Petition for Writ of Certiorari — Benoit Brookens, Petitioner v. LaRhonda Gamble, et al.

No. 22*_

loi

AUG 2 5 2022

IN THE SUPREME COURT

OF THE UNITED STATES

nPFICE OF THE CLERK

Benoit Brookens,

Plaintiff

v.

LaRhonda Gamble, et al

Defendants

and

Benoit Brookens,

Plaintiff

v.

Dino Drudi, et al

Defendants

On Petition for a Writ of Certiorari

To the United States Court ofAppeals

For the District of Columbia

PETITION FOR A WRIT OF CERTIORARI

/■

Benoit Brookens

P.O. Box 2551

Washington, DC 20013-2551

301/346-5458

Brookensb@vahoo.com

Pro Se

received

SEP - 7 2022

f

j

QUESTION PRESENTED

The Labor-Management Reporting and

Disclosure Act (LMRDA) expressly provides any

person whose rights are infringed by any violation of

the subchapter may bring a civil suit in a district

court of the United States for such relief (including

injunctions) as may be appropriate. Such action

against a labor organization shall be brought in the

district court where the alleged violation occurred, or

where the principle office of the labor organization is

located. 29 U.S. C. Sec. 412.

The Court of Appeals for the District of

Columbia Circuit rejected this requirement. The

Court adopted the district court’s holding held that

Section 402(e) “excludes the United States or any

corporation wholly owned by the United States or

any State or political subdivision thereof,” from its

definition of “Employer.” Sec. 402(e). The DC Circuit

held that because Local 12 and Council 1 are

composed exclusively of government employees the

district court rightly dismissed Brookens’ claim. The

D.C. Circuit further factually erroneously held that

to the extent Brookens contends that Council 1

unlike Local 12 is a “joint council” Sec. 402(i) the

argument was forfeited because it was not raised in

the district court.

The question presented is:

Whether the DC Circuit is bound by the

Federal Regulation 29 CFR 458.1 General Subpart

A-Substantive Requirements interpreting 29 U.S.C.

Sec. 411 Concerning Standards of Conduct. The

regulation state that “unless otherwise provided in

ii

this part or in the CSRA or FSA...any term shall

have the meaning that term has under the LMRDA ”

“In applying the standards” whether the Court as

well as “the Director shall be guided by the

interpretation and polices followed by the

Department of Labor in applying the provisions of

the LMRDA and by applicable court decisions ”

___ j

iii

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE

STATEMENT

Petitioner Benoit Brookens is a retired

member of the America Federation of Government

Employees (AFGE), Local 12, U.S. Department of

Labor, Headquarters, on behalf of himself.

Respondents are Dino Drudi, Frank

Silberstein, and Gina Walton in their capacity as

AFGE, Regional Council of Washington, DC Area

and Federal and D.C. Government Labor Unions

(Council l), Election committee;

AFGE, Local 12, Headquarters union for the

U.S. Department of Labor, unincorporated

associations; LaRonda Gamble, President of Local

12, AFGE;

Martin J. Walsh, Secretary , U.S. Department

of Labor, in his official capacity; Kenneth Deane,

Director of Security, U.S. Department of Labor, in

his official capacity.

There are no corporations to disclose under

Rule 29.6

RELATED PROCEEDINGS

This case arises from the following

proceedings;

iv

Benoit Brookens, v. Gamble, et al., No. 2T

7020,( District of Columbia Cir.) filed May

31, 2022; and

Brookens v. Drudi, et al., No. 21*5049

(District of Columbia Cir.) filed May 31,

2022.

There are no proceedings in state of federal

trial or appellate courts, or this Court, directly

related to this case under Supreme Court rule

14.l(b)(iii).

TABLE OF CONTENTS

1

QUESTION PRESENTED.................

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE......

111

STATEMENT..........................................................

u

RELATED PROCEEDINGS.......................... *.......

in

TABLE OF CONTENTS..................................... -

v

TABLE OF AUTHORITIES...................................

v

CASES

Abrams v. Carrier Corp. 361 F.2d 137 (1966)(2nd

Cir.) (NY) .............................................................., 8

Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d

198 (3rd cir.).........................................

