# Record and brief — United Steelworkers v. Sadlowski > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2053%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 459 U.S. 823 ## Text — 81-1906 | In THE - 4 Supreme Gourt, U.S. i FILED APR 15 1992 No. ALEXANDER TL STEVAS CLERK Supreme Court of the United States OCTOBER TERM, 1981 UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, v. EDWARD SADLOWSKI, JOSEPH F. RAUH, JR., LEON DESPRES, KENNETH YABLONSKI, JUDITH SCHNEIDER, and RAYMOND DONOVAN, Secretary of Labor, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT LAURENCE GOLD RoBERT M. WEINBERG AFL-CIO (Counsel of Record) 815 16th Street, N.W. MicHarcL H. GoTTESMAN Washington, D.C. 20036 Davin M. SILBERMAN (202) 687-5390 BREDHOFF & KAISER 1000 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 833-9340 Attorneys for Petitioner WILSON - Eres Printine Co. Inc. - 789-0096 - WasHINGTON, D.C. 20001 2 — QUESTIONS PRESENTED 1, Whether in an action to set aside a union election brought by the Secretary of Labor under Titie IV of the Labor-Management Reporting and Disclosure Act of 1959 a “common benefit” attorneys’ fee award to a pri- vate intervenor is inconsistent with, and therefore pre- cluded by, the remedial scheme of Title IV. 2. If not: (A) Whether the “common benefit” doctrine requires a claimant seeking an attorneys’ fee award to prove as an element of his fee claim that but for his legal services the asserted benefit would not have been realized. (B) Whether the “common benefit” doctrine, which allows an attorneys’ fee award, only where the award operate [s] to spread the cost of litigation proportion- ately among the beneficiaries,” permits a fee award where the client for whom the legal services were performed has realized a unique benefit from the litigation (in this case, a high union office with a substantial salary), a small portion of those who would be required to pay the fee realized at best a less substantial benefit (here, the oppor- tunity to vote in a rerun election in their district of the union), and any benefit received by the overwhelming majority of those who would be required to pay the fee (i.e., those union members outside the district in which the rerun election was conducted) was still less sub- stantial. (i) TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF AUTHORITIES . OPINIONS BELOW MRISDICTIIN&ðd STATUTORY PROVISIONS INVOLVED ........ STATEMENT OF THE CASE Introduction —— — Statement of Facts REASONS FOR GRANTING THE WRIT ........ I. The Statutory Preclusion Issue —— — ——— II. The Common Benefit“ Issues CONCLUSION (iii) 4 — E: es te e de de = 2 5 iv TABLE OF AUTHORITIES CASES Page Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 9, 18-23 American Association of Marriage and Family Counselors v. Brown, 598 F.2d 1865 (D.C. Cir. 88 ——ðtv⸗. ͤͤ4r—)tñ—— 23 Bender v. Crown, 551 F.2d 169 (7th Cir. 1977) ... 19 Boeing Co. v. Van Germert, 444 U.S. 472 18 Brennan v. UAW Community Action Program, 86 L.R.R.M, 3188 (D. Conn. 1974) 8 Calhoon v. Harvey, 379 US. 134 10, 16 Cantwell v. County of San Mateo, 631 F.2d 631 COGRa Cle, DOG) nnn ancninaccsseancccenemevenrcernerrcsntnco sens 23 Donovan v. Machinists Local Lodge 79, 109 LRRM 2584 (W.D. Wash. 198177. —— 8 Donovan v. Teamsters Local 70, 661 F.2d 1199 CI Ba I ———— 8 Donovan v. Teamsters Local 326, No. 79-514 (D. Del., Feb. 1, 1982) 8 Dunlop v. Bachowski, 421 ‘US. . 10 Fleischmann Corp. v. Maier Brewing, 386 U.S. 1 —A—A—A en EES Ae ee 9, 10, 12, 13 Grace v. Ludwig, 484 F.2d 1262 (2d Cir. 1973), cert. denied, 416 U.S. 9044 19 Innen nen passim Hodgson v. Steehoorkers, 408 U.S. 333 ...............- 13, 17 Marshall v. Teamsters Local 20, 509 F.Supp. 926 COE TD, CORA RE) ina .. 8 McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1978) 23 Mills v. Electric Auto-Lite Co., 396 U.S. 375..11, 12, 18, 20 Southeast Legal Defense Group v. Adams, 657 F.2d 0 23 Trbovich v. Mine Workers, 404 U.S. 528 passim Usery v. Teamsters Local 639, 548 F.2d 369 (D.C. Cir. 1976), cert. denied, 429 U.S. 1123 —.............. 8 Wirtz v. Bottle Blowers Assn., 889 U.S. 468 10, 16 Wirtz v. Laborers Union, 389 U.S. 477 ..............-.-.... 18, 17 v TABLE OF AUTHORITIES—Continued STATUTES Page Labor-Management Reporting and Disclosure Act of 1959 29 U.S.C. § 412 11 29 U.S.C. § 431 (e) 11 29 US.C. § 464 (a) 11 29 U.S.C. § 482 2, 9, 10 29 U.S.C. § 483 2, 9, 10 29 U.S.C. 8 501 (b) 11 MISCELLANEOUS Mallin, Title IV of the LMRDA—Should Interven- ing Plaintiffs Be Permitted to Recover Attorney's Fees? 48 U. Cinn. L. Rev. 345 (1979) 16 N IN THE Supreme Court of the United States OCTOBER TERM, 1981 No. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, V. EDWARD SADLOWSKI, JOSEPH F. RAUH, IR., LEON DESPRES, KENNETH YABLONSKI, JUDITH SCHNEIDER, and RAYMOND DONOVAN, Secretary of Labor, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Petitioner, Petitioner United Steelworkers of America, AFL-CIO- CLC, respectfully prays that a writ of certiorari issue to cember 16, 1981, and amended on January 7, 1982. OPINIONS BELOW dix A. The judgment and amended judgment of the court of appeals are unreported and are reprinted as Appendices I and J. JURISDICTION The court of appeals entered its judgment on Decem- ber 16, 1981, and an amended judgment on January 8,7 1982. On March 5, 1982, Justice Brennan entered an Order (App. K), extending the time for filing the peti- tion to April 15, 1982. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED Sections 402 and 403 of the LMRDA, 29 U.S.C. §§ 482, 483, are reprinted as an appendix at the back of this petiticn. STATEMENT OF THE CASE Introduction This case began in November, 1973, as an action the Secretary of Labor under Title IV of the Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et sc. (“LMRDA”), to set aside the 1973 election for district director of District 31 of the Uni Steelworkers of America (“USWA”). Edward Sadlow- fe 4 ski, the defeated candidate in the election, was granted leave to intervene. Approximately eight months after suit was filed, the Department of Labor (“DOL”) and USWA agreed to resolve the case by holding a DOL- supervised rerun of the disputed election. Since that time, the case has continued as an effort by the four attorneys for intervenor Sadlowski to obtain an award of fees from the membership of the USWA under the “common benefit” exception to the American rule against the shifting of fees. The case has been be- fore the United States Court of Appeals for the Third Circuit on two occasions, and has resulted in a judgment from that court directing the district court to award fees. USWA seeks review of that judgment here. Statement of Facts In February, 1978, USWA conducted elections for dis- trict directors of the 25 districts (i.e., geographic re- gions) into which the Union is divided. After the elec- tions, Sadlowski—the defeated candidate for director of District 31—protested the District 31 election in accord- ance with USWA’s internal procedures for resolving election contests. Sadlowski’s protest was denied by USWA. Sadlowski then submitted a complaint to the Secretary of Labor under Title IV of the LMRDA. The Secretary investigated the challenged election, assigning 19 investi- gators to the case full-time who interviewed hundreds of witnesses in over 2,600 hours of investigation (App. 26a). Based on the results of the investigation, the Sec- retary instituted a suit tooverturn the election. Sadlowski was granted leave to intervene to protect his personal interest qua candidate in accordance with this Court’s decision in Trbovich v. Mine Workers, 404 U.S. 528. Sadlowski’s compiaint-in-intervention added no substantive allegations to the Secretary’s complaint, but requested eight items of additional relief. _ Approximately eight months after suit was filed, the DOL and USWA agreed to resolve the admission of violation, by holding a DOL-supervised rerun neys participated in negotiating the settlement and they declined to join it, terming it, in a document filed with the district court, “totally inadequate” and “an unconscion- able denial” of Sadlowski’s rights, and proposing eight modifications in the agreement (paralleling the items of relief sought in Sadlowski's complaint)“ With one minor change, the district court approved the settlement agree- ment as submitted. As approved, the agreement contained none of the relief requested either in Sadlowski’s complaint or in his objections to the settlement. In November, 1974, a new election was held under DOL supervision which Sad- lowski won. Sadlowski was thereafter installed as Dis- trict Director. In January, 1975, respondents filed a “Verified Appli- cation” requesting that they be awarded approximately $500,000 in attorneys’ fees from the USWA treasury. That treasury contains the dues of USWA’s 1,400,000 members throughout the United States and Canada, in- cluding the 130,000 members within District 31.2 Re- spondents premised their fee claim on the “common bene- fit” exception to the American rule against fee shifting, contending that the rerun of the District 31 election had benefited the USWA membership as a whole and that respondents were responsible for conferring that benefit. USWA moved to dismiss the fee application on two grounds. First, USWA argued that an award of fees to a private intervenor in a Title IV action is inconsistent 1 The document referred to in text is reprinted in volume one of the Joint Appendix filed in the court of appeals at 233-39. (That Appendix is hereinafter cited as JA 9 2 Districts in the USWA are administrative subdivisions of the International Union and do not have treasuries of their own. with, and thus is precluded by, the remedial scheme of Title IV. Second, USWA urged that, in any event, re- spondents’ fee application did not state a basis for a com- mon benefit fee award from USWA’s treasury as the application revealed that the “benefit” that allegedly was conferred by respondents was not “common” to all of USWA’s members but was conferred principally upon Sadlowski, who won an important union office (with a $35,000 salary), and secondarily on those USWA mem- bers within District 31 who had received the “bencut” of a new election to choose their District Director; USWA contended that the application alleged no benefit to the over 90% USWA members who are outside of District 31 and who would bear the major share of any fee award against USWA’s treasury. The district court sustained both of USWA’s conten- tions and dismissed the fee application (App. 154a-73a). Respondents appealed. On the first appeal, a divided panel of the court of appeals reversed. That court overturned the district court’s statutory preclusion ruling, holding that a common benefit fee award “is wholly consistent with Title IV of the LMRDA” (App. 117a; see pp. 11-12, infra). And the ap- pelate court further found respondents’ fee application sufficient to state a common benefit fee claim (App. 117a- 35a; see p. 22, infra). Accordingly, the court remanded the case for a determination of “[w]hether an award is warranted and, if so, the amount of such award” (App. 136a). USWA petitioned this Court for a writ of certiorari, raising both the statutory preclusion and no-common- benefit issues. Respondents opposed the petition (Br. at 4) on the ground, inter alia, that since “no attorneys’ fees have yet been awarded” and since the appellate court had “simply ruled that fees are permissible here, . . [r]eview by this Court in such circumstances would be wholly pre- mature and unwarranted.” This Court denied the peti- tion for certiorari. Justice White filed a dissenting opin- * ion in which Justices Stewart and Rehnquist joined sug- gesting that both questions merited review (App. 89a- 98a ; see p. 7, infra). On remand, the case was referred to a magistrate and was submitted for decision on the basis of the voluminous record developed on remand (including transcripts of 11 depositions, 13 affidavits, and over 260 exhibits) as well as on the presettlement record. The Magistrate issued a report recommending that the fee claim be denied. The Magistrate concluded, as a matter of law, that entitlement to a common benefit award requires “ ‘a proven causal relationship be- tween the efforts of counsel and the benefits allegedly de- rived therefrom’ ”—that is, a showing that but for coun- sels’ efforts the benefit would not have been realized (App. 88a). And the Magistrate found, as a matter of fact, that respondents had failed to meet that requirement. Respondents filed exceptions to the Magistrate’s report with the district court. That court overruled these ex- ceptions, endorsing the Magistrate’s legal premise and adopt ing] his recommendations as my findings of fact” (App. 22a). Respondents again appealed to the Third Circuit, which reversed the district court’s judgment in part. The court of appeals accepted as “law of the case” the legal rulings on the first appeal, albeit acknowledging the “closeness of the issue[s]” that had been decided on that appeal (App. 2a, n.1). With respect to the ques- tions addressed on remand, the court below concluded that the Magistrate and district court had committed legal error by requiring respondents to establish—as an element of their fee claim—that but for counsels’ efforts the benefit that was allegedly conferred on the USWA membership would not have been realized. The court held that counsel were entitled to a fee award from USWA’s members, under the common benefit doctrine, if their ac- 7 tivities were of “material assistance to the Department of Labor” in the prosecution of the case (App. 13a; see id. 10a), regardless of whether the benefit conferred upon USWA’s members would have been realized even in the absence of counsels’ activities. Applying the “material assistance to DOL” standard, the court of appeals overturned the denial of fees with respect to work done by counsel for Sadlowski during the period that Sadlowski exhausted his internal union reme- dies and submitted a complaint to the Secretary, but up- held the denial of fees with respect to work done by coun- sel for Sadlowski thereafter. The Court remanded the case to the district court “for a determination of the amount of attorney’s fees to be awarded” (App. 17a) REASONS FOR GRANTING THE WRIT USWA sought certiorari from the first decision of the court of appeals in this case, which reversed