1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FT. WORTH DIVISION

EUGENIO VARGAS

Plaintiff,

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§ Case No. 4:22-CV00430

V.

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§

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, JULIE 

HEDRICK, ERIK HARRIS

Defendants.

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§ 

§ 

§ 

§

PLAINTIFF’S SECOND MOTION TO DISMISS DEFENDANT’S COUNTERCLAIMS 

AND BRIEF IN SUPPORT

I. INTRODUCTION

COMES NOW Plaintiff/Counterclaim Defendant, EUGENIO VARGAS (“Vargas” or 

“Plaintiff”), and files his Second Motion to Dismiss Defendant’s, ASSOCIATION OF 

PROFESSIONAL FLIGHT ATTENDANTS’ (hereinafter “APFA” “the union” or “Defendant”) 

Counterclaims for relief for lack of subject matter jurisdiction, and failure to state a claim for which 

relief can be granted, under 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”)

and in accordance with Local Rules 7.1, 7.2, 56.3 and 56.5.1 As grounds for support of its Motion, 

Plaintiff respectfully requests the court to dismiss APFA’s counterclaims for relief. 

1 Plaintiff requests dismissal of all counterclaims asserted by his union, APFA, in its Answer and Counterclaims (Docket 11, 

PAGEID 87-118). 

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TABLE OF CONTENTS

I. INTRODUCTION 1

A. Cases 2

B. Statutes & Regulations 3

C. Court Rules 3

II. STATEMENT OF THE CASE 4

III. ARGUMENTS AND AUTHORITIES 6

A. Standards For Dismissal 6

B. APFA fails to state a claim breach of fiduciary duty for which it can recover under 

LMRDA § 501

 8

C. The Court lacks federal jurisdiction to enforce an Arbitration Award based solely on the 

Union’s Constitution and Policy. 12

IV. CONCLUSION AND PRAYER 17

TABLE OF AUTHORITIES

A. Cases

Adams-Lundy v Ass’n of Pro. Flight Attendants, 792 F.2d 1368 (5th Cir. 1986) 12, 13, 14, 16, 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) 7 

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000) 7 

Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141 (5th Cir. 2009) 8 

Hoffman v. Kramer, 362 F.3d 308 (5th Cir. 2004) 9, 10 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) 6 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 7 

Martin v. Local 556, Transp. Workers Union of Am., 206 F.Supp.3d 1227 (5th Cir.2016) 14 

Norris v. Hearst Trust, 500 F.3d454 (5th Cir. 2007) 7 

Case 4:22-cv-00430-Y Document 107 Filed 08/29/23 Page 2 of 18 PageID 3672
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Ramming v. U.S., 281 F.3d 158 (5th Cir. 2001) 7 

Spivey v. Robertson, 197 F.3d 772 (5th Cir. 1999) 7 

Tex. Gen. Hosp., LP v. United Healthcare Servs., Inc., Civil Action No. 3:15-CV-02096-M 

 (N.D. Tex. Jun. 28, 2016) 7 

United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg'l

Transit Auth., 163 F.3d 341 (6th Cir.1998) 9 

B. Statutes & Regulations

9 U.S.C. § 185(a) 4 

29 U.S.C. § 101(a)4 16 

29 U.S.C. § 301(a) 4, 6

29 U.S.C. § 431 11 

29 U.S.C. § 501 et seq. 4, 6, 8, 9, 10, 17 

29 U.S.C. § 501(a) 8, 9

C. Court Rules

Fed. R. Civ. P. 12(b)(1) 1, 7 

Fed. R. Civ. P. 12(b)(6) 1, 7 

Local Rule 7.1 1 

Local Rule 7.2 1 

Local Rule 56.3 1 

Local Rule 56.5 1 

Local Rule 56.5 1 

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II. STATEMENT OF THE CASE

Defendant, APFA, is a labor organization representing American Airlines Flight 

Attendants. APFA seeks damages alleging violations of the Labor Management Reporting and 

Disclosure Act, 29 U.S.C. § 501, et seq. (“LMRDA”), breach of fiduciary duty, and seeking 

enforcement of the APFA Constitution under 301(a) of the Labor Management Relations Act, 29 

U.S.C. § 185(a) by enforcing the Disciplinary Award. Vargas is a member and former National 

Treasurer of APFA from April 1, 2016 to July 1, 2018. 

