International Union, Security, Police & Fire Professionals of America v. Faye

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2016 Decided July 15, 2016

No. 15-7084

INTERNATIONAL UNION, SECURITY, POLICE AND FIRE

PROFESSIONALS OF AMERICA,

APPELLANT

v.

ASSANE FAYE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-02229)

James M. Moore argued the cause for appellant. On the

briefs were Scott A. Brooks and Matthew J. Clark. Anton G.

Hajjar entered an appearance.

Jonathan G. Axelrod was on the brief for amicus curiae

District of Columbia Nurses Association in support of

appellant.

Eden Brown Gaines argued the cause and filed the brief

for appellee.

Before: TATEL, KAVANAUGH, and MILLETT, Circuit

Judges.

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Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge MILLETT.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

TATEL, Circuit Judge: The Labor-Management Reporting

and Disclosure Act sets out fiduciary duties that officers and

other agents of unions owe the union that employs them. It

also permits a union member to bring a lawsuit for breach of

those duties in federal court “for the benefit of the labor

organization,” but only after “the labor organization or its

governing board or officers refuse or fail to sue or recover

damages or secure an accounting or other appropriate relief

within a reasonable time after being requested to do so.” 29

U.S.C. § 501(b). The statute does not, however, expressly

give the union itself a cause of action for breach of fiduciary

duty in federal court. In this case, we must decide whether the

statute contains an implied cause of action for the union itself.

Our decision on a closely related issue in Weaver v. United

Mine Workers of America, 492 F.2d 580 (D.C. Cir. 1973) (per

curiam), requires that we answer that question in the

affirmative.

I.

Until September 24, 2009, Assane Faye was a non-

member employee of the International Union, Security, Police

and Fire Professionals of America (the “Union”). The Union

brought this suit alleging that while it employed him, Faye

breached his fiduciary duties to the Union in a number of

ways, including by encouraging union members to join a rival

union. Specifically, the Union alleged that Faye breached his

fiduciary duties under section 501 of the federal Labor-

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Management Reporting and Disclosure Act (LMRDA). The

Union also asserted similar claims under state law, as well as

a breach of contract claim under the Labor Management

Relations Act (LMRA).

After several rounds of briefing, the district court

concluded that the LMRDA provides a cause of action only to

individual union members, not to the union itself, and that the

LMRA provides no cause of action to a union seeking to sue a

non-member employee. The district court concluded that

because neither federal statute provided the Union with a

cause of action, it lacked federal question jurisdiction over the

case. And because no other ground for subject matter

jurisdiction existed, the district court ruled that it had “no

basis to exercise supplemental jurisdiction over plaintiff’s

state common law claims.” International Union, Security,

Police & Fire Professionals of America v. Faye, 115 F. Supp.

3d 40, 47 (D.D.C. 2015). The district court thus dismissed the

Union’s entire suit without prejudice for lack of subject

matter jurisdiction.

The Union now appeals, contending that the LMRDA

gives it a cause of action and that the district court thus also

has supplemental jurisdiction over its state law claims. The

Union offers no challenge to the district court’s dismissal of

its LMRA claim. Our review is de novo. See El Paso Natural

Gas Co. v. United States, 750 F.3d 863, 874 (D.C. Cir. 2014)

(“We review de novo the District Court’s dismissal of claims

for want of subject matter jurisdiction under Rule 12(b)(1) or

for failure to state a claim under Rule 12(b)(6).”).

II.

This case presents a single substantive issue: whether

LMRDA section 501 provides a union with a federal cause of

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action against its agent for breach of a fiduciary duty owed to

the union. This question has been reserved by the Supreme

Court, see Guidry v. Sheet Metal Workers National Pension

Fund, 493 U.S. 365, 374 n.16 (1990), and is already the

subject of a circuit split, compare Building Material & Dump

Truck Drivers, Local 420 v. Traweek, 867 F.2d 500 (9th Cir.

1989) (finding no implied cause of action), with International

Union of Operating Engineers, Local 150, AFL-CIO v. Ward,

563 F.3d 276 (7th Cir. 2009), and International Union of

Electronic, Electrical, Salaried, Machine & Furniture

Workers, AFL-CIO v. Statham, 97 F.3d 1416 (11th Cir. 1996)

(finding an implied cause of action).

Before proceeding to the merits, we pause to clarify the

nature of our inquiry. As noted above, the district court

concluded that it lacked subject matter jurisdiction because

the LMRDA gives the Union no cause of action. Earlier

decisions likewise tended to speak of the inquiry in

jurisdictional terms. See, e.g., Guidry, 493 U.S. at 374 n.16

(speaking in jurisdictional terms in the course of reserving the

issue); Traweek, 867 F.2d at 505 (treating the matter as

jurisdictional).

The Supreme Court has recently made clear, however,

that the question whether the plaintiff has a cause of action is

distinct from the question whether a district court has subject

matter jurisdiction. In Arbaugh v. Y&H Corp., 546 U.S. 500,

510–16 (2006), the Court held that the fact that the defendant

did not employ the number of employees statutorily required

to hold it liable under Title VII went to the merits, not

jurisdiction. And in Lexmark International, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377, 1388 n.4 (2014)

(quoting Verizon Maryland Inc. v. Public Service Commission

of Maryland, 535 U.S. 635, 642–43 (2002)), the Court wrote

that “‘the absence of a valid (as opposed to arguable) cause of

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action does not implicate subject-matter jurisdiction, i.e., the

court’s statutory or constitutional power to adjudicate the

case.’” Here, as in Lexmark, the plaintiff’s claim is at least

“arguable,” regardless of whether it is “valid.” Our inquiry

thus goes to the merits, not jurisdiction, which exists under

the general federal question jurisdiction statute, 28 U.S.C.

§ 1331. See District of Columbia Nurses Ass’n v. Brown, No.

15-203, 2016 WL 29252, at *1–2 (D.D.C. Jan. 4, 2016)

(reaching the same result).

In determining whether an implied cause of action exists,

“[t]he judicial task is to interpret the statute Congress has

passed to determine whether it displays an intent to create not

just a private right but also a private remedy. Statutory intent

on this latter point is determinative.” Alexander v. Sandoval,

532 U.S. 275, 286 (2001) (internal citation omitted). Absent

statutory intent to create a cause of action, none exists, and

“courts may not create one, no matter how desirable that

might be as a policy matter, or how compatible with the

statute.” Id. at 286–87.

Congress enacted the LMRDA in 1959 in response to

various union corruption scandals and an associated

congressional investigation. See 29 U.S.C. § 401(b)

(explaining that Congress had found “a number of instances

of breach of trust, corruption, disregard of the rights of

individual employees, and other failures to observe high

standards of responsibility and ethical conduct”). The

LMRDA provision at issue in this case contains two relevant

subsections. The first, section 501(a), bears the title “Duties of

officers; exculpatory provisions and resolutions void,” and

provides as follows:

The officers, agents, shop stewards, and other

representatives of a labor organization occupy

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positions of trust in relation to such organization and

its members as a group. It is, therefore, the duty of

each such person, taking into account the special

problems and functions of a labor organization, to

hold its money and property solely for the benefit of

the organization and its members and to manage,

invest, and expend the same in accordance with its

constitution and bylaws and any resolutions of the

governing bodies adopted thereunder, to refrain from

dealing with such organization as an adverse party or

in behalf of an adverse party in any matter connected

with his duties and from holding or acquiring any

pecuniary or personal interest which conflicts with

the interests of such organization, and to account to

the organization for any profit received by him in

whatever capacity in connection with transactions

conducted by him or under his direction on behalf of

the organization. A general exculpatory provision in

the constitution and bylaws of such a labor

organization or a general exculpatory resolution of a

governing body purporting to relieve any such

person of liability for breach of the duties declared

by this section shall be void as against public policy.

