Opinion — Dunlop v. Bachowski

©

NOTICE : This opinion is subject to formal revision before publication

in che prentesenry | ay of the United States Reports. Readers are re-

uested to ty / he Reporter of Decisions, Supreme Court of the

nited States, Washington, D.C. 20543, of any typogra hical or other

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liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 74-466 7

John T. Dunlop, Sec-

retary of Labor, On Writ of Certiorari to the

Petitioner, United States Court of Appeals

v. for the Third Circuit.

Walter Bachowski.

[June 2, 1975]

Mr. Justice BRENNAN delivered the opinion of the

Court.

- On February 13, 1973, the United Steelworkers of

America (USWA) held District Officer elections in its

several districts. Respondent Bachowski was defeated

by the incumbent in the election for that office in Dis-

trict 20. After exhausting his remedies within USWA,

respondent filed a timely complaint with petitioner, Sec-

retary of Labor, alleging violations of § 401 of the Labor-

Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U. S. C. § 481, thus invoking 29 U. S. C.

§ 482 (a)(b) that requires that the Secretary investigate

the complaint and decide whether to bring a civil action

to set aside the election.* Similar complaints were filed

1The result of the election was as follows:

Kay Kluz (incumbent) 10,558

Walter Bachowski (respondent) F . 9,651

Morros Brummett 3,566

229 U.S. C. § 482 provides:

“(a) A member of a labor organization—

“(1) who has exhausted the remedies available under the consti-

tution and bylaws of such organization 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,

2 DUNLOP v. BACHOWSKI

respecting five other district elections. After complet-

ing his investigations, the Secretary filed civil actions to

set aside the elections in only two districts. In respect

of the election in District 20, he advised respondent by

letter dated November 7, 1973, that “based on the inves-

tigative findings, it has been determined . . . that civil

action to set aside the challenged election is not

warranted.”

On November 7, 1973, respondent filed this action

against the Secretary and USWA in the District Court

for the Western District of Pennsylvania.’ The com-

plaint asked that, among other relief, “the Court de-

clare the actions of the Defendant Secretary to be arbi-

trary and capricious and order him to file suit to set aside

the aforesaid election.” The District Court conducted a

hearing on November 8, and after argument on the ques-

may file a complaint with the Secretary within one calendar month

thereafter alleging the violation of any provision of section 481 of

this title . . . . The challenged election shall be presumed valid

pending a final decision thereon-. . . 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 ‘complaint and, if he finds

probable cause to believe that a violation of this subchapter has

occurred and has not been remedied, ‘he shall, within sixty days after

the filing of such complaint, bring a civil action against the labor

organization as an entity in the district court of the United States

in which such labor organization 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

supervision of the Secretary ... .”

*The complaint was filed on the date, November 7, 1973, of the

letter quoted in the text. The complaint alleges that on Novem-

ber 5, respondent “received a phone call from the Pittsburgh office

of the Defendant Secretary of Labor advising him that the Defend-

ant Secretary had decided not to file suit to set aside the contested

election in District 20 USWA.”

DUNLOP v. BACHOWSKI 3

tion of reviewability of the Secretary’s decision, con-

cluded that the court lacked “authority” to find that the

action was capricious and to order him to file suit. Civil

Action No. 73-0954, W. D. Pa., Doc: 9, p. 27. The hear-

ing was followed by an order dated November 12, dis-

missing the suit.‘ The Court of Appeals for the Third

Circuit reversed, 502 F. 2d 79 (1974).

The Court of Appeals held first that the District Court

had jurisdiction of respondent’s suit under 28 U. S. C.

§ 1337 as a case arising under an Act of Congress regulat-

ing commerce, the LMRDA, 502 F. 2d, at 82-83; second,

that the Administrative Procedure Act, 5 U. S. C. §§ 702

and 704, subjected the Secretary’s decision to judicial re-

view as “final agency action for which there is no other

adequate remedy in a court,” § 704, and that his decision

was not, as the Secretary maintained, agency action pur-

suant to “(1) statutes [that] preclude judicial review; or

(2) agency action [that] is committed to agency discre-

tion by law,” excepted by § 701 (a) from judicial review,

*The Order of November 12 recites that “it is determined that

this Court lacks jurisdiction over the subject matter of this Com-

plaint.” In view of our result, it is immaterial whether the dismissal

was on the ground of lack of jurisdiction or of nonreviewability, or

on both grounds.

5 Section 606 of LMRDA, 29 U. S. C. § 526, provides:

“The provisions of the Administrative Procedure Act shall be

applicable to . . . any adjudication, authorized or required pursuant

to the provisions of this chapter.” The pertinent provisions of the

Administrative Procedure Act, 5 U. S. C. §§ 701-706, provide:

“§ 702—A person suffering legal wrong because of agency action .

is entitled to judicial review thereof.

“§ 704—Agency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court are

subject to judicial review. . . .

“§ 706— . . . [T]he reviewing court shall—

4 DUNLOP v. BACHOWSKI

id., at 83-88;* and third that the scope of judicial

review—governed by § 706 (2)(A), “to ensure that the

Secretary’s actions are not arbitrary, capricious, or an

abuse of discretion,” id., at 90—entitled respondent, who

sought “to challenge the factual basis for [the Secre-

tary’s] conclusion either that no violations occurred or

that they did not affect the outcome of the election,” id.,

at 89, “to a sufficiently specific statement of the factors

upon which the Secretary relied in reaching his de-

cision . . . so that respondent may have information con-

cerning the allegations contained in his complaint.” /d.,

at 90.° We granted certiorari, 419 U. S. 1068 (1974).

We agree that 28 U. S. C. § 1337 confers jurisdiction

upon the District Court to entertain respondent’s suit,

and that the Secretary’s decision not to sue is not ex-

cepted from judicial review by § 701 (a) of the ‘Admin-

istrative Procedure Act; rather, §§ 702 and 704 sub-

ject the Secretary’s decision to judicial review under the

standard specified in § 706 (2)(A). We hold, however,

that the Court of Appeals erred insofar as its opinion

construes § 706 (2)(A) to authorize a trial-type inquiry

into the factual bases of the Secretary’s conclusion that

no violations occurred affecting the outcome of the

election. We accordingly reverse the judgment of the

“(2) hold unlawful and set aside agency action . . . found to

be—

“(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law ... .

“§701—(a) This chapter applies . . . except to the extent that—

“(1) statutes preclude judicial review; or

“(2) agency action is committed to agency discretion by law... .”

* The closing sentence of the opinion as originally filed on July 26,

1974, required the District Court to permit respondent “to examine

the data and reports” upon which the Secretary relied. The present

version was substituted by order dated September 3, 1974, which

also added n. 17, reciting the Court of Appeals’ recognition that cer-

tain data in the Secretary’s files may be privileged and confidential.

