David W. Noble, J R . v. National Association of Letter Carriers , Afl-Cio

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2023 Decided May 28, 2024
No. 23-7012
DAVID W. NOBLE, J R .,
APPELLANT
v.
NATIONAL ASSOCIATION OF LETTER C ARRIERS , AFL-CIO, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-01613)
Daniel F. Olejko argued the cause and filed the briefs for
appellant.
Peter DeChiara argued the cause and filed the brief for
appellees. Kate M. Swearengen entered an appearance.
Before: HENDERSON and C HILDS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge C HILDS .
Concurring opinion filed by Senior Circuit Judge
EDWARDS .

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Dissenting opinion filed by Circuit Judge HENDERSON .
C HILDS , Circuit Judge: The National Association of Letter
Carriers (“NALC” or “the Union”) is a national labor
organization and the exclusive bargaining agent for 280,000
active and retired city letter carriers employed by the United
States Postal Service (“the USPS”). NALC holds officer
elections every four years. Since NALC’s founding in 1889,
only one challenger has ever defeated an incumbent president.
The most recent election was held in October 2022, and the
dispute here arises out of events leading up to that election.
Appellant David W. Noble, Jr. (“Noble”) was a candidate
for president in NALC’s October 2022 election, running on a
platform to “rid the union of an incompetent and corrupt
leadership.” JA000024. As part of his campaign, he sought
to publish his campaign material in the February 2022 edition
of NALC’s magazine, the Postal Record. The Postal Record
is mailed to every NALC member and may be viewed at any
time on the NALC website. It is owned in equal shares by the
Union membership. The magazine contains content such as
messages from the president and other NALC officers, updates
on the USPS Board of Governors, human interest pieces about
NALC members, information about USPS-NALC agreements,
and an in-memoriam section.
NALC allows officer candidates to place paid campaign
advertisements in the Postal Record’s designated election
issue. NALC denied Noble’s request to publish his campaign
ads in multiple editions of the Postal Record pursuant to this
internal policy. Noble sued NALC, asserting that the Union
was required to publish his campaign material under Section
401(c) of the Labor-Management Reporting and Disclosure
Act (“the LMRDA”). 73 Stat. 532, 29 U.S.C. § 481. NALC
moved to dismiss the complaint for failure to state a claim on

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which relief can be granted, and the district court granted
NALC’s motion. On appeal, Noble argues that the district
court’s dismissal was based on an overly narrow interpretation
of the LMRDA’s Section 401(c). NALC not only responds
that the district court’s interpretation of the LMRDA was
appropriate, but also that compelling the Union to publish
campaign literature in any issue of the Postal Record, as
opposed to just the dedicated campaign issue, would violate the
First Amendment.
We hold that dismissal was premature because the district
court failed to make sufficient findings to determine the
reasonableness of Noble’s request under the balancing of
hardships required by International Organization of Masters,
Mates & Pilots v. Brown, 498 U.S. 466 (1991). We further
hold that NALC, as a non-media organization, does not have a
free speech right to decline to print a campaign advertisement
in the Postal Record, as it is merely hosting the speech in its
magazine and is not accompanying the advertisement with
speech of its own. We reverse and remand for further
consideration of Noble’s complaint.
I.
Noble was hired by the USPS in 1975 and joined NALC
shortly thereafter. He was an officer candidate in the Union’s
2022 election. The September/October issue of the Postal
Record was the designated election issue for the 2022 officer
election. In December 2021, Noble emailed NALC president
Fredric Rolando, inquiring about the publication rates and the
deadline to submit his campaign material for publication,
starting with the February 2022 edition of the magazine.
NALC denied his request in keeping with internal union policy
which only allows political advertisements to be run in the
Postal Record’s designated election issue.

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Noble brought the present lawsuit pro se in the district
court, alleging that the Union violated the LMRDA’s Section
401(c) by refusing to distribute his campaign material, seeking
declaratory judgment and an injunction requiring NALC to
publish his campaign material. Section 401(c) governs
unions’ responsibilities regarding union election campaign
material. It requires that labor organizations:
shall be under a duty, enforceable at the suit of any
bona fide candidate for office in such a labor
organization … to comply with all reasonable
requests of any candidate to distribute by mail or
otherwise at the candidate’s expense campaign
literature in aid of such person’s candidacy to all
members in good standing of such labor organization.
29 U.S.C. § 481(c). 1 NALC moved to dismiss Noble’s
complaint, arguing that Noble failed to state a claim under
1 Section 401(c) of the LMRDA provides:
Every national or international labor organization, except
a federation of national or international labor
organizations, and every local labor organization, and its
officers, shall be under a duty, enforceable at the suit of
any bona fide candidate for office in such labor
organization in the district court of the United States in
which such labor organization maintains its principal
office, to comply with all reasonable requests of any
candidate to distribute by mail or otherwise at the
candidate's expense campaign literature in aid of such
person's candidacy to all members in good standing of such
labor organization and to refrain from discrimination in
favor of or against any candidate with respect to the use of
lists of members, and whenever such labor organizations
or its officers authorize the distribution by mail or

