IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT (BOB) ROSS §

§

VS. §

§

ASSOCIATION OF PROFESSIONAL §

FLIGHT ATTENDANTS, et al., §

§ Case No. 4:22-CV-343-Y

AND §

§ Consolidated with

EUGENIO VARGAS § Case No. 4:22-CV-430-Y

§

VS. §

§

ASSOCIATION OF PROFESSIONAL §

FLIGHT ATTENDANTS, et al. §

______________________________________________________________________________

APFA DEFENDANTS’ AMENDED REPLY MEMORANDUM

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

ON ALL CLAIMS AND COUNTERCLAIMS

JAMES D. SANFORD

Tex. Bar No. 24051289

Gillespie Sanford LLP

4803 Gaston Ave.

Dallas, TX 75246

Tel.: (214) 800-5111; Fax.: (214) 838-0001

Email: jim@gillespiesanford.com

JEFFREY A. BARTOS (pro hac vice)

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1717 K Street, N.W. Suite 900

Washington, DC 20006

Tel.: (202) 624-7400

Email: jbartos@geclaw.com

Counsel for the APFA Defendants

CHARLETTE L. BRODERICK (pro hac 

vice)

Tex. Bar No. 241133870

Association of Professional Flight 

Attendants

1004 W. Euless Blvd.

Euless, TX 76040

Tel.: (682) 301-8454

Email: cbroderick@apfa.org

Counsel for APFA

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................ii

ARGUMENT...................................................................................................1

I. THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT........................1

II. JUDGMENT SHOULD BE ENTERED ON THE CLAMS WHICH PLAINTIFFS 

HAVE ABANDONED...............................................................................3

III. THE APFA DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON 

PLAINTIFFS’ LMRDA CLAIMS.................................................................4

A. Plaintiffs Have Not Shown Any LMRDA Due Process Violations........................4

B. Plaintiffs Cannot Show Protected Speech Was The “But For” Cause of The 

Arbitrator’s Decisions............................................................................9

C. The LMRDA Does Not Prohibit Union Discipline Barring A Member From Holding 

Union Office....................................................................................11

IV. THE APFA DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE 

REMAINING STATE LAW CLAIMS...........................................................12

A. Defamation...................................................................................12

B. Breach of Transition Agreement.........................................................15

V. THE APFA IS ENTITLED TO SUMMARY JUDGMENT ON ITS BREACH OF 

FIDUCIARY DUTY COUNTERCLAIMS......................................................17

A. The APFA May Sue to Enforce the Federal Fiduciary Duty.........................17

B. Plaintiffs Have Not Met Their Burden of Establishing That Laches Bars The 

Federal Fiduciary Duty Claims...........................................................20

C. The Final and Binding Arbitration Decisions Establish The Fiduciary Duty

Violations of Plaintiffs.....................................................................21

CONCLUSION................................................................................................25

CERTIFICATE OF SERVICE 

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TABLE OF AUTHORITIES

CASES..................................................................................................Page(s)

Adams-Lundy v. APFA, 

792 F.2d 1368 (5th Cir. 1986).................................................................22, 23

Adams-Lundy v. APFA,

844 F.2d 245 (5th Cir. 1988).............................................................22, 23, 24

Aircraft Mechs. Fraternal Ass’n v. Transp. Workers Union of Am., Loc. 514, Air Transp. Div., 

AFL-CIO, 

98 F.3d 597 (10th Cir. 1996).......................................................................11

Alexander v. Sandoval, 

532 U.S. 275 (2001).............................................................................19, 20

Bldg. Material & Dump Truck Drivers, Loc. 420 v. Traweek,

867 F.2d 500 (9th Cir. 1989)......................................................................19

BMG Music v. Martinez, 

74 F.3d 87 (5th Cir. 1996)...........................................................................6

California v. Sierra Club, 

451 U.S. 287 (1981).................................................................................19

Clark v. Am.’s Favorite Chicken Co., 

110 F.3d 295 (5th Cir. 1997)...................................................................24-25

Cort v. Ash, 

422 U.S. 66 (1975).........................................................................18, 19, 20

Farrell v. Hellen, 

367 F. Supp. 2d 491 (S.D.N.Y. 2005)........................................................10 n.8

Fingar v. Seaboard Air Line R. Co., 

277 F.2d 698 (5th Cir. 1960).......................................................................24

Finnegan v. Leu,

456 U.S. 431 (1982).................................................................................12

Hoffman v. Kramer, 

362 F.3d 308 (5th Cir. 2004)......................................................................18

Holschen v. Int’l Union of Painters & Allied Trades/Painters Dist. Council #2,

598 F.3d 454 (8th Cir. 2010)....................................................................4 n.3 

Case 4:22-cv-00343-Y Document 262 Filed 11/26/24 Page 3 of 32 PageID 9147
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Hudson v. Am. Fed’n of Gov’t Emps.,

630 F. Supp. 3d 214 (D.D.C. 2022)................................................................9

Int’l Bhd. of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO v. 

Hardeman,

401 U.S. 233 (1971)........................................................................3, 4, 7, 11

Int’l Shortstop Inc. v. Rally’s Inc., 

939 F.2d 1257 (5th Cir. 1991)...............................................................15 n.15

Int’l Union of Elecs., Elec., Salaried, Mach. & Furniture Workers, AFL-CIO v. Statham, 

97 F.3d 1416 (11th Cir. 2006).....................................................................20

Int’l Union of Operating Eng’rs, Local 150 v. Ward, 

563 F.3d 276 (7th Cir. 2009).......................................................................20

Int’l Union, Security, Police & Fire Profs. of Am. v. Faye, 

828 F.3d 969 (D.C. Cir. 2016).....................................................................20

Keenan v. Int’l Ass’n of Machinists & Aero. Workers,

937 F. Supp. 2d 93 (D. Maine 2013).......................................................6, 9, 10

Kirk v. Transp. Workers Union of Am., AFL-CIO,

934 F. Supp. 775 (S.D. Tex. 1995)................................................................14

Local No. 92, Int’l Ass’n of Bridge, Structural and Ornamental Iron Workers, 

383 F.2d 735 (5th Cir. 1967).......................................................................22

Lucas v. United States, 

807 F.2d 414 (5th Cir. 1986).......................................................................16

Lewis v. AFSCME,

407 F.2d 1185 (3d Cir. 1969)....................................................................3, 12

Mandaglio v. United Bhd. of Carpenters and Joiners of Am. (Gen. Exec. Bd.), 

575 F. Supp. 646 (E.D.N.Y. 1983)..................................................10 n.7, 10 n.9

Martin v. Local 556, Transp. Workers Union of Am. AFL-CIO, 

No. 3:14–CV–0500–D, 2014 WL 4358480 (N.D. Tex. Sept. 3, 2014).................12 n.10

McCarthy v. Int’l Ass’n of Machinists & Aerospace Workers, 

No. 21-1673, 2021 WL 5766569 (3d Cir. Dec. 6, 2021)........................................11

McConathy v. Dr. Pepper/Seven Up Corp.,

131 F.3d 558 (5th Cir. 1998)......................................................................16

Case 4:22-cv-00343-Y Document 262 Filed 11/26/24 Page 4 of 32 PageID 9148
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Moreno v. Sterling Drug, Inc.,