DUNLOP v. BACHOWSKI 5

Court of Appeals insofar as it directs further proceedings

on remand consistent with the opinion of that court, and

direct the entry of a new judgment ordering that the

proceedings on remand be consistent with this opinion of

this Court. 1

LMRDA contains no provision that explicitly prohib-

its judicial review of the decision of the Secretary not to

bring a civil action: against the union to set aside an

allegedly invalid election. There is no such prohibition

in 29 U. S. C. § 483. That section states “[t]he rem-

edy provided by this subchapter for challenging an

election already conducted shall be exclusive.” Certain

LMRDA provisions concerning pre-election conduct, 29

U. S. C. $§ 411-413 and 481 (c) are enforceable in suits

brought by individual union members. Provisions con-

cerning the conduct of the election itself, however, may

be enforced only according to the post-election pro-

cedures specified in 29 U. S. C. § 482. Section 483 is

thus not a prohibition against judicial review but simply

underscores the exclusivity of the $482 procedures in

post-election cases:

In the absence of an express conisiistaians in LMRDA,

the Secretary therefore bears the heavy burden of over-

coming the strong presumption that Congres$ did not

mean to prohibit all judicial review of his decision. “The

question is phrased in terms of ‘prohibition’ rather than

‘authorization’ because a survey of our cases shows that

judicial review of a final agency action by an aggrieved

person will not be cut off unless there is persuasive reason

to believe that such was the purpose of Congress.’’ Ab-

bott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).

“ . . [o]nly upon a showing of ‘clear and convincing

evidence’ of a contrary legislative intent should the

courts restrict access to judicial review.” Jd., at 141.

See also Rush v. Cort, 369 U. S. 367, 379-380 (1962),

6 DUNLOP v. BACHOWSKI

Citizens of Overton Park v. Volpe, 401 U. S. 402, 410

(1971).

The Secretary urges that the structure of the statutory

scheme, its objectives, its legislative history, the nature

of the administrative action involved, and the conditions

spelled out with respect thereto, combine to evince a

congressional meaning to prohibit judicial review of his

decision.’ We have examined the materials the Secre-

tary relies upon. They do not reveal to us any con-

gressional purpose to prohibit judicial review. Indeed,

there is not even the slightest intimation that Congress

gave thought to the matter of the preclusion of judicial

review. “The only reasonable inference is that the pos-

sibility did not occur to the Congress.” Wirtz v. Glass

Bottle Blowers, 389 U.S. 463, 468 (1968).

We therefore reject the Secretary’s argument as without

merit. He has failed to make a showing of “clear and con-

vincing evidence” that Congress meant to prohibit all ju-

dicial review of his decision. In that circumstance, courts

“are necessarily [not] without power or jurisdiction . . . if

it should clearly appear that the Secretary has acted in

an arbitrary or caprietews manner in ignoring the manda-

tory duty. he owes plaintiff under the power granted by

the Congress. Leedom v. Kyne, 358 U.S. 184 (1958).”

DeVito v. Schultz I, 300 F. Supp. 381, 382 (1969). But

see Ravaschieri v. Shultz, 75 L. R. R. M. 2272 (1970) ;

McArthy v. Wirtz, 65 L. R. R. M. 2411 (1967), Katrinic

v. Wirtz, 62 L. R. R. M. 2557 (1966). Our examination

of the relevant materials persuades us, however, that al-

though no purpose to prohibit all judicial review is

shown, a congressional purpose narrowly to limit the

scope of judicial review of the Secretary’s decision can,

* We agree with the Court of Appeals, for the reasons stated in

its opinion, 502 F. 2d, at 86-88, that there is no merit in the Secre-

tary’s contention that hisdecision is an unreviewable exercise of prose-'

cutorial discretion.

DUNLOP v. BACHOWSKI .

and should, be inferred in order to carry out congressional

objectives in enacting LMRDA.

II

Four prior decisions of the Court construing LMRDA

identify the congressional objectives and thus put the

scope of premissible judicial review in perspective. Con-

gress _—— to, utilize the special knowledge and dis-

cretion of thé Secretary of Labor in order best to serve

the public interest . . . [and] decided not to permit in-

dividuals to block or delay union elections by filing

federal-court suits....’* Calhoon v. Harvey, 379 U.S.

134, 140 (1964). Congress’ concern was “to settle as

quickly as practicable the cloud on the incumbent’s title

to office,” Wirtz v. Glass Bottle Blowers, supra, 389 U. S..,

at 468 n. 7, and in “deliberately [giving] exclusive en-

forcement authority to the Secretary . . . emphatically

asserted a-vital public interest in assuring free and

democratic union elections that transcends the narrower

interest of the complaining union member... .” 7d.,

473-475. “. . . it is most improbable that Congress

. S. Rep. No. 187, 86th Cong., Ist Sess., at 7, I Leg. Hist.

“In acting on this bill [S. 1555] the committee followed three

principles: 1. The committee recognized the desirability of minimum

interference by Government in the internal affairs of any private

organization. ... [I]n establishing and enforcing statutory stand-

ards great care should be taken not to undermine union self-govern-

ment or weaken unions in their role as collective-bargaining agents.

2. Given the maintenance of minimum democratic safeguards and

detailed essential information about the union, the individual mem-

bers are fully competent to regulate union affairs... 3. Remedies

for the abuses should be direct .... [T]he legislation should pro-

vide an administrative or judicial remedy appropriate for each spe-

cific problem.

“See also ibid.: ‘The bill reported by the committee, while it

carries out all the major recommendations of the [McClellan] Com-

mittee, does so within a general philosophy of legislative restraint.”

8 DUNLOP v. BACHOWSKI

~ deliberately settled exclusive enforcement jurisdiction on

the Secretary and granted him broad investigative powers

to discharge his responsibilities, yet intended the shape

of the enforcement action to be immutably fixed by

the artfulness of a layman’s complaint .... The

expertise and resources of, the Labor Department were

surely meant to have a broader play ....” Wirtz

v. Laborers’ Union, 389 U. S. 477, 482-483 (1968).

“. . . Congress made suit by the Secretary the exclusive

post-election remedy for two principal reasons; (1) to

protect unions from frivolous litigation and unneces-

sary judicial interference with their elections, and (2) to

centralize in a single proceeding such litigation as

might be warranted ....” Trbovich v. United Mine

Workers, 404 U. S. 528, 532 (1972). “. . . Congress in-

tended to prevent members from pressing claims not

thought meritorious by the Secretary, and from litigating

in forums or at times different from those chosen by the

Secretary.” Jd:, at 536. “... The statute gives the in-

dividual union members certain rights against their union

and ‘the Secretary of Labor in effect becomes the union

member’s lawyer’ for purposes of enforcing those

rights... .” Id., 538-539.

Glass Bottle Blowers reveals two more considerations

pertinent to determination of the scope of judicial re-

view. Section 482 (b) leaves to the Secretary, in terms,

only the question whether he has probable cause to believe

that a violation has occurred, and not also, in terms, the

question whether the outcome of the election was probably

affected by the violation. Bottle Blowers construed § 482

(b), however, as conferring upon the Secretary discretion

to determine both the probable violation and the prob-

able effect. “... the Secretary may not initiate an ac-

tion until his own investigation confirms that a viola-

tion . . . probably infected the challenged election.” 389

U. S., at 472. See also Schonfeld v. Wirtz, 258 F. Supp.

705, 707-708 (1966).

