Opinion
01 Civ. 1136 (SAS)
October 31, 2001
John Riordan, Pro Se, New York, NY, for Plaintiff.
Tarik F. Ajami, Esq., Levy, Ratner Behroozi, P.C., New York, NY, Attorney for Defendants.
OPINION AND ORDER
Pro se plaintiff John Riordan brings this action under the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401-531 (2000) ("LMRDA"), claiming that the American Federation of Government Employees ("AFGE") and its President, Bobby Harnage, violated his statutory due process rights by suspending him as a union officer for a period of time and preventing him from running for that office during the suspension. Defendants now move, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings on the ground that this Court lacks subject matter jurisdiction. For the reasons below, defendants' motion is granted.
I. FACTUAL BACKGROUND
Riordan works as a claims representative for the Social Security Administration ("SSA") and is a member of AFGE, an unincorporated labor union representing government and private sector employees in collective bargaining. See Amended Complaint ("Am. Compl.") ¶¶ 3, 4. Riordan was also the First Vice President of his local union, Council 220 of the American Federation of Government Employees, AFL-CIO ("Council 220"), which represents 25,000 SSA employees. Riordan served as First Vice President from 1982 until his suspension in 1999. See Am. Compl. ¶ 3.
In the summers of 1997, 1998 and 1999 Riordan published a newsletter, from his office, entitled "Labor Center News" that focused on union issues. See Am. Compl. ¶ 5. Following the 1997 publication of the newsletter, Local 3369 filed internal union charges against Riordan, accusing him of falsely indicating that the newsletter emanated from the Council 220 headquarters in Chicago and of using union funds to publish the newsletter. See id. A union-appointed Committee of Investigation cleared him of those charges, finding that he did not use union funds, and permitted him to continue publishing the newsletters as long as he indicated that they came from his office. See id.
In the Fall of 1999, at the urging of AFGE's General Counsel Mark Roth and President Harnage, Riordan wrote a letter to Local 3339 president Charles Fahlikman seeking reimbursement for expenses he incurred during the union investigation. See id. at 6. Riordan wrote the letter to Fahlikman on union stationary bearing his local union's legend as well as the AFGE shield. Riordan claims that he had used that stationary in previous communications with Harnage and Roth without objection. See id.
In November 1999, Riordan sent political endorsements displaying the AFGE shield and logo to several individuals within AFGE, which also indicated that the endorsements were from his office. See id. at 7. Riordan asserts that he had previously discussed the issue of political endorsements with Roth, who informed him that such endorsements may not be posted on union bulletin boards located on federal property. Roth, however, never objected to the use of the AFGE shield and logo on such endorsements. See id.
On November 17, 1999, President Harnage charged Riordan with violating Article XVIII, sections 2(e), (g), and (h) of the AFGE Constitution and immediately suspended him from his position as First Vice President. The charges brought against Riordan alleged that he: 1) published and distributed a newsletter inappropriately using the names of AFGE and Council 220; 2) used government postage in distributing this newsletter; 3) sent personal letters using government postage to other union officials on AFGE stationary bearing the AFGE shield; and 4) distributed documents with the AFGE shield stating that "the Labor Center supports Al Gore, Jr. for president." See Am. Compl. ¶ 8.
After Riordan requested a prompt trial, President Harnage appointed two trial committee members, while Riordan and Harnage selected the third member. See Am. Compl. ¶ 9. In a decision dated July 18, 2000, the trial committee convicted Riordan and suspended him from his office as First Vice President retroactively for a period of time served (a total of 244 days). See id. ¶ 10. After unsuccessfully appealing the decision to the National Executive Committee, Riordan brought this action alleging that defendants violated his due process rights under the LMRDA. See Am. Compl. ¶ 13. Subject matter jurisdiction has been asserted under 28 U.S.C. § 1331 and 29 U.S.C. § 185 and 412.
Although plaintiff originally asserted subject matter jurisdiction based on 28 U.S.C. § 1332 (diversity) and 29 U.S.C. § 185 (contract between labor organizations), see Am. Compl. ¶ 2, he did not discuss either statute in his opposition brief. Nonetheless, given plaintiff's status as a pro se litigant, I assume he continues to press these jurisdictional claims.
Plaintiff's assertion of jurisdiction pursuant to the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, is misplaced. The LMRA provides this Court with jurisdiction over "suits for violation of contracts between . . . [two] labor organizations." 29 U.S.C. § 185. However, Council 220 does not qualify as a "labor organization" as it represents employees of an agency of the federal government. See 29 U.S.C. § 152(2), 152(5).