At the end of February 2018, Vargas was the National Treasurer of APFA serving with

Nena Martin as Vice-President, Robert “Bob” Ross as President, and Marcie Dunaway as National 

Secretary (the “Ross Administration”). Ross was approached by APFA’s attorney, Mark Richards 

with the law firm Phillips, Richards & Rind, P.C. to discuss his voluntary resignation from office. 

Ross told Mr. Richards that he would resign early provided that APFA “made him whole.” In 

negotiating a transition agreement, Ross demanded that APFA pay his full salary, benefits, and his

accrued and unused sick and vacation days. Additionally, Ross negotiated $10,000 toward moving 

expenses to move his family back to California from Texas. Ross informed Mr. Richards that he 

would resign provided he was paid the same as the prior APFA National President, Laura Gladings, 

was paid under her transition agreement (“Gladings Transition Agreement”) with the additional 

moving expenses. Mr. Richards drafted Ross’s exit agreement and it was signed by Ross and the 

APFA Board of Directors. (“Transition Agreement”). Due to a confidentiality clause in the 

Transition Agreement, Mr. Richards disclosed only those sections relating to payment to Eugenio 

Vargas, National Treasurer of APFA during Ross’s administration (“Vargas”) and APFA 

Accountants. APFA staff accountants consulted with Vargas regarding the calculation of Ross’s 

Case 4:22-cv-00430-Y Document 107 Filed 08/29/23 Page 4 of 18 PageID 3674
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payments under the Transition Agreement and recommended a similar calculation and structure as

that used for the Gladings Transition Agreement. 

In 2020, APFA members, Melissa Chinery-Burns (“Chinery-Burns”) (spouse to AFA 

General Counsel, Joe Burns) and Sandra Lee (“Lee”) brought charges on behalf of the union 

claiming that Ross was overpaid under the Transition Agreement. The Defendants and chargingmembers contend that these payments were over-payments and argued that Ross and Vargas 

violated the APFA Constitution. Ross allegedly violated the APFA Constitution for failing to repay 

the overpayment debt, and Vargas allegedly violated for making these alleged over-payments to 

Ross. Thereafter, Nena Martin, the Vice-President under the Ross Administration, was charged 

for approving the alleged over-payments calculated and authorized by Vargas—Nena Martin was 

subsequently dismissed on all charges asserted by the union in Arbitration. 

A disciplinary hearing was held, Plaintiff subpoenaed documents relating to the charges, 

and—only after an Arbitration Award was issued against Plaintiff—did he discover that the 

National Officers withheld vital exculpatory documents during the union Arbitration process. 

Furthermore, subpoenaed witnesses—namely the National Officers—refused to appear or testify. 

Additionally, the Defendants intimidated witnesses to ensure an award was issued against Plaintiff 

for breach of the APFA Constitution. The result of this “kangaroo court” is an Arbitration Award 

with damages alleging over $30,963.03..

APFA conducted the Arbitration hearing in such a way that denied Plaintiff a fair 

opportunity to be heard. The award goes beyond the scope of remedies sought on behalf of the 

union and issues $30,963.03.in disciplinary fines, expenses incurred, costs of an accounting firm’s 

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audit expenses, and Plaintiff’s income he was allegedly overpaid. Yet no admissible evidence was 

ever produced representing the accounting firm’s review. 

Plaintiff filed claims for violations of the Member’s Bill of Rights under the LMRDA for 

lack of a fair hearing and unfair discipline for exercising his right to free speech and association, 

among other claims. Defendant filed counterclaims and now seek damages for breach of fiduciary 

duty under 29 U.S.C. §501 for alleged payments made and received while Plaintiff was a National 

Officer that violate the APFA Constitution and APFA Policy, and enforcement of the Union 

Disciplinary Award under 301(a) LMRA breach of an inter-union contract or collective bargaining 

agreement.2

 

III. ARGUMENTS AND AUTHORITIES

A. Standards For Dismissal 

Federal courts are courts of limited jurisdiction. It is presumed that any given cause of 

action is “a cause [that] lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. 

