Id. at § 501(b). By its terms, Section 501(b) clearly creates a federal cause of action for
an individual union member to file suit when certain procedural hurdles are met. Section
501(b) is silent, however, as to whether it creates a federal cause of action for a union to
sue on its own behalf. Courts considering the issue have reached inconsistent
conclusions, see Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 374
n.16 (1990) (recognizing that courts have reached inconsistent positions on whether
Section 501 creates an implied federal cause of action for unions but declining to resolve
that divide), and our Circuit has yet to address the issue.” The Seventh and Eleventh
Circuits have held that Section 501(a) creates an implied cause of action for unions to sue
on their own behalf. Int’! Union of Operating Eng’rs, Local 150 v. Ward, 563 F.3d 276,
282-89 (7th Cir. 2009); Int’! Union of Elec., Elec., Salaried, Mach. & Furniture Workers
v. Statham, 97 F.3d 1416, 1418-21 (11th Cir. 1996). The Ninth Circuit, however, has
held that it does no such thing. Bldg. Material & Dump Truck Drivers, Local 420 v.
Traweek, 867 F.2d 500, 506-07 (9th Cir. 1989). After reviewing the parties’ briefs and
existing case law, I agree with the Ninth Circuit: Section 501 does not create an implied

cause of action for a union to sue on its own behalf.

> The singular case in our Circuit to contemplate the right of unions to sue under Section 501 did
not address a union’s right to initiate suit on its own behalf. See Weaver v. United Mine Workers
of America, 492 F.2d 580 (D.C. Cir. 1973) (allowing union to realign as party plaintiff after
union elections in a suit properly brought under Section 501(b) by individual union members).
At least one court in this jurisdiction has expressly determined that Weaver does not stand for the
proposition that Section 501(b) authorizes unions to sue in the first instance on their own behalf.
Retail Clerks Int'l Ass'n v. Burge, No. 76-0356, -0595, 1979 WL 1938, at *2-3 (D.D.C., Oct. 30,
1979) (“The Court cannot conclude, as plaintiff urges, that merely because the realignment in
Weaver was held not to destroy that court’s already-existing jurisdiction, the statute should be
read to confer jurisdiction over suits brought by the union in the first instance.”)

5


contract.’” Levi v. Int’l Bhd. of Teamsters, 842 F. Supp. 2d 306, 309 (D.D.C. 2012)
(quoting Sine v. Local No. 992, Int'l Bhd. of Teamsters, 730 F.2d 964, 966 (4th Cir.
1984)). As such, courts have entertained suits by an employer against a union, see, e.g.,
Carbon Fuel Co. v. Mine Workers, 444 U.S. 212 (1979); by a union against an employer,
see, e.g., Auto. Workers v. Hoosier Cardinal Corp., 383 U.S. 696 (1966); and by a local
union against its parent international union, see, e.g., Journeymen, 452 U.S. at 620.
Applying Sections 185(b) and 185(e), which govern liability for a union’s or employer’s
agents, courts have also allowed suits for equitable relief, but not money damages,
against union officials for violations of the union’s constitution. See, e.g., Shea v.
McCarthy, 953 F.2d 29 (2d Cir. 1992). Finally, although the object of a Section 185 suit
must be a party to the contract allegedly violated, the Supreme Court has held that
Section 185 suits may be brought by a third-party beneficiary. See Smith, 371 U.S. at
200-01 (allowing employee to sue his employer under Section 185 for violation of a
collective bargaining agreement between the employer and the union); Wooddell, 502
U.S. at 101 (allowing individual union member to sue union for breach of union
constitution),

Despite these various iterations of a Section 185 suit, plaintiff has not identified a
single case in which a union was permitted to sue a non-member employee. Indeed, each
of the cases cited by the plaintiff for the proposition that “a union may sue individual
officials for equitable relief” under Section 185 involved an international union suing a
local union and its officers for violation of the union’s constitution. Such is not the case

here! Recognizing that the facts here do not easily meet the requirements of a Section

