Lippi v. Thomas, Civ. No. 68-336.

• Decision Date: 31 March 1969
• Docket Number: Civ. No. 68-336.
• Citation: 298 F. Supp. 242
• Parties: August J. LIPPI, Plaintiff, v. Lester THOMAS and the United Mine Workers of America, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

298 F. Supp. 242

August J. LIPPI, Plaintiff, v. Lester THOMAS and the United Mine Workers of America, Defendants.

Civ. No. 68-336.

United States District Court M. D. Pennsylvania.

March 31, 1969.

Hourigan, Kluger & Spohrer, Rosenn, Jenkins & Greenwald, Wilkes-Barre, Pa., for plaintiff.

Edward L. Carey, Washington, D. C., James T. Shea, Wilkes-Barre, Pa., for defendants.

OPINION

NEALON, District Judge.

Before the Court is a motion by defendant Union and defendant Acting President of District I of the United Mine Workers of America to dismiss, pursuant to Rule 12, F.R.Civ.P., the complaint filed by plaintiff, August J. Lippi. On August 5, 1968, plaintiff filed an action in this Court for a Declaratory Judgment pursuant to 28 U.S.C. § 2201. He seeks a judicial determination (1) that he is eligible to have his name placed upon the ballot for the Office of President of the Union, and if elected, to serve in that capacity, and (2) that the defendants be ordered to place plaintiff's name upon the ballot for the Office of Union President. Plaintiff alleged that the nominations for President of District I of the United Mine Workers Union would close on August 8, 1968. On or about August 3, 1968, defendant Union placed District I under a Trusteeship, which remains imposed at the present time and the effect of which has been to suspend the scheduled election. At the time of the filing of this complaint, plaintiff was still serving a prison term at the United States Penitentiary, Lewisburg, Pennsylvania, for a prior conviction in this Court of, inter alia, aiding and abetting in the willful misapplication of bank funds pursuant to 18 U.S.C. § 656, United States v. Daileda, 229 F.Supp. 148 (M.D.Pa. 1964), affirmed 342 F.2d 218 (3d Cir. 1965).

Three issues are presented by defendants' motion to dismiss: (1) whether plaintiff's exclusive remedy is before the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA); (2) whether the imposition of the Trusteeship by the International Union upon District I of the Union now makes this lawsuit moot under the Declaratory Judgment Act, and (3) whether plaintiff's conviction for aiding and abetting in the willful misapplication of bank funds precludes him from holding office pursuant to Section 504(a) of LMRDA.

I EXHAUSTION OF ADMINISTRATIVE REMEDIES

At the outset, I must decide whether this case is properly before the Court at this time, or whether plaintiff's exclusive remedy is before the Secretary of Labor under Title IV of LMRDA, 29 U.S.C. §§ 481-483.¹ Defendants assert that the Supreme Court has declared that all questions concerning eligibility for Union office are subject to the provisions of Title IV of LMRDA. Defendants rely principally on Calhoun v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964).

In Calhoun, three Union members filed suit against their Union for an alleged violation of their right to nominate candidates in a Union election. The District Court dismissed for lack of jurisdiction and the Circuit Court reversed. In reversing the Circuit Court, Mr. Justice Black stated:

"Without setting out the lengthy legislative history which preceded the passage of this measure, it is sufficient to say that we are satisfied that the Act itself shows clearly by its structure and language that the disputes here, basically relating as they do to eligibility of candidates for office, fall squarely within Title IV of the Act and are to be resolved by the administrative and judicial procedures set out in that Title."

Plaintiff seeks a declaration of his rights under Section 504(a),² which is contained in Title V of the LMRDA. However, Section 504(a) is also incorporated by reference within Title IV of the Act. Section 401(e) of Title IV, 29 U.S.C. § 481(e), provides, in part:

"In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title * * *) * * * without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof."