of Am., 511 U.S. 375, 377 (1994). Pursuant to FRCP 12(b)(1), any claim for which federal courts 

lack subject matter jurisdiction shall be dismissed per FRCP 12(h)(3). The party asserting claims 

2 The Court should note the previous statements made by Defendants’ Counsel on record (Ross Dkt. 

No. 83). Defendant’s counsel argues it cannot, and will not, settle the claims pending before this Court while its 

claims persist. APFA contends that it must pursue the Ross Administration. Defendants argue settlement of any 

kind would violate federal law breach of fiduciary duty and the governing union’s rules—even if settlement is 

in the union membership’s best interest. Consequently, this Court should consider the Ross Administration’s 

position. Plaintiff has no other option, but to exercise his rights to recover for Defendants’ misconduct—as well 

as the rest of the Ross Administration—for the sake of their families, their reputations, and their careers. The 

Court should also note that APFA continues to pursue Nena Martin and Marcie Dunaway by ordering additional 

audits of their expenses. This was announced within the last month, despite these pending claims before this 

Court. Nena Martin previously won in Arbitration on these exact claims last fall. To date, APFA has not 

audited any other administration except for the Ross Administration. Most notably, December is when new 

candidates, like Nena Martin, will announce their intent to run for National Office next year. 

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under federal law bears the burden of establishing by a preponderance of the evidence that subject 

matter jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Ramming v. United 

States, 281 F.3d 158, 161 (5th Cir. 2001). Courts determine subject matter jurisdiction under FRCP 

12(b)(1) based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts 

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s 

resolution of disputed facts.” Ramming, 281 F.3d at 161. Finally, “[w]hen a Rule 12 (b)(1) motion 

is filed in conjunction with other Rule 12 motions, the Court should consider the Rule 12 (b)(1) 

jurisdictional attack before addressing any attack on the merits.” Id. at 161. 

To survive a motion to dismiss under FRCP 12(b)(6), the Twombly rule requires that “[a] 

claim has facial plausibility when the pleaded factual content allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 

U.S. 662, 663 (2009). The Plaintiff must assert more than mere legal conclusion, as “the tenet that 

a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause 

of action's elements, supported by mere conclusory statements.” Id. at 663. “[O]nly a complaint 

that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. 

This Court phrased the standard of review for a Rule 12(b)(6) motion as one in which: 

“the Court generally cannot look beyond the pleadings. The pleadings 

include the complaint and any documents attached to it. If documents are 

referred to in the plaintiff's complaint and are central to the plaintiff's 

claims, but not attached, a defendant can attach them to a motion to dismiss 

and they will be considered. Id. In deciding a motion to dismiss, the Court 

may also consider matters of public record without converting the motion 

into one for summary judgment.” Tex. Gen. Hosp., LP v. United 

Healthcare Servs., Inc., Civil Action No. 3:15-CV-02096-M (N.D. Tex. 

Jun. 28, 2016) (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 

1999); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th 

Cir. 2000); Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007)). 

This strict standard of review considers “whether in the light most favorable to the plaintiff 

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and with every doubt resolved on his behalf, the complaint states any valid claim for relief."

Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141 (5th Cir. 2009). 

APFA asserts federal jurisdiction over its counterclaims through 28 U.S.C. §1337 (acts 

regulating interstate commerce), 28 U.S.C. § 1331 (federal question), 28 U.S.C. §2201 

(declaratory judgments). APFA also asserts federal jurisdiction under 29 U.S.C. § 185 (breach of 

an interunion contract or collective bargaining agreement), and 29 U.S.C. §501 (member’s claim 

for breach of fiduciary duty under LMRDA). 

The only two valid grounds for subject matter jurisdiction are 29 U.S.C. § 185 (breach of 

an interunion contract or collective bargaining agreement), and 29 U.S.C. §501 (member’s claim 

for breach of fiduciary duty under LMRDA) are addressed below. 

B. APFA fails to state a claim breach of fiduciary duty for which it can recover under 

LMRDA § 501.

