Eugene Ruocchio Robert A. D'Angiolillo v. United Transportation Union, Local 60 Donald J. Bogen (Dan) United Transportation Union

ALDISERT, Circuit Judge,

dissenting.

The Supreme Court has consistently made clear that lies and willful defamation are not shielded by the expansive reach of the First Amendment. Yet, the majority suggests that a provision of a union constitution, which prohibits this same type of defamation, creates a chilling effect on speech sufficient to create a justiciable controversy in a case pursuant to the Labor-Management Reporting and Disclosure Act (“LMRDA”). This conclusion is unacceptable to me. I dissent.

This appeal requires us to decide whether the district court erred by dismissing Appellants’ claims as moot after Eugene Ruocchio was reinstated to the office of treasurer of United Transportation Local # 60 on June 10, 1998. Ruocchio was first suspended from that office on October 27, 1997, pending a trial board hearing on a charge that he violated Article 78 of the Union Constitution, and was removed from office on April 10, 1998 after the board found him guilty. Article 78 provides:

A member who willfully circularizes untrue statements shall be expelled from membership in the United Transportation Union if, after being charged and tried under the trial provisions of this Constitution, his/her guilt has been established.

App. at 39. Notwithstanding the mootness issue, critical to our ultimate decision is whether the mere accusation that a union member has violated Article 78, without *389 proof that the member has been damaged by the accusation, is such an injury as to make out a justiciable case or controversy as a violation of the LMRDA, specifically 29 U.S.C. § 411 (a)(2). The majority believes that an accusation is sufficient. I am unable to agree because, in my view, Appellants no longer have a case or controversy vesting the district court with jurisdiction. Accordingly, for reasons related to those expressed by the district court but with a somewhat different emphasis on the doctrine of justiciability, I would affirm the judgment of the district court.

I.

Article III of the Constitution confines the judicial power by extending it only to cases and controversies. “ ‘All of the doctrines that cluster about Article III — -not only standing but mootness, ripeness, political question, and the like — relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.’ ” Allen v. Wright, 468 U.S. 737, 750 , 104 S.Ct. 3315 ; 82 L.Ed.2d 556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-1179 (D.C.Cir.1982) (Bork, J., concurring)).

As early as 1937, the Court made clear that a genuine case or controversy is necessary for the federal courts to grant relief to litigants. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239-240 , 57 S.Ct. 461 , 81 L.Ed. 617 (1937) (interpreting the Declaratory Judgment Act). The court enunciated precepts that define “case or controversy”:

A “controversy” in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantive controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what a law would be upon a hypothetical state of facts.

Id. at 240-241 , 57 S.Ct. 461 (citations omitted).

Thus, Article III requires a party seeking relief to allege personal injury that is fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 , 102 S.Ct. 752 , 70 L.Ed.2d 700 (1982). The injury alleged must be distinct and palpable, Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 , 99 S.Ct. 1601 , 60 L.Ed.2d 66 (1979), and not “abstract” or “conjectural” or “hypothetical,” City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983); O'Shea v. Littleton, 414 U.S. 488, 494 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974). In the absence of such an injury, the requirements of Article III are not satisfied and the district court does not have jurisdiction to entertain the action before it.

II.

As a threshold consideration, Appellants cannot breathe justiciability into their law suit by claiming economic injury from Ruocchio’s suspension, removal and subsequent reinstatement as treasurer of the local union. The complaint’s allegations relating to monetary damages are grounded on Ruocchio’s suspension as an officer of the union, not as a member. We have held that “the LMRDA does not provide relief to a union officer for suspension as an officer, nor for loss of income resulting therefrom.” Harrison v. Local 51 of Amer. Fed’n of State, County & Mun. Employees, AFL-CIO, 518 F.2d 1276, 1281 (3d Cir.1975). See also Martire v. Labor *390 ers’ Local Union 1058, 410 F.2d 32 , 35 (3d Cir.1969) (“In Sheridan v. United Brotherhood of Carpenters, 306 F.2d 152 ([3d Cir.] 1962) we held that ... Title I of the LMRDA ... [does not] afford[ ] a remedy to a business agent of a union who has been removed from his elected office prior to the expiration of his term, for the reason that ‘[i]t is the union-member relationship, not the union-officer or union-employee relationship, that is protected.’ ”).