787 S.W.2d 348 (Tex. 1990).......................................................................16

N.L.R.B. v. Int’l Ass’n of Bridge Structural & Ornamental Iron Workers, 

864 F.2d 1225 (5th Cir. 1989)...............................................................12 n.10

N.L.R.B. v. Int’l Bhd. of Boilermakers, 

581 F.2d 473 (5th Cir. 1978).................................................................12 n.10

Noble v. Sombretto, 

260 F. Supp. 2d 132 (E.D.N.Y. 2003)............................................................24

In re OCA, Inc., 

552 F.3d 413 (5th Cir. 2008).......................................................................16

Place St. Charles v. J.A. Jones Constr. Co., 

823 F.2d 120 (5thCir. 1987).............................................................24, 24 n.18

Ray v. Young,

753 F.2d 386 (5th Cir. 1985)..................................................................22, 24

Reyes v. Laborers’ Int’l Union of N. Am., Loc. Union No. 16, 

464 F.2d 595 (10th Cir. 1972)................................................................11, 12

Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 

605 F.2d 1228 (2d Cir. 1979)...................................................................7, 11

Runyan v. United Bhd. of Carpenters, 

566 F. Supp. 600 (D. Colo. 1983)..................................................10 n.9, 12 n.10

Schrader v. Sheet Metal Workers Int’l Ass’n Loc. Union No. 20, 

656 F. Supp. 1487 (N.D. Ind. 1987)...............................................................5

Serafinn v. Local 722, IBT,

597 F.3d 908 (7th Cir. 2010)........................................................................9

Sheet Metal Workers v. Lynn,

488 U.S. 347 (1989).................................................................................12

Smith v. Spizzirri,

No. 22-1218, 2024 WL 2193872 (U.S. May 16, 2024)..................................15 n.16

Transamerica Mortgage Advisors, Inc. v. Lewis,

444 U.S. 11 (1979)...................................................................................17

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Touche Ross & Co. v. Redington, 

442 U.S. 560 (1979).................................................................................18

United States v. Herron,

825 F.2d 50 (5th Cir. 1987)........................................................................14

United States v. Int’l Bhd. of Teamsters, 652 F. Supp. 2d 447

(S.D.N.Y. 2009).....................................................................................11

Vais Arms, Inc. v. Vais, 

383 F.3d 287 (5th Cir. 2004)...............................................................3, 15 n.15

Yager v. Carey,

910 F. Supp. 704 (D.D.C. 1995)..................................................................6, 9

STATUTES

UNITED STATES CODE

Labor-Management Reporting & Disclosure Act

29 U.S.C. § 411..........................................................................................................4, 9, 11, 17

29 U.S.C. § 501....................................................................................18, 19, 20, 21, 22, 23, 24

29 U.S.C. § 529..........................................................................................................................9

TEXAS CIVIL PRACTICES & REMEDIES CODE

§ 16.051....................................................................................................................................15

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We demonstrated in our opening Memorandum, Doc. 235, that Plaintiffs cannot show facts 

which would warrant a trial on any of their claims, that the APFA Defendants are entitled to 

judgment as a matter of law on Plaintiffs’ claims, and that APFA is entitled to judgment on its 

fiduciary duty counterclaims. We respectfully submit that Plaintiffs’ Amended Opposition Brief, 

Doc. 259, to which we reply herein, confirms that conclusion.1 Plaintiffs have not met their burden 

of demonstrating a genuine issue as to any material fact, nor of establishing legal grounds upon 

which they may proceed on the undisputed record. The APFA Defendants respectfully submit 

that—with discovery and briefing now complete—the Court should enter judgment in their favor 

on all claims.

ARGUMENT

I. THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT.

The essential dispositive facts are not disputed. Without rehashing the factual discussion 

in our opening Memorandum, we note here only that non-party Union members filed internal 

Union charges against Mr. Ross and Mr. Vargas, which led to final and binding arbitrations under 

Article VII of the APFA Constitution. APFA Appx. 4-5 (Black Decl.) ¶¶ 10-13.2 The independent 

Arbitrator conducted hearings in which witnesses testified and documentary evidence was 

submitted, and ultimately issued awards in both cases which held that Mr. Ross and Mr. Vargas, 

while Union officers, had misused and improperly received tens of thousands of dollars in violation 

of the APFA Constitution and Policy Manual. APFA Appx. 6-8 (Black Decl.) ¶¶ 15-23; APFA 

1 The Court’s Order permitting the filing of an amended opposition also permitted the Defendants 

to file an amended reply. Doc. 252 at ECF 5. This Amended Reply supplants our original Reply 

filed at Doc. 248.

2 The APFA’s Appendix in support its Motion for Summary Judgment is filed at Doc. 236. The 

APFA Defendants also submit herewith a short Supplemental Appendix which provides material 

from the Article VII Transcript responsive to Plaintiffs’ new contentions.

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Appx. 282-84 (Ross Supp. Decision); APFA Appx. 504-06 (Vargas Supp. Decision). The 

Arbitrator barred Mr. Ross and Mr. Vargas from holding Union office based on what he concluded 

were egregious breaches of their duty to the Union and its members. Id.; see also APFA Appx. 

240, 242 (Ross Award); APFA Appx. 480 (Vargas Award).

Arbitrator Armendariz concluded that Mr. Ross had improperly used APFA funds for:

§ Personal housing expenses and furniture purchases;

§ A family vacation to the Grand Canyon;

§ Costs for personal rental cars;

§ Expenses related to commuting to Ross’ California home; and

§ Inflated vacation and sick leave payments which he refused to repay.

Mr. Ross was ordered to repay APFA for the $5,436.47 sick and vacation overpayment, as well as 

over $8,000 for leasing an apartment “where he had no intention of occupying,” and an additional 

$3,600 in unauthorized expenditures. APFA Appx. 241-42. Mr. Ross was barred from holding any 

positions in APFA. APFA Appx. 242. After an independent financial review revealed that Mr. 

Ross had charged thousands of dollars to the Union for additional personal expenses during his 

two-year tenure, Arbitrator Armendariz ordered Mr. Ross to repay an additional $20,336.19 for 

unauthorized and inappropriate costs charged to APFA for personal expenses. APFA Appx. 282-

84.

Arbitrator Armendariz also found Mr. Vargas guilty of violating the APFA Constitution 

and Policy Manual in dereliction of his duties as National Treasurer in several ways including 

regularly charging personal meals to the Union, while accepting fixed meal allowances. After an 

independent financial review, Arbitrator Armendariz determined that Mr. Vargas had made 

approximately $14,000 in “[i]nappropriate credit card charges related to meals.” APFA Appx. 505. 

Mr. Vargas was ordered to repay that amount, the cost of the independent financial review, and 

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half of the arbitrator’s fee and he was “prohibited from serving in any APFA National Officer 

position or Regional Officer position for life.” Id.

Plaintiffs seek to generate a dispute over the core facts of the arbitration process by offering 

arguments and fragments of evidence which, they say, contradict some of the Arbitrator’s findings 

and conclusions. See Doc. 259 at ECF 24-27. But judicial review of union discipline is not de 

novo; the question is whether “the charging party ... provide[ed] some evidence at the disciplinary 

hearing to support the charges made ... A stricter standard ... would be inconsistent with the 

apparent congressional intent to allow unions to govern their own affairs, and would require courts 

to judge the credibility of witnesses on the basis of what would be at best a cold record.” Int’l Bhd. 

of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO v. Hardeman, 401 

U.S. 233, 246 (1971) (emphasis added); see also Lewis v. AFSCME, 407 F.2d 1185, 1198 (3d Cir. 

1969). Plaintiffs do not even remotely establish a genuine issue under this standard.

Confronted with the undisputed record of the Article VII arbitrations, Plaintiffs seek to 

generate disputed issues through their own generalized Declarations which misrepresent the 

documentary record, or by misconstruing portions of Declarations submitted by APFA. As we 

show below, these efforts fail to establish any genuine issue of material fact and are not grounds 

to avoid summary judgment on this record. Vais Arms, Inc. v. Vais, 383 F.3d 287, 293-94 (5th Cir. 

2004) (nonmovant’s “conclus[ory],” “vague, self-serving statements” were insufficient to preclude 

summary judgment).

II. JUDGMENT SHOULD BE ENTERED ON THE CLAMS WHICH PLAINTIFFS 

HAVE ABANDONED.