APFA asserts a breach of fiduciary duty claim against Plaintiff for “in paying and accepting 

payment of monies from APFA while National Treasurer which the Arbitrator has found in his 

Decision and Order issued pursuant to Article VII of the APFA Constitution, in violation of the 

APFA Constitution and Policy Manual, and in refusing to repay half of the Arbitrator’s fee to 

APFA, Vargas has breached his fiduciary duty owed to APFA under Section 501(a) of LMRDA, 

29 U.S.C. § 501(a).” (See Def. 2d Am. Answer and Counterclaims Doc. 76, PAGEID 3255). 

Controlling case law requires something more than an action involving business decisions, 

budgeting, or general administration by the union officers to substantiate establish a breach 

occurred under 29 U.S.C. §501. The 5th Circuit held that:

Section 501(a). . . does not permit these derivative actions for dereliction of employment 

duties. Disputes over whether elected union officials are adequately performing their 

employment obligations are matters usually to be worked out within the union and its 

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governing structure and not in the federal courts. (Hoffman v. Kramer, 362 F. 3d 308, 322 

(5th Cir. 2004). 

The 5th Circuit emphasizes further that: 

We agree . . . that disagreements over the wisdom or appropriateness of particular 

administrative . . . decisions are usually not amenable to suit under the LMRDA. Indeed, 

most of these matters are the sort of "internal union grievances" properly left to be worked 

out via union democratic processes (as they eventually were here) and not by a federal 

court sitting as a sort of “super-review board." (Hoffman, 362 F. 3d at 322 citing United 

Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit 

Auth., 163 F.3d 341,475 (6th Cir.1998)). 

The Hoffman Court requires more than standard business conduct following standard 

procedures to establish a breach under 29 U.S.C. §501. Hoffman v. Kramer, 362 F. 3d 308 at 322. 

In fact, the Hoffman Court addresses specifically a claim under LMRDA § 501(a) against 

union leadership for violations of the union’s constitution and bylaws where the 5th Circuit very 

clearly states that "This conduct was allegedly in violation of the SWAPA Constitution and 

Bylaws. While a serious allegation, if true, we do not think that these facts constitute an actionable 

violation of the duties embodied in § 501(a)." Hoffman v. Kramer, 362 F.3d 308 (5th Cir. 2004). 

The conduct asserted against the Ross Administration includes (1) the business expenses 

alleged to be outside those permitted under APFA’s Policy, and (2) alleged overpayments made 

under the Ross Transition Agreement. (See Def. 2d Am. Answer and Counterclaims Doc. 76, 

PAGEID 3258-3259). 

The expenses incurred and approved by the union are not payments made and received by 

the Ross Administration. However, APFA maintains procedures to review and approve expenses 

that are covered by the APFA Constitution and Policy—including approval by two National 

Officers and a review by the in-house APFA accountants. It is undisputed that expenses and 

payments made with union funds during the Ross Administration followed APFA procedures. 

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Rather, APFA argues Plaintiff breached his duty for either his approval for those expenses, or for 

his refusal to reimburse these previously-approved expenses. This, APFA contends, forms the 

basis of Plaintiff’s alleged breach of fiduciary duty. Unfortunately, it is entirely founded on 

business decisions at the time the expenses were both incurred—those decisions regarding which 

expenses incurred fall within the scope of the APFA Policy—and approved—those decisions 

approving which expenses incurred fall within the APFA Policy. Defendant failed to indicate how 

Plaintiff’s conduct was adverse to the interests of the union as a whole. These business decisions 

cannot rise to the level of a breach of fiduciary duty according to the Hoffman ruling by the 5th

Circuit Court of Appeals. Any subsequent refusal to reimburse for the expenses fails to rise to the 

level of a breach of fiduciary duty as this did not occur until well after the Ross Administration 

left office in 2018. Therefore, in accordance with the 5th Circuit’s elimination of any business 

decisions that give rise to a breach under §501, any accusation that the Ross Administration

approved or received “wrongful payments” fails to establish a breach of fiduciary duty. 

