DUNLOP v. BACHOWSKI

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Argument of Mark L. Evans

Chief Justice Warren E. Burger: We'll hear arguments next in 74-466, Dunlop against Bachowski.

Mr. Evans, you may proceed whenever you're ready.

Mr. Mark L. Evans: Mr. Chief Justice and may it please the Court.

Under Title IV of the Labor Management Reporting and Disclosure Act, the Secretary of Labor has given exclusive authority to file a civil action to set aside an election -- union election conducted in violation of the provisions of the act.

The Court of Appeals for the Third Circuit in this case held that an unsuccessful union office seeker though barred by the act from being in action in his own name to set aside the election may bring an action against the union and the Secretary of Labor to compel the secretary to file a suit even though the secretary had already determined after an investigation that the members complaint was unmeritorious.

The case arose on a complaint file with the secretary by respondent Bachowski alleging that there were violations in the conduct of an election in which he run unsuccessfully for the position of District Director of a United Steelworkers District.

At about the same time, complaints were filed with respect -- excuse me, to elections in five other Steelworkers Districts and after an investigation of each complaint, the secretary filed suit to set aside two of those elections, but he determined not to file a suit in the case of Bachowski's district because he concluded on the basis of his investigation that the violations in that district did not affect the outcome of the election.

Bachowski then brought the present action in the District Court alleging that the violations did affect the outcome and that the secretary's refusal to bring an action was arbitrary and capricious.

The complaint sought an order compelling the secretary to bring an action in his name to set aside the election and directing the secretary in the union to extend the statutory 60-day period within which the secretary may file such an action.

The District Court dismissed the complaint on jurisdictional grounds but the Court of Appeals reversed.

It held that the factual basis for the secretary's determination that the violations did not affect the outcome of the election is subject to judicial review at the behest of the union member whose complaint was deemed by the secretary to be unmeritorious.

That holding in our view was inconsistent with the enforcement scheme of Title IV of the Act because it would permit a complaining union member to circumvent the secretary's screening function under the act and subject the union to precisely the sort of intrusion upon its internal affairs that the act was so carefully designed to prevent.

The mechanism that was established by Congress to enforce the election rights guaranteed under Title IV reflects a delicate balance between the need under one hand to provide effective remedies for election abuses and the congressional concern on the other hand to avoid unnecessary interference in internal union affairs.

Congress feared that needless intervention might endanger union self government and weaken the unions and their role as bargaining representatives.

In the course of considering the act that ultimately was passed, the Congress considered and rejected a number of proposals that would have authorized individual union members to bring suits to set aside an election.

It was thought that such individual suits filed perhaps by union or unsuccessful candidates is a kind of continuation of pre-election in fighting would impose upon the unions the substantial burden of responding to unmeritorious and potentially harassing complaints and would place in the process a debilitating cloud over the title of the elected officers.

In the end, Congress chose to rely upon the discretion and expertise of the Secretary of Labor to perform a dispassionate screening function separating out the meritorious from the unmeritorious complaints and filing an action in his name with respect to those complains that he found to be meritorious.

The individual's role in this enforcement scheme is an essential but a very limited one.

He triggers the secretary's investigative and enforcement authority.

Without his complaint, the secretary can take no action but ones the secretary's authority has been invoked, he and he alone has the power to bring an action against the union to set aside the election within 60 days of the time the complaint was filed and then only if he finds probable cause to believe both that violations occurred in the conduct of the election and that those violations may have affected the outcome of the election.

This Court accordingly held in the Calhoon case that the act prohibits union members from instituting a private suit to set aside an election.

The intention of Congress was to interpose the secretary between the complaining member and the courtroom in order to protect unions from potentially frivolous litigation and a consequent unnecessary interference with their internal functions.

As this Court stated in Trbovich, the intention was to insolate the union from any complaint that does not appear meritorious both to the complaining union member and to the secretary of labor.

The Court held in Trbovich that the acts objectives would not be defeated by permitting the member to intervene in an action already initiated by the secretary, so long as that intervention were limited to issues presented in the secretary's complaint.

The Court also held that the intervening member may not add issues which he originally complained of to the secretary but which the secretary found unmeritorious because that would be a circumvention of the very screening function that have been assigned under the act to the secretary.

In our view, the Third Circuit's holding in the present case would permit a much more burdensome intrusion than the one that the Court held impermissible in Trbovich and that it would even more clearly allow a member to circumvent the secretary's screening function.

Although a suit to review the secretary's determination that litigation is unwarranted would inform perhaps be a suit against the secretary of labor, the union might well be named the defendant as indeed, the union was named the defendant in this case.

But even if it were not named, it would as a practical matter essential for the union to participate presumably as an intervener but no less than as an amicus.

In order to protect its rights in this what would amount to the critical stage of the litigation.

The consequences of a determination that the secretary's refusal to file suit was so improperly based as to be arbitrary and capricious would obviously be damaging in the immediate future because a suit would presumably be filed by the secretary but in the long run because the issues had been fully adjudicated on a different burden through but fully adjudicated in the first action.

And in the course of this proceeding, while the issue presumably as the propriety of the secretary's investigation and decision making with respect to this particular complaint, it's inevitable that among the issues that it's going to be inquired into is the validity of the election itself, which is really the ultimate way you test to see whether the secretary's decision was arbitrary and capricious.

As the Court ultimately held that the secretary abused his discretion in failing to bring an action on the member's complaint, the union would be at that point require either to try to persuade the same judge if it came before the same judge that he was wrong in the first place or if a different judge were assigned to the case, the union will have to put on its whole case again.

That double burden is far greater than the burden Congress thought it was imposing on the unions even if the Court found as it probably would that the secretary's action were not arbitrary and capricious, the union would still have been put to substantially the same burden in participating in this suit to review the secretary's determination that it would have been put to if individual member could have filed on his own.

It is the same burden that Congress was legislating against the burden of responding to potentially frivolous and harassing complaints.

In the end, no matter what result the District Court reaches on the member's suit to review the secretary's determinations, the elected officers of the union would during the period of this litigation presumably subsequent appeals be functioning under a cloud upon their title to office.

That alone we submit would substantially defeat the acts policy of requiring prompt resolution of election disputes precisely to free the elected officials from the debilitating effects of a continuing doubt as to their legitimacy.

The result in some is substantially the result that Congress sought to prohibit in giving the secretary the exclusive authority to bring a post election lawsuit.

