[00:00:02] Speaker 01:
Case number 15-7084, International Union Security Police and Fire Professionals of America, Appellant vs. Ahsan Faye.

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Mr. Moore for the appellant, Ms.

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Gaines for the appellee.

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May it please the court, my name is James Moore of the firm of Gregory Moore, Jake Lynn Brooks in Detroit.

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I'm here appearing on behalf of the International Union Security Police and Fire Professionals of America, SPFPA, the union, the plaintiff, and appellant in this proceeding.

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It is the position of the union that the text, the context, the structure, and the purpose of Section 501 of the Landrum-Griffin Act all support the conclusion that federal courts have jurisdiction over a union suit for relief under Section 501.

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Accordingly, we request that this court reverse the decision of the lower court.

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As Your Honors are well aware, there have been three courts of appeals decisions that have addressed this legal issue of jurisdiction.

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Two of them, the more recent, and in our view, the better reasoned decisions, supports the Union's position here.

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I would add that as you are also well aware, there's been a recent district court decision out of this district by Judge Bates.

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He reached the same conclusion, that is that there is jurisdiction.

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That's addressed in the amicus brief more than in ours.

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He took a different approach, and while we certainly don't disagree with him, I'm here to argue the positions we've raised in our briefs and submissions.

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The reasoning and the results in both the seven...

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have the same terms and conditions as the cause of action in 501B, or is it entirely freestanding?

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I believe it's freestanding in the sense that it would address the fiduciary duties that are set out in section 501.

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I believe the basic distinction, 501B, requires certain procedural hurdles for an individual member to adhere to before being permitted and then get leave of court, but I don't believe those would apply to a union.

[00:02:21] Speaker 05:
Well, I believe you would be

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finding what Congress intended in the first place, which is that there is a freestanding cause of action by a union to enforce the fiduciary duties that it created in 501A.

[00:02:46] Speaker 05:
Do you remember any case where a court has implied a cause of action when Congress has already created one within that very same statutory

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that has lots of conditions and limitations?

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I'm not aware of a case to that effect, Your Honor.

[00:03:02] Speaker 05:
So this would be charting a new course and implying right to causes of action?

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Well, in a sense, other than the fact that, again, other courts of appeals, as you're well aware, have done just that.

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So I don't think this is necessarily a novel position to take.

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And given that the intent of Congress was fundamentally to address alleged union corruption, to leave a union out of that other than the state remedies, which Congress found were inadequate, I think would be a bad result.

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Well, 501 addresses the interests of the Union as a whole, which by implication is its members.

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If a Union official is acting in some corrupt fashion and not adhering to his or her fiduciary duties, that affects the Union as an institution and necessarily it affects its ability to serve its members.

[00:03:57] Speaker 05:
When you talk about jurisdiction, there's a provision in 501B that says, no such proceeding shall be brought except upon leave of the court and finding of good cause.

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That's for the member actions.

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Why isn't that jurisdictional?

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That sounds like a certificate of much, analogous to what we call certificates of appealability in another context, which have been held to be jurisdictional.

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Why isn't that provision jurisdictional?

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Well, I think it

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is focused on the relatively novel approach that Congress took in this, in 501B.

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Namely, we're gonna allow a member to sue, but only after he or she has made an effort to get the union to do something, albeit only in state court.

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So I think that Congress, I believe Congress intended by adding those conditions, those procedural hurdles, as they've been referred to, was simply trying to make sure that a court wouldn't take a union member's lawsuit

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prematurely.

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Again, I believe that given the fundamental intent of 501, given the fiduciary duties that Congress intended or explicitly spelled out, which were new, that a union should have the ability to pursue those remedies.

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without the procedural hurdles that only Congress specifically applied to individual members.

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So we have to apply a right of action and apply ourselves out of a jurisdictional limitation as well?

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Well, if you view the jurisdictional limitation in 501B because it applies to individual members as a limitation,

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That's one thing, but I guess what I'm arguing is that limitation only applies to the kind of lawsuit that would be brought by an individual member and is spelled out in that manner because it is a rather unique, you know, tracks the derivative corporate lawsuit kind of allegation.

[00:06:02] Speaker 03:
Don't the unions have state law causes of action in these kinds of cases, and wasn't the whole that Congress was trying to fill the lack of causes of action for individual suits?