The Transition Agreement payments calculated and made to Ross occurred after it was

signed on March 1, 2018—the date Ross left office—at which time he no longer held a fiduciary

duty. Therefore, these payments, even if miscalculated, occurred when Ross no longer held a 

fiduciary duty to breach. Furthermore, the National Treasurer’s calculation of payments made 

under the Ross Transition Agreement fall squarely within the duties of his position, to manage the 

APFA union funds and assets. Therefore, the calculation and payments made to Ross while Vargas 

was in office was a business decision slated as one of his primary responsibilities under the APFA 

Constitution Art. III, Sec. 6 (E). This conduct, again, fails to rise to the level of a breach under the 

Hoffman rule as it is well within his responsibilities as the National Treasurer—not to mention 

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there is absolutely no evidence that Vargas ever stood to gain any financial benefit by 

overcalculating and overpaying Ross, even if he did. 

The independent accounting firm of Woods, Stephens, and O’Neil, L.L.P. conducts annual 

audits of all expenditures made with APFA funds. The final audit report is submitted to the four 

National Officers, who submit it to the APFA Board of Directors for a final review and approval. 

This annual audit is conducted by an outside accounting firm who coordinates with APFA 

accounting staff and National Officers to draft the LM-2 Report. The United States Department of 

Labor requires the LM-2 Financial Report to indicate any loss of union assets or funds each year. 

The LM-2 Financial Report is required under 29 U.S.C. § 431 and are signed under penalty of 

perjury by the National Officers of APFA. Any malfeasance, theft, or misappropriation of funds 

or assets on behalf of the union must be reported to the U.S. Department of Labor.3 Therefore, if

the Ross Administration had misappropriated funds, APFA must report this loss to the Department 

of Labor. It is clear from review of the LM-2 question 13 indicates no discovery of any shortage 

or loss suffered by the union since 2018—when the Ross Administration filed the LM-2 reporting 

loss of furniture that was fully reimbursed. 

APFA National Treasurer signed the LM-2 stating that the union suffered no loss within 

the last four years. Furthermore, the only loss reported to the United States Department of Labor 

3 The LM-2 Filings require reporting any misappropriation, shortage, or theft of funds discovered within that year to the U.S. 

Department of Labor. See Question 13 on page 1 and Question 69 for Additional Information Summary on the following 

LM-2 Filings by APFA. No theft or shortages were reported except for a stolen credit card in 2016 and furniture that was fully 

reimbursed in 2018. Clearly illustrating no misappropriation or theft was ever discovered by the union since 2018. The LM-2 are 

signed by the APFA National Officers under penalty of perjury. 

2022 - https://olmsapps.dol.gov/query/orgReport.do?rptId=840723&rptForm=LM2Form

2021 - https://olmsapps.dol.gov/query/orgReport.do?rptId=773865&rptForm=LM2Form

2020 - https://olmsapps.dol.gov/query/orgReport.do?rptId=731533&rptForm=LM2Form

2019 – https://olmsapps.dol.gov/query/orgReport.do?rptId=709508&rptForm=LM2Form

2018 – https://olmsapps.dol.gov/query/orgReport.do?rptId=679829&rptForm=LM2Form

2017 – https://olmsapps.dol.gov/query/orgReport.do?rptId=650505&rptForm=LM2Form

2016 – https://olmsapps.dol.gov/query/orgReport.do?rptId=628943&rptForm=LM2Form

2015 – https://olmsapps.dol.gov/query/orgReport.do?rptId=594782&rptForm=LM2Form

Case 4:22-cv-00430-Y Document 107 Filed 08/29/23 Page 11 of 18 PageID 3681
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includes fraud on an officer’s credit card in 2016, and loss of furniture that was reimbursed in 

2018.4 Consequently, all other LM-2s on public record indicate the union suffered no loss of its

funds—let alone indicate discovery of any alleged breach of fiduciary duty. Since the LM-2 

Reports are filed under oath by the union and signed by the National Officers—this testimony 

exemplifies that APFA fails to establish any damages for its alleged breach of fiduciary duty. 

C. The Court lacks federal jurisdiction to enforce the Union’s Constitution and Policy.

In terms of enforcement or collection of APFA’s arbitration award, Plaintiff previously 

asserted that controlling precedent prohibits any such action by this Court because the arbitration 

award relies solely on the APFA Constitution. Adams-Lundy v. A.P.F.A, 792 F.2d 1368, 1370 (5th 

Cir. 1986) (“Adams-Lundy II”).

