Ruocchio v. United Transp. Union

• Citation: 181 F.3d 376
• Decision Date: 02 March 1999
• Docket Number: Nos. 98-6281,s. 98-6281
• Parties: (3rd Cir. 1999) EUGENE RUOCCHIO; ROBERT A. D'ANGIOLILLO, APPELLANTS v. UNITED TRANSPORTATION UNION, LOCAL 60; DONALD J. BOGEN (DAN); UNITED TRANSPORTATION UNION & 98-6363 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 376

181 F.3d 376 (3rd Cir. 1999)

EUGENE RUOCCHIO; ROBERT A. D'ANGIOLILLO, APPELLANTS v. UNITED TRANSPORTATION UNION, LOCAL 60; DONALD J. BOGEN (DAN); UNITED TRANSPORTATION UNION

Nos. 98-6281 & 98-6363

U.S. Court of Appeals, Third Circuit

Argued: March 2, 1999

Decided June 23, 1999

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 97-cv-5732) (District Court Judge: Honorable Nicholas H. Politan) [Copyrighted Material Omitted]

Arthur L. Fox, II, Esq. (argued) Lobel, Novins & Lamont 1275 K Street, N.W., Suite 770 Washington, DC 20005 Attorney for Appellants

Kevin C. Brodar, Esq. (argued) United Transportation Union Assistant General Counsel 14600 Detroit Avenue Cleveland, OH 44107 Timothy R. Hott, Esq. Hott & Margolis 591 Summit Avenue, Suite 300 Jersey City, NJ 07306 Attorneys for Appellees

Before: Stapleton, Rendell, and Aldisert, Circuit Judges

Rendell, Circuit Judge.

Appellants Eugene Ruocchio and Robert A. D'Angiolillo, members of the United Transportation Union ("UTU"), appeal the District Court's dismissal of their action against appellee UTU and its local chapter and chairperson. Ruocchio was suspended from his position as treasurer of the local chapter, UTU Local 60, when he was charged with "willfully circularizing untrue statements" in violation of Article 78 of the UTU constitution. Ruocchio filed suit against the UTU, Local 60, and Donald Bogen, the General Chairperson of Local 60, alleging that the charges against him violated Title I of the Labor-Management Reporting and Disclosure Act ("LMRDA"), seeking reinstatement to his position, and requesting various forms of injunctive and declaratory relief, as well as money damages and attorney's fees. The District Court, while retaining jurisdiction, determined not to proceed to entertain the action until after the union's internal procedure was complete. Although the union Trial Board found that Ruocchio had violated Article 78 and removed him from office, its ruling was overturned by the UTU's International President during the internal union appeals process and Ruocchio was reinstated as treasurer. The District Court then dismissed Ruocchio's action as moot, finding that, in light of Ruocchio's reinstatement as treasurer, no case or controversy existed. Ruocchio filed the instant appeal. We find that Ruocchio's complaint is not moot, and remand to the District Court for further proceedings in light of this opinion.

I.

Eugene Ruocchio and Robert A. D'Angiolillo are members of the UTU and its local chapter, UTU Local 60. Ruocchio also served as treasurer of Local 60, having been elected with support from D'Angiolillo. As treasurer, Ruocchio was responsible for depositing a refund check for overpayment Local 60 received from Vernay Moving, Inc., a moving company that had moved Local 60 into new offices. Ruocchio claims that he was unable to deposit Vernay's original refund check, dated May 28, 1997, because it was not made out to the union, but to Local 60's secretary, Susan Bogen, who also is the wife of Local 60's General Chairperson, Donald Bogen. To resolve this problem, Ruocchio requested Susan Bogen to ask Vernay to prepare another check, this time made out to Local 60. The record reflects that Susan Bogen did so, in a letter to Vernay dated July 28, 1997.

Vernay sent a new check to Susan Bogen, made out to the union, and it was forwarded to Ruocchio. On September 15, 1997, Ruocchio addressed a letter to Local 60's Vice Chairperson Ronald B. Hicks,¹ addressing various union financial matters, including the check from Vernay. Ruocchio noted:

"Finally, over a month ago I had received a refund check from the VERNAY Company for which I returned as a result of it being rejected from the bank as a third party check. I have since received another check from the same company, however the amount is drastically reduced with no explanation. Please advise why this has happened and when I am to expect the additional monies owed to our members."

Copies of the checks issued to Susan Bogen and the union show that the amount of both checks was the same--$125. Thus, Ruocchio's representation that the amount of the new check was "drastically reduced" from the prior one was inaccurate.