Unions under the Third Circuit's rule could be held into Court without limitation, they would be subject to potentially frivolous complaints and the secretary's authority to insolate the union from those complaints and from an unnecessary interference with their internal affairs would be wholly emasculated.

His screening function in effect would be transferred to the Courts.

The Court of Appeals' response to this argument which respondent 1122 in its brief appears at pages 9 (a) to 11 (a) of the petition of the Government, the appendix for petition of the Government.

The Court stated first that a suit to review the secretary's decision not to sue would not subject unions to unnecessary interference because the secretary's decision would be overturn only when there was a compelling showing that he ignored a meritorious complaint, but to say that there would be a heavy burden upon the complaining member does not negate the intrusion.

The interference is not simply the ultimate danger of having the election overturn but the very process of the judicial review which necessarily entails a response to claims that the election was invalid.

Congress recognized that a union's internal affairs are intruded upon and its resources are taxed whenever it is held into Court to defendants election and that is why it sought to insolate the union from frivolous complaints if the only worry were the ultimate overturning of the election, there would have been no need to insolate the union from frivolous complaints.

So the burden of proof makes no difference in the ultimate burden upon -- and the ultimate damage to the union.

Second, the Court stated that unions would remain protected from frivolous claims because the secretary would bare the primary responsibility for defending against the suit to compel the suit.

What is unrealistic I submit to suppose that the union would not actively participate in support of its own elections and since any dissatisfied member could presumably under the Third Circuits ruling bring a collateral action of the sort that was brought by Mr. Bachowski here.

No matter how unmeritorious his complaint, there would be no protection at all.

The union's theoretical right to let the secretary carry the weight of a litigation is not likely to be invoked simply because there is too much at stake for the union.

Third, the Court stated that in -- a subsequent suit by the secretary of the member's collateral attack were successful would be centralized in a single proceeding that I conceive as an effort to satisfy the second of the purposes that this Court stated in Trbovich, which was meant -- in Trbovich was meant to be served by the enforcement scheme that is to centralize in a single proceeding such litigation has might be warranted.

But that itself is in substantial doubt.

Presumably a member who brings this suite to review the secretary's decision not to sue could file it either in Washington D.C. or in his home district.

The secretary is limited under the statute to suing the union if he ultimately brings a suit in the headquarters of the union in this district in which the union headquarters is located.

So there's no guarantee that we're going to be -- you know, this sets -- this new proceeding is going to be even in the same Court.

But even if it were, it creates problems I've alluded to earlier.

If it comes before the same judge, the judge is mine, is essentially made up and said next to impossible burden for the union in the second proceeding to adequately hope to defend itself.

And if it goes to a second judge, the union has to put on the second round of defense.

Finally, on page 11 (a) the Court minimized the damaging effect of a -- on a union of having to function under cloud on the title of the officers.

In its view that concern maybe subordinated to the goal of providing an effective remedy for election of regularities, but Congress though differently, it subordinated that concern only to the extent provided in the act.

Although the Courts have properly permitted the secretary to bring an action outside the 60-day period, when the union itself has waived the 60-day period or where the union itself has obstructed the investigation.

That that kind of estoppel isn't present here and those brief delays are incomparable to the obviously lengthy delays that would be involved here, it maybe months or years before the secretary ultimately files the complaint if the Court tells him he has to.

And of course, during all that time, the union members, the elected officers would be suffering under this doubt as to the legitimacy.

Respondent argues that Trbovich doesn't control this case because the issue of reviewability was not presented in that case and I think strictly speaking, he's right.

The Court held only that the intervening member could not raise additional issues that were not deemed meritorious by the secretary.

But on respondent's theory, Trbovich, though barred from raising those additional issues as an intervener in the secretary's action could have simply gone out and started the separate proceeding to review the secretary's refusal to include those issues in his own proceeding.

That would surely have been more burdensome to the union, more cumbersome to the Courts and I think much more damaging to the acts policies than simply presenting the new issues in the on going proceeding.

While the Court in Trbovich did not concededly expressly consider whether this collateral review proceeding would be proper, there can't be much doubt how that issue should be resolved in light of the principles of Trbovich.

A suit to review with the secretary's determination would effectively circumvent the secretary's screening function and just like the new issue intervention in Trbovich and just like the separate suit in Calhoon, a suit to review the secretary's decision not to sue is barred by the act.

Justice Byron R. White: Does the secretary's decision not to sue must be preceded I gather by his determining that there is not probable cause to believe that there is a violation of the act?

Mr. Mark L. Evans: Either that there's not a violation of the act or that the violation did not affect -- there's not enough probable cause to believe there that it affected the outcome of the election.

And that's not explicit in the statute but --

Justice Byron R. White: It certainly is, isn't that it?

Mr. Mark L. Evans: No it's not, but this Court has --

Justice Byron R. White: Where did you find that?

Mr. Mark L. Evans: Well, it appears in the legislative history, it appears in this Court's decisions and it's been uniform decisions of the Court of Appeals.

Justice Byron R. White: Let's assume it weren't in there -- let's just assume it weren't in there and the statute simply says on its face, if there's probable cause, the secretary shall, shall bring a civil action.

Mr. Mark L. Evans: Well --

Justice Byron R. White: That's it.

Mr. Mark L. Evans: -- it is on its face --

Justice Byron R. White: That's hardly -- that's hardly unlimited, discretion in the secretary, isn't it?

Mr. Mark L. Evans: Well, we're not saying as unlimited discretion.

We're saying as --

Justice Byron R. White: Being as un --

Mr. Mark L. Evans: -- unreviewable discretion and there's --

Justice Byron R. White: You say it, there's a view?

Mr. Mark L. Evans: -- a difference.

There's a substantial difference.

Justice Byron R. White: Well, not the way you put it in your brief.

Mr. Mark L. Evans: Well, I think if you read the brief, a lot of my argument it'll --

Justice Byron R. White: Like your legislative history?

Mr. Mark L. Evans: Well, the legislative history I'm referring to Mr. Justice White, it's very explicit in the section by section analysis in both the senate reports.

It states and indeed that was quoted in this Court's decision in the Hotel Employees decision I believe.

Justice Byron R. White: But you say -- you say that the secretary should have the unreviewable discretion of a prosecutor deciding not to file a charge.

Mr. Mark L. Evans: Well, I -- .

