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In this case, a union member contends that he was suspended from union membership for ten years in violation of his due process rights under the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"). The member, an intra-union opponent of the union president, was brought up on charges filed by that president, and was tried before an advisory hearing panel of political supporters of the president, who were appointed by the president. After a trial in which the member was not permitted to present witnesses, the hearing panel recommended disciplinary action to the president who made the final decision on the charges that he himself had brought. The district court granted summary judgment after rejecting several individual claims based on the union constitution and statutory due process, but without ever focusing on the member's basic contention that a union procedure that unites in the union president the power to act as both prosecutor and judge violated his due process right to a full and fair trial.

The district court had jurisdiction under 28 U.S.C. Secs. 1331 and 1337 and 29 U.S.C. Sec. 412. On May 8, that court granted summary judgment in favor of defendants. JA 440-450. The notice of appeal was filed on June 5, 1995. JA 451. This Court has jurisdiction under 28 U.S.C. Sec. 1291.

May a union member who is an intra-union opponent of the union president, be disciplined based on a trial on charges, preferred by the president, under a procedure unilaterally selected by the president, before a hearing panel appointed by the president and composed entirely of the president's own political supporters, which then makes recommendations to his accuser who, in turn, makes the ultimate decision on the charges?

The Labor Management Reporting and Disclosure Act provides as follows, in pertinent part:

Section 3, 29 U.S.C. Sec. 402:

(j) A labor organization is deemed to be engaged in an industry affecting commerce, if it --

(1) is the certified representative of employees under the National Labor Relations Act, as amended, or the Railway Labor Act, as amended; or

(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers with in the meaning of paragraph (1) or (2); or

SAFEGUARDS AGAINST IMPROPER DISCIPLINARY ACTION. -- No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

A. Facts.

At the time this action arose, plaintiff-appellant Robert Wildberger was employed as a program analyst by the United States Small Business Administration ("SBA"), and was President of Local 2532 and Council 228 of defendant-appellee American Federation of Government Employees ("AFGE"), as well as being a member of AFGE. JA 12 Par. 1. Local 2532 represents employees at the SBA headquarters in Washington, D.C., while Council 228 was comprised of all AFGE locals representing employees of SBA across the nation. AFGE is a labor organization which, itself and through local labor organizations that it has chartered, represents both government and private sector employees in collective bargaining. Defendant-appellee John N. Sturdivant is the President of AFGE. JA 12, Pars. 2, 3.

Over the course of 1989, 1990, and 1991, Wildberger emerged as a severe critic of Sturdivant's performance as AFGE President. The merits of these disputes between Wildberger and Sturdivant are not at issue, but their existence, which is not in dispute, explains the background leading to the disciplinary action that is before the Court. For example, Sturdivant imposed a trusteeship on Council 228, and Wildberger penned several severe criticisms of this action. JA 92-93, 115-123. Wildberger was admittedly the major player in this intra-union conflict. JA 180-182. Similarly, in 1989 and 1990, Wildberger wrote a series of letters to SBA management alleging that AFGE was colluding with SBA in suppressing the rights of SBA employees, going so far as to accuse Sturdivant of participating in a RICO scheme against the membership. JA 124-128. In 1990, the SBA's management complained to Sturdivant that Wildberger's accusations made it difficult to maintain friendly labor relations, JA 129, and Sturdivant, who had been elected President of AFGE the previous August, following what Sturdivant conceded had been a "bloody" campaign against then-incumbent Kenneth Blaylock, JA 174-175, responded that he would to try to do what he could. JA 130. And in May, 1989, Wildberger wrote to Sturdivant stating that he intended to run for AFGE President against Sturdivant in the 1991 presidential election. JA 237-238.

The month after Sturdivant received this warning, he began an investigation into the affairs of AFGE Local 2532 that culminated in the discipline against Wildberger that is at issue in this appeal. Although Sturdivant has since claimed that this investigation was actually a response to allegations from members of Local 2532, JA 190, Sturdivant did not tell Wildberger of the allegations at the time; indeed, he deliberately withheld this fact from Wildberger. Instead, Sturdivant's staff placed a hold on all checks and monies due Local 2532 from defendant AFGE, and, in July 1989, Sturdivant ordered Wildberger to attend an audit of Local 2532's financial records. JA 39 Par.7, 169, 187-189. (See Footnote 1)

This investigation, conducted by AFGE staff operating under Sturdivant's direction, continued from 1989 until charges were brought against plaintiff in 1991. JA 196. Throughout the course of this investigation, Sturdivant and his staff received information about plaintiff through telephone calls, correspondence, discussions, and meetings. JA 197-199, 205. At no time did Sturdivant ever discuss the subject matter of the investigation with Wildberger himself, because Sturdivant deemed it improper to have contact with an individual about whom he would eventually have to make disciplinary decisions. JA 228-229. (See Footnote 2) However, these scruples did not keep Sturdivant from conferring with the accusers or the members of his staff who were conducting the investigation, JA 198-199, or with a Vice-President of AFGE, David Schlein, who was apparently among Wildberger's accusers. JA 198, 209.

Through this exhaustive investigation, Sturdivant was able to find four alleged violations of the AFGE constitution, of which he accused Wildberger by letter dated June 3, 1991. JA 239-242. First, he charged Wildberger with usurping authority that had been assigned to AFGE Local 3841 by purporting to proceed with an arbitration on behalf of a member of that local. Second, he charged that Wildberger had used union funds to pay for the rental of an apartment for a woman named Rita Khadoo (who later married Wildberger). Third, he accused Wildberger of writing a letter to the Administrator of the SBA making unsupported charges of criminal conduct (the same letter made similar accusations against Sturdivant himself), and further trying to intimidate a local union member into withdrawing from a bargaining committee by threatening disciplinary proceedings against her. Fourth, he accused Wildberger of improperly transferring money from Council 228 to Local 2532 for payment of the latter's legal fees.