DUNLOP v. BACHOWSKI 9

In addition, in rejecting the argument that the unlaw-

fulness infecting a challenged election could be washed

away by an intervening unsupervised union election, the

Court stated, 389 U.S., at 474:

. Congress’ evident conclusion that only a super-

vised election could offer assurances that the officers

who achieved office as beneficiaries of violations of

the Act would not by, some means perpetuate their

unlawful control in the succeeding election . . . was

reached in light of the abuses surfaced by the in-

tensive congressional inquiry showing how incum-

bents use their inherent advantage over potential

rank and file challengers established and perpetu-

ated dynastic control of some unions.... These

abuses were among the ‘number of instances of

breach of trust ... [and] disregard of the rights of

individual employees’ . . . upon which Congress

rested its decision that the —_— was required

in the public interest.” ®

Two conclusions follow from this survey of our de-

cisions: (1) since the statute relies upon the special

knowledge and discretion of the Secretary for the deter-

mination of both the probable violation and the probable

effect, clearly the reviewing court is not authorized to

substitute its judgment for the decision of the Secretary

® Respondent referred at oral argument to the following statement

in the Brief Amicus of United Mine Workers of America: “The

struggle by UMWA members to overturn tyranny in their Union

was a lonely and difficult one in part because of apathy and indiffer-

ence, if not outright prejudice against them, by the officials of the

United States Department of Labor, purportedly the guardians of

Union members’ rights under LMRDA. Too often, union reformers

have found the Department of Labor allied with union incumbents

against their interests.”

No issue of this nature is raised by respondent's complaint in

this case.

-10 DUNLOP v. BACHOWSKI

not to bring suit; (2) therefore to enable the reviewing

court intelligibly to review the Secretary’s determination,

the Secretary must provide the court and the complain-

ing witness with copies of a statement of reasons sup-

porting his determination. “When action is taken by

[the Secretary ] it must be such as to enable a reviewing

court to determine with some measure of confidence

whether or not the discretion which still remains in the

Secretary, has been exercised in a manner that is neither

arbitrary nor capricious . . . it is necessary for [him] to

delineate and make explicit the basis upon which dis-

cretionary action is taken, particularly in a case such

as this where the decision taken consists of @ failure to

act after the finding of union election irregularities.”

DeVito v. Shultz I, 300 F. Supp. 381, 383 (1969); see

also Valenta v. Brennan, No. C 74-11 (ND Ohio 1974).

Moreover, a statement of reasons serves purposes

other than judicial review. Since the Secretary’s role as

lawyer for the complaining union member does not include

the duty to indulge a client’s usual prerogative to direct

his lawyer to file suit, we may reasonably infer that Con-

gress intended that the Secretary supply the member with

a reasoned statement why he determined not to proceed.

“As a matter of law, ... the Secretary is not requried to

sue to set aside the election whenever the proofs before him

suggest the suit might be successful. There remains in

him a degree of discretion to select cases and it is his sub-

jective judgment as to the probable outcome of the liti-

gation that must control.” DeVito v. Shultz II, supra,

72 L.R.R. M., at 2683 (emphasis supplied). But, “surely

Congress must have intended that éourts would intercede

sufficiently to determine that the provisions of Title IV

have been carried out in harmony with the implementa-

tion of other provisions of [LMRDA].” DeVito v. Shultz

I, supra, at 383. Finally, a reasons requirement promotes

DUNLOP v. BACHOWSKI 11

thought by the Secretary and compels him to cover the

relevant points and eschew irrelevancies, and as noted by

the Court of Appeals in this case, the need to assure care-

ful administrative consideration “would be relevant even

if the Secretary’s decision were unreviewable.” 502 F.

2d, supra, at 88-89, n. 14.

The necessity that the reviewing court refrain from

substitution of its judgment for that of the Secretary

thus helps define the permissible scope of review. Ex-

cept in what must be the rare case, the court’s review -

should be confined to examination of the reasons state-

ment, and the determination whether the statement

without more evinces that the Secretary’s decision is so

irrational as to constitute the decision arbitrary and

capricious. Thus, review may not extend to cognizance

or trial of a complaining member’s challenges to the

‘factual bases for the Secretary’s conclusion either that

no violation occurred or that they did not affect the out-

come of the election. The full trappings of adversary

trial type hearings would be defiant of congressional

objectives not to permit individuals to block or delay

resolution of post-election disputes, but rather “to settle

as quickly as practicable the cloud on incumbents title

to office”; and “to protect unions from frivolous litiga-

tion and unnecessary interference with their elections.”

“If ... the Court concludes . . . there is a rational and

defensible basis [stated in the reasons statement] for [the

Secretary’s] determination, then that should be an end

of this matter, for it is not the function of the Court to

determine whether or not the case should be brought or

what its outcome would be.” DeVito v. Shultz II, 72

L. R. R. M. 2682, 2683 (1969).

Thus, the Secretary’s letter of November 7, 1973, may

have sufficed as a “brief statement of the grounds for

denial” for the purposes of § 555 (e) of the Administra-

~Y

12 DUNLOP v. BACHOWSKI

tive Procedure Act,”® but plainly it did not suffice as a

statement of reasons required by LMRDA. For a state-

ment of reasons must be adequate to enable the court to

determine whether the Secretary's decision was reached

Aor an, impermissible reason or for no reason at all. For

this essential purpose, although detailed findings of fact

are not required, the statement of reasons should inform

the court and the complaining union member both the

grounds of decision and the essential facts upon which

the Secretary’s inferences are based. '

The Secretary himself suggests that the rare case that

might justify review beyond the confines of the reasons

statement might arise, for example, “if the Secretary

were to declare that he no longer would enforce Title IV,

or otherwise completely abrogate his enforcement respon-

sibilities... [or] .. . if the Secretary prosecuted com-

plaints in a constitutionally discriminatory manner... .”

Petitioner’s Brief, p.9n.3. Other cases might be imag-

ined where the Secretary’s decision would be “plainly

beyond the bounds of the Act... (or)... . Clearly defiant

of the Act.” DeVito v. Shultz IT, 72 L. R. R. M,, at

2682. Since it inevitably would be a matter of grave

public concern were a case to arise where the complain-

ing member’s proofs sufficed to require judicial inquiry

into allegations of that kind, we may hope that such

There remains the question of remedy. When the

District Court determines that the Secretary’s statement

of reasons adequately demonstrates that his decision not

Section 555 (e), 5 U.S.C. § 555 (e) provides:

“Prompt notice shall be given of the denial in whole or in part

of a written application, petition, or other request of an interested

person made in connection with any agency proceeding. Except in

affirming a prior denial or when the’ denial is self-explanatory, the

notice shall be accompanied by a brief statement of the grounds for

denial.”

en pe ss, TORO ye

DUNLOP v. BACHOWSKI 13

to sue is not contrary to law, the complaining union

member’s suit fails and should be dismissed. Howard v.

Hodgson, 490 F. 2d 1194 (CA8 1974). Where the state-

ment inadequately discloses his reasons, the Secretary may

be afforded opportunity to supplement his statement. De-

Vito v. Shultz I, 300 F. Supp., supra, at 384; Valenta v.

Brennan, supra." The court must be mindful, however,

that endless litigation concerning the sufficiency of the

written statement is inconsistent with the statute’s goal

of expeditious resolution of post-election disputes.

