# Petition — United Steelworkers of America, Afl-Cio-Clc v. Edward Sadlowski and Ray Marshall, Secretary of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0003%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 977 ## Text i! FILED wr 64 3 NOV 2% 1977 a! IN THE neg SUPREME COURT OF THE UNITED STATES October Term, 1977 we Re ee: as + ite ~camervatice _ UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, Vv. EDWARD SADLOWSKI AND RAY MARSHALL, Secretary of Labor. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit BERNARD KLEIMAN MICHAEL H. GOTTESMAN 1 East Wacker Drive ROBERT M. WEINBERG Suite 1910 Bredhoff, Gottesman, Cohen Chicago, Illinois 60601 & Weinberg 1000 Connecticut Avenue, N.W. Washington, D.C. 20036 JAMES D. ENGLISH CARL B. FRANKEL Five Gateway Center Pittsburgh, PA 15222 - Attorneys for Petitioner ea i TABLE OF CONTENTS Page ORG Ieee GRAF SIS aS Oe ek wtas owiswe ds 0a | DESDE IE, dite 6:46 bc dis ep4.hnele F405 $0 ce esicas 2 QUESTIONS PRESENTED ..........cccccsccees 2 STATUTORY PROVISIONS INVOLVED ........ 3 STATEMENT OF THE CASE .....iccccccscccecs 5 REASONS FOR GRANTING THE WRIT ........ 12 I. The Statutory Preclusion Issue ............... 14 II. The “Common Benefit” Issue ..............-% 28 (1) Equitable Assessment ...............000: 32 C2) QR UID oc in cccccccccescesede 38 CONCLUSION Appendices: A. Opinion of the Court of Appeals, dated April 20, SUE. babs cbacadons ab baSssccnsdesescasebene te la B. Order of the Court of Appeals, dated June 3, 1977. 53a C. Memorandum and Order of the District Court, Gnas Benes EL, TEI oc cccccccccccisccccces 55a D. Magistrate’s Report and Recommendations, dated DURE Bly SOF, wadwedegeccccddsbuvesiccescetes 60a E. Order of the Court of Appeals “Sur Petition for Rehearing,” dated July 5, 1977 .............6.- 74a F. Order Extending Time To File Petition For Writ of Certiorari, dated September 23, 1977 ........ 76a il TABLE OF AUTHORITIES Cases: Page Alyeska Pipeline Co. v. Wildnerness Society, 421 U.S. ed | a Oe 12, 13, 28-33, 38-40 Calhoon v. Harvey, 379 U.S. 134 (1964) ........ 15, 36 City of Detroit v. Grinnell Corp., 495 F.2d 448 (2nd Cae. OOPS). onccbedaseccpccsecssissnsstuseones 8, 25 Dunlop v. Bachowski, 421 U.S. 560 (1975) .......... 15 F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116 (1978) ol ddhdbndwlch coves tr cadasediadedeieeds 24 Fleischmann v. Maier Brewing, 386 U.S. 714 (1967). 14, 17, 19-20 Hall v. Cole, 412 U.S. 1 (1973) ...... 14, 16, 17, 19-22, 32-35, 38 Hodgson v. Steelworkers, 403 U.S. 333 (1971) ....... 21 Lindy Brothers Builders, Inc. of Philadelphia v. Ameri- can Radiator and Standard Sanitary Corp., 487. F.2d at fo | PeerPrrriTrriririe: 7-8, 25 Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3rd Cir. | Pee TOPTUTTCCTENT ETE Tee TTT Tre 24 McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1976) .. 14, 39-40 Merola v. Atlantic Richfield Co., 515 F.2d 165 (3rd Cir. SOTRD vcvecnndhbussenacesevescdssaunpebeeenin 24 Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1973).. 17, 19, 38 Trbovich v. United Mine Workers, 404 U.S. 528 (1972) 2, 10, 13, 15, 17-19, 22-23, 27-28, 31, 33, 38 ill Page Usery v. Local 639, International Brotherhood of Team- sters, Etc., 543 F.2d 369 (D.C. Cir. 1976), cert. denied sub nom., local Union No. 639 v. Marshall, U.S. , 97 S. Ct. 1159, 51 L.Ed 2nd 573 (1977) .. 13, 17, 19, 22 Wirtz v. Bottle Blowers Assn., 389 U.S. 463 (1968) .... 15 Wirtz v. Laborers’ Union, 389 U.S. 477 (1968) ....... 21 Statutory Provisions United States Code: Judiciary Code, 28 U.S.C. § 1254(1) ............... 2 Labor Management Reporting and Disclosure Act of 1959: DORE Dees Or WN OEE oc ccecccsscccescs 21, 32 pecteam BGR, TD WIA BEES cc cccccsccccstccs 16, 20 Section 201(c), 29 U.S.C. § 431(c) .............. 16 Section 304(a), 29 U.S.C. § 464(a) .............. 16 Section 402, 29 U.S.C. § 482 ............ 3-5, 14, 15 Section 403, 29 U.S.C. § 483 .............. 5, 14, 15 Section 501(b), 29 U.S.C. §501(b) .............. 16 0 EEE SUPREME COURT OF THE UNITED STATES No. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, Vv. EDWARD SADLOWSKI AND RAY MARSHALL, Secretary of Labor. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit Petitioner United Steelworkers of America, AFL- CIO-CLC (hereinafter “petitioner” or “USWA”) re- spectfully prays that a writ of certiorari issue to re- view the judgment of the United States Court of Appeals for the Third Circuit entered in this case on April 20, 1977. OPINIONS BELOW The opinion of the court of appeals is reported at 554 F.2d 586 and is reprinted as Appendix A. A sup- plementary opinion by that court, issued in conjunction with the denial of petitioner’s motion for leave to file a petition for rehearing in excess of fifteen pages, is 2 unreported and appears as Appendix B. The opinion of the district court, and the opinion of the magistrate which was adopted by the district court, are unreported and appear as Appendices C and D respectively. JURISDICTION The Court of Appeals’ opinion issued on April 20, 1977. A timely petition for rehearing was denied on July 5, 1977 (Appendix E). On September 23, 1977, ' Mr. Justice Brennan extended the time for filing a petition for a writ of certiorari to and including No- vember 2, 1977 (Appendix F). The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). QUESTIONS PRESENTED 1. Whether a losing candidate in a union election who intervenes (in the limited fashion permitted by Trbovich v. United Mine Workers) in an action brought by the Secretary of Labor challenging that election under Title IV of the LMRDA, may secure a “common benefit” attorneys’ fee award against the union’s treas- ury, or whether such an award is inconsistent with, and therefore precluded by, the enforcement scheme of Title IV. 2. Whether a court of appeals, believing that private enforcement is integral to a statute’s effectiveness, may, in the absence of statutory authority to award fees, utilize the “common benefit” theory to stimulate private enforcement, despite the courts’ acknowledge- ment that most of the persons to be charged with the fee have not received a benefit of similar nature or value to that received by the intervenor and by a small minority of those to be charged, and despite the fact that those to be charged with the fee have not unjustly been enriched by the intervenor’s efforts. Specifically, in this case: Sea etied 3 a. In a Title IV action challenging an election in a union district containing 9% of the union’s mem- bers, where the only allegations of misconduct in the Secretary’s complaint concern actions of persons — within that district, and the only relief obtained is a re-run of the challenged election in that district, did the court of appeals err in holding that the “common benefit” exception could justify an attor- neys’ fee award to an intervening candidate against all the union’s members throughout the United States and Canada? : b. Where Congress has entrusted to the Secretary the exclusive responsibility for representing the in- terests of all union members in Title IV actions, can a benefit conferred upon those members by an in- tervenor in such an action constitute “wnjust en- richment” of those members as would be required for a “common benefit” award against them? STATUTORY PROVISIONS INVOLVED Section 402 of the LMRDA, 29 U.S.C. § 482, provides: (a) A member of a labor organization— (1) who has exhausted the remedies available under the constitution and bylaws of such organiza- tion and of any parent body, or (2) who has invoked such available remedies without obtaining a final decision within three cal- endar months after their invocation, may file a com- plaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 401 of this title (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pend- ing a final decision thereon (as hereinafter pro- vided) and in the interim the affairs of the organi- 4 zation shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide. — (b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a viola- tion of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization main- tains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hear- ing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this subchapter and such rules and regu- lations as the Secretary may prescribe. The court shall have power to take such action as it deems proper to preserve the assets of the labor organization. (c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds— (1) that an election has not been held within the time prescribed by section 401 of this title, or (2) that the violation of section 401 of this title may have affected the outcome of an election, the court shall declare the election, if any, to be void and direct the conduct of a new election under super- vision of the Secretary and, so far as lawful and prac- ticable, in conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declar- ing such persons to be the officers of the labor organi- zation. If the proceeding is for the removal of officers pursuant to subsection (h) of section 401 of this title, the Secretary shall certify the results of the vote and the court shall enter a decree declaring whether such 5 persons have been removed as officers of the labor organization. (d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal. Section 403 of the LMRDA, 29 U.S.C. § 483, provides in pertinent part: * * * * The remedy provided by this subchapter for challenging an election already conducted shall be exclusive. STATEMENT OF THE CASE Under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter “LMRDA’’) only the Secretary of Labor may bring a civil action to set aside the results of an election of union officers. In November of 1973, the Secretary brought such a suit against petitioner (hereinafter “the union’’), alleging certain improprieties in the conduct of an election for District Director of the union’s District 31, which spans portions of Illinois and Indiana. The Secretary’s complaint alleged no improprieties by the union’s na- tional officers; all alleged misconduct was stated to have been committed by persons within District 31. The complaint sought to have this District 31 election declared null and void and to have the court direct “a new election for District Director of District 31 under the supervision of the [Secretary].” Respondent Sadlowski, who had been the losing can- didate in the District 31 election, intervened in the suit, filing a complaint which, given the limitations imposed by law on the role of an intervenor in a Title IV case (see pp. 22-23, infra), added no substantive 6 allegations to those made in the Secretary’s complaint, but which requested eight items of relief additional to that requested by the Secretary. This suit was ultimately concluded when a settle- ment agreement was negotiated between the Secretary and the union—neither Sadlowski nor his attorneys participated in these negotiations. Indeed, Sadlowski filed an opposition to the motion of the Secretary and the union to have the settlement approved. Notwith- standing this opposition, the district court, after a hearing, approved the settlement agreement and en- tered the order proposed by the Secretary and the union. The settlement agreement as approved by the district court expressly stated that “neither the Secretary nor the Union concedes the validity of the claims of the other.” The court’s order contained no finding of lia- bility. The order simply directed that a new election, under the supervision of the Secretary, be held for the office of Director of District 31; the order had no ap- plication to any other election for any other office in the union. The order included none of the additional relief requested in Sadlowski’s complaint. Pursuant to the order so entered, a new election was run in District 31 under the supervision of the Secre- tary, Sadlowski was elected and then installed as Director of District 31. Thereafter, Sadlowski’s at- torneys returned to the district court and filed an application seeking attorneys fees approximating $500,000. The application contained forty pages of fac- tual allegations respecting the role Sadlowski’s four attorneys had played in their asserted 1,785 hours of attorneys’ time, and the claimed achievements from such efforts. In essence, the major theme of the allega- tions was that the Labor Department had performed poorly in a number of respects and would not have ob- tained a new election, much less a fair new election, in ie re 7 District 31 but for the efforts and prodding of Sadlow- ski’s attorneys. As District 31 does not have a treasury of its own, there was no way for the attorneys to seek a “common benefit” award payable only by members in District 31. Accordingly, they claimed to have con- ferred a benefit on all the members of the union and sought a “common benefit” award from the union’s treasury containing the dues of all the union’s members throughout the United States and Canada. The union, stating that it “does not concede the truth of the factual assertions in the application.” filed a motion to dismiss the application on its face for fail- ure, as a matter of law to state a valid claim for attor- neys’ fees. Two independent legal grounds were cited as the basis for this motion: (1) an award of attor- neys’ fees would be inconsistent with, and therefore is precluded by, the exclusive remedial scheme of Title IV of LMRDA, and (2) even assuming arguendo that the award were not barred by statute, the assertions of Sadlowski’s counsel did not state a proper claim against the union’s treasury under the “common-benefit” theory. In its motion, USWA made clear that the applica- tion with its forty pages of factual assertions raised numerous factual issues which would require “massive discovery and an evidentiary hearing,” and therefore requested that discovery not be commenced pending disposition of the motion. In an accompanying memo- randum, USWA elaborated: “Should the Court deny this motion to dismiss, USWA wishes to make clear that it does not con- cede the truth of the factual assertions in the ap- plication. Denial of the instant motion would leave extant factual issues requiring extensive discov- ery and ultimately an evidentiary hearing. See, Lindy Bros. Builders Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 487 F.2d 8 161-170 (3rd Cir. 1973) ; City of Detroit v. Grin- nell Corp., 495 F.2d 448, 471-472 (2d Cir. 1974). Accordingly, since resolution of this motion may be dispositive, USWA suggests that discovery not be commenced until the Court decides whether to