Id. § 501(a). The second, section 501(b), bears the title,

“Violation of duties; action by member after refusal or failure

by labor organization to commence proceedings; jurisdiction;

leave of court; counsel fees and expenses,” and provides as

follows:

When any officer, agent, shop steward, or

representative of any labor organization is alleged to

have violated the duties declared in subsection (a) of

this section and the labor organization or its

governing board or officers refuse or fail to sue or

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recover damages or secure an accounting or other

appropriate relief within a reasonable time after

being requested to do so by any member of the labor

organization, such member may sue such officer,

agent, shop steward, or representative in any district

court of the United States or in any State court of

competent jurisdiction to recover damages or secure

an accounting or other appropriate relief for the

benefit of the labor organization. No such proceeding

shall be brought except upon leave of the court

obtained upon verified application and for good

cause shown, which application may be made ex

parte. The trial judge may allot a reasonable part of

the recovery in any action under this subsection to

pay the fees of counsel prosecuting the suit at the

instance of the member of the labor organization and

to compensate such member for any expenses

necessarily paid or incurred by him in connection

with the litigation.

Id. § 501(b).

The statute thus gives union members an express federal

cause of action against a union agent for breach of the

fiduciary duties set forth in section 501(a). Union members

may bring such a suit “for the benefit of the [union],”

provided that they first satisfy certain procedural

requirements. Central to this case, however, nothing in the

statute expressly gives the union itself such a cause of action.

In assessing whether a union nonetheless has an implied

cause of action under section 501, we do not write on a clean

slate. In Weaver v. United Mine Workers of America, 492

F.2d 580 (D.C. Cir. 1973) (per curiam), this court faced issues

closely related to those presented here. There, relying on

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section 501’s express cause of action, union members sued

union officers, as well as the union itself. Id. at 582. Only one

of the plaintiff union members, however, had satisfied the

statutory procedural requirements before bringing suit, and

that plaintiff was murdered while the case was pending. Id.

The defendants, including the union, moved to dismiss on the

ground that none of the remaining plaintiffs had satisfied the

statute’s procedural requirements. Id. The district court denied

these motions, but certified them for interlocutory review. Id.

at 582 & n.8.

While the appeal was pending, a union election occurred,

and control shifted to new officers supported by and

supportive of the plaintiffs (including some of the plaintiffs

themselves). Id. at 582–83. The union then filed motions to

withdraw its appeal, to intervene on behalf of the plaintiff

union members, and to dismiss the appeal filed by the

defendant officers as moot in light of the union’s intervention

as a plaintiff. Id. at 583.

This court granted the union’s motions and directed the

district court to permit the union to realign as a party plaintiff.

In doing so, the court analogized union member suits under

section 501 to shareholder derivative suits. Id. at 586. The

court noted that the union “possesses exclusively the financial

interest at stake,” and that, accordingly, “although under its

former leadership the [union] was aligned as a

defendant[,] . . . the litigation since its commencement has in

reality been its own.” Id. at 585. “Moreover, in conditioning

the availability of a derivative action under Section 501 on the

refusal of a union to bring the action itself, Congress

expressed its preference that the union prosecute a claim for

breach of fiduciary duty against union officials.” Id. at 586

(internal citation omitted). Because “[a]llowing the [union] to

assume the prosecution of this cause would further that

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legislative preference,” the court concluded, the union “must

be accorded that right.” Id. This court conceptualized the

union as fully taking over control of the litigation and

displacing the plaintiff union members, as demonstrated by its

“understanding that the [union-member plaintiffs] will move

the District Court for leave to be dropped as party-plaintiffs,”

id. at 587 n.35, as well as by its dismissal as moot of the

defendant officers’ appeal challenging the remaining plaintiff

union members’ failure to comply with the statute’s

procedural requirements, id. at 587.

Weaver thus holds, at least, that where union members

have properly sued under section 501, the union itself may

take control of the suit and displace the union members. In

this case, the district court distinguished Weaver on the

ground that the opinion “did not address a union’s right to

initiate suit on its own behalf.” Faye, 115 F. Supp. 3d at 44

n.2. The district court and we are bound, however, “not only

[by] the result” of a prior case, “but also [by] those portions of

the opinion necessary to that result.” Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 67 (1996). In allowing the

union to take over control of the litigation, the Weaver court

necessarily determined that the union was a proper plaintiff in

a section 501 fiduciary duty suit. Indeed, in language ignored

by the dissent, it emphasized that “the litigation since its

commencement has in reality been [the union’s] own.”

Weaver, 492 F.2d at 585. Neither the district court nor Faye

has offered any persuasive justification for reading the statute

to require that a union “be accorded [the] right” to take over a

suit that “since its commencement has in reality been its

own,” id. at 585–86, but not to allow the union to simply

bring “its own” suit in the first instance. Moreover, the

Weaver court’s dismissal of the individual defendants’ appeal

as moot necessarily means that it resolved the union’s right to

litigate a section 501 suit.

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Accordingly, although Weaver did not squarely address

the precise question of a union’s right to bring a section 501

suit in the first instance, the reasoning necessary to that

decision compels the conclusion that a union may indeed do

so. In contrasting a union’s ability to litigate under section

501 as an intervening plaintiff with its ability to do so as an

original plaintiff, the district court focused on a distinction

without a difference. Weaver established both that a section

501 suit is properly understood as belonging to the union and

that the union is a proper party to litigate it. The question

before us—whether section 501 gives a union a cause of

action for breach of fiduciary duty—thus did not “‘merely

lurk in the [Weaver] record, neither brought to the attention of

the court nor ruled upon.’” See Dissenting Op. at 11 (quoting

LaShawn A. v. Barry, 87 F.3d 1389, 1395 n.7 (D.C. Cir. 1996)

(en banc)). Rather, Weaver answered it in the affirmative.

Nor, contrary to the dissent’s suggestion, id. at 7–8, are we

free to ignore our precedent merely because a party

incorrectly concedes that it fails to bind us.

The parties’ dispute over the Union’s state law claims

requires much less attention. Because the Union’s section 501

claim is properly before the district court, supplemental

jurisdiction exists for the Union’s state law claims.

III.

For the foregoing reasons, we reverse the district court’s

order dismissing the Union’s claims under section 501 and

state law for lack of subject matter jurisdiction.

So ordered.

TATEL, Circuit Judge, concurring: I write separately to

explain why, even absent Weaver, I would conclude that

LMRDA section 501 gives unions a cause of action. As I see

it, the statute’s text and structure reveal Congress’s intent both

to create federal rights and to allow unions to vindicate those

rights in federal court. See Alexander v. Sandoval, 532 U.S.

