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.

 

REPLY BRIEF FOR APPELLANTS

 

The brief of appellees Local 46 and its officers makes clear that they have few answers for the arguments advanced in appellants' opening brief. Instead, they hope to prevail by calling names and accusing the appellants of various wrongdoing (often without any record citation), thus obscuring the issues that are actually presented on this appeal. In order to restore the focus on the legal issues, we first summarize in Parts 1 and 2 the arguments that were made in the opening brief regarding the expulsion without due process and on the dismissal of the action for failure to pay sanctions, and then address the explicit or implicit responses contained in the Union's brief. In Part 3, we respond to the two other issues raised by the Union.(1)

1. Discipline Without Due Process.

Appellants contend that, after accepting English's dues payments for four years following his conviction in 1979, the Union improperly expelled him from membership in 1983, and that this expulsion has injured him by, among other things, depriving him of work opportunities since his release from prison in 1986, as well as disqualifying him from his union pension and other benefits. Appellants' opening brief argued that the district judge had erroneously decided that the due process protections of section 101(a)(5) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. ("LMRDA") do not apply when an obviously guilty person is expelled without a trial. This idstrict judge had relied on a series of cases, such as Macaulay v. Typographers Local 13, 692 F.2d 201 (1st Cir. 1982), holding that an adverse change of a union member's hiring hall status is not "discipline." Application of this analysis here erred for two reasons: first, it is not necessary to decide whether a member has been subjected to "discipline" when he has been expelled, because the Act explicitly makes all expulsions subject to due process requirements, and second, in any event, the action taken against English here meets the Supreme Court's definition of discipline: action taken under color of union authority to enforce union norms against a member who is believed to have violated them. Br. at 7-9.

We next argued that the court below also erred by deciding on its own that English's expulsion was proper under the union's constitution, instead of insisting that the union employ its own due process procedures, commanded by its own constitution as well as by the LMRDA, to make that decision. We also pointed out that it was unclear whether English would have been expelled had the proper procedures been followed, both because of the nature of the procedural protections involved and because of the ambiguity of the union constitution. Br. 9-11. Finally, we explained that the district court had erred in yet another respect, because it thought that it was enough that there be "some evidence" of wrongdoing, although the "some evidence" standard applies in addition to, not instead of, the other due process protections of section 101(a)(5). Br. 11-13.

In seven pages of argument defending these novel rulings, Br. at 5-12, the Union cites no authority except for two quotations from the district court's opinion. Of the three arguments summarized above, the Union makes no response whatsoever to our challenge to the "some evidence" aspect of the decision below. The Union does try to respond to our "discipline" and "substitution of judgment" arguments, but, as we now explain, none of its contentions has merit.

The Union implicitly concedes that, if what it did to English is properly called "expulsion," then it is not also necessary for the Court to decide whether the union's action constitutes "discipline," because the due process protections of section 101(a)(5) are triggered whenever there is an expulsion. See Breininger v. Sheet Metal Workers Local 6, 110 S. Ct. 424, 439 (1989); Miller v. Holden, 535 F.2d 912, 914-915 (5th Cir. 1976) (defining phrase "otherwise discipline" by comparing to "the specifically enumerated types of discipline"). In order to finesse this problem, the Union never once uses the term "expelled," referring instead to the "termination" of English's membership status based on an objective reclassification. Union Br. at 5, 10, citing Macaulay. It should be evident that this is mere semantics: an involuntary membership termination and an expulsion are identical, especially to the member whose rights are at stake.

The language of the Act also undermines the Union's attempt to permanently remove English without satisfying the due process requirements of section 101(a)(5). Under section 3(o), 29 U.S.C. § 402(o), a "member" is any person who, having once qualified for membership, "neither has voluntarily withdrawn . . . nor has been expelled or suspended . . . after appropriate proceedings consistent with lawful provisions of the constitution and bylaws . . .." Because English has not withdrawn, he may be denied his membership only by means of "lawful" proceedings: to wit, a trial that meets the due process requirements of section 101(a)(5).

Indeed, the Union does not explain what union actions are included in the term "expulsion," if the class of actions called "membership terminations" is excluded in it. Perhaps even the Union does not take this argument seriously, because, later in its brief, it uses the phrase "termination of membership" to describe what happens under a union constitutional provision that provides for a member to be "expelled." Br. at 9, ¶ f, discussing Article XIX, Section 14.

The Union's only remaining argument, therefore, is that, even though its action against English is one for which the statute requires due process, its failure to accord due process is somehow excused by English's "obvious guilt" or by the fact that he was afforded due process when he was convicted of the underlying offense. Thus, the union argues, at 8, 11, that it would have been "an exercise in futility and a total waste of Union resources" for the Union to have held the trial that is required by law.