dismiss the application for attorneys’ fees on its face.” The Secretary also filed a response to the applica- tion for attorneys’ fees in which, while taking no posi- tion as to the legal availability of the relief sought by the application, he replied to the application’s “express and implied criticism of the Secretary’s role in the conduct of the litigation and the supervision of the en- suing election. . . .” The Secretary’s response stated, inter alia, the following: “Without attempting to detract from the efforts of counsel for intervenor, it must be pointed out that it is quite cusiomary for the Department’s investigators to receive assistance from the com- plainant in the conduct of their investigation of an election, even when the complainant is not rep- resented by an attorney. Indeed it is self-evident that the major part of the leads pursued by the investigators in such an investigation derive from the complainant’s allegations. However, the De- partment pursues its own investigation to obtain evidence which may or may not substantiate those allegations. In this case, the Department spent approximately 3,600 man hours in the investiga- tion of Sadlowski’s complaint. “After the filing of the suit, the government’s attorneys promptly instituted discovery and moved for expedition of the proceedings. The gov- ernment was prepared to proceed to trial without the additional evidence sought by counsel for in- tervenor through his depositions. The Stipulation of Settlement was negotiated by the government 9 and approved in accordance with the agreement of the principal parties. “The supervision of the election was the respon- sibility of the Department of Labor. The Depart- ment utilized the expertise gained through the supervision of hundreds of elections during the fifteen years of the Act’s existence. The Depart- ment expended approximately 25,000 man hours - in connection with its supervisory role. “In short, the Department of Labor has con- scientiously fulfilled its responsibilities with re- spect to the investigation of Sadlowski’s complaint, the successful prosecution of the litigation, and the supervisior of the ensuing election in such a manner as to insure the free operation of the dem- ocratic process.” The district court referred the union’s motion to dismiss to a United States Magistrate who issued a Report and Recommendation finding as a matter of law (1) that the award sought contravened the purposes of, and thus was precluded by, the statutory scheme of Title IV, and (2) that, in any case, the application did not make out a proper claim for attorneys’ fees under the common benefit doctrine, for 91% of the fee would be paid by members who had no stake in the District 31 election. Therefore, the magistrate recommended that the union’s motion to dismiss be granted, and that the application for attorneys’ fees be denied as a mat- ter of law. (App. D). The district court issued a memorandum in which, inter alia, it adopted the Report and Recommendation of the magistrate. (App. C). The application for attorneys’ fees was thus denied by the district court. On appeal to the Third Circuit, a divided panel re- versed the decision of the district court. The panel majority ruled that the district court had been wrong 10 on both legal grounds. As to the issue whether the scheme of Title VII precludes a common-benefit fee award from the defendant union’s treasury to an inter- vening candidate, the majority reasoned, in essence, as follows: the Supreme Court in Trbovich v. United Mine Workers, 404 U.S. 528 (1972), reconstructed the enforcement scheme of Title IV to create a role for a private intervenor in Title IV actions as the only true “adversary to the union in developing the facts and the legal issues”; to hold that the statute precludes an award of fees to such an intervenor would mean that the “Supreme Court intended to create” an “empty ... role”; and, “courts and legislatures do not ordi- narily create roles—strong roles—and then deny their existence by refusing to recognize the existence of the means to fulfill them effectively.” (App. 20a-21a). As to the issue whether the prerequisites of the ‘‘com- mon-benefit” exception could be satisfied here, the ma- jority found that, even though the Secretary’s com- plaint had alleged no misconduct by the union’s national officers or by anyone outside of District 31, the mem- bership of the union outside of District 31 benefited from Sadlowski’s attorneys’ alleged achievements in the lawsuit because “it would be naive to assume that similar election ‘irregularities’ have not or would not spread to other districts and locals... .” (App. 33a). [The court did not explain how the disposition of the instant case—a rerun of the District 31 election, with no injunctive effect elsewhere—furthered the interests of members outside District 31 even on its ‘non-naive’ assumption that violations would occur’ elsewhere]. Further, the court noted that one of a district direc- tor’s functions, albeit not the “main function,” is to serve on the union’s International Executive Board. Since this Board is charged with certain functions to be performed on the behalf of the entire membership 11 of the union, “{i]nterference with the election of the District 31 director cannot be said to have a merely localized impact on the union membership.” (App. 34a). The majority conceded that these asserted bene- fits to members outside of District 31 are not as “great” as the benefit to those within the District, but went on to explain why nevertheless the “common-benefit” ex- ception must be found applicable (App. 35a-36a) : “The position that the USWA treasury is an improper fund from which to make an award, since the primary benefit was to District 31, fails . . » While it cannot be denied that the greatest benefit was conferred upon Union members in that district, we note that suit was brought against the USWA, rather than District 31, precisely because districts are not labor organizations within the meaning of 29 U.S.C. § 402(i), and the parent union is the suable entity. There is, moreover, no - district treasury, since all dues and fees are con- tributed directly to the USWA and later some funds are dispersed to the districts. To hold that attorney’s fees must be recovered from a fund created by those who received the greatest bene- fit, rather than from a fund created by those who received a legally sufficient and significant benefit, would be tantamount to denial of that recovery. But more than that, such a holding ‘would effec- tively allow unions to insulate themselves from union members’ attempts to prosecute Title IV vio- lations. By creating an internal structure that co- ‘mingles funds and denies their identifiability to an individual unit, unions could preclude recovery of attorney’s fees. Such action would thwart the process of complaint and productive’ intervention by union members, and deny effect to the policies . enunciated by the LMRDA and Trbovich.” ' 12 Judge Aldisert dissented from the ruling of the ma- jority on both legal issues, declaring that (1) common benefit awards are precluded by the enforcement scheme of Title IV and (2) an award against all the union’s members does not fit the “common benefit” rationale as set forth in Alyeska Pipeline Service v. Wilderness Society, 412 U.S. 240 (1975) (App. 44a- 52a).’ REASONS FOR GRANTING THE WRIT As we show herein, the majority of the court below has determined two issues of broad importance in a 1 Because the district court granted the union’s motion to dis- miss as a matter of law, the factual assertions in the applica- tion for attorneys’ fees have never been litigated. Nevertheless, portions of the majority’s opinion read as though said allega- tions had been proven and found as fact by a trier of fact. As the dissent put it (App. 50a), “Although such rhetoric is usually associated with parti- san politics, these are not excerpts from political campaign literature. These are statements from an opinion of this court. But they do not derive from the findings of any trial court. They are conclusions drawn by the majority on the basis of certain averments set forth in an application for attorneys’ fees. . . . That such facts are assumed for the purpose of testing a legal issue does not permit a court to draw from them, as did the majority, additional non- factual conclusions, e.g., ‘vindication of democratic process in USWA elections,’ ‘the particularly egregious abuses of the electoral process in this case,’ and ‘union democracy would have been a hollow promise without Sadlowski’s involvement.’ As a member of this court, I am constrained to specifically disassociate myself from this extravagant language and from any resulting inferences which tend to impugn the integrity of the International President and seme of the Executive Board of the Steelworkers’ nion.” The majority’s opinion begins with a statement that it is assuming the truth of the allegations only for the purpose of adjudicating the propriety of the granting of a motion to dis- miss (App. 2a), and it reiterated this statement in a prelimi- nary ruling on the petition for rehearing (App. 54a, n. 1). 13 manner directly inconsistent with controlling decisions of this Court. First, in Trbovich v. United Mine Workers, supra, this Court, in order to secure the integrity of the en- © forcement scheme of Title IV of the LMRDA, set forth with great care the limitations on the role an intervenor may play in a Title IV action. As we show in part I, the majority below— ironically founding its analysis upon Trbovich—has expanded the role of a Title IV inter- venor beyond those limitations and brought into jeop- ardy the congressional purposes that the Trbovich Court sought to protect. The District of Columbia Cir- cuit reached the same result in Usery v. Local 639 In- ternational Brotherhood of Teamsters, Etc. 543 F.2d 369 (D.C. Cir. 1976) (hereinafter “Local 639’’), cert. denied sub nom., Local Union No. 639 v. Marshall, — U.S. —, 97 S. Ct. 1159, 51 L.Ed 2nd 573 (1977). If the instant case is left to stand without further review, it will, together with Local 639, become the operative precedent in this important statutory area in deroga- tion of the principles this Court sought to establish in Trbovich. Second, in Alyeska Pipeline Service v. Wilderness Society, supra, the Court, in setting forth the general rule in this country against fee shifting, gave precise definition to the “common benefit” exception to that rule to assure that the exception would not overwhelm the rule. As we show in part II, the majority below, by loosing the common benefit exception from its logic, has in effect merely approved under another name the “private attorney general” exception rejected in Alyeska. Again, if the decision below goes unreviewed, an important precedent will have been established in contravention of the principles articulated in Alyeska. As we further show in part II, in a critical respect this aspect of the court’s decision is in apparent conflict Nn OOOO ——— 14 with the decision of the Fifth Circuit in McDonald v. Oliver, 525 F.2d 1217, 1228 (5th Cir. 1976). I. The Statutory Preclusion Issue This Court has repeatedly held that the “common benefit” exception may not be applied in a statutory cause of action where an award of attorneys’ fees would not be consistent with the remedial scheme estab- lished by Congress, Fleischmann v. Maier Brewing, 386 U.S. 714, 719-721 (1967) ; Hall v. Cole, 412 U.S. 1, 9-19 (1973). In Fleischmann, the standard was stated as follows: “The recognized exceptions to the general rule were not, however, developed in the context of statutory causes of action for which the legisla- ture had prescribed intricate remedies. Trademark actions under the Lanham Act do occur in such a setting. For, in the Lanham Act, Congress meticu- lously detailed the remedies available to a plain- tiff who proves that his valid trademark has been infringed. . . . When a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other reme- dies should not readily be implied. . . . We there- fore must conclude that Congress intended § 35 of the Lanham Act to mark the boundaries of the power to award monetary relief in cases arising under the Act. A judicially created compensatory remedy in addition to the express statutory reme- dies is inappropriate in this context.” 386 U.S. at 719-721. The post-election remedial scheme established by Title IV is comprehensive, and Congress has declared it to be “exclusive.” Pursuant to that scheme only the Secretary has the power to bring a post-election chal- lenge suit. 29 U.S.C. § 482, 483. By design, Congress 15 prohibited private litigants from initiating a lawsuit to challenge a completed election.*? That prohibition re- sulted from a congressional concern that, otherwise, courts could be used, particularly by defeated candi- dates, to meddle in the internal affairs of union gov- ernment, and unions would be vulnerable to the harass- ment and expense incident to defending against such private litigation. Trbovich v. United Mine Workers of America, supra, 404 U.S. at 530-537; Dunlop v. Ba- chowski, 421 U.S. 560, 568-570 (1975) ; Wirtz v. Bot- tle Blowers Assn., 389 U.S. 463, 470-472 (1968); Calhoon v. Harvey, 379 U.S. 134, 140 (1964). Further, Congress specified precisely the relief that may be obtained from a Title IV post-election suit brought by the Secretary (29 U.S.C. § 482(c)): “The court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such per- sons to be the officers of the labor organization.” This statutory remedy is comprehensive in its terms. The remedy is public in nature; no private or indi- vidual relief is provided. And, in 29 U.S.C. § 483, Con- gress declared that “[t]he remedy provided by this sub- chapter for challenging an election already conducted shall be exclusive.” Lest there be any doubt that Congress meant what it said in Title IV, it should be observed that the remedial 2 As the court below acknowledged (App. 6a) : “ * * * Congress rejected a bill, H.R. 8342, 86th Cong., Ist Sess § 402(a) (1959), which provided for union members suits under IV, and authorized the award of appropriate relief, including attorney’s fees.” 16 provisions of that Title stand in marked contrast to those of the other titles of the LMRDA. Thus, all titles of the LMRDA except Title IV reflect a congressional determination to rely upon individual union members to bring private suits to enforce substantive rights in- tended not only to benefit the actual litigant but also for the protection of the general union membership. Further, all titles of the LMDRA except Title IV either expressly authorize an award of attorneys’ fees or, with the language “such relief (including injunctions) as may be appropriate,” give courts a “broad man- date” to exercise general equitable powers, thereby permitting an award of attorneys’ fees justified by an equitable exception such as the common-benefit doc- trine. See, Hall v. Cole, supra, 412 U.S. at 11. In the face of this statutory scheme, which manifests a clear congressional intent to preclude private suits and private remedies in the post-election enforcement processes of Title IV, the majority below nevertheless found that Congress did not intend to preclude a pri- 8 In Title I (bill of rights of union members), Congress relied for enforcement upon civil suits brought by individual union members “for such relief (including injunctions) as may be appropriate.” 