In its opinion granting summary judgment below, the district court stated that appellant "does not assert that the misconduct did not occur." JA 441-442. It is true that, because the Supreme Court has held that the due process clause of the LMRDA does not give courts the authority to decide whether there is sufficient evidence of a disciplinable offense, Boilermakers v. Hardeman, 401 U.S. 233 (1971), Wildberger did not attempt to persuade the district court of his innocence of the charges. That does not mean, however, that Wildberger concedes that the misconduct occurred. Far from it; he strongly denies that any of the charges were true. But the seriousness of the charges apparently influenced the decision below, and they will certainly be prominently discussed in appellees' brief in this Court. Therefore, we here outline Wildberger's substantive response to the two charges of which he was convicted, while acknowledging that this Court is not the proper forum for a retrial of those charges.

With respect to the charge of misusing union funds (the principal charge of which he was convicted), appellant's claim to the union was that the apartment was rented solely for union purposes. He showed that Ms. Khadoo did not live there (in fact, she had her own residence elsewhere), and that the reason why the lease and the telephone were kept in her name was to deceive the landlord which forbade the use of the apartment for commercial purposes. JA 345. Although this may not have been fair to the landlord, it actually saved the union money, because it enabled the union to obtain office space at a much cheaper rate than it would have had to pay to a commercial landlord.

With respect to the charge of making unsupported criminal charges against fellow union members in a letter to an SBA manager and intimidation of a member (Anita Irick) by the threat of disciplinary charges, Wildberger presented the actual letter that he had written to the SBA. JA 124-128. The charge was based on a redacted letter, which purported to eliminate the names of the members that Wildberger had accused, JA 272-276; the actual letter showed that the redacted portion did not identify any AFGE members. And on the issue of intimidation, Wildberger attempted to show (1) that the persons who pursued the charges against Ms. Irick were actually other officers of Local 2532, who had not been accused only because they had changed sides to join in the accusations against him and so had been spared charges; (2) that he had good reason to believe that the accusations against Ms. Irick were true, JA 351-352; and (3) that it was not uncommon in AFGE politics for officers to threaten disciplinary action against their adversaries, as indeed Sturdivant had repeatedly threatened to act against Wildberger and members of his local. E.g., JA 261.

AFGE's normal intra-union disciplinary procedure contains ample protections against politically motivated charges. Although appellant does not pursue in this Court his argument below that AFGE violated its own constitution by not following this procedure, the normal approach is nevertheless worth noting in order to appreciate both the protections that Sturdivant was able to avoid by choosing to file charges directly against Wildberger, and why it was thus so inappropriate for Sturdivant himself to sit in judgment of his own charges.

In the normal course, a charge against a local union member or officer must first be referred to an impartial "committee of investigation," consisting of members of the accused's local. JA 162. This committee reviews all the evidence, meets with the accuser and the accused, and makes a preliminary determination whether there is a sufficient basis for believing that a punishable offense has occurred that warrants subjecting the member to the rigors of a disciplinary trial. Id.; see generally JA 243-249. Once that determination is made, a new impartial panel is constituted, for which the members of the investigative panel are ineligible, to conduct a trial. Id. Finally, the decision of the trial panel must be approved by a vote by the members of the local union itself. AFGE touts the committee of investigation process as an important protection against misuse of the disciplinary procedure by politically motivated charges. JA 201-202, 250-252. Indeed, the process is considered so important that one of the charges on which Wildberger's ten-year suspension from membership was based was that he pursued discipline against a union member without a valid investigation. JA 52.

Sturdivant decided, however, to short-circuit this procedure. First, he determined that the evidence of violation was sufficiently clear that it would be a waste of resources to conduct an impartial investigation, JA 204-206; as he testified at his deposition, JA 195-196, the investigation conducted by his own staff, under his direction, played the role ordinarily assumed by an impartial committee of investigation. Second, he decided not to have his charges against Wildberger tried by a committee of local union members, but rather to appoint his own trial committee, exercising a power afforded him by the AFGE Constitution whenever he determines that conditions in the local union would not permit a fair trial to occur. JA 159, 223-224. However, Sturdivant did not issue a formal determination to this effect or a written statement explaining his action; he claims that it was simply implicit in his decision to appoint his own trial committee. JA 224. Moreover, although AFGE procedures require that this decision be based on a "showing" by the charging or charged party, JA 245, he acknowledged at his deposition that he gave Wildberger neither any advance warning that he was considering these steps, nor any opportunity to present reasons to the contrary. JA 227. (See Footnote 3)

Although Sturdivant's June 3 letter indicated that it was his intention to appoint a trial committee of his own, he did not take this step immediately. JA 207-208. In an apparent effort to preempt the charges filed against their president, members of Local 2532 elected their own trial committee, consisting of members of the local union. JA 94-95. This trial committee then scheduled a hearing, and formally notified Sturdivant of the date and place of the hearing. JA 260. Although Sturdivant's office received this notice by certified mail, JA 95, 210, 212, it simply referred the letter to the AFGE Legal Department; at no time before the local trial date did Sturdivant object to the holding of the local trial. JA 212-213. Nor did Sturdivant appear at this trial, although Wildberger himself did appear to testify in his defense. JA 40 Par. 12, admitted at JA 170; JA 95; Bareño Affidavit (Exhibit 4 to Docket No. 2), Par. 2. The local trial committee adopted a set of proposed findings and conclusions that Wildberger had prepared, dismissed the charges, and sent a copy to Sturdivant under cover of a letter dated June 17. JA 253-359. This decision was approved by the membership of Local 2532 at regularly scheduled meetings in both July and August, 1991. JA 95.

After receiving this adverse decision, Sturdivant wrote back to local trial committee chair Sandra Mont on June 21, asserting (incorrectly) that no notice had been given of the local trial. (See Footnote 4) In his reply to Ms. Mont, JA 261, Sturdivant also threatened to initiate disciplinary action against the trial committee chair, JA 40 Par. 13, admitted at JA 170-171, and she promptly wrote back to disassociate herself from the trial. JA 95.

