Opposition Brief — CSEA Local Union 1000, American Federation of State v. Brock

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7

Supreme Cout. US.

FIlikb

JUN 11 1986

No. 85-1866 JOSEPH F. SPANIOL, JR,

ERK

l

In THE ib

Supreme Court of the United States

Octoser TERM, 1986

CSEA Loca Union 1000,

AMERICAN FEDERATION OF STATE, COUNTY AND

Municipat Empcoyess, AFL-CIO,

Petitioner,

v.

RAYMOND J]. DONOWAN, SECRETARY OF LABOR,

Respondent,

and

Heven CARTER,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO

Tue Unitrep States Court OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION FOR

RESPONDENT HELEN CARTER

DANIEL E. CLIFTON

Attorney for Respondent

Helen Carter

401 Broadway, Suite 403

New York, New York 10013

(212) 431-8512 ”

Of Counsel:

Currton & SCHWARTZ

i

QUESTIONS PRESENTED

Whether a district court has the

discretion to award attorney's fees to

an intervenor-plaintiff who materially

aids the Secretary of Labor in the

Successful prosecution of a lawsuit

under Title IV of the Labor-Management

Reporting and Disclosure Act of 1959, 29

U.S.C. §§ 481 et seq.

Questions Presented

TABLE OF CONTENTS

ii

Table of Authorities.

Opinions Below.

Jurisdiction.

Statement of the Case

Statement of Pacts.

Argument. .

Conclusion.

12

23

iii

TABLE OF AUTHORITIES

Page

Brennan v. United Steel Workers

of America, 554 F.2d 3836 (3d

Cir. 1977), cert. denied, 435

Gees B77 (iS7TG) « « « 2 © « 14,18,

Calhoun v. Harvey, 379 U.S. 134

ee os) 6 6 « «© & ¢ » 6 8 6 ©

Carter v. CSEA, Civ. No.

82-0832 (EDNY 1982) .... . 9,10,

Donovan v. International

Brotherhood of Teamsters,

Local 70, 661 F.2d 1199 (9th

Sees SeObes © we ew wo we wm we ew ew ow BU,

Hall v. Cole, 412 U.S. 1

Pee ets @ 6 6 @& «© © «© « » « © 16,7,

Hodgson v. Local 6799, United

Steelworkers, 403 U.S. 333

es < «ss 6 feel ll le

Marshall v. United Steel Workers

of America, 666 F.2d 845 (3d

Cir. 1981), cert. denied, 459

a ere eer! « 6 @ &« « + © «© « 6

Mills v. Electric Auto-Light

Company, 396 U.S. 375 (1970)... .

Rollison v. Hotel, Motel and

Restaurant Construction Camp

Employees, 677 F.2d 741 (9th

Cate BEUSio «6 © eo we © wo 6 te ow 680,

Trbovich v. United Mine Workers,

Soe Gels See (L972) « « o © @ » 6G,

20

13

11

21

18

20

18

21

14

United Steel Workers v.

Sadlowski, 435 U.S. 977

[ewer + 6S 8 6 ee Re oe ws + «6S

Usery v. Local Union 639,

International Brotherhood of

Teamsters, 543 F.2d 369 (D.C.

Cir. 1976), cert. denied, 429

GsGs 2488 USOTIs ss « «es e el|6R8 BI

Statutes:

28 U.S.C. SePUUR De: 2 eS 6! ee ee Oe

29 U.S.C. BOR ois 4 Ce ees le hetelle

29 U.8.C.

29 U.S.C. i ee eae ee Oe ee ae

29 U.S.C. a a ae a ee ee ee ae

29 U.8.C. ot | ee

29 U.S.C. WOntG! & «es + oe la) ae

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29 U.8.C. Cesta) & + 6: a 4s else Se

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

No. 85-1866

CSEA LOCAL UNION 1000, AMERICAN

FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES, AFL-CIO,

Petitioner,

Vv.