Brookens v. Drudi et al. No. 21*5049 (D.C. Cm.) May

31 2022

........................................................ .

Brookens v.’ Gamble et al. No. 21-7020 (D.C. Cir.)

May 31. 2022..................................................

Brookens v. Drudi et al D.C. District Court, 20 cv

695 (CRC), October 5, 2020............ -........................

Brookens v. Gamble et al D.C. District Court, No. 20*

cv-1740 (CRC), Decision Oct. 19,

2020.......................... ........

Celli v.Shoell, 40 F.3d 328 (10th Cir. 1994)............. 8

Hawaii Gov’t Employees Ass’n Local 152

v. Martoche 915 F.2d 718 (D.C. Cir. 1990).............. 0

Hester v. International Union of Operating Eng*rs

818 F.2d 1537 (11th Cir. 1987)............... .................. 8

Martinez v. AFGE, 980 F.2d 1039 (5^ Cir.) 1993... 8

vi

Natural Resources Defense Council Inc. 476 U.S. 837

(1984)

Thomas v. Penn. Supply and Metal Corp. E.D. Pa.

1964, F.R.D. ??4

Universal Camera v. NLRB 340 U.S. 474 (1951)...... 4

vii

Wildberger v. AFGE, 86 F.3d 1X92..............

5

Zamora v. Massey-Ferguson Inc S.D. Iowa,

336 F. Supp 885 (1972)................ ................

10

STATUTES AND CONSTITUTIONAL

PROVISIONS

i,6

i,6

29 U.S.C. Sec. 402(e).....

29 U.S.C. Sec. 402(i)......

29 U.S.C. Sec. 411.........

29 U.S*C. Sec. 412...... .

29 U.S.C. Sec. 482.........

i, 1,5,6

10

REGULATIONS

29 CFR 458.1.....

29 CFR 458.4.....

i,1,2,7

.10

FEDERAL REGISTER

45 FR 15158, Mar. 7,1980

50 FR 31311, Aug. 1,1985,

71 FR 31492 Jun. 2, 2006..

71 FR 31,929 Jun. 2, 2006.

78 FR 8026, Feb. 5, 2013...

.1,11

3

3

10

5

..[.3]

OTHER AUTHORITIES

DOL Website, Plaintiff’s Reply 3 ( ).........

Understanding Labor Law, Douglas

Ray, 4* Ed. (2014, p. 31..............................

4

4

Taft Harley Act of 1947..............................

PETITION FOR WRIT OF CERTIORARI

1

viii

OPINIONS

BELOW.....

:i

JURISDICTION

1

STATUTORY PROVISIONS INVOLVED

1

STATEMENT.................................

I.

FEDERAL REGULATORY

BACKGROUND............................

3

4

II.

5

PROCEEDINGS BELOW,

REASONS FOR GRANTING THE PETITION

.6

THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT..

6

CONCLUSION...

APPENDIX A:

Court of Appeals, En Banc

(May 31, 2022)..................

la

APPENDIX B:

Court of Appeals Opinion

(March 28,).....................

3a

APPENDIX C:

District Court Order Regarding

Drudi Motion to Amend

(January 26, 2021)............. .......

6a

ix

APPENDIX D:

District Court Order Regarding

Gamble Motion to Amend (January 26, 2021) a

APPENDIX E:

District Court Judgment

-Drudi

(October 5, 2021)............

15a

APPENDIX F:

District Court Judgment

Gamble

■ (October 19, 2021)...........

26a

APPENDIX G:

Statutory Provisions Involved

...50a

APPENDIX H:

Regulatory Provisions Involved

54a

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Benoit. Brookens respectfully

petitions this court for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia.

OPINIONS BELOW

The court of appeals’ opinion (App. Ba3) is not

repoi'ted. The relevant opinions of the district court

are at (App.Eal5l Druidi) and (App.Fa2QlGamble).

JURISDICTION

The judgment of the court of appeals was

entered on May 31, 2022. App. Ba3 on March 28,

2022. Rehearing was denied en banc May 31, 2022

App. Aal).'

STATUTORY PROVISIONS INVOLVED

The Supremacy Clause of the U.S.