III.

The majority believes that an amorphous “chilling effect” of Article 78 on Appellants’ speech is sufficient to confer standing such that a justiciable controversy exists and in so doing, makes an assumption that standing in a First Amendment case is co-extensive with standing in a § 411(a)(2) claim. Although courts have looked to First Amendment cases for guidance in § 411(a)(2) cases, it is clear that the two are not co-extensive. United Steelworkers of America v. Sadlowski, 457 U.S. 102, 111 , 102 S.Ct. 2339 , 72 L.Ed.2d 707 (1982) (“However, there is absolutely no indication that Congress intended the scope of § 101(a)(2) to be identical to the scope of the First Amendment. Rather, Congress’ decision to include a proviso covering ‘reasonable’ rules refutes that proposition.”). Because the First Amendment provides broader protection of speech rights, there is no reason to assume that standing requirements in § 411(a)(2) cases are equivalent to those required to seek First Amendment relief. Indeed, ruling case law indicates that the exact reverse is true.

Notwithstanding the slightly broader concepts of standing in a First Amendment context, there are clear limits to what non-economic injury is sufficient to confer standing in a complaint brought under § 411(a)(2). Section 411(a)(2) itself provides one such limit:

Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided 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.

29 U.S.C. § 411 (a)(2) (emphasis added). The legislative history indicates that the provision that

preserves the union’s right to adopt reasonable rules governing the responsibilities of its members ... was designed to remove “the extremes raised by the [freedom of speech and assembly provisions]” ... and to assure that the amendment would not “unduly harass and obstruct legitimate unionism.”

United Steelworkers of America, 457 U.S. at 110 , 102 S.Ct. 2339 (quoting 105 Cong. Rec. 6721, 6722 (1959) (statements of Sen. Cooper and Sen. Church)). Thus, we must determine whether Article 78 qualifies as one of the permitted “reasonable rules” under § 411(a)(2). If it is a reasonable rule, there is no justiciable controversy in this case.

A.

“Congress adopted the freedom of speech and assembly provision [of the LMRDA] in order to promote union democracy.” Id. at 112, 102 S.Ct. 2339 . To understand the breadth of union democracy, we must ascertain the limitations to speech in the broader community in which we live, under a political democracy. Because the First Amendment provides greater protection for speech, any limita *391 tion of its protection applies a fortiori to the protections of § 411(a)(2).

Even under the broader limitations of the First Amendment, our speech is restricted by the law of defamation and the criminal statutes that proscribe or punish lying under oath. The law of defamation, for example, imposes liability for any statement that “asserts or implies a statement of fact which is damaging to reputation.” Sedore v. Recorder Publishing Co., 315 N.J.Super. 137 , 716 A.2d 1196, 1200 (Ct.App.Div.1998); see also Sisler v. Gannett Co., Inc., 104 N.J. 256 , 516 A.2d 1083, 1086-1088 (1986) (discussing cases that “attempt to pacify the warring interests of free speech and individual reputation”). Numerous state and federal laws prohibit the making of false statements under oath, “under penalty” or to law enforcement officers. See, e.g., 18 U.S.C. § 1621 (perjury); 18 U.S.C. § 1623 (false declarations before grand jury or court); N.J. Stat. Ann. § 2C:28-1 (perjury); N.J. Stat. Ann. § 2C:28-2 (false swearing); N.J. Stat. Ann. § 2C:28-3 (unsworn falsification to authorities); N.J. Stat. Ann. § 2C:28-4 (false reports to law enforcement authorities).

Whatever have been the recent efforts in some quarters to denigrate the importance of telling the truth, society still places a premium on truth-telling and a penalty for violating the precepts prohibiting lying under oath. Even the President of the United States is not immune from such penalties. See Jones v. Clinton, 36 F.Supp.2d 1118, 1130, 1131 (E.D.Ark.1999) (adjudging the President to be in civil contempt because his “deposition testimony regarding whether he had ever been alone with Ms. Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term ‘sexual relations.’ ”).