It is by no means clear, however, that affording English due process protections would be futile. The Union insists, for example, that even if, under the trial procedures afforded by the Union constitution, a jury of members decided that, although English was guilty of the offense, he should not be expelled, that decision would have to be overridden because the Union constitutional provision that forbids admission to membership of persons lacking good moral character, Article II, Section 2, requires the expulsion of members who, although having such character when they are admitted, lose it during the course of their membership, and are not redeemed by serving their duly imposed jail sentences.

Appellants' opening brief argued, however, that Section 2 applies only to admission and not to expulsion. To refute this argument, the Union cites Section 4 of Article II. The problem with this argument is that Section 4, on its face, only requires application of "this section" to "applicants, new or old members." Section 4 contains no standard for expulsion, but it comes immediately after Section 3, which forbids admission of Communists and adherents of certain other organizations. Thus, the reference to "this section" is more obviously to the immediately preceding section (Section 3) than to an earlier one (Section 2). More important, the construction sought by Union counsel in its brief has, so far as the record reflects, never been adopted by the Union itself. Indeed, requiring the Union rather than the district court to try members in order to determine their guilt and proper punishment permits the union to pass on the meaning of its constitution in the first instance, with the courts then available to review that ruling.

Nor, indeed, is it clear that the constitution would require the expulsion of this particular member, even if Section 2 did apply to expulsions. Before Section 2 may be applied, the question remains to be decided: was English, simply because he was in jail for a sex offense, so lacking in character or competence to demand standard wages that he deserved to be expelled? In order to show that he is, the Union argues that its constitution establishes a bright line rule that permits a expulsion, without a trial, of one who falls within the constitutional proscription. However, different parts of the Union's brief describe different bright lines. On page 5, the Union approves the statement in our opening brief that it was English's status as a convicted felon that barred him from belonging to the union. Then on both page 8, paragraph (b), and page 11, it is the fact that he was in jail that showed the clarity of the application of the constitution, even though Article XXV, Section 11 of the Constitution recognizes that a member may be an "inmate." On page 9, paragraph f, it was English's "unexcused unavailability to work" that allegedly "mandated" his expulsion. Here the Union cites a portion of its constitution, Article XIX, Section 14, on which the lower court did not rely. However, not only does that section not contain the term "unexcused unavailability," but it offers the alternative of taking a withdrawal card or being expelled. Moreover, assuming that there were some provision regarding unexcused availability for work, the union neither explains what the procedures are for obtaining excuses for unavailability, nor demonstrates why a member is not entitled to due process in the exercise of the Union's discretion to grant an excuse, on the one hand, or to expel, on the other.(2)

Finally, on page 10, the Union argues that it is not English's conviction that meets the bright line test; rather, it was entitled to expel him without due process based on "the totality of circumstances." But this is not a bright line test at all; it is, rather, one that requires a careful weighing of the precise combination of circumstances, which is what should have happened but did not happen here, because the Union gave English no process at all. In enacting section 101(a)(5), Congress was quite concerned that, before the union exercise its judgment about whether or not to expel a member, it afford him due process, which must include notice of charges, time to prepare a defense, and a full and fair hearing before unbiased decision-makers. 2 NLRB, Legislative History of the LMRDA 1104 (1959) (Sen. McClellan).

Moreover, it seems inherently improbable that the Union actually adheres to any of the bright-line tests that it describes in its briefs, thus requiring local unions to suspend or expel any person who, for example, spends time in prison or commits a sexual offense. To take but one example, the union movement has been so lax about allowing former officials who have been convicted of, and incarcerated for, various offenses to remain, not just as members, but even as officers, that Congress legislated a ban on employing such individuals for a certain period following their convictions in section 504 of the LMRDA, which it amended in 1984 to increase the time that convicts are barred from holding office. Pub. L. 98-473, Title II, § 803, Oct. 12, 1984, 98 Stat. 2133. Similarly, many unions adamantly defend the employment of members who have been guilty of sexual assaults against fellow workers or against customers. E.g., CWA v. Southeast Elec. Co-op., 882 F.2d 467 (10th Cir. 1989). Particularly given these circumstances, the Court should not accept a representation by Union counsel, made for the first time on appeal, that this union's constitution requires the expulsion of all such individuals without exception.(3)

Moreover, if the Court accepted the Union's contention that leaders may expel members whom they consider to have fallen short of the standards of its Constitution, simply by sending them a letter, the result would be to revive the very problems that Congress hoped to cure by adopting the due process requirement. Under the union's argument, for example, a leader is entitled to make the unilateral judgment that a member is not competent to demand a standard wage and to "terminate" his membership accordingly. Similarly, a leader make may a unilateral judgment about whether a member has good moral character, or, to take a portion of Section 2 that has not been invoked in this case, that the member is no longer a "practical worker" or is not "versed in the trade." These are all highly subjective characterizations, and nothing in the LMRDA indicates that Congress gave union leaders carte blanche to apply such vague terms to terminate memberships without affording the affected individuals due process.