Plaintiffs have now expressly abandoned several claims which we addressed in our motion, 

and we therefore do not discuss them herein. The withdrawn claims are, for Mr. Ross: Count II 

(breach of union constitution); Count III (Fair Credit Reporting Act); Count V (tortious 

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interference with contract); and Count VI (breach of fiduciary duty). Mr. Vargas has withdrawn 

his Counts II (union constitution); III (fiduciary duty); and IV (fraud). Doc. 259 at ECF 21 n.58.

We respectfully submit that judgment should be entered on each of these claims.

III. THE APFA DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON 

PLAINTIFFS’ LMRDA CLAIMS.

A. Plaintiffs Have Not Shown Any LMRDA Due Process Violations. 

We demonstrated in our opening submission (Doc. 235 at ECF 35-42) that the undisputed 

evidence shows that the arbitration process was fully consistent with the requirements of the LaborManagement Reporting and Disclosure Act (“LMRDA”), including its requirement that discipline 

be supported by “some evidence” and only after a “full and fair hearing.” 29 U.S.C. § 411(a)(5)(C); 

Hardeman, 401 U.S. at 246-47. Plaintiffs’ Opposition, once stripped of rhetoric, confirms this 

conclusion.3

We demonstrated, through Plaintiffs’ testimony and the undisputed hearing record 

(including key transcript excerpts, Plaintiffs’ post-hearing briefs, and the arbitration decisions) that 

the LMRDA’s requirement of a “full and fair hearing” was amply met in both of their cases. Doc. 

235 at ECF 20-28 (facts regarding Ross); id. at ECF 28-33 (facts regarding Vargas). It remains 

undisputed that Plaintiffs were provided ample advance notice of their charges and opportunity to 

prepare a defense; participated in their own defense through representatives of their choosing; 

called witnesses; introduced exhibits; cross-examined witnesses called by the charging parties; and 

3 While Plaintiffs take issue with the evidence regarding some of the charges against Mr. Ross, 

most notably his refusal to repay sick and vacation payments in excess of what he was allowed, 

the evidence regarding most of the charges against him, and all of the charges against Mr. Vargas, 

is not contested at all. The discipline as a whole, particularly the bar on the holding of union office, 

may thus be upheld even if, for the sake of argument, Mr. Ross were correct as to the quantum of 

evidence on these few matters. See Holschen v. Int’l Union of Painters & Allied Trades/Painters 

Dist. Council #2, 598 F.3d 454, 462 (8th Cir. 2010) (upholding discipline when there is “some

evidence to support some of the charges brought against him”) (emphasis in original). 

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submitted extensive post-hearing briefs. Plaintiffs both received a “full and fair hearing” as a 

matter of law. Id. at ECF 36-38.

Plaintiffs do not contest any of the factual showing in this regard, but attempt to avoid 

summary judgment through generalized declarations which do not meet their burden of 

establishing a genuine issue of material fact which must be decided by a jury.

Plaintiffs Opposition brief states broadly that “the arbitrator did not allow them to: admit 

key evidence; omit inadmissible evidence; compel key witnesses to attend and testify; or crossexamine key witnesses.” Doc. 259 at ECF 24. But they fail to present facts which would support 

a claim that any specific evidentiary or procedural rulings were in any sense erroneous or 

unfounded, nor that any ruling actually prejudiced them in their ability to present a case to the 

degree which would violate the LMRDA. Notably, with respect to the asserted “key evidence” and 

“key witnesses”, Plaintiffs provide no explanation of what the evidence was, who the witnesses 

were, what the intended documentary or testimonial evidence would have shown, or how it would 

have impacted the outcome. Nor is there any explanation of why, in a proceeding in which the 

strict rules of evidence did not apply, there could be “inadmissible evidence” which was 

improperly allowed. Plaintiffs have not met their burden. See Schrader v. Sheet Metal Workers 

Int’l Ass’n Loc. Union No. 20, 656 F. Supp. 1487, 1495 (N.D. Ind. 1987) (“This court does not sit 

as another court to which [Plaintiff] may appeal. Rather, its function is solely to ensure ... minimal 

due process”). 

Likewise, while Mr. Ross claims that he was “unable to properly cross-examine Harris, 

and other witnesses,” and Mr. Vargas claims that he was “unable to ... cross-examine Harris.”

Doc. 259 at ECF 15, ¶ 12 (Ross) (emphasis added) and ECF 17, ¶ 18 (Vargas), the hearing 

transcripts show that Mr. Ross (and his representative) cross-examined Mr. Harris for over 100 

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transcript pages, APFA Appx. 109 (witness index), as did Mr. Vargas in his hearing. APFA Appx. 

355 (witness index). Plaintiffs’ failure to demonstrate actual impropriety in the proceedings defeats 

their claim. See Keenan v. Int’l Ass’n of Machinists & Aerospace Workers, 937 F. Supp. 2d 93, 109 

(D. Maine 2013); Yager v. Carey, 910 F. Supp. 704, 714 (D.D.C. 1995), aff’d, 159 F.3d 638 (D.C. 

Cir. 1998).

4

Mr. Ross contends that he was in some way prevented, during his questioning of Mr. 

Harris, from asking questions regarding his Transition Agreement or the calculation of his sick 

leave and vacation pay. See Doc. 259 at ECF 15-16, ¶ 14. For support of this assertion he cites 

only his Declaration, and not any transcript pages, Doc. 259 at ECF 16 n.32, and the cited 

paragraph of his Declaration does not support that contention (see Pls. Appx. 167, ¶ 16). Moreover, 

the transcript shows this generalized contention is demonstrably incorrect – Mr. Ross did question 

Erik Harris about the Transition Agreement and the calculation of sick and vacation pay. See APFA 

Supp. Appx. 0676-0698 (Ross Art. VII Tr. 146:11-148:2; 151:24-154:7; 161:9-172:3).5 The 

generalized denial of this documented fact does not create a triable issue, see BMG Music v. 

Martinez, 74 F.3d 87, 91 (5th Cir. 1996) (nonmovant’s “conclusory, self-serving statement” was 

4 Plaintiffs also assert that Mr. Ross was not “not allow[ed] to share evidence about [one charging 

party’s] ... multi-year public campaign against him.” Doc. 259 at ECF 14, ¶ 11. The cited transcript 

shows only the arbitrator stating that: “I’m going to say this on the record. I really don’t care what 

happened on FaceBook or social media. I want to get down to what the issues are, and ... whether 

you owe money or you don’t, okay?” APFA Appx. 126 at Tr. 220:12-18 (cited by Plaintiffs at Doc. 

259 at ECF 14 n.26). Plaintiffs do not show how this ruling rendered the hearing legally deficient. 

Equally unavailing are Mr. Vargas’ assertions that he was not given unlimited time to cross 

examine witnesses, or present supposed evidence regarding “witness tampering,” Pls. Appx. 188, 

¶¶ 9, 11. Mr. Vargas never identifies what he would have done with additional time, nor what 

evidence he attempted to submit.

5 The APFA Defendants have filed an unopposed motion for leave to file this Supplemental 

Appendix.

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insufficient to preclude summary judgment), and the belief that he could have done a better job at 

the time does not create an LMRDA claim against APFA.

And while Mr. Ross asserts that the Arbitrator erred in finding him liable for using union 

funds for certain furniture purchases, Doc. 259 at ECF 16, ¶ 15, the court in an LMRDA Title I 

case does not sit as an appellate court, but only to determine if (a) there has been a statutory “full 

and fair hearing,” and (b) there is “some evidence” to support the ultimate discipline. A dispute 

about how the Arbitrator balanced the evidence is not properly before this Court. See Rosario v. 

Amalgamated Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1243 (2d Cir. 1979).

Moreover, the Arbitrator specifically found, after his personal observations of Mr. Ross in the live

hearing context, that Mr. Ross’s “testimony was inconsistent and not forthright.” APFA Appx. 

240. The Supreme Court has long rejected a review standard in LMRDA cases which would 

“require courts to judge the credibility of witnesses on the basis of what would be at best a cold 

record.” Hardeman, 401 U.S. at 245-246.