RAYMOND J. DONOVAN,

SECRETARY OF LABOR,

Respondent,

and

HELEN CARTER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION FOR

RESPONDENT HELEN CARTER

2

OPINIONS BELOW

The opinion of the court of

appeals, dated February 14, 1986 (Pet.

App. A1-Al2), is reported at 784 F.2d

98. The decision of the district

court, rendered July 26, 1985 (Pet.

App. A13-Al6), is unreported. The

opinion of the court of appeals, dated

May 1, 1985 (Pet. App. A36-A48), is

reported at 761 F.2d 870. The decision

of the district court, dated July 19,

1984 (Pet. App. Al17-A35), is reported

at 594 F.Supp. 188.

JURISDICTION

The judgment of the court of

appeals was entered on March ll, 1986.

The petition was filed on May 12,

1986. The jurisdiction of this Court

is invoked under 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

This action was brought by the

3

Secretary of Labor (Secretary) on

January 31, 1983, under Title IV of the

Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA), 29

U.S.C. §§ 481 et. seg., challenging the

June 15, 1982 election of officers of

petitioner, CSEA Local Union 1000. The

Secretary sought an order declaring

that petitioner had violated section

401(b) of the LMRDA, 29 U.S.C. §

481(b), by failing to conduct the

election for the statewide offices of

President, Executive Vice President,

Secretary and Treasurer by secret

ballot. The Secretary also sought an

order declaring that petitioner had

violated section 40l(e) of the LMRDA,

29 U.S.C. § 481(e), by: (1) imposing

unreasonable candidacy requirements;

(2) imposing candidacy requirements in

a non-uniform manner; (3)” denying

members in good standing a reasonable

4

Opportunity for the nomination of

candidates; and (4) denying members in

good standing the right to be a

candidate.

To remedy these violations, the

Secretary sought a new election to be

conducted under his supervision.

Carter, the union member who had filed

the initial election complaint with the

Secretary, intervened in the lawsuit.

The Secretary filed motions for

partial summary judgment on the secret

ballot issue and on the claim that

petitioner's nominating procedures were

unreasonable. Petitioner filed a

motion for partial summary judgment on

the ground that Carter had not properly

exhausted internal union remedies with

respect to her complaint about the

nominating procedures.

The district court granted the

Secretary's motion for summary judgment

5

on the secret ballot issue; denied the

Secretary's motion for summary judgment

with respect to the nominating

procedures; and denied petitioner's

motion regarding Carter's exhaustion of

remedies. The court ordered petitioner

to conduct a new election within 99

days, supervised by the Secretary.

(Pet. App. A27) A new election was

held on October 15, 1984.

On appeal, the court of appeals

reversed the district court insofar as

it found petitioner's nominating

procedures reasonable and not in

violation of the LMRDA and affirmed the

order insofar as ‘it concluded that

Carter had exhausted her internal union

remedies. (Pet. App. A48). The secret

ballot issue was not appealed.

Carter applied for costs and

attorney's fees in the seoust of

$38,785.86 for t’> work contributed by

6

her counsel throughout the litigation.

The district court awarded costs and

fees to Carter in the amount of

$7,112.10. (Pet. App. Al6). The court

of appeals affirmed but modified the

award to include compensation for the

time spent on the fee application

itself. (Pet. App. Al2).

STATEMENT OF FACTS

From May 15, 1982 to June 15,

1982, petitioner conducted a mail

ballot election of statewide officers.

Carter's request to be a candidate for

the office of Secretary was denied by

petitioner, ostensibly because she had

not met the eligibility requirement of

continuous good standing since June lst

of the previous year.

After an unsuccessful attempt to

appeal the decision within the union,

Carter filed sult in United States

District Court for the Eastern District

. eee

A Aol, ree

ee ee ee

5

of New York, seeking to enjoin

petitioner from conducting the election

without placing her name on the

ballot. Jurisdiction was invoked

pursuant to section 102 of the LMRDA,

29 U.S.C. § 412 and section 301l(a) of

the Labor Management Relations Act

(LMRA), 29 U.S.C. § 185(a).