10


Congress intended that it also be in a federal forum. See, e.g., Ward, 563 F.3d at 288 (“It
would be anomalous indeed to read this statutory scheme as remitting the union’s own
suit—which is primary under the statutory hierarchy—to state court.”); Statham, 97 F.3d
at 1420 (finding that it would “frustrate congressional intent to relegate the union to state
remedies” because Congress intended to create new federal protections to supplement the
then-existing remedies). These courts conveniently explain away Congress’ failure to
expressly state this intent by concluding, rather circuitously, that the union’s cause of
action was implicit while an individual’s cause of action needed to be “spelled out.” See
Statham, 97 F.3d at 1421 (finding that reading the statute as a whole reveals that
“Congress thought it implicit that the unions could enforce” the rights outlined in Section
501 (a) in court, whereas “[a]llowing the individuals to assert the unions’ claims was more
extraordinary and therefore had to be spelled out”); see also Ward, 563 F.3d at 287.
While this position may have some logical appeal, it is simply not supported by
the statute’s language, legislative history, or purpose. Although the statutory language
does reveal that Congress contemplated unions bringing suit in some forum, nothing in
the statute suggests that Congress thought unions and union members required access to
the same forum. Indeed, the problem Congress sought to address through the LMRDA
was not that unions lacked adequate remedies under state law against corrupt officials,

but that unions were failing to pursue those remedies.* See H.R. Rep. No. 86-741, at 81

3 In 1958, a congressional committee known as the Select Committee on Improper Activities in
the Labor Management Field released an interim report—popularly referred to as the McClellan
Committee Report—which revealed that unions were plagued with widespread corruption and
union leaders were engaging in repeated instances of violence and racketeering without

7


The Supreme Court has made clear that when determining whether a federal
statute contains an implied cause of action the “central inquiry” is Congressional intent.
Touche Ross & Co. vy. Redington, 442 U.S. 560, 575-76 (1979); see also Transamerica
Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15-16 (1979) (holding that the
ultimate question in an implied right of action analysis is whether Congress intended to
create a private right of action even if it did not expressly provide one). In 2001, the
Supreme Court more specifically stated that “{t]he judicial task is to interpret the statute
... to determine whether it displays [not only] an intent to create . . . a private right but
also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Thus, unless
Congressional intent to create a federal cause of action can be inferred from the language
of the statute, the statutory structure, or some other source, there is no basis for the
implication of a private remedy. See Thompson v. Thompson, 484 U.S. 174, 179 (1988);
TAMA, 444 USS. at 18. Indeed, the Supreme Court has made it clear that courts may not
read into statutes a cause of action, even if doing so would further the purposes of the
statute. Alexander, 532 U.S. at 286-87.

Turning to the statutory text of Section 501, the plain language is clear: it
authorizes individual union members to bring suit against union officials who violate the
duties described in Section 501(a) when the union itself declines to do so. See 29 U.S.C.
§ 501(b). Courts, however, have found an implied federal cause of action exists for
unions based upon the pre-condition of the union declining to bring a suit in some forum.
See, e.g., Statham, 97 F.3d at 1419. Not surprisingly, these courts opine that because the

individual union member’s cause of action is derivative of the union’s cause of action

6


B. Jurisdiction Pursuant to Section 185

In Count V of its complaint, plaintiff alleges breach of contract in violation of 29
U.S.C. § 185 based on defendant's failure to fulfill his obligations under the SPFPA’s
Constitution and Bylaws. Compl. {§ 35-40. Defendant seeks dismissal of this claim,
arguing that suits against former union employees, which are purely intra-union, are not
covered by Section 185 and, as a non-union member, he was not subject to the SPFPA’s
Constitution or Bylaws. Def.’s Mem. 4-5. I agree.

By its terms, Section 185(a) confers federal jurisdiction over “[s]uits for violation
of contracts between an employer and a labor organization representing employees in an
industry affecting commerce as defined in this chapter, or between any such labor
organizations ....” 29 U.S.C. 185(a). As the Supreme Court has explained, the word
“between” in Section 185(a) refers to “contracts,” and not “suits.” Smith v. Evening
News Ass'n., 371 U.S, 195, 200-01 (1962). As a threshold matter then, a suit properly
brought under Section 185(a) must be a suit for either (1) a violation of a contract
between an employer and a labor union or (2) a violation of a contract between two labor
unions. Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 98 (1991). For
purposes of Section 185(a), a union’s constitution is a contract. United Ass'n of
Journeymen & Apprentices of the Plumbing & Pipefitting Indus. v. Local 334, 452 U.S.
615, 624 (1981) (holding that suit by a local union against its international for a violation
of its constitution came within the meaning of Section 185(a)).

