bay Area Regional Director Position 2, Southern California Regional Director, and Northeast Regional Director. NEMSA argues that because these three Directors were appointed to their positions on August 5, 2010 and have not yet been in office for three years, this Court lacks enforcement authority over these positions. Doc. 15 at 8-10. The Secretary disagrees with Defendant's interpretation of the law and maintains that each of these three Regional Director positions should have been the subject of an election in June 2011. FAC ¶ 17; Doc. 21at 6-9.

NEMSA's arguments are merits-based and do not amount to a subject matter jurisdiction challenge. This Court has subject matter over this case pursuant to 28 U.S.C. § 1331, which provides that a district court "shall have original jurisdiction [over] all actions arising under the Constitution, laws, or treaties of the United States." Only under very narrow circumstances can a merits challenge undermine federal subject matter jurisdiction under § 1331:

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90 (1998).

Here, among other arguments, the Secretary points out that it has been the Department of Labor's long-established position that unions may fill newly-created offices by appointment, but such appointees may only serve until the union's next regularly-scheduled election. See Doc. 21-1. Defendant has failed to demonstrate that the Secretary's position is so insubstantial, implausible, foreclosed by any, prior, binding decisions (let alone any decision of the United States Supreme Court), or otherwise completely devoid of merit as to not involve a federal controversy.

Defendant's motion to dismiss for lack of subject matter jurisdiction is DENEID.

B. Failure to State a Claim.

Defendant also moves to dismiss the FAC for failure to state a claim. Defendant concedes timely elections have not been held for the positions of Vice-President, Treasurer, and two of the five Regional Directorships (California Bay Area 1 and California Valley). Defendant claims instead that it is "currently holding" unsupervised elections for these five positions and therefore that there is no need for Court intervention. As to the remaining three Directorships, Plaintiffs maintain elections are not required until August —.

1. Significance of Defendant's Planned Unsupervised Elections.

NEMSA does not dispute that the positions of California Bay Area Regional Director 1, and California Valley Regional Director were due for election as of June 2010. Nor does NEMSA dispute that no such election has occurred, in 2010 or otherwise. See Doc. 14 at 4 (indicating these two Directorships were established in 2007, but stating that NEMSA's July 2010 election was for the President and Secretary positions only). NEMSA also does not dispute that the Vice President and Treasurer positions were due for election in June 2011, but that no election occurred that year. Id.4

NEMSA claims it is "currently holding elections" for the positions of Vice President, Treasurer, California Bay Area Regional Director 1, and California Valley Regional Director. Doc. 16, Colcord Decl., at ¶ 19. However, NEMSA fails to provide any detail about this assertion. When are they set to occur? Have they occurred already? NEMSA suggests only that "[c]ourts have not ruled out the possibility that an unsupervised election will cure the defects brought in a 29 U.S.C. § 481 action." Doc. 15 at 10. In support of this position, NEMSA cites McLaughlin v. Lodge 647, Int'l Broth. of Boilermakers, Iron Ship Builders, Blacksmiths Forgers & Helpers, AFL-CIO, 876 F.2d 648, 651 (8th Cir. 1989),5 in which the Eighth Circuit found a district court may refuse to order a supervised election under certain circumstances. In that case, while the suit was pending, the union "proceeded with its next regularly scheduled election." Id. at 650. The Secretary "refused an offer from the union to observe [the] election and supervise the distribution of campaign literature...." Id. Instead, the union hired a "neutral labor relations consultant, a former Department of Labor administrator, to provide advice prior to and during the election and to observe the actual election process." Id. In addition "the union eliminated the meeting-attendance eligibility rule being challenged by the Secretary as unreasonable...." Id. Under those circumstances, the Eighth Circuit found the district court had "narrow equitable discretion" to refuse the Secretary's request for a supervised election. Id. at 650, 655.

Here, the record does not present such a compelling fact pattern. NEMSA claims to be "moving forward" with elections for the positions of Vice President, Treasurer, Bay Area Regional Director 1, and Valley Regional Director, the elections that were due to take place in June 2010. However, NEMSA provides no detail about those plans.6 NEMSA has failed to demonstrate that McLaughlin is factually analogous.