the district court’s dismissal of the fee application for failure to state a claim. At that interlocutory stage of the case, this Court declined to grant certiorari. In a dissenting opin- ion, Justice White, joined by Justices Stewart and Rehn- quist, stated that It he issues presented in this case are of serious importance to the proper enforcement of the LMRDA, and also to the prosecution generally of private claims that benefit a broad class of persons” (App. 89a) ,* and that Ibloth holdings of the lower court appear to conflict with this Court’s decisions” (App. 92a). On the second appeal, the court below, in directing an award of a‘torneys’ fee, adhered to its earlier rulings as “law of the case,” albeit recognizing the “closeness of the On remand, the parties recently have submitted memoranda to the district court concerning the amount of feés to be awarded under the appellate court’s decision; the matter is now pending before the district court for decision. * The court of appeals likewise recognized that the case “presents important problems in the administration of Title IV” (App. 94a). issues” (App. 2a n.1). As the case now stands, therefore, the two issues raised by the first decision of the court of appeals are still present: (1) whether a “common benefit” attorneys’ fee award to the lawyers representing a private intervenor in an action brought by the Secretary of Labor under Title IV of the LMRDA is inconsistent with, nd therefore precluded by, the remedial scheme of Title IV; and (2) whether a “common benefit” award is appropriate when the intervenor receives a significant tangible benefit from the suit that no one else receives and when 90% of those to be charged with the fee are unaffected by the relief granted in the suit. The second decision of the court of appeals raises an additional issue as well: whether a “eommon-benefit” fee claimant must establish that “but for” his efforts those from whom he is seeking a fee would not have received the benefits for which he is claiming credit. All three of these issues warrant plenary review by this Court. The first—the statutory preclusion issue— has arisen frequently in recent years, and generated con- flicting ver court decisions.* Moreover, the result reached by the Third Circuit on this issue is contrary to the remedial scheme of Title IV, to the congressional policies underlying that scheme, and to this Court’s decision in Trbovich v. Mine Workers, 404 U.S. 528, which care- fully limits the role of intervenors in Title IV cases in order not to jeopardize those congressional policies. See pp. 9-16, infra. With respect to both the second and third issues—the “common benefit“ issues—the decision of the court below is inconsistent with principles established by this Court 5 See Donovan v. Teamsters Local 70, 661 F.2d 1199, 1203 (9th Cir. 1981) ; Usery v. Teamsters Local 639, 5643 F.2d 369 (D.C. Cir. 1976), cert. denied, 429 U.S. 1123; Donovan v. Teamsters Local $26, No. 79-514 (D. Del., Feb. 1, 1982); Marshall v. Teamsters Local 20, 509 F.Supp. 926 (N. D. Ohio 1981) ; Donovan v. Machinists Local Lodge 79, 108 RRM 25684 (W.D. Wash. 1981); Brennan v. UAW Community Action Program, 86 L.R.R.M. 3188 (D. Conn. 1974). “{ 9 and is in square conflict with decisions of other circuits. Indeed, by loosing the common benefit exception to the rule against fee shifting from its rationale, lower court resurrects under the rubric of that ex- on this ciety, 421 U.S. 240. See pp. 16-24, infra. I. The Statutory Preclusion Issue (a) Alyeska reaffirms the American rule “that attor- ney’s fees are not ordinarily recoverable. . . from the opposing party, 421 U.S. at 257, quoting Fleishchmann ception, but has held that these exceptions do not apply in statutory causes of action where an award of attor- neys’ fees would not be consistent with the remedial scheme established by Congress. Fleischmann Corp. v. Maier Brewing, supra; Hall v. Cole, 412 U.S. 1, 9-19. Title IV of the LMRDA establishes a remedial scheme that leaves no room for a private claim for attorneys’ fees. Title IV provides a “comprehensive procedure for en- forcing [its substantive] rules.” Trbovich, supra, 404 U.S. at 531. Pursuant to that scheme only the Secretary has the power to bring a post-election suit challenging a union election. 29 U.S.C. §§ 482, 483. By design, Congress pro- hibited private litigants from initiating lawsuits to chal- lenge completed union elections, “reject[ing],” as the court below acknowledged, “a bill, H.R. 8342, 86th Cong., ist Sess. §402(a) (1959), which provided for union members suits under Title IV, and authorized the award of appropriate relief, including attorneys’ fees” (App. 100a). The prohibition on suits by private litigants re- sulted from a congressional concern that, otherwise, courts could be used, particularly by defeated candidates, to disrupt union self-government, and unions would be 10 vulnerable to the harassment and expense incident to defending against such private litigation.* Further, Congress specified in “meticulous detail I]!“ (Fleischmann, supra, 386 U.S. at 719) the relief that may be obtained in 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 persons to be the officers of the labor organization.” The remedy is public in nature; no private or individual relief is provided. And, in 29 U.S.C. § 483, Con- gress declared that “(t]he remedy provided by [Title IV] for challenging an election already conducted shall be exclusive.” The remedial provisions of Title IV just described stand in marked contrast to those of the other titles of the LMRDA. All other titles authorize private suits by individual union members, and either expressly authorize an award of attorneys’ fees in such suits or, by authoriz- ing “such relief (including injunctions) as may be ap- propriate,” give courts a “broad mandate” permitting awards of attorneys’ fees pursuant to equitable excep- tions such as the common-benefit doctrine. See Hall v. Cole, supra, 412 U.S. at 11.” * Trbovich v. Mine Workers, supra, 404 U.S. at 530-537; Dunlop v. Bachowski, 421 U.S. 560, 568-570; Wirtz v. Bottle Blowers Ass'n, 389 U.S. 463, 470-472; Calhoon v. Harvey, 379 U.S. 134, 140. In Title I (bill of rights of union members), Congress relied for enforcement upon civil suits brought by individual union mem- bers “for such relief (including injunctions) as may be appropri- ate.” 29 U.S.C. § 412. In Title II (reporting), Congress also relied upon union members for enforcement, and expressly provided that: 11 (b) In the face of this statutory scheme, which mani- fests a clear congressional intent to preclude private suits and private remedies in the post-election enforcement processes of Title IV, the court below, on the first appeal —and on the second appeal as “law of the case“ —never- theless found that permitting a private intervenor to as- sert a fee claim and to obtain an award of attorneys’ fees in a Title IV action is consistent with congressional intent. The court found that Hall v. Cole, supra, and Mills v. Electric Auto-Lite Co., 396 U.S. 375, “enunci- ated a presumption against preclusion” of the judicial authority to make fee awards (App. 10la). And in de- termining whether this “presumption” was overcome here, the court below looked not to the language or legislative history of Title IV, which provide it no comfort, but to what it called supplement [s]“ to and “expansion” (App. 104a) of the structure of Title IV resulting from this Court’s decision in Trbovich, which the court below saw as working a fundamental change in the statutory scheme of Title IV. In the view of the court below: Before the Trbovich-intervenor existed, the statutory scheme involved only one party truly comporting it- self in an adversarial posture: the union. But since Trbovich the “union interest” is defined by two par- ties with adverse viewpoints-—even if their interest in the union remains a ommon denominator. The Secretary, in this circumstance, occupies a more tena- ble position since he has not only his own expertise “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. §481(c). In Title III (union trusteeships), Congress created for individual union members a civil cause of action “for such relief (including injunctions) as may be appropriate.” 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 allowed as part of that relief, 29 U.S.C. § 501 (b). 8 8 ii! eae 145 “7 8 — 5 3 "hi + Far qa F E E — 1 i f : [App. 116a] Thus the court found fee awards to be consistent with— indeed compelled by Trbovion. We doubt that Hall and Mills create “a presumption against preclusion.”* But even if they do, the language The Fleischmann Court stated, “[w]hen a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied.” 886 U.S. at 720. While the court below thought that Fleischmann had been “substantially undercut” (App. 100a) by Hall and Mills, neither of those cases qualified the quoted proposi- tion from Fleischmann. Rather, Hall and Mills each undertook an inquiry as to whether importation of the remedy of attorneys’ fees was consistent with the applicable statutory scheme—the inquiry which Fleischmann mandates. The majority below predicated its analysis on bits and pieces of language taken out of context from Hall. A more pertinent reference to Hall is at the point where this Court stated the holding on this issue: We therefore hod that the allowance of counsel fees to the successful plaincdff in a suit brought under § 102 of the LMRDA is consistent with .. the Act... . [412 U.S. at 14 (emphasis added) ] [Footnote continued on page 13] 13 and history of Title IV, properly understood, overcome that presumption. For, as we have seen, the language, history, and purpose of the statute leave no room for a private claim for attorneys’ fees in a Title IV action. The court below apparently saw these statutory mate- rials as beside the point, given its view that Trbovich had worked a basic change in the enforcement scheme of Title IV” But Trbovich created no such change; to the con- trary, it marked out an unusually limited role for a pri- vate intervenor in order not to jeopardize Congress’ ob- 8 [Continued] The Hall Court was able to find a fee award consistent with Title I of the LMRDA for two reasons, neither of which applies here. First, the Court found that “[uJnlike § 35 of the Lanham Act”—the section involved in Fleiechmann—the remedial provision of Title I “broadly authorizes the courts to grant ‘such relief (including injunctions) as may be appropriate’” and thus “does not ‘meticulously detail the remedies available to a plaintiff.’” 412 U.S. at 10-11. As we have seen, there is no such “broad[] author- iz[ation]” in the post-election remedial provisions of Title IV; rather the remedies are “meticulously detail[ed].” Second, the Hall Court found that the enforcement of Titie I is dependent upon the ability of “an aggrieved union member. . to finance litigstion.” 412 U.S. at 14. The enforcement of Title IV is not so dependent; indeed, Congress has vested exclusive authority to bring suit in the Secretary of Labor. The aggrieved member’s only obligation is to protest the election within his union and to the Secretary. And as this Court has made clear, this protest was intended to be a layman's complaint,” Wirtz v. Laborers Union, 389 U.S. 477, 482 which may be “inartful” or “use broad or imprecise language,” Hodgson v. Steelworkers, 403 U.S. 333, 340-41. ö The court stated: 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 complaint to the Secretary after ex- haustion of internal union procedures. The question is what relief a union member is entitled to after having intervened in and partiicpated in the prosecution of an action brought by the Secretary under Title IV in the manner anticipated by the Supreme Court in Trbovich. [App. 104a; emphasis in the original] 14 jectives in shaping Title IV. The flaw in the lower court’s reading of Trbovich was explained in the dis- senting opinion from the earlier denial of certiorari in this case: Trbovich held that the union member who initiated the challenge might still intervene in the federal suit, “so long as that intervention is limited to the claims of illegality presented by the Secretary’s complaint.” Trbovich, supra, at 537. This conclusion represented a very careful balance between Title IV’s commitment of enforcement authority to the Secretary’s sole dis- cretion, and a recognition that the union member who originally raised the complaint might wish to see his claims pressed in some manner different from that of the Secretary. The opinion below threatens to upset that delicate compromise. Intervention by union members in sup- port of the Secretary’s grounds of complaint was up- held in Trbovich only because it would make the union liable “to relatively little additional burden,” and would “not subject the union to burdensome multiple litigation, nor will it compel the union to respond to a new and potentially groundless suit.” Trbovich, supra, at 536. Once attorney’s fees are assessable against a union on behalf of intervenors, however, the union has indeed become liable to an “additional burden” that could be quite costly. And the adjudication of whether an intervenor has con- tributed significantly to the common benefit of all union members could well involve the “burdensome multiple litigation” that the restrictions on interven- tion imposed by Trbovich were intended to avoid. [App. 90a] The validity of these observations is confirmed by the experience in this very case. Respondents’ Fee Applica- tion added to this case an entirely new claim, predi- cated upon thirty-nine pages of factual allegations set forth in the Application. Some of those allegations— such as the allegation that the original election had been tainted by illegalities (the allegation on which respond- ents rested their contention that the rerun election had 15 constituted a benefit to USWA members within District 31)—had been made by the Secretary in his complaint but had been left expressly unresolved by the settlement agreement. Other allegations—such as the allegation that misdeeds had been committed by officers of the USWA outside District 31 (the allegation on which respondents rested their contention that the settlement benefited USWA members outside of District 31 by deterring USWA officers from repeating their methods in other dis- tricts)—had