UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FT. WORTH DIVISION

_________________________________ 

 ) 

ELAINE CHAO, SECRETARY ) 

OF LABOR, ) 

 ) 

 Plaintiff, ) Case No. 4-05CV-338Y 

 ) 

v. ) Judge Terry R. Means 

 ) 

ALLIED PILOTS ASSOCIATION, ) 

) 

 Defendant. ) 

_________________________________) 

DEFENDANT ALLIED PILOTS ASSOCIATION’S 

OPPOSITION TO MOTION TO INTERVENE

Pursuant to this Court’s April 4, 2007, Order Canceling Trial-Setting Conference 

and Setting Briefing Schedule for Motion to Intervene and Joint Motion for Case 

Resolution (doc. 58), Defendant Allied Pilots Association (“APA”) respectfully submits 

this opposition to the Motion to Intervene (“Motion”) filed by Mark L. Hunnibell 

(“Hunnibell”) on April 2, 2007 (doc. 55). As demonstrated below, Hunnibell’s Motion 

should be denied. 

1. The sole relief sought by Hunnibell is that the parties’ Stipulation of Settlement 

be altered to require that the 2007 National Officer Election be conducted by paper ballot. 

Motion at 3, ¶ 4(d); Intervenor’s Complaint at 10 (Prayer for Relief). Specifically, 

Hunnibell objects to the portion of the Stipulation of Settlement providing that the 

Department of Labor (“DOL”) would investigate and evaluate the BallotPoint remote 

internet voting system in a timely fashion and, if it found that system consistent with the 

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dictates of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 

401, et. seq. (“LMRDA”), the system would be used in the 2007 National Officer 

Election. See Exhibit A to Joint Motion for Case Resolution, ¶ 3(c) (March 30, 2007). 

 The APA has recently learned that the DOL investigation and evaluation will not 

be completed in time to meet the schedule for the 2007 National Officer Election. 

Accordingly, consistent with the Stipulation of Settlement, the 2007 National Officer 

Election will be conducted by means of paper ballot. Because the use of paper ballot 

constitutes all of the relief sought by Hunnibell, his Motion should be denied as moot. 

See, In re Grand Jury Subpoena, 926 F.2d 1423, 1430 (5th Cir. 1991) (intervener’s claim 

dismissed as moot when requested relief had already been effectively achieved). 

2. Even if that were not the case, intervention should be denied, as Hunnibell 

establishes on the very first page of his Motion. As Hunnibell correctly points out, “[i]n 

Trbovich v. United Mine Workers of America, 404 U.S. 528, 537 (1972), the Supreme 

Court held that ‘in a post-election enforcement suit, Title IV imposes no bar to 

intervention by a union member, so long as that intervention is limited to the claims of 

illegality presented by the Secretary’s complaint.’” Motion ¶ 2 (emphasis added). As 

this Court has recognized, the only claim the Secretary brought in this case is that the 

American Arbitration Association remote internet voting system used in the 2004 

Election violated the LMRDA ballot secrecy requirement. February 20 Order Denying 

Plaintiff’s Motion for Summary Judgment at 1, 12-13 (doc. 51). Hunnibell’s Motion, 

however, is based solely on a desire to challenge the DOL’s agreement to consider the 

BallotPoint system for use in the 2007 Election on the ground that the system would 

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allegedly violate certain LMRDA provisions regarding observer rights, not ballot secrecy. 

Motion at 2-3, ¶¶ 4(c) and (d); Intervenor’s Complaint at 10 (“Prayer for Relief”). Thus, 

the proposed intervention is not “limited to the claims of illegality presented by the 

Secretary’s complaint” in this case, and intervention under Trbovich is unavailable. 

Trbovich, 404 U.S. at 537; see, Weems v. McCloud, II, 619 F.2d 1081, 1094 (5th Cir. 

1980) (Trbovich “held that intervention, which would otherwise have been a matter of 

right under Rule 24(a), was precluded by [LMRDA] Title IV with respect to claims other 

than those already being asserted by the Secretary. The Court reasoned that to permit 

such intervention would frustrate the purpose of the statute.”); Brennan v. Silvergate Dist. 