Justice Potter Stewart: The same as the general counsel for labor board?

Mr. Mark L. Evans: Precisely, now, that's really -- that issue is an important issue I think but I -- it really isn't even in this case because there's no question that the secretary here found that there was violations that did not affect the outcome of the election.

Now, if he had relied on some collateral factors, we might be in, I'm sure we wouldn't be here arguing that he would be entitled to do so to a certain extent.

Certainly to the extent seems to me of taking into account all factors that bare upon the likely success of his suit because if he were to file a suit that he thought had no hope of prevailing, it would surely impose upon the rights of the non complaining members.

Justice Byron R. White: But you say the secretary could be as arbitrary as he wants to in turning down a suit?

Mr. Mark L. Evans: Well, we all say he can be arbitrary, we just say that his exercise of discretion --

Justice Byron R. White: You say it's unreviewable?

Mr. Mark L. Evans: Well, but that's not the same thing Mr. Justice White.

Justice Byron R. White: It doesn't make any difference whether it's arbitrary or not.

Mr. Mark L. Evans: Well, it doesn't make any difference in --

Chief Justice Warren E. Burger: Besides desire from his job?

Now, if he --

Mr. Mark L. Evans: Precisely.

There are other sanctions, Congress made a very deliberate decision to trust.

Justice Byron R. White: Whether it's arbitrary or not, you say it's not judicially reviewable?

Mr. Mark L. Evans: Precisely.

One of the differences between your prosecutorial discretion type of case and this case is that with the typical criminal case, your complaining witness at least has some sort of a private remedy.

And here I take it Congress has preempted all private remedies so that if the secretary refuses to file, the complaining party has no remedy?

Mr. Mark L. Evans: Well, that's true in the sense but it's also true to general counsel of the labor board.

If they -- an employee files a charge that he was dismissed because of union activities and the general counsel after investigating it decides not to file a complaint for one reason or another, arbitrary or not, there's -- it's established that there is no further right.

He's -- that's his only right, his only remedy is to have the protection of the general counsel and thereafter the board.

Justice William H. Rehnquist: Is that clear that he has no other right at all?

Mr. Mark L. Evans: Well, my understanding is that if with that kind of a charge, you would have no other right.

There maybe other kinds of charges that would be filed against an employer that he would have a right to go to Court.

Justice Potter Stewart: Did the analogous language in the National Labor Relations Act with respect to what the general counsel shall do upon the filing of a charge with him, does it say he shall if he founds --

Mr. Mark L. Evans: If the language really is differently structured Mr. Justice Stewart, the -- what it says is in more -- it's a little bit clearer on the face of the statute.

It says that the general -- believe the general counsel's decision whether to file a complaint will be final or has a final authority on behalf of the board to determine whether complaints should be filed.

Justice Potter Stewart: So, you can't very much rely on the similarity of language?

Mr. Mark L. Evans: No, I', relying on --

Justice Potter Stewart: You're enforcing to the similarity of function and of --

Mr. Mark L. Evans: Exactly and --

Justice Potter Stewart: -- structure.

Mr. Mark L. Evans: And the whole.

The whole structure of this acts enforcement scheme makes it plain how the -- what the result is should be the same as with the general counsel of the labor board.

We have ceded five minutes of our time to Mr. Gottesman who's here on behalf of the Steelworkers, I'd like to remain the balance of my time.

Chief Justice Warren E. Burger: Very well Mr. Evans.

Mr. Gottesman.

Argument of Michael H. Gottesman

Mr. Michael H. Gottesman: Mr. Chief Justice, may it please the Court.

Congress when it enacted the Landrum-Griffin Act, it spent more time on shaping the enforcement remedy of Title IV than almost any other of its provisions.

And it spent so much time because it really had two essentially conflicting objectives that it was trying to accomplish.

And it was trying to calibrate precisely the right balance between them so that it had an effective enforcement mechanism but one that was not going to injure its other concern and that other concern was that unions be able to function effectively and that they have stability of leadership and that their leadership not always be under a cloud.

Now, how did Congress shaped that balance?

We know of course that their one concern, the major concern was to have democratic union elections.

And to that end, they enacted not only a very comprehensive substantive code but they put the full weight of the Federal Government into the enforcement of that code.

They said the labor department shall investigate at the behest of any member and if the secretary of labor found probable cause that a violation may have occurred that he bring a lawsuit.

Now, I might say that there is no other election in this county, public or private that's regulated as extensively, either substantively or in terms of the enforcement machinery as union elections are under Title IV and that so whether or not you add to that arsenal the additional item of judicial review that is sought in this case.

Now, though Congress provided that arsenal of enforcement, substantive and enforcement machinery, it was also very concerned about the implications of that.

And the implication it was most concerned about was that if in every union election, there could then be a subsequent legal challenge which could go on indefinitely.

The title to union office would be under a continuing cloud and the capacity of unions to function would be adversely affected.

Congressman after all or politician, they know that in an election year, there is some legislation that doesn't get passed or considered.

There are some steps that aren't taken.

And they were concerned that if union elections could be under a constant challenge, union officers would be like elected officials in the election year all the time.

They would always be pulling their shots for fear, number one that there's an election right around the corner and not only would they be pulling their shots but the employees who look to them for direction and the employers who have to deal with them at the bargaining table would not be certain, number one, whether these people were ever properly elected in the first place and number two, whether they're still going to be there a week from now, and it would affect and vitally affect the whole collective bargaining process and the whole internal process of unions.

And so, though Congress created this machinery for enforcing union democracy, it also provided very carefully for when the curtain would be run down on that machinery and when it could be said, okay, members of this union, your officers have now been finally determined, the status is no longer under a cloud, employers know who to deal with, employees know who to look to and you shall now go on for the duration of the term.

And to that end, Congress number one, could very reach a time limit into the complaint mechanism of the statute.

Members have to go to the secretary within a specified time.

If the secretary is going to sue, he has to bring that lawsuit within a specified time.

Congress was anxious in that way, it said time was of the essence to end the cloud on title of the union office.

Beyond that, Congress expressly took away the right of individual union members to institute these lawsuits because that would have left to any union member the capacity to put the union title under cloud.

And finally, what Congress did was to say that this action which the secretary of labor could bring if he found that there were violations that may have affected the outcome was exclusive so that it ay clear that if the secretary reach the contrary determination, there would not indeed be a continuing cloud over the union office, the curtain would ring down, the officer's title would be clearly established.