Plaintiffs also broadly assert that “Mr. Ross and Mr. Vargas contend that for some of their 

charges, no evidence was presented.” Doc. 259 at ECF 24. Crucially, they do not identify which 

charges had “no evidence,” and the only referenced support for this contention is that they were 

not provided the accountant’s “Confidential Memorandum” regarding certain overpayments to Mr. 

Ross prior to Mr. Ross’s hearing. Ibid. (“On this point [(of no evidence)], it is undisputed that 

APFA failed to provide Mr. Ross and Mr. Vargas a copy of the Confidential Memorandum”) 

(emphasis added). But the Confidential Memorandum was not the basis for issuance of any 

discipline, so the timing of its production does not, and could not, go to the issue of whether under 

the LMRDA “some evidence” supported the discipline. As described in our opening brief, the 

hearing record showed that Mr. Ross was overpaid, that the Board of Directors demanded he repay 

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the amount owed, and that he refused to do so. See Doc. 235 at ECF 25-27. The Confidential 

Memorandum and its attachments describe and calculate the overpayment of sick and vacation pay 

to Mr. Ross, and he was charged with refusing to repay the overage. There was more than “some 

evidence” for that finding. Ibid. The absence of additional evidence does not change that 

conclusion. 

To the extent Plaintiffs also contend that the timing of their receipt of the Confidential 

Memorandum rendered the Article VII hearings not “fair” under LMRDA standards, see Doc. 259 

at ECF 24-25, it is undisputed that Mr. Ross provided the memorandum to the Arbitrator prior to 

the ruling in his case, made argument about it in his post-hearing brief, and that that the Arbitrator 

referenced the memorandum in his decision, see APFA Appx. 230, 238-39 (describing, and 

rejecting, Ross’s argument regarding the Confidential Memorandum). The fact that Mr. Ross’s 

arguments were unavailing does not render the disciplinary process unfair or unlawful. And we 

need not speculate or have a trial on the issue of whether the Confidential Memorandum would 

have changed the outcome on the proceedings, because the Arbitrator has already held that it did 

not.6

6 Plaintiffs suggest that “[t]he Defendants reliance on O’Neil and Harris’s self-serving, unsworn 

declarations regarding the Confidential Memorandum do not eliminate the Parties’ dispute of this

material fact – they magnify it.” Doc. 259 at ECF 24-25 (emphasis supplied). But neither 

Declaration addresses the LMRDA issue. Rather, the cited paragraphs in both Declarations simply 

confirm and explain what the Union had been saying all along about the overpayment to Mr. Ross.

And Mr. Vargas was not found financially liable for the overpayment to Mr. Ross. See APFAAppx. 

505 (Supplemental Art. VII award - remedy).

Moreover, contrary to Plaintiffs’ argument, these Declarations, as well as the Declaration 

of Julie Hedrick, cannot create any genuine issue of material fact as to any remaining claim, 

because the cited paragraphs go only to the issue of Plaintiffs’ defamation claims, see Doc. 235 at 

ECF 49-50, which have now been withdrawn in relevant part. Ms. Hedrick spoke to her belief in 

the truth of the “Hotline” Plaintiffs claimed was defamatory. APFA Appx. 510-11 (Hedrick Decl.) 

¶ 12. Mr. Harris spoke to his belief in the truth of his statements regarding the amounts owed by 

Mr. Ross, which was corroborated Mr. O’Neil, and which Mr. Ross had contended were 

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Moreover -- and independently fatal to their LMRDA claims -- Plaintiffs entirely fail yet 

again to explain to the Court how the alleged procedural shortfalls (if they occurred), could have 

affected the outcome of their arbitrations. Even if “an internal union rule has been violated, section 

[411](a)(5)(C) gives union members a cause of action only when that violation severely impairs

the member’s ability to prepare and present a defense, or by increasing the risk that a decision 

maker will reach an erroneous determination.” Yager, 910 F. Supp. at 714. (emphasis added).

Plaintiffs’ due process claims fail as a matter of law. 

B. Plaintiffs Cannot Show Protected Speech Was The “But For” Cause of The 

Arbitrator’s Decisions.

Plaintiffs contend that the discipline assessed by the Arbitrator in 2022 was in retaliation 

for some form of protected free speech related to their views expressed in 2016 against merging 

APFA with another union, in alleged violation of the LMRDA, 29 U.S.C. § 412, § 529. Doc. 259 

at ECF 12-13 (¶¶ 4-5). They provide nothing more than pure speculation for this theory, which is 

insufficient to defeat a properly supported motion for summary judgment.

As shown in our opening submission, the burden is on Plaintiffs to produce evidence on 

which a jury could find that the exercise of free speech rights “was not merely a motivating factor, 

but a necessary condition or a ‘but-for’ cause” of the discipline. Serafinn v. Local 722, IBT, 597 

F.3d 908, 914 (7th Cir. 2010); Hudson v. Am. Fed’n of Gov’t Emps., 630 F. Supp. 3d 214, 225 

(D.D.C. 2022); Keenan, 937 F. Supp. 2d at 109. Tellingly -- even after having another “bite of the 

apple” -- Plaintiffs’ Second Opposition still entirely fails to even address relevant case law or solve

the glaring “but for” causation deficiencies in their case. As we demonstrated (Doc. 235 at ECF 

defamatory. See APFA Appx. 526-27 (Harris Decl.) ¶¶ 16-20; APFA Appx. 544-546 (O’Neil Decl.) 

¶¶ 5-8. Plaintiffs have abandoned the defamation claim against Mr. Harris, and, as discussed below,

point to nothing in the “Hotline” as defamatory either. 

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40-42), Plaintiffs have failed to show any causation at all -- much less the required “but for” 

causation -- between the alleged speech and the discipline imposed by the neutral third-party 

arbitrator six years later.7 Plaintiffs offer neither direct nor indirect evidence of causation. 

Accordingly, their LMRDA free speech claim fails as well. See Keenan, 937 F. Supp. at 109-11 

(reviewing both direct and indirect evidence and concluding that the evidence failed to show a fact 

issue on “but for” causation).8

Plaintiffs were charged with, and found guilty of, financial malfeasance during their tenure 

as APFA officers and not for the exercise of any right enumerated in Title I of the LMRDA. Their 

retaliation claims fail.9

7 None of the conduct described by the Plaintiffs in support of their claimed “stifling” of free 

speech has anything to do with Arbitrator Armendariz nor with any of the APFA Defendants. For 

example, Plaintiffs discuss a 2016 letter sent from Mr. Ross to another union and a 2016 dispute 

between Ms. Chinery (one of his two accusers) and Mr. Ross, but make no attempt to connect these 

events to either the Arbitrator who issued the discipline in 2022 or to any of the APFA Defendants.

See, e.g., Doc. 259 at ECF 3-4, ECF 19-20. As one case relied upon Plaintiffs aptly put it, “the 

plaintiffs had their day in court before the trial committees; consequently, the motives of their 

accusers are irrelevant.” Mandaglio v. United Bhd. of Carpenters and Joiners of Am. (Gen. Exec. 

Bd.), 575 F. Supp. 646 (E.D.N.Y. 1983). 

8 Plaintiffs’ reliance on Farrell v. Hellen, 367 F. Supp. 2d 491, 500 (S.D.N.Y. 2005), Doc. 259 at 

ECF 28 is also misplaced. There, the union president filed internal disciplinary charges against 

other representatives, including a charge for “defamation.” Id. at 495. In removing them from 

office, the union did not distinguish between permissible grounds for discipline (for example, 

failing to filing timely grievances), from impermissible grounds (defamation of the union 

president). Id. at 496-97. As quoted by the Plaintiffs here, the court found that “even if a union 

member faces legitimate, non-speech-related charges, he may not be disciplined if those charges 

are intertwined with charges that violate his free speech rights.” Id. at 501. There, however, the 

union did not “separate permissible from impermissible grounds for discipline.” Id. Here, in stark 

contrast, none of the charges pertained to protected speech and there is thus not even the possibility

of the “intertwining” of permissible and impermissible charges. Plaintiffs were only disciplined 

for financial malfeasance, not for any speech-related conduct.

