Oral argument — Benoit Brookens v. Larhonda Gamble

v. AFL-CIO, et al., and case number 21-7020, Benoit Brookens appellant v. Dino Drudy, et al. Mr. Brookens for the appellant, Benoit Brookens. Mr. Harris for the appellees, Larhonda Gamble and Dino Drudy. Mr. Serino for the federal appellees. Mr. Brookens, you have the floor. Thank you. Mr. Brookens, please proceed. Mr. Brookens, I think you might be on mute. Can you hear me now? Yes. Thank you. This case is about whether the district court enforce a statute that was aired in its reading of the statute 20-9 USC 419412. It's cited, fortunately, in the appellee federal's brief at the addendum page 37. The operative words are, any person whose rights secured by the division of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such release, including injunctions as may be appropriate. With this provision, it started in the election and so the question is, Mr. Brookens voting rights and the primary action started in the 2018 election for national president at the AFG 2018 convention. As a consequence of that, two actions which are not related, they are related but not related, two candidates who were running, one was the treasurer for AFG and he decided to break ranks with the president and decided to break and run for president himself. The second one was the president of local 12 where I was based. He decided after he had settled an $8 million class action overtime lawsuit that he looked like he was going to be a candidate for president for the AFG and he said if you don't run for president for the AFG and you win or get a settlement, you are going to be telling everybody. The national union decided to put local 12 into trusteeship and that infringed on my voting rights. As John Lewis says, voting is your primary nonviolent tool. I filed my own civil action instead of filing the federal action . You are violating my rights. The district court issued an opinion in which it set forth its analysis of the statute you were relying on as well as an alternative. It said you were mistaken because that statute simply did not authorize the district court to proceed as you wished it to. You have to point out that the district court's legal analysis was incorrect. Why do you say it is incorrect? I think the reason is that I tried to identify cases where the same issue arose with other union participants in this district. There were several cases where union persons who were challenging actions to infringe on their rights at the local level or at other council levels. You understand that the binding precedent comes from the circuit and not the district. We have held evidence that where you have a mixed parent but a government only affiliate, the affiliate is not within the jurisdiction given the court under the statute. Is that not correct? My understanding is that if the law is based on arguments that this court has put out, if you have a subordinate to a mixed parent, then under several theories, the mixed subordinates are also covered by the federal statute. This is a government only subordinate? I'm so sorry? This is a government only subordinate? For local 12, it is only a government subordinate. Once you look at if there are regulations that say we are changing our strategy or theory, it is a government only subordinate. Let me break it down into two parts. In arguing for the district court, I tried to stick strictly with what this court had to say about this issue. The cases that were relied on by this court in addressing those particular issues. It is a two-part approach. I cannot expect this court at the trial level to get any other interpretation other than what this particular court has to say. At the same time, the other jurisdictions have come to the same conclusion. If you have a mixed parent or mixed intermediary, they are covered. I did cite that in talking about my issues with the Dean of Duty case where you do have other mixed parents that are involved in the process. They would be covered by virtue of the fact that their parent is covered by this particular statute. At the same time, you look at the government trying to say the Labor Department has changed the regulations that support positions but they have adopted the rationale for another jurisdiction saying what we are trying to do is make sure these subordinates are included. A union member in a different area be covered by this particular statute and protected by it. That is what we are trying to do. that we are doing the right thing. With respect to your claims against the Council officials, do you have an intention to run again for election? Are you interested in again running for an election? The election that you originally brought the suit for is no longer one on which we could grant relief. I am sorry? I have been in the union 20 years and I am either running for an office or backing somebody who is running and they understand I have a vote. I have been on this Council for at least 20 years. I have rotated on. There are three different Councils. I am running for office. I understand your argument that if you were precluded unlawfully from voting in the vote that has already taken place that result is invalid. Because your argument is you are entitled to vote and you would deny the right to vote. I am back to where Judge Santel asked you his question. We have this case that the district court relied on and that was decided in 1996. The district court looked at that and it determined in light of that that here is what it had to conclude and then it cited one of its own opinions. There was a question left open. You have to persuade us that the district court is a matter of law at least as to the statute under which you were seeking relief. I have not heard you do that yet. I think there are several items. First of all . Let me just point you directly to what I am concerned about. The district court says that a government only local or counsel is not engaged in an industry affecting commerce and therefore is not a covered labor organization. Isn't that correct? And he cites from other circuits. I think this is where you have the case of which is the same . This is where the labor department filed action against an intermediary counsel. I think it is Texas. The circuit court for Texas. I should cite it on my brief. That is a state court, correct? No, it is a federal court. It is a district court. What circuit? Child v. Remington . I cite it on my brief for gamble . What circuit? What circuit court of appeals? I did not