275, 286 (2001) (“The judicial task is to interpret the statute

Congress has passed to determine whether it displays an

intent to create not just a private right but also a private

remedy. Statutory intent on this latter point is determinative.”

(internal citation omitted)).

To begin with, section 501(a) creates federal rights. It

contains express rights-creating language, specifying that

union agents occupy “positions of trust in relation to [the

union] and its members as a group,” and that, accordingly,

such an agent has a series of specific duties, including “to

hold [the union’s] money and property solely for the benefit

of the organization and its members,” “to refrain from dealing

with such organization as an adverse party or in behalf of an

adverse party in any matter connected with his duties,” and

“to account to the organization for any profit received by him

in whatever capacity in connection with transactions

conducted by him or under his direction on behalf of the

organization.” 29 U.S.C. § 501(a).

To be sure, these duties correspond to state common law

fiduciary duties, but their express delineation in a federal

statute demonstrates that they reflect separate federal rights.

Rather than simply adopting state law or using an unadorned

common law term such as “fiduciary duty” without

elaboration, section 501 not only lays out the relevant duties

in some detail, but does so without any reference to state law.

Indeed, the statute itself refers to “the duties declared by this

section,” id. (emphasis added), and “the duties declared in

subsection (a) of this section,” id. § 501(b) (emphasis added).

To see that the statute does not simply incorporate state law,

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consider a hypothetical state that expressly abolishes all state

law fiduciary duties. In such a state, union agents would still

owe the union the duties “declared” in section 501(a).

Moreover, legislative history indicates that Congress was

aware of state fiduciary law, but nonetheless “considered it

important to write the fiduciary principle explicitly into

Federal labor legislation.” H.R. Rep. 86-741 (1959), reprinted

in 1959 U.S.C.C.A.N. 2318, 2479–80.

To the extent Faye argues that section 501 creates rights

only in favor of union members rather than also in favor of

the union itself, that argument falls short. The statute specifies

that union agents occupy “positions of trust in relation to [the

union] and its members as a group,” 29 U.S.C. § 501(a), not

in relation to individual members. Moreover, the statute

requires that many of the duties it specifies be performed for

the union itself, such as the duty “to refrain from dealing with

such organization as an adverse party or in behalf of an

adverse party in any matter connected with [the agent’s]

duties.” Id. (emphasis added). And tellingly, the statute

specifies that when union members bring suit under section

501, they do so “for the benefit of the [union].” Id. § 501(b).

Of course, to provide unions an implied cause of action,

the statute must not only give them federal rights, but also

reveal that Congress intended to give them a private remedy.

Section 501 reveals just such an intent. The statute refers to

the “refusal or failure by labor organization to commence

proceedings,” id., which is most naturally read as suggesting

that a union may bring proceedings under the statute.

Similarly, the statute allows a suit by a union member “for the

benefit of the [union]” only after the union “refuse[s] or fail[s]

to sue or recover damages or secure an accounting or other

appropriate relief within a reasonable time after being

requested to do so,” id. (emphasis added), further

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emphasizing Congress’s understanding that unions have the

capacity “to sue or recover damages or secure an accounting

or other appropriate relief” regardless of state law.

Relying on these and other aspects of the statute, courts

on both sides of the implied cause of action debate agree that

union members’ suits are analogous to shareholder derivative

suits. E.g., International Union of Operating Engineers, Local

150, AFL-CIO v. Ward, 563 F.3d 276, 287–88 (7th Cir. 2009)

(using the analogy in a case finding an implied cause of

action); Building Material & Dump Truck Drivers, Local 420

v. Traweek, 867 F.2d 500, 506 (9th Cir. 1989) (using the

analogy in a case finding no implied cause of action). But

because shareholder derivative suits are brought on behalf of

a corporation, such suits are typically allowed only after the

corporation itself fails to bring suit on the same claims. See

Ward, 563 F.3d at 288 (citing Ross v. Bernhard, 396 U.S.

531, 534 (1970)). “It would be anomalous indeed,” the

Seventh Circuit pointed out, “to read this statutory scheme as

remitting the union’s own suit—which is primary under the

statutory hierarchy—to state court.” Id. Moreover, this

“anomalous” result “would create perverse incentives” for

unions to forgo filing suit to “manufactur[e] federal

jurisdiction” so that a member could bring a section 501(b)

suit in federal court. Id. (internal quotation marks omitted).

Although even Faye, the district court, and the dissent all

acknowledge that the statute envisions that unions will have

some ability to pursue fiduciary duty claims against their

agents directly, they insist that section 501 contemplates suits

by unions only in state court for violations of state law.

Appellee’s Br. 5–6 (“Congress’[s] contemplation of a union’s

right to sue is, in fact, evident in the language of the

statute. . . . [I]t is not necessary to look beyond the language

[of the statute] to find that the statute does not convey an

4

express or implied private right of action for a union to sue in

federal court.”); International Union, Security, Police & Fire

Professionals of America v. Faye, 115 F. Supp. 3d 40, 45

(D.D.C. 2015) (“Although the statutory language does reveal

that Congress contemplated unions bringing suit in some

forum, nothing in the statute suggests that Congress thought

unions and union members required access to the same

forum.”); Dissenting Op. at 6 (“It is true that Congress

assumed that unions would be able to bring suit to enforce the

fiduciary duties imposed on union officers. But nothing in

Subsection (b) suggests that Congress intended to allow

unions to bring suit under federal law rather than under state

law.”). I disagree.

On this understanding of the statute, Congress intended to

give union members a federal cause of action for violation of

federal rights, but only when the union itself “refuse[d] or

fail[ed]” to obtain relief in state court using state law, which

may or may not overlap perfectly with the fiduciary duties

imposed by section 501(a). This conception conflicts with the

statutory description of the union member’s suit as “for the

benefit of the [union],” 29 U.S.C. § 501(b), as well as with the

virtually uniform characterization of the union member’s suit

as a derivative suit ultimately belonging to the union itself.

Far more likely to comport with congressional intent is the

reading embraced by the Seventh and Eleventh Circuits. By

creating federal rights and an express derivative federal cause

of action for union members to bring “for the benefit” of the

union—if the union does not itself “commence

proceedings”—section 501 reveals Congress’s intent that the

union be able to enforce the duties its agents owe it in federal

court.

The arguments advanced by Faye and embraced by the

district court are unconvincing. First, Faye argues that section

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501 must be construed narrowly because it is a jurisdictional

statute. As noted above, however, Majority Op. at 4–5, the

issue in this case goes to the merits, not jurisdiction.

Faye also argues that in enacting section 501, Congress

was concerned that unions were refusing to enforce their

rights in state court, not that state law provided unions with

inadequate remedies. On this theory, Congress designed the

statute to benefit union members suffering from union

corruption, and we should therefore not read it to give the

union itself a federal cause of action. See also Dissenting Op.

at 5–7. Faye is correct that Congress recognized that state

common law remedies were available to unions. But Congress

apparently found these remedies inadequate and chose to

address the problem in a particular way: by declaring federal

duties the union agents owed the union and creating a federal

remedial scheme that includes a derivative-like suit. Such a

scheme obviously depends for its coherence on the ability of

the union to control the suit that, after all, ultimately belongs

to it.