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I'm certain that Congress had that in mind, although the congressional report, which is cited, I think, really in both the district court decision as well as the briefs of the parties, pointed out that the time this law was passed in 1959, there was really only, I believe, one state that had any

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that were akin to the ones that Congress was creating with 501A.

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So I don't think the state remedies are adequate.

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But there are state when Union officials or members

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commit misconduct of various kinds.

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There are obviously state law causes of action that unions traditionally have taken advantage of.

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Certainly.

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Indeed, in this lawsuit, in addition to the federal claims we've made, we had several state and district of Columbia common law claims.

[00:07:02] Speaker 03:
Exactly.

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Yeah, this case is a good example.

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You have remedies available, but Congress was, the whole, from Congress's perspective, was the

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suits that are contemplated expressly, I know you talked about impliedly, but expressly and be.

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That wasn't available before, correct?

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Well, certainly.

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That was one of the holes they were addressing, but we don't believe that's the end of the discussion.

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What role does our decision in Weaver play in your thinking?

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Well, Weaver doesn't really address the decision.

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It certainly is not supportive of the district court's decision.

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But given this rather unique circumstances of that case, whereas I recall the individual members brought the lawsuit and then there was a change in union leadership.

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And as a practical matter, the court found that the union could then be amended in as a plaintiff.

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But I have to say that case does not directly address the issue before this panel.

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Are you aware of anything in the legislative history that specifically says unions should be able to maintain this kind of cause of action?

[00:08:09] Speaker 00:
There is nothing explicit.

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And indeed, that is why we're here and why there is at least a split in the courts of appeals, albeit in our case.

[00:08:17] Speaker 03:
Well, you're here because there's nothing in the text.

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But I was wondering if there's nothing even in the legislative history.

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I am not aware of anything in the legislative history that expressly states that there is an implied cause of action in 501.

[00:08:30] Speaker 05:
You had originally brought this claim also under the Labor Management Relations Act.

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Does that or other federal law allow the union to enforce its rights against corrupt officials apart from 501?

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Not in this case, because that is directed at officers of the union, and Mr. Fay was not an officer of the union.

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We have not pursued that dismissal by the district court.

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That one's only officers and your 501 is broader, is that the point?

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Yes.

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The 501 addresses employees, representatives.

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I don't have the statute in front of me, but it looks.

[00:09:06] Speaker 05:
So I think he was with the district.

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He was a district representative of the International Union.

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So he was an agent, but not an officer?

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That's correct.

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Or was he an employee?

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I'm sorry, he was an employee, but was not an officer or a member of the union.

[00:09:21] Speaker 04:
Could I ask you to go back and repeat what you said about the adequacy of state remedies for the unions?

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Well, when this statute was passed, the congressional record reports indicated that there was but one state, if I recall correctly, that had what Congress believed were remedies that were comparable to the fiduciary duties that Congress was created with the Land Room Griffin Act.

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So it was clear that at the time this was passed, state remedies were thoroughly inadequate.

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And that is certainly one reason for the Landrum-Griffin Act being passed in the first place, certainly a reason why they wanted union members to have at least the possibility of bringing suit.

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But it certainly didn't preclude the conclusion that unions themselves

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having now been given additional fiduciary duties that were new, should somehow be barred from the courtroom to pursue what is the fundamental purpose of Leonard Griffin, which is to address union corruption, or alleged union corruption.

[00:10:27] Speaker 05:
Okay, I just wanted to ask you a question about how 501A works, and that is, does

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Do all the various rights created, accounting and fiduciary duties, if you're actually bringing a lawsuit under that, is there a federal law for those standards or does the statute incorporate state law standards to determine when you have engaged in improper dealing as an officer or violated fiduciary duties or whether you're entitled to an accounting?

[00:10:56] Speaker 00:
Well, I think these are terms that a trial court is certainly capable of defining, given the particular circumstances.

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In this case, as we have alleged in our lawsuit, this was someone who had a duty of loyalty to our organization and in our view, and we allege that during the time he was supposed to be supporting us, he was in fact working for another union and disparaging our union.

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I think as a practical matter,

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certainly violated the fiduciary duty of he had to the International Union.

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would incorporate state law standards?