Only at this point, on June 27, did Sturdivant appoint a trial committee to hear his charges against Wildberger. JA 265-270. At his deposition, JA 208-209, Sturdivant testified that he was unsure whether he had selected these members himself, or whether their names had been put forward by AFGE Vice President David Schlein, who was one of the national officers who was involved in conducting the investigation of Wildberger that led to the charges. JA 198, 209. In any event, the evidence was that all of the three trial committee members were strong political supporters of Sturdivant himself.(See Footnote 5)

Despite his victory at the local level, Wildberger still had to prepare to defend himself against the impending national trial. First, he argued that no trial could be held at all, asserting the validity of his local union trial and invoking the double jeopardy protections in the AFGE Constitution. JA 96, 132-135. Second, Wildberger asked Sturdivant to provide him with various documents in the possession of the national union which, he argued, would show his innocence of the charges against him; for each category of documents requested, Wildberger explained how they bore on his defense. JA 132-141. For example, in support of his defense to the charge of misusing local funds to rent an apartment, Wildberger asked for documents which, he argued, would show that it was quite common for AFGE locals and councils to rent offices in residential buildings using similar devices. This demand for documents was denied, on the ground that Wildberger was only entitled to examine documents that Sturdivant introduced at the hearing in support of the charges, not documents that might prove exculpatory. JA 96.

Despite these objections, Sturdivant's trial committee convened to conduct the first two days of Wildberger's trial on July 30 and 31, 1991. Sturdivant did not attend personally, but sent his Deputy General Counsel, Charles Hobbie, Esquire (who also represents AFGE here) and AFGE Vice-President Schlein (who had helped pick the trial committee) to prosecute the charges. JA 279. Wildberger appeared and reiterated his request for documents from Sturdivant, asking the trial committee to order Sturdivant to furnish him with these materials, and to postpone the trial until the materials were received. E.g., Defendants' Exhibit 63, at 15, 19, 22, 32-33, 45, 71, 82. When this request was rejected, Wildberger, consistent with his position that the committee was a kangaroo court that had no jurisdiction in light of his acquittal by the local trial committee, declined to cross-examine the witnesses against him. E.g., id. 69, 70, 88.

The proceedings were interrupted when, during the lunch period on the second day, one of the members of the trial committee had to leave suddenly because his wife had been hospitalized. JA 306. At that point in the proceeding, Sturdivant's representatives had presented all of their evidence, but Wildberger had not had an opportunity to present his position; when the proceedings broke for lunch, it was understood that Wildberger's presentation would occur after lunch. JA 304. When the trial resumed after the lunch break, Wildberger objected to conducting any further proceedings without a full trial committee, citing a provision of the AFGE Constitution that forbade trials without at least three members. JA 307. According to Wildberger, it was crucial that all three members witness his demeanor as he walked the trial committee through an affidavit and exhibits that he desired to present giving his own side of the story, and delivered his closing argument. Mr. Hobbie conceded that this might be a valid objection, and urged the committee to postpone the completion of the hearing to ensure that Wildberger would not have a procedural basis for attacking the outcome of the trial. JA 310-311. Wildberger stated at that time that he would not present any other testimony once the trial proceedings resumed. The trial committee then adjourned, with the intention of reconvening to hear Wildberger's side at a time when all three committee members could be present.

Before the trial could be reconvened, however, two events of significance occurred. First, AFGE stripped Wildberger of his intra-union offices, based in part on efforts undertaken by Wildberger to discourage members of Sturdivant's trial panel from continuing the proceedings against him. Second, Wildberger filed this lawsuit, seeking a restraining order or a preliminary injunction against removal from office and against any further disciplinary proceedings. At a hearing on this motion, the district judge declined to issue a temporary restraining order, and cautioned Wildberger to cooperate with the union's procedures in exhausting his intra-union remedies. JA 46.

Taking this caution to heart, Wildberger wrote to the chairman of Sturdivant's trial committee, Stan Gordon, stating that he would present witnesses, and identifying adverse witnesses whom he wished to call and cross-examine. JA 46, 49. However, when Wildberger tried to present testimony in defense of the charges at the hearing on September 30, 1991, JA 319, 322-323, Mr. Hobbie objected, asserting that, during the July proceedings Wildberger, had waived any right to present testimony, JA 323, but ignoring the fact that the very reason for the tribunal to reconvene was to hear Wildberger's presentation. Granting this objection, however, the committee received only Wildberger's affidavit and attached exhibits, and allowed him to present only a closing argument. JA 324-325.

On October 29, 1991, the committee recommended to Sturdivant that he uphold the second charge against Wildberger (involving rental of the apartment) and a portion of the third charge (Wildberger's alleged intimidation against a member of his local), but that the remaining charges be dismissed. JA 46-47, 54-58. Based on these conclusions, the committee recommended that Wildberger be suspended from AFGE for ten years. Id. Without giving Wildberger any opportunity to object to these recommendations, Sturdivant adopted them, but added a requirement that Wildberger repay the sums expended on the apartment. JA 42 Pars. 20-21, admitted at JA 173; JA 46-47, 50-53.

Wildberger appealed this decision to AFGE's National Executive Council ("NEC"), over whose meetings Sturdivant presides. JA 47, 49-61. Wildberger was allowed to present argument in support of his appeal, but was not permitted to present evidence to this forum, which did not conduct a trial de novo. JA 47, 62, 63. The NEC upheld Wildberger's discipline. JA 97-98, 143-144. Wildberger then appealed to the AFGE Convention, but the convention adjourned without reaching Wildberger's appeal. Docket Item No. 50 (Amended AFGE Statement of Facts).

In the meantime, the SBA fired Wildberger. One of the grounds given for his discharge was his misuse of union funds in connection with the rental of the apartment. Wildberger objected to his discharge, and tried to present evidence demonstrating that he had not misspent the funds. The SBA, however, refused to allow him to present such evidence, holding that Wildberger was bound by the determinations made against him in the intra-union proceeding. JA 98.

B. Proceedings Below.

Plaintiff filed this action on September 12, 1991, and simultaneously moved for a temporary restraining order and a preliminary injunction. After a hearing on this motion, the district court denied that relief by order of September 16, 1991. Defendants then moved to dismiss the action on the grounds that, because AFGE primarily represents employees of the federal government, the court below lacked jurisdiction under the LMRDA. Wildberger, for his part, renewed his motion for a preliminary injunction. While these motions were pending, Wildberger's initial counsel withdrew, and undersigned counsel entered the case. Plaintiff then also amended his complaint to eliminate his causes of action based on section 101(a)(2) of the LMRDA, and to clarify his due process objections to the procedures that been invoked against him. By order dated November 5, 1993, the Court denied both the motion to dismiss and the renewed motion for a preliminary injunction. JA 424-439.