I am also unpersuaded by the arguments advanced by my

two colleagues. First, to be sure, as Judge Kavanaugh points

out, “‘where a statute expressly provides a remedy, courts

must be especially reluctant to provide additional remedies.’”

Id. at 5 (quoting Karahalios v. National Federation of

Federal Employees, Local 1263, 489 U.S. 527, 533 (1989));

see also Millett Concurring Op. at 4–5. But here, the textual

and contextual evidence of statutory intent is strong, and the

“additional remed[y]” consists merely of allowing the

ultimate owner of a derivative claim to bring suit in its own

name.

Similarly, because I read section 501 as reflecting

congressional intent to create an implied cause of action, I am

6

untroubled that Congress also discussed “labor

organization[s]” in various other provisions of the statute.

Likewise, the inclusion of procedural prerequisites for union

members bringing suits hardly suggests that unions are

powerless to sue. Rather, I read section 501 as a whole as

reflecting an intent to give unions an implied cause of action

and the section 501(b) prerequisites as designed to prevent

union members from hijacking lawsuits that unions

themselves are willing to pursue. See International Union of

Electronic, Electrical, Salaried, Machine & Furniture

Workers, AFL-CIO v. Statham, 97 F.3d 1416, 1421 (11th Cir.

1996) (“Here, section 501(b) clearly shows that it has not one,

but two purposes: first, to enable individuals to sue on the

union’s behalf, and second, to make sure that individuals do

not preempt a union’s right to prosecute its own claims.”).

This conclusion applies with equal force to the potentially

jurisdictional statutory prerequisite that union members

receive leave of court “for good cause shown” prior to

bringing suit.

Finally, Judge Millett worries that “[a]llowing the union

itself to take over enforcement of Section 501 rights would

put back into the union’s hands the very authority Congress

sought to confer on individual members, and would empower

corrupt unions to throw the Section 501 litigation or enter into

sweetheart settlements.” Millett Concurring Op. at 6. But that

concern seems difficult to square with Congress’s willingness

to allow unions to foreclose suits by their members by

“commenc[ing] proceedings” when requested. In other words,

on any reading of the statute, Congress gave unions

significant leeway to preempt fiduciary duty suits by their

members. And even if Judge Millett is correct that “Section

501(b)’s ‘good cause’ standard protects the union member’s

right to bring a federal suit to enforce federal rights if

litigation shenanigans by the union in state court trenched

7

upon the rights and duties declared by Section 501(a),” id. at

7 n.2, then the same standard would seem to protect against

“litigation shenanigans” in federal court.

In sum, interpreting section 501 holistically and with due

regard to both its text and its remedial structure, I am

convinced that in enacting the LMRDA, Congress intended to

allow the union to itself bring suit for violation of the federal

rights Congress “declared” in section 501(a).

One final note. Faye’s reading of the statute becomes

even less tenable when this court’s interpretation of section

501 in Weaver is layered on top of it. Even if Weaver did not

control here, it holds at least that a union may take over a suit

properly brought by a union member under section 501.

Faye’s position would thus suggest that the union has no

ability to bring a federal suit in the first instance, but could

displace its members and proceed to litigate the members’ suit

against its agents in federal court. I would not read section

501 as creating such a counterintuitive scheme.

MILLETT, Circuit Judge, concurring: The issue in this

case sounds simple: can a union file suit as a plaintiff to

enforce the fiduciary duties Congress declared in 29 U.S.C.

§ 501? But the answer is hard, lying at the intersection of

important questions about the binding reach of circuit

precedent, statutory construction, and constitutional

avoidance. At bottom, I agree that Weaver v. United Mine

Workers of America, 492 F.2d 580 (D.C. Cir. 1973) (per

curiam), directs our disposition of this case, for the reasons so

well explained by the majority opinion. I write separately to

explain further my conviction that Weaver controls

notwithstanding the arguments made in the dissenting

opinion, and yet to acknowledge the force of the arguments

against Weaver’s correctness, as well as to note the potential

constitutional problems the issue raises.

A

A panel of this court is bound to adhere to the holdings of

prior circuit precedent even if we might resolve the case

differently were we to decide it in the first instance. See

United States v. Kolter, 71 F.3d 425, 431 (D.C. Cir. 1995)

(We are “bound by [an earlier] decision even if we d[o] not

agree with it[.]”); cf. Hilton v. South Carolina Public

Railways Comm’n, 502 U.S. 197, 198 (1991) (The principle

of stare decisis is “most compelling” in statutory

interpretation cases.).

Weaver’s holding alone would seem to end this case

because this court explicitly ruled there that a union may, on

its own, prosecute as plaintiff an action to enforce the federal

rights created by 29 U.S.C. § 501(a). Weaver, 492 F.2d at

586–587. The union in this case seeks to do the same thing:

to prosecute an action to enforce the rights under Section

501(a) as the sole plaintiff. Asked and answered by Weaver.

2

And Weaver’s influence does not stop there. As the

majority opinion notes, we are bound not just by the bottom-

line holding of Weaver, but also by “those portions of the

opinion necessary to that result.” Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 67 (1996). The analysis on which the

Weaver court predicated its holding seals the precedential

deal.

Specifically, the Weaver court held that the union could

be the sole plaintiff enforcing rights conferred by Section

501(a) by analyzing the statutory structure, and explaining

how, under Section 501, the union “retain[ed] the primary

interest in the litigation.” 492 F.2d at 586. That was not just

a procedural judgment. Rather, Weaver declared specifically

that, given the union’s desire “to prosecute vigorously the

action brought for its benefit, it must be accorded that right.”

Id. (emphasis added). The only “right” the Weaver court

could have recognized in that sentence was a right of action

under Section 501(a). That, in fact, is what Weaver tells us in

the preceding two sentences that describe “that right”:

Congress expressed its preference that the union

prosecute a claim for breach of fiduciary duty

against union officials. Allowing the [union] to

assume the prosecution of this cause would further

that legislative preference.

Id.; see also id. (“The mere fact that individual members have

initiated the action does not prohibit the [union] from * * *

taking the offensive in its prosecution.”). Thus, contrary to

the claim in the dissenting opinion, see Dissenting Op. at 11,

the Weaver court did not just have “thoughts” about whether

Section 501 confers a right of action on unions; Weaver

expressly acknowledged and directly enforced the union’s

“right” “to prosecute * * * the action” as plaintiff, 492 F.2d at

586.

3

Finally, unless the Weaver court specifically determined

that the union had the lawful authority to independently

enforce the rights conferred by Section 501(a), there would

have been no basis for Weaver’s separate holding that

arguments about whether other would-be plaintiffs could sue

were moot. 492 F.2d at 587 (“[W]hether the action survived

the death of the only plaintiff who complied with the

prerequisite to a Section 501(b) suit [] has become

academic.”); id. at 586 (noting union argument that, if the

union “itself may assume the litigation as party-plaintiff,” that

would “moot” the dispute over whether other plaintiffs could

continue the lawsuit). There thus is nothing “lurk[ing],” see

Dissenting Op. at 11, about Weaver’s express holding that the

union’s right to bring suit as plaintiff legally moots the

question of whether other would-be plaintiffs can prosecute

the action.