[00:11:40] Speaker 00:
Well, we believe that the actions that we allege Mr. Fay engaged in violate both those duties that are set forth in 501A, and indeed, we believe violate some state actions as well, although we wanted to add them to the federal court, and we didn't think that the state court would necessarily be adequate.

[00:12:04] Speaker 00:
I would simply add that, and we already discussed that, but congressional intent is clearly the key to this.

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And the Trey Week decision from the Ninth Circuit didn't really give adequate consideration to congressional intent.

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It simply bypassed it and declared that simply because the statute created this cause of action for union members, it somehow necessarily excluded unions from bringing similar actions.

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We don't think that logically follows.

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We don't think Congress, by its silence, if you want to look at it that way, necessarily precluded a union from doing so.

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And that's particularly true, we believe, because of the purpose of the statute to address union corruption.

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Why pass a statute and then leave some of the tools out of the toolkit?

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This is true where there were new fiduciary obligations created by Congress.

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It's nonsensical in our view to create these new obligations by a union and then handcuff the union in its ability to remedy those.

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And it's also true whereas here the Congress expressly found state remedies were not adequate.

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We believe that the District Court failed to properly recognize that jurisdiction can be created by implication and then failed to adequately consider all of the relevant factors that go into a decision or the intent of Congress.

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For all these reasons, we respectfully request that you reverse the District Court.

[00:13:33] Speaker 00:
Thank you.

[00:13:33] Speaker 00:
Thank you.

[00:13:41] Speaker 02:
Good morning, Your Honors.

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May it please the Court?

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My name is Eden Brown-Gaines, and I'm representing the appellee, Ahsan Fay.

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I think the Court touched on this a bit, but I think it bears repeating the context in which this case arises.

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I think the one thing that everyone will agree on concerning the legislative intent for Congress is that this is a statute that's about protecting the membership of a union.

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The context of this case is a dispute between an employer and an employee.

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The SPFPA isn't bringing this action because they think that the membership needs to be protected.

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They're bringing the action essentially because they had an employee, they didn't get what most lawyers would do, which is draft a non-compete agreement if you want that employee to be precluded from working for a competitor after they leave your employment.

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and there's a dispute about that.

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And if this court were to take this case and these facts about a dispute between an employee and a union and not the membership, I think it would be even greater of a stretch than the Ninth Circuit is speaking to in Trawick and saying that this statute is not

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for unions to sue.

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Mr. Fay.

[00:14:53] Speaker 04:
You haven't yet gotten to the language of the statute.

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Can we talk about that?

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Sure, sure.

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It says, I'm looking at B, when any officer, agent, et cetera, alleged to have violated the duties in sub-A, and the labor organization or its officers refuse or fail

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to sue or recover damages?

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In your mind, does that mean to sue in the state court?

[00:15:28] Speaker 02:
For the members, no.

[00:15:30] Speaker 02:
For the union, yes.

[00:15:32] Speaker 02:
I mean, if we look, Your Honor.

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What does that mean, to sue?

[00:15:36] Speaker 02:
To sue means to bring.

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To bring a lawsuit.

[00:15:38] Speaker 02:
That's correct.

[00:15:39] Speaker 04:
Well, isn't that what the union's doing here?

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In the wrong forum.

[00:15:43] Speaker 04:
That's why I just asked you.

[00:15:44] Speaker 04:
You mean in the state court, right?

[00:15:46] Speaker 04:
That's correct.

[00:15:47] Speaker 04:
OK, so then under your theory,

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Cause of action here is that the union is in the state court, and if it refuses to bring that action, then the member can bring it in federal court on behalf of the union, right?

[00:16:04] Speaker 02:
No sir, my theory is that we're way out of line with what's even going on here.

[00:16:08] Speaker 02:
Now again, this statute is about whether you sue in state court or federal court for a breach of fiduciary duties is about a union representative officer agent who has breached a fiduciary duty to the membership.

[00:16:22] Speaker 02:
In this context, even under the SPFPA's argument, Mr. Fay

[00:16:26] Speaker 02:
worked with the membership themselves.

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The membership was unhappy with the SPFPA.

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The membership wanted to move to another organization, and it ended up being a competitive organization.

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So we're even way out of the scope of what Section 501A and 501B dictate, because

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501A is about hurting the members.

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It's about doing something that is negative or contrary to the interests of the members.

