502 F.2d 79 (3rd Cir. 1974), 73-2029, Bachowski v. Brennan

Docket Nº:73-2029.
Citation:502 F.2d 79
Party Name:Walter BACHOWSKI, Appellant, v. Peter BRENNAN, Secretary of Labor, United States Department of Labor andUnited Steelworkers of America.
Case Date:July 26, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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502 F.2d 79 (3rd Cir. 1974)

Walter BACHOWSKI, Appellant,


Peter BRENNAN, Secretary of Labor, United States Department

of Labor andUnited Steelworkers of America.

No. 73-2029.

United States Court of Appeals, Third Circuit

July 26, 1974

Argued May 14, 1974.

As Amended Sept. 3, 1974

Certiorari Granted Dec. 16,1974

See 95 S.Ct. 654.

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[Copyrighted Material Omitted]

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Joseph L. Rauh, Jr., Rauh & Silard, Washington, D.C., Kenneth J. Yablonski, Washington, Pa., for appellant.

Irving Jaffe, Acting Asst. Atty. Gen., Richard L. Thornburgh, U.S. Atty.; Stephen F. Eilperin, and Michael H. Stein, Attys., U.S. Dept. of Justice for the Secretary of Labor.

Michael H. Gottesman, Bredhoff, Chishman, Gottesman & Cohen, Washington, D.C.; James D. English, Pittsburgh, Pa.; Bernard Kleiman, Chicago, Ill. (of counsel), for United Steelworkers of America.

Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.


VAN DUSEN, Circuit Judge.

This case is an appeal from the district court's dismissal for lack of subject matter jurisdiction of a suit to compel the Secretary of Labor (the 'Secretary') to bring an action to upset a union election under 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 ('L-MRDA'), 29 U.S.C. 482(b). 1 The issue presented is

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whether the Secretary's decision not to bring such an action is subject to judicial review.

Plaintiff Walter Bachowski was a candidate for the office of District Director of District 20 of the United Steelworkers of America (the 'USWA') in an election held on February 13, 1973. He was defeated in that election by 907 votes out of approximately 24,000 votes cast. After exhausting his administrative remedies within the union, Bachowski filed a complaint with the Department of Labor on June 21, 1973, alleging numerous election irregularities and violations of the union constitution and 401 of the L-MRDA, 29 U.S.C. 481. Following an investigation of this complaint, the Secretary notified Bachowski and the union the he had decided not to bring an action to set aside the contested election. Bachowski thereupon brought the present lawsuit, naming as defendants the Secretary and the union. The complaint alleges, inter alia, that the Secretary's investigation had substantiated the enumerated charges of election irregularities and that these irregularities affected the outcome of the election, but that the Secretary nevertheless refused to file a suit to set aside the election and failed even to inform Bachowski of his reasons for that refusal. The complaint concludes that these actions by the Secretary were arbitrary and capricious and requests that the district court direct the Secretary (1) to make available to the plaintiff all evidence he has obtained concerning his investigation of the contested election, (2) to reach an agreement with the union extending the period of time for filing suit to set aside that election, and (3) to file such suit.


The only jurisdictional allegations contained in the complaint are 402 of the L-MRDA and 10(a) of the Administrative Procedure Act (the 'APA'), 5 U.S.C. 702. This court has repeatedly held that the APA does not confer jurisdiction upon federal courts over cases not otherwise within their competence, Richardson v. United States, 465 F.2d 844, 849 n. 2 (3d Cir. 1972) (en banc), cert. denied, 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 688 (1973); Zimmerman v. United States Government, 422 F.2d 326, 330-331 (3d Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2200, 26 L.Ed.2d 565 (1970); Operating Engineers Local 542 v. N.L.R.B., 328 F.2d 850, 854 (3d Cir. 1964). In addition, 402 of the L-MRDA confers federal jurisdiction only over actions brought by the Secretary to challenge the conduct of a union election, 29 U.S.C. 482(b). However, although not specifically alleged in the complaint, 2 we believe that 28 U.S.C. 1337 provides a basis for federal jurisdiction in this case. 3 The L-MRDA is an 'Act of Congress regulating commerce' within the meaning of 1337, see 2(c) of the L-MRDA, 29 U.S.C. 401(c), and we believe that the instant case 'arises under' that Act. Plaintiff's claim is founded directly on