The District Court may however ultimately come to

the conclusion that the Secretary’s statement of reasons

on its face renders necessary the conclusion that his de-

cision not to sue is so irrational as to constitute the de-

cision arbitrary and capricious. There would then be

*4 Judge Gesell of the District Court of the District of Columbia

fashioned an acceptable procedure in DeVito v. Shultz I, 300 F. Supp.

381 (1969). Aggrieved union members complained of irregularities

in the election of regular officers of International Union. They also

complained of irregularities in the election of an International

President Emeritus. The office of the Secretary of Labor re-

fused to bring suit to set aside either election, supplying separate

statements of reasons in the cases, Judge Gesell determined that

the statement respecting the regular election of officers was inade-

motion to dismiss and for summary judgment was denied witheat

prejudice to a further submission of reasons on that aspect of

the case but was granted as respects the election of the Presi-

of the election of the regular officers, and his adherence to his

hearing. DeVito v. Shultz I], 72 L. R. R. M. 2682 (1969). Judge

Gesell concluded on this occasion that the Secretary “satisfied the

Court that there is a rational basis for his not proceeding” and. granted

14 DUNLOP v. BACHOWSKI

presented the question whether the District Court is

empowered to order the Secretary to bring a civil suit

against the union to set aside the election. We have

no occasion to address that question at this time. It

obviously presents some difficulty in light of the strong

evidence that Congress deliberately gave exclusive en-

forcement authority to the Secretary.* See National

Railroad Passenger Corp. v. National Assn. of Railroad

Passengers, 414 U.S. 453, 465 (1974) (Brennan, J., con-

curring); Nader v. Sarbe, —- U.S. App. D. C. —, 497

F. 2d 676, 679-686, n. 19 (1974). We-prefer therefore

at this time to assume that the Secretary would proceed

appropriately without the coercion of a court order when

finally advised by the courts that his decision was in law

arbitrary and capricious.

lil

The opinion of the Court of Appeals authorized review

beyond the permissible limits defined in this opinion.-

After first stating that “judicial review of the Secretary’s

decision not to bring suit should extend at the very least

to an inquiry into his reasons for that decision . . . .”” 502

F. 2d, at 89, the court noted that “[t]he relief requésted

by the complaint . . . however, goes beyond such an

inquiry . . . plaintiff seeks an opportunity to challenge

the factual basis for [the Secretary’s] conclusion either

that no violations occurred or that they did not affect the

12 USWA argues that Arts. II and III of the Constitution “do

not countenance a court order requiring the executive branch,

against its wishes, to institute a law suit in federal court.” “...a

judicial direction that such an action be brought would violate

the separation of powers . . . [and] because the Secretary agrees

with the union that Title IV does not require a new election, the

lawsuit would be one lacking the requisite adversity of interest to

constitute a ‘case’ or ‘controversy’ as required by Article III.”

Since we do not consider the question at this time of the court’s

power to order the Secretary to file suit, we need not address those

contentions.

.

DUNLOP v. BACHOWSKI 15

outcome of the election.” Ibid. The court concluded

that in that circumstance “plaintiff is entitled to a suifi-

ciently specific statement of the factors upon which the

Secretary relied in reaching his decision not to file suit

so that plaintiff may have information concerning the

allegations contained in his complaint.” Jd., at 90.

But the key allegation of plaintiff’s verified complaint

is paragraph 18 which alleges: “Notwithstanding the fact

that the Defendant Secretary’s investigation has sub-

stantiated.the plaintiff's allegations and notwithstanding

the fact that the irregularities charged affected the out-

come of the election the Defendant Secretary refuses to

file suit to set aside the election.” ** Thus the Court of

Appeals’ opinion impermissibly authorizes the District

Court to allow respondent the full trappings of an ad-

versary trial of his challenge to the factual basis for the

Secretary’s decision.

IV

The District Court, pursuant to the Court of Appeals’

order of remand, ordered the Secretary to furnish a

statement of reasons. The petitioner did not cross-pe-

tition from the order, and petitioner and USWA con-

ceded oi oral argument that the order was proper in this

case. Tr. pp. 23, 24, 52. The Secretary furnished the

statement and it is attached as an Appendix to this

opinion. Its adequacy to support a conclusion whether

18 The Secretary concedes that, because the District Court dis-

missed respondent’s complaint for want of “jurisdiction” all of the

factual allegations of this paragraph must be accepted as true.

Petitioner's Brief, p. 4 n. 2. The allegation recites, however, only

that the “Secretary’s investigation has substantiated the plaintiff’s

allegations,” and not also that the Secretary has found that the

irregularities charged affected the outcome of the election. On the

contrary, the reasons statement attached as the Appendix discloses

that the Secretary found that the irregularities did not affect the

conduct of the election.

16 DUNLOP v. BACHOWSKI

the Secretary’s decision was rationally based or was arbi-

trary and capricious, is a matter of initial determina-

tion by the District Court.

The judgment of the Court of Appeals is reversed inso-

far as it directs further proceedings consistent with the

opinion of the Court of Appeals, and that court is di-

rected to enter a new order that the proceedings on re-

mand be consistent with this opinion of this Court.

So ordered.

=

APPENDIX

IN THIE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 73 0954

WALTER BACHOWSKI, PLAINTIFF

v.

Peter J). BRENNAN, Secretary of Labor, United States

Department of Labor, and UniTep STEELWORKERS OF

America, AFL-CIO-CLC, DEFENDANTS

STATEMENT OF THE SECRETARY OF LABOR

On Niovember 12, 1973, this Court, upon oral argu-

ment, dismissed the Complaint filed herein by the plain-

tiff, and! further denied plaintiff’s Motion for a Tempo-

rary Restraining Order and Preliminary Injunction. On

appeal, the United States Court of Appeals for the Third

Circuit, in a Judgment entered on July 26, 1974, ordered

that the aforementioned Judgment of the District Court

be vacaited and the cause remanded for further proceed-

ings comsistent with the Opinion of the Third Circuit

filed on! July 26, 1974, as amended September 3, 1974.

On remand, this Court ordered the Secretary of Labor

to furniish a statement of the reasons and explanations

underly:ing his decision not to file suit pursuant to the

complaiint received from Mr. Walter Bachowski, a mem-

ber in good standing of the United Steelworkers of

Americ#, AFL-CIO-CLC (hereinafter referred to as the

International).

Accordingly, defendant, Secretary of Labor, is furnish-

ing the: following information. However, .it is respect-

18 DUNLOP v. BACHOWSKI

fully submitted that defendant, Secretary of Labor, in

furnishing this statement does not waive any legal claims

raised in connection with this matter.“

Pursuant to a complaint received on June 21, 1973

from Mr. Walter Bachowski, the Secretary of Labor con-

ducted an investigation of the February 13, 1973 election

conducted by the International for the office of District

Director, District 20. District 20 is the fourth largest

Steelworker District and covers eight contiguous counties

in Western Pennsylvania, running from Pittsburgh in

the South to Erie in the North, and Ohio to the West.

At the time of the election, District 20° was comprised of

approximately 67,419 members.

