Petition for Writ of Certiorari — Dunlop v. Bachowski

Page

Opiniote below ....22<..25522 cee nie cece cree cten 1

DP PISOICUION oo noe oan sok eer nceeesadeeeteeneee eee 1

Question presented_-__-_._-.-------------------------- 2

Statutes involved__________-------------------------- 2

RTOONE nic were een enaweeeenccerneeseedensete 2

Reasons for granting the writ__----------------------- 5

COmCIONNN coco ee cacen serene Geere dee eseeeteenenes 12

RODONGIS Beco oe eee eee dew eee cesses enanenese ne 1A

POOR Bice ane es eee 21A

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CITATIONS

Cases:

Altman v. Wirtz, 66 LRRM 2661___..._.----------- 6

Brennan v. Silvergate District Lodge No. 50, C.A. 9,

No. 72-2657, decided September 1'., 1974__-__---- 6,7

Calhoon v. Harvey, 379 U.S. 134____.-------------- 5, 7,9

The Confiscation Cases, 7 Wall. 454_____-_---------- 11

DeVito v. Shultz, 300 F. Supp. 381_----------------- 6

Federal Trade Commission v. Klesner, 280 U.S. 19__-- 11

Howard v. Hodgson, 490 F. 2d 1194______---------- 6

Katrinic v. Wirtz, 62 LRRM 2557 _____._---------- 6

Linda R. S. v. Richard D., 410 U.S. 614_____-_--_-- 11

McArthy v. Wirtz, 65 LRRM 2411_____------------- 6

Morrissey v. Shultz, 74 LR RM 2679___-__----------- 6

Ravaschieri v. Shultz, 75 LURRM 2272_____-___------ 6

Schonfeld v. Wirtz, 258 F. Supp. 705-_-------------- 6

ST rbovich v. United Mine Workers, 404 U.S. 528____ 5, 7, 8,9

Vaca v. Sipes, 386 U.S. 171__--------------------- 11

Valenta v. Brennan, No. C74-11, N.D. Ohio, decided

POD, OTE eee ees 6

Wirtz v. Local 30, Operating Engineers, 54 LRRM

257 (cous eo oo oe ee eee See eee eee 6

Wirtz v. 153, Glass Bottle Blowers Association,

BO UO are ee eee cewneesGeneue 7,9, 12

Yick Wo v. Hopkins, 118 U.S. 356__.-------------- 8

559-255—74——1 ”

MS LEAL H SELLE NS ERLE IGN LEY ELITE INL LE PLINER ONS

\

| Sa

Statutes: SSI

jnistrative Procedure Act, 5 U.S.C. S@&, ef seq,: = Page.

5 U.S.C. 701(s)_----------------------------- 2, 3, 4

& US.C. 701()(1)--..--.~------------------- 3

& USC. 701(a)(2)....----------------------- 3,4

§ US.C. 702. ...22----+--------------------- 4

"” Labor-Management Reporting and Disclosure Act of

1959, 73 Stat. 519, 29 U.S.C. 401 et @g.:

oarrhnN © OW ND

Miscellaneous:

S. Rep. No. 187, 86th Cong., Ist eR a ee 7

Aaron, The Labor-Management Reporting and Dis-

closure Act of 1959, 73 Harv. L. Rev. 851 (1960) - - 10

Cox, Internal Affairs of Labor Unions Under the Labor

Reform Act of 1959, 58 Mich. L. Rev. 819 (1960) ---- 10

Posner, The Behavior of Administrative Agencies, 1 J.

Legal Studies 305 (1972)------------------------ 10

Saferstein, Nonreviewability: A Functional Analysis of

“Committed to Agency Discretion”, 82 Harv. L. Rev.

BF OCIS nse cate setteh ee ceeneneeees 8

du the Supreme Court of the United States

OcroBER TERM, 1974

No.

Peter J. BRENNAN, SECRETARY OF LABOR, PETITIONER

Vv.

WaLTER BACHOWSKI

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

The Solicitor General, on behalf of the Secretary

of Labor, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. 1A-20A) is not yet reported. The order of the

district court (App. B, infra, p. 21A) is unreported.

JURISDICTION

The judgment of the court of appeals (App. C,

infra, p. 22A) was entered on July 26, 1974. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTION PRESENTED

Whether a. disappointed union office seeker may

invoke the judicial process to compel the Secretary of

Labor to bring an action under Title IV of the Labor-

Management Reporting and Disclosure Act of 1959 to

set aside a union election. |

STATUTES INVOLVED

Section 402 of the Labor-Management Reporting

and Disclosure Act of 1959, 73 Stat. 534, 29 U.S.C. 482,

provides in pertinent part:

(a) A member of a labor organization * * *

may file a complaint with the Secretary within

one calendar month [after he has exhausted his

‘intraunion remedies] alleging the violation of

any provision of section 481 of this title * adil”

(b) The Secretary shall investigate such

complaint and, if he finds probable cause to be-

lieve that a violation of this subchapter has

occurred and has not been remedied, he shall,

within sixty days after the filing of such com-

plaint, bring a civil action against the labor

organization as an entity in the district court

of the United States in which such labor orga-

nization maintains its principal office to set

aside the invalid election, if any, and to direct

the conduct of an election or hearing and vote

upon the removal of officers under the super-

vision of the Secretary * * * [emphasis

added ].

The Administrative Procedure Act, 5 U.S.C. 701

(a), provides:

3

This chapter applies, according to the pro-

visions thereof, except to the extent that—

(1) statutes preclude judicial review;

or

(2) agency action is committed to

agency discretion by law.

STATEMENT

Walter Bachowski was an unsuccessful candidate

for the position of District Director of District 20,

United Steelworkers of America. After exhausting his

_ remedies within the union, he filed a complaint with

the Secretary of Labor on June 21, 1973. Bachowski’s

was one of six complaints filed with the Secretary con-

cerning the conduct of elections for District Directors

in the Steelworkers union. Following investigation, the

Secretary filed suit to set aside two of these elections.’

The Secretary undertook an extensive investigation of

Bachowski’s complaint, twice asking for and receiving

from the union extensions of time during which to

continue the investigation.’ The Secretary determined

that no violations had occurred in the conduct of the

election which could have affected its outcome. Accord-

ingly, Bachowski was notified that the Secretary would

not bring an action to set aside the election.

1 Districts 15 and 31.

2 These facts are taken from Bachowski’s complaint, from the

opinion of the court of appeals, and from information made

available to us by the Secretary of Labor. Because the district.

court dismissed Bachowski’s complaint for want of “jurisdic-

tion”, all of the factual allegations in the complaint must be

accepted as correct.

4

s

Bachowski thereupon instituted this suit against the

Secretary and the union, seeking to compel the Secre-

tary to file an action to set aside the election. The com-

plaint alleged that some members voted in a manner

in which the member voting could be identified with

the choice expressed; that observers were denied to

Bachowski at some polling places; that there were no

elections in at least one local; and that the incumbent

_ used dues money to aid in his reelection. The com-

plaint also alleged that the Secretary’s investigation —

had substantiated these charges.

