UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

 

FORREST GENE ENGLISH and ROBERT M. OWENS,
Plaintiffs-Appellants,

v.                                                                                          No. 91-1079

DONALD SIDDENS, et al.,  
Defendants-Appellees.

 

BRIEF FOR APPELLANTS

 

This is an appeal from an order dismissing plaintiffs' claim that a union member was expelled from his union without advance notice, written specification of charges, or the opportunity for a full and fair hearing. The court below upheld his expulsion on two separate grounds -- first, that due process was not required because the member was clearly guilty of an offense under the constitution, and second that there was "some evidence" to support the decision. The court also dismissed on the alternate ground that the plaintiffs had not paid costs and attorney fees that had been assessed against them in another action and against other defendants in the same action. On appeal, we argue both that the due process protections of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA") have not been satisfied, and that dismissal of a valid legal claim for failure to pay prior judgments lacks any justification.

QUESTIONS PRESENTED

1. Is a union excused from providing notice, written charges, and an opportunity for a full and fair hearing before expelling a member from the union, as required by the due process provisions of the LMRDA, whenever the court concludes, based on its own interpretation of the union constitution, that the member is guilty of an offense under the constitution for which expulsion would be an appropriate punishment?

2. May a valid legal claim be dismissed on the ground that the plaintiffs have failed to satisfy orders to pay attorney fees and costs that have previously been entered against them?

STATUTORY PROVISION INVOLVED

Section 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5), provides as follows:

No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for non-payment 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; and (C) afforded a full and fair hearing.

JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§ 1331, and 1337, and 29 U.S.C. § 412. The district court granted summary judgment on November 30, 1990, and the appeal was noticed on December 26, 1990. The Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT

Plaintiffs Forrest Gene English and Robert M. Owens are members of defendant Local 46 of the International Association of Bridge, Structural and Ornamental Iron Workers. Beginning in the late 1970's and continuing through the 1980's, plaintiffs have brought a series of pro se claims against their local union, the International Union, and several union officers, alleging a variety of violations of the LMRDA. The allegations included a refusal to permit them to examine certain union books and records pursuant to section 201(c) of the Act, dues increases imposed in violation of section 101(a)(3) of the Act, infringements of the free speech rights guaranteed by section 101(a)(2) of the Act, and expenditures of funds in violation of the fiduciary obligations imposed by section 501 of the Act.(1)

While these suits were pending, defendants Donald Siddens and William Cowell, two officers of Local 46, sent English a letter dated December 27, 1983, stating that because English had been convicted of a felony (in 1979) and was serving a prison term, "your membership in the local union has been terminated effective immediately." Short Appendix, page 19. There was no notice of charges against him, no opportunity to provide a defense, and no hearing, fair or otherwise, before his membership was terminated.

The plaintiffs then brought this action to contest this expulsion as a violation of the due process requirements of the LMRDA, 29 U.S.C. § 101(a)(5). The amended complaint alleged not only due process violations, but a conspiracy among various officers of the local and international unions to rid themselves of English. All of the claims were then consolidated as Case No. 84-3299, and dismissed by the district court based on the six-month limitations period that this Court had held was applicable under section 101 of the LMRDA. Vallone v. Teamsters Local 705, 755 F.2d 520 (7th Cir. 1985). Some of the claims were also dismissed on the merits, and plaintiffs were ordered to pay costs, attorney fees, and accountant fees. Plaintiffs were also enjoined from filing further federal actions without judicial permission.

Plaintiffs appealed, and although this Court initially affirmed in toto, No. 87-2515, Unpublished Order of November 29, 1988, it reconsidered after the Supreme Court rejected the six-month limitations period in Reed v. UTU, 109 S. Ct. 621 (1989). The Court then reaffirmed the dismissal of the books and records claim, while vacating the dismissal of the expulsion claim and the dues claims for further proceedings consistent with Reed. No. 87-2515, Unpublished Order of March 7, 1990.

On remand, the district court ordered briefing of the impact of Reed. April 6, 1990 Order. The plaintiffs, still proceeding pro se, filed a belated memorandum which outlined the legal and factual bases for their various claims (including the books and records claim), but did not address the limitations issue. Defendants argued that the six-month limitations period should still be applied despite Reed, because the claims here were based on different subsections of section 101; they also asked leave to file dispositive motions on the merits. Plaintiffs, in their reply brief, argued that Reed's holding should not be limited to the free speech provisions of section 101(a)(2), and they contended that their claims had free speech ramifications. Docket No. 219 at 7-8. The district court reserved the limitations issue while inviting the defendants to file motions addressing the merits. July 10, 1990 Order.