put that on my brief. Bremerton . I'm sorry. Ninth circuit. It is on page 3 of my brief for Judy. This is where . We are not bound by the ninth circuit. Go ahead. What the district court did was look at the plain text of the statute and looked at our opinion and looked at what some other circuits had held and determined that the nature of the entity which you were focusing was not covered. Period. And the language I read that under this statutory scheme , government only local or council is not engaged in an industry affecting commerce. Therefore, it is not a labor organization under the statute on which you are relying. I think that is why the labor department and I cited their regulations . The regulations can't go contrary to the plain text of the statute. Your Honor, the labor department has interpreted their regulations consistent with the particular language of the statute we are talking about is section 412. It is a broad statute. The regulations that the labor department had promulgated over the last 20 years , they said we are going to adopt the interpretation for the Bremerton case because it fits with what the statute we are trying to accommodate. I am not into a debate with the Department of Labor . The issue is that they are affecting my particular voting rights. I am taking action to protect my voting rights. To give me the right to vote the day before the national convention is not helpful. I may want to run. That infringes on my rights. At the same time, I was elected to the council one. She is a delegate. I am on the council for a couple of years. I decide I want to run for president. The district court knows that you do cite a fact sheet posted on the Department of Labor website about whether a local union or parent body represents any private sector employees . Your complaint is covered by the Lambda. The district court says whatever authority value this document has , it is fully consistent with the district court's interpretation of that statute. That is explained by the fact sheet that if Brookings claims that a mixed union violated certain rights , then Lambda might apply. This case involves the conduct of local 12 . I understood the court to look at what the Labor Department had decided and determined that the district court's conclusion was consistent with that. Not contrary to it. I think the bottom line is what actually did the Labor Department decide to do? Being a union member, we have union people who are very confident in the unions . The issue is the Labor Department has taken the position to support and enhance its position in the child versus remittance case. They have developed regulations to support that. The government , probably somebody in the Labor Department in one of our union meetings could tell us what the authority is . It is not tying people up on these kinds of issues. As you pointed out, I tried to be very careful and cite to this court the authority it has and the regulations I have identified. In terms of the regulations , the Department of Labor put out regulations , they rescinded them and reimplemented them again to support my position. The Labor Department , the office of labor management standards has adopted my position. It is not based on a decision from this court. Sorry, Your Honor. Why don't we hear from counsel for some time to respond. Yes, Your Honor. Mr. Harris. May it please the court , the American Federation of employees in case number 215049 and in case number 21-7020. Thank you, Your Honor. To begin, to address Mr. Brookings , I want to be clear that this court , the precedent is clear by Wildberger and also Diven , that a government only union, whether it is federal, state or municipal, is not covered under the LMRDA. In 1994, that was the case regarding Metro employees . It is clear that the Department of Labor's regulations at the time this complaint was filed and today are consistent with the plain text of the statute, which specifically excludes wholly government only unions from coverage under the LMRDA. If I can ask you, I think that seems absolutely clear with respect to something like local 12, but what about the council, which is an intermediary organization? The statute says a labor organization shall be deemed to be engaged in an industry affecting commerce if it is a conference, general committee, joint or system board or joint council subordinate to a national or international labor organization . I'm sorry, I'm losing my place. The statute discusses intermediary organizations. Why isn't the council here an intermediary organization? Even if the council is an intermediary organization, it is still wholly and solely government only union. There are no private sector employees and there is no case that I am aware of that has held that except potentially the Ninth Circuit case , the child versus Birmingham case. That case, frankly, in the union's opinion, is wrongly decided. I will note that this court itself has questioned the reasoning in the child versus Birmingham case in the Alabama education association versus child, where this court acknowledged that most likely the education associations had a better reading of the statute than the Department of Labor at the time. The regulation , I will add to the regulation that Mr. Brookings is referencing, that regulation was rescinded. It is no longer in effect. It was rescinded in 2010. It hasn't been in effect since then. The current regulation is the one that has been in effect for 40 years prior to the one issued in 2002. Intermediate labor organizations are not covered under the LMRDA. The Department of Labor has changed its position on that view across different administrations. It has changed its position once and currently before this court, the position is that an intermediate organization is not covered under the LMRDA. This regulation is not under review before this court in terms of whether that proposed regulation is applicable. I will also add that Mr. Brookings raised these arguments. He never raised the rescinded regulation from 2002 before the district court. He never raised the proposed regulation from 2019 until his reply brief before this court. We would assert that those issues have not been preserved for review by this court. This court should not give any weight to that. In short, your position would be that the determining factor is not whether it is an intermediate level, but whether it is all government. Council here is all government, right? That is correct, sir. They are only