One final aspect of the statute undercuts the Union's argument that this Court should make an exception to the due process requirements of section 101(a)(5) for cases like this: when Congress wanted to make an exception, it wrote one into the statute. Thus, section 101(a)(5) exempts discipline "for nonpayment of dues" from the due process requirements that are imposed in all other cases. Obviously, if Congress had wanted to allow expulsion without due process for persons convicted of crimes, or for persons serving prison terms, or for persons who are "obviously guilty," it would have written those exceptions into the statute as well. Similarly, Congress provided for the removal from office of persons convicted of certain crimes, section 504, discussed supra page 8, but provided neither for their expulsion from the union without due process or, indeed, for the suspension or expulsion of other members. The Court should not legislate additional exceptions that Congress did not approve.(4)

2. Dismissal for Nonpayment of Sanctions.

In appellants' opening brief, they argued that the dismissal of their discipline claim against the remaining defendants, on the ground they had not paid sanctions awarded on other claims and against other defendants, amounted to an improper use of sanctions to collect on a money judgment. They also argued that they could not be punished for not paying money because their failure was based on financial inability, that the dismissal was analogous to an injunction against filing litigation which could not be imposed without assessing the merits of the litigation in question, and that depriving them of the right to sue because of their inability to pay would raise serious due process problems.

The Union never responds to any of these arguments directly, and again, as it did with respect to the discipline issue, it fails to cite any authority. Rather, its hope seems to be that, if it can heap enough invective on appellants (again, much of it without record citation), the Court will ignore the law and simply decide to affirm on the ground that appellants are not worthy of the right to pursue even valid claims in the federal courts.

There are two assertions made in the Union's brief that suggest a legal contention, and on the chance that that is what counsel has in mind, we respond to them. First, when the Union states, Br. at 19, that appellants "claim" that they complied with the October 12 Order to Show Cause, it may be implying that appellants did not comply with that order and that dismissal was warranted for that violation. If that is in fact the argument, then the Union's problem is that it is confusing the filing of a response that it and the district court deemed substantively insufficient to justify the non-payment, with the failure to comply with the Order to file a response at all. Appellants did file a response to the Order to Show Cause, which explained that no payments had been made because of financial inability and medical disability, and thereby answered the questions posed by the district court (how much have you paid, when will you pay, and why shouldn't the case be dismissed). Indeed, the Order to Show Cause indicated that appellants could comply with the Order by stating that no payments had been made. Accordingly, the order of dismissal may not be affirmed on the ground that the Order to Show Cause was violated.

Second, on page 21 of its brief, the Union asserts that the "'discipline claim' has been on file since 1984." See also Br. at 28 (appellants' failure to conduct discovery or depositions concerning the International's role in the "purported termination" of membership). If this is intended to insinuate that the district court could have properly exercised its discretion to dismiss the claim for failure to prosecute, we note that this was not the reason given and hence cannot be the basis for affirmance, inasmuch as the discretion belonged to the district court. Moreover, dismissal on this ground would have been an abuse of discretion. We assume that the proper period for consideration of an alleged failure to prosecute would begin to run after March 7, 1990, when this Court remanded the case to the district court for further proceedings in light of Reed v. UTU, 488 U.S. 319 (1989). As outlined in appellants' opening brief, at 4-6, the district court immediately directed the parties to brief the limitations issue; then invited the Union to move for dismissal on the merits; then issued its Order to Show Cause and dismissal. Surely, the pro se plaintiffs here did not waive their right to pursue this claim because, for period of six months, they did not pursue discovery or otherwise move their case forward while they struggled to survive a blizzard of motions and, indeed, orders from a judge who was anxious to be rid of the case that he termed "the oldest rat in the barn."(5)

Accordingly, dismissal of the expulsion claim was not justified, either on the merits or for the failure to pay sanctions.(6)

3. The Supposed Alternate Grounds for Affirmance.

The Union also advances two alternate arguments in support of affirmance, neither of which has merit. First it argues that English's real name is Guy Levine, and that hence his claims should be dismissed. But the two of the citations provided by the Union involve a plaintiff's right to sue under a Doe surname to protect her privacy, and in neither was the case dismissed; rather, the district courts exercised their discretion to require plaintiff's name to be disclosed publicly. Although a third case, Roe v. State of New York, 49 F.R.D. 279 (S.D.N.Y. 1970) (the Union brief uses the wrong case name and citation) did dismiss for that reason, the dismissal was without prejudice to resubmission of the complaint with at least one plaintiff's proper name, and in any event the ruling seems inconsistent with more recent federal practice in cases such as Roe v. Wade, 410 U.S. 113, 120 n.4, 124 (1973). Had this issue been raised in the district court, it could have been resolved and the caption amended if necessary; it is not a ground for affirmance of the dismissal of the action.