Nor can jurisdiction be predicated on diversity of citizenship. For diversity purposes, labor unions are not citizens at all, thus requiring a court to look to the citizenship of each member of the union. See Keith v. Black Diamond Advisors, Inc., 48 F. Supp.2d 326, 329 (S.D.N.Y. 1999). Because plaintiff is a citizen of New York and a member of AFGE, the union has at least one member in New York and complete diversity is lacking. See U.S. Postal Serv. v. American Postal Workers Union, 564 F. Supp. 545, 547 (S.D.N.Y. 1983) (holding that there is no diversity where plaintiff, a New York resident, was a member of the defendant union).
II. LEGAL STANDARD
Courts may treat a motion for judgment on the pleadings pursuant to Rule 12(c) based upon a lack of subject matter jurisdiction as a Rule 12(b)(1) motion to dismiss the complaint. See Peters v. Timespan Comm., Inc., No. 97 Civ. 8750, 1999 WL 135231, at *3 (S.D.N.Y. Mar. 12, 1999). Accordingly, in considering motions to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the Complaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Serrano v. 900 5th Ave. Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998) (citing Atlantic Mut. Ins. Co. v. Balfor Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)); see also U.S. ex rel. Phipps v. Comprehensive Cmty Dev. Corp., No. 99 Civ. 5172, 2001 WL 812221, at *2 (S.D.N.Y. Jul. 16, 2001). The Court is not confined to the four corners of the Complaint, however, and may consider evidence outside the pleadings such as affidavits and other documents. See Marakova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Furthermore, where a plaintiff appears pro se, a court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).
III. SUBJECT MATTER JURISDICTION
A. Procedural Protections
Whether this Court has jurisdiction under section 412 of the LMRDA depends on whether a viable allegation of an infringement of rights protected by the LMRDA has been asserted. See Johnson v. Kay, 860 F.2d 529, 536 (2d Cir. 1988). Here, Riordan alleges that he was denied the right to a fair hearing because Harnage, who initially both filed charges against plaintiff and suspended him, combined prosecutorial and adjudicatory functions when he appointed two out of the three Trial Committee members for plaintiff's trial. See Am. Compl. ¶ 13. The right to a fair hearing is guaranteed under section 411(a)(5), which provides:
Section 412 provides that:
Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of the subchapter may bring a civil action in a district court for such relief as may be appropriate.29 U.S.C. § 412.
Plaintiff also alleges that the Trial Committee erred in two ways: (1) in its findings regarding the charges brought against plaintiff; and (2) in finding mitigating circumstances with respect to plaintiff's conduct but failing to mitigate the maximum penalty imposed for such conduct. See id. ¶¶ 14-15. However, because this Court's inquiry is limited to the alleged due process violations, the merits of the Trial Committee's decision will not be reviewed.
[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disiplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; [and] (C) afforded a full and fair hearing.29 U.S.C. § 411(a)(5) (emphasis added). Plaintiff alleges that he was "otherwise disciplined" in two ways: (1) he was suspended from his position as First Vice President of Council 220; and (2) he was effectively prohibited from running for that office as a result of that suspension. As to the second claim, which was raised for the first time in plaintiff's Affidavit, section 411's procedural protections apply only to disciplinary actions that affect "membership rights." See Finnegan v. Leu, 456 U.S. 431, 438 (1982) (the "`prohibition on suspension without observing certain safeguards applies only to suspension of membership in the union; it does not refer to suspension of a member's status as an officer of the union'") (quoting H.R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., at 31 (1959)). The question, then, is whether plaintiff's membership rights were violated by the curtailment of his time to campaign for the office of First Vice President.
Plaintiff admits that he did, in fact, run for First Vice President in August 2000 after campaigning for approximately four weeks (from July 20 to August 19, 2000). See 8/02/01 Affidavit of John Riordan ("Pl. Aff 7) ¶ 15. During the period of his suspension (November 17, 1999 to July 18, 2000), Riordan was unable to campaign for the office from which he was then suspended. See id. ¶ 11. Consequently, plaintiff claims that there was insufficient time for him to mount an effective campaign.See id. at ¶ 14. Riordan was ultimately nominated for re-election but was defeated by his opponent. See id. ¶ 15. Whether plaintiff's truncated campaigning period caused his defeat is doubtful as plaintiff concedes that his "suspension was the main issue in the First Vice President race and was the reason [he] lost the position." Id. ¶ 16. Causation, however, is not the issue — the issue is whether plaintiff's rights as a union member were violated when he was prohibited from campaigning for the position of First Vice President during his suspension.