The dissenting opinion would cast all of that aside for two

reasons. First, that opinion describes Weaver as “completely

miss[ing] the issue of whether Section 501 creates an implied

cause of action for unions.” Dissenting Op. at 10. But

Weaver specifically discussed how the union’s “right” to sue

“further[ed] th[e] legislative preference,” 492 F.2d at 586.

That the panel did not go on to “cite any precedent related to

finding implied causes of action,” Dissenting Op. at 9, or to

use a particular—and at that time rarely used—linguistic

formulation is irrelevant to whether the prior panel holding

binds us. 1

Second, the dissenting opinion claims that Weaver’s

holding was limited to the narrow factual circumstance before

that court: whether a union could “start on one side of a

1

This court first employed the “implied cause of action”

phraseology three years after Weaver. See Mason v. Belieu, 543

F.2d 215, 220 (D.C. Cir. 1976).

4

Section 501 case and then—midway through—switch to the

other side.” Dissenting Op. at 9. It certainly is true that the

facts of Weaver differed from those here. Thankfully, we do

not often encounter cases where the defendant orchestrates

the murder of the plaintiff, has a change of heart, and then

seeks to substitute itself as plaintiff in the litigation. But

those tragic facts played no role in the Weaver court’s

controlling legal analysis as to why the union could sue as

plaintiff. Weaver instead relied upon the legal “right” of the

union to prosecute the action, because it had the “primary

interest in the litigation” and because “Congress expressed its

preference” for that action in the design and structure of the

statute. 492 F.2d at 586.

Indeed, what else could Weaver have meant? Surely it

does not mean that persons who otherwise lack a right of

action to enforce statutorily conferred rights can suddenly

acquire such a right if they just murder the proper plaintiff

and then step into the vacuum to prosecute the suit on their

own behalf. I am not wont to impute such a bizarre holding

to a prior panel.

B

Were it not for Weaver, I might very well agree with the

dissenting opinion that no right of action can be implied here.

While Judge Tatel’s concurring opinion ably articulates the

best arguments for implying such a right, in my mind four

considerations weigh heavily against that conclusion.

First, Congress spelled out in Section 501 precisely the

cause of action it wanted to create, along with specific

conditions and limitations on the action. I am not aware of

any case in which either this court or the Supreme Court has

implied a right of action for one party where Congress

expressly bestowed that right on a different party and on

different terms. Given that the bottom-line inquiry is whether

5

“evidence anywhere in the text * * * suggest[s] that Congress

intended to create a private right,” Alexander v. Sandoval, 532

U.S. 275, 291 (2001), the better course in this case would be

to assume that Congress said what it meant and meant what it

said when it specifically designed the cause of action it

thought best to enforce Section 501(a).

Second, at every turn, the statutory text weighs against

judicially implying a cause of action. To begin with, it is not

as though Congress just overlooked unions as potential

parties. Unions—“labor organizations”—are referenced all

over Section 501. Section 501 reflects a deliberate effort by

Congress to declare fiduciary duties owed to unions, and a

corresponding right to enforce them that was consciously not

vested in the unions, but was designed to be entirely separate

and independent of those organizations.

On top of that, it seems textually impossible to shoehorn

union-plaintiffs into the statute as Congress wrote it. Section

501(b) repeatedly refers to the authorized plaintiff as a

“member” of the labor organization in describing who may

sue and how, as well as who can obtain attorneys’ fees and

costs. 29 U.S.C. § 501(b). Needless to say, a union is not a

member of itself. The statute also requires a plaintiff, before

filing suit, to establish that the union itself “refuse[d] or

fail[ed] to sue or recover damages or secure an accounting or

other appropriate relief within a reasonable time after being

requested to do so by any member of the labor organization.”

Id. The suit that Section 501(b) references there is a suit by

the union under extant state-law causes of action—such as

fraud, breach of contract, breach of fiduciary duty, and unjust

enrichment, all of which long predated Section 501. See, e.g.,

H.R. Rep. No. 741, 86th Cong., 1st Sess. 81 (1959), reprinted

in 1 NLRB Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, at 839 (1959). Suing

unions, by definition, cannot establish their own failure to

bring suit.

6

To allow unions to sue as plaintiffs under Section 501,

courts would have to shrug off those textual preconditions.

But that would amount to defying, not implying, a statutory

cause of action.

Third, there was good reason for all the procedural fences

Congress erected against unions as plaintiffs: the whole point

of Section 501 was to empower individuals to combat union

corruption. See Mallick v. International Brotherhood of

Electrical Workers, 749 F.2d 771, 777 (D.C. Cir. 1984)

(describing Congress’s attempt “to end ‘autocratic rule by

placing the ultimate power in the hands of the members,

where it rightfully belongs, so that they may be ruled by their

free consent, [and] may bring about a regeneration of union

leadership’”) (quoting 105 Cong. Rec. 6472 (1959) (remarks

of Sen. McClellan), reprinted in 2 NLRB, Legislative History

of the Labor-Management Reporting and Disclosure Act of

1959, at 1099 (1959)).

Allowing the union itself to take over enforcement of

Section 501 rights would put back into the union’s hands the

very authority Congress sought to confer on individual

members, and would empower corrupt unions to throw the

Section 501 litigation or enter into sweetheart settlements.

Weaver itself seemed to acknowledge that risk because the

court went out of its way to find that the union’s efforts to

proceed as plaintiff in that case were not in “bad faith” and

did not entail any “conflict of interest.” 492 F.2d at 586.

Indeed, suspicions about unions absolving corrupt officials

are presumably what led Congress to outlaw “general

exculpatory” union bylaws and resolutions that would

otherwise purport to relieve officers of the fiduciary duties

that Section 501(a) declared. 29 U.S.C. § 501(a). It would

make little sense to empower unions to accomplish through

7

litigation tactics what Congress forbade through other union

processes. 2

Fourth, the statute requires would-be plaintiffs to obtain

leave of the court “for good cause shown” before filing suit.

29 U.S.C. § 501(b). That provision appears similar to

certificates of appealability that many habeas petitioners must

obtain before filing suit. See 28 U.S.C. § 2253(c). The

certification procedure in habeas cases is jurisdictional. See

Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012). If Section

501(b)’s pre-litigation certification likewise is

“jurisdictional”—as Congress labeled it in the heading to

Section 501(b)—then implying a right of action that bypasses

Section 501(b)’s “good cause” limitation (as the record

suggests the union did here) would require courts to create

their own jurisdiction under Section 501, not just a right of

action. Courts absolutely cannot do that. See Kontrick v.

Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may

determine a lower federal court’s subject-matter

jurisdiction.”) (citing U.S. Const., Art. III, § 1).

Accordingly, if we were writing on a clean slate, the

relevant indicia of statutory intent would, in my view and as

well explained by the dissenting opinion, weigh heavily

against implying a right of action for unions to prosecute

lawsuits under Section 501.

2

Judge Tatel’s concurring opinion suggests that the union could

equally frustrate an individual member’s suit under Section 501 by

collusively litigating its state-law cause of action. See Concurring

Op. at 6. But Section 501(b)’s “good cause” standard protects the

union member’s right to bring a federal suit to enforce federal

rights if litigation shenanigans by the union in state court trenched

upon the rights and duties declared by Section 501(a).

