Gilvin, Ron v. Fire, Edward

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2001 Decided August 21, 2001

No. 00-7221

Ron Gilvin,

Appellant

v.

Edward Fire, Individually and as President of the

International Union of Electronic, Electrical Salaried,

Machine and Furniture Workers, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 99-cv-00530)

James F. Wallington argued the cause and filed the brief

for appellant.

Thomas M. Kennedy argued the cause for appellee. With

him on the brief was Peter Mitchell.

Before: Henderson, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Ron Gilvin challenges his suspen-

sion and subsequent removal from the office of Secretary-

Treasurer of the International Union of Electronic, Electrical,

Salaried, Machine and Furniture Workers, AFL-CIO (IUE).

Gilvin asserts that the IUE, the IUE's President, and mem-

bers of the IUE's Executive Board violated federal labor law

and the IUE's constitution by suspending and removing him

in retaliation for protected speech and participation in a civil

trial. The district court dismissed part of Gilvin's lawsuit for

failing to state a claim, and granted summary judgment

against the remainder. We affirm in part and reverse in

part.

I

In November 1996, the IUE elected defendant Edward

Fire to the office of IUE President and elected plaintiff

Gilvin, Fire's political opponent, to be Secretary-Treasurer.

Both took their posts in January 1997 and were scheduled to

serve until December 31, 2000. On June 10, 1998, however,

the IUE Executive Board suspended Gilvin with pay. And

on August 26, 1998, the IUE's Trustees certified petitions

from two local unions seeking Gilvin's recall from office.

Gilvin lost a recall election on October 9, 1998, and was

removed as IUE Secretary-Treasurer.

Gilvin and Fire came into conflict soon after their 1996

election.1 In April 1997, Fire, backed by the Executive

Board, proposed transferring money from the IUE's Strike

Insurance Fund to its General Fund in order to reduce the

union's operating deficit. Gilvin opposed the proposal on the

__________

1 Because Gilvin's complaint was dismissed pursuant to Federal

Rules of Civil Procedure 12(b)(6) and 56, the following description of

the facts draws all reasonable inferences in Gilvin's favor. See

infra Part III.

ground that it would weaken the Strike Fund and conceal the

union's failure to maintain a balanced budget. Gilvin ex-

pressed that opposition in letters to IUE local union presi-

dents and members, which characterized the proposal as a

"raid" on the Strike Fund, J.A. 1161, "a reckless change in the

financial structure of our Union," id. at 1163, and an effort to

grant Fire "dictatorial powers," id. at 1161. The IUE mem-

bership eventually adopted Fire's proposal. Thereafter, at an

Executive Board meeting on April 21, 1997, defendant Board

members made clear, in no uncertain terms, their displeasure

with Gilvin's efforts to oppose the Strike Fund plan.2

In May 1997, Gilvin began questioning increases in IUE

subsidies to IUE District Councils, as well as raises and

travel reimbursements approved by President Fire. Gilvin

charged that checks for those expenditures were issued with-

out his knowledge or approval. Article VII(C) of the IUE

constitution requires that "[a]ll checks of the Union must bear

the signatures of the President and the Secretary-

__________

2 See, e.g., J.A. 1375 ("[T]here are letters all over my District

really taking on what we did. I think that's g*dd**ned outra-

geous...."); id. at 1376 ("I hope to h*ll we don't have to see any

more of these disruptive letters in this International Union."); id. at

1378 ("I was appalled at that letter. I think it does nothing but

disrupt this International Union and the goals that we're trying to

achieve."); id. ("I also don't appreciate the officers ... out there

with the staff at the locals, undercutting this Board. That's been

happening in my district and I want it to stop."); id. at 1339 ("The

way this thing came down I think was bull c**p.... I resented the

h*ll out of that [letter] being at the district meeting."); id. at 1410

(describing Gilvin's letter as "garbage trash--that goes out to our

membership and to the leadership ... to denounce our President,"

and charging that Gilvin "took the credibility of the Executive

Board and knifed us"); id. at 1417-18 ("If anybody has any

problems with the leadership of this union ... these things have to

be dealt with behind closed doors. It should not be made public.").

Treasurer," and Gilvin had previously authorized the union's

comptroller to utilize a facsimile of his signature on IUE

checks. In August 1997, Gilvin wrote Fire and the comptrol-

ler revoking that authorization, "[i]n order to assure that no

funds of the International are disbursed for other than legiti-

mate purposes and with adequate substantiation." Id. at

1175. Gilvin explained his decision in a letter to the Execu-

tive Board and local unions dated September 10, 1997. Call-

ing the raises and travel expenditures a "raid on the Interna-

tional treasury," id. at 1183, he wrote:

I will not sign any check until I can verify that all

International expenditures are properly authorized and

substantiated.... I consider it my Constitutional re-

sponsibility as Secretary-Treasurer to provide a vigilant,

meaningful financial oversight on behalf of the IUE

membership, and I won't be bullied into doing less!