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Federal Rule of Civil Procedure 12(b)(6) because Section
401(c) did not require NALC to publish Noble’s campaign
advertisement in the Postal Record. The district court agreed.
In interpreting the statute, the district court concluded that
Section 401(c) does not require a union to publish a candidate’s
campaign advertisements, but instead only requires that a union
coordinate the delivery of a candidate’s standalone, already-
printed campaign material to its membership. The district
court also concluded that Noble’s request was unreasonable
because the statute does not give union members “license to
alter the nature of the Postal Record by requiring it to print
advertising and campaign material it otherwise would not.”
Noble v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 2022 WL
17613057, at *6 (D.D.C. Dec. 13, 2022). Noble now appeals.
otherwise to members of campaign literature on behalf of
any candidate or of the labor organization itself with
reference to such election, similar distribution at the
request of any other bona fide candidate shall be made by
such labor organization and its officers, with equal
treatment as to the expense of such distribution. Every
bona fide candidate shall have the right, once within 30
days prior to an election of a labor organization in which
he is a candidate, to inspect a list containing the names and
last known addresses of all members of the labor
organization who are subject to a collective bargaining
agreement requiring membership therein as a condition of
employment, which list shall be maintained and kept at the
principal office of such labor organization by a designated
official thereof. Adequate safeguards to insure a fair
election shall be provided, including the right of any
candidate to have an observer at the polls and at the
counting of the ballots.
29 U.S.C. § 481(c).

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The district court had federal question jurisdiction to hear
Noble’s claims under 29 U.S.C. § 481(c) and 28 U.S.C. § 1331.
We have jurisdiction to review the district court’s final order
dismissing Noble’s complaint under 28 U.S.C. § 1291. We
review the district court’s interpretation of the LMRDA de
novo. Noble v. Dunn, 895 F.3d 807, 810 (D.C. Cir. 2018).
II.
Because his issue on appeal is one of statutory
interpretation, we first analyze whether Noble’s request to
publish his ad in the Postal Record falls within LMRDA
Section 401(c). Section 401(c) mandates that unions
“distribute” any candidate’s campaign material. NALC
argues that “distribute” is distinct from “publish,” because
publishing is expressive conduct while distributing is not. We
disagree.
“In addressing a question of statutory interpretation, we
begin with the text.” City of Clarksville v. FERC, 888 F.3d
477, 482 (D.C. Cir. 2018). The text must be read in the
context of the entire statute. Sierra Club v. Wheeler, 956 F.3d
612, 616 (D.C. Cir. 2020); Petit v. U.S. Dept. of Educ., 675
F.3d 769, 781 (D.C. Cir. 2012). After examining the plain
text, we move on to the statute’s structure, purpose, and
legislative history. Genus Med. Techs., LLC v. FDA, 994 F.3d
631, 641 (D.C. Cir. 2021). However, we need not address
legislative history if “after analyzing the text, structure and
context, we conclude that the language is unambiguous.”
Eagle Pharms., Inc. v. Azar, 952 F.3d 323, 338–39 (D.C. Cir.
2020).
The relevant statutory text in this case is Section 401(c),
which provides that labor organizations:

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shall be under a duty, enforceable at the suit of any
bona fide candidate for office in such a labor
organization … to comply with all reasonable
requests of any candidate to distribute by mail or
otherwise at the candidate’s expense campaign
literature in aid of such person’s candidacy to all
members in good standing of such labor organization.
29 U.S.C. § 481(c) (emphasis added). While our Circuit has
said that “the very essence of publishing is making the decision
whether to print or retract a given piece of content,” Klayman
v. Zukerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014), we have
also held that posting content is synonymous with distributing
content, Cause of Action v. FTC, 799 F.3d 1108, 1123 (D.C.
Cir. 2015) (clarifying that posting qualifies as publishing even
if readers have to “affirmatively access” the content as opposed
to having it “delivered to their doorsteps or beamed into their
homes”); see also Nat’l Sec. Archive v. U.S. Dep’t of Def., 880
F.2d 1381, 1386 (D.C. Cir. 1989) (“intended distribution of
[the] document [] entails the kind of initiative we associate with
‘publishing or otherwise disseminating’ that information.”)
Because our Circuit views “distribute” and “publish” as
synonymous, Noble’s request that NALC “publish” his
advertisement falls within the text of the statute.
NALC also argues that the words “or otherwise” in Section
401(c) refer to non-mail methods of distribution, not
publication of campaign materials. The Union relies on a non-
precedential district court decision, Dimondstein v. Am. Postal
Workers Union, 964 F. Supp. 2d 37 (D.D.C. 2013), to support
its argument. We find that the Union’s reliance on the
decision is misplaced. In Dimondstein, the district court held
that a candidate’s request to distribute campaign materials via
email was reasonable, explaining that “a union must still abide