Deliberately telling a lie or circularizing an untruth in the general community is neither protected nor acceptable in our society:

[T]he use of the known lie as a [political] tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.... [T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

Garrison v. State of Louisiana, 379 U.S. 64, 75 , 85 S.Ct. 209 , 13 L.Ed.2d 125 (1964). Even in New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), and its progeny in actions against public officials, the First Amendment does not shield the publication of defamatory falsehood made “ ‘with actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280 , 84 S.Ct. 710 .

B.

In the context of Article 78, “willfully,” in the sense of intentionally or knowingly, is equivalent to the “actual malice” definition in New York Times Co. v. Sullivan. Because the First Amendment does not insulate a public official from making a statement with knowledge that it is false, there can be no doubt that § 411(a)(2) does not protect a union member from the consequences of his own willful circularization of untrue statements. Thus, a union rule restricting this practice cannot be considered unreasonable. Cf. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 55 , 86 S.Ct. 657 , 15 L.Ed.2d 582 (1966) (determining that, in the context of national labor policy, a district court has jurisdiction to entertain a civil action for libel instituted under state law by a party to a labor dispute).

The fundamental purpose of labor unions also supports the reasonableness of Article 78. Implicit in all phases of labor organizations is the hallowed workers’ proclamation “In union there is strength.” *392 The keystone of our national labor policy was articulated in the National Labor Relations Act of July 5, 1935, ch. 372, § 1, 49 Stat. 449 (the “Wagner Labor Act”), and repeated verbatim in the Labor Management Relations Act, 1947, 29 U.S.C. § 141 et seq.:

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. 14

29 U.S.C. § 151 . The Wagner Labor Act also stated:

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wages rates and working conditions within and between industries.

Ch. 372, § 1, 49 Stat. 449 . Finally, the Labor Management Relations Act states:

Experience has proved that protection by law of the right of employees to organize and bargain collectively ... re-stor[es] equality of bargaining power between employers and employees.

29 U.S.C. § 151 . Thus, we must recognize that the fundamental purpose of the United Transportation Union Local # 60 was to permit members to organize and bargain collectively for terms and conditions of employment in order to offset the economic, social and political power of employers.

In sensitive collective bargaining with employers and in processing grievances, the unified front of the union is of paramount importance. It is therefore a desirable objective to promote harmony and minimize acrimony within the ranks: A union is not an academic debating society; it is a formal democratic association of fellow workers founded to implement the “practice and procedure of collective bargaining.” 29 U.S.C. § 151 ; Wagner Labor Act, ch. 372, § 1, 47 Stat. 449 .

The prohibition of the commission of deliberate falsehoods by one union member against another helps, to insure maximum harmony and thus to produce unity within the union. It serves the salutary purpose of minimizing dissension, disharmony and internal conflict within a labor *393 organization whose effectiveness in bargaining collectively or processing grievances is calculated on unity of action. Article 78, exactly this type of prohibition, therefore implements the aims and objectives of labor unions as protected by precepts of a national labor policy in force for well over half a century.

To suggest as do the Appellants that Article 78 is illegal on its face is a concept that flouts the basic precepts of organized labor and free speech rights. To encourage willful circulation of untrue statements within a union is to generate dissension and disharmony within the union’s rank and file, weaken the union’s effectiveness and play into the hands of those segments of society that have steadfastly opposed and battled the legitimacy of organized labor and collective bargaining, all of which have been hallmarks of our national labor policy at least since 1933 and 1935.

Accordingly, I would hold as a matter of law that Article 78 is one of the “reasonable rules” that a union may adopt in accordance with § 411(a)(2). Thus, in my view, any nebulous, so-called chilling effect of Article 78 is insufficient to create a justiciable controversy.

IV.

The majority determines that certain precedents of this court dictate that Appellants’ case is still alive because Appellants asserted declaratory and equitable claims in addition to their claims for monetary relief. See Maj. Op. at 383-84 (“[W]e view our decisions in Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228 (3d Cir.1981) and Semancik v. United Mine Workers of America District # 5, 466 F.2d 144 (3d Cir.1972) as requiring that his claim for declaratory and injunctive relief be heard.”). An examination of these cases indicates that they constitute no meaningful authority for the majority’s attempt to breathe life into this moribund case.

A.

In Mallick , we determined that “[h]ann to free speech rights ... is not measured solely in economic terms, nor must concrete punishment be meted out to confer standing to sue.” 644 F.2d at 235 . We then explained: “The right to speak one’s views is so fundamental that the spectre of punishment, or the uncertainty created by a vaguely worded prohibition of speech, is injurious as well.” Id.