Courts have also considered who may be the parties to a Section 185 suit and have

concluded that under Section 185 “a ‘suit may be brought only against the parties to the

9


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL UNION, )
SECURITY, POLICE AND FIRE )
PROFESSIONALS OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Case No. 09-2229 (RJL)
)
ASSANE FAYE, )
) FILED
Defendant. ) JUL 29 2015
)
Clerk, U.S. District &
Courts for the Distt of cole
MEMORANDUM OPINION

July JG 2015 [#43, #45]

Plaintiff International Union, Security, Police and Fire Professionals of America
(“SPFPA” or “plaintiff’) brings this action against defendant Assane Faye (“defendant”),
alleging that defendant breached his fiduciary duties, duty of loyalty, and duties under the
SPFPA Constitution and Bylaws while employed by the SPFPA. See generally Compl.
[Dkt. #1]. Before this Court are defendant’s Motion to Dismiss [Dkt. #43] (“Mot. to
Dismiss”) and plaintiff's Motion for Partial Summary Judgment [Dkt. #45] (“Mot. for
Summ. J.”). Because this Court lacks subject matter jurisdiction over the alleged federal
law claims and therefore must not exercise supplemental jurisdiction over the alleged
state common law claims, the defendant’s Motion to Dismiss is hereby GRANTED and

plaintiff's Motion for Partial Summary Judgment is hereby DENIED as MOOT.


185 suit, plaintiff argues, rather creatively, that by taking an oath—the words of which
were prescribed in the constitution—defendant violated the constitution when it allegedly
violated that oath. However, by its very terms the SPFPA’s Constitution and Bylaws are
the law of the international and local unions and binding on each union member. See
Mot. for Summ. J. Ex. 2. Since the defendant is not a union member, he was not a party
to the constitution. Thus, plaintiff's argument falls short. Without an alleged breach of
the constitution by a party to the constitution, Section 185 jurisdiction will not lie. See
Levi, 842 F. Supp. 2d at 309.

Cc. Jurisdiction Over State Common Law Claims

Because this Court does not have subject-matter jurisdiction over plaintiff's
alleged federal law claims, I have no basis to exercise supplemental jurisdiction over
plaintiff's state common law claims. See 28 U.S.C. § 1367.

CONCLUSION
For the foregoing reasons, defendants’ Motion to Dismiss is GRANTED. A

separate Order consistent with this decision accompanies this Memorandum Opinion.

dude pus!

RICHARD LEON
United States District Judge


(1959) (explaining that the House Committee on Education and Labor found it important
to write detailed fiduciary duties into the federal law even though “common law covers
the matter’); SantaMaria, 162 F. Supp. 2d at 78-79 (finding that the legislative history of
the LMRDA evidences a concern about the absence of state law remedies for union
members). But see Statham, 97 F.3d at 1420 (concluding that the legislative history
demonstrates Congress intended to supplement the remedies available to unions). The
solution Congress conceived was to democratize labor unions and grant union members a
federal remedy in those situations in which the union failed to act. See S. Rep. No. 86-
187, at 72 (1959) (noting that only one state had enacted a statute imposing fiduciary
duties on union officials and giving union members the right to sue for a breach of those
duties when discussing the need to “enable[e] rank-and-file union members” to enforce
officials fiduciary duties). While some courts may believe that a federal cause of action
for the union itself is compatible with the statute’s structure and purpose, that alone is not
reason enough to infer a cause of action where one does not exist. See Alexander, 532

USS. at 286-87.4

consequence. See S. Rep. No. 85-1417, at 3-6 (1958); see also Ward, 563 F.3d at 278; Phillips v.
Osborne, 403 F.2d 826, 828-29 (9th Cir. 1968). Congress passed the LMRDA a year later in
response to growing public concerns stemming from such reports. See Phillips, 403 F.2d at 828.
* Rather than dismiss the Section 501 claim, Plaintiff asks that this Court grant it leave to amend
its complaint to include appropriate individual union members. Such action, however, would not
render this suit properly brought under Section 501. In order for an individual union member to
bring suit under Section 501, several prerequisites must be met. Importantly, the union itself
must have refused or failed to sue within a reasonable period of time. 29 U.S.C. § 501(b). This
prerequisite is clearly not met in the present case.