In total, the Secretary’s representatives investigated

80 of District 20’s 190 local unions, including all 27 of

the former 50 locals (the Secretary has found from past

experience that former District 50 locals have encoun-

tered an unusual number of election related problems due

to their recent assimilation into the Union). In formu-

lating an investigative plan the Department of Labor

focused upon and investigated each and every local

brought to its attention by Mr. Bachowski, both orally

and in his written complaint. Investigators, while in the

geograpical areas of the locals designated by Mr. Bachow-

ski, reviewed additional local unions on a random basis

in those areas. Also, red flag locals were selected on a

district wide basis where, for example, voter turnouts

appeared to be inordinately high. In addition to the 80

in depth local union investigations, investigators inter-

viewed numerous individuals including members, union

officers and Mr. Bachowski himself concerning the events

surrounding the District 20 election. Investigators also

** Defendant, Secretary of Labor, now has pending before the

Supreme Court a Petition for Writ of Certirari to the United States

Court of Appeals for the Third Circuit.

DUNLOP v. BACHOWSKI 19

reviewed and examined documentary evidence for fur-

ther investigative leads or potential violations. During

the course of the entire proceeding, investigators worked

hand in hand with Mr. Bachowski on an ongoing basis.

Because of the size of District 20 and the obvious limi-

tations on available manpower (the Department of Labor

was concurrently investigating elections conducted in

five other Districts as well), it was not possible to inves-

tigate each and every local union in District 20. How-

ever, the above described investigative design was broadly

conceived and was reasonably calculated to disclose all

violations which may. have occurred in the District wide

election. ;, ot

Therefore, it is readily apparent the Department con-

ducted a thorough and exhaustive investigation into the

District 20 election. Set forth below is a detailed analy-

sis of the investigative findings, along with the numerical

estimates of the votes which may have been affected as

a result of these violations. In reaching these numerical

estimates, we have not considered figures which consti-

tute a reasonably probable effect, but rather, will set

forth votes which have been calculated to a maximum

theoretical possibility. By using these maximized figures,

we are giving in most instances the benefit of the doubt

to Mr. Bachowski. For example, Local Union 2789

which will be discussed herein failed to conduct an elec-

tion. Thus, by assuming that the entire membership of

249 would have voted, nad moreover would have voted

unanimously for Mr. Bachowski, we arrived at the maxi-

mized figure for possible effect on outcome of 249 votes.

This method of computation, while theoretically possible,

is highly unlikely, since, for example, in the entire Dis-

trict only about one-third of the members voted in the

election. Thus, the reasonable probability in this Local

Union is that only approximately one-third of the mem-

20 DUNLOP v. BACHOWSKI

bers would have voted had there been an election, and

that those voting would not have given Mr. Bachowski

an unanimity of the vote.

(1) Local Union 2203

The investigation in this Local Union disclosed a fail-

ure to mail a notice of the election to ten members work-

ing on one employer site, and consequently, they were

never apprised of the election and did not vote. Thus,

ten members were potentially denied the right to vote

in this Local Union as a result of the failure to mail no-

tice of the election as required by Section 401 (e) of the

Act. In arriving at this figure of ten, we would note,

however, that since only nine of the seventeen members

at the other employer location voted, it seems *ighly

unlikely that all ten members would have voted in the

election had they been notified.

(2) Local Union 2789

The files indicate that Local Union 2789 voted at its

monthly membership meeting not to conduct an election

because of a lack of funds. Accordingly, no election was

conducted. However, since the Local Union was obli-

gated by law to conduct an election, it was concluded

that the total membership of 249 were potentially denied

the right to vote in violation of Section 401 (a) of the

Act. As noted above, in computing the total number of

votes that may have been affected by this violation, we

have included the entire membership of the Local Union,

and have further assumed that the entire membership

may have voted for Mr. Bachowski.

(3) Local Union 3186

This Local Union failed to provide adequate salentiands

to insure a fair election. For example, the persons con-

ducting the election hand-carried ballots to members at

their work stations, who were then permitted to vote.

DUNLOP v. BACHOWSKI 21

There was no specific voting area and no voter eligibility

lost was used. The entire conduct of this election left

& great deal to be desired. It was thus concluded that

the Local Union failed to provide adequate safeguards to

insure a fair election and that this violation “may have

affected the outcome” of the election to the extent of 16

votes. This figure of 16 votes represents the entire mar-

gin by which Kluz prevailed over Bachowski.

(4) Local Union 3718

The investigation of this Local Union disclosed very

loose ballot control (many ballots were found lying

around the grounds of the employer), and as a result the

Local was unable to account for 39 ballots. The union

thus failed to provide adequate safeguards to insure a

fair election and this violation “may have affected” 124

votes. This figure, as in the previous Local, represents

the full margin of -victory by Kluz over Bachowski.

(5) Local Union 7496

This Local Union, which is comprised of six members,

failed to conduct an election. Our investigation dis-

closed that these members were eligible to vote in the

election and thus, the six members were denied the right

to vote in violation of Section 401 (e) of the Act. For

purposes of possible effect on outcome, it is assumed

that all six members would have voted had an election

been conducted and that all six members would have

voted for Bachowski.

(6) Local Union 7749

This Local Union, consisting of 25 members, failed to

schedule and conduct an election. Although there ap-

peared to be voter apathy in this Local Union, it was

concluded that these 25 members had been denied the

right to vote. Hence, the figure of 25 was assigned as

the potential “effect on the outcome.”

22 DUNLOP v. BACHOWSKI

(7) Local Union 120665

The 51 members of this Local Union work at four

separate employer locations. The investigative files in-

dicated that 38 members at three of those sites were not

_ hotified of the election in violation of Section 401 (e) of

the Act. In addition, the investigation disclosed that

ballots were distributed and received in such a manner

that secrecy could not be maintained. All 13 members

voting at this location cast their ballots in favor of

Kluz and thus it was considered that these 13 ballots may

have been affected as a result of this violation. Thus,

in this Local Union, a total potential effect on outcome

of 51 votes was derived by assuming that the 38 mem-

bers not notified would all have voted and cast their

ballots in favor of Bachowski, and that the 13 members

were influenced by the non-secret conditions to vote for

Kluz.

(8) Local Union 12059 :

This Local Union consists of approxima: mem-

bers employed at two separate locations. The investiga-

tion revealed that nine members at one of these locations

were not mailed notices of the election as required. The

file further revealed that these members were in fact

eligible to vote. Thus, it was concluded that the out-

come of this election may potentially have been affected

to the extent of eight votes as a result of this violation,

since one of the nin® members who was not notified of

the election actually voted.

(9) Local Union 13972

The investigative file disclosed that five members of

this Local Union who were working at a plant site re-

moved from the remainder of the local members were

denied an opportunity to vote in this election. The files

DUNLOP v. BACHOWSKI 23

disclosed that the Election Committee failed to provide

facilities for these members. Thus, five votes may have

been affected by the violation in this Local Union.

(10) Local Union 14210

A review of the investigative file in this Local Union

disclosed two violations. The evidence indicated that

one member was denied the right to vote 3, the Local

failed to provide voting facilities for a member who was

unable to reach the polls because of a work conflict. In

addition, the evidence indicated that an ineligible mem-

ber was permitted to vote in violation of Section 401 (e)

of the Act. Thus, two members were potentially affected

by the violations that occurred in this Local Union.