[00:16:54] Speaker 02:
They're alleging that Mr. Fay did something to the SPFPA, but if we get down to the underlying issue, it's that they're alleging that he told the members who were unhappy with the SPFPA that there's another union that they could go to.

[00:17:06] Speaker 02:
And so I think we're kind of outside of... That's a factual argument.

[00:17:09] Speaker 03:
I think Judge Tatel's asking more about the legal...

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structure and theory of this provision, what to sue means and why it would be limited to state law causes of action.

[00:17:21] Speaker 02:
Sure.

[00:17:22] Speaker 02:
I mean, if we assume that this case is in that context, I think it's still clear.

[00:17:27] Speaker 02:
The 501B says jurisdiction on the face of the statute, and jurisdiction speaks to the members having jurisdiction in federal court.

[00:17:35] Speaker 04:
Could you just answer my question about this

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I'm sorry, Judge, I'm about to be understanding.

[00:17:40] Speaker 04:
I'm assuming you have a case that falls squarely.

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I mean, as Judge Kavanaugh said, you're making a factual argument.

[00:17:46] Speaker 04:
Let's assume, for example, that the case falls squarely within the purpose of the statute.

[00:17:51] Speaker 04:
What?

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Under your theory, am I right, that the union to bring a case under this statute has to go to state court, correct?

[00:18:00] Speaker 02:
Is that right?

[00:18:01] Speaker 02:
Not to bring a case under the statute, if the union believes that an officer, agent, or member has violated a fiduciary duty, then yes, they have to go to state court.

[00:18:09] Speaker 02:
That's what I just asked you.

[00:18:10] Speaker 02:
Well, not exactly, because it's not under the LMR.

[00:18:15] Speaker 02:
I'm sorry, it's not under the LMR.

[00:18:16] Speaker 04:
OK, fine.

[00:18:16] Speaker 04:
OK, so they go to state court, right?

[00:18:18] Speaker 04:
Right.

[00:18:19] Speaker 04:
All right.

[00:18:23] Speaker 04:
But if they don't go to state court, the union member

[00:18:28] Speaker 04:
can bring a case in federal court on behalf of the union, correct?

[00:18:33] Speaker 04:
The suit is brought on behalf of the union.

[00:18:36] Speaker 04:
That's correct.

[00:18:36] Speaker 04:
OK, so I'm trying to understand why it makes sense that the union member could bring a suit on behalf of a union in federal court that the union itself couldn't bring.

[00:18:50] Speaker 04:
Well, we're going back to the legislative intent.

[00:18:52] Speaker 04:
No, no, no.

[00:18:53] Speaker 04:
Don't go back to the legislative history.

[00:18:57] Speaker 04:
I'm asking you whether, why would Congress have done that?

[00:19:01] Speaker 04:
And in Weaver, we said this is like a shareholder case, right?

[00:19:08] Speaker 04:
And the statute itself says that the suit is brought on behalf of the union.

[00:19:16] Speaker 04:
So my only question is why would Congress have given a union member

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cause of action in federal court on behalf of a union that the union could not itself bring?

[00:19:31] Speaker 04:
That's my question.

[00:19:32] Speaker 02:
Because the union didn't need a cause of action in federal court.

[00:19:35] Speaker 02:
The union has a cause of action in state court, Judge Tatel.

[00:19:38] Speaker 02:
The union can already sue.

[00:19:41] Speaker 02:
The common law concept of a fiduciary duty is rather broad.

[00:19:45] Speaker 02:
It's quite extensive.

[00:19:47] Speaker 02:
It would encompass everything that Congress wrote into 501A.

[00:19:50] Speaker 02:
The union already had the ability to pursue that right in state court.

[00:19:56] Speaker 02:
So it would make sense that Congress would not need to add something to this aspect of the statute because the union could already do it.

[00:20:04] Speaker 02:
It was the membership who was without a remedy in this situation.

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And so Congress provided a remedy for the membership who was previously without one.

[00:20:13] Speaker 02:
But it isn't that the union was without a remedy.

[00:20:15] Speaker 02:
In fact, in this case, this union has sued Mr. Fay under common law

[00:20:19] Speaker 02:
fiduciary duty duties.

[00:20:21] Speaker 02:
I'm sorry, breach of fiduciary duty duties outside of federal court.