The parties then cross-moved for summary judgment. Plaintiff sought summary judgment on the issue of liability only, and an injunction restoring his union membership. He urged that his possible damages for loss of income be pretermitted pending completion of his litigation of the lawfulness of his discharge, including the propriety of SBA's reliance on the union's disciplinary findings, before the Merit System Protection Board ("MSPB") and Federal Labor Relations Authority ("FLRA").

In support of his motion, Wildberger argued that AFGE had violated both the due process requirements of the LMRDA, and its own constitution, in several respects. He contended that all of the alleged constitutional violations -- such as Sturdivant's insistence on a national trial without the required "showing" that a local trial was impractical, the avoidance of a committee of investigation, the conduct of a second trial after the local union trial resulted in an acquittal -- supported his basic contention that Sturdivant had deliberately set himself to be judge as well as prosecutor in violation of the due process protections of the LMRDA. In addition to this overarching flaw in the union's procedures, Wildberger contended that Sturdivant had appointed his own political supporters to the trial committee, which was impermissible given his role as an intra-union opponent of Sturdivant's, and that the committee had denied him several basic procedural protections, such as the right to call witnesses in his own defense and the right to demand documents relevant to his defense.

Nevertheless, the district court granted summary judgment in favor of defendants. JA 440-450. It held that each of Wildberger's constitutional claims failed either on the facts of the case or because the union had properly construed its constitution. JA 442-446. When it turned to the due process claims, the district court examined the specific claims of impropriety based on the membership of the trial committee, the denial of access to documents, and the refusal to allow Wildberger to call witnesses, but it never focussed on Wildberger's basic claim, that whatever the committee might have done or not have done, the fundamental problem was that Sturdivant both prepared and filed the charges and controlled their adjudication. It found that the right to call witnesses had been waived, JA 447-448, and that the appointment of Sturdivant's political supporters to try one of Sturdivant's political opponents was permissible because Wildberger had not showed that Sturdivant was deliberately trying to "rig" the outcome. JA 446-447.

The district court had jurisdiction to adjudicate Wildberger's due process challenge to the discipline that AFGE has imposed on him. Under the LMRDA, district courts have jurisdiction both over unions that represent exclusively private sector workers, and over "mixed" unions that either represent both private sector and public sector workers, or that charter local unions that are either private or mixed. Moreover, the cases cited by appellees below as providing for preemption of federal court jurisdiction of claims involving federal sector labor relations all involve either the relations between unions and federal agencies, or the economic rights of employees concerning the union's disposition of their grievances against federal agencies. Where the LMRDA provides for jurisdiction over intra-union claims, the Federal Labor-Management Relations Statute does not supersede the authority of the district courts.

Section 101(a)(5) of the LMRDA protects union members against imposition of union discipline without due process. It does not

purport to circumscribe either the offenses for which members may be punished, or the punishments that may be imposed. Nor does it grant the courts any power to decide whether a member is guilty of the offenses for which he has been disciplined, apart from the minimal requirement that there be some evidence to support the finding of guilt. Boilermakers v. Hardeman, 401 U.S. 238 (1971). Its sole purpose is to ensure that the procedures used by a union in deciding whether to impose discipline meet minimum standards of fairness and due process. This requirement of fair procedures must be satisfied in addition to any requirement of some evidence to support the union's decision and the prohibition of discipline imposed in retaliation for exercise of LMRDA rights. English v. Cowell, 969 F.2d 465 (7th Cir. 1992).

In this case, plaintiff agrees that he received the specific written notice of the charges against him that section 101(a)(5)(A) requires, and that the amount of time between that notice and the holding of his trial exceeded the minimum time allowed by section 101(a)(5)(B). Nor does plaintiff deny that there was at least some evidence that a fair decision-maker could have considered in deciding whether or not he was guilty of the offenses charged, and indeed he acknowledges that this Court may not, under the law, decide whether the evidence does, in fact, support the discipline. Wildberger's sole claim is that he did not receive the "full and fair hearing" that section 101(a)(5)(C) requires.

Among the most important protections afforded by the "full and fair hearing" requirement of section 101(a)(5)(C) is the right to be tried by an impartial tribunal. That did not happen here because a single individual, John Sturdivant, was prosecutor, grand jury, selector of the trial body, judge, and jury. Wildberger was tried and convicted by a political opponent, who initiated the investigation of his activities, filed the charge against him, decided to try him at the national level and unilaterally selected the trial body without any input from Wildberger, appointed political supporters to that body to boot, and then made the final decision on the charges (including an increase in the penalty) based on a recommendation from the trial body. By any measure, that procedure denied appellant a fair hearing, and violated section 101(a)(5)(C). Accordingly, the discipline imposed upon Wildberger cannot stand.

I. THE DISTRICT COURT HAD JURISDICTION OVER THIS CASE.

The defendants questioned the district court's jurisdiction over this case during the proceedings below. Even though appellant prevailed on this issue below, we recognize that the Court is obligated to consider its jurisdiction sua sponte. Accordingly, we begin this brief by explaining why the district court was correct in accepting jurisdiction.

A "Mixed" Union, Which Represents Both Private Sector and Federal Employees, Is Subject to Suit Under the LMRDA.

Defendants argued that the court below lacked jurisdiction by virtue of the facts that Wildberger was a federal employee, and that AFGE and most of its locals (including Wildberger's own local) represent federal employees. In this regard, we acknowledge that the LMRDA applies principally to unions that represent employees of private sector workers. However, paragraph 2 of the complaint, JA 12, alleged that AFGE represents "both government and private sector employees. See also JA 36, 65, 67-68. AFGE's Answer admitted this paragraph of the complaint, JA 25, Par. 2, and AFGE conceded below that several of its locals hold NLRB certifications to represent employees in the private sector. Docket No. 9, Memorandum at 23. (See Footnote 6) Attempts to amend the AFGE Constitution to escape LMRDA coverage have been consistently defeated. JA 33-35. Under the plain language of the statute, as well as case law construing the statute, such "mixed" unions are covered by the LMRDA, along with their wholly private-sector counterparts.