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by reasonable candidate requests to use alternative forms of
distribution . . . if the union uses these alternative forms to
disseminate information to its members.” Id. at 43. Here,
NALC regularly uses the Postal Record to disseminate
information to its members – it published eleven volumes in
2022, and there are Postal Record archives dating back to 2010.
Moreover, the words “or otherwise” indicate that courts should
broadly interpret the statute. United States v. Fischer, 64
F.4th 329, 338 (D.C. Cir. 2023). First, the use of “or” is a
strong indication that Congress intended alternative choices.
See Loving v. IRA, 742 F.3d 1013, 1019 (D.C. Cir. 2019); see
also Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 80
(2018) (“‘[O]r’ is almost always disjunctive.”) (cleaned up).
Second, “otherwise” indicates that the statutory provision
reaches beyond the specific examples listed in the statutory
text, making the provision a catch-all provision. Fischer, 64
F.4th at 338; United States v. Bingert, 605 F. Supp. 3d 111, 125
(D.D.C. 2022) (citation omitted). Therefore, “or otherwise”
should include publication of campaign literature in a union
magazine. The district court’s conclusion that a union is only
required to coordinate the delivery of a candidate’s standalone,
already-printed campaign materials renders “or otherwise”
superfluous. We must reject this narrow interpretation
because we presume that Congress would not include empty
words in the statutory provision. Mercy Hosp., Inc. v. Azar,
891 F.3d 1062, 1068 (D.C. Cir. 2018). Our reading of “or
otherwise” further supports that Noble’s claim falls within
Section 401(c)’s statutory text.
We next find that Noble’s request is supported by the
LMRDA’s structure and purpose. Genus Med. Techs., 994
F.3d at 641. In Brown, the Supreme Court noted that other
rights that the LMRDA confers onto union members are
qualified. For example, a member’s right to run for union
office is “made expressly subject to the ‘reasonable

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qualifications uniformly imposed’ by the Union”; and a
member’s right to speech and to vote in the election are
governed by other LMRDA sections and “‘subject to
reasonable rules’ in the union’s constitution.” Brown, 498
U.S. at 475–76 . On the other hand, Section 401(c) is not
cabined by other statutory provisions or union policies.
Therefore, the Supreme Court has deemed the 401(c) right as
“unqualified.” Id. at 476.
The dissent offers the view that the LMRDA’s legislative
history supports the district court’s interpretation of Section
401(c). We disagree. In Brown, the Court clarified that “[a]
broad interpretation of the candidate’s rights is also consistent
with the statute’s basic purpose of ensuring free and democratic
union elections by offsetting the inherent advantage incumbent
leadership has over potential rank and file challengers.” Id. at
467. The Court further recognized testimony in support of the
LMRDA highlighting that in a union election, an incumbent
enjoys certain advantages regarding the “union newspaper
which is the chief vehicle for communication with its
members.” Id. at 476. The dissent argues that because
Section 401(c) is the manifested compromise between House
and Senate proposals on the issue of candidates accessing their
union’s membership list, our reading of the statute extends
NALC’s duty beyond the statutory text. We disagree that an
obligation to grant a member’s reasonable request to
disseminate their campaign literature via the union publication
runs the risk of a union losing control over its membership list
because a union does not need to give the candidate its
membership list to grant the candidate’s request.
Furthermore, Noble’s appeal does not implicate this issue,
raised solely by the dissent. Here, NALC is not objecting to
whether the material can be included, but instead it is seeking
to control which editions of the Postal Record can include
campaign material.

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In sum, traditional canons of statutory construction and
Supreme Court precedent support that Noble’s claim falls
within Section 401(c).
III.
Having determined that Noble’s request falls within
LMRDA Section 401(c), we now turn to whether that request
was reasonable. We hold that the district court misapplied the
reasonableness standard by inquiring whether NALC’s internal
policy was reasonable instead of whether Noble’s request was
reasonable.
The seminal case for Section 401(c) interpretation is
International Organization of Masters, Mates & Pilots v.
Brown, where a candidate sought his union’s mailing list to
mail his campaign literature in advance of the upcoming union
nomination convention. 498 U.S. at 469. The union denied
his request because an internal union rule prohibited such
preconvention mailing. Id. at 467–68. The Supreme Court
squarely held that Section 401(c) does not require a court to
evaluate the reasonableness of a union’s rule before
determining the reasonableness of a candidate’s request: “apart
from the fact that [the candidate’s] request violated the union
rule against preconvention mailings, there is no basis for
contending that the request was not ‘reasonable’ within the
meaning of [Section 401(c)].” Brown, 498 U.S. at 475. The
Court also placed the burden on the union to show that a
candidate’s request is unreasonable. Id. at 478. Here, Brown
makes clear that Noble’s request cannot be held unreasonable
solely because it conflicted with NALC’s internal rule. Noble
sought to publish his campaign material prior to the
September/October issue of the Postal Record just as the
candidate in Brown wanted to distribute campaign material
before the designated distribution period. Id. at 467–68. A

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union’s argument that a candidate’s request is per se
unreasonable simply because it conflicts with their internal rule
is “unpersuasive.” Id. at 478. Accordingly, NALC cannot
rest its case on internal policies because “expressions of respect
for internal union rules are notably absent in § 401(c).” Id.
When evaluating a union’s argument that a candidate’s request
is unreasonable, courts should instead consider factors such as
any financial hardship suffered by the union, any
administrative burden imposed on the union, and any
discrimination against other candidates. Id. The district
court failed to make sufficient findings to determine
reasonableness vel non of Noble’s request under the balancing
of hardships required by Brown. Dismissal was therefore
premature.
IV.
In the alternative, NALC argues that requiring it to publish
Noble’s campaign material would run afoul of the First
Amendment’s prohibition on compelled speech. Though the
Union presented this argument below, the district court did not
consider whether interpreting Section 401(c) to require
publication of Noble’s campaign advertisements would violate
the First Amendment. We find that requiring publication of
Noble’s campaign material, at his own financial expense,
would not constitute compelled speech in violation of the First
Amendment.
NALC primarily relies on cases involving newspaper
regulation to support its First Amendment argument. See
Passaic Daily News v. N.L.R.B., 736 F.2d 1543, 1558 (D.C.
Cir. 1984); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241,
258 (1974). While “laws that single out the press, or certain
elements thereof, for special treatment ‘pose a particular
danger of abuse by the State’” and are thereby “always subject