Id. at 1184 (emphasis omitted).

Fire responded with his own letter to the members of the

IUE. He wrote that Gilvin "always has had the ability and

always was expected to see to it that expenditures are made

under proper accounting procedures and have proper docu-

mentation," acknowledging that "[t]hose are the basic respon-

sibilities of the Secretary-Treasurer." But Fire declared that

"if he refuses to sign a check, there will be a serious constitu-

tional problem." Id. at 1189. Fire also wrote that for "Gilvin

to continue to characterize the [Strike Fund] plan as a 'raid'

on the ... Fund is an insult to our members and our

leadership." Id. at 1191. On October 15, 1997, Gilvin reau-

thorized the use of his facsimile signature, with the under-

standing that the IUE's comptroller would provide him with a

daily register of all checks and with supplemental documenta-

tion upon request. Id. at 1199. On November 13, 1997, the

Executive Board held a meeting at which several members

again sharply decried Gilvin's letters, and suggested that

something had to be done to stop him from issuing more.3

In December 1997, Gilvin wrote an anonymous letter to the

"Hoekstra Committee," a Congressional subcommittee

chaired by Representative Peter Hoekstra that was investi-

gating allegations of union corruption. Gilvin's letter alleged

that three IUE checks, totaling $163,135.98, had been issued

without an identifiable union purpose. Complaint WW 48, 49.

Gilvin did not inform anyone at the IUE that he had sent the

letter. J.A. 449-62.

On January 5, 1998, Gilvin was present at the United

States District Court for the Southern District of Ohio,

during the trial of a lawsuit brought against the IUE by

Gilvin's home local, IUE Local 801. Fire and other IUE

officials saw Gilvin in the courtroom. Several weeks later,

Fire sent Gilvin a memorandum asking him to explain why

his weekly attendance record reported that he was away from

the office that day on "Union Business." Id. at 1208. In a

one-sentence written reply, Gilvin responded that he had

been subpoenaed. Id. at 1210. At the next Executive Board

meeting, held on March 10, 1998, Gilvin was attacked by

defendant Board members who interpreted his appearance in

the courthouse as reflecting a willingness to testify against

the IUE.4

__________

3 See, e.g., J.A. 1448 ("[T]he whole problem lies there with the

rumor mongers, with the letters going out ... that's the bone of

contention."); id. at 1449 ("[T]he man's got to be censured.... We

can't put up with this garbage any more."); id. at 1460-61 ("I'm not

going to take any more s**t, right in the area that I live, from him

and his constituents.... [I]f it doesn't stop, then I don't have a

problem starting a recall petition...."); id. at 1470 ("I think that

we should draw the line, and put an end to all this mud-

slinging....").

4 See, e.g., J.A. 1484-85 ("I would not testify against this

International Union even if I disagreed with its leadership or its

On April 26, 1998, Gilvin sent a letter to an IUE member,

opposing a proposed division of Local 801 into two separate

locals. Gilvin attributed the proposal to Fire, and wrote that

the President "should keep his nose out of the local's politics."

Id. at 1221. He also declared that "President Fire has his

own problems" in the form of an "International financial

crisis," charging that the union was operating at a deficit, that

operating expenses were increasing, and that the Strike Fund

had suffered a "$6,459,127.56 drop in one year." Id. Two

days later, Gilvin demanded Fire's authorization to mail the

letter to other IUE members at IUE expense, and Fire

refused. On April 30, 1998, the six IUE District Presidents,

who also served on the IUE's Executive Board and are

defendants here, responded to Gilvin's April 26 letter with the

following joint statement:

1. Ron Gilvin is hereby CENSORED [sic] for his publi-

cation and dissemination of false and scurrilous

charges.

2. Ron Gilvin is directed to adhere to the IUE Constitu-

tion and to serve at the direction of the President.

3. Ron Gilvin is put on notice that if he continues these

scurrilous attacks the undersigned will support the

efforts now being considered by members outraged

by his actions to recall him from office.

4. Ron Gilvin['s] right to engage in legitimate debate

over the issues facing this union must be conducted

__________

Executive Board.... I guess I have a problem, Ron.... with you

showing up in the courtroom ... not to testify on our side, but on

the side of Local 801...."); id. at 1486 ("That bothered me ...

that the Secretary-Treasurer of this International Union showed up

to testify against this International Union, that bothered me."); id.

at 1500 ("[D]on't kid me that you were subpoenaed. You were

subpoenaed because they knew how you were going to testify.").

in the future in a manner which sticks to the issues

and avoids baseless slander.