[00:20:25] Speaker 02:
It's already happened based on this situation and matters that aren't before her court today.

[00:20:30] Speaker 02:
So the union does have a cause of action.

[00:20:32] Speaker 02:
The union does have remedies in order to

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to resolve issues where there's allegations of a breach of fiduciary duty.

[00:20:38] Speaker 02:
It's just that Congress didn't intend for federal court to be the forum in which that was resolved.

[00:20:44] Speaker 02:
And if we look to the legislative intent, I think Judge Kavanaugh made a good point because I actually looked and I could find nothing from Congress that suggested that

[00:20:53] Speaker 02:
we're assuming that the union can already come to federal court or that we intended for the union to come to federal court.

[00:20:59] Speaker 02:
When you look at the legislative history, it seems pretty apparent that the understanding was the union could already sue, that there was already a mechanism for the union to address these issues and that the problem was that the membership wasn't being protected because the union would not in cases of corruption

[00:21:18] Speaker 02:
sue to discharge its rights and so Congress wanted to make sure that the members had rights and so that's what section 501B is about.

[00:21:28] Speaker 02:
It is like a derivative action but it's not so unusual that Congress would say one right could be extinguished in federal court and another right already existing and covered by the state

[00:21:43] Speaker 02:
could be extinguished in the state court.

[00:21:45] Speaker 02:
And I think if we look at the court factors, they're along those lines.

[00:21:50] Speaker 02:
The last factor of court is, is there a state right such that federal action would be inappropriate?

[00:21:57] Speaker 02:
And I think that was the case here when the statute was enacted.

[00:21:59] Speaker 02:
There was already a state right such that federal action would, in fact, be inappropriate.

[00:22:04] Speaker 04:
And what do you do with our decision in Weaver?

[00:22:06] Speaker 04:
I think Weaver.

[00:22:07] Speaker 04:
You want to say something about Weaver?

[00:22:08] Speaker 04:
Weaver allowed the union to pursue a case in federal court.

[00:22:14] Speaker 02:
Yes, but I think as spoken, it's a tangential issue in the sense that the reasons that this court has allowed that union to pursue the case is because of the realignment and the shift with membership.

[00:22:27] Speaker 02:
I mean, they really didn't address this issue, this court.

[00:22:29] Speaker 05:
It wasn't a realignment.

[00:22:30] Speaker 05:
There was no other qualified plaintiff to bring.

[00:22:33] Speaker 05:
The one qualified plaintiff to bring that lawsuit had died.

[00:22:36] Speaker 05:
And so the union was the only

[00:22:39] Speaker 05:
Yes, ma'am.

[00:22:42] Speaker 04:
Well, because the issue in Weaver wasn't about... Under your theory, what should have happened in Weaver is we should have rejected it and told the union to sue in state court.

[00:22:59] Speaker 04:
Yes, that's your theory.

[00:23:00] Speaker 02:
I respectfully disagree with that, Your Honor, because the only thing that happened in Weaver was that there were no members who, a suit had been initiated by the members under 511B in the proper way, and then there were no members who could continue that suit.

[00:23:15] Speaker 02:
So the issue that this court addressed in Weaver was just, should we let the union basically act in the stead of those members?

[00:23:22] Speaker 02:
Because the members were the ones who initiated the action.

[00:23:25] Speaker 02:
That's not what's happening here.

[00:23:28] Speaker 05:
If the union can act in the stead of members under 501B and Weaver, why can't it act in the stead of the members here?

[00:23:36] Speaker 05:
Why does it have to wait for the members to go first?

[00:23:38] Speaker 02:
Because Congress specifically said that that's what should happen under 501B.

[00:23:43] Speaker 05:
But 501B doesn't provide for the union then to intervene and take over the litigation.

[00:23:49] Speaker 05:
There's no jurisdiction when a union brings a lawsuit or there's no cause of action when the union brings a lawsuit, then there would have been no cause of action or jurisdiction in Weaver either.

[00:23:59] Speaker 02:
I understand that, Your Honor, but in Weaver, what the court was doing there wasn't saying that the union has an independent private right of action.

[00:24:06] Speaker 02:
The court was saying that the members

[00:24:08] Speaker 02:
had an independent private right of action and that the court was going to allow the union to pursue the member's independent private right of action because there were no members who could do it.