government unions and government employees. The statute is clear at 29 U.S.C. 42E that it defines employer and it specifically excludes U.S. government or any state or political subdivision thereof. It defines employees at 29 U.S.C. 402F as any individual employed by an employer. The statute is clear that it does not apply. There is no allegation or dispute that Council 1 or Local 12 are not solely government employees. It is clear from the record that they are. Mr. Harris, has this court ever held clearly that an intermediate organization that wholly involves government employees is not covered by the LMRDA? I am not sure that this court has held that. I have a specific case that an intermediate organization is not covered. I would add before my time concludes that this court has held that even if it was a mixed union, it has affirmed the district court's decision that a mixed union that is a federal sector union is not covered by the LMRDA because of the preemptive effect of the Civil Service Reform Act. The court most recently affirmed that in the case of Westlaw , from 2019, it held that the site is 2020 Westlaw 3035039 at 5. It held that even though AFGE was sued, the national, and even though it is a mixed union, it said that because of the preemptive effect of the CSRA, it is not covered by the LMRDA. The union appellees would also argue that because of the sui generis nature of federal sector unions, they are not covered, whether it is the national level, the intermediate level, or the local level because of the preemptive effect of the CSRA. This court has repeatedly held most recently in Trump versus AFGE that the CSRA preempts employees claims. And union claims. I don't have the preemption argument if we are satisfied that the all government nature of the intermediate precludes its coverage. That is correct, Judge. I see that my time has expired but I am happy to address any other questions that the court may have. Thank you. Thank you. The assistant U.S. attorney. Good morning, your honors. I represent the federal appellees in case number 215049. The remaining claim against the federal labor management reporting and disclosure act. The district court correctly concluded that it did not have subject matter jurisdiction over this claim. This is because Congress has not expressly waived the government's sovereign immunity with respect to claims under the statute. The labor management reporting and disclosure act authorizes suits against labor organizations and not the employer, which is what the Department of Labor is here. So there is no basis for subject matter jurisdiction. Your honors, the only other point is that Mr. Brookings opening brief did not even address that the United States was subject to suit under the labor management statute, nor has Mr. Brookings responded to any of the federal appellees arguments on sovereign immunity issue. And so that point should be deemed to have been abandoned or otherwise forfeited. Mr. Brookings reply states that his primary argument for jurisdiction is based on an interpretation of some proposed regulations, but he had he waived that argument by not raising it before the district court, as he admits in the reply brief. The bottom line, your honors, is that Mr. Brookings has not even argued, even during his presentation this morning, that the federal government is subject to suit under the labor management reporting and disclosure act. So there's no reason to disturb the conclusion that the district court lacked subject matter jurisdiction over Mr. Brookings claims against the federal appellees. And so the district court's judgment should be affirmed. And if the court has questions, if the court has no further questions, we'll rely on the arguments in our brief and ask that the court affirm the district court's judgment. Thank you. All right. Mr. Brookings, do you want to take a few minutes to respond? Hi, Mr. Brookings, we cannot hear you. Are you on mute? Okay. Can you hear me now? Yes. Yes. Okay. The federal government is probably the main culprit in this whole operation. The federal government has no... That's not the issue before us, is it? The question is... No, no, no. The issue is my right to vote. Did the district court have jurisdiction over your complaint? Yes. The statute provides any person who has a... I'm going to say a right to vote can raise the issue in federal court. And for me, the issue is my ability to vote. Now, the problem with the federal authorities is that they are assisting the union improperly by keeping me from attending union meetings. I can't attend... Go into the building. I can't go to meetings and these sort of things. My colleagues like who got cases at the court of appeals, Mr. Bastani and Ms. Nguyen, we can talk about these things. And the federal authority, because of the power of the security officer, which has no interest in our being able to talk and discuss and to look at these issues is preventing me from coming into the buildings and talking with other people and to vote in union meetings. In-person voting meetings, unfortunately for COVID, I would be able to go to the meetings. They can vote things just like the union gave me the opportunity to vote in the... 2018, I was certified to vote. And so I can come into buildings and confer with people. And although this hearing has excluded other issues, but that's the main thing that's not excluded. If it was the fact that the federal authorities are preventing the... are supporting the union, then I would be able to be able to participate. I would be able to run... The last election is over. I would be able to vote on the contract. I would be able to talk to my colleagues about what our positions are. And that's all has been done. And this court... And this court... I've been very careful to cite to this court the fact that the labor department took the same position against a similar council somewhere else because they... And so... And I did bring to attention... attorney from the Department of Labor. What's the status of the regulations? The Labor Department has obviously flipped over and adopted... The council said for 40 years they interpreted it this way. No, they've now moved to the other side. And they've now adopted a new form of intermediate union and local unions as being covered by this statute. And... So there's no way around it. All right. So I think we have your argument. Is there anything else? No, Your Honor. Thank you very much. We will take the two cases under advisement.