On November 9, 1973, the day after the eeiaaialait

was filed and before the Secretary had an opportunity

_to file a formal answer, the district court, after a short

oral argument, dismissed the complaint for lack of

“jurisdiction over the subject matter * * °” ” (App. B,

infra, p. 21A).

The court of appeals reversed. The: opinion began

with a presumption of reviewability apparently drawn

~ from 5 U.S.C. 702, subject only to the exceptions spec-

ified in.5 U.S.C. 701(a). Because the court of appeals

concluded that the Secretary’s decision not to chal-

lenge the union election was not ‘‘committed to agency

discretion by law’’ within the meaning of 5.U.S.C.

701(a) (2), it ordered the case remanded to the district

court for a hearing’ to determine whether the Secre-

tary had abused his discretion by failing to file an

*The court of appeals also required the Secretary to furnish

to Bachowski a statement of his reasons for not filing an action

under 29 U.S.C. 482(b). We do not contest this portion of the

court’s holding. See 5 U.S.C. 555(e).

5

action to set aside the election.’ The court of appeals

rejected the government’s argument that judicial in-

tervention is foreclosed by the LMRDA except when

the Secretary files suit, and that review of his decision

not to file would hamper the administration of the

statutory program. The court apparently thought it

persuasive that if the Secretary “wrongfully refuses

to file suit, individual union members are left without

a remedy’? (App. A, infra, p. 15A).

REASONS FOR GRANTING THE WRIT

We believe that the court of appeals has miscon-

ceived the limited power of judicial intervention into

union internal affairs created by the Labor-Man- -

agement Reporting and Disclosure Act of 1959

(LMRDA). By permitting the courts to become in-

volved in the decision whether or not to prosecute an

action for a violation of the LMRDA, the court below

has indirectly granted the private right of action

specifically withheld by Congress. See Calhoon Vv.

Harvey, 379 U.S. 134; Trbovich v. United Mine

Workers, 404 U.S. 528. The decision, moreover, cre-

ates a conflict with two other circuits and impairs the

Secretary’s ability to administer efficiently this impor-

tant statue.

*The court of appeals found jurisdiction pursuant to 28

U.S.C. 1337, which establishes jurisdiction without regard to

the amount in controversy over proceedings “arising ander any

Act of Congress regulating commerce * * *” (see App. A,

infra, pp. 3A-6A). We do not contest this holding. But of

course that jurisdictional statute does not create any cause of

action.

6

1. In Howard v. Hodgson, 490 F. 2d 1194, the

Eighth Circuit held that courts cannot entertain an

action for mandamus to compel the Secretary to in-

stitute an action under Section 482(b).° The plaintiff

in Howard had complained that the Secretary had

abused his discretion by determining that any viola-

tion of the LMRDA that may have occurred had not

affected the outcome of the election. The court de-

clined to pass on the claim of abuse, reasoning that

only the Secretary had authority to make the initial

determination; courts were to become involved only

after the Secretary had commenced his action. The

court below recognized that its holding was incon-

sistent with Howard. See App. A, infra, pp. 17TA-

19A, nn. 15, 16. It is also in conflict with Brennan v.

Silvergate District Lodge No. 50, No. 72-2657 (C.A.

9, decided September 13, 1974), decided subsequently.

The Ninth Circuit ruled in Stlvergate that a union

officeholder, ousted in the settlement of an election

challenge filed by the Secretary, is not entitled to chal-

lenge the new election except by filing a complaint

with the Secretary ; because the “exclusive” remedy is

®° The majority of district courts to consider the issue, whether

in mandamus actions or ordinary suits, have concluded that

they have no authority to compel the Secretary to bring an

action. Compare McArthy v. Wirtz, 65 LRRM 2411 (E.D.

Mo.); Morrissey v. Shultz, 74 LRRM 2679 (S.D.N.Y.); Alt-

man v. Wirte. 56 LRRM 2651 (D.D.C.); Katrinic v. Wirtz,

{ 62 LRRM 2557-(D.D.C.); Wirtz v. Local 30, Operating Engi-

neers, 54 LRRM 2577 (S.D.N.Y.); and Ravaschieri v. Shultz,

7 LRRM 2272 (S.D.N.Y.); with Valenta v. Brennan, No.

C7411 (N.D. Ohio, decided July 3, 1974); DeVito v. Shultz,

300 F. Supp. 381 (D.D.C.); and Schonfeld v. Wirtz, 258 F.

Supp. 705 (S.D.N-Y.).

7

a suit by the Secretary, 29 U.S.C. 483, a dissatisfied

office seeker cannot raise in court challenges “‘that

were deemed unmeritorious by the Secretary.” Id.,

slip op. p. 11.

2. Congress established in the LMRDA a program

permitting only limited interference in the internal

affairs of unions.

Congress weighed how best to legislate against

revealed abuses * * * without departing need-

lessly from its long-standing policy against un-

necessary governmental intrusion into internal

union affairs.

Wirtz v. Local 153, Glass Bottle Blowers Association,

389 U.S. 463, 470-471 (footnote omitted). The legis-

lative plan that emerged from the debates interposed

the Secretary of Labor between the union and its dis-

gruntled members. No suit can be brought except by

the Secretary, 29 U.S.C. 482(b). The remedy provided

by Section 482(b) is “exclusive’’, 29 U.S.C. 483. The

possibility of permitting private suits against unions

was considered and explicitly rejected. See Calhoon v.

Harvey, supra, 379 U.S. at 140; S. Rep. No. 187, 86th

Cong., Ist Sess., 21. Cf. Bottle Blowers, supra, 389

U.S. at 473. Indeed, this ¢ourt has also held that

union members who intervene in suits already com-

menced by the Secretary may not raise new issues.

Trbovich v. United Mine Workers, supra.

The type of action approved by the court below,

although not as intrusive as the private suit rejected

by Calhoon, is significantly more intrusive than the

“new issue intervention” forbidden by Trbovich. If

disgruntled union members may hale the union and

559-255—74——2

8

the Secretary into court and compel the Secretary to

bring an action against the union, the union will have

lost much of the protection Congress sought to pro-

vide. Unions will become subject to “frivolous liti-

gation and unnecessary judicial interference with

their elections,’’ Z'rbovich, supra, 404 U.S. at 532.

Although the Secretary and the union may eventually

convince the district court that the Secretary did not

abuse his discretion, the union will nevertheless be

put to the task of defense and its election will be cast

into doubt. This is the same result that would follow

from an unlimited permission to bring private suits.

In either case the union election presumably will

stand when the complaint has no merit; the unneces-

sary interference arises because the union is put to a

defense of its procedures at the whim of a member

who may have no hope of success. The frivolity of

a complaint usually does not leap from the pleadings,

and the Federal Rules of Civil Procedure require

hearings for all but the most specious complaints. In

effect, if this decision stands, the courts will be bur-

dened with the screening role that the Secretary was

meant to play.°

°C£. Saferstein, Nonreviewability: A Functional Analysis of

“Gommitted to Agency Discretion”, 82 Harv. L. Rev. 367

(1968). This is not to indicate that there are no circumstances

that might permit judicial review of the Secretary’s actions.