Id. at 1230.

The conflict between Gilvin and the defendants continued

to escalate in May of 1998. On May 20, Gilvin sent Fire a

memorandum, seeking his assistance in auditing the financial

records of the IUE's districts, particularly the "wage and

operating subsidies" paid to the districts by the International.

Id. at 1232. Fire refused to authorize an audit, telling Gilvin

that, under the IUE constitution, the Secretary-Treasurer

may perform a district audit only if the district "has been

delinquent for thirty days or more or ... when there is

reason to believe that [the district's] financial affairs ... are

being mishandled or a defalcation has occurred." Id. at 1234

(quoting IUE Const. Art. XIII(N)). Fire directed Gilvin to

provide, immediately and in writing, any information he pos-

sessed pertaining to any such misconduct. Id.

Gilvin again revoked permission for the use of his facsimile

signature on May 27, 1998, stating that he would personally

sign any check that was accompanied by "proper vouchers or

other backup" or that he could "verify through audits as

being constitutionally proper and legal." Id. at 1263. The

next day, Fire wrote Gilvin a memorandum stressing that the

Secretary-Treasurer was not authorized "to determine the

spending policies of the International Union," and further

suggesting that if Gilvin attempted to do so, he would cause

"a serious constitutional crisis." Id. at 250. On June 2, 1998,

Gilvin refused to sign subsidy checks to the six districts. In a

letter to the comptroller, Gilvin stated that he had sought to

verify by audit "the validity and purpose of these extraordi-

nary payments," but had "been refused my constitutional

authority to account for these expenditures." Id. at 1331.

"Until a resolution is reached," Gilvin said, "I do not intend to

process any form of supplements [i.e., subsidies] that I cannot

account for, and [that] I have reason to ... believe violates

our Constitution or has legal implications." Id.

Fire convened the Executive Board to discuss Gilvin's

revocation of his facsimile signature and his refusal to sign

the subsidy checks. On June 9, 1998, the Board passed a

resolution declaring that the six district checks were properly

documented and legitimate union expenses, that Gilvin was

constitutionally required to sign the checks, that a committee

should investigate Gilvin's conduct, and that Gilvin should in

the interim be suspended with pay from the office of

Secretary-Treasurer. Id. at 351-52. On July 15, 1998, the

Board's appointed committee issued a report concluding that

Gilvin's suspension "was right, proper and fully justified," and

recommending that the IUE membership consider initiating

"the recall of Ron Gilvin from the office of International

Secretary Treasurer." Id. at 300-01.

Two local unions petitioned for Gilvin's recall by election.

Id. at 378-79. Those petitions were endorsed by 92 addition-

al locals comprising over 37% of the IUE's total membership,

id. at 380, thus readily satisfying the constitutional require-

ments for initiating a recall. See IUE Const. Art. X(A). On

October 9, 1998, the IUE's Trustees announced that more

than 75% of the locals, representing more than 75% of the

eligible union members, had voted in favor of the recall. J.A.

419. As that was more than sufficient to accomplish a recall,

see IUE Const. Art. X(A), the Trustees declared Gilvin

recalled from office effective the following day. J.A. 419.

II

Gilvin filed suit against the IUE, President Fire, and

individual members of the Executive Board, charging that the

defendants had violated s 101(a) of the Labor-Management

Reporting and Disclosure Act (LMRDA), part of the "Bill of

Rights of Members of Labor Organizations." 29 U.S.C.

s 411(a); see id. ss 411-15. Gilvin alleged that, in suspend-

ing him from office, the defendants had violated his rights: (i)

to free expression, under s 101(a)(2), because the suspension

was imposed in retaliation for his criticizing the defen-

dants;5 (ii) to appear as a witness in a judicial proceeding,

under s 101(a)(4), because it was imposed for responding to a

subpoena in the litigation involving Local 801;6 (iii) to commu-

nicate with legislators, under s 101(a)(4), because it was

imposed for writing to the Hoekstra Committee; and (iv) to

equal rights, under s 101(a)(1), because it was imposed for

criticizing defendants and appearing as a witness.7 Gilvin

also charged that, in removing him from office, the defen-

dants had violated his rights under: (v) all three LMRDA

__________

5 Subsection 101(a)(2) provides:

Every member of any labor organization shall have the right to

meet and assemble freely with other members; and to express

any views, argument, or opinions...: Provided, That nothing

herein shall be construed to impair the right of a labor organi-

zation to adopt and enforce reasonable rules as to the responsi-

bility of every member toward the organization as an institu-

tion and to his refraining from conduct that would interfere

with its performance of its legal or contractual obligations.