Now, to allow the suits of the type that's involved here totally undoes that statutory structure.

It totally undoes it because it puts back in the hands of every union candidate in every union election the capacity to indefinitely leave title to union office under a cloud.

Justice Byron R. White: Do you think the secretary ought to leave behind him some evidence that he has done the job, the --

Mr. Michael H. Gottesman: Absolutely, I think this Court could well inquire as to what procedures should lead up to the secretary's decision.

Justice Byron R. White: Do you think there's -- there might be judicial review to the extent of requiring the secretary to A. process a complaint and B. to do it in accordance with the statute.

Mr. Michael H. Gottesman: I think as to A. the failure to investigate clearly, he could be mandamus to investigate as the statute requires.

Justice Byron R. White: And also required to make a decision on the complaint?

Mr. Michael H. Gottesman: Absolutely.

Justice Byron R. White: As to whether the file or not.

Mr. Michael H. Gottesman: Absolutely.

Justice Byron R. White: And must he also as I say leave some tracks that indicate that he has decided, there is not probable cause?

Mr. Michael H. Gottesman: Well, the Court below said that he had to and it said that it would have reached that result independent of the reviewability of his decision.

They said “we want people to state the reasons for administrative action.”

Justice Byron R. White: And how about -- how about that, do you disagree with that?

Mr. Michael H. Gottesman: Not at all, nor does the secretary.

Justice Byron R. White: And so that he can be required to state reasons as to why he doesn't think there's probable cause or does he just have to say that there isn't probable cause?

Mr. Michael H. Gottesman: Well, the Court below said, he's got to tell the complaining member of the reasons and the secretary expressly has said that he is not seeking review of that determination.

Justice Byron R. White: Not either of the certiorari?

Mr. Michael H. Gottesman: No, not at all.

Now, if all we were concerned about was the fact that theoretically one member in that rare case in a million where the secretary is arbitrary could institute a lawsuit, the concern about clouding union title wouldn't be very great.

But I think we have to realistically recognize that there are incentives to bring these lawsuits other than the prospects which are always going to be small that they can be successful.

The losing candidate in the union election if he hopes to run again needs a forum to keep his name in attention, to keep his charges against his opponent alive and these lawsuits are magnificent vehicles for that purpose.

There's nothing the media of more than internal union conflict.

The filing of this lawsuit is attracted enormous media attention.

The charges that are made in the complaint in this lawsuit have been repeatedly recited in the press in the Pittsburg area.

And of course, there's also the opportunity for discovery which is useful to a candidate who'd like to find that with which to campaign next time around.

So that these lawsuits will be seen as attractive vehicles by candidates irrespective of whether they think there's any realistic chance of setting the secretary's decision aside as arbitrary and capricious.

And thus, you can anticipate that in order to accommodate that one case in a million where the secretary is arbitrary, you're going to totally topple the congressional concern that union officer's titles not be under an indefinite cloud at the behest of any union member.

Now in closing, I'd like to note that we think the -- though the statutory interpretation question is clear, there would be a very serious constitutional question if this Court were to read the statute differently than we do.

Never at least as far as any of these parties have been able to find, as the Federal Courts ever directed the executive branch to bring a lawsuit before them.

There's a serious separation of powers question of whether the Court assumes a prosecutorial, mental when it not only directs the secretary to file a lawsuit but of necessity tells him what allegations to include in the complaint in that lawsuit.

And the Court would have to do that because after all not every one of the dozens of charges that the complainant may bring to the Court was necessarily so powerful that the secretary was arbitrary and capricious and not suing about it.

The Courts is going to have to shift through those and say Mr. Secretary, I think you oath to sue on items 1, 5, 9 and 12, you are arbitrary and capricious on those.

So the Courts in the process of telling the executive branch, file a complaint before me, here are the allegations I want you to make and it's ironic that under a statute in which Congress evidence no intent for such review that we would have to get to such a constitutional question.

Thank you.

Chief Justice Warren E. Burger: Mr. Rauh.

Argument of Joseph L. Rauh, Jr.

Mr. Joseph L. Rauh, Jr.: Mr. Chief Justice, may it please the Court.

This case is rendered simple by two points.

First, the provision of the verified complaint admitted before this Court that the secretary's own investigation substantiated our allegations of violation and affected the outcome of the election.

We pleaded more than we have to Mr. Justice White, you made the point that says only that the violations, we pleaded the violations, the secretary found them and that they may have -- and more -- this -- the most statute could require is that they may have affected the outcome, we pleaded that they did affect the outcome, that's admitted before this Court.

Second, that's paragraph 18 of our complaint.

Second, the statute provides that under the admitted circumstances of this case on the complaint namely that the secretary's own investigation found violations which affected the outcome of the election, the secretary shall sue to upset the election..

Not may sue but shall sue.

If you look at the Government's brief on page 3 where they set forth, the statute -- secretary -- the statutes reads, the secretary shall investigate such a complaint and if he finds probable cause.

And the most that probable cause could mean is that there are violations and they may have affected the outcome, we pleaded more.

If he finds probable cause to believe there has been a violation, he shall bring a civil action.

Now, --

Justice Byron R. White: Where do you say it's admitted?

Mr. Joseph L. Rauh, Jr.: Well, of paragraph 18 of our complaint sir.

It's on page 5 (a) of the --

Justice Byron R. White: Yes, but why do you say the Government admitted it?

Mr. Joseph L. Rauh, Jr.: Because it was dismissed on jurisdictional grounds.

You see, this -- there was never an answer filed.

The Court dismissed the complaint on -- the District Court dismissed the complaint on jurisdictional grounds and therefore obviously everything we have pleaded not only must be accepted but must be -- not only accepted but has to be given a favorable construction.

The Court said -- in essence what the Court said, nothing you can plead will change my mind.

I got nothing to do with this.

And so --

Justice Potter Stewart: Which paragraph are you complaining to?

Mr. Joseph L. Rauh, Jr.: 18 sir.

Justice Potter Stewart: 18, on page 5 (a) of appendix.

Mr. Joseph L. Rauh, Jr.: Yes sir.

Now, this is --

Chief Justice Warren E. Burger: Was your suit in the District Court something in the nature of a mandamus action?

Mr. Joseph L. Rauh, Jr.: In the nature, yes sir but it -- you could either -- we didn't call it that but I think you could say it was in the nature of mandamus action sir.