5

 In Adams-Lundy v. APFA, the 5th Circuit Court reviewed 

injunctions issued by this Court against this Defendant for precisely this same reason. The 5th

Circuit vacated the District Court’s orders to enforce an arbitration award based on APFA’s 

Constitution. Adams-Lundy II, 792 F.2d at 1373. Ironically, the union at issue in Adams-Lundy

is the same union at issue before this Court—the Association of Professional Flight Attendants 

(“APFA”). Id. at 1373. The 5th Circuit ruled that “. . . the federal courts are without jurisdiction 

4 The LM-2 Filings require reporting any misappropriation, shortage, or theft of funds discovered within that year to the U.S. 

Department of Labor. See Question 13 on page 1 of the following LM-2 Filings by APFA. The only years theft or shortages 

were reported were in 2018 and 2016. Clearly illustrating no misappropriation or theft was ever discovered by the union since 

2018. The only loss reported is the loss of furniture that was paid back on the 2018 LM-2 Report (notes on the last page of the 

LM-2 about the specific loss) and fraudulent charges on an officer’s credit card reported on the 2016 LM-2 Report. The LM-2 

are signed by the APFA National Officers under penalty of perjury. 

2022 - https://olmsapps.dol.gov/query/orgReport.do?rptId=840723&rptForm=LM2Form

2021 - https://olmsapps.dol.gov/query/orgReport.do?rptId=773865&rptForm=LM2Form

2020 - https://olmsapps.dol.gov/query/orgReport.do?rptId=731533&rptForm=LM2Form

2019 – https://olmsapps.dol.gov/query/orgReport.do?rptId=709508&rptForm=LM2Form

2018 – https://olmsapps.dol.gov/query/orgReport.do?rptId=679829&rptForm=LM2Form

2017 – https://olmsapps.dol.gov/query/orgReport.do?rptId=650505&rptForm=LM2Form

2016 – https://olmsapps.dol.gov/query/orgReport.do?rptId=628943&rptForm=LM2Form

2015 – https://olmsapps.dol.gov/query/orgReport.do?rptId=594782&rptForm=LM2Form 5 In this case the 5th Circuit Court of Appeals vacated an injunction issued by the ND TX district court enforcing an arbitration 

award based solely on the APFA constitution and holding “We hold that the district court had no jurisdiction to enforce the 

arbitral award, and we therefore vacate the district court's orders.”). 

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to enforce an arbitration award that is based solely on an internal union constitution. It was 

therefore an error for the district court to enter an order enforcing the arbitrator’s award and to 

enter a preliminary injunction in support of the arbitration award and orders. . . ..” Id. at 1373. The 

5th Circuit Court of Appeals vacated all orders on appeal and remanded the case back to the district 

court to render a ruling consistent with its opinion. Id. at 1373. The court should note that the 

orders entered in this case were injunctive orders enforcing the arbitration award that resulted in 

Plaintiff’s case—the exact same fact pattern, issues, and even the same union at issue in this case 

as it is in the Adams-Lundy case. 

Defendant’s claims—both breach of fiduciary duty as well as its claim to enforce its 

arbitration award—rest solely on the basis of Plaintiff’s alleged breach of APFA Constitution and 

APFA Policy. The 5th Circuit makes very clear that federal jurisdiction does not exist over laws 

and policies created by a union to self-govern. The breach of fiduciary duty claims are based on 

alleged payments made and received that allegedly violate APFA Constitution and Policy—not 

federal or state law. Without indicating that payments made and received by Plaintiff violated 

some sort of law, then this claim is merely founded on those rules the union creates and enforces 

for self-governance, and the political whimsy of union politics could potentially wreak havoc on 

federal courts if they were, in fact, allowed to enforce rules created outside of the law. These 

claims simply waste the valuable time and resources of our federal judicial system. 

Here, Defendant seeks an injunction enforcing the arbitrator’s award based solely on the 

very same union’s constitution in Adams-Lundy.