Complete abdication of his duties might be an occasion for

relief under 28 U.S.C. 1361. So, also, there might be justifica-

tion for judicial intervention if the Secretary were alleged to

be discriminating unconstitutionally. Cf. Yick Wo v. Hopkins,

118 U.S. 356. No such charge is levelled here.

9

3. The judicial review envisaged by the decision be-

i will substantially. disrupt the Secretary’s admin-

istration of the LMRDA. Perhaps most importantly,

the decision will upset the statutorily-created time-

tables foy action. The union member’s complaint must

be filed within 30 days after he has exhausted his

internal remedies, 29 U.S.C. 482(a). The Secretary is

directed to file suit, if any, within sixty days there-

after, 29 U.S.C. 482(b). Such haste is imperative be-

cause union officials hold office for only a limited pe-

riod of time; relief, to be effective, must be prompt.

Moreover, it is important to remove as quickly as pos-

sible any cloud-on the union office; the Secretary’s

decision not to file an action does so. However, if the

union member is permitted to compel the Secretary to

file, his suit” against the Secretary and union will

create a cloud on the office that cannot be resolved for

some time, even though the member’s suit eventually

may be deemed frivolous. Should the district court re-

quire the Secretary to bring an action, this challenge

would eome long after the election and well beyond

the sixty day limit. Thus, the congressional desire for

prompt resolution of such challenges will have been

frustrated. Cf. Bottle Blowers, supra, 389 U.S. at

468-469, n. 7.

Permitting the loser of the election to seek to compel

suit will also impair the ability of the Secretary to

settle disputes concerning union elections. It is clear

from the legislative history that Congress believed

settlement preferable to litigation, because it was both

10

swifter and less intrusive. See Calhoon, supra, 379

U.S. at 140. The Secretary’s ability to settle, however,

may often depend on his ability to promise the union

that the bargain he strikes with it will be binding.

Obviously, the Secretary can give no such assurance

if he can be compelled, subsequently, to prosecute

against his will.

Another important feature of the legislative pro-

gram is centralized administration. Congress en-

trusted to the Secretary all decisions concerning how

the Act would be carried out. Trbovich, supra, 404

U.S. at 532. Only if he maintains that control can the

Secretary formulate and implement a rational and >

coordinated program of implementation of the Act.

See Posner, The Behavior of Administrative Agen-

cies, 1 J. Legal Studies 305 (1972). See generally

Aaron, The Labor-Management Reporting and Dis-

closure Act of 1959, 73 Harv. L. Rev. 851 (1960) ; Cox,

Internal Affairs of Labor Unions Under the Labor

Reform Act of 1959, 58 Mich. L: Rev. 819 (1960). If

the disappointed union office seeker can compel prose-

eution, however. the administration of the Act will

be spread throughout the district courts of the United

States;* it will be difficult if not impossible for the

Secretary to make coordinated policy choices concern-

ing enforcement priorities. .

7 We also note that it is probably not an efficient use of scarce

judicial resources to create two judicial hearings on a single

violation of the LMRDA. The decision below would institute

a “minihearing” on the merits—if the union member “won”

the minihearing the court would compel the Secretary to prose-

cute. There would follow a full hearing on the merits—at which

the union might well prevail.

'

|

f

}

'

“ing that in other cases the administrative agency was

11

4. Administrative agencies usually possess prose-

eutorial discretion comparable to that of a prosecutor

of criminal laws. Compare The Confiscation Cases,

7 Wall. 454, with Linda R. S. v. Richard D., 410 U.S.

614. In at least two analogous situations this Court

has held that the decision of an administrative agency

not to prosecute an alleged violation of the statute it

administers is not judicially reviewable. Vaca v. Stipes,

386 U.S. 171, 182; Federal Trade Commission v. Kles-

ner, 280 U.S. 19, 25. The court below, although ac-

knowledging the authority of the prosecutorial dis-

cretion cases, attempted to distinguish them by argu-.

protecting the public weal, whereas the Secretary’s

action under the LMRDA is for the benefit of the

aggrieved union member. This purported distinction

is unpersuasive.

In The Confiscation Cases the Attorney General’s

suit to confiscate a vessel was unmistakably for the

benefit of the informer, who collected one-half of the

value of the vessel. Nevertheless, the Court held that |

the Attorney General was at liberty not to prosecute,

and to dismiss a prosecution at will. Vaca v. Stpes up-

held the power of the General Counsel of the NLRB

not to prosecute, even though an employee, if vindi-

cated in an unfair labor practice proceeding, may

collect substantial back pay remedies. Indeed, in those

cases the complainant had a more immediate stake in

the oujcome of the suit. Here, the plaintiff at most can

hope that the old election will be annulled and a new

election conducted, at which he will have an opportu-

12

nity to run but no guarantee of success. The policy of

the LMDRA, as expressed in its preamble, 29 U.S.C.

401, is not to bestow a boon on individual office seek-

ers but to vindicate the interest of the publie at large

in labor peace, and of the union membership at large

in union democracy. See Bottle Blowers, supra, 389

U.S. at 475. It therefore follows that the Secretary,

like the General Counsel of the NLRB, should be en-

titled to the usual scope of prosecutorial discretion.

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted. |

Rosert H. Bork,

Solicitor General.

Cara A. HILLS,

Assistant Attorney General.

Frank H. EASTERBROOK,

Assistant to the Solicitor General.

STEPHEN F’. EILPERIN,

MicHakEt H. STEIN,

Attorneys.

Wiu1aM J. KILBERG,

Solicitor of Labor,

BEATE BLocH,

Associate Solicitor,

Rosert K. SALYERs, JT.,

Attorney,

Department of Labor.

OcroBER 1974.

APPENDIX A

United States Court of Appeals for the Third Circuit

No. 73-2029

WALTER BAaCHOWSKI, APPELLANT

Vv.

Peter BRENNAN, SECRETARY OF LABOR,

Unitep States DEPARTMENT OF LABOR

AND

UnitTep STEELWORKERS OF AMERICA

(D.C. Civil No. 73-954)

Appeal from the United States District Court for the

Western District of Pennsylvania

Argued May 14, 1974

Before: Sritz, Chief Judge, and Van Dusen and

Gresons, Circuit Judges .

Joseph L. Rauh, Esq., Washington, D.C., Ken-

neth J. Yablonski, Esq., Washington, Pa., Attorneys

for Appellant.

Irving Jaffe, Acting Assistant Attorney General;

Richard L. Thornburgh, United States Attorney;

Stephen F. Eilperin, Esq. and Michael H. Stew, Esq.,

Attorneys, U.S. Department of Justice, Attorneys for

the Secretary of Labor.

la

2a

Michael H. Gottesman, Esq., Washington, D.C.;

James English, Esq., Pittsburgh, Pa.; Bernard Klei-

man, Esq. (of counsel), Chicago, lll, Attorneys for

United Steelworkers of America.

Opinion of the Court

(Filed July 26, 1974)

(As Amended September 3, 1974)

Van Dusen, Circuit Judge.

This case is an appeal from the district court’s dis-

missal for lack of subject matter jurisdiction of a suit

to compel the Secretary of Labor (the ‘‘Secretary”)

to bring an action to upset a union election under

§ 402(b) of the Labor-Management Reporting and

Disclosure Act of 1959 (“L-MRDA”), 29 U.S.C.