Constitution (art. VI, cl.2) provides in part that “the

laws of the United States... shall be the supreme law

of the land.” The relevant part of the LaborManagement Reporting and Disclosure Act is

reproduced at App. Ga26 and the relevant

Regulation Standard of Conduct, 29 CFR Part 458 is

reproduced at App. Ha50).

The jurisdictional statute in question reads as

follows-

2

29 U.S. Code § 412 - Civil action for infringement of

rights; jurisdiction

Any person whose rights secured by the provisions

of this subchapter have been infringed by any

violation of this subchapter may bring a civil action

in a district court of the United States for such relief

(including injunctions) as may be appropriate. Any .

such action against a labor organization shall be

brought in the district court of the United States for

the district where the alleged violation occurred, or

where the principal office of such labor

organization is located.

(Pub. L. 86-257, titled, § 102, Sept. 14, 1959, 73 Stat:

523.)

The interpretive regulation reads as follows:

29 CFR PART 458-STANDARDS OF CONDUCT

Subpart A-Substantive Requirements Concerning

Standards of Conduct

Sec. 458.1 General

The tern LMRDA means the Labor-Management

Reporting and Disclosure Act of 1959, as amended

(29 U.S.C. 401 et seq.). Unless otherwise provided in

the part or in the CSRA or FSA, any term in any

section of the LMRDA which is incorporated into , this

part by reference, and any term in this part which is

also used in the LMRDA, shall have the meaning

which the term has under the LMRDA, unless the

context in which it is used indicates that such

3

meaning is not applicable. In applying the standards

contained in this subpart the Director will be guided

by the interpretations and policies followed by the

Department of Labor in applying the provisions of

the LMRDA and the applicable court decisions.

[45 FR 15158. Mar. 7, 1980. Redesignated at 50 FR

31311. Aug. 1, 1985, as amended at 78 FR 8026. Feb.

5, 2013]

STATEMENT

Federal law provides jurisdiction to the U.S.;

District Court to adjudicate allegations of violations

of union member Bill of Rights.

In the decision below the District of Columbia Circuit

adopted the District Courts determination that it

lacked jurisdiction to hear the proceedings brought

by Mr. Brookens or to grant the requested injunctive

relief. The D.C. Circuit determined that the Labor

Department’s expansive regulatory interpretation

was not raised in the District Court (Gamble) or that

statutory requirements were not met as provided by

U.S. Department of Labor Regulations (Drudi).

The district court opinion, as a factual matter,

provides otherwise:

App. [

]

Brookens also cites a fact sheet posted on the

DOL website, which advised federal employees^

4

If the union that you allege violated

your rights (whether a local union or a parent

body) represents any private sector employees,

your complaint is covered by the LMRDA[J

Pl.’s Reply 3. (Att.

I.

FEDERAL REGULATOR BACKGROUND

A. Under predecessor labor legislation, prior to

evolving to where it is today, amendments by the

Taft-Hartley Act of 1947 provided the framework to

this litigation and the court’s review of factual

findings by an agency. Universal Camera v. NLRB,

340 U.S. 474 (1951). The result was “full blown

judicial recognition in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc. [467 U.S.

837 (1984)1 where the court articulated a ride of

deference to administrative agencies on matters of

statutory interpretation-”1

The power of an administrative agency to

administer a congressionally created ...program

necessarily requires the formulation of policy and the

making of rules to fill any gap left, implicitly or

explicitly by Congress. Id. 31.

II.

PROCEEDINGS BELOW

A. Plaintiff sued Council 1 (Drudi) for disqualify his

Council 1 Presidential candidacy and LaRhonda

Gamble (Local 12 President, AFGE Local, for

rejecting his membership dues payments and the

1 Understanding Labor law, Douglas Ray et al., 4th ed. 2014, p. 31

5

Department of Labor Security Chief, Kenneth Dean,

for colluding with Ms. Gamble to block his access to

Local 12 membership meetings, on Federal

Government property, which could- by vote of the

entire Local 12 membership-resolve the membership

issue.

Mr. Brookens, in the alternative, sought resolution

by the U.S. District Court under 29 USC 412.