Petitioner vigorously contested

the issue of jurisdiction, contending

that it was a public employee labor

organization which was not covered by

the LMRDA or LMRA. Investigation by

Carter's counsel revealed that

petitioner represented a small number

of private sector employees in various

parts of New York State. In April

1982, a four day evidentiary hearing

was held on Carter's motion for a

preliminary injunction. On May 13,

1982, the district court rendered a

decision denying Carter's motion on the

8

merits, but finding that petitioner was

subject to the federal labor laws.

After the election was conducted,

Carter filed an election protest in

accordance with the union constitution.

Carter protested, inter alia, the lack

of a secret ballot, the denial of her

eligibility to be a candidate, and

petitioner's unreasonable an@

undemocratic method of nominating

candidates, to wit: incumbent officals

were automatically nominated; a

Statewide nominating committee would

choose other candidates whom it decided

were "qualified"; and those persons not

chosen would have to submit petitions

containing the signatures of 2% of the

membership.

When Carter's election protest

was denied by petitioner, she submitted

an election complaint to the Secretary,

pursuant to Section 402(a)(1) of the

Seti ee eee ees

9

LMRDA, 29 U.S.C. §482(a)(1). During

the Secretary's investigation, Carter's

counsel provided further information

and had frequent contact with

Department of Labor personnel in an

effort to persuade the Secretary to

bring suit to overturn the election.

In addition to the evidence

supporting her complaint, Carter

supplied documentation to the Secretary

to show that petitioner should be

covered by the LMRDA. This consisted,

in large part, of information obtained

in the litigation of Carter v. CSEA,

Civ. No. 82-0832, in the Eastern

District of New York.

After a five month investigation,

the Secretary concluded that he had

jurisdiction under the LMRDA and he

filed suit against petitioner. Carter

intervened.

An active participant in the

10

litigation, Carter's counsel discussed

legal strategy with counsel for the

Secretary, prepared papers in

Opposition to petitioner's motion at

the request of the Secretary's counsel,

presented argument on each of the

motions before the district court, and

provided documents and other factual

information to the Secretary's counsel

during the course of the litigation.

On the appeal, Carter again intervened,

filed a brief, and argued before the

court.

In her application for fees,

Carter sought compensation for the work

performed by her counsel in the Title

IV lawsuit and in establishing that

petitioner was governed by the LMRDA in

the Carter v. CSEA litigation.

The Secretary declined to take a

position with respect to the question

of whether fees should be awarded, but,

5 anc a tA a

ll

in a statement submitted to the court,

acknowledged the assistance of Carter

in a number of areas, including the

jurisdictional question, the issue of

Carter's exhaustion of remedies, and

the first appeal of the district

court's order.

The district court determined

that an award of attorneys fees was

appropriate, but substantially reduced

the amount requested. The court (1)

awarded fees at the rate of $75 per

hour rather than $100 per hour, which

was requested by Carter; (2) declined

to award fees for any work performed by

Carter's counsel im the Carter v. CSEA

litigation; (3) declined to award fees

for any work performed on the appeal;

(4) declined to award fees for any work

performed on the fee application; and

(5) reduced by one half the hours

expended by counsel on the remaining

12

part of the case.

The district court awarded costs

and fees in the amount of $7,112.10.

The court of appeals affirmed the award

of fees, but increased the amount to

$8,649.60 to include seeuiiiatin for

the time spent by counsel on the fee

application.

ARGUMENT

Petitioner contends that a

district court has no authority under

the LMRDA to award attorney's fees to

an intervenor-plaintiff, such as

respondent, who has provided material

assistance to the Secretary in the

successful prosecution of a Title IV

Suit. This contention was correctly

rejected by the courts below. Further

review is unwarranted.

Ae Petitioner's contention that

the statutory scheme of Title Iv

precludes an award of attorney's fees

Ai AON Er tm at iste On

~

13

misconstrues the purpose of the sta-

tute. Section 402 of the LMRDA "sets

up an exclusive method for protecting

Title IV rights, by permitting an

individual member to file a complaint

with the Secretary of Labor challenging

the validity of any election because of

violations of Title IV." Calhoun v.