29 U.S.C. § 412. In Title II (reporting), Con- gress also relied upon union members for enforcement, and expressly provided that: “The court in such action may, in its discretion, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorneys fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 431(c). In Title III (union trusteeships), Congress again created for individual union members a civil cause of action “for such relief (including injunctions) as may be appropri- ate.” 29 U.S.C. § 464(a). In Title V (fiduciary responsibility of union officers), Congress not only gave union members a right to bring suit, after exhaustion of internal union remedies, for “damages . . . an accounting or other appropriate relief,” but in addition specified that attorneys fees and expenses may be allotted as part of that relief, 29 U.S.C. § 501(b). When it came to Title IV, Congress expressly rejected proposals that would have established a private enforcement mechanism with attorneys’ fees available. See note 2, supra. 17 vate intervenor from obtaining an award of attor- neys’ fees in a Title IV action. The analysis by which the court below reached that result—and the analysis by which the District of Columbia Circuit in Local 639 reached the same result—is in two steps. First, the court found that the Fleischmann standard, quoted above, is no longer applicable: “the analytical method embraced by Fleischmann was substantially undercut by later Supreme Court decisions.” (App 7a). Rather, the court concluded, in more recent cases—Hall v. Cole, supra and Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1973)—the Supreme Court has “enunciated a pre- sumption against preclusion” (id). Second, applying this presumption, the court below looked not to the lan- guage or the legislative history of Title IV, where it could find no comfort, but to what it called Supreme Court “supplement[s]” to and “expansion” of the structure of Title IV. (App. 9a-10a). Thus, the major- ity stated (App. 10a) : “The fact that the Supreme Court has found it necessary to supplement the structure of Title IV on two occasions suggests that the guidelines of Hall... have been met by the facts of this case.” In this regard, the majority relied primarily on Trbovich, finding that this Court would not have “created” the “strong role” of an intervenor in Title IV actions and then “deny [its] existence by refusing to recognize the existence of the means [attorneys’ fees] to fulfill [it] effectively.” (App. 21a). Indeed, the majority read Trbovich as transforming the statutory scheme so that the primary adversary role in a Title IV action is now to be played by the private intervenor and not the Secretary (App. 20a-21a) : “The Department of Labor performs a quasi- judicial, rather than a-purely adversarial role in Title IV cases. Its duty is to the public, its own 18 policies, the union interest, and the individual. In deciding whether to institute suit, what to com- plain of, and what to settle for, the Secretary must constantly weigh competing interests and duties. Before the T'rbovich-intervenor existed, the statu- tory scheme involved only one party truly com- porting itself in an adversarial posture: the union. But since T'rbovich the “union interest” is defined by two parties with adverse viewpoints—even if their interest in the union remains a common denominator. The Secretary, in this circumstance, occupies a more tenable position since he has not only his own expertise in the field, but, in addi- tion, the benefit of the crystallization and pres- entation of issues and viewpoints we associate with the adversary process. The intervenor’s role created by Trbovich is thus that of an adversary to the union in developing the facts and the legal issues. What the issue of statutory preclusion of the exercise of equitable powers boils down to in this context is the question of how empty a role the Supreme Court intended to create. Considering the complexities of internal union remedies, com- plaint to the Secretary, and recourse to the courts, and the penalties for lack of legal or technical sophistication, we cannot believe that intervenors were intended to proceed pro se. To have antici- pated the depth and quality of involvement, exper- tise, ana enterprise shown by Despres, Rauh, Yablonski and Schneider for a fee which the USWA would have the courts find themseives powerless to award would be to deny T'rbovich all effect. While we do not consider the propriety of an award of attorney’s fees for union member assistance in pursuing Title IV violations where suit is not brought or the complainant does not intervene, we note that courts and legislatures do 19 not ordinarily create roles—strong roles—and then deny their existence by refusing to recognize the existence of the means to fulfill them effec- tively.” | Thus, the majority read Trbovich to have recon- stituted Title ITV, making its enforcement scheme nearly of the same character as the other titles of LMRDA—save for the bothersome detail that only the Secretary can bring a Title IV suit—and therefore making a private award of attorneys’ fees appropriate in a Title IV action. In the words of the Local 639 court, quoted by the majority below, App. 10a, “notwithstanding the absence of a broad relief provision in section 402, the court in a Title IV action faces the same task as if it were adjudicat- ing a union member suit under the other titles— to grant relief according to the necessities of the case, i.e. to fashion ‘appropriate’ relief.” As to the first step in the majority’s analysis, we doubt that the Court in Mills or Hall intended to change the standard enunciated in Fleishmann.* But whether * The Supreme Court in Fleishmann stated, “[w]hen a cause of action has been created by a statute which expressly pro- vides the remedies for vindication of the cause, other remedies should not readily be implied.” 386 U.S. at 720. Neither Mills nor Hall expressly repudiates this proposition. Rather, in each case, the Court purports to apply the Fleischmann analysis to the facts before it. We see no evidence of a “presumption against preclusion” in either case, but instead an inquiry as to whether importation of the remedy of attorneys’ fees is consistent with the applicable statutory scheme—the inquiry which we understand Fleischmann to mandate. The majority below predicates its analysis on bits and pieces of language taken out of context from Hall, which it reads to suggest a departure from Fleishmann. A more pertinent reference to the language'of Hell is at the point: where the Supreme: Court states the holding on this issue; ..... “We therefore hold that the.allowance of counsel fees to the successful plaintiff in a suit brought under § 102 of the LMRDA is consistent with . . . the Act. .. ee NTT 20 or not the Fleischmann standard has been altered, if 412 U.S. at 4 (emphasis added). In any event, more important than the language chosen is the analysis actually applied. In this regard, it is important to note that the factors on which the Hall Court relied to find no statutory bar to a fee award in a Title I action are not present here. First, the Hall Court looked to the remedial language of Title I which, rather than precluding judicial flexibility as to remedy, authorizes courts to grant “such relief . . . as may be appropriate.” 29 U.S.C. § 412. This language was critical to the Court’s decision : “Unlike § 35 of the Lanham Act, which specifically ‘provided not only for injunctive relief, but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled,’ § 102 of the LMRDA broadly authorizes the courts to grant ‘such relief (including injunctions) as may be appropriate.’ 29 U.S.C. § 412. Thus, § 102 does not ‘meticulously detail the remedies available to a plain- tiff,’ and we cannot fairly infer from the language of that provision an intent to deny to the courts the traditional equitable power to grant counsel fees in ‘appropriate’ situations. “ .. § 102 [29 U.S.C. § 412] was premised upon the fact that Title I litigation necessarily demands that remedies ‘be tailored to fit facts and circumstances admit- ting of almost infinite variety,’ and § 102 was therefore cast as a broad mandate to the courts to fashion ‘appropri- ate’ relief. Indeed, any attempt on the part of Congress to spell out all of the remedies available under § 102 would create the ‘danger that those [remedies] not listed might be proscribed with the result that the courts would be fettered in their efforts to “grant relief according to the necessities of the case.” ’ ” 412 U.S. at 10-11. As we have seen, there is no such “broad mandate” in the post-election remedial provisions of Title IV; indeed, the contrary congressional intent is evidenced by the fact that Congress did “spell out all of the remedies available” under the post-election challenge provisions of Title IV. Second, the Court in Hall was careful to show that the avail- ability of an award of attorneys’ fees was consistent with the enforcement scheme of Title I, which depends on lawsuits brought by private litigants: 21 the language and history of Title IV are properly “. . . [T]he award of attorneys’ fees under § 102 is clearly consonant with Congress’ express desire to adopt ‘legislation that will afford necessary protection of the rights and interests of employees and the public gen- erally... .’ 29 U.S.C. § 401(b). As the Court of Appeals recognized : ‘Not to award counsel fees in cases such as this would be tantamount to repealing the Act itself by frustrating its basic purpose. It is difficult for indi- vidual members of labor unions to stand up and fight those who are in charge. The latter have the treasury of the union at their command and the paid union counsel at their beck and call while the member is on his own. . . . An individual union member could not carry such a heavy financial burden. Without counsel fees the grant of federal jurisdiction is but a gesture for few union members could avail themselves of it.’ 462 F.2d, at 780-781. “Thus, it is simply ‘untenable to assert that in establish- ing the bill of rights under the Act Congress intended to have those rights diminished by the unescapable fact that an aggrieved union member would be unable to finance litigation. ...’” 412 U.S. at 13-14. The post-election enforcement scheme of Title IV does not depend on the ability of individuals “to finance litigation.” The statute in fact does not permit indi- viduals to bring such litigation. Congress has vested in the Secretary of Labor the exclusive authority to bring litigation to upset the results of a union election. All a defeated candidate has to do is to get his “layman’s” complaint to the Secretary. This Court has repeatedly assumed that union members would be performing the tasks necessary for submission of a complaint to the Secretary without the assistance of counsel, and has tailored the interpretation of procedural requirements accordingly. See, Hodgson v. Steelworkers, 403 U.S. 333, 340- 341 (1971) ; Wirtz v. Laborers’ Union, 389 U.S. 477, 482-483 (1968) ; compare the decision of the majority below App. 12a, 21a. Attorneys’ fees are thus not related to proper enforcement of Title IV; and, as shown in the text, infra, the availability of an award of attorneys’ fees would not be consonant with the intent of Congress to structure post-election challenge litiga- tion so as to minimize the burden on unions. ee 22 understood, the result in this case should not be affected. We submit that, under the words which the majority quotes from Hall as the appropriate standard, the remedy provided in Title IV is “ ‘meticulously detailed’ to ‘mark the boundaries of power to award monetary relief’ ”’ and the statutory history and scheme present a “ ‘definite and absolute setting of the Congressional face against’”’ permitting judicial imposition of a private award of attorneys’ fees in a Title IV action. In concluding otherwise, the court below misunder- stood Trbovich. That decision did not work a basic change in the nature of Title IV litigation; to the con- trary, it accommodated the congressional purposes behind the Title IV enforcement scheme by defin- ing a limited role for a private intervenor which cannot jeopardize those purposes. The ruling below, by ex- panding that intervention role without heed to the limitations established by T'rbovich, does jeopardize the very congressional objectives that Trbovich recognized and sought to protect. Both the court below and the Local 639 court mis- read the sentence in T'rbovich which states that adop- tion by the House and the Conference Committee of the Senate’s public enforcement provisions “can in no sense be read as a rejection of all forms of private participa- tion in enforcement litigation, since the House at no time considered the possibility that union members might assist the Secretary rather than displace him.” 404 U.S. at 536. Acting as if that sentence authorized “all forms of private participation” in a Title IV action, the court below and the Local 639 court leapt to the con- clusion that therefore Trbovich approves private reme- dies to intervenors in Title IV actions. But it does not require a careful reading of Trbovich to discover that the decision itself rules out all forms of private partici- 23 pation except those which “might assist the Secretary rather than displace him.” The T'rbovich Court circum- scribed the role of a Title IV intervenor in this manner to assure that unions would receive the protection against the burdens of private plaintiff litigation that Congress intended them to have. Those burdens are of particular concern in the post-election challenge con- text where defeated candidates have a motivation to use the legal process to achieve political ends. Therefore, the T’rbovich Court permitted private in- tervention only to the extent it would subject “the union to relatively little additional burden.” 