(11) Local Union 14661

In this Local Union, the investigation revealed that

certain members marked their ballots in such proximity

to the registration table that secrecy of the ballot may

_have been compromised. The investigation also revealed

evidence that one member saw how another member

voted. The result in this election was Kluz 34, Bachow-

ski 20, and Brummitt 11. The possible effect on outcome

was 14, the margin of victory by Kluz over Bachowski.

(12) Local Union 14768

The files reveal that although an election was con-

ducted in this Local Union, no return sheet was sub-

mitted to the International. The evidence indicated

that because the Financial Secretary thought he had not

conducted the election properly, he destroyed all records

and did not submit a return. Thus, the 17 members

casting ballots in this election were denied a right to

vote in violation of Section 401 (e) of the Act. (It

should be noted that the union purports to have evidence

of the actual return in this Local Union, which showed

Kluz winning by one vote.) '

24 ’ DUNLOP v. BACHOWSKI

(13) Local Union 14800

A review of the investigative files on Local 14800 re-

vealed the existence of three violations. The evidence

very strongly indicated that the local failed to provide

adequate safeguards to insure a fair election in violation

of Section 401 (c) of the Act. There was evidence that

ballots were submitted for some 40 members who did not

-in fact vote in the election. Moreover, individuals other

than election tellers had access to and handled ballots

* without adequate supervision. In view of the lack of

adequate ballot control and the strong indication of ballot

fraud in this Local Union, it was concluded by the Secre-

tary that all 110 votes received by Kluz should be con-

sidered as possibly having been affected by this violation.

(118 votes were cast in the election with Bachowski re-

ceiving 3 and Brummitt receiving 5.) The evidence also

indicated that 78° members at three employer locations

were not adequately notified of the election in violation

of Section 401 (e) of the Act. Since 38 of these mem-

bers voted, only 40 members may be considered for pur-

poses of effect on outcome (the 38 who voted were included

in the figure of 110 above). Finally, the file disclosed that

funds of Local Union 14800 were expended for a cam-

paign rally supporting the candidacy of Mr. Kluz. Evi-

dence tends to indicate that 50 to 100 members attended

the party, including some officers and members of locals

other than 14800. Thus, using maximized figures, 100

votes may have been affected by this violation (in addi-

tion to the total number of members already included

above). However, we would note that the union has

indicated that many members attending this party were

ardent Kluz supporters. Thus, the illegal expenditure

would have had little effect, if any, on their voting pref-

erence. We were unable to identify the majority of the

members of the party; the union contends that most of

» ,

DUNLOP v. BACHOWSKI 25

the members in attendance were members of Local Union

14800, whose entire vote was regarded as possibly affected

by other violations as noted above.

(14) Local Union 14820

The investigative file in this Local Union. indicated

that there was a failure to maintain secrecy of the ballot

in violation of Section 401 (a) of the Act, as well as a

failure to adequately notify members of ‘the election in

violation of Section 401 (e) of the Act. The investiga-

tion disclosed that 22 ballots cast in this election were

signed on the back by the voting member—an obvious

violation of secrecy. Although officers of the Local claim

they were not aware of this until a subsequent review

of the ballots with a Department of Labor investigator,

. this does not cancel the violation, which may have

affected 22 votes. The evidence also indicated 39 mem-

bers at two employer sites were not ‘notified of the elec-

tion. Assuming that all 39 would have voted and that

they would have cast their votes for Bachowski, 39 votes

may have been affected by this violation. Finally, the

file disclosed that through inaccurate tallics by the re-_-

sponsible local union officers, Bachowski received one less

vote than his entitlement while Kluz received one addi-

tional vote. Hence, an extra two votes must be con-

sidered as having been affected by the Local’s failure to’

properly credit the votes to the proper candidates.

(15) Local Union 14946 |

The investigative file in this Local Union revealed that

ballots were marked on tables by voters in close prox-—

imity who were able to observe how other members

were voting their ballots. Thus, the Local failed to ob-

serve secrecy of the ballot as required by Section 401 (c)

of the Act. Since the margin of victory by Kluz over

26 DUNLOP v. BACHOWSKI

Bachowski was 18, 18 votes may have ‘been affected by

the existence of this violation.

(16) Local Union 16370

This Local Union failed to provide adequate ‘safe-

guards to insure a fair election in that the ballot control

was less than desirable. Persons not authorized handled

_ ballots at one or more times throughout the period of the

election, Although additional investigation failed to dis-

close any evidence that would indicate other irregulari-

ties such as fraud or ineligible members voting, it was

nevertheless concluded that this lack of adequate safe-

guards may have affected ten members in this local—the

margin of votes achieved by Kluz over Bachowski. '

(17) Local Union 15420

Evidence disclosed that this Local Union failed to

maintain adequate safeguards to insure a fair election.

Union records indicated that Kluz received 15 votes,

Bachowski none, and Brummitt one. _However, the Sec-

| retary’s investigation revealed that only 13 members

were listed as voting. It was also learned that this local

did not maintain adequate control of the ballots a fact

which may in no small part account for the deviation

between the number of votes indicated as having been

cast and the number of members actually voting. Thus,

the Secretary of Labor concluded that all 16 members

voting in this election may have been affected by the

local’s failure to provide adequate safeguards to insure a

fair election. —

To recapitulate, we are setting forth below a list of the

Locals in which violations occurred and the votes which

may potentially have been calculated to a theoretical

probability and represent the maximum number of votes

involved. bad

‘*

DUNLOP v. BACHOWSKI 27

. Local Union 2203 — 10 votes

. Local Union 2789 —249 votes

. Local Union 3186 — 16 votes

. Local Union 3713 —123 votes

. Local Union 7496 — 6 votes

. Local Union 7749 — 25 votes

. Local Union 12055— 51 votes

. Local Union 12059— 8 votes

. Local Union 13972— 5 votes

10. Local Union 14210— 2 votes

11. Local Union 14661— 14 votes

12. Local Union 14768— 17 votes

13. Local Union 14800—250 votes

14. Local Union 14820— 63 votes

- 15. Local Union 14945— 18 votes

16. Local Union 15370— 10 votes

17. Local Union 15420— 16 votes

By adding the total of the votes set forth in the local

unions above, the election for the position of District

Director, District 20, may theoretically have been af-

fected by “violations disclosed through investigation. to

the extent of 884 votes. Since the margin of victory by

which Mr. Kluz prevailed over Mr. Bachowski was 907

votes ** it was the Secretary of Labor’s conclusion that

the violations which occurred could not have affected the

outcome of the election. Moreover, we would note the

Secretary like any other litigant must be cognizant of all

factors entering into prosecution of a Title IV case. In

this regard, the union has raised serious question con-

cerning Bachowski’s invocation of his internal union

remedies, notably his failure to carry a complaint to the

SCOnNoOnrh OND =

*® The results in the election for the position of District Director,

District 20 were as follows: Kluz—10,558 votes; Bachowski—9,651

votes; Brummitt—3,566 votes.