6

 (Def. 2d Am. Answer and Counterclaims Doc. 

76, PAGEID 3264-3265). The cases are identical. The 5th Circuit stated that “[t]he rights 

6 Note that APFA’s prayer requests a judgment and injunctive relief in favor of APFA ordering Ross to abide by and enforce the 

Arbitrator’s Award.

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adjudicated by the arbitrator were thus not LMRDA rights, but a type of contractual rights provided 

for union officers in an agreement between the union and its members, the constitution of the 

APFA. 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.” Adams-Lundy 

II, 792 F.2d at 1373; Martin v. Local 556, Transp. Workers Union of Am., 206 F.Supp.3d 1227. 

The APFA Constitution, Article 7, Section 1 outlines the eight possible charges that one 

member may bring on behalf of the union against another. The APFA Constitution states: 

Section 1. Any member is subject to fine, suspension or expulsion, or 

suspension from or removal from office, for any of the following acts: 

F. Willful violation of an express Article of this Constitution, or of a 

proper and express written resolution or policy of the Board of 

Directors or the Executive Committee. . . .” (APFA Const. Art. VII, 

Sec. 1(F); Doc. 53, APPENDIX 45).

The Article VII Arbitrator is empowered to decide all charges referred to him under Art. 

VII of the APFA Constitution. Defendants concede this fact, as it is asserted in Defendant’s 

Amended Answer. (Def. 2d Am. Answer and Counterclaims Doc. 76, PAGEID 3258-3259).

Consequently, the Article VII Arbitration forum facilitates the union’s ability to self-govern the 

rules spelled out in its Constitution and Policy, not to hear and impose causes of action grounded 

in the law. 

Chinery-Burns and Lee state in their charges against Plaintiff that he allegedly violated 

Section 1F of the APFA Constitution. (Pl. Resp. to M. for Summ J., Doc. 53 APPENDIX 59- 67). 

This section states that a member may bring charges against another for willful violations of the 

APFA Constitution and Policy. (Pl. Resp. to M. for Summ J., Doc. 53 APPENDIX 59- 67). The 

charges list solely those sections of APFA’s Constitution and Policy that Plaintiff allegedly 

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willfully violated. (Pl. Resp. to M. for Summ J., Doc. 53 APPENDIX 59- 67). The charges lay 

out the foundation for the Arbitration Award’s jurisdiction—the APFA Constitution and Policy. 

Plaintiff clearly admits that the Arbitration Award is issued against Plaintiff based solely on the 

APFA Constitution in its Second Amended Answer.7

 (Def. 2d Am. Answer and Counterclaims 

Doc. 76, PAGEID 3255).

Additionally, the Arbitration Award cites grounds for the charges and its jurisdiction under 

the APFA Constitution Art. VII, Sec. 1F, as well as those sections of the APFA Constitution and 

Policy which root the charges to the jurisdictional authority. (Pl. Original Complt, Doc. 1-1, 

PAGEID 16-19). The Arbitrator states fiduciary duty violations, however, the Arbitrator only cites 

APFA’s Constitution, Art. 1, Sec. 7E definition of “Duty” as the basis for such a duty owed. (Pl. 

Original Complt, Doc. 1-1, PAGEID 16), Notably absent from the Arbitration Award is any 

citation or reference to any cause of action brought under federal law. (Pl. Original Complt, Doc. 

1-3, PAGEID 16). 

Defendant’s Arbitration Award against Plaintiff is based solely on the APFA Constitution.

(Def. 2d Am. Answer and Counterclaims Doc. 76, PAGEID 3255). The Article VII Arbitration 

has no authority or jurisdiction to analyze and decide those issues contained outside of the APFA 

Constitution or Policy. Clearly opposing counsel will assert that the Arbitration Award is founded 

on legal application and interpretation of claims like breach of fiduciary duty, malfeasance, or 

misappropriation under LMRDA. However, the APFA Constitution does not confer authority to 

interpret and apply any civil laws, and this court should take judicial notice of the Arbitration

7 “In his Decision and Order construing the APFA Constitution and Policy Manual, the Arbitrator found that Plaintiff/Counter 

Claim Defendant Eugenio Vargas (“Vargas”), while holding the office of National Treasurer of the APFA, had engaged in 

numerous acts of financial misfeasance, fraud, and misappropriation of APFA funds in violation of the APFA Constitution and 

Policy Manual and his fiduciary duty both as an officer and member of the APFA.”