[00:24:19] Speaker 02:
And so the court didn't go as far... There were no members who could do it.

[00:24:22] Speaker 05:
They just didn't bother to go through the qualification procedure.

[00:24:25] Speaker 05:
There was the one person who did die, but there were plenty of other members that were named in the lawsuit.

[00:24:29] Speaker 05:
They just didn't bother to dot their I's and cross their T's.

[00:24:32] Speaker 02:
But that was the court's rationale for making that decision.

[00:24:35] Speaker 02:
The rationale wasn't because there was an independent private right of action for a union to sue independently, and the court certainly didn't say that or even suggest or hint to that.

[00:24:45] Speaker 02:
in the Weaver case.

[00:24:46] Speaker 02:
I mean, I think the only way to fairly read Weaver is to limit it to exactly what this court did say and what they did do.

[00:24:53] Speaker 02:
And I mean, I don't think whether that court was right to do it or whether the court was wrong to do it, I think is a side issue because it's clear that they're not saying that there's a private right of action.

[00:25:03] Speaker 02:
I mean, it's clear that nobody is actually saying that, not this court and not Congress.

[00:25:08] Speaker 02:
They have not created it.

[00:25:10] Speaker 04:
Weaver said, quote, Congress expressed its preference

[00:25:16] Speaker 04:
that the union prosecute a claim for breach of future duty.

[00:25:23] Speaker 02:
That's correct.

[00:25:24] Speaker 02:
And the union could do that in this case in state court, not in federal court.

[00:25:31] Speaker 02:
And so I think it's just difficult to get around.

[00:25:34] Speaker 02:
I mean, I think the interesting thing about this statute is that it says jurisdiction in 501B and Congress is very clear as to what that jurisdiction should be.

[00:25:45] Speaker 02:
So it's hard to move around that, because this isn't the kind of statute where it's not mentioned at all.

[00:25:49] Speaker 04:
You read the language in Weaver when it says, Congress expressed its preference that a union prosecute a claim for breach of fiduciary duty, and that's the breach of fiduciary duty created in 501A, right?

[00:26:07] Speaker 04:
Sub-A, that's that fiduciary duty.

[00:26:10] Speaker 04:
So your view is that what Weaver was saying is that what Congress had in mind here was that the federal duty created in Sub-A should be enforced by the union in state court.

[00:26:21] Speaker 02:
Absolutely, Your Honor, because what Congress created in Sub A exists and existed.

[00:26:27] Speaker 02:
I mean, the term fiduciary duty, again, as I've said, is a very broad term and has always been treated that way in common law.

[00:26:34] Speaker 02:
The fact that Congress wanted to ferret out some express language to cover that broad umbrella in the context of unions doesn't suggest that

[00:26:44] Speaker 02:
the idea of a fiduciary duty and everything that congress said in 501a wasn't something that was already actionable in state court.

[00:26:53] Speaker 02:
I mean the word fiduciary duty means quite a bit and and perhaps you know the courts have argued as to whether it's distinct or whether it's a broad umbrella but in fact in any mechanism of state law even in the 50s it was a pretty broad umbrella it wasn't just these three factors and that's all you could sue under it was any kind of

[00:27:12] Speaker 05:
breach of the relationship of trust that a fiduciary heart holds.

[00:27:27] Speaker 05:
But then to say, having created those rights in B, Congress deputized a single individual, neither the members as a group nor the union, to prosecute the action.

[00:27:40] Speaker 05:
It just seems very odd to me that Congress would create rights in the union that the union cannot enforce under B.

[00:27:48] Speaker 02:
I don't think it's odd considering the context in looking at the legislative history, considering the context in which the statute arose.

[00:27:55] Speaker 02:
I mean, it arose to protect the members because the unions were believed to be corrupt and were not... Well, maybe, but who's... The remedies all run to the union.

[00:28:04] Speaker 05:
They don't run to the individual, correct?

[00:28:07] Speaker 05:
When they bring this lawsuit, the remedy and win, the remedies are go to the union, not the individual.

[00:28:12] Speaker 02:
That's correct on behalf of the membership.

[00:28:15] Speaker 02:
On behalf of the membership.