29 U.S.C. s 411(a)(2).

6 Subsection 101(a)(4) states:

No labor organization shall limit the right of any member

thereof to institute an action in any court, or in a proceeding

before any administrative agency, irrespective of whether or

not the labor organization or its officers are named as defen-

dants or respondents in such action or proceeding, or the right

of any member of a labor organization to appear as a witness in

any judicial, administrative, or legislative proceeding, or to

petition any legislature or to communicate with any legisla-

tor....

29 U.S.C. s 411(a)(4).

7 Subsection 101(a)(1) states:

Every member of a labor organization shall have equal rights

and privileges within such organization to nominate candidates,

to vote in elections or referendums of the labor organization, to

attend membership meetings, and to participate in the deliber-

ations and voting upon the business of such meetings, subject

to reasonable rules and regulations in such organization's con-

stitution and bylaws.

29 U.S.C. s 411(a)(1).

subsections cited above; and (vi) the recall provisions of

Article X(A) of the IUE constitution.8

On September 15, 1999, the district court dismissed two

categories of Gilvin's charges for failure to state a claim upon

which relief can be granted, pursuant to Federal Rule of Civil

Procedure 12(b)(6). Gilvin v. Fire (Gilvin I), No. 99-cv-530,

slip op. at 6, 9-10 (D.D.C. Sept. 15, 1999). The court dis-

missed Gilvin's LMRDA s 101(a)(1) claim because he had not

alleged the violation of any "equal right" enumerated in that

subsection: i.e., the right to nominate candidates, to vote in

elections, to attend membership meetings, or to participate in

such meetings. See 29 U.S.C. s 411(a)(1). And the court

dismissed Gilvin's claim under the IUE constitution because

he had failed to respond to defendants' contention that the

recall had been initiated and carried out in accord with the

requirements of Article X(A).

On July 21, 2000, the district court granted summary

judgment against Gilvin's remaining LMRDA claims pursuant

to Federal Rule of Civil Procedure 56. Gilvin v. Fire (Gilvin

II), No. 99-cv-530, slip op. at 22 (D.D.C. July 21, 2000). The

court rejected Gilvin's s 101(a)(2) claim, that defendants had

suspended him in retaliation for criticizing them, because it

found Gilvin's speech unprotected by the statute. Subsection

101(a)(2) protects only the rights of union members, the court

__________

8 The complaint further charged other violations of the IUE

constitution. Those charges were dismissed by the district court,

and Gilvin has not pursued them here. See Gilvin Br. at 14.

Gilvin's LMRDA claims were brought pursuant to LMRDA

s 102, 29 U.S.C. s 412, which provides: "Any person whose rights

secured by the provisions of this subchapter have been infringed by

any violation of this subchapter may bring a civil action in a district

court of the United States...." The claims for violation of the

IUE constitution were brought under s 301(a) of the Labor Man-

agement Relations Act, 29 U.S.C. s 185(a), which states: "Suits for

violation of contracts between ... labor organizations, may be

brought in any district court of the United States having jurisdic-

tion of the parties...." See Wooddell v. Int'l Bhd. of Elec.

Workers, Local 71, 502 U.S. 93, 98 (1991) (holding that s 301(a)

"extends to suits on union constitutions brought by union mem-

bers").

ruled, not of union officers. Moreover, the court found

Gilvin's criticism so harsh that "Gilvin could not effectively

represent the union as an officer while making such accusa-

tions against its other leaders." Id. at 17.

The district court also rejected Gilvin's s 101(a)(4) claim of

retaliatory suspension for his January 1998 appearance in the

Local 801 litigation. The court found that there was "a

genuine issue of fact as to whether Defendants suspended

Gilvin in retaliation for his participation in that litigation."

Id. at 19. But the court held that Gilvin was unprotected by

s 101(a)(4) for two reasons: because, as with s 101(a)(2), the

statute does not protect union officers, and because Gilvin had

not actually testified in the Local 801 litigation. Id. at 20.

The court further dismissed Gilvin's s 101(a)(4) claim that he

was suspended in retaliation for writing to the Hoekstra

Committee, on the ground that Gilvin had failed to submit

"evidence that Defendants knew of his anonymous letter."

Id. at 18.

Finally, the district court rejected all claims concerning

Gilvin's removal by recall election because that election had

been conducted fully in accordance with the provisions of the

IUE constitution. Since Gilvin had produced no evidence

that the election's results or procedures were tainted, the

district court found that the LMRDA provided no basis for

setting aside the union members' democratic choice. Id. at

10-13.