9 Plaintiffs rely on language from the 1983 decisions Mandaglio, 575 F. Supp. 646, and Runyan v. 

United Bhd. of Carpenters, 566 F. Supp. 600, 604 (D. Colo. 1983), but both cases pre-date the 

widespread adoption of the “but for” causation standard in the LMRDA context following the 

Supreme Court’s 2009 ruling on similar statutory language. See Doc. 235 at ECF 40 and n.23.

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C. The LMRDA Does Not Prohibit Union Discipline Barring A Member From 

Holding Union Office.

Plaintiffs also argue that the Article VII disciplinary order barring them from union office 

is ultra vires, and that a union may never, even after a “full and fair hearing,” bar a member from 

holding office into the future. Doc. 259 at ECF 29-32. Neither the statute nor the case law support 

this novel proposition.

To begin with, the statute specifically provides that unions are entitled to adopt and enforce 

“reasonable rules” regarding the obligations of members, 29 U.S.C. § 411(a)(2), and that, as long 

as certain due process procedures are followed, unions may “fine[], suspend[], expel[], or 

otherwise discipline[]” a member. 29 U.S.C. § 411(a)(5). Plainly, “while Title I was designed to 

provide minimal safeguards to protect member’s rights,” “Congress did not ... outlaw union 

discipline.” Rosario, 605 F.2d at 1239 (2d Cir. 1979). Indeed, in the seminal Supreme Court case 

of Hardeman, 401 U.S. at 243-44, the Court upheld a union’s expulsion of a member. Other courts 

have readily upheld a range of forms of discipline, including

• suspension of member’s “participatory rights of membership,” Aircraft Mechs.

Fraternal Ass’n v. Transp. Workers Union of Am., Loc. 514, Air Transp. Div., AFLCIO, 98 F.3d 597, 602 (10th Cir. 1996);

• a ban on attending union meetings, Reyes v. Laborers’ Int’l Union of N. Am., Loc. 

Union No. 16, 464 F.2d 595, 597 (10th Cir. 1972); and

• multi-year bans on holding union office, McCarthy v. Int’l Ass’n of Machinists & 

Aerospace Workers, No. 21-1673, 2021 WL 5766569, at *2-3 (3d Cir. Dec. 6, 2021) 

(five year ban) (copy provided at APFA Appx. 651); United States v. Int’l Bhd. of 

Teamsters, 652 F. Supp. 2d 447, 449–50 (S.D.N.Y. 2009) (three year ban).

Plaintiffs disregard this unbroken line of cases and focus instead on cases which address

the utterly different issue, not relevant here, of when a union’s removal of a union officer is subject 

to the due process protections of LMRDA Title I. Without belaboring the issue here, we note that 

the Supreme Court has held that appointed union representatives may generally be removed from 

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office without invoking the LMRDA due process protections. Finnegan v. Leu, 456 U.S. 431 

(1982). Removal of elected union representatives, by contrast, may implicate the membership 

rights of those who elected the representative, thus implicating Title I protections before removal 

is allowed. Sheet Metal Workers v. Lynn, 488 U.S. 347 (1989). The cases cited by Plaintiffs here 

grapple with that distinction and its implications in various contexts,

10 but they do not hold – nor 

could they, consistently with the LMRDA – that a union may never bar a union member from 

holding office in the future, so long as the due process protections of Title I are satisfied. Plaintiffs’ 

cases go only to the issue of whether Title I procedures must be followed prior to the disciplinary 

action. That issue is not presented here, where the procedures were followed.

Finally, Plaintiffs complain that the ban on holding union office is unprecedented within 

APFA or otherwise overly harsh, Doc. 259 at ECF 31. But it is well-settled that it is not the role 

of the judiciary to second guess the internal penalties imposed by a union for found wrongdoing.

See Lewis v. AFSCME, 407 F.2d at 1198; Reyes, 464 F.2d at 597 (“court, when reviewing [Union] 

disciplinary action is not free to substitute its judgment for that of the Union”).

Accordingly, summary judgment should be granted to the APFA Defendants on Plaintiffs’ 

LMRDA claims.

IV. THE APFA DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON

THE REMAINING STATE LAW CLAIMS.

A. Defamation.

10 See Doc. 259 at ECF 29-32, citing N.L.R.B. v. Int’l Bhd. of Boilermakers, 581 F.2d 473, 477 

(5th Cir. 1978) (removal of union steward); Martin v. Local 556, Transp. Workers Union of Am.

AFL-CIO, No. 3:14–CV–0500–D, 2014 WL 4358480 (N.D. Tex. Sept. 3, 2014) (removal of union 

officers) (Pls. Appx. 414-25); Runyan, 566 F. Supp. 600, 604 (D. Colo. 1983) (removal of union 

officers). One of Plaintiffs’ cases does not even involve LMRDA issues. N.L.R.B. v. Int’l Ass’n of 

Bridge Structural & Ornamental Iron Workers, 864 F.2d 1225, 1235 (5th Cir. 1989) (unfair labor 

practice charge involving alleged retaliation for filing complaint with NLRB).

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With respect to Mr. Ross’s defamation claim, we demonstrated that (a) the claim failed for 

want of evidence because Mr. Ross refused in his discovery responses to identify the alleged 

defamatory statements; and failed in any event because (b) the APFA “Hotline” alluded to by Mr. 

Ross in his deposition was not false; and (c) Mr. Harris accurately reported the findings of CPA 

O’Neil regarding the overpayment to Mr. Ross. Doc. 235 at ECF 48-50.

In response, Mr. Ross continues to shift his position regarding what the alleged defamatory

statements were. He no longer claims that Mr. Harris defamed him in connection with the amounts 

owed to APFA, and now settles on a single sentence within a 4-page APFA Board of Directors 

resolution, Pls. Appx. 271-74. This document, which was not referred to by Mr. Ross in his 

Complaint11, nor identified in his discovery responses12, nor testified to in his deposition13, quotes 

in detail the Article VII Arbitrator’s remedial order that Mr. Ross repay APFA for union funds he 

improperly expended or refused to return, and concludes “Be it finally resolved, the APFA 

Leadership hereby condemns the actions Bob Ross took to defraud the members of APFA during 

his term as APFA National President.” Pls. Appx. 274. This last sentence is the sole specific

statement which Mr. Ross now claims was defamatory. Doc. 259 at ECF p. 35.14

11 Mr. Ross’s First Amended Complaint asserts that the defamatory statements were “regarding 

debt that Plaintiff, Ross, owed under the Transition Agreement, regarding the APFA BOD’s 

findings and regarding the accounting firms’ conclusions about Plaintiff's’ payments under the 

Transition Agreement.” Ross Doc. 75, para. 64.

12 When asked in an interrogatory to identify the statements he contended were defamatory, Mr. 

Ross refused to do so. APFA Appx. 562-63 (Interrog. Resp. 1-6)

13 In his deposition, Mr. Ross only identified the “Hotline” as defamatory. APFA Appx. 583 at Tr. 

114:21-116:5.

14 Plaintiffs inaccurately suggest this statement also appears in the APFA “Hotline” Mr. Ross

identified in his deposition testimony, Doc. 259 at ECF 35, but tellingly cite no page of that 

document. The statement is not found therein. As explained in our opening brief, and confirmed 

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The statement is not defamatory. As an initial matter, because this matter arises out of a 

labor dispute, Plaintiffs must meet the legal standard of “actual malice.” Kirk v. Transp. Workers 

Union of Am., AFL-CIO, 934 F. Supp. 775, 789 (S.D. Tex. 1995). Plaintiffs unexplained reference 

to a non-labor related defamation case involving a “negligence” standard, Doc. 259 at ECF 34, is 

mistaken.