Harvey, 379 U.S. 134, 140 (1964).

After filing an election complaint, the

complaining union member must await the

decision of the Secretary as to whether

Or not a lawsuit will be filed. This

rule is designed to protect unions from

frivolous litigation by individual

union members and-:to avoid multiple

suits by allowing the Secretary to

consolidate all meritorious complaints

concerning a union election in a single

proceeding. Trbovich v. United Mine

Workers of America, 404 U.S. 528, 532

(1972).

14

After the Secretary files suit,

however, the complaining union member

may intervene “so long as that

intervention is limited to the claims

of illegality presently by the

Secretary's complaint." Trbovich, 404

Oi Bary Se Bars As the Trbovich Court

recognized, “there is no evidence that

Congress was opposed to participation

by union members in the litigation, so

long as that participation did not

interfere with the screening and

centralizing functions of the

Secretary." Trbovich, 404 U.S. at

3932-33.

Since Trbovich, the courts have

recognized that the intervenor union

member is often in a position to

provide critical assistance to the

Secretary. In Brennan v. United

Steelworkers of America, 554 F.2d 586,

595 (3rd Cir. 1977), cert. denied, 435

rere

Sdeectaa otha

15

U.S. 977 (1978), the court observed:

"The notion of private

participation in the

prosecution of Title IV

violations, notwithstand-

ing the involvement of

the Department of Labor,

is fully consistent with

the form and purpose of

this statute. Not only

is the intervenor often

in a position to obtain

information which might,

for whatever reason, be

difficult for the agency

to marshall or preserve,

but his perspective and

the intensity of his

interest allow him to

contribute to the court's

total understanding.”

Moreover, Congress itself created

a significant rete for the individual

union member in Title IV's enforcement

scheme. The first step in Title IV

enforcement is for a union member to

challenge the election through internal

union procedures. The Secretary may

seek to overturn an election only on

grounds raised in "some discernible

fashion" by the union member's protest

16

to the union. Hodgson v. Local 6799,

United Steelworkers, 403 U.S. 333,

340-41 (1971). The Secretary's

authority to sue, and any benefits that

ultimately accrue to the membership,

derive from the initial efforts of the

individual complainant. The intervenor

confers a substantial benefit on the

union membership by identifying,

investigating and presenting for the

Secretary's ultimate prosecution,

evidence of the union's violations of

Title IV.

In these circumstances, it is

unlikely that Congress intended to

preclude courts from exercising their

traditional power to grant attorney's

fees in appropriate circumstances. In

Hall v. Cole, 412 U.S. 1 (1973), the

Court upheld a “common benefit" award

of attorney's fees to a union member in

his successful Title I action despite

17

the fact that Title I provides only for

"such relief (including injunctions) as

may be appropriate," and does not, like

Titles II and V, explicitly mention

attorney's fees as a form of available

relief.

Justice Brennan explained that an

individual, by vindicating his own

right, "necessarily rendered a

substantial service to his union as an

institution and to all of its

members." Hall, 412 U.S. at 8.

This Court has been unwilling to

infer Congressional intent to preclude

awards of attorney's fees unless the

statutory remedies have been

"'tme ciculously detailed'", Hall, supra,

412 U.S. at 9, or there has been a

"'gefinitive and absolute setting of

the Congressional face against the

giving of such incidental relief by the

courts where compatible with sound and

18

established equitable principles,'"

Hall, 404 U.S. at 12. See also Mills

v. Electric Auto-Lite Co., 396 U.S. 375

(1970).

It cannot be said that Title IV

represents this type of comprehensive

scheme, particularly since Congress

created such a significant role for the

individual union member in its

enforcement. "([L])egislatures do not

Ordinarily create roles -- strong roles

-- and then deny their existence by

refusing to recognize the existence of

the means to fulfill them effectively.”

Brennan, supra, 554 F.2d at 599.