Mr. Justice Stewart, concurring in Calhoun, supra, expressed concern that the majority opinion was construing Title IV to absolutely preclude pre-election litigation in the Federal Courts. Although a literal reading of Calhoun would seem to dictate a conclusion that all eligibility questions must be processed through Title IV proceedings, I do not believe that such a result was intended in situations similar to the case at bar. It is worth noting that Mr. Justice Black, in commenting on the applicability of Title IV to eligibility questions, pointed out that this was:

"* * * in harmony with the general congressional policy to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts." 379 U.S. at 140, 85 S.Ct. at 296.

Eligibility, however, under Section 504(a) is not an internal policy of a Union which is subject to resolution or settlement by discussion before resort to the Courts, but is a matter requiring judicial interpretation of a specific Federal statute. Consequently, I conclude that this Court has jurisdiction under the LMRDA, the Declaratory Judgment Act and 28 U.S.C. § 1337 (although not specifically pleaded) to grant the relief sought. Serio v. Liss, 300 F.2d 386 (3d Cir. 1961); Berman v. Local 107, International Brotherhood of Teamsters, 237 F.Supp. 767 (E.D.Pa.1964).

II MOOTNESS

Plaintiff filed his complaint on August 5, 1968. He alleged that nominations for President of District I of the United Mine Workers would close on August 9, 1968. On or about August 3, 1968, defendant Union placed District I under a Trusteeship. Since no election will take place as long as the Trusteeship is effective, defendants assert that the question of plaintiff's eligibility is now moot.

Recently, the Supreme Court had occasion to review the question of mootness in a declaratory judgment proceeding, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, March 4, 1969. The test there set forth was whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

In the Golden case, plaintiff sought a declaratory judgment respecting the constitutionality of a New York Penal Law, prohibiting the distribution of anonymous handbills during an election. Plaintiff was arrested for doing so during a 1964 Congressional contest. The Congressman in question had subsequently left the House of Representatives for appointment to the New York Supreme Court. The Court deemed this development relevant to the question of whether the prerequisites for the issuance of a declaratory judgment were present. On the facts presented, it concluded that no finding of "sufficient immediacy and reality" could be made since it was "most unlikely" that the former Congressman would again aspire for election to Congress. The Court made clear that the point at which this determination is to be made is at the time of the hearing, which, in the Zwickler case, was at the hearing on remand.

In my opinion, there is no substantial controversy between the parties of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Although plaintiff must suffer certain "collateral consequences", Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), as a result of his conviction, this is not a case where plaintiff is attacking an outstanding judgment of conviction. Plaintiff's conviction, in fact, has been affirmed on appeal. This fact distinguishes Carafas v. LaVallee, supra; United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), and Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946), from the present circumstances.

The controlling fact here is that plaintiff is seeking a declaratory judgment of his eligibility rights in an election which was no longer a reality at the time he filed his lawsuit. It is true that an election will probably be held, if and when the Trusteeship is ever withdrawn, but this is hardly enough to establish "sufficient immediacy and reality." It would be an exercise in futility for me to now declare that plaintiff is eligible for an election which has been suspended as a result of a Trusteeship. The proper course, which plaintiff is indeed pursuing, is to attack the validity of the Trusteeship, see Civil Action No. 68-347, M.D. of Pa.; but this is of little aid in determining plaintiff's eligibility rights at the present time.

The only actions on the part of defendants which are alleged to be violative of plaintiff's rights under the LMRDA are (1) the writing of letters to various Union officers, (2) the sending of representatives and agents to various local Union meetings, and (3) the release of various announcements to newspapers. The message allegedly being disseminated by these methods is that "* * * Plaintiff is barred from being nominated and holding office as President * * *" of the Union by virtue of Section 504(a) of LMRDA. Without the existence of an election, these allegations, even assuming their correctness, do not make out a situation of sufficient immediacy for a Federal Court to make declarations of rights between the parties. It is the election that gives these facts their immediacy. At the present time, not only is an election "most unlikely", but it is a nullity as long as the Trusteeship exists. Accordingly, I hold that no substantial controversy of sufficient...