Chief Justice Warren E. Burger: Is mandamus action not limited to an inquiry and to whether the procedure followed was proper?

Mr. Joseph L. Rauh, Jr.: No, it's a mandamus action only in the sense it would require the secretary to do something.

It's not a mandamus action and it's a review action of the secretary set of conduct.

Chief Justice Warren E. Burger: Mandamus does not lie to compelling discretionary act, does it?

Mr. Joseph L. Rauh, Jr.: Well I -- I may have misspoken but it was mandamus in the sense that we require him to do something but it wasn't the normal review, the normal judicial review and administrative agency is to require them to do something, to do something different than they wanted.

In that sense, it's a perfectly normal review.

Justice Byron R. White: Do you say that this case is all different than if the secretary had said, I know you file a complaint but I'm just not going to process it?

Mr. Joseph L. Rauh, Jr.: That's exactly what he did.

His own investigation showed this.

Now, you may ask me how do I know this.

We have a verified complaint to this.

We have it from the Pittsburg office of the secretary of labor.

That's where we got it.

We don't -- Mr. Kenneth Ublansky is a member of this Court

Justice Byron R. White: Suppose you would say that the secretary should have -- he should have answered and said I investigated and I performed my duty and I move to dismiss?

Mr. Joseph L. Rauh, Jr.: He could have done that but he didn't.

Justice Byron R. White: Well, I know but if he to said that, wouldn't it -- wouldn't the Court had been through then?

He wouldn't had to have a trial?

Mr. Joseph L. Rauh, Jr.: Well, we will -- I think we would have had a right to review.

Now, I like to -- this is exactly the point sir.

This is not a case of arbitrary abuse of discretion.

This is far worse than abuse of discretion.

The secretary had no discretion to abuse.

This is a simple case where the secretary refused to act on his own investigation as required by the statute.

But the statute in this case just fits it but I don't -- and that point has never been referred to by the Government.

The Government never said anything.

You didn't hear a word said about paragraph 18 and the allegation there but let me say this, I like to look at it in a broader context.

I think the case is over when we alleged probable cause, it's dismissed on jurisdictional grounds and then we come here.

I think we've won the case but I'm going to argue --

Justice Potter Stewart: Well, that's what the case is about, isn't it?

Mr. Joseph L. Rauh, Jr.: But no, I want to argue a broader point.

I think there is a reviewability of abuse of discretion.

Even if you didn't accept, I want to go farther.

I want to look at this at the broader point.

I disagree completely with the Government on the question of abuse of discretion.

The Government says there is no right of review of abuse of discretion.

I'd like to argue that as the major point even though the minor premises, I don't know that should get to that.

Now, on the major premise, what's APA all about if this isn't an APA case?

There's a presumption of reviewability under APA.

It takes clear and convincing evidence to rebut that presumption and actually we don't even need that presumption because there are more congressional indicators of intent to review than there are the other way.

There's the mandatory term of the statute, I won't repeat that.

There's the desire of Congress to preserve preexisting rights to which Justice Rehnquist addressed himself.

This interpretation of the Government does away with all our preexisting rights.

It means, we the minority in the unions who had a right to sue under the constitution under old state law, to sue under the union constitution, now lose that right and they say the secretary can arbitrarily take that away, that couldn't have been the congressional intent.

Indeed --

Justice William H. Rehnquist: Congress took the right away to sue under state law?

Mr. Joseph L. Rauh, Jr.: Yes sir.

Justice William H. Rehnquist: Now, you don't challenge that?

Mr. Joseph L. Rauh, Jr.: No, no.

I precisely because they took it away.

Justice Potter Stewart: You rely on that?

Mr. Joseph L. Rauh, Jr.: I rely, thank you sir.

I rely on it because they couldn't have both taken it away and then said the secretary who now is your union lawyer -- your lawyer for you to vindicate those rights can do it arbitrarily.

Justice William H. Rehnquist: Woo, when you say they couldn't have done that, your been to lose me because I would think Congress could say you have no rights under state law and the interest in having union title unclouded is sufficient that we're going to give the secretary unreviewable discretion.

Would you say there's a constitutional --

Mr. Joseph L. Rauh, Jr.: I would but I don't have to.

Justice William H. Rehnquist: I would think you don't have to.

Mr. Joseph L. Rauh, Jr.: I said I don't have to, say there's a constitutional problem, there might be a contracts clause.

A member has a contract in his union sir and it may deprive him of those rights but I can't under due process but I don't need that.

There's no intent, there's no showing they intended to do that.

In fact, the showing is that they wanted it the other way in 403, they squarely say, we protect the preexisting rights prior to the statute -- prior to the election, we don't protect them after the election, the secretary is to protect them.

I can't believe they intended to give the secretary that right to protect them and then say he could be as arbitrary as you wanted in protecting it.

Indeed, they call him the union member's lawyer.

Well, don't tell me I got a lawyer who is able to be arbitrary in handling my case.

That's what they're in effect saying.

Secretary's done that.

You're going to the basic purpose of the statute.

The statute was for union democracy.

Is it to be interpreted?

Do they want it to give the secretary the arbitrary right?

I didn't hear anybody challenge the statement that we made on the bottom of page 6 in our brief.

Counsel for the secretary in the Court below when -- this is footnote 4.

Counsel for the secretary in the Court below when asked whether the Government's claim of immunity from review included a case where union made a substantial political contribution in return for the secretary's decision not to sue, answered in the affirmative.

Cited, I don't know what --

Chief Justice Warren E. Burger: Wouldn't the secretary something a little different or a little more than attorney for the union.

Doesn't he occupy a role or something like the one of the Attorney General of the United States when it's described as a quasi judicial function?

Mr. Joseph L. Rauh, Jr.: In this --

Chief Justice Warren E. Burger: A magisterial function, is it not?

Mr. Joseph L. Rauh, Jr.: It's a function that involved some discretion.

Not in this case as I pointed out earlier.

But in the ordinary case, there would be some discretion.

Chief Justice Warren E. Burger: Well, in the first instance when the problem is presented to him, he is to act as something in the nature of an umpire, he is neither on the side of the union or on the side of the decedents, isn't that true?

Mr. Joseph L. Rauh, Jr.: He had a double function Your Honor, there was something in a nature of an umpire but Senator Kennedy said on the floor and as this Court referred to in Trbovich, he also was to act as a union member's lawyer because the union couldn't sue -- the union couldn't sue himself.