Wildberger claims rights under Title I of the LMRDA, which accords rights to "members" of "labor organizations." E.g., Section 101(a)(5), 29 U.S.C. Sec. 411(a)(5). The term "member" of a labor organization is defined by section 3(o) of the Act, 29 U.S.C. Sec. 402(o), to include "any person who has fulfilled the requirements for membership in such organization, and . . . has [not] been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization." Wildberger's right to invoke the lower court's jurisdiction, then, depends on whether AFGE is a "labor organization" within the meaning of the statute, because appellant was, concededly, a member of AFGE at the time of discipline.

"Labor organization" is defined by section 3(i), 29 U.S.C. Sec. 402(i), to include "a labor organization engaged in an industry affecting commerce and includes any organization of any kind . . . which exists for the purpose, in whole or in part, of dealing with employers." (emphasis added). A labor organization is deemed to be engaged in an industry affecting commerce, in turn, if it meets any one of five separate conditions set forth in section 3(j), 29 U.S.C. Sec. 402(j), of which the following are relevant here:

-- if it is certified to represent employees under the National Labor Relations Act ("NLRA") (i.e., non-railroad private sector employees), section 3(j)(1)

-- if not certified, if it is "recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce," section 3(j)(2) or

if it "has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers with in the meaning of paragraph (1) or (2)." Section 3(j)(3).

It is true that the term "employer" is defined by section 3(e), 29 U.S.C. Sec. 402(e), to exclude the United States or state and local governments. However, the statute makes clear that, if even one of the purposes of the organization is to represent statutory employers, or if the organization, whether or not it represents such employees itself, has chartered one or more locals that represent or seek to represent such employees, then the union is covered by the LMRDA, and its members may sue it to enforce the obligations imposed by the LMRDA. Because AFGE conceded below that some of the locals it has chartered provide such representation, the language of the statute requires that jurisdiction be recognized here.

That jurisdiction extends to mixed unions is, indeed, the unanimous conclusion of every reported decision to consider the issue. The leading case is Hester v. Operating Engineers, 818 F.2d 1537, 1540 (11th Cir. 1987), modified, 830 F.2d 172 (11th Cir.), rev'd oth. grounds, 488 U.S. 1025 (1989), on remand, 878 F.2d 1309, 1310 (11th Cir. 1989) (subsequent rulings involved limitations issues). That case involved a complaint by an employee of the Tennessee Valley Authority, who challenged discipline imposed on him by the Operating Engineers and two of its locals, allegedly without due process. The court held that mixed unions are subject to the LMRDA, and that "[i]f a union is subject to the LMRDA, then all of its members, whether employed by the private or public sector, are protected by the Act's bill of rights," noting that neither the definition of "member" nor the Bill of Rights itself differentiates between private and public sector employees. Id., 818 F.2d at 1541-1542 and n.13.

Subsequent decisions have followed this analysis. Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994); Martinez v. AFGE, 980 F.2d 1039, 1041-1042 (5th Cir. 1993); Berardi v. F.O.P. Lodge 48, 920 F.2d 198, 201-202 (3d Cir. 1990); Laity v. Beatty, 766 F. Supp. 92, 97-98 (W.D.N.Y. 1991), aff'd mem., 956 F.2d 1160 (2d Cir. 1992); NEA v. Marshall, 100 LRRM 2565 (D.D.C. 1979). This Court followed Hester in Hawaii Gov't Employees v. Martoche, 915 F.2d 718, 720 (D.C. Cir. 1990), and many other courts have applied the LMRDA to unions whose primary function is the representation of public sector employees, without addressing the issue of coverage. E.g., Marshall v. Illinois Ed. Ass'n, 667 F.2d 638 (7th Cir. 1982); Donovan v. Civil Service Employees Local 1000, 761 F.2d 870 (2d Cir. 1985).

As the Hester Court explained, the application of the LMRDA to mixed unions is based not only on the plain language of the statute, but also on sound policy considerations:

[W]e find it unlikely that Congress would create a statutory scheme making a labor union subject to the LMRDA only if the particular transaction in question involved a member who was working for a private employer. Congress acted in the public interest to protect workers whose unions are susceptible to corrupt leadership -- unions that deal with private employers, to whatever extent, and which are thus afforded power by federal labor law. We know of no case that says a particular union is a "labor organization" under the LMRDA as to one member, working for the private sector, but not a "labor organization" under the LMRDA as to another member, working for the government.

818 F.2d at 1542 (footnotes omitted).

Ironically, had defendants only been willing to allow Local 2532 to conduct a regular trial of Wildberger, instead of insisting that the mixed national AFGE do so, that trial would have been beyond the reach of a private action under the LMRDA, because Local 2532 represents only federal employees. Diven v. ATU, 38 F.3d 598 (D.C. Cir. 1994). Having insisted on arrogating the power to try Wildberger before his own appointees, however, Sturdivant and AFGE were required to meet the requirements of the LMRDA.

B. Jurisdiction Under the LMRDA Has Not Been Superseded by the Federal Labor-Management Relations Statute.

Defendants argued below that, even if the LMRDA would otherwise give the courts jurisdiction over appellant's claims, that jurisdiction is superseded by the Federal Labor Management Relations Statute ("FLMRS"). 5 U.S.C. Secs. 7101 et seq. However, nothing in FLMRS expressly deprives courts of such jurisdiction, and defendants never identified language in the statute that even implied such preclusion of a federal court remedy. The argument that FLMRS stripped the courts of such LMRDA jurisdiction thus runs headlong into the "cardinal rule . . . that repeals by implication are not favored," Morton v. Mancari, 417 U.S. 535, 549 (1974), and that "when two or more statutes are capable of co-existence, it is the duty of courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Yakima County v. Confederated Yakima Tribes, 502 U.S. 251, 265-266 (1992).

In the court below, defendants relied on various cases stating that only the Federal Labor Relations Authority and Department of Labor, not federal district courts, have authority to enforce obligations imposed by the FLMRS. We agree with that proposition; we also accept that, when Congress has created a comprehensive scheme for resolving certain disputes, the courts may not create a rival cause of action on the theory that there is a wrong that would otherwise go unremedied. But none of appellees' cases went on to establish the principle for which they contended -- that the FLMRS obliterates pre-existing causes of action under the LMRDA.