Because plaintiff is proceeding pro se, the factual allegations concerning the length of his campaign, which are consistent with the other allegations contained in the Amended Complaint, will be duly considered. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in opposition to defendant's motion to dismiss in reviewing district court's dismissal of claim);Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Courts consideration of the allegations contained in plaintiff's memorandum of law, at least where those allegations are consistent with the allegations in the complaint.")
B. Riordan's Rights as a Union Member Versus His Rights as a Union Official
A union member has the right to "nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organizations's constitution or bylaws." 29 U.S.C. § 411(a)(1) (emphasis added). Moreover, "[e]very member of any labor organization shall have the right to meet and freely assemble with other members; and to express any views, arguments or opinions . . . ." 29 U.S.C. § 411(a)(2). Any infringement of these rights thus invokes the procedural protections of section 411(a)(5), which include the right to a full and fair hearing.
Although not explicitly mentioned in section 411, the Second Circuit has held that candidacy for union office is a membership right under Title I of the LMRDA. See, e.g., United States v. International Bhd. of Teamsters, Chauffeurs, Warehousemen Helpers of Am., 156 F.3d 354, 361 (2d Cir. 1998) (holding that running for office is a membership right);Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973) (stating that "rendering a man ineligible from seeking union office, whether for five years or three months, affects him as a member and permits him under the Act to challenge the fairness of the procedures resulting in such political exile").
As stated above, Riordan claims that the union effectively prevented him from running for First Vice President of Council 220 by suspending him. It is well-settled that Riordan's suspension as an officer is not subject to judicial scrutiny. See Schonfeld, 477 F.2d at 904 ("Title I of the Act protects the union-member relationship, but not the union-official or the union-employee relationship, . . . removal from union office gives rise to no rights in the removed official as an official under the Act").
Furthermore, one of the collateral consequences of that suspension — here, the shortening of the period in which plaintiff could campaign for a particular office — does not constitute an actionable violation of a member right covered by Title I of the LMRDA. The LMRDA is concerned with "promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers." Finnegan, 456 U.S. at 442. Accordingly, the member rights protected by Title I of the LMRDA are not unconditional; rather, they are subject to an organization's "reasonable rules and regulations." 29 U.S.C. § 411(a)(1)
Prohibiting a member from campaigning for an office while he was suspended from that office presents, at most, a de minimis imposition on a member's right to run for office. To hold otherwise would permit every suspension from office to be challenged based on the collateral consequences of that suspension — here the limited time to campaign for re-election. Cf. Finnegan, 456 U.S. at 440 (holding that petitioners, who were terminated from their union employment by a newly-elected successor president, did not have a cause of action because they only alleged an indirect, non-actionable interference with their membership rights and were not prevented from exercising their rights to campaign for a particular candidate and to vote in the union election). Here, plaintiff was not prohibited from running for office in general, he was merely prohibited from campaigning for a particular office during his suspension from that office. Because that limitation is reasonable as a matter of law and its effect de minimis, plaintiff does not present an actionable violation of his rights as a union member. See Schonfeld, 477 F.2d at 903 (stating that if the district court's order "were based solely on [plaintiff's] removal from office or ineligibility to run in the interim election, then we would be required to reverse it") (emphasis added). Accordingly, this Court lacks subject matter jurisdiction over plaintiff's current claims.
Presumably, plaintiff could have campaigned for union offices other than First Vice President without restriction.
C. Free Speech
Plaintiff's Amended Complaint does not state a cause of action for violations of free speech under the LMRDA. Nor does plaintiff's Affidavit contain any factual allegations stating how his free speech rights were violated. Rather, summary allegations of free speech violations appear for the first time in plaintiff's opposition brief. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 2 ("This case, pure and simple, is about a union and its leadership suppressing the free speech rights of a union member and an officer of the union on three separate occasions."); at 4 ("Defendants, through their actions[,] suppressed the free speech rights of Plaintiff."); at 10 ("Defendants suspended him for a total of at least 244 days for exercising his right of free speech under the LMRDA in publishing and distributing a newsletter . . . .").
While this Court must read the papers of a pro se litigant liberally, it cannot infer causes of action not found in the Complaint. See Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir. 1999) (stating that "courts should not undertake to infer in one cause of action when a complaint clearly states a claim under a different cause of action"). Accordingly, plaintiff may amend his Complaint within 20 days of the date of this Opinion and Order if he wishes to pursue a free speech claim.
IV. CONCLUSION
For the reasons stated above, this Court lacks subject matter jurisdiction over plaintiff's action and defendants' motion for judgment on the pleadings is granted. The Clerk of the Court is directed to close this case subject to reinstatement upon amendment of the Complaint.
SO ORDERED