404 U.S. at 536. The permissible scope of an intervenor’s participation was defined as follows: “Thus, at least insofar as [an intervenor] seeks only to present evidence and argu- ment in support of the Secretary’s complaint, there is nothing in the language or the history of the LMRDA to prevent such intervention.” Jd. at 536-537 (emphasis added). But beyond support of the Secretary’s com- plaint, the Trbovich Court refused to permit an inter- venor to assert additional grounds for setting aside a union election (Jd. at 537) : “We recognize that it is less burdensome for the union to respond to new claims in the context of the pending suit than it would be to respond to a new and independent complaint. Nevertheless, we think Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary. Accordingly, we hold that in a post-election en- forcement suit, Title IV imposes no bar to inter- vention by a union member, so long as that inter- vention is limited to the claims of illegality pre- sented by the Secretary’s complaint.” 24 It is at least anomalous to say that an intervenor, who is disabled from asserting a single new ground for setting aside an election, may nevertheless in the con- text of a Title IV action present a whole new claim for a private remedy. But more important, to permit such a claim would subject unions to litigation burdens far in excess of those held impermissible in Trbovich. In a case such as the instant one, as we show below, litiga- tion over fee claims would likely dwarf the litigation on the merits. Further, as we also show below, in the circumstances of the case here, litigation of the attor- neys’ fee claim would require resolution both of sub- stantive allegations which the Secretary had made but which because of the settlement were not litigated and of additional substantive allegations which the inter- venor was prohibited from raising on the merits but which he has asserted in (and which are necessary to) his fee application. 1. This Court has recognized “the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorneys’ fees” as a reason weighing against abandonment of the American rule. F. D. Rich Co. v. Industrial Lumber Co., supra, 417 U.S. 116, 129 (1974). In particular, litigation of “eommon-benefit” claims can be massive,* and, because of the nature of the theory, litigation of a ‘‘common- benefit” claim in a Title IV case would likely be more ex- tensive than elsewhere. The “common-benefit” theory, based as it is on a concept akin to quantum merutt, re- quires a showing by the applicant that he conferred a benefit upon those against whom the fee would be ® See e.g., Lindy Bros. Builders, Inc. v. Am. Radiator, etc., 540 F.2d 102 (3rd Cir. 1976); Merola v. Atlantic Richfield Co., 515 F.2d 165 (3rd Cir. 1975). ee 25 charged ; if the purported beneficiaries would have re- ceived the asserted benefit anyway—e.g., if in the in- stant case, the Secretary would have secured the same result alone—no fee would be justified. Thus, litigation of the fee application in Title IV actions would require resolution of the following categories of factual issues: (1) did intervenor’s counsel perform the numerous services alleged in the application; (2) if so, did they confer benefits on union members that would not have been conferred in any event by the work of the Secre- tary; (3) if so, how many hours were spent on activ- ities conferring such a non-duplicative benefit ; and (4) what is the reasonable value of the services for those hours. See, Lindy Brothers Builders, Inc., of Philadel- phia v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 169-170 (3rd Cir. 1973) ; City of Detroit v. Grinnel Corp., 495 F.2d 448, 471-472 (2nd Cir. 1974). Issues in the second category would put the union in the anomalous position of having to prove the effectiveness of counsel for the Secretary during the period those counsel were in an adversarial relationship to the union. Putting aside the problems of privilege that would plague such litigation, the accumulation of pertinent evidence would be massive and complex. The application for attorneys’ fees here contains forty pages of factual allegations as to the services per- formed by counsel for intervenors—in 1,785 hours of attorneys’ time—and the achievements said to have resulted therefrom. The application also makes numer- ous allegations as to failures of the Secretary properly to perform his duties. The Secretary, on the other hand, has submitted a statement to the district court in which he states that the Labor Department spent over 28,000 man hours achieving the very results for which intervenor’s counsel claim credit. It is thus under- 26 statement to say that litigation of the attorneys’ fees claim here—that intervenor’s counsel conferred a common-benefit that would not otherwise have been conferred by the work of the Secretary—would be a major undertaking. 2. The burdens just described are multiplied when, as here, (i) the challenged election involved a simail percentage of the union’s members; (ii) the Secretary’s suit is settled without an admission or finding of lia- bility; and (iii) the court order that flows from the settlement has no application to the vast majority of the union’s members. Were the award here sought merely from the union members within District 31, it would be of no consequence that the case on the merits was resolved by settlement instead of by trial. The benefit of the suit (although not necessarily the benefit of in- tervenor’s attorneys’ efforts) was the new election, and that benefit is no less real when achieved through a settlement. But the settlement of the suit achieved nothing in and of ‘tself for union members outside of District 31; the court order contained neither declara- tory nor injunctive relief that had any application out- side of that District. Indeed, the court below conceived that the “benefit” conferrzd upon members outside of District 31 was not the relief provided in the settle- ment, but rather the expectation that “union leader- ship” would be deterred from engaging in misconduct in other districts. (App. 33a.) Assuming this expecta- tion were a valid predicate for a “common-benefit” award (we suggest otherwise in part II, infra), it would require vastly expanded fee litigation: (a) The rationale is inapplicable unless there was wrongdoing; if there was none, there is no repetition 27 to deter. Thus, establishing that violations occurred is a prerequisite to the award. Where, as here, the Secre- tary and the union settle without a finding or admis- sion of violation, the merits would have to be tried simply to determine whether the predicate for a fee award exists. Apart from the burdens this would im- pose upon the union, it would reduce the incentives for settlement and frustrate Congress’ hope that the Sec- retary would settle Title IV cases expeditiously.’ (b) The rationale depends upon finding further that the violations were committed by persons who have the capacity to commit them elsewhere, in elections involv- ing members outside District 31. As the decision below recognized (App. 33a), the award requires a finding that the “union leadership” was responsible for the mis- conduct. Here, the Secretary’s complaint alleged only wrongdoing by District 31 members. Intervenor’s fee application, however, alleges culpability on the part of the union’s national officers as well. The fee litigation thus would require adjudication of a substantive claim never advanced by the Se..etary—whether the “union leadership” violated Title IV—in direct contravention of Trbovich. As the fee application in this case reveals, the oppor- tunity for a defeated candidate to litigate whether he has conferred a “common-benefit” can be as. subject to the abuse of political motivation as the opportunity to litigate that the election was unfair. The vulnerability of the union to burdensome, unfounded, and harassing litigation is as great in either instance. Congress’ en- ' * 2422°90 g.c69)! " Calhoon 'v. Harvey, 879:U.S. 134, 140 (1964). 28 forcement scheme, found in Trbovich to require “limit- ing” intervention to “insulate the union” from the “burden” of defending even a single additional sub- stantive ground advanced by an intervenor, leaves no room for subjecting unions to litigation in Title IV suits over a private award of fees for an intervenor. The decision below to the contrary should not go unreviewed. II. The “Common Benefit” Issue This case presents the first opportunity for this Court to demarcate the line between the “historic” common benefit principle recognized in Alyeska and the “expanded” common benefit theory rejected therein. The decision below, while paying lip-service to Alyeska, in fact disregarded the principles established in that decision. The majority below, invoking the label “‘com- mon-benefit” where it does not rightfully apply, in fact authorized an award of attorneys’ fees for the acknowl- edged purpose of encouraging private enforcement of a statute in which Congress had not authorized fee- shifting. Such misuse of the “common-benefit” excep- tion presents a significant threat that this Court’s hold- ing in Alyeska will be undermined. In Alyeska, this Court rejected the argument that federal courts have eyuitable power to award fees on a “private attorney general’ theory in the absence of congressional authorization. Declaring that the “Amer- ican rule” is that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser,” 421 U.S. at 247, this«Geurt concluded that it was for Congress, not the Judiciary, to determine 29 under which statutes, and on what terms, fee-shifting should be allowed: “Nor has [Congress] extended any roving au- thority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted. What Congress has done, how- ever, while fully recognizing and accepting the general rule, is to make specific and explicit pro- visions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights. These statutory allowances are now available in a variety of circumstances, but they also differ considerably among themselves... . Under the scheme of things, it is apparent that the circumstances under which attorneys’ fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine. “... [C]ongressional utilization of the private- attorney general concept can in no sense be con- strued as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowances to the prevailing party and to award attorneys’ fees whenever t« courts deem the pub- lic policy furthered by a particular statute import- ant enough to warrant the award. “Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys’ fee under some, but not others. But it would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant 30 and to allow attorneys’ fees only in connection with the former.” 421 U.S. at 260-264 (footnotes omitted). This Court recognized, of course, that “in limited circumstances” there have been found “exceptions”— “assertions of inherent power in the courts to allow at- torneys’ fee in particular situations, unless forbidden by Congress,” id. at 257, 259. One of these exceptions is the “common-benefit” rule, id. at 257-258, whose availability this Court defined as follows: “In this Court’s common-fund and common- benefit decisions, the classes of beneficiaries were small in number and easily identifiable. The bene- fits could be traced with some accuracy, and there was reason for confidence that the costs could in- deed be shifted with some exactitude to those bene- fiting.” Id. at 265, n. 39. But the Court in Alyeska rejected any “expanded ver- sion of the common-fund approach” which would effec- tively nullify the American rule by making fees gen- erally available, id. at 265-266, n. 39, declaring that the “courts are not free to fashion drastic new rules with respect to the allowance of attorneys’ fees” lest they “make major inroads on a policy matter that Congress has reserved for itself,” id. at 269. In the instant case, the court below half-heartedly (and erroneously, as we will show in a moment) under- took to define certain “benefits” which all members of the union would derive from intervenor’s efforts. But it was ultimately forced to acknowledge that even on its reasoning an award against the union’s treasury would not shift the costs “with some exactitude to those benefiting.” It acknowledged that the members within District 31 received a greater benefit than those with- out the District, yet each member, whether within or 31 without the District, would be charged equally for the fee (App. 32a-36a). At this point in the opinion, how- ever, the court disclosed its true concern: because Dis- trict 31 does not have a treasury, the only vehicle available for fee-shifting is the union’s international treasury, and if a fee could not be assessed against the entire union membership, “the process of complaint and productive intervention by union members” would be “thwart[ed],” and “the policies enunciated by the LMRDA and Trbovich would be “den[ied] effect” (App. 36a). The court was here repeating the conclu- sions it had earlier reached in its “statutory preclu- sion” analysis: to deny fee awards “would be to deny Trbovich all effect” (id. 21a) ; “courts and legislatures do not ordinarily create roles—strong roles—and then deny their existence by refusing to recognize the exist- ence of the means to fulfill them effectively” (ibid). This language is, surely, that of the “private attor- ney general” theory, which this Court declared in Alyeska was not available to the Judiciary absent con- gressional authorization. And lest there by any doubt that this is what the court below intended, it went on to make the point even clearer. It is more appropriate that the wrongdoing union pay the fees than “to penalize the intervenor who performed his function correctly and well” (id. 35a). Never mind that the members of the union might not appreciate a fee being charged to them for an attentuated “benefit” they could not pos- sible perceive: “If the rank and file is dissatisfied, their recourse lies with the Union leaders who were respons- ible” (ibid). This “punch-line” of the decision below is the antithesis of “common-benefit”—it sounds more of “common detriment” : all members should share equally in paying for the union’s sins. That is not, we think, one of the “historic” exceptions recognized in Alyeska. Of course, as we have noted, the court below at- 32 tempted to find “benefits” accruing to all the union’s members. But evaluated apart from the court’s ac- knowledged “private attorney general” purpose, its “common-benefit” analysis falls woefully short of meet- ing the standards enunciated by this Court. Those standards are two-fold: (1) that the costs be assessed proportionately among those benefiting, and (2) that absent such assessment the beneficiaries would be en- riched unjustly at the claimant’s expense. As we show, neither standard is met here. (1) Equitable Assessment As this Court stated in Alyeska, a common-benefit award is only permissible where the “benefits [can] be traced with some accuracy, and there [is] reason for confidence that the costs could indeed be shifted with some exactitude to those benefiting.” 