Karahalios v. NFFE, 489 U.S. 527 (1989), appellees' principal authority for FLMRS supersession, is representative. In that case, the plaintiff argued that the exclusive representational authority conferred by the FLMRS implied a duty of fair representation ("DFR") analogous to the DFR implied by the NLRA, and that the cause of action created for private employees by the Supreme Court in Vaca v. Sipes, 386 U.S. 171 (1967), should be recognized under the FLMRS as well. Karahalios, supra, 489 U.S. at 531-532. The Supreme Court refused to extend the cause of action to federal employees on the ground that, unlike the NLRA, from which the DFR is implied, the FLMRS expressly creates a DFR and assigns exclusive authority for the enforcement of that duty to the FLRA. Id. at 533. Moreover, there was no reason to believe that Congress intended to provide a private cause of action to enforce this statutory duty, and the reasons for circumventing the exclusivity of the NLRB in the private sector do not apply in the federal sector. Id. at 533-537. That is a far cry, however, from holding, as the defendants suggested below, that the FLMRS strips the courts of pre-existing jurisdiction under the LMRDA. Cf. Boilermakers v. Hardeman, 401 U.S. 233, 237-241 (1971) (NLRB's jurisdiction does not preclude Title I suits in district court over union discipline without due process).

Accordingly, the court below correctly held that it had jurisdiction, and this Court should consider the merits of Wildberger's appeal.

II. AN INTRA-UNION OPPONENT OF THE UNION LEADER MAY NOT BE DISCIPLINED BY THAT LEADER, AFTER TRIAL BEFORE A TRIBUNAL, APPOINTED BY THE LEADER TO CONSIDER CHARGES FILED BY THAT LEADER, AND CONSISTING OF POLITICAL SUPPORTERS OF THE LEADER, WHICH THEN MADE RECOMMENDATIONS TO THE LEADER WHO HAD THE FINAL SAY ON THE CHARGES.

The first infirmity in these disciplinary procedures is that Wildberger was tried before a biased tribunal. One of the most fundamental components of the right to a "fair hearing" protected by section 101(a)(5)(C) is the right to trial before an impartial and unbiased tribunal. Stein v. Mutuel Clerks' Guild, 560 F.2d 486, 491 (1st Cir. 1977); Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975); Kuebler v. Cleveland Lithog. & Photo. Local 24-P, 473 F.2d 359, 364 (6th Cir. 1973). The requirement of impartiality extends beyond cases in which intra-union adjudicators have prejudged the guilt of the accused; it also forbids trial of an intra-union dissident by a panel of his opponents or the opponents' political supporters, Semancik v. UMW, 466 F.2d 144, 157 (3d Cir. 1973), and requires impartial procedures for selecting the members of any trial board. See Murphy v. Operating Engineers Local 18, 774 F.2d 114, 124-125 (6th Cir. 1985). Where such dangers of bias exist, it is irrelevant that the adjudicator denies (as appellees do deny) that the intra-union rivalry had any effect on his or her decision. Tincher v. Piasecki, 520 F.2d 851, 855 (7th Cir. 1975).

As we show in this portion of the brief, the proceedings were biased against Wildberger. Thus, the same individual, John Sturdivant

(a) brought the charges against him in the first place;

(b) was an intra-union political opponent of Wildberger;

(c) conducted the supposedly neutral investigation during which he had numerous ex parte contacts with persons complaining about Wildberger, while refusing to discuss the charges with Wildberger or allow him to defend against those charges;

(d) deliberately bypassed a trial procedure whereby the local union membership would select a trial committee, instead appointing a national trial committee, without giving Wildberger an opportunity to object to this decision or to present reasons why a local trial should be held;

(e) appointed his own political supporters to the trial committee; and

(f) retained the final power to decide whether or not to impose any discipline; the trial committee was authorized only to take evidence and issue a recommended decision; it was Sturdivant who decided whether to accept the recommendation, and who increased the punishment in a way that he, Sturdivant, deemed appropriate.

In our view, each of these defects in the intra-union procedure itself violated section 101(a)(5)(C). But it is also important to consider their combined effect, because they show that the principal officer of AFGE deliberately employed his considerable authority to serve as accuser, prosecutor, grand jury, judge, and jury in conducting a lengthy investigation of an intra-union opponent, composing charges, and then taking every step necessary to ensure that his opponent would be ridden out of the union.

A. The Allegations Were Investigated, Charges Were Brought, and Discipline Was Imposed by the Same Person: John Sturdivant.

The first way in which the proceedings against Wildberger were impermissibly biased is that the charges were developed, formally brought, and finally decided against Wildberger by the same individual -- AFGE President John Sturdivant. The cases are quite clear that, although union officials have as much right as any other members to prefer charges against members whom they believe to have engaged in misconduct, once officers assume that role, they cannot also participate in any decision on the resulting charges. Stein v. Mutuel Clerks Guild, 560 F.2d 486, 491 (1st Cir. 1977) (prosecutor could not even take part in deliberations); Cornelio v. Philadelphia District Council Carpenters, 243 F. Supp. 126, 129 (E.D. Pa. 1965), aff'd, 358 F.2d 728 (3d Cir. 1966) (party to case may not sit in judgment). Similarly, a union official who was actively involved in the investigation that leads to the filing of the charges may not sit in judgment of those charges. Mayle v. Laborers Local 1015, 866 F.2d 144, 146 (6th Cir. 1988); Kuebler v. Cleveland Lithog. & Photo. Local 24-P, 473 F.2d 359, 364 (6th Cir. 1973).

Here, although the trial itself was conducted by a panel of union members selected by Sturdivant, Sturdivant conceded at his deposition, JA 234, that this panel could only make recommendations to him, that he was free to adopt, reject, or modify those recommendations, and that the final decision was his alone. Sturdivant also acknowledged that he was actively involved in directing the investigation that led to the charges against Wildberger, including frequent consultations with the members of his staff who were directly involved in the investigation. JA 196-199. (See Footnote 7)

Sturdivant also agreed that he decided not to refer the charges to a committee of investigation because, by the time the charges were issued, Wildberger's violations "had already been made clear" to him by the investigation that was conducted under his supervision. JA 205-206. Ironically, Sturdivant came close to conceding that his decisional power made it inappropriate for him to become too closely involved in the investigation, when he testified that he did not speak to Wildberger himself about the subject of the investigation because that would have constituted an improper ex parte contact between the target of the investigation and the decision-maker. JA 228-229.