Chief Justice Warren E. Burger: But once he has decided that an action should be brought?

Mr. Joseph L. Rauh, Jr.: No I think he was the union member's lawyer, I don't think it was in that connection sir.

It seems to me, if you are the lawyer, you are the lawyer.

I don't think it was a -- it was limited as to time service.

Chief Justice Warren E. Burger: We're talking about the Attorney General of the United States but we also have often said -- many Courts have said, he has a magisterial function --

Mr. Joseph L. Rauh, Jr.: Prosecutorial function too.

Chief Justice Warren E. Burger: Magisterial too.

He must first make the decision whether he is going to bring the suit and then once he has made that decision then he is an advocate and adversary.

But until the secretary of labor has made the decision here, do you suggest he is adversary?

Mr. Joseph L. Rauh, Jr.: He has the double function according to the Senator Kennedy saying we are taking away the right of the Union member to sue, we're treating the secretary's union member's lawyer.

He has a double function there sir.

There's no way of getting away from the double function.

Justice Thurgood Marshall: Does the -- under the statute have the right to take with the consideration to public interest?

Mr. Joseph L. Rauh, Jr.: Whatever that might mean sir but in a case where you have the violations affecting the outcome, I can see no other judge malefactor that would come in to it.

But furthermore, he didn't --

Justice Thurgood Marshall: He doesn't have to find his public interest in what you say it is, does it?

Mr. Joseph L. Rauh, Jr.: No sir but he has to find it and something I think that a Court could reasonably feel was the public interest.

It would be that point which I would --

Justice Thurgood Marshall: As if the statute didn't give it to him.

Mr. Joseph L. Rauh, Jr.: If it didn't give him final power, if it did, it sure an exception because after APA, the number of cases this Court has said are totally unreviewable or might be limited.

Justice Byron R. White: Mr. Rauh, as I understand, you seem to have made two points.

One, that the secretary didn't even do his job here or even purport to do it.

Mr. Joseph L. Rauh, Jr.: Yes.

Justice Byron R. White: And secondly, that even if he did it, he was arbitrary, arbitrary does it?

Mr. Joseph L. Rauh, Jr.: Yes, precisely Your Honor.

Justice Byron R. White: Now, the first issue seems to have voiced down in this case, its because the Government doesn't contest and neither does the opposing union contest, the secretary has to make the decision, it has to get reasons for it.

Mr. Joseph L. Rauh, Jr.: On the --

Justice Byron R. White: Now, in which event, he is going to demonstrate that he is at least covered to track the act indicate he should cover?

Mr. Joseph L. Rauh, Jr.: Sir, for 16 years, the labor department has not given reasons.

Justice Byron R. White: Will I know but --

Mr. Joseph L. Rauh, Jr.: Wait a minute, when we were here in this Supreme Court, you always get improvement in the Government when you're in the Supreme Court.

When we were in the Supreme Court for the first time in 16 years of the statute, they finally admitted they had to give reasons.

Now, why in heaven's name should they have to give reasons and not have to justify the reasons?

Suppose they said I didn't want --

Justice Byron R. White: Well I know but that isn't my point now.

I just want to know now, is the first issue washed out?

Mr. Joseph L. Rauh, Jr.: No sir.

Justice Byron R. White: Well, why hasn't it, because now they're going to have to give reasons, they're going to have to prove that they didn't disregard the complaint, that they made the investigation, there isn't probable cause and here's why.

Mr. Joseph L. Rauh, Jr.: They're not going to be able to show that they made --

Justice Byron R. White: Well, --

Mr. Joseph L. Rauh, Jr.: -- they gave us oral phone call we are not going to sue.

That's what we learned about this.

Now, a year later --

Justice Byron R. White: Well I know but that was before.

Mr. Joseph L. Rauh, Jr.: That's right.

Justice Byron R. White: Before this decision.

Mr. Joseph L. Rauh, Jr.: Before we got to the Supreme Court and all of a sudden, the labor department when they're in the Supreme Court suddenly says, oh, we're happy to give you reasons and they start giving them.

Justice Byron R. White: Well then which event you will -- if that is what occurred, then you're going to know that they have at least purported to do their job.

Would you claim your paragraph and the complaint alleges and that is then they didn't?

Mr. Joseph L. Rauh, Jr.: Well, I think that's final until we go back and look, we can go back to the District Court if this is reviewable and they can then say what they want to say about it, which they didn't say before.

They can say it in the District Court when we go back under the Third Circuit.

Now, look at their indicators, the Government's indicators on how weak they are.

They say, we're trying to circumvent the mechanism of the act.

We're not trying to circumvent anything.

We have to prove arbitrary and capriciousness.

That isn't the same as trying to sue.

The exclusive remedy far from helping them hurts them.

Congress, when they gave an exclusive remedy, must have felt they weren't going to be arbitrarily applied.

You don't give exclusive remedies for arbitrary application and I think Trbovich settles this.

Everything said this Morning by the representatives or the Government and the union was said by Solicitor General Griswold to this Court in 71 when I argued the Trbovich case against him.

He said the exclusive remedy shows you can't intervene.

Well, the exclusive remedy no more shows you couldn't intervene as this Court held than it shows that you can't do anything about it.

This Court rejected the proposition that the private poor minority in the union was helpless.

This Court rejected that and it must reject it again.

Indeed, it's funny if you look at the Government's brief, you might have your luck look back because it's funny.

What the Government's brief and its legislative history did was just a pluck at right out of Trbovich and yet this Court had said in Trbovich, this is what the Court said in Trbovich about the Government, the secretary.

In his view, the legislative history shows the Congress deliberately chose to exclude union members entirely from any direct participation in judicial enforcement proceedings under Title IV and then you rejected this unanimously.

And the exact same legislative --

Justice Potter Stewart: I don't quite understand your point of what was plucked out of what brief or what case?

Mr. Joseph L. Rauh, Jr.: Out of the Trbovich Government brief, they plucked the legislative history section of this brief which Your Honors had already rejected in Trbovich as not showing you wanted to exclude the minority member from any union part -- any participation in the process.

Justice Potter Stewart: This brief plucked from --

Mr. Joseph L. Rauh, Jr.: Yes sir.

Justice Potter Stewart: -- Trbovich.