In discussing Mallick , the majority states:

We noted that the mere fact that the members were charged, as well as the possibility of future charges based on the challenged prohibitions, could have a substantial chilling effect on plaintiffs’ and other union members’ exercise of their free speech rights: “The goal of union democracy, achieved through the expression of opposing viewpoints, would be difficult to realize if members felt deterred from expressing their opinions by the prospect of disciplinary proceed ings."[Mallick, 644 F.2d] at 236. Accordingly, we remanded for the district court to consider whether the provisions at issue violated § 411 of the LMRDA. Id.

Maj. Op. at 386-87. This intimates that the only injury suffered by the Mallick plaintiff union members was the chilling of their free speech rights. In fact, in Mal-lick, there was substantial economic injury averred as well as “the spectre of punishment” for engaging in protected activity. For example, the Mallick plaintiffs alleged harassment for talking to newsmen and communicating with the National Labor Relations Board, Congressmen and Labor Department officials. They also claimed retaliation by the union in the form of less desirable job assignments. We stated that “[t]hese claims of emotional distress and economic injury were deemed sufficient to support damage awards by the jury, and they confer standing to challenge the validity of a union constitution which was in *394 voked to punish them for protected conduct.” Mallick, 644 F.2d at 236 .

Here, by contrast, there are no allegations of economic injury qua membership in the union. The allegations of injury are insufficient to satisfy even the lenient requirements of standing for a § 411(a)(2) claim. There was only one charge brought against Ruocchio and, as detailed in great length above, see supra Part III, it was for unprotected speech. See Linn, 383 U.S. at 63 , 86 S.Ct. 657 (“[T]he most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.”) (emphasis added); Garrison, 379 U.S. at 75 , 85 S.Ct. 209 (“[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.”); New York Times, 376 U.S. at 279-280 , 84 S.Ct. 710 (holding that the First Amendment does not shield the publication of defamatory falsehood made with actual malice). Ruocchio’s temporary removal from office, and any economic loss he suffered as an officer is not an injury that may be recouped under the LMRDA and thus is also insufficient to confer standing. Harrison, 518 F.2d at 1281 . The only remaining allegation of injury is Appellants’ assertion that their speech has been “chilled.” To consider this bald allegation sufficient to confer standing under the LMRDA is to eviscerate the entire concept of standing in the free speech context.

The majority believes that the material facts of this case and those of Mallick are identical or substantially similar. This suggestion does not reflect the complete material or adjudicative facts in that case. As stated above, the Mallick plaintiffs were charged for clearly protected activity and received less desirable job assignments.

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.

Allegheny General Hospital v. Nat’l Labor Relations Bd., 608 F.2d 965 , 969-970 (3d Cir.1979) (footnote omitted and emphasis added). Mallick does not qualify as a legal precedent for this case because the basic differences in material or adjudicative facts outweigh the resemblances to qualify it as a proper analogy.

B.

Nor may Appellants find support in the teachings of Semancik . At issue in Sem-ancik was Article X, Section 10 of the United Mine Workers constitution, which provided in part:

[A]ny member or members resorting to dishonest or questionable practices to secure the election or defeat of any candidate for district office shall be tried by the district executive board and fined, suspended or expelled as the magnitude of the transgression may warrant.

See Semancik, 466 F.2d at 147 (emphasis added). We held that Section 10 “presents a threat and obstacle to free speech because it is so vague and ill-defined that whenever a union member might exercise the right guaranteed to him under the LMRDA, he is in peril of violating the provision. In response to such a union rule, a reasonable man might well refrain from taking full advantage of his rights.” Id. at 153-154 .

I am unwilling to equate the “vague and ill-defined” Section 10 with the clear and unambiguous terms of Article 78, which prescribes penalties for any member who “willfully circularizes untrue statements.” The average union member would certainly understand what is meant by “untrue statements” or “circularizes.” This is a far cry from the obtuse expressions in Seman-cik: “dishonest or questionable practices.” Nor can we fault the use of the word “willfully,” in the sense that this means intentionally or knowingly as distinguished from accidentally or negligently. Were we *395 to hold otherwise, hundreds of federal criminal statutes in Title 18 of the United States Code would suffer the same lethal fate. I therefore have no difficulty in distinguishing Article 78 in this union’s constitution from the condemned Article X, Section 10 in the United Mine, Workers constitution in Semancik .