Another undisputed fact shows that, by the time he issued the June 3 charges against Wildberger, Sturdivant had sufficiently prejudged the situation to require his disqualification as the adjudicator of the charges. Thus, by that time, he believed that he knew enough about the case to decide, without hearing Wildberger's side of the story, that conditions in Wildberger's local were such that he could not be tried by a jury of his local union peers. JA 225, 227. According to Sturdivant's deposition testimony, he made this decision based on the whole series of allegations about what was happening in Local 2532, and unspecified "other things that it was alleged that [Wildberger] was involved in," from which Sturdivant concluded that Wildberger's local was not functioning in a democratic fashion. JA 225. Sturdivant also named Vice-President Schlein, who collaborated in the investigation and helped prosecute the case before Sturdivant's trial committee, as a source of information in deciding not to allow Wildberger to be tried by his local union peers. Id. The very fact that it was Sturdivant himself who made this decision further supports Wildberger's claim that Sturdivant could not properly serve as the adjudicator of the charges. (See Footnote 8)

After this action was filed, defendants tried to avoid conceding that Sturdivant was the accuser, as well as the judge who decided the charges. Thus, defendants denied the allegation in the Amended Complaint that Sturdivant "filed" the charge against Wildberger, insisting that the proper term for what he had done was to "prefer" the charges. JA 170, 192, 219. Sturdivant conceded, however, that "prefer" was a term of art that refers to what the President of AFGE does, which, in turn, is equivalent to what happens when charges are "filed" against a member at the local union or council level. JA 195. He also testified that "preferring" charges refers to the process by which he, as President, decides to appoint a committee of investigation to decide whether the filing of charges is appropriate, JA 193, although he then conceded that he had not established a committee of investigation, but rather had decided himself that Wildberger must be put on trial. JA 195-196.

Moreover, in his letters appointing members of his trial committee, Sturdivant referred to the charges filed against Wildberger as "his" charges, JA 265, 267, 269; he also described the charges as "his" own during the deposition. JA 220. When he incorrectly accused the local union trial committee of failing to give him notice of the trial before it, he said that it had failed to give notice of the hearing to "the charging party" -- namely, Sturdivant himself. JA 261. Although Sturdivant denied knowing who he was referring to as the charging party in this letter, JA 219, 221, he conceded that he had signed the charges, and had never identified any other person as the charging party. JA 221. From the context it is obvious that, before his lawyers decided to try not to characterize him as the charging party, he considered himself to be the charging party. And, under the case law cited above, as a party to the disciplinary proceeding, Sturdivant was forbidden to be the final decision-maker on the charges. (See Footnote 9)

In one early case, a court held that it would not violate the requirement of a fair hearing for the same officer to order charges to be brought and then issue the decision on the same charges. Parks v. IBEW, 314 F.2d 886, 911-913 (4th Cir. 1963). Parks is distinguishable on the ground that the case involved revocation of a local union's charter, rather than discipline of a member, and the modern consensus is that section 101(a)(5) does not govern such proceedings absent animus sufficient to violate section 101(a)(2). E.g., Carpenters Local 48 v. Carpenters, 920 F.2d 1047, 1056 (1st Cir. 1990) (admittedly, the Parks court surely thought that section 101(a)(5) did apply, and it concluded that mixing of prosecutorial and judicial functions did not violate that section). Another distinction is that the discipline imposed here could be invalidated even under Parks, because Sturdivant's actions, such as his decision to substitute his own trial committee for a local union trial, show prejudgment of the accusations against Wildberger.

In any event, the reasoning in Parks, at least as applied to individual member discipline, was wrong. The court deemed it inappropriate to invalidate discipline based on "built-in bias," but rather to overturn discipline only in cases of pre-judgment, because a contrary ruling would interfere unduly with internal union governance "in the absence of clear congressional authorization." 314 F.2d at 913. But section 101(a)(5)(C) is a clear congressional authorization to decide whether a hearing is unfair, and the clear trend in the cases since Parks has been to find violations of the requirement of an impartial tribunal in cases of inherent as well as specific bias. E.g., Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975). Moreover, section 101(b) even authorizes courts to hold union rules void when they violate rights under section 101. Thus, we urge the Court to follow the reasoning of such cases as Kuebler, Mayle, and Stein, rather than Parks, and hold that the officer who brings a charge may not participate in the charge's adjudication.

B. Particularly Because of the Intra-Union Rivalry Between Sturdivant and Wildberger, Trial Before Sturdivant and A Trial Committee Appointed by Sturdivant and Comprised of His Political Supporters Violated Wildberger's Right to an Impartial Tribunal.

Wildberger's right to an impartial tribunal was also violated because, as Sturdivant's intra-union opponent, he could not properly be tried by either Sturdivant himself or Sturdivant's political supporters. Many cases hold that discipline imposed by such adversaries violates section 101(a)(5)(C). Semancik v. UMW, 466 F.2d 144, 157 (3d Cir. 1973); Tincher v. Piasecki, 520 F.2d 851, 855 (1975); Schonfeld v. Penza, 477 F.2d 899, 904 n.8 (2d Cir. 1971) (bias found based on political hostility to accused); Kiepura v. Steelworkers Local 1091, 358 F. Supp. 987, 991 (N.D. III. 1973); see also Lanigan v. IBEW Local 9, 327 F.2d 627, 628 (7th Cir. 1964) (describing decision below that was vacated on appeal as moot).