been made by Sadlowski in his complaint to the Secretary, but had not been included in the Sec- retary’s complaint in district court. And still other al- - legations—those concerning the asserted failures of the Secretary properly to perform his duties during the in- vestigation and prosecution of this case—were wholly new allegations, requiring USWA to defend the adequacy of the Secretary’s performance. The resulting litigation over these allegations has been massive, time-consuming, and costly. Subjecting a union that settles a Title IV case to this type of litigation—the type inherent in the ad- judication of common benefit fee claims in the context of Title IV actions—is not only inconsistent with Trbo- vich (and with the congressional pulicies underlying that decision), but is, in addition, inconsistent with “the ef- fective administration of Title IV,” as the Secretary of Labor advised the court below (Br. at 13). The Secre- tary explained: [Aln award of attorneys’ fees may preclude expedi- tious settlement of Title IV cases. The principal motivation for a settlement is the avoidance of liti- gation. Unions will be less inclined to enter into a ‘voluntary settlement agreement if there is a potential for an award of attorneys’ fees. Any disincentive to settlement is serious because of the remedial value of having a new election as soon as possible. The policies of the LMRDA, which include the encouragement of settlements, would be disserved by permitting inter- venors to discourage unions from entering into settle- 16 ments by insisting upon the right to attorneys’ fees. IId. j 0 Because the decision below resolves this important and recurring issue respecting the administration of Title IV in a manner that is inconsistent with the precedents of this Court and that thwarts the “effective administration of Title IV,” the Court should grant a writ of certiorari to decide the statutory preclusion issue. II. The “Common Benefit” Issues A. On remand, after the court of appeals held that an award of fees was not statutorily precluded, the Magistrate and district court ruled that to prevail under the common benefit exception claimants must prove that “but for” their efforts for which they are seeking attorneys’ fees the asserted benefit would not have been realized by those who would be compelled to pay the fees. On that basis, the Magistrate and district court declined to award fees here as they found, as a matter of fact, that the USWA membership would have realized the same asserted benefit had Sadlowski’s attorneys done nothing. The court of appeals rejected the Magistrate’s and district court’s legal premise, holding that it is sufficient 10 This Court has emphasized the importance of settlements to the enforcement of Title IV, stating that one reason Congress gave ex- to the courts.” Calhoon v. Harvey, supra, 879 U.S. at 140; see also Wirtz v. Bottle Blowers Ass'n, supra, 389 U.S. at 472 (“the objec- tive [of Title IVI is not a lawsuit” but settlement). Indeed, over 60% of all Title IV cases are resolved by settlement (Mem. on pth gga Av ap eee U.S. 977). In contrast to the prompt relief achievable through settlements, in fully litigated Title IV proceedings rerun elections do not occurr, on average, until over 2.5 years have passed. Mallin, Title IV of the LMRDA—Should Intervening Plaintiffs Be Per- mitted to Recover Attorney's Fees? 48 U. Cinn. L. Rev. 345, 355 (1979). 17 for fee claimants to prove that their activities were of “material assistance” to the Secretary of Labor (App. 9a-10a). In reaching this conclusion, the court of appeals concern that a “but for” standard is too “rigid” (App. 10a), and “ ‘would impose a burden in the context of Title IV challenges which would be practically im- possible to meet and would result in no fee recover[y] by intervenors, thereby emasculating any theoretical right to intervene’” (App. 9a; quoting from respondents’ brief) u Accordingly, the court below directed a fee award here to respondent Despres for assisting in pre- paring what Congress intended to be a “layman’s com- plaint” to the union and to the Secretary, Wirtz v. La- borers Union, supra, 389 U.S. at 482," notwithstanding the finding of the Magistrate and the district court, which the court of appeals did not disturb (App. 12a), “that the assistance of counsel was not in any way necessary to preserve matters for presentation to the (App. 76a)—#.e., that the Secretary’s ability to institute the suit that eventuated in the rerun election would have been the same had Despres never entered the case.“ 11 This was the identical concern that the court expressed in re- solving the statutory preclusion issue (see pp. 11-12 supra), and, again, in resolving the other common benefit issue in the case (see pp. 22-23 infra). 12 See also Hodgson v. Steelworkers, supra, 403 U.S. at 340-41. 18 The Magistrate explained: We first have the statements of personnel fron, e Depart- ment of Labor supported by decisions of the Supreme Court that the internal union protest procedures are designed to insure that an individual can readily protect his rights. Sec- ondly, there is the testimony of Sadlowski himself that the ele- ments raised in his protest were basically secured without the aid of counsel, and that while it is highly speculative, it would appear that the assistance of counsel would not have been necessary to gather the various elements of the protest. And finally, there are the records of counsel which indicate that little if any time was devoted to assisting his client in preyar- 18 The court of appeals’ reasoning obliterates the distinc- tion between the “common benefit” exception and the “private attorney general” theory repudiated by this Court in Alyeska. The common benefit exception, as this Court has explained, permits fee shifting “not be- cause of any ‘bad faith’ of the defendant, but, rather, because Ito allow the others to obtain full benefit from the plaintiffs’ efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense.“ Hall v. Cole, supra, 412 US. at 5-6, quoting Mills v. Electric Auto-Lite, supra, 396 U.S. at 392; see Boeing Co. v. Van Germert, 444 US. 472, 478. By its terms, this rationale requires proof that the claimants’ efforts were a but for cause of the enrich- ment of those from whom fees are sought. If the as- serted beneficiaries would have received the same benefit without the claimants’ efforts, then the beneficiaries have not been “enrich[ed] unjustly at the plaintiff’s expense.” That proving such a causal relationship may be difficult for an intervenor in a. public prosecution provides no warrant for relaxing this standard, as the court of ap- peals believed. For it is not the office of the common benefit exception to encourage exercise of such rights; its only office is to preve it “unjust enrichment.” Alyeska holds that it is for Congress—and not for the federal judiciary—to determine when fee awards are necessary to facilitate the exercise of statutory rights: has not extended any roving authority to the Judiciary to allow counsel fees as costs or other- wise whenever the courts might deem them war- ranted. What Congress has done... is to make specific and explicit provisions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights. [421 U.S. at 260] ing the protest. From all these elements, it would appear that the assistance of counsel was unnecessary, and that counsel performed little if any service to furthering the Intervenor’s protest. [App. 76a-77a] f ; to the allowance of attorneys’ fees to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under whi sue and to award fees in some cases but not in importance of the public policies uvolved in particu- lar cases. (421 U.S. at 269] On the issue of the need for proof of causation, the decision below squarely conflicts with the decisions of the Second and Seventh Circuits in Grace v. Ludwig, 484 F.2d 1262 (2d Cir. 1973), cert. denied, 416 U.S. 904 and Bender v. Crown, 551 F.2d 169, 171 (7th Cir. 1977). Grace and Bender involved common benefit fee claims by private intervenors in an SEC proceeding in which Commission counsel acted as public prosecutor. The courts there held that to recover fees claimants were required to show, as the Second Circuit put it, that but for’ the intervention” the benefit would not have been realized. 484 F.2d at 1269. Where that is not shown Intervenor must then be characterized as a mere volunteer who aids a public body or trust in the per- formance of their officia] duties on behalf of 2 certain class, but who is not entitled to compensation. [484 F. ad at 1268-69] The rule adopted in Grace and Bender is thus precisely the rule rejected by the court below. B. The decision below finding a “common benefit“ con- flicts with decisions of this Court and of other courts of appeals in a second respect as well: it authorizes a fee recovery from all of USWA’s members throughout the United States and Canada even though, in the court’s own view (App. 130a, 132a), Sadlowski himself received a uniquely valuable benefit from this litigation, the 10% of USWA members in District 31 received a less substan- tial benefit, and the 90% of USWA members outside District 31 received a substantially lesser benefit still. Because the purpose of the common benefit exception is to prevent unjust enrichment (p. 18, supra), a common- benefit award is permissible, as this Ccurt stated in Alyeska, only 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 applica- tion of the exception requires that it will . . operate to spread the costs of litigation proportionately among [the] beneficiaries . . .” (ibid). See also Hall v. Cole, supra, 412 U.S. at 5; Mills v. Electric Auto Lite, supra, 396 U.S. at 394. The award sought here lacks the indispensible ingredient of a common-benefit award: it would not spread the costs proportionately among those who receive the benefit. At the threshold, respondent Sadlowski realized a unique benefit from this lawsuit: the office of Director of District 31 (with its $35,000 salary). Indeed, the very reason he was permitted to intervene was because he had a special, personal interest distinct from the interest of the rest of USWA’s membership, Trbovich, supra, 404 supra, 412 U.S. at 5; Mills v. Electric Auto-Lite, U.S. at 538-539.“ As a result of the litigation, he re- ceived a special benefit that no other union member re- ceived. 14 See App. 9la-92a (White, J., joined by Stewart and Rehnquist, JJ., dissenting from denial of certiorari: Intervention was held permissible in Trbovich in order to pro- tect a union member’s interest, or his choice of how to repre- sent that interest, precisely to the extent that the individual’s interest diverged from the Secretary’s. The Secretary is the champion of the “ ‘vital public interest in assuring free and democratic union elections that transcends the narrower inter- est of the complaining union member.’” Hence, the rationale that provides for the right to intervene in the first place su stantially undercuts the intervenor’s claim to be creating significant common benefit not already provided by the Secre- tary. [citations omitted; emphasis in original] » T 21 The secondary “beneficiaries” of the settlement of the District 31 litigation were the USWA members within District 31. While the “benefit” they received from the settlement was of an entirely different order than that received by Sadlowski, they at least obtained a new elec- tion for director of their district.” Shifting fees only to the District 31 members would be troublesome enough in light of the much greater benefit Sadlowski personally realized. But here a fee award would do far more than that: because USWA districts do not have treasuries of their own, the fee mandated by the court below would be paid from the USWA treasury into which all USWA members in all districts pay dues. As over 90% of the USWA members are in districts outside District 31, over 90% of any fee award would be borne by non-District 31 members. Any benefit to these members from the District 31 settiement is entirely speculative. The Secretary’s suit had alleged no misconduct by USWA members outside of District 31. And the settlement merely directed a rerun of the District 31 election; it provided no relief whatsoever outside District 31. Thus any ephemeral benefit the more than 1,000,000 USWA members outside of District 31 may have received from this litigation is, at the very least, of an entirely different order from the political and pecuniary benefit Sadlowski realized from this litigation or even from the less substantial benefit that USWA members within District 31 may have received.“ This is 1 Whether that new election was, in fact, a benefit depends upon whether the original election had been tainted by illegality; if the original election was not so tainted, the overturning of that election would not constitute a benefit to District 31 members. The Secretary had, of course, alleged such taint in his complaint; USWA had denied the allegations in its answer; and no adjudication was ever made on the issue. Thus, it is not even clear that the members of USWA within District 81 received a benefit from the settlement. 1 The court of appeals seemed to believe that the settlement would have educational value outside District 31, teaching would- be-miscreants within the USWA that defective elections will have not, then, a case in which a fee award would “operate to spread the costs of litigation proporticnately among the beneficiaries,” as Alyeska requires. The court below acknowledged that the “greatest bene- fit was conferred upon Union members in [District 31]” (App. 182a; emphasis in original). That court concluded, however, that this fact could not be allowed to defeat the fee claim, as to do so “would thwart the process of com- plaint and productive intervention by union members, and deny effect to the policies enunciated by the LMRDA and Trbovich” (App. 138a) .” to be rerun (App. 129a-130a). But in reaching this conclusion, the court apparently overlooked that (1) no misdeeds had ever been proven in this case on the part of any person; (2) the Secret y had not even alleged any misdeeds by any person outside of District 31; and (3) there is ne apparent reason to believe that the settlement of this case, provicing for a rerun election in one district, had any incremental deterrent value beyond the deterrent that arises from the very «xistence of Title IV and its more than two decades of enforcement by the Secretary. Furthermore, whatever education was provided by the District 31 settlement presumably was not confined to persons within USWA and thus this theory equally would justify—indeed require—that fees be awarded from the treasuries of all unions. As an alternative theory, the court of appeals suggested that USWA members at large benefited from the rerun of the District 31 election because the director of the district serves on USWA’s Executive Board (App. 130a). But as members in other districts have no voice in selecting the director of District 31, a new election can “benefit” them only if it produces a new director who 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. 