[00:28:18] Speaker 02:
Well, I think it's, I think, Your Honor, it's kind of hard to get around the fact, considering the legislative history, that this is all about the membership.

[00:28:25] Speaker 02:
So, yes, technically, if they were to win money or some legal damage or equitable relief, yes, it... The statute says the relief is for the benefit of the labor organization.

[00:28:35] Speaker 05:
It doesn't say for the members.

[00:28:37] Speaker 05:
But if we look at the legislative history.

[00:28:51] Speaker 05:
You have rights that have been created, but someone else can litigate them for you.

[00:28:57] Speaker 05:
And that may well be binding on your ability, the union's ability to recover damages from this fellow.

[00:29:03] Speaker 02:
Well, not if we think about the, I mean, I think we all agree that this was done in the context of a derivative action, like a corporation.

[00:29:09] Speaker 02:
We know that unions aren't technically corporations, but a different kind of animal.

[00:29:13] Speaker 02:
So if you think about it, if it's a likened to a derivative action, it's not someone else's rights.

[00:29:19] Speaker 02:
It's not the membership saying,

[00:29:20] Speaker 02:
you know, hey, it's me personally, it's the representational body, the organization as a whole.

[00:29:27] Speaker 05:
The organization isn't bringing the lawsuit.

[00:29:29] Speaker 05:
You could actually have the individual go to the union and say you need to

[00:29:34] Speaker 05:
prosecute this person, but it turns out it's a sour grapes union member.

[00:29:38] Speaker 05:
And in fact, the union has been behaving perfectly, the officials have been behaving perfectly, the basket chariot, everybody, every member of the union except this one, votes not to take any action.

[00:29:49] Speaker 05:
And then this one person can go bring a lawsuit and it's gonna accomplish a ruling, obtain rulings, and it will be binding rules of law on the relationship between that union official and the union without the union having any say.

[00:30:04] Speaker 02:
Well, that's what Section 501B does allow.

[00:30:10] Speaker 05:
It does allow... It seems extraordinary to read it that way, as opposed to a tag team between the union and the...

[00:30:16] Speaker 02:
Well, and I don't think it's in the sense that, I mean, I would agree with you there, but I don't think it's in the sense that the union doesn't have a say.

[00:30:24] Speaker 02:
I mean, the union, in fact, did have a say.

[00:30:26] Speaker 02:
It's just that the union may have disagreed with that individual member.

[00:30:29] Speaker 02:
They had the opportunity to hear what the member had to say and make a decision themselves as to whether they would pursue what the

[00:30:36] Speaker 05:
Right.

[00:30:36] Speaker 05:
If they made a perfectly, I mean, I know the assumption here is to make bad decisions, but what if they made a perfectly reasonable decision and now they're going to have their rights determined and bound and litigation to which they can't even be a party?

[00:30:47] Speaker 02:
I mean, that may be the case, but that's, I think, what Congress actually did do.

[00:30:51] Speaker 05:
Well, maybe that's what they did.

[00:30:53] Speaker 05:
Is there a constitutional problem with that?

[00:30:58] Speaker 02:
There may be, Your Honor.

[00:30:58] Speaker 05:
I haven't thought about it because- You're just going to avoid that, right?

[00:31:01] Speaker 02:
I mean, perhaps that's the case.

[00:31:03] Speaker 02:
I have to admit that I haven't thought about that because I do agree that the union did provide a cause of action for the member to do that, even in the situation that you're stating.

[00:31:12] Speaker 02:
And perhaps that's problematic, but that really isn't what's before the court today.

[00:31:16] Speaker 02:
It's about whether the union actually has the right to do it first in federal court.

[00:31:20] Speaker 02:
And so I think on that issue, Congress has not given that right.

[00:31:25] Speaker 02:
And for whatever reasons, right or wrong, they did actually give that right to the member.

[00:31:29] Speaker 02:
to do that and create binding law.

[00:31:36] Speaker 02:
Thank you, Your Honor.

[00:31:37] Speaker 04:
Thank you.

[00:31:38] Speaker 04:
Did Mr. Moore have any time left?

[00:31:42] Speaker 00:
Go ahead.

[00:31:46] Speaker 00:
Your Honor, I have really nothing to add unless there are questions from the panel.

[00:31:49] Speaker 04:
Thank you.

[00:31:51] Speaker 04:
Please submit it.