Defendants then moved to dismiss or for summary judgment on all remaining issues. Docket No. 221. On the expulsion claim, defendants did not defend their disciplinary action on the merits, and did not argue that section 101(a)(5) does not apply to cases such as this one. Rather, they argued that, because plaintiffs had originally alleged a conspiracy with the International, because conspiracy claims are not cognizable under the LMRDA, and because the International had been dismissed for failure of timely service, the expulsion claim should be dismissed for lack of subject matter jurisdiction or for failure to join a necessary party (the International). Defendants also pointed out that plaintiffs had not paid the outstanding judgments for costs and attorney fees for the dismissed claims and cases. Plaintiffs' response met some of these arguments, while also arguing that the defendants' position was based on fraudulent and forged documents.

The district court then issued an Order to Show Cause, dated October 12, 1990, Short Appendix 16-18, requiring plaintiffs to explain why they had not paid the sums awarded as costs and attorney fees in favor of certain individual defendants who had been dismissed from the action, as well in favor of the remaining defendants in connection with the dismissal of the books and records case. Plaintiffs complied with this order by filing a brief stating that they had not paid the sanctions for two reasons: first, financial inability coupled with serious medical problems, and second that the dismissals were wrong and based on defendants' having "lied and misled the Court."

The court below then dismissed the action in its entirety, in an opinion reported at 751 F. Supp. 1343 (C.D. Ill. 1990). Short Appendix 1-15. On the expulsion claim, the court ignored the reasons for dismissal given by the defendants (the absence of the International and the unavailability of conspiracy theory), relying instead on two grounds raised sua sponte. First, the court read the expulsion letter as suggesting that English's status as a convicted felon barred him from belonging to the union, which the court felt "would be consistent" with the requirement for admission to membership that a worker be "of good moral character and competent to demand standard union wages." Opin. at 10-11, 751 F. Supp. at 1348. The court then concluded that English's expulsion was not discipline at all, but rather an "objective reclassification" of plaintiff English. Opin. at 11, 751 F. Supp. at 1348.

Second, the court held that, even if English's expulsion were discipline, his due process rights had not been violated because "§ 101(a)(5) requires only that the charging party produce some evidence to support its charges." Id. English, the court ruled, had received his due process during his criminal trial, and the fact of his conviction was more than enough evidence to support his expulsion from the union. Id..

The court then found an alternate ground for dismissal -- plaintiffs' admitted failure to pay the attorney fees and costs that had been awarded against them. The court cited no authority for this novel basis for dismissal, but observed that the purpose of sanctions is to deter frivolous filings and to reduce the impact of such filings on the defendants. Opin. at 13, 751 F. Supp. at 1349. Plaintiffs' pro se status, coupled with defendants' representation by counsel, was deemed to present an "especially great" potential for abuse. The court also noted the filing of a motion regarding the books and records claim, even though that claim had previously been dismissed. Accordingly, the court dismissed all the cases on the merits "for Plaintiffs' failure to comply with this Court's orders." Id.

ARGUMENT

I. Union Members May Not Be Expelled from their Union Without Due Process on the Ground That, in Retrospect, the Union Had A Basis for the Expulsion.

The dismissal on the merits is flawed on both grounds given by the district judge. The judge's first conclusion was that, because English had been convicted of a felony going to moral character, his expulsion from the union was merely an "objective reclassification" of his status in accordance with the union's governing documents. However, the authority cited by the court stands for no such proposition, and the court's reasoning is squarely contrary to both the language and purposes of the statute.

The court relied on Macaulay v. Typographers Local 13, 692 F.2d 201 (1st Cir. 1982), a case in which a union member objected to his treatment at the hiring hall. Plaintiff had not worked for almost two years, and consequently the union reclassified him from "at the trade" to "not at the trade," the effect of which was to lower his priority for hiring hall referrals. Despite this change, he retained his rights and privileges as a union member. The court upheld the union's action on the ground that his reclassification was not "discipline," and therefore it was not subject to the due process requirements of section 101(a)(5). But the court was required to undertake that inquiry only because Macaulay was not "fine[d], suspend[ed] or expel[led]" from union membership. Thus, to be within the statutory phrase "otherwise discipline," the action against him had to be comparable to the "specific acts included in the section, i.e., fining, suspending and expelling," but it was not. 692 F.2d at 204. Here, however, the plaintiff was plainly expelled from the union -- all of his rights as a member were terminated -- and so the reasoning of Macaulay does not apply.