And regardless of the legal standard, the single challenged statement, “APFA Leadership 

hereby condemns the actions Bob Ross took to defraud the members of APFA during his term as 

APFA National President,” is not defamatory given the binding Article VII determination to which

the statement refers. First, the crux of the statement is that the “APFA Leadership” condemns 

actions taken by Mr. Ross, language which is not contended to be untrue. Second, the phrase 

“actions Bob Ross took to defraud the members” specifically refers to the Article VII Arbitration

in which the Arbitrator concluded that, through a range of financial transactions which personally 

benefited him, Mr. Ross “intentionally and willfully ignored the provisions of the APFA Policy 

Manual and thus, has violated and abused his fiduciary duty entrusted to him by the AFPA 

membership,” and that he was required to repay APFA for many thousands of dollars wrongfully 

obtained. APFA Appx. 240, 283. Such conduct falls well within both the legal and common usage 

definitions of “defraud,” even if the Arbitrator did not use that word. See United States v. Herron, 

825 F.2d 50, 54 (5th Cir. 1987) (“the term ‘defraud’ literally means ‘wronging one in his property

rights by dishonest methods or schemes’”) (citation omitted) (emphasis in original); American 

Heritage Dictionary of the English Language (3d ed. 1992) (“fraud” – A deception deliberately 

practiced in order to secure unfair ... gain.”; “defraud” - “To take something by fraud; swindle.”).

by review of the document itself, that Hotline does not contain the challenged sentence or even the 

word “defraud.” See APFA Appx. at 512-515.

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The challenged statement was not false and cannot be the basis for a defamation claim.15

B. Breach of Transition Agreement.

Mr. Ross contended in his Complaint that the APFA breached his Transition Agreement 

by disclosing it to union members, by “allowing” certain union members to make disparaging 

comments about him, and by allegedly underpaying him amounts he claims he was owed upon 

leaving office in 2018. Doc. 75, ¶¶ 52-59. We demonstrated why none of these claims had merit, 

and he has now abandoned his claim based on the disclosure of the document to union members.16

With respect to the sick leave payment, we showed and it is not disputed that Mr. Ross was 

paid the contested amount of sick leave payment on March 29, 2018, more than four years before 

this suit was filed, APFA Appx. 525 (Harris Decl.) ¶ 13, making this claim untimely under Tex. 

Civ. Prac. & Rem. Code § 16.051. Doc. 235 at ECF 47. Plaintiff argues that the limitations period 

did not begin to run until he received “final payment” in December 2019, Doc. 246 at ECF 32-3, 

but the cited document (Pls.’ Appx. 276), does not relate to payment of the contested sick leave 

which had, it is undisputed, been paid in full, from APFA’s perspective, in March 2018. As 

Plaintiffs’ evidence demonstrates, the 2019 payment was only for moving expenses, which are not 

15 Plaintiffs contend that the Declaration of Julie Hedrick, which states among other things that she 

believed the statements in the APFA “Hotline” to be true, creates a genuine issue of material fact.

Doc. 259 at ECF 36. They are incorrect as a matter of summary judgment law, because summary 

judgment can be appropriate, “‘[e]ven in cases where elusive concepts such as motive or intent are 

at issue ... if the nonmoving party rests merely upon conclusory allegations, improbable 

inferences, and supported speculation.’” Int’l Shortstop Inc. v. Rally’s Inc., 939 F.2d 1257, 1266 

(5th Cir. 1991) (internal citation omitted); see also Vais Arms, Inc. v. Vais, 383 F.3d at 293-94 (5th 

Cir. 2004). Here, Plaintiffs provide no evidence of malice, and in any event this contention is now 

irrelevant since Plaintiffs have not identified anything in the Hotline which they contend was false.

16 We contended in our opening Memorandum that the Federal Arbitration Act required dismissal 

of this claim, Doc. 235 at ECF 46. However, the Supreme Court has since abrogated Fifth Circuit 

precedent in this regard, Smith v. Spizzirri, 601 U.S. 472, 475-77 (2024). We have therefore

withdrawn this argument.

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at issue here. Pls. Appx. 196 (Gunter Decl.) ¶ 1.d (describing the 2019 payment).

17 Mr. Ross does 

not challenge the amount of the December 2019 payment but instead challenges the payment that 

he received in March 2018. A cause of action in a breach of contract case accrues when the alleged 

breach occurs, see Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990), which in the 

case of the sick leave was more than four years before the suit was filed.

Mr. Ross observes that the APFA did not list the statute of limitations as an affirmative 

defense in its Answer, Doc. 259 at ECF 33. He does not contend that litigating the issue at summary 

judgment has caused any prejudice, however. Absent such a showing, the Court should rule on the 

fully briefed limitations issue. McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 562 (5th 

Cir. 1998). “Where the matter is raised in the trial court in a manner that does not result in unfair 

surprise ... technical failure to comply precisely with Rule 8(c) is not fatal. That is, the defendant 

does not waive an affirmative defense if [h]e raised the issue at a pragmatically sufficient time, 

and [the plaintiff] was not prejudiced in its ability to respond.” Lucas v. United States, 807 F.2d 

414, 417–18 (5th Cir. 1986) (citation and internal quotation marks omitted) (no waiver when party

first raised affirmative defense at trial). Plaintiff has not suggested any prejudice in his ability to 

respond, particularly where he has now had two opportunities to oppose summary judgment on 

this issue. There was no waiver here.

With respect to the alleged violation of the “non disparagement” clause of the Transition 

Agreement, we demonstrated -- and Mr. Ross has not disputed -- that this clause is unenforceable

as a matter of law. A contract provision which “obligates the parties to perform an act that is 

forbidden by the law” is void. In re OCA, Inc., 552 F.3d 413, 422 (5th Cir. 2008). Mr. Ross 

17 Mr. Gunter was the author of the 2019 email which Plaintiffs cite as evidence of the “final 

payment” to Mr. Ross in 2019, Pls. Appx. 276; in the Declaration submitted by Plaintiffs, Mr. 

Gunter explains that the 2019 payment was solely for moving expenses, Pls. Appx. 196, ¶ 1.d.

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complains that APFA “allowed” union members to “continually publish false or disparaging 

comments about” him. Ross Doc. 75 at para. 56. It is undisputed, however, that federal law bars

the union from restricting members’ rights to “express[] any view, arguments or opinions” on 

matters of union concern, 29 U.S.C. § 411(a)(1). Mr. Ross cannot use the Transition Agreement

to punish the union for complying with its federal legal obligations, and he offers no argument as 

to why he should be allowed to do so.

The claim for breach of the Transition Agreement cannot be sustained.

V. THE APFA IS ENTITLED TO SUMMARY JUDGMENT ON ITS BREACH OF 

FIDUCIARY DUTY COUNTERCLAIMS.

We demonstrated that the final and binding Article VII arbitration results provided an 

undisputed factual predicate for the legal conclusion that Mr. Ross and Mr. Vargas were liable to 

APFA for breach of their fiduciary duty under federal law. Plaintiffs seek to avoid liability by 

contending that the APFA lacks standing to sue for breach of duty, despite the fact that the duty is 

owed to the union and not individual members; that the claims are barred by the doctrine of laches, 

despite that fact that the claims were filed just months after the conclusion of the Article VII 

arbitrations on which the claims are based; and, finally, that there are disputed facts requiring trial, 

despite the resolution of the underlying facts in a final and binding arbitration. As we show below, 

Plaintiffs’ arguments are unavailing.

A. The APFA May Sue to Enforce the Federal Fiduciary Duty.

“The question whether a statute creates a cause of action, either expressly or by implication, 

is basically a matter of statutory construction.” Transamerica Mortgage Advisors, Inc. v. Lewis, 

444 U.S. 11, 15 (1979). “The 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.”

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Alexander v. Sandoval, 532 U.S. 275, 286 (2001). In Cort v. Ash, the Supreme Court identified 

four factors for determining if a statute contains an implied private right of action: 

• Whether “the plaintiff is ‘one of the class for whose especial benefit the statute was 

enacted’”; 

• If there is any “indication of legislative intent, explicit or implicit, either to create 

such a remedy or to deny one”; 

• If it is “consistent with the underlying purposes of the legislative scheme to imply such 

a remedy for the plaintiff”; 

• If the “cause of action is one traditionally relegated to state law, in an area basically the 

concern of the States, so that it would be inappropriate to infer a cause of action based

solely on federal law.” 