III

We review both of the district court's orders de novo. See

Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996) ("Our

standard of review under Federal Rules 12(b)(6) and 56 is the

same: de novo."). In considering the claims dismissed pursu-

ant to Rule 12(b)(6), we must treat the complaint's factual

allegations as true, must grant plaintiff the benefit of all

reasonable inferences from the facts alleged, and may uphold

the dismissal only if "it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief." Sparrow v. United Air Lines,

Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000) (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)); see id. at 1113. As for

the claims denied on summary judgment pursuant to Rule 56,

we may affirm only if "there is no genuine issue as to any

material fact [and] the moving party is entitled to judgment

as a matter of law." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). A dispute

about a material fact is "genuine" if a reasonable jury,

drawing all reasonable inferences in Gilvin's favor, could

return a verdict against the defendants. See Flemmings v.

Howard Univ., 198 F.3d 857, 860 (D.C. Cir. 1999); Anderson

v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999).

Applying these standards, we conclude that the district

court erred in granting summary judgment against two of

Gilvin's claims: that he was suspended for exercising his

LMRDA s 101(a)(2) right to free expression, and for exercis-

ing his s 101(a)(4) right to appear as a witness in a judicial

proceeding. We consider these claims in Parts IV and V

below. We conclude that the court properly dismissed the

remainder of Gilvin's claims, which we discuss in Part VI.

IV

We begin with Gilvin's allegation that he was suspended for

his criticism of Fire and the Executive Board, in violation of

LMRDA s 101(a)(2). That subsection states that "[e]very

member of any labor organization shall have the right to meet

and assemble freely with other members; and to express any

views, argument, or opinions." 29 U.S.C. s 411(a)(2). It also

includes a proviso that "nothing herein shall be construed to

impair the right of a labor organization to adopt and enforce

reasonable rules as to the responsibility of every member

toward the organization as an institution and to his refraining

from conduct that would interfere with its performance of its

legal or contractual obligations." Id. Defendants contend

that Gilvin was not suspended because of his criticism, but

because his refusal to sign or authorize his facsimile for use

on IUE checks constituted insubordination and derogation of

his official duties in a manner that falls within the proviso.

Summary judgment was warranted, defendants contend, be-

cause there was "no genuine issue of material fact" as to

whether Gilvin's criticism caused his suspension.

Defendants may be correct that Gilvin could have been

suspended for an unreasonable refusal to inscribe his signa-

ture on IUE checks.9 But the district court did not find that

there was no genuine issue regarding the actual motivation

for the suspension. And we certainly cannot make such a

finding on the record before us, given the defendants' re-

peated attacks on Gilvin for sending critical letters, and their

declarations that something had to be done to stop him from

sending more. See supra notes 2, 3 and pp. 6-7.

Rather than rely on the absence of a genuine factual

dispute, the district court determined that Gilvin's criticism of

the other union leaders was unprotected by s 101(a)(2).

First, the court held that s 101(a)(2) protects the free speech

rights only of union members, not of union officers. That

holding was an error of law. In Finnegan v. Leu, 456 U.S.

431 (1982), the Supreme Court held that s 101(a)(2) does not

protect appointed union officials from discharge on account of

the expression of their opinions. But seven years later, in

Sheet Metal Workers' International Association v. Lynn, 488

U.S. 347 (1989), the Court announced a different rule for

elected officials like Gilvin. In Lynn, an elected business

agent was removed from his post in retaliation for statements

he made at a union meeting in opposition to a dues increase

sought by the union trustee. Although removal of an ap-

pointed agent under such circumstances would not have been

protected under Finnegan, the Lynn Court held that "[t]he

consequences of the removal of an elected official are much

__________

9 The qualifier "unreasonable" is necessary because Gilvin could

not lawfully have signed a check that, for example, violated his

fiduciary obligations as Secretary-Treasurer. See 29 U.S.C.

s 501(a) (setting forth the fiduciary obligations of the officers of a

labor organization with respect to the organization's "money and

property"); IUE Const. Art. VII(B) (requiring the Secretary-

Treasurer to "account for all monies" of the union); see also 29

U.S.C. s 501(c) (imposing a fine or imprisonment for, inter alia,

embezzlement of union funds).

different." Id. at 355. "To begin with," the Court said,

"when an elected official like Lynn is removed from his post,

the union members are denied the representative of their

choice." Id. "Furthermore," the Court continued, "the po-

tential chilling effect on [LMRDA] free speech rights is more

pronounced when elected officials are discharged." Id. In

such cases, "[n]ot only is the fired official likely to be chilled

in the exercise of his own free speech rights, but so are the

members who voted for him." Id. Accordingly, the Court

held that "Lynn's retaliatory removal stated a cause of action

under s 102." Id.