Moreover, the deposition transcript cited by the Union is far from clear about when English changed his name, and the Union provides no evidence establishing that his name is currently anything other than English. In any event, whatever the facts may be, there is no confusion on anybody's part about who the plaintiffs are in this case, and factual differences about Mr. English's legal name, although they might be ground for amending the caption, are no basis for dismissing his claim.

The Union's final contention, that there is no subject matter jurisdiction because English used the word "conspiracy" in his amended complaint, fares no better. We may assume for the sake of argument that the Second Circuit was correct in stating, "The allegation of 'conspiracy' is nothing more than a makeweight which adds nothing to the substance of the allegations against the individual defendants," Abrams v. Carrier Corp., 434 F.2d 1234, 1254 (1970), quoted in Union Br. at 27, although other federal courts have allowed conspiracy claims to proceed. Eisman v. Clothing Workers Balt. Jt. Bd., 496 F.2d 1313 (4th Cir. 1974), aff'g, 352 F. Supp. 429 (D. Md. 1972). Even if using the term adds nothing, neither does it subtract anything. Appellants allege that the Union did not give English due process when it expelled him, and the Union essentially admits that fact, although it contends that it was not required to do so. The amended complaint plainly states a claim under section 101(a)(5), and if the pro se plaintiffs used a word that rings true to non-lawyers as a way of saying that the defendants acted intentionally, but the Court concludes that they should have used different terminology, the rule requiring liberal construction of pro se complaints protects appellants against dismissal, although perhaps not from a motion to strike the offending language if the Court agrees with the Second Circuit rather than the Fourth.

On the other hand, if the Union did not understand the allegations against it in the discipline claim, its remedy was to seek a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure. Whether or not it was unclear or stated a proper claim, the allegation of expulsion without due process, in violation of section 101(a)(5), was surely sufficient to confer subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1337, as well as 29 U.S.C. § 412. Cf. Calhoon v. Harvey, 379 U.S. 134, 137 n.9 (1964) (distinguishing between failure to state cause of action and lack of jurisdiction).

CONCLUSION

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

Respectfully submitted,
 
 

Paul Alan Levy

Alan B. Morrison

Public Citizen Litigation Group
 

Attorneys for Plaintiffs-Appellants

May 31, 1991
 

ADDENDUM

1. In this brief we refer to all appellees generally as "the Union" and by the singular pronoun "it," except where reference is to individual officers or to a union entity itself.

2. Nor is it clear that continuous lack of work disqualifies an individual from continued membership; another section of the Constitution, which would be superfluous if Article XIX, Section 14 required expulsion of all nonworking members, provides that members who do not work may not run for office, Article XVI, Section 1(5). Indeed, the same subsection recognizes that a member may be incapacitated from working yet still maintain active membership.

3. Because the contention that the union constitution compelled English's expulsion was not raised, at the earliest, until the lower court sua sponte assumed it to be so in dismissing the action, appellants have never had an opportunity to test the constitution's meaning, or its application in practice, through discovery. For example, the Union might be asked to produce previous interpretations of the provision, and for all previous applications to expel persons who meet one or another of the supposed bright line tests.

4. The Union complains that it was unable to hold a trial while English was in prison. Br. at 9. It is not at all clear that the Union could not have devised a procedure whereby English could have been represented by counsel in a fair and unbiased intra-union hearing while he was in prison. Nor is there any evidence in the record showing that it was his unavailability for an intra-union trial, as opposed to the filing of Case No. 83-3383 on December 14, 1983, and the continued prosecution of his other cases, that led to the Union's sudden decision on December 27, 1983 to expel him without due process, four years after he entered prison.

5. The quotation is from this Court's unpublished order of November 29, 1988, at 4 n.5, which reproached the district judge for using this expression to characterize this case.

6. Two other points merit comment. The Union relies on a letter that appellants did not sign, Br. at 16; however, counsel asks the Court to accept his assurance that "there is no doubt that English composed it." The Union also complains at great length, Br. at 19-21, that appellants sought to inspect financial documents, wrote demand letters, and wrote to the United States Department of Labor and other law enforcement agencies. Then it complains that the Department subsequently conducted a week-long audit of Local 46's books. From these facts the Union apparently wishes to have the Court conclude that appellants are harassing the Union. But a different inference may be drawn. It seems unlikely that the Department would devote a week of staff time to a field audit of a local union unless it had some reason to believe that it would find something. If English is truly responsible for the audit, as the Union says, that is because he must have provided the Department with evidence that gave it cause to believe it should act.