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the L-MRDA in that he asserts a right, supported by his construction of 402, to have the Secretary file a suit on his behalf to set aside the contested election where the evidence shows that violations occurred which affected its outcome and where the Secretary has not come forward with any valid reason for refusing to do so. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 29 L.Ed. 388 (1885). In a closely analogous case, we held that a suit by the business agent of a union local for injunctive relief and declaratory judgment that he was not barred by 29 U.S.C. 504 from continuing in office was a case 'arising under' the L-MRDA and that, therefore, there existed federal question jurisdiction pursuant to 28 U.S.C. 1337. Serio v. Liss, 300 F.2d 386, 387-388 (3d Cir. 1961). 4

Our conclusion that the district court had federal question jurisdiction to entertain this case, however, does not resolve what is the underlying issue in this case: whether the Secretary's decision not to bring suit to upset a union election under 402 of the L-MRDA is subject to judicial review. Although the district court's dismissal was technically for lack of subject matter jurisdiction, the record reveals that its action was based on a determination that such a decision by the Secretary is not reviewable. 5 Thus, in the interest of judicial economy, it is necessary to reach this issue on this appeal and decide, in effect, if plaintiff Bachowski has stated a claim upon which relief can be granted.


Plaintiff seems to be entitled to judicial review under the APA, 5 U.S.C. 702, unless the Secretary's decision not to bring suit to set aside the election is excluded from the coverage of the APA by 701(a), 6 which provides:

'This chapter applies, according to the provisions thereof, except to the extent that--

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'(1) statutes preclude judicial review; or

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

The burden of establishing such exclusion, however, is on the defendants. See Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). As the Second Circuit has noted:

'Absent any evidence to the contrary, Congress may rather be presumed to have intended that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion and safeguarding the rights of the individual.'

Cappadora v. Celebrezze, 356 F.2d 1, 6 (2d Cir. 1966). With this construction in mind, we turn to an examination of the purpose behind the enforcement procedure set forth in Title IV of the L-MRDA and the nature of the discretion exercised by the Secretary pursuant to that procedure in order to determine if the Secretary's action in this case is reviewable.

-- A--

Defendants contend that Congress' intent to preclude judicial review and to commit to the Secretary's absolute discretion the decision whether to bring suit can be inferred from two features of the L-MRDA: (1) the Secretary has exclusive authority to sue to set aside a union election, and (2) he must exercise that authority within 60 days of the filing of a complaint. After careful consideration of defendants' arguments and the cases cited in support thereof, we do not find that there exists the necessary 'clear and convincing evidence' of a legislative intent to restrict judicial review. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, supra, 387 U.S. at 141, 87 S.Ct. 1507.

Section 403 of the L-MRDA, 29 U.S.C. 483, makes suit by the Secretary the 'exclusive' post-election remedy for violations of Title IV of the Act, and the Supreme Court held in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), that union members are thereby prohibited from initiating a private suit to set aside an election. In Trbovich v. United Mine Workers, 404 U.S. 528, 532, 92 S.Ct. 630, 633, 30 L.Ed.2d 686 (1974), the Court described the purpose behind this procedure as follows:

'A review of the legislative history shows that Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election. Title IV as enacted serves these purposes by referring all complaints to the Secretary so that he can screen out frivolous ones, and by consolidating all meritorious complaints in a single proceeding, the Secretary's suit in federal district court.'

In light of these purposes, the Court went on to hold in Trbovich that Congress did not intend to prevent a union from intervening in a suit brought by the Secretary, but that such intervening union was not entitled to raise additional grounds for setting aside the election, not contained in the Secretary's complaint, since that would circumvent the Secretary's screening function. Id. at 536-537, 92 S.Ct. 630. 7

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Applying this reasoning to the instant case, we do not believe that a limited judicial review of the Secretary's decision not to bring suit would in any way conflict with the purposes behind the Secretary's screening function. Unions would not be subjected to unnecessary judicial interference with their elections, since...

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