Mr. Joseph L. Rauh, Jr.: It's almost identical.

It was -- I got a good laugh because somebody just copied it out.

And it was exactly what you rejected on the very point that's before this Court.[Laughter]

Touche sir.

Well, yeah, they made a lot of the time that cloud over title.

Honestly, the only word that can describe that coming from the secretary of labor is foot spa.

The secretary has stalled and stalled these cases.

As the Yale law journal says in a careful 180 page study of their performance over 15 years, they violate the 60-day provision time and again, take much more than 60 days to sue and they take two and a half years on the average, one from complaint to judgment.

For them now to come and say that we shouldn't be able to sue because of the time schedule is shocking.

On prosecutorial discretion Mr. Justice Rehnquist said it, I think just right that there's a civil remedy still available in the criminal field and that is the difference and of course there is none here.

Justice William H. Rehnquist: Of course the argument of opposing counsel is that under the NLRB, there isn't any --

Mr. Joseph L. Rauh, Jr.: I was going to just get to the NLRB sir.

It's difference for many reasons.

I guess the simplest one would be from the statute.

Mr. Justice Stewart, you are referred to the statute.

I had -- the languages in the footnote 6 on page 15 of the brief amicus curiae for the association for union democracy, it's the blue brief on page 15, they have the language, it says that he shall have power to issue a complaint that nowhere says that he shall do so.

But more important, that's just that the language is different but much more important than that is it was difference in that.

It set up new rights.

It didn't take away any rights and that is the fundamental difference between the two to say nothing of all the procedures that they have at the labor board and they have none here whatever.

But the real point is that they -- that the labor board is predicated on new rights given under the original Wagner Act which didn't exist before.

Here, a great part of what is given was predicated on all rights which will be gone forever if they could be arbitrarily destroyed by the secretary's action.

Justice William H. Rehnquist: But isn't the effect of Arman and other cases like that to hold that when the Wagner Act in creating rights actually preempted rights that might have existed under state law for the same purpose?

Mr. Joseph L. Rauh, Jr.: I don't, but they may have preempted some but by in large sir, there was nothing in the labor law compared to what the Government admits is -- was here.

The Government admits on page 12 of their brief exactly all of the pre existing rights that we did have.

There was nothing compared to that.

The situation is totally different with the Wagner.

Of course, there's a lot of dissatisfaction with the rule.

It leaves that general counsel, they report unreviewable but I don't need to go into that because it is totally different in this section.

When you weigh the two sets of indicators, the language, the preexisting rights and the purpose of the statute, I most respectfully suggest to this Court that there is clear and convincing evidence of none, that the clear and convincing evidence is of reviewability and not of none reviewability, I don't need to go that far.

They have -- they've got the burden that we -- they've got the clear and convincing evidence, how anybody, I cannot believe that anybody could suggest that there was clear and convincing evidence that Congress intended non-reviewability.

Justice Potter Stewart: By reviewability, you mean that the District Court had the power at your behest to order the secretary to file a suit?

Mr. Joseph L. Rauh, Jr.: Yes sir.

Justice Potter Stewart: To set aside the election?

Mr. Joseph L. Rauh, Jr.: Yes sir.

Justice Potter Stewart: So that extent and --

Mr. Joseph L. Rauh, Jr.: Oh I'd Mr. --

Justice Potter Stewart: That's the earlier question of the Chief Justice, you -- this isn't the nature of a mandamus?

Mr. Joseph L. Rauh, Jr.: It's mandamus in remedy, it's a review of administrative action under the APA.

I don't think anybody's ever challenged that it's reviewable under the APA if it isn't.

The Government doesn't challenge this?

If --

Unknown Speaker: What?

Mr. Joseph L. Rauh, Jr.: The Government does not challenge that if the exception to APA does not apply namely that this is left entirely to the agency that the APA doesn't apply.

They're not suggesting the APA doesn't apply, they say the APA does apply but --

Unknown Speaker: This falls on one of the --

Mr. Joseph L. Rauh, Jr.: The deception so they don't even make --

Justice Potter Stewart: By one of it's exception?

Mr. Joseph L. Rauh, Jr.: One of the APA's exceptions.

Yes Your Honor.

Unknown Speaker: Mr. Rauh, are you suggest that if you prevail in this proceeding in the District Court, the Government can do what?

Mr. Joseph L. Rauh, Jr.: They can file an answer.

They haven't filed one yet.

Unknown Speaker: Well, for example --

Mr. Joseph L. Rauh, Jr.: And say there was no probable cause.

Unknown Speaker: Suppose I did, suppose they suggested, you're quite wrong in your allegations in paragraph 18 that indeed there wasn't investigation and there wasn't conclusion by the secretary that there was no probable cause to concede, then what can you do?

Mr. Joseph L. Rauh, Jr.: Well, we can show as we will show that that defense is totally false.

I'll use that word.

That that is not the facts of this case.

We have --

Unknown Speaker: Well, I'm positing that they do show it, no matter what you say.

Mr. Joseph L. Rauh, Jr.: Well, they -- if they show that there was no probable cause.

We lose on the ground it wasn't under the statute or wasn't arbitrary.

We can lose on the facts, the questions whether we have a right to show that they violated the statutory provision or that they abused their discretion.

Unknown Speaker: No matter what there showing maybe, you say you can challenge it in that proceeding?

Mr. Joseph L. Rauh, Jr.: Yes sir.

But they can show that they weren't arbitrary or that it didn't apply and that isn't a very high thing.

We have the burden of showing that they're wrongs is going to be pretty difficult.

I think we can do it because of what we were informed that the Pittsburg office says exactly what paragraph 18 says and that this was sworn to by our plaintiff and notarized by Mr. Ublansky.

Unknown Speaker: Or you do wind up in any case where the secretary spreads on the record as they conceded he must that he had made an investigation and that there was no probable cause for the following reasons, you are still entitled to have judicial review of that determination?

Mr. Joseph L. Rauh, Jr.: Only to the extent that it was arbitrary and capricious.

Or in our terms, that they are not saying what the facts are.

Justice William H. Rehnquist: And you have a right to presumably depose and --

Mr. Joseph L. Rauh, Jr.: Yes Your Honor.

Justice William H. Rehnquist: -- to conduct discovery?

Mr. Joseph L. Rauh, Jr.: And that's what the Third Circuit said we had and what they --

Unknown Speaker: So that means that every determination of the secretary under this statute bottomed as the Government now concedes it must be bottom, you nevertheless may challenge.