17 The court below went on to reason that it was more appro- priate for the wrongdoing union to pay the fees than “to penalize the intervenor who performed his function correctly and well” (App. 182a). Never mind that the members of the union might not appreciate a fee being charged to them for an attentuated “benefit” they could not 7 ossibly perceive: “If the rank and file is dissatisfied, their recourse lies with the Union leaders who were responsible” : 3 11 f ) not “operate to scar the costs of litigation proportion- ately among the beneficiaries,” nonetheless fees must be awarded in order not to “thwart” intervention. But Alyeska teaches that absent statutory authorization, this is not an appropriate basis for a federal court to direct the shifting of fees. As stated in the dissent from the earlier denial of certiorari: {t]he lower court’s reasoning that a new election in a single district benefited the entire membership of the United Steelworkers of America in such an iden- tifiable and proportionate way as to justify burden- ing the entire membership with the intervenor’s at- torney’s fees represents logic squarely at issue with 2 3 of the common- benefit theory. pp. 92a In the wake of Alyeska, several courts of appeals have rejected common benefit fee claims in situations in which it was not possible to spread the costs of the litigation proportionately among the acknowledged beneficiaries of the litigation. E. g., American Association of Marriage and Family Counselors v. Brown, 593 F.2d 1865 (D.C. Cir. 1979); Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981); Cantwell v. County of San Mateo, 631 F.2d 631, 639 (9th Cir. 1980); ef., McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1978). In Brown, for example, the court affirmed the denial of a fee award because the fee claimant had obtain led! a direct and pecuniary benefit” from the litigation whereas the benefit to the class “is incremental and relatively in- (ibid). Apart from the fact that there was not even an allegation in the Secretary’s complaint—let alone a finding—that “Union leaders” had engaged in any wrong, this reasoning is the an- tithesis of “common-benefit”—it sounds more of “common detri- ment”: all members should share equally in paying for the union’s sins. inconceivable that the cost could be distributed in proportion to the benefits received.” 657 F.2d at 1123. The decision below squarely conflicts with these decisions. In sum, the “common-benefit exception has in this case been stretched beyond the bounds of its creative rationale” in ways “affecting the . . . conduct of all common-benefit litigation” (App. 93a) (White, J., dissenting from de- nial of certiorari). For this reason—as well as to de- cide the statutory preclusion issue which is “of serious importance to the proper enforcement of the LMRDA” (App. 89a) (White, J.)—the Court should grant a writ of certiorari. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, LAURENCE GOLD ROBERT M. WE'™NBERG AFL-CIO (Counsel of Record) 815 16th Street, N. W. MICHAEL H. GoTTEsMAN Washington, D.C. 20086 Davin M. SILBERMAN (202) 687-5890 BREDHOFF & KAISER 1000 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 883-9840 Attorneys for Petitioner la APPENDIX 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 or- ganization and of any parent body, or (2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one cal- endar month thereafter alleging the violation of any provision of section 401 of this title (includ- ing 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 pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization 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 com- plaint and, if he finds probable cause to believe that 2a 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 supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. The Secre- tary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the of- ficers of the labor organization. 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 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. 8 > 5 Supreme Court, U.S. 81-1906 |p Fite No. 81 et APR 15 1997 RE — OCTOBER TERM, 1981 UNITED STEELWORKERS OF AMERICA, AFL-CIO, CLC, 4 Petiti EDWARD SADLOWSKI, JOSEPH F. RAUH, JR., LEON DEsPRES, KENNETH YABLONSKI, JUDITH SCHNEIDER, and RAYMOND DONOVAN, SECRETARY OF LABOR, Respondents APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT WILSON - Eres Printine Co.. Inc. . 769-0096 - WASHINGTON. D. C. 20001 o> ~ TABLE OF CONTENTS A. Opinion of the Court of Appeals on the Second Appeal, December 16, 1981 B. Opinion and Order of the District Court, October 31, 1980 C. Magistrate’s Report and Recommendation, June 7, 1979 D. Order of the Supreme PSR DIEM and dissenting opinion of Justices White, Stew- art and Rehnquist, April 17, 19798 E. Opinion of the Court of Appeals on the First Appeal, r ð¶ EE Se a F. Supplementary Opinion of the Court of Appeals on Motion by Appellee for Leave to File a Petition For Rehearing In Excess of 15 Pages, May 26, %% G. Opinion and Order of the Distriet Court, December c H. Magistrate’s Report and Recommendation I. Judgment of the Court of Appeals, December 16, c J. Amended Judgment of the Court of Appeals, Janu- Og RRR ae EERE SRR a Ra Se K. Order of Associate Justice William J. Brennan, Jr. Extending Time to File Petition for Writ of Cer- tiorari, March 6, 10 —— la 19a la APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 81-1032 RAY MARSHALL, Secretary of Labor United States Department of Labor EDWARD SADLOWSKI, Intervenor Plaintiff ANTHONY TOMKO, Intervenor Plaintiff V. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC (District 15) (District 31) Edward Sadlowski, Intervenor above named, and the following counsel for Sadlowski: Joseph F. Rauh, Jr., Leon Despres, Kenneth J. Yablonski and Judith Schneider, Appellants On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 73-0957—-PITTSBURGH) Argued: September 22, 1981 Before: ALDISERT, HIGGINBOTHAM and SLOVITER, Circuit Judges (Opinion filed December 16, 1981) OPINION OF THE COURT A. LEON HIGGINBOTHAM, JR., Circuit Judge. This case, which stems from a union member’s suc- cessful challenge to a union election conducted in Dis- trict 31, in 1973, comes to us on appeal for the second time over the issue of attorney’s fees. In Brennan v. United Steelworkers of America, 554 F.2d 586 (3d Cir. 1977), cert. denied, 485 U.S. 977 (1978) [Appendix E, 94a], we held that an award of attorney’s fees was not precluded by Title IV of the Labor- Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 481 et seg. and that the com- mon benefit” theory was available as a basis for awarding attormey’s fees. On remand, the district court was instructed to exercise its discretion on the issue of [whether an award is warranted and, if so, the amount of such award. . . in light of the broader ap- plication of the common benefit’ rationale. Bren- nan, {136a]. As a guiding principle our court wrote that, “although union members should not be re- 1 We recognize that in Brennan Judge Aldisert wrote a thought- ful and vigorous dissent. The closeness of the issue there is re- flected by the fact that three United States Supreme Court Justices dissented from the denial of the Petition for Writ of Certiorari. Surprisingly, in its brief in support of the Petition for Certiorari, the Department of Labor failed to cite or make reference to Judge Aldisert’s dissent. This opinion is not intended to be an intimation that Judge Aldisert has withdrawn from his view that an award of attorney : fees under Title IV of the LMRDA is not statutorily authorized. In his dissent, Judge Aldisert stated: In reviewing the accomplishments of appellant’s able counsel. I have nothing but the highest praise for the excellence of their services. I quarrel only as to who should pay for those services. I believe that Title IV precludes an award of attorney’s fees in this case, and even if it does not, I believe that this is not an appropriate case for an equitable award under the common benefit theory. Brennan, [150a]. However, the Brennan opinion is now the law of this case, and we must ascertain whether the district court's judgment after the remand is consistent with Brennan. 8a quired to pay for unnecessary duplication of legal serv- ices, it should not be presumed that mere duplication of effort by either counsel for Sadlowski or counsel for the Department of Labor was unnecessary or non-benefi- cial.’’* (footnote in original renumbered) . The case was remanded to the district court which assigned the matter to a United States Magistrate for a review of the record and for the taking of additional evi- dence. The Magistrate’s Report and Recommendation, recoramended the denial of the fee claim, and was filed on June 7, 1979. The district court adopted the magis- trate’s findings of fact and recommendation and sup- plemented the report with additional findings of fact. On October 31, 1980, an Order was entered denying the application for attorneys’ fees. After reviewing the very existence record in this case and after hearing able counsel in oral argument, we have concluded that the district court’s denial of fees for work performed by Sadlowski’s counsel over the five month period between February, 1973, the date of the first District 31 election and June, 1978, the date of Sadlow- ski’s filing of a compiaint with the Secretary of Labor, was error. We will therefore reverse the district court 2 The text of the court’s footnote 18 is as follows: See page 598 above. -eferring to the court’s detailed recita- tion of the efforts Sadlowski’s counsel] It is clear that some duplication of effort will always occur, since the Secretary must verify information relating to improper union conduct secured and supplied by an intervenor’s counsel. Also, time limitations and exhaustion requirements of 29 U.S.C. § 482 and other pro- visions, may necessitate legal services on behalf of the Secre- tary as well as such services on behalf of the intervenor. In this case, the decision of the Secretary to terminate the investiga- tion may have justified the continued efforts of counsel for the intervenor to ducument and preserve evidence of union mis- conduct. See Verified Application for Attorneys’ Fees at 108a- 104a. Brennan, [136a]) n.18. The United Steelworkers of America held an election on February 13, 1973 in District 31 for the position of District Director. District 31 is the largest in the Steel- workers union, consisting of approximately 300 locals and 130,000 members in Illinois and Indiana. The elec- tion campaign, between the union’s hand-picked successor to the then retiring District Director of thirty years and Sadlowski, was fiercely fought. During the three-day period it took to count the votes, Sadlowski was advised of widespread ballot fraud, illegal electioneering, depriva- tion of secret balloting and interference with observers. When the tabulations were complete and Sadlowski’s ad- versary declared the winner by a 1,785 vote margin, Sadlowski hired counsel to investigate the allegations of voting fraud and to aid him in exhausting the internal administrative remedies required by the constitution of the Steelworkers. Sadlowski filed a protest with the appropriate union authorities who, after reviewing his case, sustained the election result. An appeal was taken to the International Executive Board which likewise denied Sadlowski’s chal- lenge. Having exhausted his union remedies, Sadlowski filed a timely complaint under the LMRDA with the Secretary of Labor. The Secretary investigated the complaint and on No- vember 8, 1973 filed a civil suit in the Western District CLAIMANTS’ VERIFIED APPLICATION FOR ATTORNEYS’ FEES AND FIRST APPEAL Sadlowski’s counsel submitted a Verified Application for Attorneys’ Fees with a supporting memorandum to the district court on January 31, 1975. The application detailed the work of four attorneys, Leon Despres, Joseph Rauh, Jr., Kenneth J. Yablonski and Judith Schneider on behalf of Sadlowski. It sought attorneys’ fees for work performed prior to the Secretary’s filing of a complaint and for “post-complaint efforts to expedite, conduct dis- covery and bring about a fair rerun settlement, [and] . . « to facilitate a fair election itself.” Brief for Appel- lants at 6. In Brennan, we detailed in three full pages the work allegedly performed by Sadlowski’s counsel both pre- and post- complaint. We emphasized the critical nature of private participation in the enforcement scheme of Title IV and at numerous points indicated, either explicitly or implicitly that Salowski’s “need for counsel cannot be doubted.” Brennan, (108a]. The test for an award of attorney’s fees is whether counsel’s work was a material assistance to the Secre- tary and ultimately contributed to a result which can be 6a said to be for the common benefit of all union members. The “common benefit” theory, in turn, entails satisfying three elements: whether the benefits may be traced with some accuracy; whether the class of beneficiaries are readily identifiable; and, whether there is a basis for confidence that the costs may be shifted some precision to those benefitting. Id. at [128a]. attorneys for Sadlowski contend that the work they formed on behalf of their client was a material of the “common benefit” theory. Specifically, they before the district court and here on appeal that vindication of union democracy [in securing a rerun tion! . . is a substantial common benefit conferred the union and its members. Brief for Appellant at 8. Sadlows’ci’s successful