By Ronald Miller, J.D. The Labor-Management Reporting and Disclosure Act (LMRDA) contains an implied cause of action for a union to bring a lawsuit for breach of the fiduciary duties by an officer or other agents of the union, ruled a divided D.C. Circuit. Consequently, the appeals court reversed a district court’s order dismissing the union’s claims under Section 501 and state law for lack of subject matter jurisdiction. Judge Tatel not only wrote the majority opinion, he also wrote a separate concurring opinion. Additionally, Judge Millett wrote a separate concurring opinion, while Judge Kavanaugh wrote a separate dissenting opinion (International Union, Security, Police and Fire Professionals of America v. Faye, July 15, 2016, Tatel, D.). The union filed suit against the district director of a union office, alleging that while it employed him, he breached his fiduciary duties in a number of ways, including joining a rival union. The union also asserted claims under state law. According to the union, the employee attempted to establish a rival union and misused the union’s resources to achieve that goal. A district court concluded that the LMRDA provides a cause of action only to individual union members, not to the union itself, and that the LMRA provides no cause of action to a union seeking to sue a non-member employee. The district court further concluded that because neither federal statute provided the union with a cause of action, it lacked federal question jurisdiction over the case. Additionally, the district court ruled that it had "no basis to exercise supplemental jurisdiction over plaintiff’s state common law claims." On appeal, the union contended that the LMRDA gives it a cause of action and that the district court also had supplemental jurisdiction over its state law claims. This case presents the issue whether LMRDA Section 501 provides a union with a federal cause of action against its agent for breach of a fiduciary duty owed to the union. Nature of inquiry. Before proceeding to the merits, the D.C. Circuit observed that, like the district court, earlier decisions tended to speak of the inquiry in jurisdictional terms. However, in Arbaugh v. Y&H Corp., the Supreme Court made clear that the question whether the plaintiff has a cause of action is distinct from the question whether a district court has subject matter jurisdiction. Here, the union’s claim was at least "arguable," regardless of whether it was "valid." Thus, the court’s inquiry goes to the merits, not jurisdiction, which existed under the general federal question jurisdiction statute. Implied cause of action. In determining whether an implied cause of action exists, "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative." Congress enacted the LMRDA in 1959 in response to various union corruption scandals. The statute gives union members an express federal cause of action against a union agent for breach of the fiduciary duties set forth in Section 501(a). Union members may bring such a suit "for the benefit of the [union]," provided that they first satisfy certain procedural requirements. However, central to this case nothing in the statute expressly gives the union itself such a cause of action. In assessing whether a union has an implied cause of action under Section 501, the appeals court, citing Weaver v. United Mine Workers of America, observed that it was not writing on a clean slate. Weaver held that where union members have properly sued under Section 501, the union itself may take control of the suit and displace the union members. In this case, the district court distinguished Weaver on the ground that the opinion "did not address a union’s right to initiate suit on its own behalf." Here, the appeals court noted that neither the district court, nor the defendant offered any persuasive justification for reading the statute to require that a union "be accorded [the] right" to take over a suit that "since its commencement has in reality been its own," but not to allow the union to simply bring "its own" suit in the first instance. Accordingly, the D.C. Circuit concluded that the reasoning necessary to the decision in Weaver compels the conclusion that a union may indeed bring a Section 501 suit in the first instance. Moreover, because the union’s Section 501 claim was properly before the district court, supplemental jurisdiction existed for the union’s state law claims. Concurrence. Writing separately, Judge Tatel argued that even absent Weaver, he would conclude that Section 501 gives unions a cause of action. In his view, the statute’s text and structure revealed Congress’s intent both to create federal rights and to allow unions to vindicate those rights in federal court. Moreover, Tatel argued that the defendant’s reading of the statute becomes even less tenable when the court’s interpretation of Section 501 in Weaver is layered on top of it. The defendant’s position would suggest that the union has no ability to bring a federal suit in the first instance, but could displace its members and proceed to litigate the members’ suit against its agents in federal court. In his own concurring opinion, Judge Millett agreed with the result in Weaver, and wrote separately to explain further his conviction that Weaver controls notwithstanding the arguments made in the dissenting opinion, and yet to acknowledge the force of the arguments against Weaver’s correctness, as well as to note the potential constitutional problems raised by the issue. Judge Millett observed that if the court were writing on a clean slate, the relevant indicia of statutory intent would weigh heavily against implying a right of action for unions to prosecute lawsuits under Section 501. However, he pointed out that unless the union can sue, the enforcement scheme that Congress devised could potentially run into some constitutional concerns. Dissent. In a dissenting opinion, Judge Kavanaugh argued that a union did not possess a federal cause of action to sue their officers for breaches of fiduciary duties. According to the dissent, the decision in Weaver did not control the outcome of this case. The dissent pointed out that subsection (b) of Section 501, by its terms, does not give a union—as opposed to union members—a cause of action. Further, Judge Kavanaugh observed that that statutory silence had precipitated a circuit split, with the Seventh and Eleventh Circuits holding that a union has an implied cause of action, while the Ninth Circuit has held that unions do not have an implied cause of action under Section 501. Arguing that Section 501 did not create a cause of action for unions, the dissent urged that the judgment of the district court dismissing the union’s action should be affirmed.
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