Re Petitioner contends, in

accord with Justice White's dissent

from the denial of certiorari in United

Steelworkers of America v. Sadlowski,

435 U.S. 977 (1978), that the

availability of attorney's fees for

intervenors will result in an

additional costly burden upon the union

19

and would involve burdensome multiple

litigation. In fact, the additional

burden to the union in responding to an

application for fees is minimal, since

the court and the parties are fully

familiar with the contribution, if any,

made by intervenor's counsel.

In the instant case, the court

awarded less than 25% of the amount of

fees requested by the intervenor. Fees

were awarded only for the specific

contributions which were acknowledged

by the Secretary to be important and

determined by the court not to be

duplicative of the Secretary's work.

(Pet. App. Al15).

In each of the reported cases, it

is evident that the courts have

. Unlike United Steelworkers of

America v. Sadlowski, supra, in the

instant case, the Secretary did not

oppose an award of attorney's fees and

acknowledged certain areas in which the

intervenor provided material

assistance.

20

carefully tailored the amount of fees

awarded to correspond to the specific

contributions made by the interve-

nor.” Thus, in Marshall v. United

Steelworkers of America, 666 F.2d 845

(3d Cir. 1981), attorney's fees were

granted only for work performed by

intervenor's counsel during the period

between the date of the election and

the date the member's complaint was

‘ The four circuits which have

addressed the question have all held

that attorney's fees may be awarded to

an intervenor who has materially aided

the Secretary in the successful

prosecution of a Title IV suit. See

Rollison v. Hotel, Motel, Restaurant

and Construction Camp Employees, 677

F.2d 741 (9th Cir. 1982); Donovan v.

International Brotherhood of Teamsters,

Local 70, 661 F.2d 1199 (9th Cir.

1981); Brennan v. United Steelworkers

of America, 554 F.2d 586 (3d Cir.

1977), cert. denied, 435 U.S. 977

(1978); Marshall v. United Steelworkers

of America, 666 F.2d 845 (3d Cir. 1981)

(appeal of denial of fees on remand in

Brennan); Usery v. Local Union 639,

International Brotherhood of Teamsters,

543 F.2d 3609 (D.c. Cir. 1976), cert.

denied, 429 U.S. 1123 (1977).

21

filed with the Secretary. The court

determined that the work done by

intervenor's counsel after that point

was duplicative. In Rollison v.

Hotel, Motel, Restaurant and Construc-

tion Camp Employees, 677 F.2d 741 (9th

Cir. 1982), the court found that the

intervenor's contribution yielded a

substantial benefit to the membership

exceeding that derived from the Secre-

tary's efforts. And, in Donovan v.

International Brotherhood of Teamsters,

Local 70, 661 F.2d 1199 (9th Cir.

1981), the court of appeals noted that

"[t]he modest amount awarded [by the

trial court] strongly suggests it does

not exceed the value of the interve-

nor's contribution.” 661 F.2d at 1203.

In Usery v. Local Union 639,

International Brotherhood of Teamsters,

i

543 F.2d 369 (D.C. Circ. 1976), c5ert.

denied, 429 U.S. 1123 (1977), no fee

22

award had yet been made when the court

of appeals reviewed the case, but the

court instructed the district court to

determine, with the aid of the views of

the Secretary, whether an award was

warranted and if so in what amount. As

the court of appeals in the instant

case noted, "[t]he determination as to

the extent to which the intervenor has

provided a ‘common benefit’ is best

made by the district court.” (Pet. App.

A8).

The reported cases do not reflect

the excessive fee awards or burdensome

multiple litigation feared by peti-

tioner. Rather, the district courts

have demonstrated a determination to

award fees only for contributions by

intervenors which are material and

non-duplicative.

23

CONCLUSION

The petition for a writ of

certiorari should be denied.

Dated: June ll, 1986

Respectfully submitted,

DANIEL E. CLIFTON

Attorney for Respondent

Helen Carter

401 Broadway, Suite 403

New York, New York 10013

(212) 431-8512

Of Counsel:

CLIFTON & SCHWARTZ