Relying on Wildberger, 86 F.3d at 1192. The district

court “noted that DOL regulations classify ‘locals

composed purely of government employees5 as

outside the LMRDA coverage). Mr. Brookens seeking

to sidestep this obstacle, according to the district

court, “cited Standards of Conduct for Federal Sector

Labor Organizations, 71 Fed. Reg. 31,929 (jun. 2,

2006)55 .

The district erroneously court found, and the issues

on appeal here that ‘DOL itself recognized in

promulgating that rule, federal-sector unions5

members are protected by the CSRA rather than the

LMRDA—and “[t]he SCTRA, unlike the LMRDA,

does not confer jurisdiction on Federal district

courts.” 71 Fed. Reg.at 31,939 ” (a-13)

REASONS FOR GRANTING THE PETITION

A.

THE QUESTION PRESENTED IS OF

EXCEPTIONAL IMPORTANCE

The D.C. Circuit’s failure to act, overturns decades of

valuable well settled, legal precedence agitating the

6

existing split in the Circuits on this private attorney

general like enforcement statute.

The Labor-Management Reporting and

Disclosure Act (LMRDA) expressly provides any

person whose rights are infringed by any violation of

the subchapter may bring a civil suit in a district

court of the United States for such relief (including

injunctions) as may be appropriate. Such action

against a labor organization shall be brought in the

district court where the alleged violation occurred, or

where the principle office of the labor organization is

located. 29 U.S.'C. Sec. 412.

The Court of Appeals for the District of

Columbia Circuit rejected this requirement, adopting

the District Court’s holding. The court of Appeals for

D.C. held that Section 402(e) “excludes the United

States or any corporation wholly owned by the

United States or any State or political subdivision

thereof,” from its definition of “Employer ” Sec.

402(e). the DC Circuit held that because Local 12

and Council 1 are composed exclusively of

government employees the district court rightly

dismissed Brookens’s claim. The D.C. Circuit further

erroneously held that to the extent Brookens

contends that Council 1 unlike Local 12 is a “joint

council” Sec. 402(i) the argument was forfeited

because it was not raised in the district court.

The question presented to the D.C. Circuit and

not addressed in its unpublished decision is the

inforce status of the applicable Labor Department

regulation*

7

29 CFR 458.1 General Subpart A-Substantive

Requirements Concerning Standards of Conduct

stating that “unless otherwise provided in this part

or in the CSRA or FSA...any term shall have the

meaning that term has under the LMRDA.” “In

applying the standards” whether the DC Circuit and

“the Director shall be guided by the interpretation

and polices followed, by the Department of Labor in

.applying the provisions of the LMRDA and by

applicable court decisions.”

The Labor Department has been long authorized to

interpret the LMRDA over which it has been

delegated regulatory responsibilities by the U.S.

Congress. The District Court has recognized this

adjudication resolving authority under section 412

even in cases involving alleged conspiracy theories

between the union and the employer. Abrams v.

Carrier Corp. C.A.2 (NY) 1966, 361 F. 2d 137, cert,

den. 91 S. Ct. 1253; 401 U.S. 1009, 28 L.Ed.2"d 545.

In Abrams, the only grounds to assert the court’

jurisdiction was the alleged conspiracy, unlike in the

Gamble case. In Zamora v. Massey-Ferguson, Inc.

S.D. Iowa, 1972. 336 F. Supp. 885, in comparison, the

district court recognized its jurisdiction to protect

employee statutory rights. Even for allegations of

conspiracy between the employer and the union,

jurisdiction was still held in the district court to hear

and resolve the dispute. Thomas v. Penn. Supply and

Metal Corp. E.D. Pa. 1964 35 F.R.D.17.

8

B. HEARING THIS CASE WILL RESOLVE A

SPLIT AMONG THE CIRCUITS.

The 11th Cir. was confronted with the issue of

whether the LMRDA covered mixed unions:

Addressing the question whether the

LMRDA covers mixed unions, the Eleventh

Circuit has read the Act’s definition of labor

organization "to include those associations of

workers that deal with any 'employer,' as

defined by the Act." Hester v. International

Union of Operating Eng'rs. 818 F.2d 1537,

1541 (llth Cir.), reh'g denied, 830 F.2d 172

(11th Cir. 1987), vacated on other grounds, 488

U.S. 1025. 109 S-Ct- 831. 102 L.Ed.2d

963. reaffdin pertinent part, 878 F.2d 1309,

1310 (llth Cir.1989), cert, denied, 494 U.S.