The minutes of the September 28th meeting reflect that the inaccuracy of the representation in Ruocchio's letter was discussed, and that Ruocchio agreed to print a retraction, although no retraction was issued. In a letter dated October 14, 1997, General Chairperson Donald Bogen charged Ruocchio with a violation of Article 78 of the union constitution, which provides: "A member who willfully circularizes untrue statements shall be expelled from membership in the United Transportation Union if, after being charged and tried under the trial provisions of this Constitution, his/her guilt has been established." UTU Constitution, Art. 78, lines 1-4. Bogen, referencing the excerpt from Ruocchio's letter reproduced above, noted:

"This statement is a lie, both checks were exactly for the same amount. . . . As you know, Susan Bogen my wife, is our office secretary and this is a direct affront to her character as she is the person who the original check was addressed to." At the next monthly union meeting, on October 26, 1997, Ruocchio was removed from office pending trial.² The trial was originally set for November 21, 1997."

Prior to the original trial date, in addition to appealing unsuccessfully to the union's International President for relief,³ Ruocchio filed suit in the District Court against the UTU, Local 60, and Donald Bogen. Ruocchio alleged that Bogen had filed the charge against him in retaliation for his political opposition in the November 1996 union elections. Ruocchio averred in his complaint that:

Ruocchio is politically opposed to the Bogan [sic] administration. He campaigned against them in the last election and ran against their hand-picked candidates in the previous elections; further, he has voiced his opposition to the policies of the Bogan administration.

****

Bogan and his political allies are using internal charges to punish their political opponents.

Complaint, paras 10, 13. Additionally, Ruocchio elaborated on his allegations in a second affidavit, filed about two months after the complaint was filed:

In the last officer elections conducted by UTU Local 60 in November of 1996, I ran on a slate running in opposition to the slate supported by the Local's principal officer, General Chairman Don Bogen, who considers me to be his arch political enemy -- the proverbial camel who got its nose under Bogen's tent.

****

For whatever reasons, Don Bogen reportedly took great umbrage, perhaps because my question concerning the Vernay reimbursement allegedly constituted "a direct affront to [his wife's] character," . . . but more likely because he was hunting for some excuse to remove a "dissident" from his Executive Board otherwise comprised of loyalists or people he can control one way or another.

In any event, the very first notice I had that my simple, honestly intended question had caused a political aneurysm was when, at the next general membership meeting on October 26, 1997, I was brought up on internal union charges, effectively tried before those members who happened to be in attendance, and removed from the office to which I had been elected by the entire membership. In essence, I was caught totally off balance by Bogen and his lynch mob. I now understand that the event had been carefully scripted for the purpose of eliminating a political opponent.

Second Affidavit of Eugene Ruocchio, paras 2, 8-9 (alteration in original).

Ruocchio's complaint alleged various violations of Title I of the LMRDA, 29 U.S.C. § 411. Ruocchio claimed that defendants violated his right to free speech under § 411(a)(2) of the Act,⁴ and that his suspension from office pending trial violated § 411(a)(5), which provides that members will be afforded certain procedural safeguards before being "fined, suspended, expelled, or otherwise disciplined."⁵ D'Angiolillo alleged that Ruocchio's removal from office had deprived D'Angiolillo, who had voted for Ruocchio as treasurer, of his right to participate in the governance of the local union through a duly elected representative and spokesperson in violation of§ 411(a)(1).⁶

In addition to a request for money damages to compensate for loss due to Ruocchio's alleged improper removal, and for attorney's fees, plaintiffs also sought various forms of injunctive and declaratory relief. Ruocchio requested an injunction barring defendants from going forward with the trial against him, and reinstating him to his position as treasurer. The complaint also requested 1) declaratory relief that Article 78 is null and void; and 2) injunctive relief not only enjoining defendants from enforcing Article 78 and requiring they notify union members that Article 78 is no longer in force, but also enjoining defendants from retaliating against union members for exercising their rights under Title I of the LMRDA.

Prior to the union trial, which had been postponed from the originally scheduled November date, the District Court heard oral argument on Ruocchio's application for a preliminary injunction, but granted defendants' motion to dismiss the application, while retaining jurisdiction over the matter pending the outcome of the internal union trial. The Court explained that it would "not interfere with the internal workings of the Union at this point in time." Nonetheless, the Court noted: "Though not making a determination one way or the other at this time, the Court is compelled to note that it has serious reservations as to the validity of Article 78."

The union trial was held on March 30, 1998, and, on April 10, 1998, the Trial Board ruled that Ruocchio had violated Article 78. On May 30, 1998, Ruocchio appealed this decision to the International President, who overturned the Trial Board...