421 U.S. at 265, n. 39. Proper application of the exception requires that it “will . . . operate to spread the costs of litigation proportionately among [the] beneficiaries . . .” ibid. The award sought here lacks the indispensible ingre- dient of a common-benefit award: it would not spread the costs proportionately among those who receive the benefit. At the threshold, it is not accurate here, as it was in Hall v. Cole, supra,’ to say that intervenor shares the 8 The plaintiff in Hall v. Cole had been expelled from the union for “introducing a set of resolutions alleging various instances of undemocratic actions and shortsighted policies on the part of union officers.” 412 U.S. at 2. His lawsuit secured a judicial determination that the Union’s officers, by attempting to stifle criticism of their conduct, were violating Section 101(a) (2) of the LMRDA—the “free speech” provision of Title I. In up- holding an award of attorneys fees under the “common benefit” rationale, the Court explained (/d. at 8-9) : “[T] here can be no doubt that, by vindicating his own right to free speech guaranteed by §101(a) (2) of Title I Le pene eee anes omen oe ee 33 benefits of this lawsuit in “common” with other union members. The very reason he was permitted to inter- vene was because he had a special, personal interest distinct from the interest of the rest of the membership, Trbovich, supra, 404 U.S. at 538-539: his political in- terest in securing the $35,000 per year job of Director of District 31. As a result of the litigation, he received that benefit, no other union member did. At best, the other members of the USWA secured a benefit of a dif- ferent rank, and significantly less tangible.° To spread the costs among all members would thus confer a windfall upon intervenor: all members—in- cluding the 20,000 who voted against him in the reruni, the majority in District 31 who did not care enough to vote at all in the rerun, and the nearly 1,300,000 who were not even eligible to vote therein—would be forced of the LMRDA, respondent necessarily rendered a sub- stantial service to his union as an institution and to all of its members. When a union member is disciplined for the exercise of any of the rights protected by Title I, the rights of all members of the union are threatened. And, by vindicating his own right, the successful litigant dispels the ‘chill’ case upon the rights of others. . . . Thus, as in Mills [a corporate shareholder case], reimbursement of respondent’s attorneys fees out of the union treasury simply shifts the costs of litigation to ‘the class that has benefitted from them and that would have had to pay them had it brought the suit.’” (emphasis added). ® Justice Marshall’s dissenting opinion in Alyeska saw the “common benefit” cases as one instance of a more general equitable power to award fees where three conditions are present, the second of which he stated as follows: “(2) the plaintiff’s pecuniary interest in the outcome, if any, would not normally justify incurring the cost of counsel,” 421 U.S. at 285, a condition which he believed met in Alyeska because the plaintiffs’ involvement “was largely altruistic” and their tangi- ble gains from litigation were “truly dwarfed by the demands of litigation,” id. at 286. Even measured by this “expanded” definition which the Court rejected in Alyeska, id. at 265, n. 39, intervenor herein would not have qualified. 34 to finance his quest for union office through this litiga- tion. By contrast, the plaintiff in Hall v. Cole, supra, was an ordinary union member who secured from his lawsuit a status and protection no different from that which the suit assured to all other members. The rule that a common-benefit award is permissible only where there is “reason for confidence that the costs could be shifted with some exactitude to those benefiting” was met in Hall but not here. Further, the award that appellant seeks would come from the union’s treasury, which consists of dues paid by 1,400,000 members throughout the United States and Canada; and only 9% of those members are within District 31." Thus 91% of any fee award here would be paid from the dues of members in other dis- tricts. Yet, the only election violations alleged in this lawsuit were alleged to have been committed by persons within District 31. And the consent order in the court below merely directed a rerun of the District 31 elec- tion. Members outside District 31 have no substantial interest in District 31’s elections, as is evidenced by the fact that they are not entitled to vote in those elections. The majority below acknowledged that those within District 31 received a “greater” benefit than those without (App. 36a), but professed nonetheless to find that those without “received a legally sufficient and significant benefit” (id.). That benefit was said to come in two parts. First, the effect of intervenor’s actions “was vindica- tion of democratic process in USWA elections, and his actions redound to the common benefit of the whole Union” (App. 33a). This i is so because 10 District 31 is an administrative sub-division of the aan which does not have a treasury of its own. Accordingly, :the only treasury against which intervenor could claim a fee.is that of the union. 35 “Sadlowski was not merely opposed by a mem- ber of the USWA ‘official family,’ Union officers and agents actively campaigned against him... Union leadership having exerted such effort to oppose the candidacy of a single insurgent, it would be naive to assume that similar election ‘irregularities’ have not or would not spread to other districts and locals where a member of the ‘official family’ ran opposed. Had such tactics been successful in District 31, there appears to be little doubt that they would have been employed again, and again.” (App. 33a). This analysis is riddled with non sequiturs: (i) As we have noted, there has been no finding in this case that any election “irregularities” occurred; the case was settled without an admission or finding of liability. Before it can be assumed, even by the non- “naive,” that irregularities “would have been employed again, and again,” it must be found that they were employed in the first place. (Contrast Hall v. Cole, where there were litigated findings of illegal behav- ior). Thus, as we have noted in Part I above, this case would have to be tried on the merits to determine whether this starting point for a fee award exis (ii) As we have further noted, the only “irregulari- ties” alleged by the Secretary were said to be com- mitted by persons within District 31, who have no capacity to employ them “again, and again” in other districts. Thus even if the Secretary’s allegations had 11 Where a settlement confers benefits directly upon a class of beneficiaries, it is unimportant whether that settlement was predicated upon violations. But here, the settlement does not confer any benefits directly upon members outside District 31, and the’ benefit is said to consist of the stifling of potential repetitions of misconduct. In that context, a determination that there was misconduct would be critical. ee ee 36 been proven and found, they would not furnish a predi- cate for a fee award outside District 31. The majority below thought it significant that the national officers had campaigned for intervenor’s opponent, but to jump from the innocent fact of campaign support to a con- clusion that the national officers were responsible for the local misconduct and would repeat it “again, and again” in other districts is not only a non sequitur, as the dissent noted (App. 50a-51a), it is contrary to the Secretary of Labor’s determination—which Congress intended would be conclusive*—that the sources of wrongdoing were local. Intervenor’s attorneys pro- posed to bridge this gap by undertaking to prove what the Secretary did not allege—that the national officers were responsible for the alleged violations. But as we have explained in Part I, the congressional plan would be undermined were intervenors allowed to prosecute allegations against national officers—allegations not deemed meritorious by the Secretary—solely to ration- alize a fee award which otherwise does not fit the common benefit rationale. (iii) Moreover, even if such litigation were allowed, and such violations were found, the majority below does not explain what “benefit” would have been con- ferred on members outside District 31 by the settle- ment here. There is no injunction against future mis- conduct: if misconduct occurred in a later election in another district, the Title IV process would have to begin all over just as if this case had never arisen. If the court’s unstated premise is that the outcome of this case will have educational value, teaching “union leaders” that defective elections will have to be rerun, it is doubly fallacious: (1) Title IV on its face teaches that; (2) it would equally justify an award against 12 Calhoon v. Harvey, 379 U.S. 134, 140 (1964). 37 the treasuries of other unions, whose leaders will have received the same education from the resolution of this case. The court acknowledged that it would be extend- ing the common ‘yenefit doctrine “to ludicrous dimen-. sions” to assess an award against a large group simply because “every union member, and every individual might be said to benefit from vindication of union democracy” (App. 35a). Apart from the “vindication of union democracy” rationale, the other “benefit” which the court below thought inured to members outside District 31 consists in the fact that while the “main function of a district director” is to administer his district, each director also serves on the union’s Executive Board (34a). But as members in other districts have no voice in selecting the director of District 31, a new election can “benefit” them only if the victor happens to take voting positions on the Board more to their liking. As this is a matter of personal predilection, and not all would likely favor a change, it cannot be the basis for assessing a fee against all. Moreover, even if all members were thought to “benefit” in this manner, the benefit is of a much smaller order than that conferred upon members in District 31—who allegedly have been provided an op- portunity for democratic expression theretofore denied them, and who are selecting the officer who will ad- minister their day-to-day union affairs. The interest of members outside District 31 here is less than that of a Vermont citizen in a congressional race in Missis- sippi (where the winner devotes a much larger propor- tion of his time to national affairs). The logic of the decision below thus would dictate—questions of sove- reign immunity aside—a fee award against the United States treasury whenever a candidate successfully challenged election misconduct in a single congres- sional race. 38 (2) Unjust Enrichment Apart from its failure to meet Alyeska’s require- ment of proportionate fee-shifting, the decision below founders on a separate point: there is not here the element of “unjust enrichment” which is the under- lying predicate for any common benefit award. As this Court explained is Hall v. Cole, supra: “*Fee shifting’ is justified in these cases, not because of any ‘bad faith’ of the defendant but, rather, because ‘[t]o allow the others to obtain full benefit from the plaintiff’s efforts without con- tributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff's expense.’ . « e r “Thus, as in Mills, reimbursement of respond- dent’s attorneys’ fees out of the union treasury simply shifts the costs of litigation to the class that has benefited from them and that would have had to pay them had it brought the suit.” 412 U.S. at 5-6, 8-9 (footnote omitted, emphasis added). Critical to this concept is that the beneficiaries would otherwise have had to pay the costs themselves to get the benefit. But the enforcement scheme of Title IV renders this concept inapplicable. Neither intervenor nor any other USWA member had the power to bring the lawsuit which conferred the benefits here. Only the Secretary had the power to bring that suit. When he did so, he acted, in effect, as the attorney for all the union members affected by the election. Trbovich, supra, 404 U.S. at 539. It is doubt- ful that any of the members other than intervenor would have had standing to intervene with their own attorneys; but even if they could have, there is not a shred of evidence to suggest that they were dissatisfied with the lawyer which Congress provided them free of charge. Intervenor, on the other hand, solely because of the special personal stake he had in the lawsuit, had a right, if he wished, to reject the Secretary’s free rep- resentation and to intervene with his own legal coun- sel. Ibid. He adopted that course. His intervention was permitted only for the purpose of protecting his per- sonal, political interests in the outcome; it in no way diminished the exclusive role of the Secretary as pro- tector of the general interests of the union members. Now, the Secretary having successfully settled the suit other intervenor’s objections, intervenor asks the entire membership of USWA to chip in to pay the fees of his personal lawyer—and to pay for the litigation neces- sary to determine what those fees should be. The concern for “unjust enrichment” underpinning the common benefit exception to the “American rule” does not fit this situation. Here, Congress conferred upon all union members a complete way to vindicate their interests in union democracy without cost: reli- ance upon the representation of the Secretary. To have so relied cannot be said to be “unjust.” To be saddled with the fees for intervenor’s personal attorneys can be said to be “unjust.” We have dwelt at length upon the infirmities of the decision below because we think it a dangerous pre- cedent in two respects: (1) In the particular instance of suits against unions, it threatens to discard the principles of Alyeska altogether, and to make international unions the “deep pocket” victims of fee awards whenever subsidiary union bodies commit violations of law. The rationale articulated by the majority below has no stopping point short of that result. At least one Circuit has rejected that rationale, declaring that to assess fees against the 40 international for a suit which corrected violations af- fecting a single local would be a “punitive award” not justified by the common benefit exception. McDonald v. Oliver, 525 F:2d 1217, 1228 (5th Cir. 1976). (2) More importantly, the decision below maps out an approach to undermining the principles of Alyeska which, if not checked, would usurp from Congress the prerogatives which Alyeska declared to reside in that body. If courts may so blatantly enforce their “private attorney general” precepts in the absence of statutory authorization, with so flimsy and facile lip service to the requirement of proportionate benefit which has historically marked the common benefit exception, there will be many cases in which judicial ingenuity would be equal to the task. CONCLUSION For the reasons set forth hereinabove, certiorari should be granted. Respectfully submitted, BERNARD KLEIMAN MICHAEL H. GOTTESMAN 1 East Wacker Drive ROBERT M. WEINBERG Suite 1910 Bredhoff, Gottesman, Cohen Chicago, Illinois 60601 & Weinberg 1000 Connecticut Ave., N.W. Washington, D.C. 20036 JAMES D. ENGLISH CARL B. FRANKEL Five Gateway Center Pittsburgh, PA 15222 Attorneys for Petitioner APPENDIX la APPENDIX A Before VAN DUSEN and ALDISERT, Circuit Judges, and BROTMAN, District Judge.