Defendants seek to distinguish Lynn on the ground that

there the officer was removed from office, while this aspect of

Gilvin's claim relates only to his suspension.10 The distinc-

tion, however, is insufficient to persuade us that Lynn is

inapplicable here. The term of Gilvin's suspension was indefi-

nite, and it immediately relieved him of all official authority.

That action implicates the same concerns relied upon by the

Court in Lynn: Union members who voted for Gilvin were

denied the representative of their choice for the length of the

suspension, and both Gilvin and those who observed what

happened to him were likely to be "chilled in the exercise" of

their free speech rights. Lynn, 488 U.S. at 355. We are

unable to perceive a difference in the degree of "chill" gener-

ated by suspension as compared to removal sufficient to

justify a difference in outcomes.

Second, the district court held that "Gilvin's letters to union

members criticizing Defendants were not protected under

101(a)(2) because they were inconsistent with [his] duties

[and] preclude[d] his effective representation of the union."

Gilvin II, slip op. at 16 (internal quotation omitted). The

court was particularly concerned that Gilvin's letters were

"replete with serious accusations against the IUE's President

and Board." Id. at 17. But the fact that the letters were

critical of the union leadership can hardly suffice to remove

__________

10 Gilvin's claims relating to his removal are discussed in Part

VI.B below.

the protections of s 101(a)(2), a point defendants rightly

conceded at oral argument. Indeed, as the Supreme Court

noted in Lynn, such criticism was "precisely" what Congress

intended to protect in passing the LMRDA.11

Nor does it matter that the tone of Gilvin's letters was

harsh, and even intemperate. Subsection 101(a)(2)'s protec-

tion of a union member's right "to express any views, argu-

ments, or opinions" is not limited to discourse clothed in the

polite language of diplomats in striped pants.12 Gilvin's oppo-

nents certainly did not think that they were so constrained, as

they gave quite as good as they got. See supra notes 2-4.

Finally, there was nothing about the substance of Gilvin's

criticism that was inconsistent with his duties as a union

official. To the contrary, Gilvin's letters challenged the finan-

cial policy of the President and Executive Board, a topic well

within the rights of any union member and certainly of the

Secretary-Treasurer, whose responsibilities include "per-

form[ing] all such duties as may be deemed necessary to a

proper and effective administration of the financial affairs of

the Union." IUE Const. Art. VII(B); see id. (requiring

Secretary-Treasurer to "account for all monies" of the union).

Indeed, at oral argument defendants candidly agreed that no

duty of Gilvin's office prevented him from expressing his

views on such proposals as the transfer of money from the

Strike Fund.13

__________

11 See Lynn, 488 U.S. at 355 ("[Congress] recognized that democ-

racy would be assured only if union members are free to discuss

union policies and criticize the leadership without fear of reprisal."

(quoting United Steelworkers v. Sadlowski, 457 U.S. 102, 112

(1982))).

12 See Petramale v. Local No. 17 of Laborers Int'l Union, 736

F.2d 13, 17 (2d Cir. 1984) (noting that "union meetings, especially

those involving ... disputes between rival factions within the union,

... can be fraught with tension and even sparked with vitriol and

calumny," and holding that "leeway for the expression of strongly

held views in emotional terms ... must be afforded union mem-

bers") (internal quotation omitted).

13 Cf. Lynn, 488 U.S. at 355 n.6 ("There is no suggestion that

Lynn's speech in opposition to the dues increase contravened any

In sum, because Gilvin's criticism of the union leadership

was protected speech under s 101(a)(2), and because on this

record a reasonable jury could find that Gilvin was suspended

because of that criticism, the grant of summary judgment to

defendants was erroneous.14

V

Gilvin also claims that he was suspended, in violation of

LMRDA s 101(a)(4), for appearing in federal court in re-

sponse to a subpoena in a lawsuit brought against the Inter-

national by IUE Local 801. Subsection 101(a)(4) provides

that "[n]o labor organization shall limit the right of any

member ... to appear as a witness in any judicial ...

proceeding." 29 U.S.C. s 411(a)(4). Defendants dispute that

Gilvin was suspended for his courthouse appearance, arguing

that it "occurred months before his suspension, which was

based upon an entirely different sequence of events." Fire

Br. at 37. Accordingly, defendants insist that the district

court's grant of summary judgment on this claim was appro-

priate.

The problem with this argument, as with defendant's paral-

lel argument under s 101(a)(2), is that the district court did

not hold that there was no genuine issue of material fact as to

__________

obligation properly imposed upon him as an elected business agent

of the Local.").