Nor does the following portion of the Semancik opinion, relied upon by the majority, give effective support to its theory:

[CJourts have responded by making clear that labor organizations properly exercise their disciplinary powers only over a limited area of proscribed conduct inimical to the union as an entity and the collective bargaining mechanism. Unless statements fall into these categories, they are protected from union action even if libelous.

Id. at 153 , quoted in Maj. Op. at 387. Consistent with Semancik , Article 78 does prohibit “conduct inimical to the union as an entity and the collective bargaining mechanism.” As stated in detail above, see supra Part III, the mantra of organized labor is “In union, there is strength.” By proscribing the willful circularizing of untrue statements, Article 78 serves that purpose by minimizing acrimony and promoting harmony within the ranks.

Moreover, notwithstanding the quoted language of Semancik , the reference that statements of union members are protected from union action “even if libelous” is simply not a correct statement of ruling Supreme Court case law. This proposition flies in the face of the unambiguous holding of the Court in Linn :

[T]he most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in any context. After all, the labor movement has grown up and must assume ordinary responsibilities. The malicious utterance of defamatory statements in any form cannot be condoned, and unions should adopt procedures calculated to prevent such abuses.

383 U.S. at 63 , 86 S.Ct. 657 (emphasis added). Accordingly, the teachings of Semancik do not support the existence of a justiciable controversy in this case.

C.

Therefore, the two major cases that form the linchpin of the majority’s opinion do not support their conclusions. Moreover, acceptance of the notion that any union member who is charged with violating Article 78 — without proof of actual financial injury or of the deprivation of the right to vote, to discuss union matters or to hold office — may bring an action in federal court to challenge the legality of the Article will generate a state of labor union disruption that will hail unions, their members and their officers into federal court every time any disciplinary rule of a union is invoked by a member, officer or committee against another, under the guise that merely initiating an internal union proceeding, in and of itself, violates a member’s “right to meet and assemble freely.” This certainly does not promote union democracy, nor does it promote unity and harmony within the rank and file. Although I am absolutely convinced that my distinguished colleagues certainly did not so intend, the effect of them holding is to weaken and undermine labor union effectiveness as envisioned and protected by our national labor policy.

V.

In sum, the abstract injury asserted by the Appellants — the right to be free from any application of Article 78 to them — does not meet the threshold requirement that “[a] plaintiff must always have suffered a distinct and palpable injury to himself that is likely to be redressed if the requested relief is granted.” Gladstone, Realtors, 441 U.S. at 100 , 99 S.Ct. 1601 (internal citations and quotations omitted).

Because Article 78 is reasonable as a matter of law, it is impossible to discern *396 how Appellants sustained the necessary injury entitling them to an injunction restraining the future operation of the article. Appellants were not prevented from criticizing union policies or from mounting effective challenges to union leadership. They were not denied an opportunity to work. They were not denied the opportunity to express any views, arguments or opinions or to express at all meetings of the labor organizations their views of candidates in an election of the labor organization or of any business properly before the meeting.

Rather, Ruocchio was precluded only from “willfully circularizing untrue statements.” As punishment for his alleged violation of Article 78, he was not expelled from membership; he was denied only the opportunity, for several months, to exercise his office as treasurer. On appeal after trial, he was restored to his office with all full privileges and rights. The only injury he sustained was his temporary removal from office. Because this was an injury as an officer and not as a member, the LMRDA does not afford relief.

Accordingly, I dissent and would affirm the judgment of the district court for the foregoing reasons.

. National labor policy was first announced in the National Industrial Recovery Act of 1933:

Sec.7. (a) Every code of fair competition, agreement, and license approved, prescribed, or issued under this title shall contain the following conditions: (1) That employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) that no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing; and (3) that employers shall comply with the maximum hours of labor, minimum rates of pay, and other conditions of employment, approved or prescribed by the President.

National Industrial Recovery Act of 1933, ch. 90, § 7(a), 48 Stat.195, 198 (1933) (held invalid by A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837 , 79 L.Ed. 1570 (1935)).