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to at least some degree of heightened First Amendment
scrutiny,” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640–
41 (1994), the same is not true for union publications because
unions are not news organizations.2 Therefore, we should turn
to precedent on First Amendment protections for non-media
entities, that do not enjoy heightened scrutiny, to guide our
analysis of NALC’s First Amendment defense.
Other cases illustrate that when a non-media organization
hosts content, the content is not considered to be theirs unless
a reasonable observer would attribute the content back to the
organization. For example, in Rumsfeld v. Forum for
Academic and Institutional Rights, Inc. (“FAIR”), the Supreme
Court explained that “[t]he expressive component of [an
entity’s] actions is not created by the conduct itself but by the
speech that accompanies it.” 547 U.S. 47, 66 (2006); see also
303 Creative LLC v. Elenis, 600 U.S. 570, 580 (2023) (holding
that because the plaintiff created wedding websites, the state
law that would force her to create speech she did not believe in
violated the First Amendment.)
Here, Noble is only asking NALC to host his own speech.
NALC is not speaking when it publishes member-candidates’
campaign literature created by the member. Furthermore,
publishing this literature does not “sufficiently interfere” with
NALC’s message. FAIR, 547 U.S. at 64. NALC cannot
assert a First Amendment injury because it is merely
facilitating union elections by publishing candidate campaign
literature.
2 In fact, the Supreme Court has allowed government regulation
of unions, even when First Amendment values are at stake. See,
e.g., Brown, 498 U.S. at 471 (affirming district court decision
requiring union to disclose membership lists. The Court did not
consider mandatory disclosure to qualify as compelled speech.).

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NALC cites Pacific Gas. & Electric Co. v. Public Utilities
Commission of California to show that even non-media entities
have constitutional rights to not publish third-party content.
475 U.S. 1 (1986) (holding that compelling a private
corporation to provide a forum for views other than its own
infringes its freedom of speech). Pacific Gas had distributed
a newsletter in its monthly billing envelope to customers. The
newsletter “included political editorials, feature stories on
matters of public interest, tips on energy conservation, and
straightforward information about utility services and bills.”
Id. at 5. A state commission allowed a third-party to
disseminate materials in the newsletter, and the Supreme Court
found that “[c]ompelled access like that ordered in this case
both penalizes the expression of particular points of view and
forces speakers to alter their speech to conform with an agenda
they do not set.” Id. at 9; see also Forum for Acad.&
Institutional Rts. v. Rumsfeld, 390 F.3d 219, 236 (3d Cir. 2004)
(stating that Pacific Gas stands for the proposition that
“government action that forces a private speaker to
accommodate or include another private speaker’s message” is
impermissible compelled speech). Noble’s case is entirely
distinguishable from Pacific Gas because several factors make
it less likely that a reasonable observer would attribute Noble’s
campaign advertisement to the Union’s agenda. In Pacific
Gas, the corporation was forced to publish the third-party
entity’s content in the newsletter distributed to Pacific Gas
customers. Meanwhile, Noble is a union member, seeking to
publish an advertisement for his candidacy in the union’s
leadership, in the union’s internal publication (a publication
that is owned in equal shares by union membership, including
Noble). NALC opens the Postal Record for campaign
advertisements in certain issues, and members can place
mutual transfer advertisements in any issue. Considering
these relevant distinctions, a reasonable reader of the Postal

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Record would not take the publication of a candidate’s
campaign material in the union magazine as the NALC’s
endorsement of the candidate’s message.
*****
For the foregoing reasons, we reverse the district court’s
dismissal of Noble’s claim against NALC and remand for
further proceedings consistent with this opinion.
So ordered.

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EDWARDS , Senior Circuit Judge, concurring: To survive a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Noble’s
complaint easily satisfies this standard. Indeed, I am “hard-
pressed to imagine what more [Noble] need[ed] to allege to
satisfy the ‘lesser showing required at the pleading stage,’
particularly in light of the kind of claim [he] brings.”
Washington All. of Tech. Workers v. U.S. Dep’t of Homeland
Sec., 892 F.3d 332, 343 (D.C. Cir. 2018) (quoting Am. Soc. for
Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d
13, 18 (D.C. Cir. 2011)).
Noble plausibly claims that he has a right under the Labor-
Management Reporting and Disclosure Act (“LMRDA”) to
seek distribution of his campaign materials through his Union’s
publication. Indeed, the Supreme Court has confirmed that
“Labor unions have a statutory duty to distribute campaign
literature to their membership in response to the reasonable
request of any candidate for union office.” Int’l Org. of
Masters, Mates & Pilots v. Brown, 498 U.S. 466, 467 (1991).
A union may deny a candidate’s distribution request if it is not
reasonable. However, as the Court has made clear, a union
member’s request is not “per se unreasonable simply because
it conflicts with a union rule.” Id. at 478. Rather, the union
carries the burden to show that a member’s request is
unreasonable because, inter alia, it may cause “administrative
or financial hardship to the Union” or “discriminat[ion] against
. . . other candidate[s].” Id. Because the District Court
dismissed this case on the pleadings, the Union did not have
the opportunity to present any evidence to satisfy its burden of
proof as required by Brown.
Noble has pressed a straightforward complaint that
obviously falls within the LMRDA’s ambit. Noble is a bona
fide candidate seeking to distribute campaign literature at his