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16 

Award’s citation of the applicable rules and laws. (Pl. Original Complt, Doc. 1-1, PAGEID 16).

In particular, the Arbitration Award cites the violations as follows: 

“The facts in this matter center on Defendant Ross assuming office as the APFA 

National President and moving to Dallas, TX during the months of April 2016 

through October 2016. Defendant Ross is alleged to have misused the APFA 

credit card on several matters during his term in office.

 

Plaintiff alleged in the Article VII grievance and heard are described as follows:

Defendant is charged with eight (8) specific violations of the Policy Manual and 

the APFA Constitution.” (Pl. Original Complt, Doc. 1-1, PAGEID 16). 

The Award goes on to cite various pertinent portions of the APFA Constitution and Policy that 

form the foundation of the charging party’s claims. At no time does the Arbitrator cite any case 

law or statute that Plaintiff violated. Furthermore, the APFA Constitution only grants authority to 

the Arbitrator to interpret and enforce the APFA Constitution and Policy. The Arbitrator has no 

right to enforce state or federal claims, criminal claims, civil claims—the APFA Constitution 

cannot force its members to waive their right to a jury trial per LMRDA §101 (a)(4).8 

The citations to the relevant rules used for issuance of the Award establish the authority 

and grounds for the disciplinary action. At no point within the Award does the Arbitrator cite any 

legal grounds for issuance of its Award—only APFA Constitution and Policy. Any rendition of 

an Award by the Article VII Arbitrator shall not be enforced in the federal courts as it is based 

solely on the APFA Constitution and Policy. 

The Adams-Lundy precedent controls the case before this court. The 5th Circuit Court held 

that federal jurisdiction does not exist to enforce an arbitration award based solely on APFA’s 

Constitution. The 5th Circuit Court’s ruling in the Adams-Lundy case is an insurmountable hurdle 

8 LMRDA Section 101(a)(4) requires the “PROTECTION OF THE RIGHT TO SUE.-- No labor organization shall limit the right 

of any member thereof to institute an action in any court, or in a proceeding before any administrative agency. . . .”

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17 

which the Union cannot overcome. APFA’s counterclaims are barred as a matter of law for lack 

of jurisdiction. 

IV. CONCLUSION AND PRAYER

In conclusion, Defendant failed to state a claim for recovery under LMRDA §501 

because—as demonstrated above—the Plaintiff had no duty as of the date of any alleged 

overpayments, the conduct Defendant complains of consists of business decisions which fail to 

rise to a breach of fiduciary duty, and Defendant testified in the U.S. Department of Labor LM-2 

Financial Reports that the union suffered no loss or damage since 2015. Furthermore, the Court 

has no jurisdiction to enforce the Arbitration Award or a federal breach of fiduciary duty claim 

based solely on a Union Constitution, as determined by the 5th Circuit Court in the Adams-Lundy

case. For the reasons stated herein, Plaintiff requests that the Court grant Plaintiff’s Second Motion 

to Dismiss Defendant’s Counterclaims for Relief. 

 Respectfully submitted,

K.D. PHILLIPS LAW FIRM, PLLC

By: /s/ Kerri Phillips

Kerri Phillips

Texas Bar No. 24065906 

Phone: (972) 327-5800 

Email: kerri@KDphillipslaw.com

6010 W. Spring Creek Parkway

Plano, Texas 75024

Fax: (940) 400-0089 

For Service of Filings: 

notice@KDphillipslaw.com

ATTORNEY FOR PLAINTIFF

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 CERTIFICATE OF SERVICE

I certify that the true and correct copy of this document was sent to all counsel of record, 

hereunder listed via ECF Filing on this the 29th day of August 2023. 

Jeff Bartos

Charlette Matts

/s/ Kerri Phillips 

Kerri Phillips, Esq.

Case 4:22-cv-00430-Y Document 107 Filed 08/29/23 Page 18 of 18 PageID 3688