422 U.S. 66, 78 (1975). “The central inquiry remains whether Congress intended to create, either 

expressly or by implication, a private cause of action” Touche Ross & Co. v. Redington, 442 U.S. 

560, 575 (1979).

The “search for Congress’s intent” begins “with the text and structure of” the statute.

Alexander, 532 U.S. at 288. The text and structure of Section 501 strongly supports the conclusion

that Congress intended unions to have a private cause of action to enforce the federal fiduciary 

duty. In Section 501(a), Congress established a new federal duty of union officers toward the 

“organization and its members as a group.” 29 U.S.C. § 501(a). The duty thus does not flow toward 

individual union members, but to the organization itself and its collective membership. See

Hoffman v. Kramer, 362 F.3d 308, 317 (5th Cir. 2004). In Section 501(b), Congress authorized an 

“action by member[s] after refusal or failure by labor organization to commence proceedings.” 29 

U.S.C. § 501(b). This provision gives labor unions the first opportunity to “sue or recover damages 

or secure an accounting or other appropriate relief,” and allows members to sue only if the 

organization has “refuse[d] or fail[ed]” to do so, in its own name, first. Ibid. Notably, individual 

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suits under Section 501(b) can only obtain relief “for the benefit of the labor organization.” Ibid.

“[T]he individual member acts in a representative capacity for the benefit of the union and on 

behalf of the union. A plaintiff in a § 501(b) action cannot seek to recover damages personally, but 

must seek a remedy for the union as a whole.” Bldg. Material & Dump Truck Drivers, Loc. 420 v. 

Traweek, 867 F.2d 500, 506 (9th Cir. 1989). 

This text and structure strongly imply a Congressional intent that unions, as well as 

members, may sue to enforce the fiduciary duty. The Supreme Court has emphasized that, in 

determining whether a party has an implied right of action, it is crucial to identify “the individuals

protected” by the statute, rather than the “person regulated.” Alexander, 532 U.S. at 289; see also 

California v. Sierra Club, 451 U.S. 287, 294 (1981). Here, the union and its membership as a 

whole are protected by the statute, as reflected both by the language of Section 501(a), and the 

specific provision of Section 501(b) which ensures that any remedy in a federal lawsuit be “for the 

benefit of the labor organization.” In the Cort v. Ash formulation, the union is plainly “one of the 

class for whose especial benefit the statute was enacted,” 422 U.S. at 78, supporting a finding of a 

right of action.

The enforcement process of Section 501(b) also provides compelling structural and 

contextual evidence of an intention to create a right of action for the union. An individual union 

member may sue only if the union declines to do so first. It would be bizarre indeed to create a 

new federal obligation to the union, provide the union the priority opportunity to bring an action 

to enforce the duty, limit the remedies to those which benefit the union, but then bar the union 

from bringing suit to enforce that duty. Such a disjuncture is inconsistent with the structure and 

purpose of the statute.

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Finally, there is no indication that Congress intended to limit a union to state law 

proceedings to enforce the fiduciary obligations of union officers. To the contrary, “[t]he 

legislative history of the LMRDA shows that Congress enacted the fiduciary provisions of section 

501 because existing state law remedies ... were inadequate.” Int’l Union of Elecs., Elec., Salaried, 

Mach. & Furniture Workers, AFL-CIO v. Statham, 97 F.3d 1416, 1420 (11th Cir. 2006)

(describing legislative history).

Not surprisingly, a majority of the Courts of Appeals, along with – as Plaintiffs 

acknowledge – every other court in this District to have ruled on the issue, have found that labor 

organizations have a private right of action to enforce the fiduciary duty owed to them. See Int’l 

Union, Security, Police & Fire Profs. of Am. v. Faye, 828 F.3d 969 (D.C. Cir. 2016); Int’l Union 

of Operating Eng’rs, Local 150 v. Ward, 563 F.3d 276 (7th Cir. 2009); Statham, 97 F.3d at 1421; 

see also Doc. 259 at ECF 48 (discussing district court decisions). And while Plaintiffs rely heavily 

on the dissenting opinion in the D.C. Circuit’s Faye decision for the contrary conclusion, the fact 

remains that the majority of that panel affirmed the union’s right to sue.

In sum, all of the Cort v. Ash elements for discerning congressional intent support a finding 

of an implied right of action, and such a finding is also amply supported by the textual and 

contextual evidence as articulated in Alexander and related cases. This Court has earlier 

acknowledged that the Union may bring suit in its own name, Ross Doc. 72 at ECF 3-4, and should 

not alter that conclusion now.

B. Plaintiffs Have Not Met Their Burden of Establishing That Laches Bars The 

Federal Fiduciary Duty Claims.

Plaintiffs contend that the Section 501 claim is barred by the doctrine of laches but fail to 

demonstrate that the elements of laches under governing Circuit precedent are present here. “To 

establish laches, a defendant must show inexcusable delay that causes undue prejudice. Whether 

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laches bars an action in a given case depends upon the circumstances of that case and is a question 

primarily addressed to the discretion of the trial court.” In re Ryan, 88 F.4th 614, 628 (5th Cir. 

2023) (cleaned up). Plaintiffs have not met that burden nor demonstrated a triable issue on this 

subject.

The APFA’s fiduciary claim hinges on the Article VII Arbitrator’s binding determinations

that Mr. Ross and Mr. Vargas spent and received funds in violation of the APFA Constitution. It 

is undisputed that the counterclaims were brought just months after the determinations were made,

see Order, Ross Doc. 72 at ECF 3, which defeats any claim of “inexcusable delay.” Nor have 

Plaintiffs even sought to explain how they have suffered any prejudice, much less “undue 

prejudice” by virtue of that timing. Plaintiffs have not met their burden of establishing a laches bar 

to judgment.

C. The Final and Binding Arbitration Decisions Establish The Fiduciary Duty 

Violations of Plaintiffs.

We demonstrated in our opening memorandum that APFA is entitled to summary judgment 

on its breach of fiduciary duty counterclaims brought under Section 501 of the LMRDA against 

both Mr. Ross and Mr. Vargas, based on the final and binding determinations of Arbitrator 

Armendariz. See Doc. 235 at ECF 50-56. The Article VII arbitrations (which Plaintiffs as APFA 

members agreed to be bound by) conclusively determined that Plaintiffs spent and received funds 

for their personal benefit, in violation of the APFA Constitution and Policy Manual. Plaintiffs’ 

refusal to comply with the mandate to return their ill-gotten gains necessitated the Counterclaims 

here. We emphasize that the Union here is not seeking to enforce the Arbitration Awards in and of 

themselves, but instead seeks to enforce the federal fiduciary duty. The Arbitrator has conclusively 

determined that the disputed expenses by and for Mr. Ross and Mr. Vargas were unauthorized 

under the Union Constitution and Policy Manual, and that determination is final and binding on 

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the parties. Based on that undisputed material fact, we respectfully submit that this Court should 

hold that Mr. Ross and Mr. Vargas violated their fiduciary duty under 29 U.S.C. § 501(a). See 

Adams-Lundy v. APFA, 844 F.2d 245, 248-50 (5th Cir. 1988) (reversing dismissal of § 501 claim 

alleging that officers had, among other things, “fail[ed] to expend money in accordance with the 

union constitution” and “without the authorization of the governing board”). 