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own expense. And the Union does not dispute that it has
declined to distribute Noble’s campaign materials as he prefers.
Noble’s complaint plainly states a claim for relief that is
plausible on its face and generally in line with other requests
that courts have deemed reasonable under the LMRDA. See,
e.g., Mims v. Teamsters Loc. No. 728, 821 F.2d 1568, 1569,
1571 (11th Cir. 1987) (noting grant of preliminary injunction
for candidate’s request to distribute campaign literature to
union membership at his expense); Yablonski v. United Mine
Workers of Am., 466 F.2d 424, 426, 431 (D.C. Cir. 1972)
(same). And, as already noted, the Union has not presented any
evidence to support its view that Noble’s request is
unreasonable. This is a matter that must be considered by the
District Court in the first instance pursuant to summary
judgment or after trial. See, e.g., Marshall v. Provision House
Workers Union, Loc. 274, 623 F.2d 1322, 1324-25 (9th Cir.
1980) (affirming summary judgment issued by the district court
finding that a union rule regarding distribution of campaign
literature was reasonable).
This is not to suggest that Noble has raised a meritorious
claim under the LMRDA. That remains to be seen after the
Union has had an opportunity to challenge the reasonableness
of Noble’s request. The statute requires only that unions
“comply with all reasonable requests of any candidate to
distribute by mail or otherwise at the candidate’s expense
campaign literature.” 29 U.S.C. § 481(c) (emphasis added). As
the Supreme Court has articulated, “Section 401(c) simply
prescribes a straightforward test: Is the candidate’s distribution
request reasonable?” Brown, 498 U.S. at 478. I agree with the
majority opinion that “distribute” in section 401(c) of the
LMRDA subsumes requests to post campaign material in a
union newspaper. It does not follow, however, that every such
request is “reasonable.”

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Summary judgment or trial will afford the Union an
opportunity to demonstrate that Noble’s request is
unreasonable. Although, as mentioned above, a union
member’s request is not “per se unreasonable simply because
it conflicts with a union rule,” id., the reasonableness of the
Union rules at issue in this case obviously will weigh in the
balance. If the Union’s rules reasonably apply to Noble’s
request, then Noble’s request may be unreasonable by virtue of
the justifications underlying the Union’s rules. None of these
showings, however, can be made by the Union on a motion to
dismiss, at least not on the record that thus far has been
developed in this case.
Finally, because we leave open the issue of whether the
Union must publish Noble’s campaign literature pending a
determination on the reasonableness of Noble’s request, there
is no good reason to reach the First Amendment issue raised by
the Union. Furthermore, it is noteworthy that there is no First
Amendment issue here emanating from competing messages
from different speakers. Rather, in my view, the issue raised by
the Union obliquely questions whether Congress may
permissibly place restrictions on how a union orders its internal
operations. However, the Supreme Court made it clear years
ago that the regulatory reach of the LMRDA does not raise
viable causes for concern under the First Amendment. See
Trbovich v. United Mine Workers of Am., 404 U.S. 528, 530-
31 (1972) (LMRDA passed because “[h]aving conferred
substantial power on labor organizations, Congress began to be
concerned about the danger that union leaders would abuse that
power, to the detriment of the rank-and-file members.”); Wirtz
v. Loc. 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 471
(1968) (LMRDA represents congressionally struck balance of
“how best to legislate against revealed abuses in union
elections without departing needlessly from [Congress’s] long-

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standing policy against unnecessary governmental intrusion
into internal union affairs.”).
I agree that we must reverse and remand the case so that
the District Court may properly consider, pursuant to summary
judgment or trial, whether the Union has met its burden to show
that Noble’s request to seek distribution of his campaign
materials through his Union’s publication is unreasonable.

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KAREN LEC RAFT HENDERSON , Circuit Judge, dissenting:
Section 401(c) of the Labor-Management Reporting and
Disclosure Act of 1959 (LMRDA) grants all candidates for
union office the opportunity to disseminate their campaign
materials to the union’s members. One way it does so is by
obliging the union “to comply with all reasonable requests of
any candidate to distribute by mail or otherwise at the
candidate’s expense campaign literature in aid of such person’s
candidacy to all members in good standing.” 29 U.S.C. §
481(c) (emphasis added). The majority concludes that section
401(c) encompasses a candidate’s request to purchase
advertising space in a union magazine in order to publish a
campaign advertisement and it remands for further proceedings
to determine whether such a request is “reasonable” under the
circumstances.
But the duty imposed by section 401(c) is limited.
Interpreted in context, section 401(c) only requires a union to
send — or otherwise arrange for the delivery of — campaign
materials a candidate provides it. Recognizing a right of
publication — the affirmative right to compel union
publications to open their pages to content they may not wish
to carry — distorts the ordinary meaning of the union’s duty
“to distribute . . . campaign literature.” Because I think Noble’s
request for publication falls outside the scope of section 401(c),
I would affirm the district court’s dismissal.
The National Association of Letter Carriers (NALC) elects
its officers every four years. David Noble, a longtime member
of the union and frequent candidate for office, ran for president
in the October 2022 election. Ten months earlier, Noble
emailed NALC about purchasing advertising space for his
campaign ads in the Postal Record, the union’s monthly
magazine, beginning in February 2022. NALC declined,
explaining that “[i]n accordance with longstanding NALC
policy, NALC does not run political ads in the Postal Record,

