good morning your honors may please the court the district court erred by holding that it lacked subject matter jurisdiction over plaintiff murray's claims it based that holding on its conclusion that certain fed federal regulatory language made the two thousand and thirteen election and challenges to it and specifically my client's claims subject to title four of the l m r d n a or all refer to it as the act in fact the regulatory language does state that to the extent that a non covered local union such as we industry to be having this case in the case of local thirteen hundred to the extent that the local participates in the election of delegates who in turn participate in a convention where op a series of a covered international elect officers to that extent the provisions of total four of the act apply so if the ballot had said that would the district court be correct then in your view no your honor for the because of the alternative argument we have that the district as the district director best put it in the letter in response to the letter that we wrote that the secretary would not could not provide any relief with respect to the officer status of my clients are not on officer status after they were taken out of office so specifically mr di wheeler said in response to a pointed letter that no we could if your clients were seeking to somehow overthrow the international election of officers and if we determined that there was something wrong with the conferral of delegate status then maybe we might get involved but only then if we determined that it somehow had an effect on the overall out office or election at the the situation in which you have a union that a local that is all no no no prime therefore it's not within the original fiction that cover is the exception there to accept that no not necessarily because it's not a necessary war you'd rather have made it through it seems like it's necessary because you'd be saying the secretary can't do anything about what happened at the local and that eight the exception the judge sent that we all agreed no no i don't think so because let's say for instance that that we're right on the fur on that all off in an argument you know the words that the secretary i was right and that there was nothing they could do with respect to the conferral of officer status but in local thirteen hundred still if my clients had wanted to go to the secretary and complain that mr hanley the  t u president was wrongly elected ok because the delegate the that language didn't appear that delegate phrase didn't appear on those ballots and so district director wheeler we want you with that it was a one vote difference and so it did make a difference so the delegate phrase was in there the the the eighty you itself did not see these people as delegates they enforced that specific language so the answer your honor's no it doesn't write it out that language still very much has mean so not challenging the international lection election of hanley but still here we can't we could've gone to the secretary understood wonder secretary or district director wheeler's letter we could have gone to the secretary because the secretary has told us why does the absence of the language on the ballot matter they say well if you have a problem with that you can file a complaint about the absence of the way in which on the ballot but it is still in a lakshman where  the election of the locals simultaneously going to mean that their delegates to the international therefore it comes with entitle for its that's still true for purposes of the election it would still be true if someone were trying to challenge the election of argument that we would not need that argument that that's not to say that it wouldn't that that if we were to complain or someone wanted hypothetically to complain about that the election of hanley at the international level that which one you call which one i should have put forward to tell me well now they're both i think they're equally strong or are there equally strong reasons as to why this the district court was was wrong on the subject matter jurisdiction it's of two independent arguments number one district a writ director wheeler expressly said that no we the secretary will not could not will i even tried to provide you were to get you relief with respect to you being taken out of office at the local thirteen hundred level we do not have jurisdiction under title four to do that now independent of that argument the other argument is that even if second district director wheeler hadn't said that even if we had written to him ok there's a whole separate reason why my clients were his murray could not have gone to the secretary for for relief here because the delegate phrase know then i don't see how you can possibly go back and so rigid we should have been decided the other way you want to limit her but but with respect your honor this happens in going to the title seven context for instance simple summary judgment should have been granted to the defendant in the not you as a general proposition that is not correct their circuits say in some circumstances where it is clear that the facts  stand it's a review kind of looked at as a general proposition your summary judgment we don't look back at what might have happened on summary judgment except in rare circumstances where is no doubt that the the brief was just some tell points out is that as a matter of law you are entitled to judgment on this claim yes that's again the right and therefore trial or post trial motions you should of prevails summary judgment right at murray's entitled to summary judgment because by virtue of finding that there was a an issue as to whether or not hand least the internationals ruling was fair by one of the statutory questions the judge posed for did resolve and which was not appeal he said that rendering a man ineligible for office can count as discipline then unfortunately for us he went and went further and said here but on the facts of this case it's not discipline all the way it's not what he said that basically the jury will decide whether or not it's discipline right and we still erred there because first of all that is an issue of law ok whether or not it was disciplined and and that for for even for policy reasons the and statutory reasons by virtue of finding and this law review article that we cited the beard law of york was very helpful in this regard in terms of its discussing the early case law in the figaro a case of i think the williams case in terms of pointing out that whether if there's a factual issue about whether or not application of a rule was fair or not that's discipline that as a matter of law is discipline and there needs to be even in the eligibility context i guess i had a threshold question here of whether that there are two different things eligibility and discipline so if you are are applying for a security clearance to be eligible for a job you may not get that you may not get that job you may not be deemed eligible for the job and discipline would be a whole separate thing where you're investigated prosecuted what have you but but you're i would submit that the question here is whether or not there was discipline and if you look at the beard marginals hurry whether there's a discipline unless we know whether or not the action taken had a punitive on the underbelly there the only way you can decide in fairness of someone to look at the facts and say having considered them we agree it was unfair and right here i don't want to further since the congress determined when an act of the statute that the people who are supposed to decide whether or not it was fair and resolve  presented the first rule that when there's an exit fish go delegate election that the department of labor has only limited jurisdiction and can investigate the whole election that gave rise to the uphold the validity of the longstanding validity of the very concept of having an ex of the show delegate the position that they're