* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a voluntary association incorporated under the laws of the State of New York; COLORADO SPRINGS BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a constituent and subordinate unit of the National Association for the Advancement of Colored People,

Plaintiffs-Appellees,

v. JAMES TUCKER, an individual,

Defendant-Appellant. No. 97-1217 (D.C. No. 96-WY-2268-WD)

(D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Appellant James Tucker appeals from the district co urt’s order of summary judgment dismissing his second counterclaim againstthe National Association for the Advancement of Colored People (NAACP). In his second counterclaim, appellant charged that NAACP wrongfully expelled hi m from membership, thus violating his contract rights and his “common law r ight to natural justice and due process.” Appellant’s App., Vol. I at 60. Appellant is a former life member and president of the Colorado Springs, Colorado Branch of the NAACP. The NAACP is a nonpr ofit membership corporation, organized under the laws of the State of New York. See id. at 1, 57. It operates through chartered branch affiliates, su ch as the Colorado Springs Branch, which are independent unincorporated associ ations. See id. at 128-29; see generallyNAACP v. State of Alabama ex rel. Patterson , 357 U.S. 449, 451-52 (1958) (explaining NAACP corporate structure). The NAACP provides a pattern form of constitution and bylaws for its affiliates, referred to as the “Branch Constitution.”-3-

Article X of the Branch Constitution provides a pro cedure by which NAACP members may bring a complaint against a membe r or officer of the NAACP with the national NAACP Board of Directors. The Board of Directors has the authority to act on such a complaint by sus pending, expelling or taking other disciplinary action against the member or off icer. In August and September 1995, members of the Colorado Springs Branch filed two such complaints against appellant, charging him with misconduct as branch p resident. Appellant filed an answer to each of the complaints . In his answers, he did not request a hearing. Upon review of the complaints and appellant’s responses, on October 21, 1995, the NAACP’s national board ord ered appellant suspended from his position as president of the Colorado Spri ngs Branch. On November 6, 1995, appellant for the first time f ormally requested a hearing on the allegations contained in the compl aints. On April 19, 1996, the NAACP notified appellant that a hearing would b e held on May 3, 1996, in Colorado Springs. Appellant announced through h is attorney that he would not attend the meeting on such short notice. He al so announced publicly that he was reclaiming his presidency of the Colorado Sprin gs Branch, and that he would hold an NAACP meeting on May 11, 1996. On May 3, the NAACP held the scheduled hearing. Ap pellant did not appear. At the hearing, new charges were made agai nst appellant relating to his-4-

continued assertions that he was president of the C olorado Springs Branch, and his continued practice of holding meetings as its p resident. The special hearing panel which held the hearing recommended not only that appellant’s suspension as president be upheld, but also that his life memb ership in the NAACP be revoked based on the new allegations. The national NAACP’s Board of Directors adopted the recommendation, and revoked appellant’s life membership in the
NAACP. The national NAACP and the Colorado Springs Branch thereafter sued appellant to prevent him from continuing to use the name “NAACP” and the NAACP logo, and from continuing to hold himself outas president of the Colorado Springs Branch. Appellant countersued, cl aiming that he was wrongfully removed from the presidency and that his membership was terminated without due process and in violation of the Branch Constitution. The district court granted summary judgment for the NAACP on all claims. Only appellant’s counterclaim relating to his expulsion from the NAA CP is at issue in this appeal. We review summary judgment rulings de novo, applyin g the same standard as the district court. Summary judgment i s proper when “the pleadings, depositions, answers to interrogato ries, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ” Fed. R. Civ. P. 56(c). When a moving party makes a properly supported summary judgment motion, the nonmoving party has the burdenof showing a genuine issue for trial, by any of the kinds of e videntiary materials listed in Rule 56(c), except the mere pleadings the mselves.-5-

Pietrowski v. Town of Dibble , 134 F.3d 1006, 1008 (10th Cir. 1998) (quotations omitted). In its decision on appellant’s motion for summary j udgment, the district court found that the NAACP was entitled to summary judgment, because it had terminated appellant’s membership for a proper reas on: Mr. Tucker’s continued defiance [to] the board’s de cision and his attempt to [reclaim] the president’s office provide sufficient basis to terminate his membership . . . . It is beyond d ispute that Mr. Tucker’s attempts to reclaim the president’s of fice, after he was properly suspended, threatened the very existen ce of the Colorado [Springs] branch of the NAACP. Appellant’s App., Vol. II at 343. Appellant does not challenge this finding, other th an to state that it is irrelevant to his procedural claims. See Appellant’s Br. at 17. Appellant’s failure to contest the district court’s summary jud gment finding has important consequences, however. By failing to contest this finding, he is deemed to have conceded that there were proper grounds for his exp ulsion. Cf. Strickland Tower Maintenance, Inc. v. AT&T Communications, Inc. , 128 F.3d 1422, 1426 (10th Cir. 1997) (holding choice of law issue was w aived where neither party challenged district court’s finding on appeal). Gi ven this concession, we must determine whether he is entitled to any relief. In his complaint, appellant sought: (1) reinstatem ent as a life member of the NAACP; (2) a declaratory judgment concerning hi s eligibility to run for local1 Careyheld that a plaintiff deprived of due process woul d at least be entitled

to nominal damages, and to compensation for any mental and emotional distress which he could prove was suffered as the result of the deprivation. See Carey , 435 U.S. at 264, 266; cf. also Rogers v. Board of Trustees , 859 P.2d 284, 290 (Colo. Ct. App. 1993) (upholding jury’s award of no minal damages on contract claim brought by employee alleging that he was term inated in violation of procedural provisions of personnel policies handboo k, where good cause existed for termination of employment). Assuming such a ri ght carries over to the (continued...) -6- or national office in the NAACP; and (3) damages inan amount to be determined at trial. Appellant fails to show his entitlement to any of these forms of relief. He is not entitled to reinstatement, because he can not show that he would have been retained as a member if the NAACP had observedthe proper procedures. Cf. McGhee v. Draper , 639 F.2d 639, 646 (10th Cir. 1981) (stating, in 4 2 U.S.C. § 1983 case involving deprivation of hearing, that “[i]f the plaintiff can prove that she would in fact have been retained had full proce dural due process been provided, she may be reinstated.”). As appellant is not entitled to reinstatement, he c annot run for office in the NAACP, and is not entitled to a declaratory jud gment to that effect. He also is not entitled to compensatory damages for termination of his membership. Cf. Carey v. Piphus , 435 U.S. 247, 260 (1978) (stating petitioners who claimed they were suspended from school without procedural due process, would not be entitled to compensatory damages unless they could show that they would not have been suspended if a proper hearing were held). 1 As it is impossible to grant1 (...continued)

associational context, which is based on contractua l rather than constitutional principles, appellant is not entitled even to nomin al damages. As we read his complaint, it seeks damages for the loss of his mem bership in the NAACP, not for deprivation of his procedural rights. No damages c an be awarded for the loss of membership, which was justified. -7- appellant any of the relief requested in his compla int, this appeal is dismissed as
moot. See Johnson v. Board of County Comm’rs , 85 F.3d 489, 492 (10th Cir.), cert. denied , 117 S. Ct. 611 (1996). The appeal is DISMISSED as moot.

Entered for the Court

Monroe G. McKay Circuit Judge