Mr. Joseph L. Rauh, Jr.: Well for ones Your Honor the Government doesn't even claim there is a real burden here.

There's so few cases.

There's so few times of poor minority member of a union can go this far.

They can's lawyers, they can't get every -- the number of cases you can put in my eye.

Unknown Speaker: That this Courts are enough be represented by Jo Rauh.

Mr. Joseph L. Rauh, Jr.: Thank you sir.

In conclusion -- did I cut you off, I didn't -- I mean to, I -- [Laughter]

After that beautiful statement, I didn't mean to be rude sir.

Justice Potter Stewart: Before you reach the conclusion, I'm -- it's not clear to me what the chronology was here.

Reading from the government's brief on the merits on page 5, it says two days after the complaint was filed and before the secretary had an opportunity to file a formal answer, the District Court after a short oral argument dismissed the complaint for lack of jurisdiction.

Now, what -- there must have been a motion to dismiss?

Mr. Joseph L. Rauh, Jr.: Yes sir.

If you look on page 1 of the record sir, under November 12, ordered entered on proposal file 11973 granting defendants oral motion made that hearing in Chambers to dismiss.

To see it was right, it's right.

That's the only reference to it but --

Justice Potter Stewart: File a motion to dismiss?

Mr. Joseph L. Rauh, Jr.: That's right, there on the relevant doctrine.

Justice Potter Stewart: Because the indication is in the Government's brief that the secretary was contemplating that he would file an answer.

Mr. Joseph L. Rauh, Jr.: Now he made -- immediate oral motion to dismiss sir.

Justice Potter Stewart: That it says before the secretary had an opportunity to file a formal answer, is that it is prejudiced by this --

Mr. Joseph L. Rauh, Jr.: So it's just sir, I just -- I cannot believe that docket entry is wrong.

Justice Potter Stewart: Well, there must have been something that triggered the District Court to --

Mr. Joseph L. Rauh, Jr.: Well, it's right there sir.

Justice William H. Rehnquist: By application for TRO.

Mr. Joseph L. Rauh, Jr.: Yeah, and a motion to dismiss against the TRO.

They could have just opposed the TRO.

They moved to dismiss as an opposition to it.

In conclusion, I want to make the confession that I think the two amicus briefs are better than mine.

And it is -- I don't say that better larceny, but they are but they're better briefs.

And better briefs because they deal with the real world.

I couldn't do that.

I can't get up here and tell all the facts about this fight.

I've been in it.

But these two amicus briefs I respectfully suggest are the heart of what this is all about.

In the association for union democracy brief, they make clear that the whole purpose of this statute comports with reviewability.

It's a beautiful piece that was written by the distinguished Yale professor of law, Clyde Summers and by my former associates, Mr. Feldene.

The other brief by the UMWA is an allotment effort to explain what the fight for union democracy is been all about and on page 3, it says the struggle by UMWA members to overturn tyranny in their union was a lonely and difficult one impart because of apathy and indifference.

If not outright prejudice against him by the officials within the United States Department of Labor purportedly the guardians of union member's rights and their LMRTA to often union reformers have found the Department of Labor allied with union incumbents against their Court's decision in Trbovich made possible the cleanup of the United Mineworkers Union and I say this from the bottom of my heart, footnote 8 of the Trbovich decision determine the outcome of the Mineworkers fight because what it said was we could go into the remedies and as we fought for remedies for the new election, the labor department oppose us on a return.

These two brought brief show what a reformer is up against in the union movement.

Congress intended to further democracy in unions and only by review of the secretary's action, can we do this.

Something beautiful happened under LMRDA and the Mineworkers and it's spreading to other unions.

It's spreading just as Congress intended that there be more democracy and I plead with this Court not to deal this movement for union democracy, the body blow of permitting arbitrary action by the secretary.

Don't ever forget the precious on the secretary of labor from the incumbents in a case drawing out of the same set of elections in the Steelworkers.

The president in the Steelworkers in a deposition said, our official family backs the incumbent that every turn with every thing we have, the pressure is tremendous.

If we don't have a right to sue, if the loser with all he loses when he does sue comes forward and he can't bring a suit, then the fight maybe hopeless.

And as I pleaded four years ago for intervention in Trbovich which made the difference there, I plead for this right to on behalf of a great number of people who believe in union democracy.

Chief Justice Warren E. Burger: You have two minutes left Mr. Solicitor General if you have anything further.

Argument of Bork

Mr. Bork: Very briefly Mr. Chief Justice, I just want to point out that paragraph 18 of the complaint does not allege that the secretary found probable cause to believe that the violations affected the outcome.

This Court stated in Glass Bottle Blowers that the secretary may not file suit unless he finds probable cause to believe that the violation that did occur infected the election.

Second, I want to point out because it didn't arise at all during Mr. Rauh's argument that the secretary in compliance with the mandate of the Court of Appeals and the subsequent order by the District Court submitted what prints out to 15 pages of statement of reasons in this case.

Now, while we don't raise the issue of whether the secretary must submit a statement of reasons in this case, we don't necessarily concede that he's is required by law to do so.

We didn't bring that issue here because as a practical matter, the secretary --

Unknown Speaker: Didn't the Third Circuit already did that?

Mr. Bork: They did -- they said we do have to in this case.

They didn't make a general -- they implied that we'd have to do it continually, but I mean that we know, we didn't bring the issue because the facts of the matter is the secretary always does at least the last five years I'm told provide as a brief statement of reasons with respect to every case that he closes.

And if a complaining member is unhappy with that letter that he receives, he is always entitled to ask the secretary for a fuller statement and they always accommodate to the extent they can whatever request they get.

Justice Thurgood Marshall: Do I understand in this case with a telephone call?

Mr. Bork: Well, as it meant -- what -- the reason there is a telephone call as I understand it --

Justice Thurgood Marshall: So it was.

Mr. Bork: Well there was this letter that was sent the same -- two days later, the day that the complaint was filed.

The secretary in the meantime sent a letter.

A very briefed and summary letter because the time was short, the 60th day was coming very soon and the case was enormously complex and it was important from the secretary's relationship with the complaining member to let him know as quickly as possible what the determination was.

He made a telephone call, he wrote a brief letter.

If the member had asked for further information, it would have been provided.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.