Macaulay was a response to a problem that has long vexed the courts: how union actions against a member's employment status should be viewed, so that members could be protected against arbitrary union action, without subjecting every hiring hall referral decision to the requirement of a full hearing. The early cases allowed due process attacks on work-related union classifications, e.g., Detroy v. AGVA, 286 F.2d 75 (2d Cir. 1961), but the more recent trend was against allowing such claims. E.g., Hackenburg v. Boilermakers Local 101, 694 F.2d 1237 (10th Cir. 1982); Turner v. Boilermakers Local 455, 755 F.2d 866 (11th Cir. 1985). But all of these decisions involved union decisions to change the member's hiring hall status, while leaving the individual's union membership untouched.

The Supreme Court has now clarified the matter. Last Term, it held that the line between "discipline" and other actions depends on whether the union had taken action under color of its authority to control members' conduct to protect the interests of the union or its membership. Breininger v. Sheet Metal Workers Local 6, 110 S. Ct. 424 (1989). But even Breininger is replete with the assumption that any expulsion, suspension or fine must be accompanied by the due process protections of section 101(a)(5), and that it is necessary to decide whether there has been other "discipline," which triggers these protections, only when the union's action does not fall within one of those three specific categories. E.g., 110 S. Ct. at 439 and n.15. It is plain, however, that the termination of plaintiff English's membership falls squarely within the category of "expulsion."

The district court thought that no due process protections were needed because English had been convicted of a crime in a criminal proceeding and thus it was clear that he was guilty as charged. But the very reason for due process requirements is to ensure that the union's fact-finding and punishment-imposing processes are fair, and to avoid second-guessing the union's decision once those requirements have been followed. See Boilermakers v. Hardeman, 401 U.S. 233 (1971).

Nor would the requirements of due process be a mere formality in this case, because the union might well decide not to expel English after following its own processes and avoiding biased decision-makers. First, the Iron Workers constitution gives English the right to a trial before a jury of 12 fellow workers, who have been chosen by lot, and who cannot convict without the votes of 9 members. Article XXVI, § 14(1) and (5), Short Appendix 23-25. Such a jury might well decide that, whatever English may have done wrong, he ought not to be deprived of his status as a union member and his ability to ply his trade. That decision is particularly likely if, as required by this Court's precedents barring biased decision-makers from participating either in the decision on guilt or the fixing of the appropriate punishment, Tincher v. Piasecki, 520 F.2d 851, 854-855 (7th Cir. 1975); see also Curtis v. IATSE Local 125, 687 F.2d 1024, 1030-1031 (7th Cir. 1982), those who are defendants in a lawsuit brought by English and their direct supporters are excluded from the jury.

Second, the district court's reading of the union's constitution is by no means an obvious one. Although good moral character is required for admission to membership, commission of a felony is not among the offenses listed in the constitution that may be the subject of discipline. Article XXVI, § 10, Short Appendix 22, 23. Indeed, just as the LMRDA strictly regulates the process of expelling members, but leaves unions with almost total discretion over the admission of workers to membership, see Hughes v. Iron Workers Local 11, 287 F.2d 810, 817 (3d Cir. 1961), so too do union constitutions generally maintain broad discretion over the requirements for admission, while allowing expulsion only for violation of the constitution, and then pursuant to strict due process. Thus, the existence of the "good character" requirement for admission does not necessarily imply, as the court below assumed, that a lack of good character evidenced by misconduct outside the workplace is automatic grounds for expulsion. Moreover, the labor movement has generally taken the view that members' misconduct outside the workplace should not deprive them of their livelihoods. Certainly, a jury of English's working peers might well decide, applying the union constitution to the facts of English's case, that English should not be deprived of his union membership.