§ 482(b).’ The issue presented is whether the Seere—

tary’s decision not to bring such an action is subject

to judicial review.

Plaintiff Walter Boch © ki was a candidate for the

office of District virector of District 20 of the United

Steelworkers of America (the ““‘USWA’’) in an elec-

tion held on February 13, 1973. He was defeated in

that election by 907 votes of approximately 24,000

votes east. After exhausting his administrative reme-

*“(b) The Secretary shall investigate such compliant. and, if

he finds probable cause to believe that a violation of this sub-

chapter has occurred and has not been remedied, he shall.

within sixty days after the filing of such complaint, bring a

civil action against the labor organization as an entity in the

district court “of the. United States in which such labor orga-

nization maintains its principal office to set aside the inv alid

election, if any, and ta direct the conduct of an election or hear-

ing and vote upon the removal of officers under the supervision

of the Secretary and in accordance with the provisions of this

subchapter and such rules and regulations as the Secretary may

prescribe. The court shall have power to take such action as it

deems proper to preserve the assets of the labor organization.”

aPC COE

3A

dies within the union, Bachowski filed a complaint

with the Department of Labor on June 21, 1973,

alleging numerous election irregularities and viola-

tions of the union constitution and § 401 of the L-

MRDA, 29 U.S.C. § 481. Following an investigation

of this complaint, the Secretary notified Bachowski

and the union thet he had decided not to bring an

action to set aside the contested election. Bachowski

thereupon brought the present lawsuit, naming as de-

fendants the Secretary and the union. The complaint

alleges, inter alta, that the Secretary’s investigation

had substantiated the enumerated charges of election

“irregularities and that these irregularities affected the

outeome of the election, but that the Secreary never-

theless refused to file a suit to set aside the election

and failed even to inform Bachowski of his reasons

for that refusal. The complaint concludes that these

actions by the Secretary were arbitrary and capricious

and requests that the district court direct the Secre-

tary (1) to make available to the plaintiff all evidence

he has obtained concerning his investigation of the

contested election, (2) to reach an agreement with the

union extending the period of time for filing suit to set

aside that election, and (3) to file such suit.

is

The only jurisdictional allegations contained in the

complaints are § 402 of the L-MRDA and §10(a) of

the Administrative Procedure Act (the ‘‘APA”), 5

U.S.C. § 702. This court has repeatedly held that the

APA does not confer jurisdiction upon federal courts

over cases not otherwise within their competence, Rich-

ardson Vv. United States, 465 F. 2d 844, 849 n. 2 (3d

Cir. 1972) (en banc), cert. denied, 410 U.S. 955

(1973) ; Zimmerman v. United States Government,

422 F. 2d 326, 330-31 (3d Cir.), cert. dented, 399

4a

U.S. 911 (1970); Operating Engineers Local 542 v

N.L.R.B., 328 F. 2d 850, 854 (3d Cir. 1964). In addi-

tion, § 402 of the L-MRDA confers federal jurisdic-

tion only over actions brought by the Secretary to

challenge the conduct of a union election, 29 U.S.C.

§ 482(b). However, although not specifically alleged in

the complaint,’ we believe that 26 U.S.C. § 1337 pro-

vides a basis for federal. jurisdiction in this case.’ The

L-MRDA is an “Act of Congress regulating com-

merce” within the meaning of § 1337, see § 2(c¢) of the

L-MRDA, 29 U.S.C. § 401(¢), and we believe that the

instant case “arises under”’ that Act. Plaintiff’s claim

is founded directly on the L-MRDA in that he asserts

a right, supported by his construction of § 402, to have

the Secretary file a suit on his behalf to set aside the

contested election where the evidence shows that viola-

tions oceurred which affected its outcome and where

the Secretary has not come forward with any valid

reason for refusing to do so. Gully v. First National

*In pleading that this action is brought “under” § 402 of the

L-MRDA, plaintiff may have intended to allege jurisdiction

founded on the existence of a question “arising under” that

statute. Cf. 2A Moore’s Federal Practice 18.9[2] at 1652 and

F.R. Civ. P. Official Form 2(c). In any case, the failure of the

complaint specifically to cite 28 U.S.C. § 1337 does not prevent

this court from considering it as a basis for jurisdiction, for,

under the facts of this case, “[i]t is not necessary to name the

statutory section if in fact a complajat states a cause of action

under it.” Copra v. Suro, 236 F. 24 107, 114 (1st Cir. 1956).

* Section 1337 provides:

“The district courts shall have original jurisdiction of any

civil action or proceeding arising under any Act of Congress

regulating commerce or protecting trade and commerce against

restraints and monopolies.”

The tests required by § 1337 are the same as those demanded

by § 1331, except that no jurisdictional amount need be alleged.

See Peyton v. Railway Express Agency, 316 U.S.. 850 (1942) ;

1 Moore’s Federal Practice '0.60[8.-3] at 627.

LEAR AE BOL AE EIR OTN

—-

5A

Bank, 299 U.S. 109, 112 (1936) ; Starin v. New York,

115 U.S. 248, 257 (1885). In a closely analogous case,

we held that a suit by the business agent of a union

__ loeal for injunctive relief and declaratory judgment

that he was not barred by 29 U.S.C. § 504 from con-

tinuing in office was a case ‘‘arising under’’ the L-'

MRDA and that, therefore, there existed federal ques-

tion jurisdiction pursuant to 28 U.S.C. § 1337. Serio v.

Liss,’300 F. 2d 386, 387-88 (3d Cir. 1961)”

*It is possible that federal jurisdiction in this case also exists

under 28 U.S.C. § 1361, since the complaint may be read to

alge that the Secretary has acted contrary to law. See Howard

. Hodgson, 490, F. 2d 1194, 1195‘ (8th Cir. 1974); Wright &

Miller, Federal Practice and Procedure § 1350, n. 54 (1969). In

view of our holding below as to plaintiff’s right to the remedy

of judicial review under the APA, however, it is not necessary

to decide whether the complaint also states a claim for which

mandamus relief can be granted, for the scope of judicial review

under the APA seems clearly broader than that available upon

a petition for mandamus. As we held in Richardson v. United

States, 465 F. 2d 844, 849 (3d Cir. 1972) (en banc), cert. denied,

410 U.S. 955 (1973) :

“In order for mandamus to issue, a plaintiff must allege that

an officer of the Government owes him a legal duty which a

specific, plain ministerial act ‘devoid of the exercise of judgment

or discretion.’ * * *. An act is ministerial only when its per-

formance is positively commanded and so plainly prescribed as

to be free from doubt.” | .

Thus, while a petition would issue to order the Secretary

to file suit to set aside an election where his own investigation

revealed violations affecting the outcome, mandamus relief

would not be available to question whether the findings and con-_ .

clusions of such an investigation were arbitrary and capricious

and an abuse and discretion. See the discussion of Howard v.

Hodgson, supra. at notes 13 and 16 below. But see Peoples v.