With respect to Mr. Ross, the Arbitrator found he violated the Union’s Constitution and 

Policy Manual by misappropriating tens of thousands of dollars in Union funds for his own 

personal benefit and in violation of the Union’s written governing documents and procedures. This 

included, among other things, using Union funds to pay for his family vacation and other personal 

expenses, as well as the overpayment of his sick and vacation payout. All of these expenses were 

directly contrary to the express provisions of the Constitution and Policy Manual, as found by the 

Arbitrator. APFA Appx. 219-42; 282-84.

With regard to Mr. Vargas, the Arbitrator found that he violated the APFA Constitution and 

Policy Manual by, inter alia, regularly charging personal meals to the Union, while accepting fixed 

meal allowances, totaling more than $14,000. APFA Appx. 504-06.

These expenditures constitute a breach of the federal fiduciary duty. Officers violate their 

fiduciary duty if they spend or receive union funds not authorized under the union’s constitution 

or other governing documents. Local No. 92, Int’l Ass’n of Bridge, Structural and Ornamental 

Iron Workers, 383 F.2d 735, 739 (5th Cir. 1967); see also Ray v. Young, 753 F.2d 386, 389 (5th Cir. 

1985). 

Plaintiffs contend that reliance on the Article VII arbitration result is foreclosed by AdamsLundy v. APFA, 792 F.2d 1368 (5th Cir. 1986); that, in any event, there is a genuine dispute of 

material fact regarding the authorization vel non of their expenditures, as well as whether they 

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received a “personal benefit” therefrom; and, moreover, that certain furniture expenditures Mr. 

Ross was found to have made on the union dime were later repaid to APFA and therefore cannot 

be the basis of a fiduciary duty claim. Doc. 259 at ECF 50-54. We address each argument below.

First, the Fifth Circuit’s decisions in the Adams-Lundy cases do not foreclose the fiduciary 

duty claim. The holding in Adams-Lundy II, 792 F.2d at 1373, did not involve a fiduciary duty 

claim, but rather a claim seeking to enforce an arbitration award regarding the internal political 

rights of various parties under the APFA Constitution. In that unique context, the Court held that 

“A union’s violation of its own constitution is not per se a violation of the LMRDA, and a federal 

court has no jurisdiction to enforce union constitutions and by-laws as such ... It follows that the 

federal courts are without jurisdiction to enforce an arbitration award that is based solely on an 

internal union constitution.” 792 F.2d at 1373. In a subsequent decision in the same case, the Fifth 

Circuit reinstated a Section 501 claim based on allegations that the named defendants has “violated 

their § 501 duties by financing their defense with union funds, by failing to expend money in 

accordance with the union constitution, and by spending union money without the authorization 

of the governing board.” Adams-Lundy v. Ass’n of Pro. Flight Attendants, 844 F.2d 245, 248 (5th 

Cir. 1988). Here, the binding Article VII arbitration, applying the standards of the APFA 

Constitution, conclusively resolved that Messrs. Ross and Vargas had expended union funds

without authorization and for their personal benefit. That “final and binding” determination

establishes, as a matter of law, the violation of Section 501. The federal claim here is not an 

enforcement of the Article VII arbitration but is an enforcement of the federal law based on the 

binding determination of Plaintiff’s conduct under the APFA Constitution. The binding 

determination that Plaintiffs spent and received funds without authorization, for their personal 

benefit and in contravention of the APFA Constitution and Policies, is an archetypical predicate 

Case 4:22-cv-00343-Y Document 262 Filed 11/26/24 Page 29 of 32 PageID 9173
24

for the Court to conclude, as a matter of law, that Plaintiffs breached their federal fiduciary duty.

See, e.g., Adams-Lundy v. APFA, 844 F.2d at 248-50 (reversing dismissal of § 501 claim); Ray, 753 

F.2d at 392.

Second, while Plaintiffs contend that they should be permitted to litigate anew whether 

their expenditures were properly authorized and approved, the Article VII Arbitrator has made 

determinations to the contrary which are “final and binding” under the APFA’s Constitution. APFA 

Appx. 34 (Art. VII, § 6.H). The Union constitution is binding on Union members such as Plaintiffs, 

Fingar v. Seaboard Air Line R. Co., 277 F.2d 698, 700 (5th Cir. 1960), and they are likewise bound 

by the outcome of internal arbitration under that document, Place St. Charles v. J.A. Jones Constr. 

Co., 823 F.2d 120, 124 (5thCir. 1987) (when parties agree that contract arbitration will be binding, 

and losing party brings suit on underlying contract, arbitrator’s findings are binding even absent 

express agreement for federal court to confirm award).

18 Plaintiffs’ reliance on Ray v. Young, 753 

F.2d 386 (5th Cir. 1985) and Noble v. Sombretto, 260 F. Supp. 2d 132 (E.D.N.Y. 2003), is 

unavailing since neither case (nor any case cited by them) involved an initial binding internal union 

arbitration establishing the violations of the union’s constitution and lack of authorization for the 

expenditures at issue.

And, in any event, Plaintiffs offer no specific support for the claim that the particular 

expenditures were authorized but rely instead on sweepingly general conclusory assertions that 

their actions were authorized and appropriate. See, e.g., Pls. Appx. App. 189, ¶ 18, and 192, ¶ 1.b.

Plaintiffs have not met their burden. See Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 

18 Like the plaintiff in Place St. Charles, Mr. Ross and Mr. Vargas brought suit under the same 

APFA Constitution which provides for the “final and binding” arbitration at issue in the 

counterclaims. See Ross First Amend. Compl., Ross Doc. 75, Count VII; Vargas Amend. Compl., 

Vargas Doc. 133, Count VII. (¶¶ 41-47).

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25

(5th Cir. 1997) (“Unsupported ... affidavit ... testimony setting forth ultimate or conclusory facts 

... [is] insufficient to defeat a motion for summary judgment.”).19

CONCLUSION

For the reasons set forth in our opening Brief and herein, the APFA Defendants respectfully 

urge the court to enter summary judgment in their favor on all claims, including AFPA’s 

counterclaims against Plaintiffs.

Dated: November 26, 2024 Respectfully submitted,

/s/ James D. Sanford

JAMES D. SANFORD, Tex. Bar No. 24051289

Gillespie Sanford LLP

4803 Gaston Ave.

Dallas, TX 75246

Tel.: (214) 800-5111; Fax.: (214) 838-0001

Email: jim@gillespiesanford.com

JEFFREY A. BARTOS (pro hac vice)

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1717 K Street, N.W. Suite 900

Washington, DC 20006

Tel.: (202) 624-7400

Email: jbartos@geclaw.com

Counsel for the APFA Defendants

CHARLETTE L. BRODERICK (pro hac vice)

Tex. Bar No. 24133870

Association of Professional Flight Attendants

1004 W. Euless Blvd.

Euless, TX 76040

Tel.: (682) 301-8454

Email: cbroderick@apfa.org

Counsel for APFA

19 Plaintiffs do contend the Arbitrator specifically erred in his conclusion that Mr. Ross improperly 

used union funds for his personal furniture; as described above, however, the Arbitrator found Mr. 

Ross’ testimony in general to be “not forthright,” APFA Appx. 240. Given the “final and binding” 

nature of the arbitration, Mr. Ross’ attempt to relitigate this issue does not create a triable dispute. 

Case 4:22-cv-00343-Y Document 262 Filed 11/26/24 Page 31 of 32 PageID 9175
CERTIFICATE OF SERVICE

I certify that on November 26, 2024, a true and correct copy of the foregoing document was served 

upon all persons who have requested notice and service of pleadings in this case via the Court’s 

ECF system.

Cortney C. Thomas

C. Alan Carrillo

Brown Fox PLLC

8111 Preston Road, Suite 300

Dallas, TX 75225

Michael R. Rake

Michael R. Rake, Attorney at Law

PO Box 1556

Lake Dallas, TX 75065

/s/ James D. Sanford

JAMES D. SANFORD

Case 4:22-cv-00343-Y Document 262 Filed 11/26/24 Page 32 of 32 PageID 9176