Here, as the district court acknowledged, JA 446, there was no dispute that Wildberger was Sturdivant's intra-union political opponent. Wildberger opposed Sturdivant's election in a "bloody" campaign that lasted for a year, culminating in 1988. JA 92, 174-175. He was a strong opponent of a trusteeship that Sturdivant had imposed on Council 228, JA 92-93, 115-123; Wildberger was the major player in this controversy. JA 181-182. The month before Sturdivant initiated the investigation of Wildberger's local, Wildberger had announced that he was running against Sturdivant for national office. JA 237-238. Although at a later date Wildberger notified Sturdivant that he had decided not to run in 1991, he said in the same letter that he was going to concentrate on the affairs of Council 228, which was another focal point of the political dispute between the two. JA 94, 131. Not only had Wildberger written a letter to SBA management, JA 124-128, that accused Sturdivant of criminal misconduct (comparable to the attack on the local union president who belonged to the trial body in Tincher v. Piasecki, supra), but it was a different aspect of the very same letter that became the focus of the third charge against Wildberger. JA 73, Par. 8(c). These circumstances made it wholly improper for Sturdivant to sit in judgment of the charges against Wildberger, even apart from the fact that Sturdivant was the charging party.

We anticipate that defendants will argue that, whatever Sturdivant's own bias may have been, the trial proceeding was sanitized by the use of the trial committee consisting of Alma Lee, Al Levy, and Stan Gordon. Undisputed evidence showed, however, that these individuals were themselves strong supporters of Sturdivant in his intra-union battles, and it is difficult to believe that Sturdivant would have been unaware of this history when he hand-picked them to hear the evidence against Wildberger.(See Footnote 10) Lee was a key member of Sturdivant's campaign team in his 1988 insurrection against the previous incumbent president, JA 165-166, and Gordon not only campaigned for Sturdivant at the 1991 Convention, but campaigned against seating Wildberger as a delegate to that Convention, at the very same time that he was acting as Chairman of Sturdivant's trial committee. JA 96-97. Al Levy himself admitted being a Sturdivant supporter in the 1988 and 1991 campaigns, JA 367 (as Lee and Gordon also admitted that they supported Sturdivant politically, JA 371, 374-375). Sturdivant acknowledged at his deposition that Levy was an officer of one of the key locals that endorsed his 1988 candidacy against Blaylock, as well as supporting Sturdivant in 1991, where he was seen wearing Sturdivant campaign paraphernalia. JA 97, 142, 175-177.

The courts have held that, if even a single member of a multimember trial committee fails the test of impartiality, the disciplinary decision is tainted and must be set aside. Tincher v. Piasecki, 520 F.2d 851, 855 (7th Cir. 1975); Falcone v. Dantinne, 420 F.2d 1157, 1163 (3d Cir. 1969). Here, not just one but all of the trial committee members were Sturdivant's own political supporters. Thus, even if the trial committee had been given the power to decide Wildberger's guilt or innocence, instead of simply taking the evidence and making a recommendation to Sturdivant, it was tainted so that it was not a proper body to decide Wildberger's case.

The district court rejected Wildberger's bias claims because, although there was no dispute either about the political rivalry or that the trial committee members were aligned with Sturdivant in intra-union politics, there was no evidence that the trial committee members either had been involved in the factual matters at issue in the charges, or had made express statements of bias against Wildberger or of prejudgment of the charges. JA 446. Moreover, the district court assumed that because, by 1991, Sturdivant had established unchallenged control of the union, and because Wildberger did not control enough votes to block Sturdivant's re-election, "Sturdivant would have had little incentive to 'stack the deck' against [Wildberger]." JA 446-447.

The district court's reasoning, however, was faulty in several respects. First, and most important, an attack on a union disciplinary decision as "biased" does not depend on the court's finding that the disciplinary action was motivated by the desire to extirpate a union opponent. If that were all that were involved, the claim would be completely duplicative of the claim that could be brought under sections 101(a)(2) and 609 of the LMRDA, on the theory that the discipline "infringed" the candidate's free speech rights, see Sheet Metal Workers v. Lynn, 488 U.S. 347, 353-354 (1989) (action under sections 101(a)(2) and 102), or had been imposed in retaliation for the exercise of free speech rights. Section 609, 29 U.S.C. Sec. 529. Yet the cases make quite clear that the due process requirements of section 101(a)(5) apply in addition to the right not to be disciplined for the exercise of free speech rights. E.g., Black v. Ryder/PIE, 970 F.2d 1461, 1467-1468 (6th Cir. 1992); Bise v. IBEW Local 1969, 618 F.2d 1399, 1304-1305 n.5 (9th Cir. 1979). Moreover, the anti-bias cases under section 101(a)(5) apply when the charges are heard, and the discipline imposed, by the accused's intra-union enemies and their supporters. E.g., Tincher v. Piasecki, 520 F.2d 851, 855 (1975). In such cases, it is the inherent possibility of bias that makes the trial unfair, not a specific finding of retaliatory animus.

The soundness of that analysis is shown here by the uncertainties that necessarily attend the district court's speculations about what biases a union leader would have under certain political conditions. Would a union leader who has established an unchallengeable lead in the campaign for re-election decide that there is no longer any need to drum his opponents out of the union? Quite possibly; but it is also quite possible that such a leader might be utterly ruthless in finishing off his opponents, repaying old debts, as it were, as a lesson to others who might think to follow in their path (indeed, Wildberger had been threatened with retaliation if he continued to support Sturdivant's opponent in 1988, JA 92). Or perhaps such a leader, although guaranteed re-election, might still be struggling to cement his political control of the remaining offices in the union, and need to roll over opponents for that reason. Rather than indulging in such speculations -- particularly on motions for summary judgment -- it is far better to follow other courts that find a violation of section 101(a)(5) whenever the trial is conducted, and the disciplinary decision made, by political opponents of the accused.

Nor was the district court correct in finding no bias because there was no expression of antagonism or prejudgment by the members of the trial committee. Although there was some evidence of this sort -- during the hiatus in the trial, Gordon actively campaigned against Wildberger's seating at the AFGE Convention that occurred in that period, JA 97 -- the more important point is that such evidence is unnecessary. Under the bias cases in other circuits, it is the very fact of political opposition between adjudicators and accused is sufficient.

Moreover, whatever the character of the trial committee members, it was not they who made the disciplinary decision in this case. Their only role was to conduct the hearing and make recommendations to Sturdivant; not only was it Sturdivant who made the final decision, but Sturdivant also incr

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