FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAN CLARK; TAMI DUNLAD; ALI 

HASSAN; JENNIFER IMMEL; GARY 

KUNZE; ELISABETH LOWE; DALE 

MONTZ; ABDI MOTAN; FREDRICK 

RICE; MICHAEL RIEBS; FIREW 

TESHOME,

Plaintiffs-Appellants,

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.

No. 17-35693

D.C. No.

2:17-cv-00382-

RSL

OPINION

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 collectivebargaining 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 PlaintiffsAppellants.

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 DefendantsAppellees.

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 Ordinance1

The Ordinance establishes a complex collectivebargaining 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 driverinitiated 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, 

6.310.130(F).5 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-alicensed-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.