* OPINION OF THE COURT VAN DUSEN, Circuit Judge. This is an appeal from a district court order, arising out of an action brought by the Secretary of Labor (Secretary) under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 481 et seq.,** to set aside an election for district director of District 31 of the United Steelworkers of America (USWA or Union). In this election, Edward Sadlowski, the intervenor-plaintiff, was narrowly defeated allegedly due to voting irregularities which violated LMRDA. After settlement was reached, a new election was held, which Sadlowski won by a substantial margin. The present appeal concerns the district court denial of intervenor-plaintiff’s application for attorneys’ fees and expenses incurred in the process of protesting and assisting the Secretary in attagking LMRDA violations. This appeal presents important problems in the adminis- tration of Title IV of the LMRDA. The district court held that a defeated candidate for union office who intervenes in an action brought by the Secretary of Labor to void an election is precluded by the statute from recovering an award of attorneys’ fees against the union, and that even if there is no statutory preclusion such an intervenor may not recover attorneys’ fees under the ‘‘common benefit”’’ doctrine for his actions in complaining to the Secretary, participating in litigation, shaping a settlement, and helping * Honorable Stanley S. Brotman, United States District Judge for the District of New Jersey, sitting by designation. ** See Appendix for the most pertinent provisions of Title IV (29 U.S.C. § 481 et seq.). 2a to police a rerun election.’ The Secretary takes no position on the district court denial of attorneys’ fees. Disagreeing with the district court as to both statutory preclusion and ‘‘common benefit,’’ we will reverse this district court order and remand for further consideration of this record in the light of the applicable legal principles and for further proceedings consistent with this opinion. I. HISTORY OF THE CASE As noted below at pages [5a, 25a, 30a—31la], this appeal is before the court on a motion to dismiss in which defendant requests that the application for attorneys’ fees ‘‘be dis- missed on its face (see page [30a—31a] below), without regard to the actual truth of (1) the allegations in this application, and (2) the statements in the other record documents, such as depositions. We emphasize that we are not passing on the truth of the statements in the record or on the character of the intervening plaintiffs, as opposed to that of the high- ranking officers of the union, but we are required, under the posture of the case as it existed at the time of the district court order from which the appeal was taken, to take all well-pleaded allegations in the record as true for purposes of this appeal and to construe them in the light most favor- ! The district court concluded : “. .. I find no support in fact or in law for the grant of counsel fees in a suit brought under the general provisions of Title IV of the L.M.R.D.A., 29 U.S.C. §§ 481-483. * * * * a ... The exception . . . recognized by the Third Circuit .. . {is} . . . (2) the conferring of a common benefit for the recovery of a fund or property; . * od ae “Counsel for the intervenor has failed to demonstrate the existence of . . . a basis in law or a recognized exception to the general American rule which recognizes an award of attorneys’ fees.” Brennan v. United Steelworkers for America, Civil Action No. 73-957 (W.D.Pa. December 11, 1975), reproduced in appendix at 20la—206a. We disagree with the above-quoted conclusion of the Wistrict court as applied to this record. 3a able to the plaintiffs (see page [30a—3la]). These record facts are important in the determination of whether the district court was justified in rejecting the application for attorneys’ fees as a matter of law, rather than making its. decision as a matter of discretion in the = of the record facts before it. On February 13, 1973, the USWA held an election for the position of district director of its District 31. That unit, with approximately 300 locals and 130,000 members in Illinois and Indiana, is the largest district in the Union. This election for district director was the first to be con- tested in nearly twenty-five years. The candidates were Edward Sadlowski and Samuel Evett, the personally chosen successor to the district’s long- time director, who was retiring after thirty years in office. Evett, in the words of then USWA President I. W. Abel, was the candidate of the Union’s ‘‘official family.’’*? Abel explained that the ‘‘ official family’’ was composed of incum- bent district directors and the officers of the International Union. The benefits of ‘‘official family’’ membership in- cluded automatic support—financial and otherwise—in their election efforts.* Early election returns gave Sadlowski a lead, but a com- plete tabulation took nearly three days. During that period Sadlowski received reports of widespread violations of LMRDA, such as ballot fraud, illegal electioneering, depri- vation of secret ballot, and interference with observers. The final tabulations published by the USWA International Tellers were: Evett 23,394, and Sadlowski 21,606. In view of the reports of massive irregularities, Sadlowski immedi- ately sought legal assistance to aid him in protesting the election in accordance with the requirements of the USWA constitution.‘ Such ‘a challenge was mandated by the LMRDA requirement that international union remedies be Perici ms of I. W. Abel at 5-7, Document No. 62B in Brennan v. U workers of America, Civil Action No. 7309678 (W.D.Pa., Filed August 22, 19%). . Id at 6-16. *See next page 4a exhausted as a prerequisite to filing a complaint about an election with the Secretary of Labor. Sadlowski’s protest was submitted to the USWA Inter- national Tellers on February 23, 1973, and a hearing was held on March 23, 1973. In late April 1973 the Tellers issued a report upholding the election of Evett. By letter dated May 1, 1973, Sadlowski appealed that decision to the USWA International Executive Board, again in accordance with the Union constitution. On May 31, 1973, with President I. W. Abel presiding, the Board considered Sadlowski’s complaint. On that same day the report of the Tellers was sustained. Sadlowski then filed a timely complaint with the Secre- tary, pursuant to Title IV of the LMRDA, 29 U.S.C. § 482(a). The Department of Labor completed its Report of Investigation in August 1973, and on November 8, 1973, the Secretary instituted suit in the Western District of Pennsylvania seeking to void the District 31 election. Sad- lowski’s motion to intervene as a plaintiff was granted by the district court in January 1974. After extensive pretrial proceedings, in which Sadlow- ski’s counsel played an active role, the district court ap- proved a settlement agreement, on August 23, 1974. It directed that a new election for district director be held on November 19, 1974. In this new election, Sadlowski was elected director of District 31 with 39,637 votes to 20,158 * Article V of the Constitution of the International Union of the United Steelworkers of America (AFL-CIO, CLC, adopted at Las Vegas, Nevada, September 21, 1972) provides in relevant part: “Sec. 18. All contests in connection with the votes of any Local Union must be filed with the International tellers not later than ten (10) days after the date of election, by a member of the Local Union whose vote is contested. * + -_ = = “Sec. 21. All contests growing out of the report of the International Tellers shall be filed with the International Executive Board, not later than ten (10) days following the mailing of the report to the Local Unions and candidates. The International Executive Board shall decide all such contests prior to June 1, of the election year.” ee —— 5a for Evett. An order and decree, based upon the Secretary’s certification of the election resu/ts, was entered on December 2, 1974. | On January 31, 1975, counsel for Sadlowski submitted. a Verified Application for Attorneys’ Fees and a support- ing memorandum. The district court referred the applica- tion to a magistrate. After briefing and argument, the mag- istrate recommended that the request be denied. Sadlowski filed exceptions to the magistrate’s recommendation, and after a hearing the district judge overruled the exceptions and adopted the Magistrate’s Report and Recommendation, making the sweeping legal conclusion set forth in note 1 above. This appeal followed. Il ISSUE OF STATUTORY PRECLUSION The threshold question in this case is whether an award of attorney’s fees to an intervenor-plaintiff such as Sadlowski is precluded by Title IV of the LMRDA.® 5 This issue has apparently been considered only once before on the appellate level, by the District of Columbia Circuit in Usery v. Local Union 639 International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., 543 F.2d 369 (D.C.Cir.1976) (hereinafter Local 639), cert, denied sub nom. Local Union No. 639 v. Marshall, —— US. ——, 97 S.Ct. 1159, 51 L.Ed.2d 573 (1977). We are greatly aided by the analysis of Judge Leventhal, and reach similar conclusions on very similar reasoning. Local 689 differs from the instant case in that there the court granted summary judgment for the Secretary and inter- venors, holding certain conduct to have been violative of Title IV; here a settlement agreement was reached whereby the USWA agreed to conduct a new election. As the Local 639 opinion noted, and as we find, the difference is not significant. Ultimate success in the form of a judgment has not been re- quired in other contexts, Mills v. Electric Auto-Lite Co., 396 U.S. 375, 396, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) ; Yablonski v. United Mine Workers, 151 U.S.App.D.C. 258, 466 F.2d 424, 431 (1972), cert. denied, 412 U.S. 918, 98 S.Ct. 272, 37 L.Ed.2d 144 (1978) ; cf. Kaham v. Rosenstiel, 424 F.2d 161 (3d Cir.), cert. denied sub nom. Glen Alden Corp v. Kaham, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970), and Sadlowski’s efforts and success are undiminished by the method used to achieve 6a The Union advances two reasons for finding preclusion, both of which fall under the rubric of the nature and com- prehensiveness of the remedial scheme: (1) the absence of specific authorization to award attorney’s fees under Title IV, and (2) the fact that the primary enforcement respon- sibility for Title IV rests with the Secretary of Labor rather than with private litigants. We disagree, because we have concluded that the district court had the right, in its discre- tion, to award attorneys’ fees on the record in this case. We hold that the district court did not have the power to reject the claim for attorneys’ fees on the basis of the legal conclusions stated in note 1 above, which we reject. A. Absence of Specific Authorization for an Award The Union urges that an award of attorney’s fees under Title IV of the LMRDA is precluded by the absence of any specific provision for such an award in Title IV, in view of specific provision for either attorney’s fees or appropriate relief in Titles I, II, III and V.