28 ' DUNLOP v. BACHOWSKI

International Tellers whose function is to rule initially

upon the validity of election protests. Mr. Bachowski

chose to bypass this step and to carry his protest directly

to the Executive Board.

The plaintiff has correctly alleged in this complaint

and the Secretary has confirmed through investigation,

that certain violations of Title IV occurred in the elec-

tion for District Director for District 20. However, the

Secretary concluded, after review of the investigative

findings that the votes which may have been affected

by the violations could not have altered the outcome of

the election. In Wirtz v. Local 153, Glass Bottle Blow-

ers Association, 389 U. S. 463 (1968) the Supreme Court.

noted at page 427 that:

The Secretary may not initiate an action until his

own investigation confirms that a violation of sec-

- tion 401 probably infected the challenged election.

(Emphasis added.) :

Thus, the finding of violations by the Secretary of Labor

does not mature into an actionable case unless he has

evidence that such violations “probably infected” the

election in question. In this case, the Secretary found

violations, but concluded that they did not affect the

outcome of the election.

CONCLUSION

The extensive investigation conducted by the Depart-

ment of Labor focused, among other things, on all the

specific matters raised by Mr. Bachowski. As has been

shown above, certain violations were disclosed in the

conduct of this elettion, however, these violations could

not have affected its outcome. Therefore, it is submitted

that the Secretary of Labor in arriving at his determina-

tion not to file suit to set aside the District 20 election

DUNLOP v. BACHOWSKI 29

properly discharged his statutory duties under Title IV

of the Act.

/s/ Richard L. Thornberg

Assistant United States Attorney

WiLu1aM J. KILBerG

Solicitor of Labor

BeaTe BiocH

Associate Solicitor

Louis WEINER

Regional Solicitor

STEPHEN ERNST

Rospert K. SALYERS

Attorneys

U.S. Department of Labor

of Counsel

Filed: November 11, 1974.

SA Cry

SUPREME COURT OF THE UNITED STATES

No. 74-466

John T. Dunlop, Sec-

retary of Labor, On Writ of Certiorari to the

Petitioner, United States Court of Appeals

v. for the Third Circuit.

Walter Bachowski.

[June 2, 1975]

Mr. Caer Justice Burcer, concurring.

I join the opinion ofthe Court with the understanding

that the Court has fashioned an exceedingly narrow

scope of review of the Secretary’s determination not to

bring an action on behalf of a complainant to set aside

an election. The language and purposes of the Labor

Management Reporting and Disclosure Act of 1959, 29

U.S. C. § 481, have required the Court to define a scope

of review: much narrower than applies under 5 U. S. C.

§ 706 (2) (A) in most other administrative areas. The

Court’s holding must be read as providing that the de-

terminatiion of the Secretary not to challenge a union

election may be held arbitrary and capricious only where

the Secretary’s investigation, as evidenced by his state-

ment of reasons, shows election irregularities that af-

fected its outcome as to the complainant, Wirtz v. Glass

Bottle Blowers, 389 U. S. 463, 472 (1968), and that not-

withstanding the illegal conduct so found the Secretary

nevertheless refuses to bring an action and advances no

rational reason for his decision.

SUPREME COURT OF THE UNITED STATES

No. 74-466

John T. Dunlop, Sec-

retary of Labor, On Writ of Certiorari to the

Petitioner, United States Court of Appeals

v. for the Third Circuit.

Walter Bachowski.

[June 2, 1975]

Mr. Justice REHNQUIST, concurring in part and dis-

senting in part.

The parties to this case will have to be excused if

they react with surprise to the opinion of the Court.

Instead of deciding the issue presented in the Govern-

ment’s petition for certiorari, the Court decides an issue

about which the parties no longer disagree; to compound

the confusion, the reasoning adopted by the Court to

resolve the issue it does decide is quite unusual unless it

is intended to foreshadow disposition of the issue upon

which the Court purports to reserve judgment.

I

After exhausting intraunion remedies, respondent filed

a complaint with the Secretary of Labor alleging viola-

tions of § 401 of the Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA), 29 U. S. C. § 481.

The Secretary conducted an investigation and concluded

that no civil action to set aside the challenged election

was warranted. Respondent was so notified* and he

*Respondent was notified by telephone that the Secretary had de-

cided not to file suit to set aside the election. App. 5A. On the day

respondent filed his complaint, the Labor Department sent him

2 DUNLOP v. BACHOWSKI

then sought to challenge the Secretary’s refusal to file

suit. The complaint alleged that the Secretary had re-

fused to file suit, “{n]otwithstanding the fact that the

- Defendant Secretary’s investigation has substantiated the

[respondent’s] allegations,” and that respondent “has

not been given a statement of reasons why the Defend-

. ant Secretary will not file suit.” App.5A. Respondent

asked the court to order the Secretary to file suit to set

aside the election and “direét the Defendant Secretary to

make available for examination by the [respondent] all

evidence it has obtained concerning its investigation of

the aforesaid election.” App. 6A. The Court of Ap-

peals, reversing the District Court, héld that the Secre-

tary’s refusal to file an action to set aside the election

was judicially reviewable. In considering “the proper

scope of such judicial review,” the Court of Appeals con-

cluded that the Secretary should prepare a statement of

reasons, presumably to assist in judicial review and also

to ensure that proper deference was paid to the Secre-

tary’s determinations. 502 F. 2d 79, 88-89 (CA3 1974).

Notwithstanding contrary verbiage, the approach of

this Court is not materially different. The Court ex-

pressly reserves “the question whether the District Court

is empowered to order the Secretary to bring a civil suit

against the union to set aside the election,” ante, p. 14,

but its justification for ordering the Secretary to provide

a statement of reasons appears premised upon an affirm-

ative disposition of the reserved question: the Secretary

a letter notifying him of the Secretary’s decision in the following

manner:

“Pursuant to Sections 402 and 601 of the Act, an investigation

was conducted by this Office. Based on the investigative findings,

it has been determined, after consultation with the Solicitor of

Labor, that civil action to set aside the challenged election is not

warranted. We are, therefore, closing our file in this case as of this

date.” Brief for Respondent, at 1A.

DUNLOP v. BACHOWSKI 3

must provide a statement of reasons “to enable the re-

viewing court intelligibly to review the Secretary’s de-

termination,” ante, p. 10. I cannot subscribe to judicial

reasoning of this convoluted sort.

Il

In the first place, whether or not a statement of rea-

sons must be supplied by the Secretary is not an issue

presented by this case. The single question presented

by the Secretary’s petition for certiorari is:

“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.” Petition for

Certiorari, at 2.

The Secretary did not seek review of the holding by the

court of appeals that a statement of reasons was required

and instead proceeded to comply with that portion of

the appellate gfurt’s holding by filing the statement of

v reasons that is appended to the opinion of the Court.

As the Secretary states: “We do not contest this portion

of the court’s holding.” Brief for Government. at 5 n. 2.