1079, 110 S.Ct. 1808, 108 L.Ed.2d 939 (1990).

Because the Act covers employees working for

private employers, the Eleventh Circuit

reasoned, unions representing private

employees as well as federal employees also

are subject to the Act. Id. Other circuits have

likewise applied the Act to mixed unions. See,

e.g., Celli v. Shoell. 40 F.3d 324. 327 (10th

Cir.1994); Martinez v. AFGE, 980 F.2d 1039.

1041-42 (5th Cir. 1993); Berardi v. Swanson

MemorialLodee No. 48. 920 F.2d 198. 201-Q2

(3d Cir. 1990). Although this circuit has not

explicitly addressed the issue, we have taken

approving notice of the Eleventh Circuit's

position. See Hawaii Gov't Employees Ass'n

Local 152 v. Martoche. 915 F.2d 718. 720 & n.

15 (D.C.Cir.1990) (holding that a nonprofit

educational organization was not a political

9

subdivision of state government and, thus,

was subject to the LMRDA). Because we think

the Eleventh Circuit's approach is consistent

with the Act, we agree with the district court

that the AFGE, a mixed union, is subject to

the Act.

The 11th Cir..further wrote, “[w]e also agree

with the district court that Wildberger does not lose

LMRDA protection merely because his local consists

only of government employees. Wildberger at 1192.

Eight years later, in 1998, Richard Taylor, a

federal employee, member of "Local 48” and a

delegate to biennial Bremerton Council election.

After Taylor was nominated for the position of

Bremerton Council vice-president, the Bremerton

Council president ruled that Taylor was ineligible to

run for vice president because his national union,

American Federation of Government Employees

(“AFGE”) was not affiliated with the Bremerton

Council. The Bremerton Council bylaws require

Bremerton Council affiliates to comply with the

Metal Trades Department constitution. The

Department constitution precluded any delegate

from holding office of the delegates national union

was not affiliated with and paid dues to the Metal

Trades Department.

The Secretary of Labor, in the district court,

sought to set aside the Bremerton Council election

under the LMRDA because of Taylor’s alleged

unlawful exclusion. 29 U.S.C. Sec. 482( c). The

Bremerton Council moved for summary judgment,

contending that it was not a labor organization

because as a joint council, it was comprises of local

10

unions, representing both public*and private-sector

employees. Bremerton Council contented that (1) it

was not subject to the LMRDA because it

represented only public-sector employees; (2) the

CSRA, 5 U.S.C. Sect. 7101-7135 preempts the

LMRDA when the latter is invoked by a federal

employee; and (3) the candidacy requirements—

affiliation by the national union with the Metal

Trades Department were reasonable. The district

court rejected the first two arguments and granted

summary judgment on the third. The Secretary

appealed, prevailing in the 9th Cir.

IN 2006, the Secretary of Labor, amended 29

CFR 458.4 Informing members of the standards of

conduct provisions. The section (a) stated “Every

labor organization subject to the requirements of the

CSRA, FSA, or the CAA shall inform its members

concerning the standards of conduct provisions of the

Acts and the regulations of the subchapter. 71 FR

31492, June 2, 2006 and amended at 78 FR 8026,

February 5, 2013.

This constituted the basis for the DOL web

site and Mr. Brookens presentation to the district

court “which advises federal employees' “if the union

that you allege violated your rights (whether a local

union or a parent body) represents and private sector

employees, your complaint is covered by the •

LMRDAtJ" P.'s Reply 3.

On this point the 9th Cir. and the 11th Cir. and

the trial court in the D.C. Cir. concur with Mr.

Brookens’ jurisdictional views under 28 U.S.C. Sec.

412, except in Mr. Brookens’ cases regarding Drudi

and Gamble.

11

RELIEF REQUESTED

This court is request to find as a matter of

law, the district court in Druid and Gamble has

jurisdiction under 29 U.S.C. 411 to adjudicate Mr.

Brookens’ claims and to grant all appropriate relieve,

including injunctive.

Respectfully Submitted,

Benoit Brookens