° It buttresses this contention by noting that Congress rejected a bill, H.R. 8342, 86th Con., Ist Sess. § 402(a) (1959), which provided for union member suits under Title IV, and authorized the award of appropriate relief, inclding attorney’s fees. USWA primarily relies upon Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967) for the proposition that an explicit, comprehensive, and exclusive remedial scheme may bar the recovery of attorney’s fees. In Fleischmann, the Supreme Court held that, because the remedial provision of the Lan- * Title I, the bill of rights of union members, relies upon private enforcement and provides for “such relief ... as may be appropriate,” 29 U.S.C. § 412. Title II, reporting provisions, also relies upon private enforcement, but expressly provides for the discretionary award of attorney’s fees, 29 U.S.C. § 431(c). Title III, union trusteeships, provides for private en- forcement, and, like Title I, approves relief as may be appro- priate, 29 U.S.C. § 464(a). Title V, fiduciary responsibility of union officers, gives union members the right to sue, and specifically indicates that attorney’s fees are part of the “appropriate relief” recoverable, 29 U.S.C. § 501(b). Ta ham Act specifically ‘‘provided not only for injunctive relief, but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his in- fringement, the costs of the action, and damages which may be trebled in appropriate circumstances,’’ (386 U.S. at 719, 87 S.Ct. at 1408), such precise specification of remedies, encompassing authority which could as a practical matter be used to relieve the burden of counsel fees, presented a strong case against further judicial relief. Although we agree that a truly comprehensive remedial scheme may bar such an award in certain circumstances, we believe that the analytical method embraced by Fleischmann was substan- tially undercut by later Supreme Court decisions, thus cast- ing considerable doubt upon the interpretation urged by the USWA.’ m In Fleischmann, the Court was willing to find preclusion in Congress’ selective provision of attorney’s fees in other statutes and unsuccessful efforts to enact a similar measure into the Lanham Act. But in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) and Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), the Supreme Court enunciated a presumption against preclu- sion and sanctioned ‘‘common benefit’’ awards in the con- text of statutory causes of action despite the provision for attorney’s fees in other sections of the same statute. Mills, 396 U.S. at 390-91, 90 S.Ct. 616; Hall, 412 U.S. at 10-11, 93 S.Ct. 1943. In Hall, the Supreme Court held that a plaintiff in a suit instituted under Title I of the LMRDA could recover attor- ney’s fees even though Title I does not specifically authorize such an award. It stated that unless remedies are ‘‘ ‘meticu- lously detailed,’ ’’ to ‘‘ ‘mark the boundaries of power to award monetary relief,’ ’’ 412 U.S. at 9, 93 S.Ct. at 1948, or the legislative history presents an unmistakably *‘ ‘de- finite and absolute setting of the Congressional face against the giving of such incidental relief by the courts where * See Comment, The Allocation of Attorney’s Fees After Mills v, Electric Auto-Lite Co., 38 U.Chi. L.Rev. 316, 321-25 (1971). 8a . compatible with established equitable principles,’ ’’ td. at 12, 93 S.Ct. at 1950, it will not be inferred that Congress desired to deny to the courts the traditional power to grant equitable relief in the form of counsel fees in appropriate cases. At oral argument the Union’s counsel contended that the rejection by Congress of a version of Title IV that provided for direct private enforcement and attorney’s fees was conclusive evidence of an intent to limit the courts’ exercise of their equitable powers in suits under Title IV. Such intent cannot, in our view, be drawn from the legis- lative record. As the Supreme Court’s review of this legis- lative history in Trbovich v. United Mine Workers, 404 U.S. 528, 532-36, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) makes clear, congressional debate centered upon the relative merits of enforcement actions by union members and by the Secretary of Labor—not upon the propriety or the possiblity of equitable awards. Local 639 pointed out: ‘‘The Conference Committee and the House ultimately adopted the public enforcement scheme of the Kennedy- Ervin bill, S. 1555, presumably because they agreed with the Senate that the Secretary should screen frivolous complaints and consolidate meritorious ones.” This leg- 51 The Conference Report simply states that the Senate bill’s administrative enforcement scheme prevailed over the House bill’s private suit provision, without tendering any explana- tion for the outcome. H.R.Rep.No.1147, 86th Cong., Ist Sess. 35 (1959). islative history, as Trbovich holds, ‘can in no sense be read as a rejection of all forms of private participation in enforcement litigation,’ because Congress never fo- cused on ‘the possibility that union members might assist the Secretary rather than displace him.’ Jd. at 536, 92 S.Ct. 630. Similarly, while Congress adopted a particular mode of enforcement, it failed to address with any detail the scope of relief, or what the court’s role would be at the remedial stage. [One footnote omitted.]”’ 543 F.2d at 387. In no sense can this legislative history be said to offer the affirmative guidance the Union asserts that ey 9a it does. As Professor Archibald Cox, a principal consultant to the draftsmen of the LMRDA, has suggested: ‘*because much of the bill was written on the floor of the Senate or House of Representatives and because so many sections contain calculated ambiguities or political compromises . . ., the courts would be well advised to seek out the underlying rationale without placing great emphasis on close construction of the words.’’ Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960). To hold that the undisenssed, unexplained adoption of an alternative enforceraent scheme satisfies the ‘‘definite and absolute’’ standara promulgated by Hall would, in this case, be incorrect. Nor do we believe that the remedial scheme created by Title IV approaches the meticulous detail of the provision involved in Fleischmann—or the detail necessary for a find- ing of preclusion of equitable powers and remedies. Since its enactment, the LMRDA, and Title IV, enforcement scheme has been filled out by the court with many details. In Hall v. Cole, which dealt with preclusion of the exercise of equitable powers and the award of attorney’s fees under Title I of the LMRDA, the petitioners argued that Congress intended to preclude any such award under Title I since it only provided for ‘‘such relief (including injunctions) as may be appropriate,’’ while §§ 201(¢c) (29 U.S.C. § 431 (c)) and 501(b) (29 U.S.C. § 501(b)), expressly provided for attorney’s fees. In response, the Supreme Court stated that: ‘‘Confronted with a virtually identical situation in Mills, we explained that the inclusion in certain sections of the Securities Exchange Act of 1934 of express provi- sions for recovery of attorney’s fees ‘should not be read as denying to the courts the power to award counsel fees in suits under other sections of the Act when circum- stances make such an award appropriate. . . .’ 396 U.S., at 390-91, 90 S.Ct. [616], at 625.” 412 U.S. at 11, 93 S.Ct. at 1949. Title IV itself has been the subject of considerable judicial a i i a i a a 10a elaboration and expansion. In Trbovich, supra, the Supreme Court held that union member intervention in suits brought by the Secretary for violation of Title IV was not precluded by the fact that actions by the Secretary are the exclusive post-election remedy provided for by the statute. T'rbovich was extended in Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), which held that union members are entitled to a statement of supporting reasons where the Secretary decides not to pursue the union member’s complaint. The fact that the Supreme Court has found it necessary to supplement the structure of Title [IV on two occasions suggests that the guidelines of Hall (see page [7a—8a] above) have been met by the facts of this case. Also, Trbo- vich and Bachowski go much further toward supporting the view that: ‘‘notwithstanding the absence of a broad relief provi- sion in section 402, the court in a Title IV action faces the same task as if it were adjudicating a union member suit under the other titles—to grant relief according to the necessities of the case, «.e., to fashion ‘appropriate’ relief.’’ Local 639, 543 F.2d at 388. The question is not whether a union member is entitled to recover attorney’s fees under the statute alone, where the role prescribed for him is com- plaint to the Secretary after exhaustion of internal union procedures. The question is what relief a union member is entitled to after having intervened in and participated in the prosecution of an action brought by the Secretary under Title IV in the manner anticipated by the Supreme Court in Trbovich. B. Intervenor’s Role in Administrative Enforcement At the outset of this inquiry, it is.elear that the Sec- retary has the exclusive power to bring post-election chal- lenge suits, and that aggrieved candidates are permitted to intervene solely to support the Secretary’s complaint and may not add substantive claims. See Trbovich, 404 U.S. at 530-37, 92 S.Ct. 630. However, correct as those observations are, they overlook the role of union members and interven- lla ors in prosecution of Title IV violations, and the relation- ship between union members, intervenors, and the Depart- ment of Labor under both the statute and the relevant Supreme Court decisions. ' Even a sciut the gloss of case law, it is apparent that the Congress intended to rely heavily upon the vigorous efforts of union members in prosecuting Title IV violations. The statutory framework embodies a critical role for union members. The initial burden of enforcement falls upon the individ- ual member, and the Secretary’s role is defined by those efforts. The first step in enforcement, under section 402(a), is for a union member to challenge the election before the union. Once remedies available under the union constitution and by-laws have been exhausted, or have been invoked without obtaining final decision within three calendar months, the union member may, within one calendar month thereafter, file a complaint with the Secretary alleg- ing violation of any provision of Title IV. Once the union member’s complaint has been filed with the Secretary, section 402(b) directs the Secretary to inves- tigate it. If he finds probable cause to believe that a viola- tion has occurred and has not been remedied, he must, within 60 days after the filing of such a complaint, bring a civil action in federal district court against the labor organiza- tion to set aside the invalid election. If the court finds a violation of Title IV it may declare the election void, and direct the conduct of a new election under the Secretary’s supervision. As the Supreme Court’ 's review of the legislative history, in Trbovich, 404 U.S. at 532-33, 92 S.Ct. at 633, indicates: ‘‘Congress made suit *by the Secretary the exclusive post-election ‘remedy for two principal reasons: (1) to -protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to cen- tralize in a single proceeding such litigation as might be warranted with respect to a single election. Title IV as. enacted serves these purposes by referring all complaints to the Secretary so that he ean screen out frivolous ones,: 12a and by consolidating all meritorious complaints in a single proceeding, the Secretary’s suit in federal district court. The alternative proposals were rejected simply because they failed to accomplish these objectives. There is no evidence whatever that Congress was opposed to partici- pation by union members in the litigation, so long as that participation did not interfere with the screening and centralizing functions of the Secretary.”’ The addition of the exhaustion requirement, section 402(a) (1), provides additional protection for the union, since unions are thereby given the opportunity to resolve union member complaints internally and may correct any election irregularities themselves. Yet, as is undeniably apparent, at the same time Congress sought to prevent frivolous liti- gation it created a pivotal role for union members in the enforcement process. In fact, quick action and skillful advocacy are prob- ably most important at the initial stages of the enforcement scheme, when infractions must be identified, a bill of par- ticulars formulated, the internal union procedures exhaust- ed, and a complaint drafted for presentation to the Secre- tary. Prompt, thorough, and proper action in the earliest stages is essential to vindication of Title IV rights, since preservation of all election defects is a prerequisite to gov- ernment intervention. The Secretary may not seek to avoid an election on bases not raised in ‘‘some discernible fash- ion’’ by the complainant before the union, Hodgson v. Local 6799, Steel Workers, 403 U.S. 333, 340-41, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), or which the union did not have a fair opportunity to consider and redress. Wirtz v. Local 125, Laborers, 389 U.S. 477, 484, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968). The clear effect of Title IV is to make the Secretary dependent upon the diligence of the union member. The Secretary’s very authority to sue derives from the union member’s pursuit of Title IV remedies and sub- sequent formal filing of a complaint with the Secretary. Since Trbovich, union members play an even more signifi- cant role in the prosecution of Title IV violations, as inter- venors. As the United States Court of Appeals for the Dis- 13a trict of Columbia Circuit noted in Local 639: “It is not difficult to conceive of examples of material assistance to the Secretary and the court in the vindica- tion of the interest—of the public and the union rank and’ file—in union democracy... . [C]ounsel representing the intervenor may unearth material and even elusive evi- dence, or develop telling arguments in support of the Secretary’s claims of illegality. ... [T]he Trbovich court envisoned that intervenors would perform a role inde- pendent of the Secretary in helping the court fashion a suitable remedial order, and perhaps even assist the Sec- retary in supervising the conduct of the rerun... . [S]ound principle advises that error is more likely to be exposed when intervenors are able to secure competent counsel because of the prospect of recovering attorney’s fees.’’ [Footnotes omitted. ] 543 F.2d at 384. The notion of private participation in the prosecution of Title IV violations, notwithstanding the involvement of the Department of Labor, is fully consistent with the form and purpose of this statute. Not only is the intervenor often in a position to obtain information which might, for what- ever reason, be difficult for the agency to marshall or pre- serve, but his perspective and the intensity of his interest allow him to contribute to the court’s total understanding.