Such a concession appears well founded, although not

for the reasons stated by the Court. Independent of

any connection with judicial review, a statement of rea-

sons is required by statute. The Administrative Proce-

dure Act (APA), which is applicable to LMRDA, 29

U.S. C. § 526, states:

“Prompt notice shall be given of the denial in

whole or in part of a written application, petition,

or other request of an interested person made in

connection with any agency proceeding. Except in

affirming a prior denial or when the denial is self-

explanatory, the notice shall be accompanied by a

RIOR: Bey com OS SesEREey =e ETE

4 DUNLOP v. BACHOWSKI

brief statement of the grounds for denial.” 5

U.S. C. § 555 (e).

See S. Doc. No. 248, 79th Cong., 2d Sess., 206, 265

(1946). Here, where the Secretary is charged with the

responsibility of enforcing the rights of individual union

members and has established a procedure for the filing

of a complaint with him by such members, § 555 (e)

would appear to be applicable.

. The acquiescence of the Secretary has removed this

issue from the case. Since the majority persists in de-

ciding it, I concur in the result on the basis of the APA,

which is not dependent upon the availability of judicial

review. This ground, in my view, furnishes a sounder

reason for concluding that a statement of reasons must

be furnished than does the reasoning of the Court.

III

It remains to consider the only question presented by

the Government’s petition for certiorari: Is judicial re-

view available at the behest of respondent to force the

Secretary to file a civil action to set aside the union

election?

Respondent does not rely ‘upon+any, provision of

LMRDA as authorizing this post-election law suit, for

indeed there is none. Instead respondent relies upon

the APA judicial review provisions, 5 U. S. C. §§ 701-

706. “App. 3A. The judicial review provisions of the

APA do not apply, however, “to the extent that (1)

statutes preclude judicial review; or (2) agency action

is committed to agency discretion by law.” 5 U.S. C.

§-701 (a). ~ - :

I agree with the Court that 29 U. S. C. § 483 does not

preclude judicial review of the kind sought in this case.

That section expresses the congressional judgment that

the civil action filed by the Secretary under 29 U. S. C.

DUNLOP v. BACHOWSKI 5

§ 482 (b) shall be the exclusive remedy “for challenging

an election already conducted.” Respondent recognizes

that this Court’s decision in Calhoon v. Harvey, 379

U. S. 134 (1964), precludes him from proceeding directly

against the union, a result that I believe is compelled by

§ 483. But § 483 is silent about the availability of re-

lief to force the Secretary to pursue the remedy that is

exclusively his, and under this Court’s decisions a prohi-

bition of judicial review is not to be lightly inferred.

Abbott Laboratories v. Gardnér, 387 U. S. 136, 140-141

(1967).

I reach a contrary conclusion, however, with regard to

the second clause of § 701 (a). It seems to me that prior

decisions of this Court establish that the Secretary’s

decision to file or not to file a complaint under § 482 is

precisely the kind of “agency action . . . committed to

agency discretion by law” exempted from the judicial

review provisions of the APA.

In LMRDA cases, this Court has repeatedly recognized

the exclusive role in post-election challenges played by

the Secretary. In Calhoon v. Harvey, 379 U. S. 134,

140-141 (1964) (footnote omitted), we said:

“Section 402 of Title IV, as has been pointed out,

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 Title IV.

Upon complaint the Secretary investigates and if he

finds probable cause to believe that Title IV has

been violated, he may file suit in the appropriate

district court. It is apparent that Congress decided

to utilize the special knowledge and discretion of the

Secretary of Labor in order best to serve the public

interest.... In so doing Congress, with one excep-

tion not here relevant, decided not to permit indi-

;

6 DUNLOP v. BACHOWSKI

viduals to block or delay union elections by filing

federal-court suits for violations of Title IV. Reli-

ance on the discretion of the Secretary is in harmony

with the general congressional policy to allow unions

great latitude in resolving their own internal contro-

versies, and, where that fails, to utilize the agencies

of Government most familiar with union problems

to aid in bringing about a settlement through dis-

cussion before resort to the courts. Without setting

out the lengthy legislative history which preceded

the passage of this measure, it is sufficient to say

that we are satisfied that the Act itself shows clearly

by its structure and language that the ‘disputes here,

basically relating as they do to eligibility of candi-

dates, for office, fall squarely within Title IV of the

Act and are to be resolved by the administrative and

judicial procedures set out in that Title.” (Em-

phasis added.)

See also Wirtz v. Bottle Blowers Assn., 389 U. S. 463,

473-474 (1968). More recently, in Trbovich v. United

Mine Workers, 404 U. S. 528 ( 1972), we said, in the

context of claims presented by an intervenor that had

not been included in the Secretary’s complaint:

“With respect to litigation by union members,

then, the legislative history supports the conclusion

that Congress intended to prevent members from

pressing claims not thought meritorious by the Sec-

retary, and from litigating in forums or at’ times

different from those chosen by the Seer: tary.

“[W]e think Congress intended to ee the

union from any complaint that did not appear meri-

torious to both a complaining member and the Secre-

tary. Accordingly, we hold that in a post-election

enforcement suit, Title IV imposes no bar to

ORR ar ae

DUNLOP v. BACHOWSKI 7

intervention by a union member, so long as that

intervention is limited to the claims of illegality

presented by the Secretary’s complaint.” Jd., at

536, 537 (footnote omitted) (emphasis added).

The exclusivity of the Secretary’s role in the enforce-

ment of Title IV rights is no accident. It represents a

conscious legislative compromise adopted to balance two

important but conflicting interests: vindication of the

rights of union members and freedom of unions from

undue harassment. See Wirtz, supra, 389 U. S., at 470-

471. This Court has recognized unreviewable discretion

both in the labor area, Vaca v. Sipes, 386 U. 8. 171, 182

-41967), and in other civil areas, The Confiscation Cases,

7 Wall. 454 (1869); FTC v. Klesner, 280 U. S. 19, 25

(1929). The Court of Appeals sought to distinguish

this line of cases on the grounds that it involved “vindi-

cation of societal or governmental interest, rather than

the protection of individual rights,” 502 F. 2d, at 87.

While the Secretary points out the artificiality of this

purported distinction and refutes it as applied to these

cases, Brief for Petitioner, at 30, a more basic response is

that such considerations provide no basis for contraven-

tion of legislative intent:

“Congress for reasons of its own decided upon the

method for the protection of the ‘right’ which it

created. It selected the precise “machinery and

fashioned the tool which it deemed suited to that

end. ... All constitutional questions aside, it is

for Congress to determine how the rights which it

creates shall be enforced.” Switchmen’s Union v.

_ National Mediation Board, 320 U. S. 297, 301

(1943).

The Court recognizes the power of these arguments,

if only by understatement, when it acknowledges that

any argument for judicial review of the Secretary’s deter-

8 DUNLOP v. BACHOWSKI

mination “obviously presents some difficulty in light of

the strong evidence that Congress deliberately gave exclu-

sive enforcement authority to the Secretary.” Ante,

p. 14 (footnote omitted). In my view the parties to this

litigation are entitled to adjudication of the issue upon

which this Court granted certiorari. I would accordingly

reverse the judgment of the Court of Appeals insofar as

it held that the Secretary’s refusal to institute an action

under 29 U.S. C. § 482 is judicially reviewable under the

provisions of the APA, 5 U. S. C. §§ 701-706.

Pen Ee Ie