United States Department of Agriculture, 427 F. 2d 561, 565

(D.C. Cir. 1970) (Mandamus may issue to correct abuse of

diseretion). |

4

64

f

Our conclusion that the district court had federal

question jurisdiction to entertain this case, however,

does not-resolve what is the underlying issue in this

case: whether the Secretary’s decision not to bring suit

to upset a union election under § 402 of the L-MRDA

is subject to judicial review. Although the district

court’s dismissal was technically for laek of subject

matter jurisdiction, the record reveals that its action.

was based on a determination that such a decision by

the Secretary is not, reviewable.’ Thus, in the interest

of judicial economy, it is necessary to reach this issue

on this appeal and decide, in effect, if plaintiff

Bachowski has stated a claim upon which relief can be

granted.

; i.

Plaintiff seems to be entitled to judicial review

under the APA, 5 U.S.C. § 702, unless the Secretary's

decision not to ‘bring suit to set aside the election is

excluded froni the coverage of the APA by § 701(a),°

which provides:

‘There was no opinion accompanying the district court’s

order granting defendants’ motion for dismissal, but at the con-

clusion of the November 8, 1973, hearing, after extensive dis-

cussion of the question of reviewability, the court concluded

that it lacked “authority” to find that the Secretary’s actions

were arbitrary and capricious and to order him to file suit. See

Doc. 9 at p. 27 (W.D. Pa., Civil No. 73-0954).

*The Secretary argues that § 606 of the L-MRDA, 29 U.S.C.

§ 526, which governs the applicability of the APA to actions

taken pursuant to the L-MRDA, does not provide plaintiff here

a basis for judicial review, since the Secretary’s determination

not to. bring suit is not an “adjudication.” Whatever the merit

of this contention (see the definition of “adjudication” in 5'

U.S.C. § 551(7)), it has no bearing on plaintiff's claim for relief

because the APA subjects to judicial review not only “[a]gency

action made reviewable by statute,” but also “final agency action

for which ‘there is no other aaaquete remedy in a court.” 5

U.S.C. § 704.

.

7A

This chapter applies, according to the pro-

visions thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency dis-

cretion by law.

The burden of establishing such exclusion, however, is —

on the defendants. See Abbott Laboratories v. Gard-

ner, 387 U.S. 136, 140-41 (1967). As the Second Cir-

cuit has noted:

Absent any evidence to the contrary, Congress

may rather be presumed to have intended that

the courts should fulfill their traditional role of

defining and maintaining the proper bounds of

administrative discretion and safeguarding the

rights of the individual.

Cappadora v. Celebrezze, 356 F. 2d 1, 6 (2d Cir.

1966). With this construction in mind, we turn to an

examination of the purpose behind the enforcement

procedure set forth in Title IV of the L-MRDA and

the nature of the discretion exercised by the Secretary

pursuant to that procedure in order to determine if

the Secretary’s action in this case is reviewable.

A

Defendants contend that Congress’ intent to pre-

clude judicial review and to commit to the Secretary’s ,

absolute discretion the decision whether to bring suit

can be inferred from two features of the L-MRDA:

(1) the Secretary has exclusive authority to sue to set

aside a union election, and (2) he must exercise that

authority within 60 days of the filing of a complaint.

After careful consideration of defendants’ arguments

and the cases cited in support thereof, we do not find

that there exists the necessary “clear and convincing

evidence” of a legislative intent to restrict judicial

review. See Citizens To Preserve Overton Park, Inc.

8a

v. Volpe, 401 U.S. 402, 410 (1971); Abbott Labora-

tories v. Gardner, supra at 141.

Section 403 of the L-MRDA 29 U.S.C. § 483, makes

suit by the Secretary the ‘‘exclusive” post-election

remedy for violations of Title IV of the Act, and the

Supreme Court held in Calhoon Vv. Harvey, 379 U.S.

134, 140 (1964), that union members are thereby pro-

hibited from initiating a private suit to set aside an

election. In Trdovich v. United Mine Workers, 404

U.S. 528, 532 (1974), the Court described the purpose

_..behind this procedure as follows:

\ A review of the legislative history shows that

Congress made suit by the Secretary the exclu-

sive post-election remedy for two principal rea-

sons: (1) to protect unions from frivolous liti-

gation and unnecessary judicial interference

with their elections, and (2) to centralize in a

single proceeding such litigation as might be

warranted with respect to a single election. Title

IV as enacted serves these purposes by refer-

ring all complaints to the Secretary so that he

ean screen out frivolous ones, and by consolidat-

ing all meritorious complaints in a single oh

—— the Secretary’s suit in federal district

court.

In light of these purposes, the Court went on to

hold in Trbovich that Congress did not intend to pre-

vent a union from intervening in a suit brought by the

Secretary, but that such intervening union was not

entitled to raise additional grounds for setting aside

the election, not contained in the Secretary’s com-

plaint, since that would circumvent the Secretary’s

screening function. Id. at 536-37."

* We recognize that in reaching this conclusion, the Supreme

Court employed some broad and unqualified language concern-

ing the intent of Congress in assigning this screening function

to the Secretary:

“With respect to litigation by union members, then, the legis-

eM nth Stee Sige

9a

Applying this reasoning to the instant case, we do

not believe that a limited judicial review of the Secre-

tary’s decision not to bring suit would in any way

conflict with the purposes behind the Secretary’s

screening function. Unions would not be subjected to

unnecessary judicial interference with their elections,

since under the “arbitrary and capricious” standard

of review, a court would overturn the Secretary’s

judgment’ only where there is compelling evidence that

he has ignored a meritorious complaint. See 5 U.S.C.

§ 706(2)(A) and Citizens To Preserve Overton Park,

Inc. v. Volpe, supra at 416. Furthermore, unions would

remain protected from harassment or the burden of.

frivolous litigation, since the primary responsibility

for defending suits such as this one would lie with

the Secretary.’ Finally, in those rare instances when a

lative history supports the conclusion that Congress intended to

prevent members from pressing claims not thought meritorious

by the Seeretary, and from litigating in forums or at times

different from those chosen by the Secretary.” Jd. at 536 (em-

phasis added).

“[W]e think Congress intended to insulate the union from any

complaint that did not appear meritorious to both a complain-

ing member and the Secretary.” Jd. at 537 (emphasis added).

However, we do not believe that the Court intended to imply

by that language that the Secretary’s decision was unreviewable,

for that issue was not presented in 7'rbovich. Rather, the above-

quoted statements must be read in the context of the Court's”

holding that an intervening union would not be permitted to

circumvent the screening function assigned to the Secretary by

raising additional claims which he had not had an opportunity

to evaluate or had already rejected.

*The USWA contends that another legislative concern in en-

acting Title IV was to avoid “unnecessary expenditure of the

limited resources of the Secretary of Labor,” Hodgson v. Steel-

workers Locul 6799, 403 U.S. 333, 339 (1971), and that this

objective will be frustrated if the Secretary can be required to

defend his decisions not to bring suit. We do not consider this

argument sufficiently persuasive to support a holding of nonre-

10a

challenge to the Secretary’s decision not to bring suit

is successful, the subsequent litigation would still be

centralized in a single proceeding. We therefore con-

elude that in making a suit by the Secretary the

exclusive post-election remedy, Congress did not in-

tend to make the Secretary’s decision not to bring suit

unreviewable. On the contrary, we believe» judicial

review would further the general policy of Title IV

of the L-MRDA by ensuring that the Secretary does

not deny a remedy to those whose rights Congress.

sought to protect. AS one court has observed :

Indeed the very exclusivity of the remedy

serves to emphasize the necessity of some de-

gree of Court supervision. To rule otherwise

would enable the Secretary to frustrate the will

of Congress; it would leave the Secretary’s

conduct immune from scrutiny in matters where

he is charged with significant responsibilities

that must be carried out if the sweeping con-

gressional directive to infuse basic principles

of democratic free election into union organiza-

tions is to be implemented.