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2
with the exception of one issue every four years, preceding the
NALC national officer elections. The rates and deadline for
political ads for that issue have not yet been determined.” JA24.
Noble sued, arguing that LMRDA section 401(c) requires
NALC to publish his advertisement.
The issue is whether Noble’s request falls within the duty
section 401(c) imposes on NALC. I believe it does not. As
discussed below, the statute’s text and legislative history
confirm — at least, to me — that a duty to distribute is
narrower — and therefore different — than a duty to publish.
I.
Section 401(c) provides a procedure by which candidates
for union office must go through the union to circulate their
campaign materials because the union controls access to the
union members’ names and addresses. The statute imposes four
duties on unions to ensure that all candidates have an equal
opportunity to reach the voting audience. It provides that every
union
shall be under a duty, enforceable at the suit of
any bona fide candidate for office in such labor
organization in the district court of the United
States in which such labor organization
maintains its principal office, [1] to comply
with all reasonable requests of any candidate to
distribute by mail or otherwise at the
candidate’s expense campaign literature in aid
of such person’s candidacy to all members in
good standing of such labor organization and
[2] to refrain from discrimination in favor of or
against any candidate with respect to the use of
lists of members, and [3] whenever such labor
organizations or its officers authorize the

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distribution by mail or otherwise to members of
campaign literature on behalf of any candidate
or of the labor organization itself with reference
to such election, similar distribution at the
request of any other bona fide candidate shall be
made by such labor organization and its
officers, with equal treatment as to the expense
of such distribution. [4] Every bona fide
candidate shall have the right, once within 30
days prior to an election of a labor organization
in which he is a candidate, to inspect a list
containing the names and last known addresses
of all members of the labor organization.
29 U.S.C. § 481(c) (alterations added). Our focus is on the first
duty. Does Noble’s request to purchase advertising space in the
Postal Record constitute a request “to distribute by mail or
otherwise . . . campaign literature?”
The majority answers that question in the affirmative
because it reads “distribute” as “synonymous” with “publish.”
Op. at 7. It reaches that conclusion not by simply examining
section 401(c)’s text but by turning to our holding in Cause of
Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015). In Cause of
Action, we dealt with a fee waiver provision of the Freedom of
Information Act available to “representative[s] of the news
media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). An individual can
qualify as a news media representative only if he “distributes
[his] work to an audience.” Id. § 552(a)(4)(A)(ii). It is in that
specific context that we held that “posting content to a public
website can qualify as a means of distributing it.” Cause of
Action, 799 F.3d at 1123. My colleagues now make two leaps
from that statement, equating “posting content” with
“publishing” and then “publishing” with “distributing.” See
Op. at 7 (Cause of Action “clarif[ies] that posting qualifies as

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4
publishing.”). But I believe Cause of Action sheds little light on
the statute here for at least two reasons.
First, and most importantly, statutory meaning stems from
its context and the Cause of Action context bears little
resemblance to section 401(c)’s context. The majority assumes
that “distribute” must mean the same in section 401(c) as it
does in FOIA but the United States Supreme Court has
frequently “give[n] a different reading to the same language”
when it “appear[s] in separate statutes or in separate provisions
of the same statute.” Smith v. City of Jackson, 544 U.S. 228,
260–61 (2005) (O’Connor, J., concurring); see, e.g., Fogerty v.
Fantasy, Inc., 510 U.S. 517, 522–25 (1994) (interpreting
“virtually identical language” differently in separate statutes);
Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595
(2004) (rejecting the argument “that the word ‘age’ has the
same meaning wherever the [Age Discrimination in
Employment Act of 1967] uses it”). The majority does not
explain how a FOIA fee waiver provision helps us understand
section 401(c). And there is little reason to think that it does;
unlike the FOIA provision at issue in Cause of Action, section
401(c) contains other terms that bear on the scope of
“distribute.” I submit the two statutes have material differences
both in wording and subject matter that preclude treating them
as interchangeable.1
Even assuming its relevance, Cause of Action does not
mean that distribution is “synonymous” with publishing. It
simply states that “posting content to a public website can
1 The majority’s reliance on National Security Archive is
similarly misplaced because it addressed the same FOIA fee waiver
provision. See Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381,
1386 (D.C. Cir. 1989). Again, the majority does not explain why the
meaning of section 401(c) flows from an unrelated and differently
worded statute.