8

C

Having said all of that, one thing would still give me

pause about denying a union the right to sue under Section

501: Unless the union can sue, the enforcement scheme that

Congress devised could potentially run into some

constitutional headwinds.

For starters, Congress is clear that the fiduciary duties in

Section 501(a) belong to the union, and to that end provides

that any recovery also goes to the union itself. See, e.g., 29

U.S.C. § 501(a) (declaring duties of union officials and agents

to “hold [the union’s] money and property solely for the

benefit of the organization and its members”); id. § 501(b)

(authorizing suit “to recover damages or secure an accounting

or other appropriate relief for the benefit of the labor

organization”). The ability of Congress to empower a third

party—someone completely outside of the union’s control—

to independently enforce and definitively adjudicate the

union’s own rights would seem to raise due process concerns.

Cf. Taylor v. Sturgell, 553 U.S. 880, 896 (2008) (“[A] special

statutory scheme may ‘expressly foreclose successive

litigation by nonlitigants if the scheme is otherwise consistent

with due process.’”) (quoting Martin v. Wilks, 490 U.S. 755,

762 n.2 (1989)) (emphasis added) (alterations omitted).

It bears noting, in that regard, that individual member

suits under Section 501(b) do not map exactly onto the

shareholder derivative model referenced in Weaver, 492 F.2d

at 586 & n.27, and Judge Tatel’s concurrence, Concurring

Op. at 3. That is because stockholders actually own a portion

of the corporation and thus have individual property interests

in corporate breaches of fiduciary duties. See Ashwander v.

Tennessee Valley Authority, 297 U.S. 288, 318 (1936)

(Shareholders may bring a derivative suit because, “[w]hile

their stock holdings are small, they have a real interest[.]”);

see also 13 Fletcher Cyclopedia of the Law of Corporations

9

§ 5972 (2015) (“[O]ne who does not own shares in a

corporation is not qualified to bring a derivative action in its

name.”).

Individual union members, by contrast, have no property

interest in the union, and the broad fiduciary duties that

Section 501(a) vindicates generally run to the union and

union membership as a whole, rather than to individual union

members. 3 Construing the statute to permit unions to

vindicate their Section 501(a) rights themselves should they

choose to do so might arguably ameliorate the constitutional

concern. See Concrete Pipe and Products of California, Inc.

v. Construction Laborers Pension Trust for Southern

California, 508 U.S. 602, 528–529 (1993) (“Federal statutes

are to be so construed as to avoid serious doubt of their

constitutionality.”) (quoting International Ass’n of Machinists

v. Street, 367 U.S. 740, 749–750 (1961)).

On top of that, the ability of individual union members to

sue in federal court to enforce the union’s legal rights—based

on injuries inflicted only on the union or the membership as a

whole and to obtain a recovery that runs 100% to the union—

may raise an Article III standing question. See Vermont

Agency of Natural Resources v. United States ex. rel. Stevens,

529 U.S. 765, 771 (2000) (“The Art. III judicial power exists

only to redress or otherwise to protect against injury to the

complaining party.”) (quoting Warth v. Seldin, 422 U.S. 490,

3

See 29 U.S.C. § 501(b) (recovery is solely for the benefit of the

organization as a whole); see also, e.g., Agola v. Hagner, 556 F.

Supp. 296, 301 (E.D.N.Y. 1982) (complaint under Section 501

failed to state a claim because the suit was “for the benefit of

individual plaintiffs and not for the benefit of a labor

organization”); cf. Goolsby v. City of Detroit, 358 N.W.2d 856, 863

(Mich. 1984) (common-law duty of fair representation means that

the union “must be faithful to each member, to be sure, but * * *

must be faithful to all of the members at one and the same time”).

10

499 (1975)) (emphasis in Vermont Agency). However,

construing the statute to treat the union as the real party in

interest and the individual litigant as something akin to an

assignee for collection could—perhaps—reduce those

concerns. See Sprint Communications Co. v. APCC Services,

Inc., 554 U.S. 269, 285 (2008) (“Lawsuits by assignees * * *

are ‘cases and controversies of the sort traditionally amenable

to, and resolved by, the judicial process.’”) (quoting Vermont

Agency, 529 U.S. at 777–778).

In sum, I find the statutory construction question legally

betwixt and between, with text, structure, and purpose

pointing against recognizing an implied right of action, and

the principle of constitutional avoidance pointing in the other

direction. Weaver, however, forestalls that difficult debate

for now.

KAVANAUGH, Circuit Judge, dissenting: The Security,

Police & Fire Professionals of America is a labor union that

represents security personnel throughout the United States.

From 2004 to 2009, the Union employed Assane Faye as the

District Director of its office in Washington, D.C. The

relationship did not go well. The Union contends that Faye

was not a loyal union officer. According to the Union, Faye

endeavored to establish a rival union and misused the Union’s

resources to achieve that goal.

The Union sued Faye in U.S. District Court for violating

his fiduciary duties to the Union. The Union sued under the

federal Labor-Management Reporting and Disclosure Act and

under D.C. law. According to Faye, however, the federal Act

does not create a cause of action for a union to sue its former

officer. Faye argued that the Union therefore could sue him

only under D.C. law. The District Court agreed with Faye.

The majority opinion reverses the judgment of the

District Court and allows the Union to maintain its federal

claim against Faye. I respectfully dissent because unions do

not possess a federal cause of action to sue their officers for

breaches of fiduciary duties.

I

A

In 1959, Congress passed and President Eisenhower

signed the Labor-Management Reporting and Disclosure Act.

See 29 U.S.C. § 401 et seq. Congress was concerned about

growing instances “of breach of trust, corruption, disregard of

the rights of individual employees, and other failures to

observe high standards of responsibility and ethical conduct”

on the part of union officers. Id. § 401(b). By enacting this

statute, Congress sought to deter those problems, in part by

making corrupt union officers civilly liable to union members.

2

Section 501 of the Act sets forth the civil liability

scheme. Subsection (a) of Section 501 imposes fiduciary

duties on “officers, agents, shop stewards, and other

representatives” of the union. Id. § 501(a). (I will use the

term “officers” to refer collectively to those individuals.)

Under the Act, union officers must manage the “money and

property” of the union “solely for the benefit of the

organization and its members.” Id. The union officers must

also remain loyal to the union and refrain from any self-

dealing. See id. 1

Subsection (b) of Section 501 gives individual union

members a federal cause of action in order to enforce the

fiduciary duties created by Subsection (a). Any “member of

the labor organization” may sue a union officer violating

1

Subsection (a) reads in full: “The officers, agents, shop

stewards, and other representatives of a labor organization occupy

positions of trust in relation to such organization and its members

as a group. It is, therefore, the duty of each such person, taking into

account the special problems and functions of a labor organization,

to hold its money and property solely for the benefit of the

organization and its members and to manage, invest, and expend

the same in accordance with its constitution and bylaws and any

resolutions of the governing bodies adopted thereunder, to refrain

from dealing with such organization as an adverse party or in behalf

of an adverse party in any matter connected with his duties and

from holding or acquiring any pecuniary or personal interest which

conflicts with the interests of such organization, and to account to

the organization for any profit received by him in whatever capacity

in connection with transactions conducted by him or under his

direction on behalf of the organization. A general exculpatory

provision in the constitution and bylaws of such a labor

organization or a general exculpatory resolution of a governing

body purporting to relieve any such person of liability for breach of

the duties declared by this section shall be void as against public

policy.”