DeVito v. Shultz, 300 F. Supp. 381, 382 (S.D. N.Y.

1969).

- Nor do we find sufficient evidence of a congressional

intent to restrict judicial review in the requirement of

§ 402(b) that the Secretary file suit within 60 days

after the filing of a complaint. We realize that, if

viewability on the facts of this case. In the first place, Congress’

“eoncern” with husbanding the Secretary’s resoures was men-

tioned in Hodgson merely as a secondary reason for requiring

an individual to exhaust his union remedies before filing a com-

plaint with the Secretary. Moreover, the expense to an agency

of defending its decisions can hardly be considered a valid rea-

son for restricting judicial review. Finally, the Secretary could

help to discourage frivolous suits against him and thus avoxl

unnecessary expenditures by providing in each case an adequate

statement of his reasons for not bringing suit.

11a

permitted, a challenge to the Secretary’s decision not

to bring suit may in some cases result in a court order-

ing the Seeretary to file suit long after this time limit,

thereby conflicting with Congress’ concern to assure

that the cloud on the incumbents’ titles to office will

be resolved as quickly as possible, Wirtz v. Bottle

Blowers Ass’n, 389 U.S. 463, 468-69, n. 7 (1968). That

concern, however, may be subordinated to the goal of

providing an effective remedy for election irregulari-

ties. Thus, the Secretary has been allowed to file suit

beyond the 60-day period not only in those cases where

the union has waived the requirement to permit addi-

tional investigations or settlement negotiations, Hodg-

son v. Machinists Lodge 851, 454 F. 2d 545 (7th Cir.

1971) ; Hodgson v. International Pressmen, 440 F. 2d

113 (6th Cir.), cert. denied, 404 U.S. 828. (1971), but

also where the union has by its conduct impeded the

Secretary’s investigations, Wirtz v. Carpenters Local

1622, 285 F. Supp. 455 (N.D. Cal. 1968) ; Wirtz v. In-

dependent Workers Union, 65 L.R.R.M. 2104, 2108

(M.D. Fla. 1967) ; Wirtz v. Great Lakes District Local

47, 240 F. Supp. 859 (N.D. Ohio 1965). Although here

it is the alleged wrongdoing of the Secretary, rather

than the union, which has caused the delay, we believe

a court would be acting consistently with the funda-

mental purpose of the L-MRDA in entertaining a suit

beyond the time limit in those rare cases where the

Secretary’s original decision not to file suit has been

successfully challenged.

In concluding that the procedures set forth in §§ 402

and 403 do not evince a congressional intent to pre-

elude judicial review of the Secretary’s decision

whether to bring suit, we do not mean to deny that the

Secretary has considerable discretion in the exercise

of his enforcement powers. Speaking of the Secre-

12a

tary’s duty to screen complaints before filing suit, the

Court stated in Calhoon.v. Harvey, supra. at 140:

It is apparent that Congress decided to utilize

the special knowledge and discretion of the Sec-

retary of Labor in order best to serve the public

interest. . . . Reliance on the discretion of the

Secretary is in harmony with the general con-

gressional policy to allow unions great latitude

in resolving their own internal controversies,

and where that fails, to utilize the agencies of

the Government most familiar with union prob-

lems to aid in bringing about a settlement

through discussion before resort to the courts.

However, the fact that an agency action involves some

discretion does not necessarily make it unreviewable.

See Ferry v. Udall, 336 F. 2d 706, 711 (9th Cir. 1964).

Rather,

{t]he question is whether the Secretary * * *

enjoys absolute discretion—whether such a de-

eision is totally committed to the judgment of

the agency beeause of the practical require-

ments of the task to be performed, absence of

available standards against which to measure

the administrative action, or even the faet that

no useful purpose could be served by judicial

review.

Cappadora v. Celebreaze, supra. at 5-6.

The Secretary contends that his decision whether to

bring suit under § 402 of the LMDRA is an exercise

of prosecutorial discretion which is unreviewable and

cannot be compelled by a court. See Confiscation

Cases, 74 U.S. (7 Wall.) 454 (1869); Inmates of

Attica Correctional Facility v. Rockefeller, 477 F. 2d

375 (2d Cir. 1973); Peek v. Mitchell, 419 F. 2d 575 ©

(6th Cir. 1970); Spillman v. United States, 413 F. 2d

527 (9th Cir.), cert. dented, 396 U.S. 930 (1969) ;

Smith v. United States, 375 F. 2d 243 (5th Cir.), cert.

denied, 389 U.S. 841 (1967); Powell v. Katzenbach,

-

13a

359 F. 2d 234 (D.C. Cir. 1965), cert. denied, 384 U.S.

906 (1966). Not every refusal by a Government official

to take action to enforce a statute, however, is unre-

viewable. See Adams v. Richardson, 480 F. 2d 1159

(D.C. Cir. 1973). Cf. Camp v. Pitts, 411 U.S. 138

(1973). Although the Secretary’s decision to bring suit

bears some similarity to the decision to commence a

criminal prosecution, the principle of absolute prose-

cutorial discretion is not applicable to the facts of

this case.

To begin with, we believe that the doctrine of prose-

eutorial discretion should be limited to those civil

eases which, like criminal prosecutions, involve the

vindication of societal or governmental interests,

rather than the protection of individual rights. The

Confiscation Cases, supra, on which the Secretary

primarily relies,’ were suits to confiscate property

used in aid of rebellion; there was little question that

they were ‘‘for the benefit of the United States,’’ td.

at 457, rather than on behalf of any aggrieved indi-

viduals. However, the legislative history of the

LMDRA demonstrates a deep concern with the inter-

est of individual union. members, as well as the gen-

* The Secretary also cites Georgia v. Mitchell, 450 F. 2d 1317,

1321 (D.C. Cir. 1971), for the proposition that the principles

regarding prosecutorial discretion enunciated in criminal cases

are applicable to the exercise of prosecutorial discretion in a

civil context. However, the doctrine applied there was not that

the discretion of the Attorney General and the Secretary of

HEW is absolute, but only that judicial review of their dis-

cretionary conduct is narrowly restricted. Since the court found

that the prosecution of de jure segregation in Georgia without

challenging de facto segrégation elsewhere did not constitute

selective or discriminatory enforcement of school desegregation,

it held that the case then before the court was inappropriate

for judicial review.