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5
qualify as a means of distributing it.” Id. at 1123 (emphasis
added); see also id. (“Even with the recognition that online
dissemination can qualify as a means of distribution…”
(emphasis added)). All Cause of Action says is that online
posting can sometimes amount to distributing information
depending on the facts. That is a far cry from holding the terms
to be equivalent. Moreover, the type of publishing at issue in
Cause of Action — online posting — differs from the
traditional print publication Noble’s request involves.
A close examination of section 401(c)’s text shows that
distribution does not encompass publication. In 1959, when the
Congress enacted LMRDA, “distribute” meant what it does
today: “to divide and bestow in shares; deal out; allot.”
Distribute, The American College Dictionary 353 (1958)
(“DISTRIBUTE implies apportioned, individualized, and, often,
personal giving, esp. of something that is definite or limited in
amount or number”); see also Distribute, 1 Funk & Wagnall’s
Standard Dictionary of the English Language (International
Edition) 371 (1960) (“To divide and deal out in shares;
apportion; allot.”); Distribute, Webster’s New Twentieth
Century Dictionary of the English Language 535 (2d ed. 1977)
(“[I]n the postal service, to place (the various pieces of mail) in
the proper receptacle.”). Noble argues that publication qualifies
as one type of distribution, see Appellant’s Br. 23, and some
dictionaries do connect the two concepts. See Publish, Black’s
Law Dictionary 1246 (7th ed. 2009) (“[T]o distribute copies (of
a work) to the public.”)2 But our job is to give the statute its
ordinary meaning, not necessarily the broadest literal reading a
dictionary definition can support. See Niz-Chavez v. Garland,
2 Other dictionaries, however, draw a distinction between
distribution and publication. See Publish, The Online Oxford English
Dictionary (“To prepare and issue copies of (a book, newspaper,
piece of music, etc.) for distribution or sale to the public.” (emphases
added)).

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593 U.S. 155, 168–69 (2021) (“[W]hen interpreting this or any
statute, we do not aim for ‘literal’ interpretations…. We simply
seek the law’s ordinary meaning.”). Statutory context cuts
against the literalism that Noble urges and the majority adopts.
Critically, publication is a more involved process than
what the statute’s type of distribution envisions. Section 401(c)
instructs the union to “distribute by mail or otherwise.” In plain
English, “distribute by mail” means “send by mail” so it
follows that “or otherwise” means “send by means other than
mail.” See United States v. Fischer, 64 F.4th 329, 336 (D.C.
Cir. 2023), cert. granted, 144 S. Ct. 537 (2023) (“otherwise”
means “in another way” or “by other means”). Sending
something is a one-step, almost ministerial process.
Publication, by contrast, requires more. Consider what exactly
Noble requested: He asked NALC to sell him advertising space
in the Postal Record, thus requiring NALC to place and format
his advertisement within the magazine, print the magazine and,
only after these steps, send the magazine to the union’s
members. Here, publication is a multistep process, including
deciding where to place the advertisement within the
publication. Distribution does not go that far.3
3 Additionally, the ordinary meaning of “campaign literature”
(which statutory language the majority does not discuss) suggests
that the union’s duty to distribute applies only to standalone
campaign materials, unlike Noble’s advertisement. “Literature”
connotes discrete printed materials such as pamphlets and circulars.
See Literature, The American College Dictionary, supra, at 712
(“Colloq. printed matter of any kind, as circulars or advertising
matter.”); 1 Funk & Wagnall’s, supra, at 744 (“Any printed matter
used or distributed for advertising or political purposes, etc.:
campaign literature.”); Merriam-Webster Unabridged Dictionary
(3d ed. 1961) (“[L]eaflets, handbills, circulars, or other printed
matter of any kind.”). I read “campaign literature” not in its literal

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7
My interpretation does not render “or otherwise” in the
statute superfluous, contrary to the majority’s suggestion. See
Op. at 7–8. That language authorizes the union to send or
deliver campaign materials via means other than the mail. It
might, for instance, encompass a request that the union hand
out flyers to members leaving a jobsite. Or it might allow for
technological change, such as distributing discrete campaign
materials by email rather than mail. See Dimondstein v. Am.
Postal Workers Union, 964 F. Supp. 2d 37, 49 (D.D.C. 2013)
(section 401(c) includes distribution by email).
In sum, how section 401(c) commands the union to
distribute campaign literature requires reading the statute to
impose on the union the duty to deliver only. The obligation
“to distribute by mail or otherwise . . . campaign literature” is
not naturally read to embrace a duty to publish.
II.
To the extent the statutory text is ambiguous, the
legislative history supports my interpretation. See Goldring v.
D.C., 416 F.3d 70, 74 (D.C. Cir. 2005) (“Reference to statutory
design and pertinent legislative history may often shed new
light on congressional intent, notwithstanding statutory
language that appears superficially clear.” (alteration and
quotation omitted)). Section 401(c) was a congressional
compromise that kept the names and addresses of the union’s
members private in return for the union circulating the
candidate’s campaign materials on his behalf. The legislative
history shows that the Congress intended section 401(c) to
require the union to provide for the delivery of campaign
sense of “[a]ny printed matter” but more specifically as printed
matter that is discrete and not included in a larger work.