The district court's second reason for dismissing the due process claim is similarly lacking in merit. The court decided that, because there was "some evidence" of English's guilt of the underlying felony, and because English received due process from the government in his criminal trial, the requirements of section 101(a)(5) had been met. But the "some evidence" requirement is not the sum total of the protections of section 101(a)(5); indeed, the words "some evidence" do not even appear in that section. Rather, that aspect of section 101(a)(5)'s protections were recognized by the Supreme Court's decision in Boilermakers v. Hardeman, 401 U.S. 233 (1971), in which the plaintiff had alleged that the union violated the "full and fair hearing" requirement of section 101(a)(5)(C) when it convicted him of assault on a union officer. Hardeman did not attack the union's procedures themselves, as English does here, but rather the alleged lack of evidence to support his conviction. The lower court upheld Hardeman's claim by reweighing the evidence in the disciplinary proceeding, but the Supreme Court held that this was error. The full and fair hearing requirement in section 101(a)(5)(C) does include a due-process-based requirement that there be "some evidence" of guilt, the Court held, but the courts should not become involved in deciding for themselves what the offense was and what the appropriate punishment was. Those tasks, the Court held, were best left to the union tribunals themselves.

It may readily be seen that Hardeman supplements, rather than supplants, the other protections of section 101(a)(5) by requiring that, in addition to fair procedures, a union have "some evidence" to support a disciplinary decision. We are aware of no precedent, apart from the decision below, that holds to the contrary. Indeed, in Frye v. Steelworkers, 767 F.2d 1216 (7th Cir. 1985), the Court rejected a variety of claims under section 101(a)(5), including an allegation based on the "some evidence" standard, without ever suggesting "some evidence" was a sufficient basis to eliminate the other due process protections.(2)

Nor does Gustafson v. Train Dispatchers, 788 F.2d 1284 (7th Cir. 1986), on which the lower court relied, suggest otherwise. In that case, the plaintiffs had been charged with refusing to leave work during a strike. Following these charges, a union official conducted a formal investigation, sent letters to the plaintiffs reporting his findings, and then notified the plaintiffs that a trial would be held. Plaintiffs' suit over the ensuing discipline was based solely on their claims that certain evidence had been erroneously considered during the trial and that they were not guilty of the offenses charged, in part because the strike was illegal. It was in that context that this Court stated, "Under section 101(a)(5)(C) the evidence is sufficient if the charging party provides 'some evidence at the disciplinary hearing to support the charges made.'" Id. at 1287, quoting Hardeman. We do not dispute that proposition, but it does not mean that the "some evidence" standard supplants the remaining procedural due process requirements specifically included in section 101(a)(5).

Nor does the "due process" that English received in his criminal trial support the union's discipline here. We may assume that the union would be safe in concluding that English committed the underlying felony with which he was charged, but that is the only proposition for which the conviction stands. The conviction does not constitute a determination either that the union constitution permits English's expulsion, or that, applying the constitution to the facts of his case, expulsion is the appropriate punishment. Indeed, the flavor that the case presents to undersigned counsel, who were uninvolved in the litigation until this appeal, is that the union leadership, bedeviled by a pro se litigant whom they had been unable to shake off, seized on English's conviction four years earlier to try to obtain a quick fix for their problem. But if the leadership wanted to expel English, they were required to follow the notice and trial procedures that are required, not only by section 101(a)(5), but also by their own constitution and bylaws. Because they failed to do so, the expulsion order should be invalidated.

II. An Action May Not Be Dismissed for Failure to Pay Attorney Fees and Costs Previously Awarded Against the Plaintiff.

The district court also erred in its alternate ground for dismissal of the discipline claims. The district court did not cite any precedent for dismissing a claim on the merits simply because the plaintiff has failed to pay monetary sanctions that had previously been awarded against them, and we are unaware of any such precedent. Indeed, no such case appears in the leading authority on sanctions, Joseph, Sanctions: The Federal Law of Litigation Abuse (1989).

The lower court treated the failure to make the payments as a form of disobedience of a court order, for which dismissal was an appropriate sanction. But orders to pay money are ordinarily enforced by levying on the assets of the person who has been ordered to pay, invoking the procedures set forth in Rules 64 and 69 of the Federal Rules of Civil Procedure, not by taking actions in other lawsuits between the parties.