14A

eral public, in the integrity of union elections.” Thus,

in seeking to remedy violations of the Act, the Sec-

retary acts not only for the benefit of the country as

a whole, but also on behalf of those individuals whose

rights have been infringed.” To grant the Secretary

10“Tt needs no argument to demonstrate the importance of

free and democratic union elections. Under the National Labor

Relations and Railway Labor Acts the union which is the

bargaining representative has power, in conjunction with the

employer, to fix a man’s wages, hours, and conditions of em-

ployment. The individual employee may not lawfully negotiate

with his employer. He is bound by the union contract. In prac-

tice, the union also has a significant role in enforcing the griev-

ance proeedure where a man’s contract rights are enforced. The

Government which gives unions this power has an obligation to

insure that the officials who wield it are responsive to the desires

of the men and women whom they represent. The best assur-

ance which can be given is a legal guaranty of free and

periodic elections. The responsiveness of union officers to the

will of the members depends upon the frequency of elections,

and an honest count of the ballots. Guaranties of fairness will

preserve the confidence of the public and the members in the

integrity of union elections.”

S. Rep. No. 187, 86th Cong., 1st Sess. (1959), quoted: at

p. 2336, U.S. Code Cong. & Admin. News. The Supreme Court

has summarized this purpose as follows:

“The LMRDA was the first major attempt of Congress to

regulate the internal affairs of labor unions. Having conferred

substantial power on labor organizations, Congress began to be

concerned about the danger that union leaders would abuse that

power, to the detriment of the rank-and-file members. Congress

saw the principle of union democracy as one of the most

important safeguards against such abuse, and accordingly

included in the LMRDA a comprehensive scheme for the regu-

lations of union elections.” \

Trbovich v. United Mine Workers, supra at 530-31.

11 This case is, therefore, distinguishable from Vaca v. Sipes,

386 U.S. 171, 182-83 n. 8 (1967), where the Court held that the

General Counsel of the National Labor Relations Board has

unreviewable discretion to refuse to institute an unfair labor

SR TG OA eR

>

15a

absolute discretion in this situation seems particularly

inappropriate, for if he wrongfully refuses to file

suit, individual union members are left without a

remedy.

Furthermore, as Professor Davis has observed, per-

haps the most convincing reason for the unreview-

ability of prosecutorial discretion is that a prosecutor

“may be actuated by many considerations that are

beyond the judicial capacity to ‘supervise.’’ Davis,

Administrative Law Treatise, § 28.16 at 984 (1970

Supp.). The factors to be considered by the Secretary,

however, are more limited and clearly defined: § 482

(b) of the L-MRDA provides that after investigating

a complaint, he must determine whether there is prob-

able cause to believe that violations of § 481 have oc-

curred affecting the outcome of the election.” Where

a complaint is meritorious and no settlement has been

reached which would remedy the violations found to

exist, the language and purpose of § 402(b) indicate

that Congress intended the Secretary to file suit.”

practice complaint because, under § 10(c) of the National Labor

Relations Act, “[t]he public interest in effectuating the policies

of the federal labor laws, not the wrong done the individual

employee, is always the Board’s principal concern in fashioning

unfair labor practice remedies.”

12 Despite its literal language, § 402(b) does not require the

Secretary to bring an action whenever he finds a violation that

has not been remedied, but rather confers discretion upon him

also to determine whether there is probable cause to believe that

such violation affected the- outcome of the election. Wirtz v.

Bottle Blowers Ass'n, supra at 472; Howard v. Hodgson, supra;

Ravaschieri v. Shultz, 75 L.R.R.M. 2272 (S.D. N.Y. 1970);

Schonfeld v. Wirtz, 258 F. Supp. 705, 708 (S.D. N.Y. 1966) ;

S. Rep. No. 187, 86th Cong., Ist Sess. (1959), quoted at p. 2337,

U.S. Code Cong. & Admin. News.

18 After holding that the Secretary had discretion not to file

suit where he has determined that there is not probable cause

to believe that such violations as occurred affected the outcome

16a

Thus, apart from the possibility of settlement, the

Secretary’s decision whether to bring suit depends on

a rather straightforward factual determination, and

we see nothing in the nature of that task that places

the Secretary’s decision “beyond the judicial capacity

to supervise.”’ See p. 13, supra.

Nevertheless, the question remains as to what the

proper scope of such judicial review should be. In

DeVito v. Schultz, supra at 384, the court held that

“the Secretary must provide those who petitioned for

his intervention with an adequate written statement of

his reasdns for nonintervention.’’ Since the letter ex-

plaining the Secretary’s decision not to bring suit

conceded that serious irregularities had occurred but

failed to mention the Secretary’s conclusion as to the

effect of those irregularities on the outcome of the

election, the court in DeVito ordered the Secretary to

reconsider his decision, and if after reconsideration he

was still determined not to act, the court held that the

individual complainant is entitled to a fuller state-

ment of reasons. We have found no case which ques-

tions this requirement. Indeed, in Ravaschiert v.

Shultz, supra at 2274, although the court concluded

that it had no jurisdiction to review the Secretary’s

refusal to bring suit, it stressed the importance of the

fact that he had made known the reasons for that

decision. In addition, “a brief statement of the

grounds for denial” is required by the APA, 5 U.S.C.

of the election, the court in Howard v. Hodgs@p, supra at 1197,

went on to state:

“This is not. to say that the Secretary’s discretion under § 482

is absolute. If the Secretary finds probable cause to believe that

a violation has occurred and also finds probable cause to believe

that the violation may have affected the outcome of the election,

the Act requires that he commence an action against the labor

organization.”

17a

§ 555(e), and as Professor Davis has pointed out, the

practical reasons for requiring findings are as appli-

cable to informal agency action as to action based on

formal hearings. Davis, Administrative Law Treatise

§ 16.00 at 559 (1970 Supp.).* Thus, judicial review of

the Secretary’s decision not to bring suit should ex-

tend at the very least to an inquiry into his reasons

for that decision to ensure that he has not abused the

discretion granted him by the LMDRA.

The relief requested by the complaint in the instant

case, however, goes beyond such an inquiry. Antici-

pating the Secretary’s reasons, plaintiff seeks an

opportunity to challenge the factual basis for his con-

clusion either that no violations occurred or that they

did not affect the outcome of the election. Only one

court has held that it had the power to review this

exercise of the Secretary’s discretion. Schonfeld v.

Wirtz, supra at 708-09." The majority of courts con-

14 Two of these reasons are clearly applicable to the instant

case: facilitating judicial review and assuring careful admin-

istrative consideration. The latter would be relevant even if the

Secretary’s decision were unreviewable. See Johnson v. Chair-

man of New York Board of Parole, No. 73-2581 (2d Cir.,

June 13, 1974), 43 L.W. 2011. In cases where agency action i

subject to judicial review, this court has repeatedly held that

an adequate statement of reasons is necessary for courts to per-

form their function properly. See United States v. Ziskowski,

465 F. 2d 480 (3d Cir. 1972); United States v. Neamand, 452

F. 2d 25 (3d Cir. 1971) ; Scott v. Commanding Officer, 431 F. 2d

1132 (3d Cir. 1970). Cf. Dry Color Mfrs. Ass’n v. Department

of Labor, 486 F. 2d 98, 105-06 (3d Cir. 1973). Since the Su-

preme Court’s decision in SEC v. Chenery Corp., 318 U.S. 80,

94 (1943), this principle has been followed by other courts in a

wide variety of contexts. See generally Davis, Administrative

Law Treatise § 16.05 (1958 ed. & 1970 Supp.).