® Sadlowski’s experiences and activities in protesting elec- tion irregularities provide a vivid illustraton of obstacles which complainants and intervenors face—and the insights their involvement can render. They also offer a glimpse into the actual operation of Title IV. After suspiciously late returns from key locals, and re- ports of Title IV violations during the February 13, 1973 election, Sadlowski decided to contest the reported results and sought legal assistance. His need for counsel cannot be doubted. From the time, three days after the election, that Chicago attorney Leon Despres agreed to represent him, ® Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 746 (1968). l4a Sadlowski had only seven days to file an appeal with the USWA International Tellers, under the terms of the Union constitution. To appeal an election involving 300 locals with 130,000 members is no mean task under the most congenial circumstances, and time constraints, combined with the ne- cessity for aceurate, complete, and properly presented claims firmly underscore the fact that Sadlowski’s decision to seek legal assistance in the prosecution of the challenge was neither gratuitous nor whimsical. As noted above, Title IV of the LMRDA requires that the complaining union member exhaust internal remedies before complaining to the Secretary of Labor. But even after those procedures have been pursued, the Secretary is dependent upon the substance of the union member’s complaint to the union. During the seven-day period after he agreed to aid Sad- lowski, Despres examined the USWA constitution and pro- cedures, and the applicable legal authorities. He interviewed Sadlowski and numerous witnesses, and assisted Sadlowski in interviewing still other witnesses. He prepared affidavits and statements, and gathered documents. Sadlowski sub- mitted his protest of the election to the USWA Interna- tional Tellers on February 23, 1973. During the month be- tween submission of his protest and the date which had been set for hearing, Despres continued to supervise efforts to obtain evidence for the hearing, and prepared materials for Sadlowski to utilize at the hearing (which Despres was not permitted to attend). When the International Tellers upheld the result of the disputed election, and Sadlowski decided to contest their decision, Despres aided him in exhausting internal union remedies through assistance in his appeal to the Interna- tional Executive Board. Sadlowski appeared before that body, presided over by USWA President I. W. Abel (who had previously campaigned for Evett). Despres was not permitted to accompany Sadlowski at the Executive Board hearing. When the International Tellers report was upheld by the Union leadership, Sadlowski resolved to complain to the 15a Secretary pursuant to 29 U.S.C. § 482(a), requiring that a complaint be filed within 30 days of exhaustion of union remedies leading to denial of relief. In preparation, Despres interviewed witnesses to obtain statements and conferred with Sadlowski for the purpose of preparing materials to be filed with the Department of Labor in order to induce the Secretary to challenge the election. Despres assisted Sad- lowski in the preparation of a brief and argument for the Secretary of Labor, which accompanied the actual com- plaint filed with the Secretary. The materials and complaint presented to the Secretary totalled nearly 100 pages. Under these circumstances, the Department of Labor relied almost exclusively upon Sadlowski’s charges in con- ducting its investigation. The compliance officer in charge of the investigation noted that in making its inquiry the Department concentrated upon those locals at whch Sad- lowski alleged the most egregious violations to have oc- curred. Sadlowski’s allegations were borne out by the De- partment’s own investigation. Nevertheless, the Department did not bring suit within the 60 day period required by statute, and instead agreed with the USWA in both July and August of 1973 to exten- sions of time within which any action might be brought. Sadlowski and Despres became understandably apprehen- sive about the Department inaction, in view of findings by Department investigators of wrong-doing. Concerned about the prospect of further delay, they agreed that Sadlowski should seek the assistance of a Washington, D.C. attorney, Joseph Rauh, Jr., experienced in LMRDA proceedings. Rauh agreed to assist Sadlowski and Despres. as Shortly after Rauh was retained, the Department of La bor agreed to the further extension of the time for bringing any action until November 1973. Rauh immediately protest- ed the extension to the Department, and no further exten- sions were granted. Rauh familiarized himself with the elec- tion and informed the Deputy Assistant Secretary of Labor of the nature and degree of the violations which had oc- curred. Rauh also indicated his intention to bring suit to set aside the arbitrary inaction of the Secretary if suit were 16a not instituted by November. Cf. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). The Secre- tary did institute suit challenging the District 31 election, on November 8, 1973. Sadlowski’s counsel thereupon assisted him in intervening in the Secretary’s action and obtaining the aid of local counsel from Washington, Pennsylvania, Kenneth Yablonski. Upon the granting of intervention Sadlowski and his counsel enlisted the aid of a younger New York attorney, Judith Schneider, to assist in the con- siderable task of gathering and presenting evidence. Although the suit had been filed in November 1973, and despite Congress’ apparent intention that such suits be expec ted, the first significant step in prosecution of the action occurred after Sadlowski’s intervention in January 1974, and a February 1974 meeting with Department of Labor officials at which Sadlowski’s attorneys urged prompt action in the case. The Department officials informed Sad- lowski’s attorneys at the meeting that the latter could be of valuable assistance to the Department in following up leads and in providing information relevant to the prosecu- tion of the case. The USWA finally filed its answer to the complaints, and the Department, armed with information provided by Sadiowski’s attorneys and at their urging, took its first step toward discovery: the service on the USWA of a request to produce documents. The Department also filed a motion for expedited trial and to fix the discovery calendar, which Sadlowski’s attorneys supported by an ex- tensive memorandum urging a prompt resolution of the case. In response, the USWA asserted that it would be difficult to begin discovery until August 1974. The district court conducted a hearing on the Depart- ment’s motion on March 21, 1974, and was critical of the delays both in the Department’s filing of the complaint, and in the USWA’s filing of its answers. Counsel for both the Department of Labor and the USWA indicated that they had tentatively agreed that discovery could begin as late as August of 1974. Sadlowski’s attorneys opposed such a schedule and urged that discovery should begin immediately and be completed as soon as possible. Accepting the recom- 17a mendation of Sadlowski’s attorneys, the district court or- dered that discovery be completed within 90 days. Nevertheless, the only Department of Labor discovery which took place within that 90-day period turned out to_ be the April 1974 service of interrogatories on the USWA. Also in April, Sadlowski’s attorneys were advised that set- tlement negotiations were taking place between the Depart- ment and the USWA. A Department official informed Sad- lowski’s counsel that the Department was considering USWA proposals to divide District 31 into two parts (Illi- nois and Indiana), and another proposal to conduct a new election, but with a reopening of nominations. Sadlowski’s attorneys strongly protested these proposals.’ The ultimate settlement agreed to by the Department did not include either proposal. In early May 1974, Sadlowski’s attorneys were advised by the Department of Labor Regional Solicitor in Chicago that he believed continued efforts by Sadlowski would ma- terially aid in securing USWA capitulation and agreement to a new election. Also, a Department lawyer in Philadelphia told Sadlowski’s lawyers that Department investigation would proceed no further. Sadlowski’s counsel thereupon continued their own investigation into the improprieties in the original election, particularly into ballot frauds by local union officials, and the use of union funds for Evett’s cam- paign. Among other activities, Sadlowski’s attorneys took the depositions of Evett, and his campaign manager. They also noticed the depositions of presidents of local unions within District 31 where considerable evidence of ballot fraud was found; there were allegations of involvement by Evett’s staff in those instances. In at least one local, the membership had imposed fines and suspension upon its president and tellers for vote fra d. An International Com- mission of USWA officials later recommended that the fines and suspensions be lifted. Sadlowski’s attorneys protested 18a this action in a telegram to the International Executive Board, which decided to reject the recommendation. When the Department sought Sadlowski’s consent to the proposed settlément agreement, in July 1974, Sadlowski’s attorneys proposed changes in the settlement calculated to assure a fair election. They moved for a hearing on the Department/USWA motion for approval of the settlement, at which the suggested amendments were presented to the district court. But while urging the court to exercise its power to assure fair terms for a new election, Sadlowski’s attorneys indicated that any new election, however unfair, would be preferable to further delays. Sadlowski’s attor- neys were successful in achieving a stipulation that there would be no changes in the boundaries of District 31, as had previously been suggested by the Department and USWA, and they convinced the court that the new election should be held before November 19, 1974, as opposed to the November 29 date proposed in the agreement—which fell on Thanksgiving weekend and might well have resulted in a small turnout for the new election. In addition, Sadlowski’s attorneys argued their case against a mail ballot, the use of which was ultimately abandoned by the Department. At the same August 29, 1974 hearing the district court also made it clear that it expected Sadlowski to forward a plan for a fair election to the Department of Labor, and his counsel did forward to the Secretary an extensive appli- cation seeking orders which would insure a fair election. The Department of Labor indicated, in October 1974, the actions it had taken in response to Sadlowski’s requests, and stated that it had gained the USWA’s agreement to abandon the mail ballot in favor of on-site voting in the new election. The Department also required that certain staff contributions of time and money to union-backed candidates be circumscribed and carefully controlled, and that records of such contributions be maintained. In direct response to Sadlowski’s request, the Department also agreed to issue an order forbidding union staff members from campaigning on union time or utilizing union facilities for campaigning. The Department also decided to order the USWA ‘to pre- 19a pare certain lists of information relating to the various locals within District 31, and to provide such information to all candidates, including Sadiowski. The record makes clear that the impetus for many of these actions was Sad- lowski’s urging. As a result of further prodding, the Department of Labor held a pre-election conference in Chicago. Sadlowski’s coun- sel succeeded in proposing and embodying numerous pro- visions in the rules for the upcoming election, including: a provision for custody of ballots in and accrediting of elec- tion observers by the Department of Labor; a provision requiring that the election supervisor be given the identity and addresses of various worksites (and that the same be given to Sadlowski as well) ; a provision for record-keeping as to contributions by staff representatives of the USWA to candidates in the election. Sadlowski’s counsel later per- suaded the Department to send a letter with the election rules to the effect that campaigning on union time by union staff employees was improper. : ; The Department of Labor also agreed with the suggestion of Sadlowski’s counsel that observers: be permitted at the sites to assist the Department in monitoring the election, and conceded that it alone could not enforce the election and campaigning rules. The Departmeni therefore encouraged the filing of compaints relating to election violations, and Sadlowski’s attorneys undertook to assist the Department in enforcing those rules and insuring a fair election. Sad- lowski’s counsel were also active in widely dissemmating the rules, and encouraging union members to report viola- tions, and they pinpointed particularly problematic proce- dures, and problem locals. At their urging, the Department implemented systems designed to speed the checking of voter eligibility and avoid voting card fraud and delays from too few voting lines. The final Department of Labor figures for the election were: Sadlowski 39,637 and Evett 20,158. By the time oi the election, Evett had held the dis- puted position for over a year and. one-half. | This detailed recapitulation of the actions under- taken by Sadlowski’s attorneys is not in any sense intended 20a to denigrate or detract from the enormous effort which the Department of Labor devoted to the prosecution of the vio- lations and the conduct of a fair election. The record makes clear the mairy thousands of man-hours which the Depart- ment spent on this case, and we do not suggest that they were other than conscientiously and profitably expended. However, we disagree with the district court characteriza- tion of the efforts of intervenor Sadlowski’s counsel as ‘‘self-serving and at the most a mere fraction of and duplicitous of the work entrusted to the Secretary by the Congress.’’ Brennan v. United Steelworkers of America, District 31, Sadlowski, Intervenor, Civil Action No. 73-957 (W.D.Pa. December 11, 1975), reproduced in appendix at 201a-207a. As the survey above suggests, an intervenor can fulfill many functions, and the better the lawyers involved the better this scheme will function. As Local 639 indicates: ‘“‘As the Secretary’s determination to take no position on this issue [of the propriety of an award of attorney’s fees] suggests, allowance of attorney’s fees for union member efforts in aid of the Secretary’s action does not undercut the exclusivity of the administrative remedy. ‘Congress, although committed to minimal intervention, was obviously equally committed iv making that interven- tion, once warranted, effective in carrying out the basic aid of Title IV.’ Wirtz v. Local 153, Glass Bottle Blowers, 389, U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). 043 F.2d at 385-86. The agency and the intervenor perform truly different roles, with, in our view, considerably less overlap and waste than the district court found. The De- partment of Labor performs a quasi-judicial, rather than a purely adversarial role in Title IV cases. Its duty is to the public, its own policies, the union interest, and the individ- ual. In deciding whether to institute suit, what to complain of, and what to settle for, t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0003%3A1. Public record. Not legal advice.