14 Gilvin also sought, and was denied, recovery under s 101(a)(2)

on the theory that defendants were involved in a "scheme to

suppress dissent." This theory, adopted by the Second Circuit,

provides a cause of action for appointed union officers who are

unprotected under Finnegan and Lynn. See Maddalone v. Local

17, United Bhd. of Carpenters, 152 F.3d 178, 184 (2d Cir. 1998). At

least with respect to elected officers, however, the Supreme Court

expressly rejected the contention "that a union official must estab-

lish that his firing was part of a systematic effort to stifle dissent

within the union in order to state a claim." Lynn, 488 U.S. at 355

n.7. Thus, Gilvin's free speech claim depends only upon whether he

can show retaliation against protected expression. He need not

demonstrate any broader "scheme."

whether Gilvin was suspended for his participation in the

Local 801 litigation. To the contrary, the court, referring to

statements made by defendants at the IUE Executive Board

meeting of March 10, 1998, held: "These statements do

create a genuine issue of fact as to whether Defendants

suspended Gilvin in retaliation for his participation in that

litigation." Gilvin II, slip op. at 19 (emphasis added); see

also supra note 4.

Instead of relying on an absence of a genuine factual

dispute, the district court once again concluded that the

LMRDA offered Gilvin no protection. First, as with

s 101(a)(2)'s protection of free speech, the court held that

s 101(a)(4)'s protection of the right to appear as a witness

applies only to union members and not to officers: As an

officer, the court held, "Gilvin was not protected by section

101(a)(4) against retaliation for his involvement with the Local

801 lawsuit." Id. at 20. For the reasons described in the

previous section, this conclusion is erroneous as applied to an

elected officer like Gilvin. Although Lynn itself involved

s 101(a)(2), there is no reason to suspect that its principles

are not equally applicable to s 101(a)(4). The right at stake

here--the right to appear as a witness in a judicial proceed-

ing--is just as likely as the right of free speech to be chilled

by punishment for its exercise.15

Second, the district court held that because Gilvin "never

did actually testify at the January 1998 proceeding," he "did

not engage in activity that would be protected by section

101(a)(4) even if undertaken by a union member." Gilvin II,

slip op. at 20. But if s 101(a)(4)'s command--that a union

__________

15 See International Org. of Masters v. Prevas, 175 F.3d 341, 344

(4th Cir. 1999) (holding that the LMRDA bars any conduct that

either limits or is "likely to chill the exercise of a member's right to

[sue]" (quoting NLRB v. Industrial Union of Marine & Shipbuild-

ing Workers, 391 U.S. 418, 425 (1968))).

may not "limit" a member's right to "appear" as a witness--

were restricted to those members who actually testify, it

would be a flimsy protection indeed. Witnesses often are

called to the courthouse, yet end up not testifying. The

reasons vary widely, and are usually wholly beyond the

witnesses' control: ranging from judicial rulings, to stipula-

tions on the subject of their testimony, to counsel's last-

minute strategic decisions. Since potential witnesses can

rarely be guaranteed that they will testify, a rule like that

adopted by the district court would chill their willingness to

appear. Indeed, carried to its logical extreme, restricting the

protection of s 101(a)(4) to those who actually testify would

permit an antagonist to impose all kinds of impediments to a

witness' appearance at the courthouse--as long as the impedi-

ments succeed in keeping the witness off the stand, or are put

in place before the testimony actually begins. There is no

justification for such a narrow reading of such an important

element of a union member's Bill of Rights.16

Accordingly, because Gilvin's appearance at the federal

courthouse in connection with the Local 801 litigation was

protected conduct under LMRDA s 101(a)(2), and because

there is a genuine issue of material fact as to whether Gilvin

was suspended because of that appearance, the grant of

summary judgment to defendants on this claim must be

reversed.

VI

In the following sections, we consider Gilvin's remaining

claims. These do not fare as well, substantially for the

reasons stated by the district court.

__________

16 See Phillips v. Int'l Ass'n of Bridge, Structural & Ornamental

Iron Workers, Local 118, 556 F.2d 939, 942 (9th Cir. 1977) (declar-

ing that "[i]f a union member's right [under s 101(a)(4)] is to have

any meaning, courts must be ever vigilant in protecting that right

against indirect and subtle devices as well as against direct and

obvious limitations").

A

Gilvin contends that his suspension violated LMRDA

s 101(a) on two grounds in addition to those discussed in

Parts IV and V. First, Gilvin claims that his suspension for

criticizing defendants and for appearing as a witness violated

not only LMRDA ss 101(a)(2) and (4), but also s 101(a)(1)--

which guarantees every member of a labor organization:

equal rights and privileges within such organization to

nominate candidates, to vote in elections or referendums

of the labor organization, to attend membership meet-

ings, and to participate in the deliberations and voting

upon the business of such meetings....

