2.28.17 – (LAA/LUS) – Update on Department of Labor (DOL) Lawsuit

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Tuesday, February 28, 2017

As you may have already heard, on Wednesday February 22, the District Court Judge presiding over the United States Department of Labor’s (“DOL”) lawsuit seeking to overturn APFA’s January 9, 2016 officers election denied APFA’s motion to dismiss that lawsuit. Although the District Court’s adverse ruling obviously is a disappointment, our attorneys handling the case have advised us that the denial was not unexpected and does not bode ill for APFA’s ultimate prospects in the litigation, which remain high.

As our attorneys have explained, a motion to dismiss is a “low odds” but “no harm in trying” request that the court throw out the plaintiff’s lawsuit before that lawsuit has even gotten off the ground. Courts ordinarily are very reluctant to grant a defendant relief of this nature, especially where the plaintiff is a federal government agency. Such motions are especially hard to win because, in ruling on such motions, the court is required by law to assume that all of the factual allegations made by the plaintiff in its complaint against the defendant are true, and the defendant is prohibited by law from attempting to show otherwise. Applying these legal principles, the District Court in our case issued a boilerplate one paragraph order stating that, in its view, the DOL had alleged enough facts to avoid having its lawsuit thrown out of court at its inception.

Although that ruling is a victory for the DOL, it is an extremely modest victory that does not relieve the DOL of its burden to prove that the facts it has alleged in its complaint against APFA are both true and legally sufficient to justify overturning APFA’s January 9, 2016 election. Per our attorneys, this will be a very difficult burden for the DOL to meet, primarily because the DOL’s complaint against APFA rests on a series of misstatements and half-truths that APFA will be able to expose as the litigation unfolds. In short, as our attorneys see it, the DOL has merely succeeded in winning a preliminary round of a multi-round litigation battle that APFA stands a high likelihood of winning in the end.

On a related note, questions have been raised about why APFA has chosen to fight the DOL lawsuit rather than capitulate and agree to a re-run election. The short answer is that in its lawsuit, the DOL does not allege that APFA or any of the current elected candidates in the election engaged in some kind of election-related misconduct that would warrant a re-run election. Rather, what the DOL’s lawsuit does allege are certain highly technical, computer-related deficiencies in the electronic voting process used by APFA in the January 9, 2016 election. If the DOL ultimately were to prevail on its claims respecting these alleged computer-related deficiencies in the electronic voting process, which our attorneys believe are wholly lacking in merit, it would likely be impossible for APFA to continue to utilize that electronic voting process in future elections. Because the electronic voting process is far superior to mail ballot voting from the standpoint of promoting voter turnout and union democracy in general, APFA leadership believes that it is imperative for the union to vigorously resist the DOL’s unjustified attack on that process.