now saying that they're asking this court to embrace did novo with no election if there's a defect that actually disables one of the winning elect elected officers delegates from serving from functioning as a valid delegate at the convention that means that the what you know there could be your honor but that the election was understood by everybody as the officers served by virtue of their office and then the question is was there a violation of an additional requirement in right by the deal well greg elations by the eighteenth constitution and by the by laws that was the choice that was highly election was free and any number of defects could have prevented the election from being valid but the department of labor issue that the department of labor would have jurisdiction over is whether the eligibility determination made on that position which is the same whether they're a delegate or the local union president whether mr murray's eligibility determination decide that then the court can't separately beach a different conclusion in two separate proceedings to determine that same dispositive legal question and that is the one question here which is the eligibility determination the third sweeping unprecedented rule of law that the opponents are asking you to embrace is that whenever there's a factual dispute that has to do with the after of fact assessment of whether a particular eligibility ruling was fair and reasonable in good faith and bad faith that that means that the court may not decide it but has to grant judgment as a matter of law to the plaintiff because the union never held a charge and trial proceeding that's the part for the horses judge most profound the only way you can determine whether the there's any basis for going behind a straightforward eligibility determination is an after the fact additional review the standards only i'm sorry just so i can are comfortable with the outcome in the sense that he said that if there is a question that has to do with the fairness of the rule not about its original applicability or the facts that gave rise to the finding in the appellate so absolutely clear on that they are not claiming that there was a factual dispute as to whether the rule applied to them or whether they had violated the eligibility standard it was not a the only question they're raising is whether the eighty you should have accepted an excuse a particular very and the question judge where it's raised it was not a t u that had anything to do with this alleged fording or the reason why they couldn't repay and there they may have claimed in court that their local union prevented them from making the t u was deciding an appeal looking on the record and it decided it applied in eligibility standard that's fair objective it has to be applied uniformly across the thousands of delegate that this was a disciplinary action and therefore none of the cases that they cite and in particular their lead case williams stands for the proposition that any factual dispute automatically turns it into discipline to the contrary all the cases they cite involve none of them involve mentioned at the local level it was made on the field by the eighty you which was applying a rule that had previously said absolutely applied to these plaintiffs and only heard the case after an election protest came to them there was no initiation of any punitive action it was after that they sued that they claimed that somebody in local in their local union had prevented them from making repayment not to punish them but just that that was a reason a eligibility in every election and candidate eligibility what they're saying is that if you make a ruling that says you know you're not eligible to vote your ballot is challenges and you're not allowed to vote but that's punishment because there might be a factual dispute there is no case love that has ever helped that a union hearing the election protest resolving a challenge ballot must bring the person up on an adversary charge and trial process if there's a dispute to the contrary they're all investigated administrative leave even the secretary of labor when they subsequently look at the same question investigated administratively and make their own determination whether they think the rule was fairly applied again there's no question that this was not  violation of a rule that doesn't have anything to do with them of voting in election or running for office this was the standard the context of this was a regular election post election protests was filed it was money it was not paid before the election therefore you're not eligible it doesn't mean you are punished in any way you can when you pay up you can run in the  serious question about unfair person said is there is a serious question of unfairness for bad faith or outrageousness and it's in the courts review to determine whether or not it was disciplinary or simply a standard election ruling then that is a jury question t i'm in a in a case where a charges brought under the union's internal disciplinary proceedings that the the rights of due process apply from the get go this is a situation where the say that the presence or absence of a factual dispute is not dispositive we have to look at as a for reviewing with a limited judicial review whether this was reasonable in bad faith or otherwise outrageous and arbitrar stage and so when we elaborated on that and explained what the context is for the determination of fairness reasonable in this bad faith there is an established body of law that judge posner was following  issue because that case actually talks about title for you know when they're assuming that that was the relevant issue that that case talks about delegates having the power to nominate and vote for opposite that international and in this case they determine the eighty you did that ms that the person selected within local thirteen hundred did not have that power to nominate and vote by not by refusing to see them as del  received summary judgment because he had not been afforded the procedures and for eleven a five so i wanted to mention that and it's and it's really that case is one it's directly on point as to why we say that plaintiff murray and considered right be it evening someone ineligible whatever it might be or what if that and there's a factual question as to whether the rule applies then four eleven a five comes into play as the beard being considered based on a particular rule here good standing status if if the person is disputing that and it is raising is not just obviously lying about raising legitimate issues then for eleven a fight kicks in union don't want to go to trial on this i want my hearing under four eleven a five because it's this huge don't know what we're saying is i'm not understand here's what i'm to here's what we're saying your honor is they should have before the eighty you should have before dating my clients just that this may be disciplinary when you have a reasonable claim that it's punitive right where is a case that says we're not going to figure out whether we're really was punitive all you have to be able to show is that there is a i'm looking at that and i see what it says we're not it doesn't even say it the way you're it says the only question remaining is what little base of this beautiful actual nature if it is a full evidence rehearing with the protections  a five is required that's what i'm saying your honor well then that's the relief well no they should know that they should have provided us with the hearing at the time it came up so that we that the union could have decided i have to look at the cases i hear what you are now saying which is seems strange to me i did not see the faces that say if you can reasonably contest what happened that is like judge wells were good if you reasonably can  contest it you're entitled to damages that's that's the really what well just be clear your honor if i may i'm saying if you can refute reasonably contest it and the union doesn't give you a hearing