Dismissal of the entire action is particularly troublesome where, as here, the "action" is itself a consolidation of four separate lawsuits, at least one of which, the discipline claim, presents a strong claim on the merits. Yet the sanctions that have been ordered have all been either in connection with the books and records case, or, insofar as they relate to the discipline case, in connection with the dismissal of other defendants, not the defendants that remain in this case. In effect, the conduct of the plaintiffs in connection with other parties and other cases was used as a reason to prevent him from pursuing a valid claim against the remaining defendants.(3)

Dismissal of the discipline claim against the remaining defendants because of abuse in connection with other claims is comparable to an injunction against filing further litigation. But such injunctions must be narrowly tailored, to forbid only clearly meritless litigation, while preserving the litigant's "undeniable right of access to the Court's processes." Lysiak v. Commissioner of Internal Revenue, 816 F.2d 311, 313 (7th Cir. 1987). In Lysiak, for example, the Court did not forbid all litigation, but simply ordered any new appeals held in abeyance until a panel of the Court had reviewed the issues to be raised and concluded that they present colorable claims. Indeed, the injunction entered against the plaintiffs here, and upheld in the previous appeal, was narrowly tailored so that it did not forbid any claims, but simply allowed the district judge to screen any new claims for possible merit before defendants are put to the task of defending them. The dismissal of a clearly meritorious claim -- we think summary judgment could be granted for English on the issue of section 101(a)(5) liability -- because of misconduct in connection with other matters is thus inconsistent with these cases as well.

There is one final flaw in the dismissal of the discipline claim for failure to pay monetary sanctions, and that is the district court's failure to take into account the plaintiffs' claims of financial inability. The Supreme Court has recognized in another context that dismissal of a claim for failure to comply with a court order is improper where the reason for non-compliance is inability. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976). Indeed, where the reason for the inability is the lack of financial resources of the litigant, a ruling that forbade the litigant from pursuing valid claims, because he is unable to shoulder the fees and costs imposed by his opponent, would raise serious constitutional concerns. E.g., Bounds v. Smith, 430 U.S. 817 (1977); Boddie v. Connecticut, 401 U.S. 656 (1971). In Lysiak, 816 F.2d at 312, the Court intimated that the failure to pay monetary sanctions might not have led to the imposition of an injunction against litigation had the reason for the non-payment been inability. Moreover, in the unpublished order on the previous appeal, No. 87-2515 in this case, the Court apparently recognized the constitutional limits that restrictions on judicial access may create. Order at 6, citing Bounds and Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).

Accordingly, the alternate ground for dismissal of the discipline claim, as well as the dismissal on the merits of the due process claim, was erroneous. We can understand and appreciate the frustration of the district judge in this case with the level of vituperation to be found in the papers from both sides, but the remedy that he adopted for the non-payment of previous judgments was inappropriate.

CONCLUSION

The judgment of the district court should be reversed insofar as it dismissed the claim based on English's expulsion from the union.(4)

Respectfully submitted,
 
 

Paul Alan Levy

Alan B. Morrison

Public Citizen Litigation Group

Attorneys for Plaintiffs-Appellants

April 1, 1991

1. All of these claims have been dismissed, and none of them is raised on this appeal. Nor are the specifics of these claims discussed, except as necessary to understand the proceedings that led to the dismissal of the expulsion claim. In entering the case shortly before the appellate brief was due, counsel decided not to undertake an appeal on the potentially interesting question of the relationship between subsections 101(a)(3)(A) and 101(a)(3)(B) as applied to the dues increase that was voted at the national union convention here because it was not sufficiently well presented on the record below. This judgment was based, not on a conclusion that the claim was necessarily lacking in merit, but because of the length and character of the litigation between the parties and the absence of evidence on certain questions that counsel deemed essential to a favorable resolution of the claims.

2. Similarly, the courts have refused to hold that the existence of "some evidence" under the Hardeman standard is sufficient to avoid a free speech claim under section 101(a)(2), and so free speech claims may proceed notwithstanding the existence of "some evidence" to support the union's discipline or other action against the member. Bise v. IBEW Local 1969, 618 F.2d 1299, 1304-1305 n.5 (9th Cir. 1979); Lamb v. Miller, 660 F.2d 792, 794 (D.C. Cir. 1981), rev'g 105 LRRM 2519, 2523 (D.D.C. 1979).

3. Such a sanction is contrary to the general rule in sanctions cases that "the punishment should fit the crime", and indeed should be the least drastic sanction that will achieve the permissible purpose. See Joseph, Sanctions: The Federal Law of Litigation Abuse 539 (1989), and cases cited. Here the district judge gave no consideration to possible lesser sanctions than dismissal of all of plaintiffs' claims.

4. Without suggesting any impropriety on the part of the district judge, the Court may deem it appropriate to direct that the discipline claim be assigned to a new judge on remand. See Circuit Rule 36.