Prayed v. U.S. DEPARTMENT OF LABOR, Acting Secretary of Labor Al Stewart;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRAYED,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF LABOR, Acting
Secretary of Labor Al Stewart; et al.,
Defendants-Appellees.
No. 19-35830
D.C. No. 4:17-cv-00023-TMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Prayed appeals pro se from the district court’s judgment dismissing his
Labor Management Reporting and Disclosure Act (“LMRDA”) and First
Amendment action. We have jurisdiction under 28 U.S.C. § 1291. We review de
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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novo. Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016)
(standing); Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011) (failure
to state a claim). We may affirm on any basis supported by the record. Thompson
v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Prayed’s LMRDA Title I equal rights claim against defendants
Alaska Railroad Workers Local 183 (the “Union”) and Bruce M. Shelt (together,
the “Union Defendants”) was proper because Prayed did not allege facts sufficient
to show that the Union Defendants denied him a right guaranteed to other Union
members by limiting his telephonic participation in Union membership meetings or
that any restriction was not subject to the Union’s reasonable rules and regulations.
See 29 U.S.C. § 411(a)(1), (a)(2) (establishing equal rights for members of labor
organizations to attend membership meetings, to assemble with other members,
and to express opinions, subject to reasonable rules); Calhoon v. Harvey, 379 U.S.
134, 138-39 (1964) (requiring a union member to show that he or she was denied
rights under § 411(a), and that these rights are accorded to other union members).
Dismissal of Prayed’s Title I free speech and association claim against the
Union Defendants was proper because Prayed failed to allege facts sufficient to
show that any alleged retaliatory actions were “a direct result of his decision to
express disagreement with the Union’s leadership.” Casumpang v. Int’l
Longshoremen’s and Warehousemen’s Union, Local 142, 269 F.3d 1042, 1058

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(9th Cir. 2001) (elements of Title I freedom of speech claim).
The district court properly dismissed Prayed’s LMRDA Title I equal rights
and free speech claims against Alaska Railroad Corporation (“ARRC”) because
Prayed failed to allege facts sufficient to show that the denial of access to the
property was unreasonable or not viewpoint neutral, or that any denial of access
was “a direct result of his [or her] decision to express disagreement” with the
union’s leadership. Casumpang, 269 F.3d at 1058; see also Wright v. Incline Vill.
Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011) (explaining access
rights to government property). To the extent that Prayed alleged a claim under 42
U.S.C. § 1983, the district court properly dismissed any First Amendment claim
against ARRC as untimely. See Butler v. Nat’l Cmty. Renaissance of Cal., 766
F.3d 1191, 1194, 1202-03 (9th Cir. 2014) (setting forth standard of review and
relation back doctrine); Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska
2001) (applying Alaska’s two-year statute of limitations for personal injury actions
to § 1983 claims).
Dismissal of Prayed’s LMRDA Title I claims against the United States
Department of Labor was proper because the Department of Labor does not
administer Title I of the LMRDA and does not have authority to remedy the Title I
violations that allegedly occurred during the supervised election. See 29 U.S.C.
§ 521(a) (exempting Title I from the Secretary of Labor’s enforcement authority);

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Finnegan v. Leu, 456 U.S. 431, 439 n.10 (1982) (explaining the legislative history
and intent of exempting Title I from the Secretary of Labor’s enforcement
authority). To the extent that Prayed challenged the Department of Labor’s final
agency action certifying the supervised election, dismissal was proper because
Prayed did not allege facts sufficient to show that the Department of Labor’s
determination of his election protest was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
We reject as unsupported by the record Prayed’s contentions that the district
court denied him due process by awarding costs to the Union Defendants and by
adhering to Federal Rule of Civil Procedure 6(a)(4).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not
consider documents and facts not presented to the district court. See United States
v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to
the district court are not part of the record on appeal.”).
AFFIRMED.

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