challenge served notice on the union and its members that election improprieties would not go unchallenged. III. THE MAGISTRATE’S AND THE DISTRICT COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW ON RU MAND Hail dell recommended that the application be denied. It is clear from reading the magistrate’s report that the standard applied was whether the assistance of counsel was strictly necessary to perfect a protest through the union’s inter- nal procedures and then to the Secretary of Labor. When considering the work performed by counsel in marshalling the facts and phrasing the issues for pres- entation to the Secretary, for example, the magistrate wrote, “it was the opinion of Stephen Ernst, who was the lead litigation and trial counsel for the Department of Labor in this suit, that Sadlowski’s counsel aided Sadlowski in perserving his rights. Nevertheless, Ta because “no showing has been made that the assistance of counsel was necessary to preserve these interests,” the work was adjudged by the magistrate to be uncompensa- able. Similarly, the district court by adopting the magis- trate’s report seemed to require that the assistance of counsel be necessary. The district court went even fur- ther when it considered the overall benefit of Sadlowski’s successful protest, writing that: Who desired the benefits from the settlement? election in which he won the victory which he had sought originally. The circumstances do not matter as to whether they were hotly contested or not at time. He, Sadlowski, was victorious. Undoubt- since he was campaigning whole, it was Sadlowski’s counsel’s campaign activi- ties which eventually became victorious. As for any benefits which might be considered to be “common” to the other Districts, there are only fanciful assertions that all the 1,400,000 Interna- tional members of the Union will be put on notice that election improprieties will not be tolerated— as if all 1,400,000 such members really were in need of such notice; and further, that the election of Sad- lowski would “willy-nilly” have been to the com- mon benefit of the 1,400,000 members—if that bene- fit was in fact needed, or even that the intervenor‘s election might not actually have been detrimental to any of all these International members. What is uncontravertedly obvious to me as a fact- finder is that there is no evidence whatsoever that there had been any common benefit to the Interna- tional or any other District, that evidence should have been presented in the case to make it manifest argument was a fact and not just a conclusion that the 1,400,000 International membership was com- monly benefitted, and more so that the assumed com- mon benefit was a reasonable basis for shifting the costs of the intervenor’s campaign to the 1,400,000 International membership with “some precision to those benefitting.” But there is no such factual per- suasion of precision benefitting. Neither was there any factual persuasion of precision benefitting 126,000 members in District 31, because the claim- ants’ activities were directed in the irrelevant finan- cial path for procuring inadmissible evidence politi- cally beneficial only to Sadlowski’s potential, even- tual election. Even here if such character of irregu- larities required notice to the membership, there is no evidence of that. I find it impossible to extract from the evidence in this case as a whole any “substantial benefit on the members of an ascertainable class” bestowed by the claimants. Even with the election of Sadlowski as Director, there is no evidence of whether the Dis- trict 31 membership were better or worse off with Sadlowski as Director. District Court Opinion, App. Vol. V at 01587-89 and 01590. Consequently, the district court awarded no attor- neys fees. 9a IV. THE PRESENT APPEAL In Brennan, we instructed the district court to exer- cise its discretion in deciding whether the work per- formed by Sadlowski’s counsel was for the common bene- fit of the rank and file members of District 31 and the Steelworkers in general. It exercised that discretion, and we are now asked to review the order of the district court denying attorneys’ fees. We note that our standard af review is twofold. When reviewing the magistrate’s and the district court’s use of a strictly necessary stand- ard to gauge whether counsel should be awarded fees, we will treat this holding as a conclusion of law and exercise plenary review. When considering the findings of fact as found below, we will use the clearly erroneous standard. The appellants contend that the use of the strictly necessary standard is tantamount to applying a “but for” standard. They argue that [t]o require, as the District Court would require, intervenor to prove that without his participation the Secretary would not have secured a rerun elec- tion is inconsistent with this Court’s Sadlowski I [Brennan] decision; such a standard would impose a burden in the context of Title IV challenges which would be practically impossible to meet and would result in no fee recovering by intervenors, thereby emasculating any theoretical right to intervene.” Brief for Appellants at 19. We agree with the appellants that a strictly necessary or “but for” standard is incon- siste t with Brennan. In Brennan we quoted with approval the following language from Usery v. Local Union 689, International Brotherhood of Teamsters, 543 F.2d 369, 384 (D.C.Cir. 1976), cert. denied sub nom., Local Union No. 639 v. Marshall, 429 U.S. 1123 (1977) : 10a “Tt is not dificult to conceive of examples of mate- rial assistance to the Secretary and the court in vindication of the interest—of the public and the union rank and file—in union democracy ... [Clounsel representing the intervenor may unearth material and even elusive evidence, or develop tell- ing arguments in support of the Secretary’s claims of illegality. . . . [T]he Trbovich court envisioned that intervenors would perform a role independent of the Secretary in helping the court fashion a suit- able remedial order, and perhaps even assist the Secretary in supervising the conduct of the rerun. . . » [SJound 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.] Brennan, [107a]. We have concluded that the district court erred by applying a more rigid standard than that indicated by our decision in Brennan. Further, the magistrate’s constant concern over whether the pres- ence of counsel added anything to what Sadlowski could have done alone is in stark contrast to our admonition in Brennan that: The agency and the intervenor perform truly dif- ferent roles, with, in our view, considerably less overlap and waste than the district court found. The Department of Labor per’orms a q - 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 individual. In deciding whether to institute suit, what to complain of, and what to settle for, the Secretary must constantly weigh competing interests and duties. Consid- ering the complexities of internal union remedies, complaint to the Secretary, and recourse to the courts, and the penalties for lack of legal or techni- cal sophistication, we cannot believe that intervenors were intended to proceed pro se. ila [115a-116a]. With the above principles of Brennan in mind, we will now proceed to review the appellants ef- forts under the “common benefit” theory and the district court’s holdings. A. EXHAUSTION OF UNION REMEDIES As already noted the District 31 election took place on February 13, 1973. The returns were not complete until February 16. On the sixteenth, Sadlowski called Despres seeking his assistance in filing a protest with the union. Despres agreed to represent Sadlowski on February 17 and began working to gather information and evidence concerning election irregularities. The union’s constitution required a protest to be filed with the International Tellers not later than 10 days after the election. Thus, Despres had only seven days from the time the election results were announced to file a protest in an election involving 300 locals and 130,000 members. During the seven-day period, Despres alleges that he conducted the following activities: Despres examined the union constitution and procedures, examined the applicable legal authori- ties, advised Sadlowski on the legal necessity to ex- haust union procedures, interviewed Sadlowski, in- terviewed witnesses, advised Sadlowski associates who were interviewing witnesses, prepared state- ments and affidavits, gathered documents, put data in presentable form, prepared a draft of a protest of the election, conferred with Sadlowski and asso- ciates and revised the draft and conferred with Sadlowski about the protest generally and his con- duct in relation to it. Verified Application for Attorneys’ Fees at 4. Despres continued to assist Sadlowski with his case as it pro- ceeded through the Steelworkers’ internal review and appeal procedures. This process was not completed until 12a May 31, 1978, when the International Executive Board, chaired by Steelworkers’ President Abel, denied Sadlow- ski’s appeal and ended his recourse through the union’s internal procedures. The magistrate’s and the district court’s opinion of Despres’ work during this time period can be seen in the district court’s summarization and adoption of the mag- istrate’s findings. The trial court found that: 1. In order to preserve issues for presentation to the Secretary, only minimal requirements are im- posed; that these obligations could readily be ful- filled without the assistance of counsel; and that the assistance of counsel was not necessary to preserve matters for presentation to the Secretary. [Appendix B, 12a]. We have already concluded that the district court applied the wrong standard for judging whether counsel should be granted fees. The LMRDA requires that the union member exhaust internal reme- dies before the Secretary can file suit, 29 U.S.C § 482(a), and the Supreme Court has limited the Secretary’s power to issues raised by the claimant. Hodgson v. Local Union 6799, USWA, 403 U.S. 333 (1971). We now conclude that Despres’ efforts from February 16 until the date of the final International Executive Board decision on May 13 are compensable if they were ultimately for the Steelworkers’ “common benefit.” The “common benefit” to the Steelworkers of Despres’ efforts on behalf of Sadlowski are clear. Without process- ing the protest through the Steelworkers internal reme- dies, Sadlowski would have been foreclosed from going to the Department of Labor. While it may be true that an attorney’s assistance was not absolutely necessary, as we wrote in Brennan: quick action and skillful advocacy are probably most important at the initial stages of the enforcement scheme, when infractions must be identified, a bill [106a]. Absent Sadlowski’s quick challenge to the election and Despres’ legal assistance the Steelworkers would have been deprived of the candidate choice. We have no difficulty in concluding t Steelworkers, but especially those in District 31, benefit- ted from the ultimate vindication of union democracy. B. THE COMPLAINT FILED WITH THE SECRE- TARY OF LABOR On June 25, 1978 Sadlowski filed a complaint with the Department of Labor totalling nearly 100 pages. Aided by the assistance of counsel, the complaint was specific, detailed and accompanied by supporting docu- mentation. The chief trial attorney for the Department of Labor stated in an affidavit that Sadlowski’s counsel had performed a valuable service both to his client and to the Department. Further, the compliance officer in charge of the investigation candidly conceded in a dep- osition that of the 64 locals investigated by his team 59 were selected on the basis of Sadlowski’s complaint. Again, as with the exhaustion of remedies work, the district court dismissed the efforts of Sadlowski’s coun- sel “as not necessary to invest the Department with juris- diction to inevstigate and ultimately to sue.” We think that it was error not to consider the material assistance provided by counsel for Sadlowski. We have also con- cluded that Despres’ efforts were a common benefit to the Steelworkers and a material assistance to the De- partment of Labor. Sadlowski’s and Despres’ efforts nar- rowed the issues for Labor and helped to isolate the spe- cific problems with the election. 14⁴ C. LABOR’S DECISION TO BRING SUIT After Sadlowski’s complaint to Labor was filed on June 25, 1973, and after Labor completed its investiga- tion in August, the district court granted Labor three ex- tensions of its statutory deadline for deciding whether or not to initiate suit.“ Sadlowski and Despres became con- cerned that union lobbying with the Department would result in no law suit being brought even though the in- vestigation by Labor confirmed Sadlowski’s allegations of election improprieties. Thus, they engaged Joseph L. Rauh, Jr., a prominent Washington, D.C. attorney expe- rienced in LMRDA election proceedings, to carry their case forward within the Department. Sadlowski’s counsel, Despres and Rauh, argue that the Department of Labor performs a quasi-judicial role in Title IV cases and that Rauh’s efforts ia Washington were a necessary counter-balance to the adversarial pos- ture taken by the union’s lawyers. William J. Kilberg, then Solicitor for the Department of Labor, stated in an affidavit that after Labor’s investigation the decision to sue was a foregone conclusion absent an agreeable set- tlement. The district court found that Kilberg’s state- ment was representative of Labor’s position and that the extensions granted to Labor “were for the purpose of al- lowing USW to investigate the election.” [Appendix B, 50a]. While we are inclined to disagree with the district court on the role of Rauh in moving the Department of Labor to action, we cannot say that the findings of fact on this issue are clearly erroneous. We will therefore af- firm the district court’s denial of attorneys’ fees for work performed in an effort to urge Labor to file suit in district * Section 482 (b) gives the Secretary 60 days from the filing of a complaint to institute a civil suit in district court if he or she finds probable cause to believe that an unremedied violation exists. 