18 See also Brennan v. Connectiout State UAW, Community

Action Program Council, Civ. No, B-743 (D. Conh., Apr. 24,

1974), where the court cited both Schonfeld v. Wirtz, supra,

184

sidering the matter have refused to conduct such a

review. Howard v. Hodgson, supra; Orphan v. Hodg-

son, 78 L.R.R.M. 2825 (N.D. Tl. 1971) ; Ravaschteri v.

Shultz, supra; McArthy v. Wirtz, 65 L.R.R.M. 2411

(E.D. Mo. 1967) ; Katrinic v. Wirtz, 62 L.R.R.M. 2557

(D. D.C. 1966); Altman v. Wirtz, 56 L.R.R.M. 2651

(D. D.C. 1964). Insofar as these cases stand for the

propostion that the Secretary’s determination of the

merit of a complaint is completley unreviewable,” we

and DeVito v. Shultz, supra, with approval in holding that the

views of intervening union members could not be disregarded

just because the union stipulated to a remedy without conceding

any violations.

In Schonfeld the Secretary’s investigation revealed that vio-

lations of the L-MRDA had occurred, and its holding could

therefore be limited to permit review only of the Secretary’s

determination that there is not probable cause to believe that

such violations affected the outcome of the election. See

McArthy v. Wirtz, 65 L.R.R.M. 2411, 2413 (E.D. Mo. 1967).

However, we believe that there is no meaningful distinction

between the finding as to the existence of a violation and the

finding as to its effect on the election. We note that this distinc-

tion was explicitly rejected in Howard v. Hodgson, 83 L.R.R.M.

3023, 3025 (E.D. Mo. 1973), aff'd, 490 F. 2d 1194 (8th Cir.

1974), where the court concluded that an even stronger case for

deferring to the Secretary’s expertise existed where he had

determined that a violation did not affect the outcome of an

election than where he found no violation at all.

16 Since nearly all of these cases discussed the issue of review-

ability in the context of mandamus, it is unclear whether they

necessarily imply that the Secretary’s discretion is absolute

whatever the basis for jurisdiction or relief. See not 4, supra.

In Ravaschieri v. Shultz, supra at 2275, for example, the court

was careful to distinguish Schonfeld on the ground that the

decision “He to bring suit there was “palpably arbitrary and

capricious,” while in Ravaschieri the court found that the Sec-

retary properly exercised his discretion after his investigation

disclosed that the plaintiffs had failed to invoke their internal

remedies as required by ‘§ 402(a), and that it would be difficult’

to prove that any violations which occurred affected the out-

19a

decline to follow them. The Secretary may as easily

defeat the purpose of the L-MRDA by irgnoring

overwhelming evidence of violations affecting the out-

come of an election as by refusing to file’ suit for

reasons not intended by Congress. In either case,

judicial review should be available to ensure that the

Secretary’s actions are not arbitrary, capricious, or

an abuse of discretion. The Supreme Court has

explained this scope of review as follows:

Scrutiny of the facts does not end, however,

with the determination that the Secretary has

acted within the scope of his statutory author-

ity. Section 706(2)(A) requires a finding that

the actual choice made was not ‘arbitrary, ca-

_pricious, an abuse of discretion, or otherwise

not in accordance with law.’ 5 U.S.C. § 706(2)

(A) (1964 ed., Supp. V.). To make this finding

the court must consider whether the decision

was based on a consideration of the relevant

factors and whether there has been a clear error

of judgment. [Citations omitted.] Although this

inquiry into the facts is to be searching and

careful, the ultimate standard of review is a

narrow one. The court is not empowered to sub-

stitute its judgment for that of the agency.

Citizens To Preserve Overton Park, Inc. v. Volpe,

supra at 416. Thus, on remand, plaintiff is entitled to

come of the election. Similarly, in Howard. v. Hodgson, supra,

the Court of Appeals did not even confront the issue of

whether the Secretary’s factual findings are reviewable, con-

cluding only that the Secretary acted within his discretion in

not filing suit where he determined that such violations as

occurred did not affect the outcome of the election. See note 12,

supra. However, the district court had decided that issue, 83

L.R.R.M. 3023, 3°25 (E.D. Mo. 1973), and thus the Eighth

Circuit’s affirmance of the district court’s dismissal apparently

means that m#ndamus will not issue to review the Secretary’s

finding that a complaint is without merit.

20a

a sufficiently specific statement of the factors upon

which the Secretary relied in reaching his decision not

to file suit so that plaintiff may have information con-

cerning the allegations cette in his complaint.”

A True Copy: 7.

Teste: ;

Clerk of the United States

Court of Appeals far the '

| Third Circuit.

_™% The court recognizes that certain data in the Secretary’s

filee may be privileged and confidential. Cf. Weisberg v. US.

Department of Justice, 489 F. 2d 1195 (D.C. Cir. 1973);

Frankel y. Securities & Exchange Commission, 460 ¥F. 2d 813

(2d Cir. 1972). Whether the Government’s interest in main-

taining the confidentiality of such information-owtweighs the

plaintiff's interest in their production should be a matter for

the 'trial court to decide on motions for discovery so as to as-

sure “a fair determination of the issues.” Mitehell v. Roma, |

265 F. 2d 633, 636 (3d Cir. 1959).

APPENDIX B

United States Distriet Court for the Western District

of Pennsylvania

Civil Action No. 73 0954

WaLTerR BAaCHOWSKI, PLAINTIFF

v.

PeTerR BRENNAN, SECRETARY OF Lasor, Untrep States

DEPARTMENT OF LABOR, AND UNITED STEELWORKERS

OF AMERICA, DEFENDANTS

ORDER

AND NOW, this 12th day of November, 1973, upon

consideration of Defendants’ Motion to Dismiss the

Complaint and after hearing oral arguments on the

legal issues involved in the above captioned case, it

is determined that this Court lacks jurisdiction over

the subject matter of this Complaint and,

accordingly,

IT IS ORDERED that the Motion of Defendants to

Dismiss the Complaint is granted; and that the Mo-

tion of Plaintiff for a Temporary Restraining Order

the Motion for a Preliminary Injunction are

hereby denied.

' Hon. Jupce DUMBAULD,

United States District Judge.

21a

APPENDIX C

United States Court of Appeals for the Third Circuit

No. 73-2029 Ay

WALTER BACHOWSKI, APPELLANT

v.

PETER BRENNAN, SECRETARY OF Labor, UNITED STATES

DEPARTMENT OF LABOR AND UNITED STEELWORKERS

or AMERICA

(D.C. Civil Action No. 73-954)

On Appeal from the United States District Court for

the Western District of Pennsylvania ,

Present: Serrz, Chief Judge and Van DvusEN and

Grppons, Circuit Judges

JUDGMENT

_ This cause came on to be heard on the record from

the United States District Court for the Western

District of Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

said District Court; entered November 12, 1973, be,

and the same is hereby vacated and the cause will be

remanded. for further proceedings consistent with the

opinion of this Court. No costs.

Attest:

- THomas P. QUINN,

_ Clerk.

July 26, 1974.

U.S. GOVERNMENT PRINTING OFFICE: 1974