3

Subsection (a) “in any district court of the United States” in

order “to recover damages or secure an accounting or other

appropriate relief for the benefit of the labor organization.”

Id. § 501(b). 2

Because suits brought by union members under

Subsection (b) are “for the benefit of the labor organization,”

id., they are derivative suits. A union member therefore may

bring suit under Subsection (b) only after meeting two

procedural prerequisites. First, the union member may sue

under Subsection (b) only after the union itself “refuse[s] or

fail[s] to sue or recover damages or secure an accounting or

other appropriate relief within a reasonable time after being

requested to do so.” Id. Second, the union member must

acquire “leave of the court obtained upon verified application

and for good cause shown.” Id. If a union member meets

those procedural prerequisites, Subsection (b) provides the

2

Subsection (b) reads in full: “When any officer, agent, shop

steward, or representative of any labor organization is alleged to

have violated the duties declared in subsection (a) of this section

and the labor organization or its governing board or officers refuse

or fail to sue or recover damages or secure an accounting or other

appropriate relief within a reasonable time after being requested to

do so by any member of the labor organization, such member may

sue such officer, agent, shop steward, or representative in any

district court of the United States or in any State court of competent

jurisdiction to recover damages or secure an accounting or other

appropriate relief for the benefit of the labor organization. No such

proceeding shall be brought except upon leave of the court obtained

upon verified application and for good cause shown, which

application may be made ex parte. The trial judge may allot a

reasonable part of the recovery in any action under this subsection

to pay the fees of counsel prosecuting the suit at the instance of the

member of the labor organization and to compensate such member

for any expenses necessarily paid or incurred by him in connection

with the litigation.”

4

union member a cause of action to file suit against a union

officer.

But Subsection (b), by its terms, does not give a union –

as opposed to union members – a cause of action. That

statutory silence has precipitated a circuit split. The Seventh

and Eleventh Circuits have held that unions have an implied

cause of action under Section 501. International Union of

Operating Engineers, Local 150 v. Ward, 563 F.3d 276 (7th

Cir. 2009); International Union of Electronic, Electrical,

Salaried, Machine & Furniture Workers, AFL-CIO v.

Statham, 97 F.3d 1416 (11th Cir. 1996). The Ninth Circuit,

by contrast, has held that unions do not have an implied cause

of action under Section 501. Building Material and Dump

Truck Drivers, Local 420 v. Traweek, 867 F.2d 500 (9th Cir.

1989). This case requires us to enter the fray.

B

“Like substantive federal law itself, private rights of

action to enforce federal law must be created by Congress,”

not the Judicial Branch. Alexander v. Sandoval, 532 U.S.

275, 286 (2001). Courts must therefore be “reluctant” to

“provide a private cause of action where the statute does not

supply one expressly.” Sosa v. Alvarez-Machain, 542 U.S.

692, 727 (2004). Courts may find an implied cause of action

only if they determine that the statute “displays an intent to

create not just a private right but also a private remedy.”

Sandoval, 532 U.S. at 286.

Applying the Supreme Court’s precedents regarding

implied causes of action, I would conclude that Section 501

does not create an implied cause of action for unions.

5

To begin with, the text is clear. Subsection (b) of Section

501 creates a cause of action for union members. It does not

create a cause of action for unions.

Indeed, the text of Section 501 strongly suggests that

Congress did not want unions to have a federal cause of

action. It is “an ‘elemental canon’ of statutory construction

that where a statute expressly provides a remedy, courts must

be especially reluctant to provide additional remedies.”

Karahalios v. National Federation of Federal Employees,

Local 1263, 489 U.S. 527, 533 (1989) (citation omitted); see

also Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis,

444 U.S. 11, 19-20 (1979); National Railroad Passenger

Corp. v. National Association of Railroad Passengers, 414

U.S. 453, 458 (1974). After all, “express provision of one

method of enforcing a substantive rule suggests that Congress

intended to preclude others.” Sandoval, 532 U.S. at 290.

Here, Congress chose to create a cause of action, but only

for union members and not for unions. That decision strongly

suggests that Congress intended to allow union members –

and only union members – to sue under Section 501. We

should respect that congressional choice.

To be sure, some broader conceptions of statutory intent

take account not just of the text of the statute, but also of

legislative history. But here, the legislative history supplies

zero indication that Congress wanted to create a federal cause

of action for unions.

As Judge Millett’s concurrence explains in convincing

detail, moreover, other contextual indications in this statutory

scheme make it all but “impossible to shoehorn union-

plaintiffs into the statute as Congress wrote it.” Millett

Concurring Op. at 5. Notably, as far as anyone is aware, the

Supreme Court has never found an implied cause of action for

6

one party to sue under a particular statute when Congress

expressly created a cause of action for another party to do so.

We should not start now.

With no text and no legislative history to support its

argument, the Union relies heavily on the fact that union

members may not bring suit under Subsection (b) until the

union has refused or failed to do so itself. Subsection (b)

therefore assumes that a union could have brought suit.

According to the Union, Congress therefore must have

intended to give unions a federal cause of action to enforce

Section 501. See also Ward, 563 F.3d at 287-88.

But the conclusion does not follow from the premise. It

is true that Congress assumed that unions would be able to

bring suit to enforce the fiduciary duties imposed on union

officers. But nothing in Subsection (b) suggests that Congress

intended to allow unions to bring suit under federal law rather

than under state law. When Congress enacted Section 501, it

knew that unions already had state-law causes of action

available to them. See Tatel Concurring Op. at 5; see also

H.R. Rep. No. 86-741, at 81 (1959) (supplementary views).

But at the time, the States generally did not provide causes of

action to union members in order for them to sue corrupt

union officers. See S. Rep. No. 86-187, at 72 (1959)

(minority views); Statham, 97 F.3d at 1420. That disparity

generated a problem: Although unions could sue their

officers under state law, the unions were sometimes choosing

not to do so for corrupt reasons – in part because the officers

of the union usually determined whether a union should sue.

See generally Phillips v. Osborne, 403 F.2d 826, 828-29, 831-

32 (9th Cir. 1968). And union members had no recourse

because, as noted above, they generally could not sue the

union officers under state law. To solve that problem,

Congress enacted a new statute affording union members a

7

federal cause of action to sue crooked union officers when a

union itself would not. But Congress did not need to allow

unions to sue under federal law because unions, unlike union

members, already could bring suit against union officers

under state law. And so Congress did not need to – and did

not – create a new federal cause of action for unions.

Sticking to the statute as Congress wrote it does not leave

unions without remedies. To reiterate, they have state-law

remedies. This suit demonstrates as much. In addition to the

federal claim, the Union brought a host of other claims

against Faye under D.C. law. Those claims include

conversion and breach of contract, along with a claim for

breach of fiduciary duties imposed by D.C. law. See

Complaint at 4-6, International Union, Security, Police and

Fire Professionals of America v. Faye, No. 09-2229 (D.D.C.

Nov. 24, 2009), at Joint Appendix 8-10. In other words, even

without a federal cause of action under Section 501, unions

can still hold union officers accountable, including in this

very case, but the unions must do so under state law.