29 U.S.C. § 482(b). ~ 15a D. SADLOWSKIS INTERVENTION FROM FILING OF SUIT BY LABOR THROUGH THE SETTLE- MENT PROCESS AND RERUN ELECTION The Secretary of Labor instituted suit in the United States District Court for the Western District of Pennsyl- vania on November 8, 1973. On January 17, 1974, Sadlowski was granted leave to intervene. Local counsel was engaged in the person of Kenneth J. Yablonski and a fourth attorney, Judith Schneider, was hired to com- plete Sadlowski’s legal team. The gist of counsels’ argument is that they took dep- ositions, participated actively in settlement conferences by critiqueing proposed settlements and by making in- dependent suggestions, and assisted in ensuring that the agreed upon rerun election was fair. We have no doubt that counsel worked very diligently throughout this entire period. However, we cannot say the district court’s findings that counsels’ work was either dupli- eative of the Secretary’s or was rejected by the court are clearly erroneous. Furthermore, the work performed by counsel, although substantial, was at this stage of the process more for the benefit of a specific can- didate, Sadlowski, than for the common benefit.“ Thus, we will affirm the district court’s denial of attorneys’ fees for work performed during this period. V. THE COMMON BENEFIT The common benefit from Sadlowski’s drive to over- turn a union election characterized by fraud is without doubt. The district court’s finding that a new election, * Sadlowski later became a candidate for another union office seeking the post of International President in February, 1977. He lost this election to the union’s officially endorsed candidate by a margin of 79,580 votes. See Sadlowski v. Marshall, 464 F.Supp. 858 (D. D.C.) (rejecting Sadlowski’s challenge to the Department of Labor’s refusal to bring suit to challenge the election), aff'd mem., No. 79-1461 (D.C. Cir. 1979), cert. denied, 447 U.S. 905 (1980). [129a]. That the individual who brought suit also receives a direct personal benefit from it is of no matter when considering the “ ‘implications for the future con- duct of the union’s affairs.“ Hall, 412 U.S. at 8 quoting Yablonski v. United Mine Workers of America, 466 F.2d 424, 48. (D.C.Cir. 1972), cert. denied, 412 US. 918 (1973). The common benefit from dispelling a chill on free speech is exactly parallel to the common benefit Sadlowski conferred on the Steelworkers by insisting on a fair election. More recently in Usery v. Local Union No. 639, 543 F.2d 369 (D.C.Cir. 1976), cert. denied, 429 U.S. 1128 (1977), the District of Columbia Circuit considered the same attorney’s fees issues in a Title IV challenge to a Teamsters’ local election as our court did in Brennan. The Court noted that the LMRDA was passed by Con- gress in 1959 “[i]n response to findings of extensive cor- ruption and improper fiscal and electoral practices by, labor unions ... .” Local Union No. 639 at 373. The Court examined the many common benefit cases under various titles of the LMRDA and concluded that, “the governing rationale was that union members by bring- ing suits against their union help vindicate the statutory policy in favor of union democracy which necessarily re- reprinted in App. C DOO, bis Brief at A. 10. We have thus concluded that Sadlowski’s counse! played sented to the Secretary. The ultimate result of this work was a rerun election that Sadlowski won. This was more than a “fanciful assertion” of benefit and redounded to the common good of all steelworkers. Thus, it should be compensated accordingly. See Lindy Bros. Builders Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973); and, Lindy Bros. Builders Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc). VI. CONCLUSION The order of the district court denying counsel at- torney’s fees for work performed in exhausting the union’s internal procedures for challenging the election and in filing a complaint with the Secretary of Labor will be reversed. The district court’s order will be affirmed insofar as it denied attorneys’ fees for the period after the Secretary received the complaint and decided to insti- tute the lawsuit which led to a settlement. We will there- fore remand this case to the district court for a determi- nation of the amount of attorney’s fees to be awarded in 18a accordance with this opinion and the opinions of our cir- cuit pertaining to the fixing of fees.“ A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit not with excessive frugality. Counsel should not be penalized for winning an appeal with legal and factual arguments contrary to the district court’s position or because someone might perceive coun- sel’s style as abrasive. Counsel should always be compensated for the quality of their work and not on the trial judge’s evaluation of counsel’s affability. We are confident that on remand the district court will act expeditiously to award a proper fee based on the rec- ord before it that already adequately demonstrates the energies of counsel during th. appropriate period. 19a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA C.A. 78-957 PETER J. BRENNAN, Secretary of Labor, United States Department of Labor, * Plaintiff UNITED STATES YT AMERICA, AFL-CIO-CLC (District 31), Defendant EDWARD SADLOWSkI, Intervenor PETER J. BRENNAN, Secretary of Labor, United States Department of Labor EDWARD SaDLOWSKI, Intervenor plf ANTHONY TOMKO a Intervenor plf UNITED STEELWORKERS OF AMERICA AFL-CIO-CLC (District 15) (District 31) Edward Sadlowski, intervenor above named and the fol- lowing counsel for Sadlowski: Joseph L. Rauh, Jr.; Leon Despres; Kenneth J. Yablonski; and Judith Schneider OPINION ROSENBERG, DISTRICT JUDGE This matter is before me now and on remand from the Court of Appeals on the claims of four attorneys for the Intervenor, but none by the Intervenor, himself. is here now for the determination of a factual issue a» that determination is either supported or not by a preponderance of the evidence in the case. That issue is whether such evidence supports an award of counsel fees to an intervenor’s attorneys on an equitable basis on the “common benefit” theory. Brennan v. United Steel- workers of America, [94a]. Rather, the issue is broadened to the extent that this court must, should or can determine from the evidence adduced by these attorneys whether their aggregate con- tribution of service brought about a common benefit to the defendant’s total membership of what, if any, service was rendered by the three attorney-claimants and one legal assistant, and the proportion of contribution each may have made for entitlement to each one’s claim (since each made separate claims) in achieving a successful outcome for the plaintiff—as such commonly benefitted the total membership of the defendant. If indeed each did make a material contribution in his or her way as attorneys for the successful outcome of this action, it is obvious from the evidence »roduced that the four did not act in unison or act commonly for an aggregate fee, but that each would be entitled to an amount for services so rendered and that each would require individual evidence to support the individual entitlement. This action was brought originally by Peter J. Bren- nan, Secretary of Labor (Secretary), against the United Steelworkers of America, AFL-CIO-CLC, Districts 31 and 15 (International)“ Anthony Tomko, the defeated candidate in District 15 and Edward Sadlowski, the de- feated candidate in District 31 were eventially permitted to intervene. However, after the plaintiff and defendant requested me to sign an order of court settling the case by ordering a new election in District 31, the intervenor objected to the settlement for pointless reasons and I or- dered the settlement. Application for counsel fees for the four intervenor’s attorneys followed. I denied this for 1 The caption of the case was amended to name the successor plaintiff, Ray Marshall, Secretary of Labor. 21 lack of statutory authority. On appeal, Judge Van Dusen in an opinion for the court determined that the inter- venor’s attorneys would not be precluded from recovering counsel fees under Title IV of the Labor Management- returned for my consideration. Being bound by the law of the Court of Appeals, I proceed to inquire into and adjudicate those two questions by a preponderance of all the evidence in the case. Of course, I disregard two principles expounded first by Judge Aldisert in his dissenting opinion in Brennan v. Steelworkers of America, [146a], and second in Mr. Justice White’s dissent in Brennan v. United Steelwork- ers, 435 U.S. 977, 979 (1978), [Appendix D, 89a, 91a]. The principle expounded by Judge Aldisert in his dissent- ing opinion is disagreement with the proposition “that the consensual agreement to a new election for District Di- rector in Illinois and Indiana conferred a common benefit upon the entire membership of the United Steelworkers of America”. The dissenting opinion of Mr. Justice White is to the effect that it would have been improper for an intervenor to interfere (if he did) with the Sec- retary of Labor’s discretionary and exclusive enforce- ment authority in this area, since “the rationale per- mitting intervention was not to duplicate the efforts of the Secretary”, and further that the exception to the traditional American rule against awarding attorneys’ fees on the common benefit theory premised on a court’s equity power should not be expanded. I assigned the original inquiry to United States Magis- trate Robert C. Mitchell who broadened the parties’ pre- rogatives to present all the evidence they desired. There- upon all the parties did provide the magistrate with a large volume of depositions and affidavits, and he per- of fact as I supplement the magistrate’s report and find- ings and as I, the presiding judge, have found them to be factual from the evidence and the proceedings in this case before me personally. As I have already stated, this issue was originally presented to me by an application for attorneys’ fees immediately after I signed the order for a settlement. Other than the pleadings, originally, there was no proof presented nor was any request made for a formal hear- ing or for the privilege of presenting any proof to me of entitlement to attorneys’ fees. The total amount de- manded seemed exaggerated in view of the knowledge which I had of the case. No evidence or law was pre- sented to me to convince me of any legal entitlement. This last statement explains that the Court of Appeals as well did not have any evidence before it to support any legal entitlement to fees by the claimants, but was re- quired to base its determination of law upon what the claimants only asserted to be facts without the neces- sary proof which should have been given to me. As the Court of Appeals said: “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 re- The pleading raising the issue of fee entitlement was identified as “Verified Application For Attorneys’ Fees”, and was filed not by the intervenor himself but by three lawyers and one law assistant who assert that they acted in behalf of the intervenor. The inquiry before me, therefore, is towards payment or non-payment of fees to the claimants who, assertedly, had been the inter- venor’s lawyers in the case before me. The Court of Appeals, on return to me, provided me with the following: “Whether on award is warranted and, if so, the amount of such award, is a matter for initial de- termination by the district court in the light of the broader application of the ‘common benefit’ rationale .--” [186a]. Based upon the directive of the Court of Appeals, the claimants were given additional opportunities to present evidence to support their respective contentions and to present sufficient evidence of persuasiveness and the de- fendant also was given similar opportunities to present evidence if it could contrary-wise so that from receipt of the evidence of both parties this court might have suf- ficient evidence, pro and con, for a determination legally by the preponderance of all of the evidence in the case of whether an award was or was not warranted as now based upon the common benefit rationale in accordance with the guidelines of the Court of Appeals. This, it will be noted, differs from that in the case originally when the question before me was on the theory of whether attorneys’ fees were awardable generally as a matter of 24a law in Title IV of the Labor Management-Reporting and Disclosure Act of 1959. And so at the time neither the claimants nor parties plaintiff and defendant believed it necessary to present such evidence, pro and con, as is now before me for a judicious determination. HISTORY AND FINDINGS the election of directors in its 35 geographically divided, nationwide Districts, encompassing a total membership of 1,400,000 members. After the election, 6 complaints out of 35 Districts came to the Secretary of election irregularities. Then after these six complaints were in- vestigated, the Secretary concluded that only two merited action which was filed in this court. These were, from his findings, District 15 where the defeated candidated, Anthony Tomko, and District 31 where the defeated candidate, Edward Sadlowski, filed complaints. The De- partment of Labor brought this action on its own ac- cumulated evidence for the procurement of a satisfactory resolution in these two Districts.” Both Sadlowski in District 31 and Tomko in District 15 asked to intervene. The complaint was separated by this court into “A” and “B” parts for Districts 15 and 31. From that point my concern and attention in this determination is to the procedures and the circumstances in District 31 as they bear any significance to the merit or the lack of merit to the intervenor’s claimants’ claim for attorneys’ fees, except in those instances where ex- planatorily related factual references wil! be pointedly made to District 15. As I stated before, in order to give the claims the full- est consideration, I first referred the matter to a United 2 The settlement in each District was different. In District 15, it was the adoption of a new set of nomination procedures. In Dis- trict 31, both parties agreed to a supervised re-run election. States Magistrate for a detailed inquiry. His report is elaborate, searching and pointed. Objections were filed to his report by the claimants and by the defendant in its “Response to Objections of Intervenor”. I have examined and re-examined the record carefully and I am now in a position to arrive at the following factual findings from the