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8
materials, thus allowing all candidates the benefit of the
membership list.
Section 401(c) emerged as a compromise between dueling
House and Senate proposals about how to ensure that all
candidates could reach their constituents with their campaign
materials. The Congress recognized that incumbent officers
enjoyed an electoral advantage over their challengers by having
access to a list of the union’s members and their addresses. See
U.S. Department of Labor, Legislative History of the Labor-
Management Reporting and Disclosure Act of 1959: Titles I–
VI (LMRDA Titles I–VI) 810 (1964); 2 National Labor
Relations Board, Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959 (LMRDA Legislative
History) 1240 (1959). The House proposed giving all
candidates the “right to inspect and copy a list containing the
names and last known addresses” of the union’s members so
that challengers and incumbents alike could reach the
membership directly. House Rep. 86-741, at 41 (1959).
The Senate, however, feared that a right to copy the list
could be abused. As then-Senator John F. Kennedy warned,
such a right would “create[] grave danger that stooges would
obtain the membership lists for subversive organizations or
commercial use.” LMRDA Titles I–VI, supra, at 833; see also
2 LMRDA Legislative History, supra, at 1240 (Senator John
McClellan explaining that “there was apprehension that a
person might become a candidate and then might use the list
for improper purposes”). Some House members similarly
argued that a right to copy the list would “provide[] protection
for the pro forma candidate for office who is really a company
spy or a Communist agent, pretending to union candidacy for
the sole purpose of obtaining membership lists for nefarious
purposes.” House Rep. 86-741, at 86 (1959) (Supplementary
views of Reps. Powell, Bailey, Weir, Roosevelt, Zelenko,

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Holland, Dent and Pucinski). The Senate proposed an
amendment that included the right to campaign literature
distribution that ultimately made its way into section 401(c) but
it did not provide for direct access to the membership list or to
the members’ addresses. LMRDA Titles I–VI, supra, at 833; id.
at 834.
A conference committee proposed keeping the Senate’s
distribution right unchanged and supplementing it with the one-
time right to inspect, but not copy, the list within thirty days of
the election. 1 LMRDA Legislative History, supra, at 938, 957.
Senator Kennedy supported the right of inspection “as a way of
checking the accuracy of the union’s mailing list, for the
candidate will thus be able to ascertain whether the union has
in fact mailed his campaign literature to those he knows to be
union members.” LMRDA Titles I–VI, supra, at 833. Rejecting
the central feature of the House proposal, the Congress decided
that the union, not the candidates, would distribute campaign
material. It crafted section 401(c) to keep the membership list
in union hands while effectively giving challengers the same
access to the list that incumbents had.4
4 The distribution debate manifests that the Congress expected
that the union would simply mail or otherwise send campaign
materials the candidate provided. One Senator explained that the
provision “would simply permit [a candidate] to send his campaign
materials to the union and have the union mail it out.” Id. at 800
(statement of Senator John McClellan). Another Senator, introducing
the amendment that became section 401(c), said that it “require[d]
the union to send [a candidate’s] political pamphleteering to the
members of the union.” Id. at 798 (statement of Senator Thomas
Kuchel). Yet another stated that it “guarantees to every candidate the
use of union mailing lists and distribution machinery.” Id. at 805
(statement of Senator Wayne Morse). And Senator Kennedy,
speaking after the conference committee had reached its
compromise, stated that section 401(c) “provided that mailings must

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10
The legislative history manifests that there is no mismatch
between the text and the Congress’s intent. It wanted to level
the playing field between incumbents and challengers without
giving challengers direct access to the list. The solution was to
require the union to make use of the list on behalf of any
candidate who requested it to do so. My colleagues’
interpretation, I believe, departs therefrom by extending the
union’s duty beyond making use of the list on the challenger’s
behalf.5
be made by the union” and “required a union to mail out all members
campaign literature submitted by candidates.” Id. at 831, 833. What
these statements have in common is the understanding that the union
had to give all candidates the benefit of the union’s mailing list. No
one suggested the union’s duty extended further, and for good
reason: the point of the provision was to neutralize the advantage
incumbents enjoyed by having access to the list.
Several Senators read “campaign literature” to refer to
standalone materials like circulars and pamphlets. New York Senator
Jacob Javits, the amendment’s author, noted that the amendment
referred to the “use of mailings or circulars.” Id. at 799. Another
summarized the amendment as dealing with “political
pamphleteering.” Id. at 798. And Senator Barry Goldwater, who
preferred giving candidates direct access to the list, predicted that
“[g]iven the hoodlum control of some unions, it is more than likely
that the campaign literature of the rival candidate will find its way
into the sewer or the incinerator.” Id. at 811. He apparently
anticipated candidates would submit standalone materials for
delivery — the type that could go missing.
5 My colleagues note that I raise an issue not discussed by the
parties, see Op. at 9, but they misunderstand my point. My argument
is not that Noble’s request “runs the risk of a union losing control
over its membership list,” see id., but that the legislative history
confirms that a union’s duty extends only to using its membership
list on behalf of candidates. Noble’s request for publication goes
beyond that duty and therefore falls outside section 401(c), whose

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In my view, the district court properly dismissed Noble’s
claim. Accordingly, I respectfully dissent.
meaning is the issue. And, even if the parties had not raised the issue,
we have an independent duty to “say what the law is” when
interpreting a statute. Marbury v. Madison, 1 Cranch 137, 177, 2
L.Ed. 60 (1803). “[T]he court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.” U.S. Nat. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 446 (1993); see also Lesesne v. Doe, 712 F.3d 584, 588
(D.C. Cir. 2013).

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