Lodge No. 50, 503 F.2d 800, 805 (9th Cir. 1974) (“Trbovich stands for the narrow 

proposition that intervention on the side of the Secretary for the limited purpose of 

advancing the claims of the Secretary is not barred by Title IV and for the more general 

proposition that all other claims of intervention are subject to the limitations imposed by 

the statute.”) (cited approvingly in Weems, 619 F.2d at 1094-95).1

The limitation on the Trbovich intervention right fully applies when the putative 

intervener seeks to affect a settlement of an election case, as does Hunnibell here. See, 

e.g., Chao v. Chicago Regional Council of Carpenters, 2006 WL 2849701 at *2 (N.D. Ill. 

Sept. 29, 2006) (“CRC”) (denying intervention seeking to alter a settlement between the 

DOL and the defendant union with regard to issues the DOL had not raised in the 

litigation of the case on the grounds that “Trbovich does not permit the Court to consider 

 

1

 Because Hunnibell failed to raise an observer rights challenge to the 2004 election to the APA Appeal 

Board, the DOL did not investigate the charge. Defendant Allied Pilots Association’s Brief in Opposition to 

Plaintiff’s Motion for Summary Judgment at 27-28, ¶ 120 (citing sworn testimony by DOL Investigator Donna 

Jolyn Underwood) (doc. 31). Thus, the DOL had no authority to raise the claim in the instant suit. Hodgson v. 

Local Union 6799, 403 U.S. 333, 336 (1971). 

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these particular objections” because they “involve issues that the Secretary opted not to 

raise in her complaint.”) 

In this case, Hunnibell’s only basis for intervention is his desire to change the 

terms of the settlement between the DOL and the APA to address an issue (observer 

rights) the DOL never raised -- indeed, had no authority to raise (see fn. 1 supra) -- in this 

litigation. Accordingly, Hunnibell has no right to intervene in this case, and his Motion 

should be denied. Trbovich, 404 U.S. at 537; CRC, 2006 WL 2849701 at *2. Thus, 

Hunnibell is not entitled to the relief he seeks in his motion, or to any other relief. 

CONCLUSION

For the reasons stated above, Hunnibell’s Motion to Intervene should be denied. 

Respectfully submitted, 

s/ Sanford R. Denison

SANFORD R. DENISON 

Texas Bar No. 05655560 

BAAB & DENISON, LLP 

Stemmons Place, Suite 1608 

2777 N. Stemmons Freeway 

Dallas, Texas 75207 

(214) 637-0750; (214) 637-0730 Fax 

Edgar N. James (admitted pro hac vice) 

D.C. Bar No. 333013 

Steven K. Hoffman (admitted pro hac vice) 

D.C. Bar No. 384696 

David P. Dean (admitted pro hac vice) 

D.C. Bar No. 437030 

JAMES & HOFFMAN, P.C. 

1101 17th Street, N.W., Suite 510 

Washington, D.C. 20036 

(202) 496-0500; (202) 496-0555 Fax 

Counsel for Defendant Allied Pilots 

Association 

Dated: April 16, 2007 

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CERTIFICATE OF SERVICE

 I hereby certify that on the 16th day of April, 2007, I electronically filed the 

forgoing document with the clerk of court for the U.S. District Court, Northern District of 

Texas, using the electronic case filing system of the court. The electronic case filing 

system sent a “Notice of Electronic Filing” to the following attorneys of record who have 

consented in writing to accept this Notice as service of this document by electronic 

means: 

 MARK L. HUNNIBELL 

 376 Black Rock Turnpike 

Redding, CT 06896 

TAMI C. PARKER 

Assistant United States Attorney 

Burnett Plaza, Suite 1700 

801 Cherry Street, Unit 4 

Fort Worth, Texas 76102 

 s/ Sanford R. Denison

 SANFORD R. DENISON 

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