total record in the case, the magistrate’s report, and from my own knowledge judicially acquired while presid- ing in the case. The members of District 31 who might have benefitted, if any benefit arose from the action of the claimants, com- prise 1/10th of the membership of the United Steelwork- ers upon whose 1,400,000 members nationally would fall the obligation to pay the claimants’ bill under the com- mon benefit theory. Accordingly, as the presiding judge, I must be judicially satisfied that the claimants’ claims are justified, reasonably earned, fair and of benefit to the total union’s membership, as a matter of equity, before I can in good conscience place this liability upon the de- fendant’s more than one million men and women upon whose wages such liability would likely attach, before they are entitled to receive them. District 31 which covers 2 geographic area including parts of northwestern Illinois and northwestern Indiana comprises a membership of approximately 126,000. While it is incumbent upon me to hear evidence and award any fairly earned attorneys’ fees, it was not at the beginning when the fee application was first filed, in- cumbent upon me to seek out the claimants and demand cating any readiness to proceed to satisfy me of their en- titlement to any sums of money, since they argued only their legal rights to fees. Accordingly, based upon only the contents of the filed petition, I was not prepared to make any firm determination of entitlement or to adjudi- cate quantitative entitlement upon any conclusionary summaries of activities and amounts as averred in the petition. Particularly, I was not so inclined when many of the averments in the petition were contrary to the facts in the case as I knew them to be as the presiding judge. Some of these I shall presently point out. Immediately, or soon after the complaints of election irregularities were received, the Secretary assigned a large number of experienced Department of Labor (DOL) Compliance Officers, all under the direction of supervisors to investigate the 6 election complaints. The investigators had frequent consultations with the defeated candidates and hundreds of others. I accept the affidavit of Stephen Ernst, Chief Trial Counsel for the Secretary of Labor, who made factual averments and to which no counter-affidavit was filed; and now incorporate these as some of the findings of fact in this case, particularly as these relate to District 31. However, insofar as the ac- tivity of the Secretary is concerned, I shall indicate only that much as may have been inter-related in the continu- ing inquiry into the complaints, their processing and ter- minations in all six Districts from which reports of ir- regularities came to the Secretary, sufficient to induce the Secretary to procure overall evidence. As far as District 31 is concerned, (1) The Secretary had assigned 19 DOL Compliance Officers to the investigation of this District, and over 8,600 person hours were expended by them in the process; (2) Chief Trial Counsel, Stephen Ernst, accumulated “several file drawers of materials” in his office and addi- tional boxes of materials in the Chicago office of the Sec- retary of Labor (Ernst Affidavit II, paragraph 5) ; and (3) The evidence so adduced by these DOL investiga- tors and the Secretary’s counsel was more than sufficient for the Secretary to pursue the action in District 31 (again without regard to the other five districts) where the evidence was so abundant as to make it feasible to 27a proceed to trial without formal discovery, except for such as the defendant may have desired. Counsel for the Secretary had accumulated by these investigations more than enough evidence to enter this action and to carry it to completion without aid from the intervenor or any of the claimants. The reason for this was that counsel for the Secretary had on the work- ing staff highly motivated and skilled professional fed- eral investigators upon whom complete knowledgeable re- liance could be placed. However, that would not have pre- vented the Secretary from participating in any discovery which would be initiated by the defendant International. In fact the defendant had indicated to me, as I presently explain, the desire to depose a large number of members in the Chicago area. This was defense evidence, not plaintiff’s evidence. The activity of the Secretary and his staff of 19 DOL Compliance Officers was of such magnitude that one of the claimants’ attorneys for the intervenor, Leon Des- pres, wrote to another claimant attorney, Joseph Rauh, on August 30, 1973 and admitted that the Secretary had accomplished comprehensive and conclusive results from the DOL investigation.“ While the Compliance Officers interrogated the two unsuccessful candidates, there is no evidence that the Secretary consulted with Sadlowski or his counsel on whether or not to commence any action in the United States District Court for the Western District of Penn- sylvania, or in any other court. So thorough had been the work and so voluminous the results of the Secretary’s staff that the Secretary was able to proceed with the This letter of Despres and another letter addressed to Rauh was evidently for the purpose of obtaining “encouragement or informa- tion that might help Sadlowski in the Campaign” and praised the Secretary and his staff for the intensive investigation which the Secretary had carried on and stated that “[a] new election seems likely” to occur for Sadlowski’s benefit. 28a entry of this action and pursue it. As I just stated, this did not include the depositions which the defendant de- sired from a large number of voters in Election District 31. In fact, counsel for the plaintiff and defendant indi- cated their desire for this court to sit in Chicago for a a ee eee ee ons. The fact that on three or four occasions either Sadlow- ski or his attorney, Mr. Rauh, called the Secretary ob- viously had no effect upon the Secretary’s determination to file suit, is corroborated by the affidavit of William J. Kilberg, Solicitor for the Department of Labor, who had final avthority on the decision to sue. This was presented before the magistrate and was not contradicted by any counter-affidavit. He testified that: “It is clear that at no point in time, once the field investigation had been completed in early August, was there ever any doubt that short of a satisfactory settlement, the Department would sue in District 31.“ (Kilberg’s Affidavit, paragraph 9). “I know, from my own knowledge, that nothing done by Mr. Rauh or any other attorney for Mr. Sadlow- ski contributed to the Department’s decision to in- stitute suit in District 31. That suit would have been instituted on the date it was instituted, whether or not Mr. Sadlowski had been represented by at- torneys.” (Kilberg’s Affidavit, paragraph 29). Since neither the Secretary nor any member of his staff who functioned for the Secretary in his procedure had reason to have personal interest in this matter, nor in the constant flow of such labor cases coming for their attention and processing, I give high credibility and great weight to their testimony. This is more so true because of the many conflicting assertions made by Sad- lowski’s supporters, particularly as I know the facts in the case which came before me in open court. All in all, I endeavored to detailedly scrutinize the vol- uminous summary recitals presented in affidavit form to the magistrate by the claimants as these were presented with a changed attitude in derrogation of practically all which the Secretary of Labor, his counsel and the large number of DOL investigators had done. Previously, coun- sel lauded the Secretary’s DOL officers’ activities. Had the claimants’ Narrative given some fair evaluation to the Secretary and his staff, as counsel had done in their previous letters, and been less self-laudatory, they might have been more credible as to such matters which they averred as being out of court. As to their recital of boasts of their in-court activities and their specific influence on this court in securing an ultimate settlement and decree for a new election, I not only reject these in-court statements, but as well I find many of their out-of-court statements contradicted or un- supported by the evidence. Thus, the claimants’ proof is insubstantial and insufficient and lacking persuasiveness enough for me to hold their contentions (and claims) proven by a preponderance of the evidence in the case as a whole. I make this conclusion as the presiding judge who had a more impartial knowledge of the in-court facts involved than any other person in the case. The Secretary of Labor through its official counsel filed this action on November 8, 1973. Soon after that Edward Sadlowski, the defeated candi- date in District 31, filed for leave to intervene. On Janu- ary 21, 1974, the plaintiff and defendant stipulated to separate the trial relating to Districts 15 and 31 and des- ignated them as District 15, Part “A” and District 31, Part “B.” The plaintiff accordingly filed a complaint in During my in-court hearings and arguments, some time was shared in discussing settlement with the plaintiff’s and defendant’s counsel, and they informed me that the Secretary’s aim from the beginning was to arrive at a settlement by having the defendant agree to a new election. Evidence in the case supports the plaintiff and defendant counsel’s statements of settlement aims. This settle- ment the Secretary’s and defendant’s counsel eventually achieved. each of these separately in order to identify the facts which he alleged to be pertinent to each of these Dis- tricts. These amended complaints were filed January 28th. On February 12th, the defendant filed answers to the amended complaints as related to these two Districts. The matter came before me in open court for the first time on the motion of the plaintiff to expedite the trial of both Parts A and B. The second open-court matter before me came when the plaintiff requested a preliminary injunction and clari- fication of the pretrial order. The intervenor’s counsel was also present, but was more an observer than a par- ticipant. On this occasion in court, counsel for both the plaintiff and defendant attempted to have me make a determination on the admissibility of evidence which had been presented in a previous labor case and explained that it would simplify this case. I denied the motion as being premature and informed counsel I would require facts in evidence before I could make a determination on the admissibility of any evidence, especially such as was not yet before me. The next activity occurred when both plaintiff’s and defendant’s counsel desired someone to preside over the taking of depositions (presumably desired by the defend- ant) of a large number of witnesses in District 31 in Chicago, asserting that the taking of such depositions would be helped by the court’s supervision. This would have required at least one week’s time. I held the matter in abeyance and informed counsel that consideration would be given to this at a future, appropriate time. The intervenor’s counsel was of no significant help here to the plaintiff. In the meantime, I urged counsel for the plaintiff and defendant to continue their attempt (as I had previously stated) to reach a settlement in the case, since this would the trial. Counsel for the plaintiff and defendant agreed with me and informed me that they were interested in a settlement and agreed with me that a lengthy trial was unwarranted and would serve no good purpose. Counsel for > plaintiff and defendant assured me that settlement discussions had taken place and offered to exert every effo t to bring about such à result. They agreed to bring the matter earnestly to the attention of their re- spective principals. That evidently helped their hitherto settlement efforts, because on August 2, 1974, counsel for the plaintiff and defendant did file a motion for the ap- proval of a settlement agreement between the plaintiff and defendant. On March 29th, 1974 the first uctive record particina- tion which the intervenor’s counsel exerted was in giving notice of two depositions, one to the successful candidate and the other to Joseph Jeneske. Request was also made for the production of documents. The next record activity in which the intervenor’s counsel participated was on May 28, 1974, when the de- fendant gave notice to take the deposition of the inter- venor, Edward Sadlowski and requested the production of documents. On June 25th, 1974, notice was given of ‘the taking of depositions by Joseph Rauh, the intervenor’s counsel, to Stanley Lachen and Panny Cifalia. A second notice was dated July 16th. Counsel then gave notice of a deposition to Fermine Salinas on July 29th. Here I comment on the notices given by intervenor’s counsel to the various witnesses for depositions and find „7. 