29 U.S.C. s 411(a)(1). But Gilvin does not dispute that he did

vote, did attend membership meetings, and did participate in

deliberations. Accordingly, this claim was properly dismissed

because, as the district court held, Gilvin has failed to articu-

late how he was deprived of any of the specific rights

protected by s 101(a)(1). See Carothers v. Presser, 818 F.2d

926, 931 (D.C. Cir. 1987) (holding that to prevail on an equal

rights claim under s 101(a)(1), a plaintiff must demonstrate

that defendants "deprived the plaintiff[ ] of a right specifical-

ly enumerated in the statute, such as the right to an equal

vote").

Second, Gilvin claims that he was suspended in violation of

LMRDA s 101(a)(4) for writing a letter to the Hoekstra

Committee alleging that IUE checks had been issued without

an identifiable union purpose. Retaliation for such an act

would have violated Gilvin's right "to communicate with any

legislator." 29 U.S.C. s 411(a)(4). But Gilvin acknowledges

that he sent the letter anonymously, and, as the district court

found, he "has not offered any evidence that Defendants knew

of his anonymous letter to the Hoekstra Committee, thus

leaving no foundation for his argument that they suspended

him in retaliation for it." Gilvin II, slip op. at 18.

B

Gilvin further contends that his ultimate removal from

office violated the rights guaranteed by LMRDA s 101(a) and

the recall provisions of the IUE constitution. Neither the

statute nor the theory of the Lynn case, however, protects a

union official--elected or otherwise--from removal by a recall

election. The Lynn Court noted that, in adopting "Title I of

the LMRDA .... Congress sought to further the basic

objective of the LMRDA: ensuring that unions [are] demo-

cratically governed and responsive to the will of their mem-

berships." Lynn, 488 U.S. at 352. The Court concluded that

protecting elected officials from removal by other officials in

retaliation for their speech was necessary to ensure demo-

cratic responsiveness. Id. at 355. But that rationale has no

application to removal by a recall election. Removing an

officer by a vote of the union's membership, because his

opinions no longer represent the will of that membership,

represents the expression of democracy, not its subversion.

Moreover, we agree with the district court's conclusion that

"Gilvin provide[d] no evidence to support his claim that the

recall vote was tainted" or that the IUE constitution was

violated in any way. Gilvin II, slip op. at 13. Two local

unions initiated the petition for recall, with the endorsement

of 92 other locals comprising over 37% of the IUE's total

membership. J.A. 380. This was substantially more than

was constitutionally required for initiation of a recall. See

IUE Const. Art. X(A) (requring initiation by one local, with

the endorsement of at least 25 others comprising 25% of the

IUE membership). More than 270 locals, representing more

than 75% of both the locals and the eligible IUE membership,

voted in favor of the recall, J.A. 419--far in excess of the

number required to remove Gilvin from office. See IUE

Const. Art. X(A) ("The President or Secretary-Treasurer

shall be declared recalled if locals having a majority of the

members of the Union in good standing have voted for his or

her recall."). Although Gilvin had every right to disagree

with the policies of the IUE's President and Executive Board,

it is apparent that the union's membership did not share that

disagreement, and Gilvin had no right to remain in office once

the members resoundingly voted him out.

VII

For the reasons stated in Parts IV and V, we reverse the

district court's grant of summary judgment against Gilvin on

his claims that defendants violated his rights to free speech

and to appear as a witness, by suspending him from office in

retaliation for the exercise of those rights. See LMRDA

ss 101(a)(2), (4), 29 U.S.C. ss 411(a)(2), (4).17 In making this

determination, we have, as required by the applicable stan-

dard of review, examined the evidence in the light most

favorable to Gilvin, and we express no views regarding the

merits or ultimate outcome of the case. See Borgo v. Goldin,

204 F.3d 251, 254 (D.C. Cir. 2000). For the reasons stated in

Part VI, the remaining portions of the district court's judg-

ment, including the court's grant of summary judgment

against Gilvin on claims arising out of the recall election, are

affirmed.

Affirmed in Part and Reversed in Part.

__________

17 The district court granted summary judgment in favor of

defendants in their individual capacities solely on the ground "that

Gilvin's public speech and anticipated testimony in judicial proceed-

ings were not protected from retaliation under the LMRDA."

Gilvin II, slip op. at 22; see id. at 21 (noting that "an individual

union officer may be individually liable under Title I [of the

LMRDA] if he or she 'aids, abets, instigates or directs a wrongful

use of union power to deprive a member of his rights under s 101' "

(quoting Rosario v. Amalgamated Ladies' Garment Cutters' Union,

Local 10, 605 F.2d 1228, 1246 (2d Cir. 1979))). Since we hold that

Gilvin's speech and courthouse appearance were protected, we

necessarily reverse the grant of summary judgment in favor of the

individual defendants as well.