8


ANALYSIS

A. Jurisdiction Pursuant to Section 501(b)

Plaintiff alleges in Count I of its complaint that defendant breached fiduciary
duties it owed to the SPFPA in violation of 29 U.S.C. § 501. Compl. §§ 13-17.
Defendant seeks dismissal of this claim, arguing that the plain language of the statute
does not authorize unions to sue. Def.’s Mem. 2-4. Plaintiff responds that the legislative
intent, language, and structure of the statute demonstrate that Section 501(b) contains an
implied federal cause of action for unions to sue on their own behalf. PI.’s Br. in Opp’n
to Def.’s Mot. to Dismiss 2-3 [Dkt. #46] (“P1.’s Opp’n Br.”).

Section 501(a) of the LMRDA imposes particular fiduciary duties on union
officials because “[t]he officers, agents, shop stewards, and other representatives of a
labor organization occupy positions of trust in relation to such organization and its
members as a group.” 29 U.S.C. § 501(a). Section 501(b) prescribes the remedy for a
breach of these duties, stating in relevant part:

When any officer, agent, shop steward, or representative of
any labor organization is alleged to have violated the duties
declared in subsection (a) of this section and the labor
organization or its governing board or officers refuse or fail to
sue or recover damages or secure an accounting or other
appropriate relief within a reasonable time after being
requested to do so by any member of the labor organization,
such member may sue such officer, agent, shop steward, or
representative in any district court of the United States or in
any State court of competent jurisdiction to recover damages
or secure an accounting or other appropriate relief for the
benefit of the labor organization. No such proceeding shall be
brought except upon leave of the court obtained upon verified
application and for good cause shown, which application may
be made ex parte.


LMRDA nor the LMRA creates a federal cause of action for a union to sue, on its own
behalf, its former employee who was at no time a member of the union. Jd.
LEGAL STANDARD

Federal courts are courts of limited jurisdiction, and a court should begin with a
presumption that a case lies outside its jurisdiction. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). The burden of establishing that subject matter
jurisdiction exists rests upon the party asserting it. /d.; see also Moms Against Mercury v.
Food & Drug Admin., 483 F.3d 824, 828 (D.C. Cir. 2007); Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). In evaluating a Rule
12(b)(1) motion, the Court must construe the allegations in the complaint in the light
most favorable to the plaintiff. See, e.g., Hohri v. United States, 782 F.2d 227, 241 (D.C.
Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). However, the Court’s inquiry
is not limited to the allegations in the complaint. /d. Rather, “a court may consider such
materials outside the pleadings as it deems appropriate to resolve the question [of]
whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics,
104 F. Supp. 2d 18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).

The issue of a court’s subject matter jurisdiction “may be raised by a party, or by
the court on its own initiative, at any stage in the litigation, even after trial and the entry
of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). If a district court
“determines at any time that it lacks subject-matter jurisdiction, the court must dismiss

the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added).

3


BACKGROUND

Plaintiff SPFPA is a labor union that represents security officers throughout the
United States. Compl. §§ 1, 5. Defendant was employed by the SPFPA from 2004 until
September 24, 2009. Compl. § 6. At no time was defendant a member of the SPFPA.
Def.’s Mem. of P. & A. in Supp. of His Mot. to Dismiss 1 [Dkt. #43] (“Def.’s Mem.”).
Plaintiff alleges that, during his employment with the SPFPA, defendant engaged in
actions contrary to the interests of the SPFPA, including helping establish a competing
labor organization and encouraging SPFPA members to join that competing union.
Compl. § 9; Pl.’s Br. in Supp. of Mot. for Partial Summ. J. §) 9 [Dkt. #45] (“P1.’s Br. in
Supp.”). For these alleged offenses, plaintiff filed a complaint against defendant on
November 24, 2009 asserting two federal law and four state common law claims. The
federal law claims include violations of the Labor-Management and Reporting Disclosure
Act (“LMRDA”), 29 U.S.C. § 501, and violations of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185.' Because plaintiff asserts federal law claims, it
contends that this Court has federal question jurisdiction over this suit pursuant to 28
U.S.C. § 1331 and § 1337. Compl. § 4. On October 14, 2014, defendant filed a motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that this Court
lacks subject matter jurisdiction over the ostensible federal causes of action and therefore
should not exercise supplemental jurisdiction over the state common law claims. See

generally Def.’s Mem. In support of this claim, defendant argues that neither the

129 U.S.C. § 185 is often referred to as Section 301 of the LMRA. However, to avoid
confusion, I refer to the statute using the full cite or as Section 185.

2