8 depositions of those named were irrelevant to the plain- tiff’s case and superfivous. Rather than detail the depo- sitions taken by the intervenor, I shall, in order to save and , summarize what was attempted by them. these the interven-r’s counsel concentrated on procur- ing information from the witnesses on the financing of the campaign prior to the election in which Sadlowski was the defeated candidate. When a party’s attorneys admit certain facts, it is in- cumbent upon the trial judge to give as much credibility as possible to such admissions of counsel. For instance, Leon Despres, one of the attorneys for the intervenor in a letter dated May 24, 1974 to Joseph Rauh, co-counsel for the intervenor, indicated that these depositions had political and not legal significance. Despres stated “The reason we felt it necessary to take these deposi- tions was to compel these men to refuse to divulge payments out of USW funds for Evett campaign con- tributions or expenditures. Since USW said it would take Sadlowski’s deposition, I felt it was psychologi- cally very important to have these refusals precede Ed’s testimony. Thus his frankness of disclosure will stand in sharp contrast.” (Despres Deposition, Ex- hibit 11). I repeat, that any financial circumstance would not pos- sibly be a usable element in the plaintiff’s case against the defendant, as I presently point out. Thus, since the majority of the questions asked of the deponents were focused on financial issues, it is cor- roboratingly evident that counsel claimants were politi- cally motivated to procuring another election to promote Sadlowski and give him another change for victory at a second-chance election, rather than gaining relevant evi- dence to aid the plaintiff and the court in making find- ings of fact for the resolution of procedural issues be- fore it. Discovery concerning the financial issue was irrelevant and nothing gained by these would have been admissible in evidence in this case, because as the Department Labor’s investigation disclosed, and as not averred in its complaint, there tried. In fact, it was the Secretary’s final Report of Investigation which concluded that Sadlowski’s allegation that “union funds and materials were used to support Evett’s candidacy” was “not substantiated by investi- gation.” (pages 71, 78). INTERVENOR LIMITED BY PLAINTIFF’S Under the law the intervenor is bound by the pleadings of the case and neither Sadlowski nor his counsel could possibly add an additional claim not included in the Secretary’s complaint, or contrary to its averments. In Trbovich v. United Mine Workers, et al., 404 U.S. 528, 587 (1972), the Court denied the petitioner’s request to add additional grounds for setting aside a union election. Mr. Justice Marshall stated: . . . These are claims that the Secretary has pre- sumably determined to be without merit. Hence to require the union to respond to these claims would be to circumvent the screening function assigned by statute to the Secretary .. . Accordingly, we hold that in a post election enforcement suit, Title IV imposes no bar to intervention by a union members, so long as that intervention is limited to the claims of illegality presented by the Secretary’s complaint.” Neither does this court have jurisdiction to inquire into financial matters which the Secretary did not address in his complaint, and am as restricted here as is the intervenor. While in the briefs there are plenty of self-serving arguments of the extraordinary work done by the claim- ants outside the courtroom, it is noticeable that not one 34a single averment is made in any of their pleadings which relates to discovery being conducted in order to support the claim of irregularities in the past election other than financial. It should be observed perhaps in this connection that the intervenor was frank in revealing the fact that he had a personal interest in the action commenced by the Secretary. This he did, when he filed the motion for leave to intervene under Federal Rule of 24 on December 20, 1973. There it is stated, 7. Petitioner Sadlowski has a direct and substan- tial interest in the subject matter of this action and is so situated that the disposition of this action and the terms of any order entered will as his 8. Petitioner Sadlowski’s interest is not adequately represented by the parties in this action Furthermore, in the intervenor’s complaint filed De- cember 10, 1973, he adopted and incorporated “by refer- ence the allegations set forth in paragraphs I, II, III, IV, V, VI, XI, XII, XIII and XIV” of the complaint appear to involve financial matters, but that is the only place where financing of election campaigns is raised. Thus, it would seem that the intervenor might have raised, but even this not legally, financial matters relat- ing to the dinner, and to the dinner only; but his dis- covery ranged far and wide to legislative and educetional funds, to voluntary political education committee funds; to a strike relief fund; and, fourteen other similar finan- cial subject matters. None of these were raised as irregu- larities by the Secretary. Furthermore, the Secreiary ruled, as verified by Ronald Lehman, Counsel for the Department of Labor, that no questionable financial ac- tivities were involved. (Lehman deposition, page 35). The intervenor through his able counsel knew that none of these financial issues had any relevancy in the case and knew that he was limited to the issues set forth in the Secretary’s complaint. Trbovich, supra, at page 537. Accordingly, what the claimants raised in their deposi- tions is so far and wide of the issues presented by the Secretary as to be frivolous. This is also aside from the principle laid down in Trbovich, supra, at page 531, that Congress has constituted suit by the Secretary of Labor to be the exclusive post-election remedy for a violation of Title IV. Thus, I find that the intervenor’s depositions were not taken in good faith for the purpose of aiding the court in a fair and judicial determination of the issues in this case. One indication of this is a letter from the inter- venor’s counsel Rauh to co-counsel Leon Despres dated February 7, 1974. This letter commended the trial at- torney for the Secretary as being “able, energetic and quite determined to win” as well as commending the amount of evidence already gathered by the government. The claimants undoubtedly accepted the inevitability of the new election as fact from the report of the investiga- tion of the Department of Labor’s Compliance Officers, and so counsel knew that the depositions filed subsequently by notices on June 25th, July 16th and 29th, 1974 were worthless—except for their ulterior, political purposes. I hold that such discovery activities by Sadlowski and his counsel were of no help to the plaintiff and were injected only for self-serving purposes. As such these activities of Sadlowski’s counsel cannot be deserving of any equi- table compensation by the entire membership of the defendant—or any of the 35 Districts. B6a CLAIMANTS’ OBJECTION TO SETTLEMENT The next activity by the claimants (personally) on the record file was a request for an oral argument of their objections to the motion for approval of the settlement agreement by the plaintiff and defendant. That was not necessary because I had already scheduled a hearing on the matter in order to ascertain the appropriateness of such a settlement. At the hearing both counsel for the plaintiff and for the defendant extoll ed the virtues of a settlement, and stressed the savings of months of trial time and energy. But counsel for the intervenor objected primarily on two grounds: (1) that, since I was requiring that the new election must be held within 90 days of an order of settle- ment, the forcoming election would be within two or three days of Thanksgiving and inconvenient for voters; and (2) that an election by mailed ballots could not be worked out within 90 days. I disagreed with the intervenor’s counsel and overruled his objections. First, I did not see why an election could not be held before Thanksgiving—and counsel for the plaintiff and defendant agreed that it could and assured me that it would be so held. Second, there was no evi- dence before me that a new election would be conducted by mail as the intervenor’s counsel argued that it would be. I informed all counsel that the method of conducting the election, if specifically voted by the International for future elections, would not bind the Secretary in con- ducting a second election, and the conduct of an election by this agreed upon order of court would be completely within the discretionary functioning of the Secretary who was required by law to appropriately and adequately conduct the election. I stated emphatically that I would not interfere with the discretion of the Secretary. 87a ALLEGED BENEFITS CONTRIBUTED BY INTERVENOR-CLAIMANTS The claimants in their briefs make much of the unusual activity expended by them in bringing about the settle- ment between the plaintiff and the defendant. I observe here that Rauh, counsel for the intervenor, was a mod- estly acting attorney in the courtroom, as also were coun- sel for the plaintiff and the defendant. There was no unusual activity on the part of Rauh which indicated to me that the settlement agreement submitted to me was wrong. All that Rauh attempted to do was argue that there should be no settlement. Secretary counsel, Wil- liam Kilberg and Stephen Ernst, representing the plain- tiff, and Michael Gottesman representing the defendant disagreed with Rauh and together in the courtroom pressed the motion for settlement and the finalization of the case. Up to that time elections were being held under the International’s Constitution at the many fixed places throughout the International area. Counsel for the de- fendant asserted that the forthcoming convention was to consider the matter of elections by mail. This was dis- cussed only and nothing more. I reiterated that the Sec- retary was to hold the election in accordance with the Constitution of the International Union, and I emphasized, throughout, that the election must be held within 90 days. It was totally on that basis that I approved the settlement in spite of the fact that Rauh did not withdraw his objec- tions. In fact, he seemed to believe that he was unsuccess- ful before me because, in related fashion, he stated, . . all my arguments have been overruled”. (Tr. page 48). Thus, it is obvious that counsel for the intervenor performed nothing to bring about the settlement, and in this respect could not possibly have benefitted the mem- bership of 1,400,000 members. Accordingly, Rauh’s objections gained nothing for the membership and even nothing that would give the inter- venor more convenience for his forthcoming campaign as a candidate for election. As of that time I had not had all the evidence which I now have before me, but had I then had the full evidence which * now have, I would have realized that Rauh’s attempted obstruction of the settle- ment agreement, which the plaintiff and defendant desired, was not because of any aid to the court for a judicial determination of the case, or for the benefit of 1,400,000 union members, but because Rauh’s interjecting not-so- very soluable objections, actually, was to acquire more and extended time for his client’s campaigning in a new elec- tion. Thus, the objections being an empty gesture, merits no compensatory credits in “bringing out” a settlement. The evidence of the plaintiff, and in effect corroborated by the admissions of the intervenor’s counsel, lent sub- stance to the fact—and I so hold—that the intervenor was a defeated candidate in a labor election, and like millions of defeated American political candidates all the way from committeemen and women to United States Senator, or possibly national presidential elector, or fraternal, cor- porate, church and even other labor applicants for office, as disappointed candidates, contest unfavorable elections in an effort to reverse them for the purpose of becoming the ultimate victor; so Sadlowski after losing the election count processed his dispute all the way through the inter- nal machinery of the International. Failing there, he made the next challenge to the Department of Labor by the legal authority given him in the Labor Management- Reporting and Disclosure Act, 29 U.S.C. § 482(b). NON-EXISTENT PROOF OF COMMON BENEFIT TO MEMBERSHIP To support merit to their claims for fees, the claimants contend that the running of a second election for director of District 31 conferred a benefit not only upon District 31, but upon the entire USW membership; first, because the director of District 31 sits on the International Execu- tive Board, the governing body of the USW, and as such official he would be of benefit to the entire union member- ship; and second, because by the re-running of the election in District 31 the entire membership of the USW was put on notice that election improprieties will not be tolerated. So the claimants put into question two conclusory argu- ments as a basis for proving that the “common benefit” doctrine is applicable to the instant case sufficiently enough to justify an award of attorney’s fees, payable by the total International membership. Judge Van Dusen in Brennan v. United Steelworkers, etc., supra, at pages 604-605, stated that the evaluation of the “common benefit” claims must be whether the bene- fits (1) may be traced with some accuracy; (2) the class of beneficiaries is readily identifiable; and (3) whether there is a reasonable basis for confidence that the costs may be shifted with some precision to those benefitting. Examining the claimants’ contentions in the light of the evaluations of the common benefit rationale, we keep in mind first the fact that Sadlowski’s complaint to the Secretary was not the only one among the thirty-five Dis- tricts of the International; that five other complaints were registered; that one other complaint that of An- thony Tomko in District 15 is incorporated in this action with Sadlowski’s complaint and that the claimants did not stand out as principal champions and defenders of the 1,400,000 members of the International. The record showed that the Tomko complaint, as well as the Sad- lowski complaint were being processed at the same time. and that I, although separately, disposed of each at the behest and common effort of the Secretary’s counsel and the Union’s counsel. While this part of the record was not introduced into evidence, it is, nevertheless a part of this record as it was before me as Part “A”. The settle- ment of District 15 and the stipulation came before me as a package, as agreed upon between counsel for the plaintiff and defendant and as such, I granted counsel’s If, then, the two Districts 15 and 31 were those liti- gated and settled together as a package, can it be said with any accuracy, with what is before me in this case that the District 31 litigation by the intervenor, helped District 15 also? If so, there is not one bit of evidence in the record or before me that the claimants helped to bring it about. And so far as the claimants’ argument that “the entire membership of the USW was put on notice that election improprieties will not be tolerated”, it is uncontradicted that at least twenty-nine other Dis- We look at all these principles enunciated by Judge Van Dusen in Brennan v. United Steelworkers, supra, that benefits may be traced with some accuracy; that the class of beneficiaries is readily identifiable, and that there doubt as to whether the other 34 Districts «an measure up to fitting into the requisites specified by Judge Van 1 — down by Judge Van Dusen, the contentions of the claim- ants ar [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_IA40385008_2053%3A0. Public record. Not legal advice.