Even more damaging to NEMSA's argument is the fact that the Ninth Circuit has declined to adopt the Eighth Circuit's flexible interpretation of LMRDA's election mandate. Hodgson v. Local Union 400, Bakery and Confectionery Workers' Intern. Union of America, AFL-CIO, 491 F.2d 1348, 1350 (9th Cir. 1974), clearly rejected a defendant union's argument that its unilateral act of holding an election deprived the Secretary of her right to a court-ordered supervised election. See also Chao v. Branch 4798 Nat. Ass'n of Letter Carriers, 532 F.Supp.2d 783, 790 & n.13 (E.D. Va. 2008) (acknowledging circuit split). In this Circuit, even if NEMSA had already held its unilateral election, the Secretary still has a right to a court-ordered supervised election. See Hodgson, 491 F.2d at 1351 (so holding notwithstanding potential waste of resources).

NEMSA's motion to dismiss for failure to state a claim on the ground that it plans to hold elections is DENIED.

2. NEMSA's Argument that the Three Directorships Created in 2010 Are Not Subject to Election Until —.

NEMSA next argues that the claims concerning the California Bay Area Regional Director Position 2, Southern California Regional Director, and Northeast Regional Director should be dismissed because these three Directorships are not subject to election until —. Doc. 15 at 8-10. In essence, NEMSA argues these claims are subject to dismissal under Rule 12(b)(6) because the Secretary lacks a cognizable legal theory. See Balistreri, 901 F.2d at 699.

The Secretary maintains that, even though individuals were appointed to these newly-created, three-year positions in 2010, because they were appointed, not elected, in the first instance, NEMSA was required to subject the positions to election in June 2011. In support of this contention, the Secretary first cites 29 C.F.R. § 452.14 for the "principle that newly appointed officers may only serve until a union's next regularly scheduled election." But, section 452.14 only applies to newly-formed or merged unions. NEMSA is neither.

More compelling is the Secretary's reference to the Department of Labor's long-established position that unions may fill newly-created offices by appointment, but such appointees may only serve until the union's next regularly-scheduled election. The Secretary cites a March 22, 2011 letter to a union the name of which has been redacted. That letter states:

Doc. 21-1, Ex. 1. Unlike 29 C.F.R. § 452.14, section 452.25 applies to all labor organizations, generally providing that, while "Title IV governs the regular periodic elections of officers in labor organizations subject to the Act ... [n]o requirements are imposed with respect to the filling by election or other method of any particular office which may become vacant between such regular elections." Section 452.25 provides the following specific example.

Section 425.25 only addresses the extent to which a labor organization may fill a vacant position by appointment. It does not explicitly address when positions filled by appointment must be put to election. The Secretary's March 22, 2011 letter advances the interpretation that positions filled by appointment must be put to election at the next regularly-scheduled election. The Secretary points to a similar interpretation advanced in an October 12, 1978 Opinion of the Solicitor of Labor. Id., Ex. 2. Agency interpretations "contained in formats such as opinion letters are `entitled to respect' under [] Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)." Christensen v. Harris County, 529 U.S. 576, 587 (2000).

Finally, the Secretary points to language in NEMSA's bylaws requiring "all directors and officers to be elected." Bylaws, Art. VII, § 1 & 2. Although Article VII, section 4(D) permits NEMSA to make appointments to fill vacancies, the Secretary argues that nothing in the bylaws shields appointees from being replaced at the next scheduled election. The Secretary also argues that NEMSA's failure to subject the three 2010 appointees to election in June 2011 violates with the provision in NEMSA's bylaws requiring staggered elections:

Bylaws, Art VI, § 7.

The only authority NEMSA cites to refute the Secretary's arguments is Talley v. Reich, 1993 WL 483192 (E.D. Pa. Nov. 23, 1993), which simply quotes 29 C.F.R. 425.25 for the proposition that the "filling of interim vacancies" by local labor organizations "are not subject to the provisions of Title IV, and thus, such vacancies may be filled by means other than election, including appointment." Section 425.25 says nothing about what happens after a vacancy is filled. It is the Secretary's established position that appointees must be subject to election at the next regularly scheduled opportunity. NEMSA has presented nothing to undermine this administrative opinion, which warrants Skidmore deference. The Secretary's claims regarding these three positions are based upon a cognizable legal theory. Defendant's motion to dismiss is DENIED.

V. CONCLUSION AND ORDER

For the reasons set forth above, Defendant's motion to dismiss is DENIED.

IT IS SO ORDERED.