Creating a federal cause of action for unions may or may

not be “desirable” as a matter of policy. Sandoval, 532 U.S.

at 287. But Congress did not create one in the Labor-

Management Reporting and Disclosure Act, and we must

respect Congress’s policy choice.

II

The majority opinion sidesteps the merits of the Union’s

argument. Instead, the majority opinion says this Court

already decided the issue in Weaver v. United Mine Workers

of America, 492 F.2d 580 (D.C. Cir. 1973) (per curiam). In so

ruling, the majority opinion ventures far beyond both the

arguments of the parties in this case and the holding of

Weaver itself.

8

To start, even the Union here does not rely on Weaver to

support its arguments. Think about that. In its opening brief,

the Union did not rely at all on Weaver. See Union Br. 13. At

oral argument, the Union was offered Weaver on a silver

platter. See Tr. of Oral Arg. at 8. But the Union declined to

indulge. In no uncertain terms, the Union said it would be too

much of a reach to argue that Weaver had any relevance here:

“[G]iven th[e] rather unique circumstance of that case,” the

Union explained at oral argument, Weaver “does not directly

address the issue before this Panel.” Tr. of Oral Arg. at 8-9.

Again, remember that this was the Union speaking. Even the

Union did not think it could make a good argument that

Weaver controlled this case.

The Union expressly waived reliance on Weaver for good

reason. As the Union acknowledged in its brief and at oral

argument, the facts in Weaver presented a far different set of

legal issues, and the Weaver Court quite plainly did not

address much less resolve the question now before us.

Weaver involved a Section 501 suit brought by Joseph

Yablonski, a member of the United Mine Workers of

America. Weaver, 492 F.2d at 581-82. Yablonski believed

that the union’s senior officers had been misappropriating

union funds. Id. at 582. So along with other members of the

union, Yablonski sued three union officers and the union itself

under Subsection (b) of Section 501. Id. at 581-82. Simple

enough. But Yablonski and his family were murdered on the

order of the union’s president before the court could reach the

merits of Yablonski’s suit. Id. at 582; see also

Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982).

That created a potential problem for the pending suit. Of

the plaintiff union members in the suit, only Yablonski had

met the procedural demand requirement for suit under

9

Subsection (b). Weaver, 492 F.2d at 582. So the defendant

union officers and union moved to dismiss the suit, arguing

that the remaining plaintiffs were not proper plaintiffs. Id.

The District Court denied the motion, and the defendant union

officers and union filed interlocutory appeals. Id.

While the appeals were pending, the union held a new

election, and control of the union flipped: The election

displaced the incumbent officers and ushered Yablonski’s

supporters into power. Id. at 582-83. With its newly elected

officers at the helm, the union asked this Court (i) to withdraw

the union’s appeal, in which the union had been aligned with

the old defendant union officers, and (ii) to permit the union

to now intervene on behalf of the plaintiff union members

against the old defendant union officers. See id. at 583.

The question before the Weaver Court was thus a narrow

one: Generally speaking, could a union start on one side of a

Section 501 case and then – midway through – switch to the

other side? See id. at 586. Weaver held that a union could do

so. Id. at 586-87. In a brief discussion, the Court noted that

the union had chosen “to assume a defensive role” in the suit

initially, and that the defendant officers wanted this Court to

“compel the [union] to maintain [that] defensive role.” Id. at

586. But the Court declined to force the union to stick to its

original position, noting that the union was “at liberty to

shape its own destiny within the boundaries set by law.” Id.

The Court held that “like any labor organization,” the union

“is free to say which side of a controversy involving a

legitimate institutional interest it will take.” Id.

Importantly for present purposes, Weaver completely

missed (and thus said nothing about) the issue of whether

10

Section 501 creates an implied cause of action for unions. 3

Weaver did not cite any precedent related to finding implied

causes of action. Nor did Weaver purport to analyze whether

the union in that case could have brought a Section 501 claim

in the first instance. Indeed, Weaver did not mention Section

501 at all other than a passing reference to the “legislative

preference” for unions themselves to prosecute claims “for

breach of fiduciary duty against union officials.” Id. That

silence should not be surprising: As the Union in this case

observes, the Court in Weaver “took for granted that the

Union was a proper party.” Union Br. 13. Therefore, as the

Union here concedes, “the decision in Weaver turned on an

issue of civil procedure, not an interpretation of § 501.” Id.

The majority opinion extracts a different lesson from

Weaver. With considerable understatement, the majority

opinion acknowledges that “Weaver did not squarely address

the precise question of a union’s right to bring a section 501

suit in the first instance.” Maj. Op. at 10. But the majority

opinion nonetheless claims that Weaver “compels the

conclusion” that a union may bring suit under Section 501.

Id. The majority opinion reasons that by “allowing the union

to take over control of the litigation, the Weaver court

necessarily determined that the union was a proper plaintiff in

a section 501 fiduciary duty suit.” Id. at 9.

Weaver said nothing of the sort. Simply put, the Weaver

Court missed a critical issue, presumably because the parties

(in particular, the defendant union officers) failed to notice

and raise it and because the issue was not the kind of

jurisdictional issue that courts must raise on their own. It

3

It is unclear why the union rather than the union officers was

originally a proper defendant in a case of this sort, much less a

proper plaintiff after the switch. But neither question was

addressed in the multi-stage litigation.

11

therefore is entirely mistaken to think that the Weaver Court

had any thoughts or made any rulings on the issue before us.

The majority opinion’s contrary conclusion contravenes a

longstanding principle of judicial precedent: “Questions

which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered

as having been so decided as to constitute precedents.”

LaShawn A. v. Barry, 87 F.3d 1389, 1395 n.7 (D.C. Cir. 1996)

(en banc); see also United States v. Shabani, 513 U.S. 10, 16

(1994).

For its part, Judge Millett’s concurrence says that the

question presented here was “[a]sked and answered by

Weaver.” Millett Concurring Op. at 1. That is doubly

mistaken, in my view. Review of the Weaver opinion reveals

that this question was neither asked nor answered. The court

simply missed the issue. That happens sometimes. Even in

our court. Cf. Dietz v. Bouldin, 136 S. Ct. 1885, 1896, slip op.

at 12 (2016) (“All judges make mistakes. (Even us.)”). I

would not impute to the Weaver Court rulings that it quite

obviously never made.

***

This Court’s decision in Weaver does not control the

outcome of this case, as even the Union has conceded. To

come to the contrary conclusion, the majority opinion has not

only re-engineered Weaver, but also jumped past the Union’s

commendable, good-faith candor in refusing to rely on that

inapposite case. Because Weaver does not control here and

because Section 501 does not create a cause of action for

unions, I would affirm the judgment of the District Court

12

dismissing the Union’s federal cause of action. I respectfully

dissent. 4

4

The District Court dismissed for lack of subject matter

jurisdiction. As the majority opinion notes, because the Union has

an arguable cause of action, our inquiry “goes to the merits, not

jurisdiction.” Maj. Op. at 5; see also Lexmark International, Inc. v.

Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.4, slip op.

at 9 n.4 (2014). But when a district court dismisses for lack of

subject matter jurisdiction, this Court can “nonetheless affirm the

dismissal if dismissal were otherwise proper based on failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6).”

Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006). I would do

so here.