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03/17/87 John H. Mallick v. International Brotherhood

March 17, 1987

JOHN H. MALLICK

v.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, APPELLANT; CHARLES H. PILLARD, ET AL. 1987.CDC.110



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Civil Action No. 82-01075.

APPELLATE PANEL:

Wald, Chief Judge, Starr and Davis,* Circuit Judges. Opinion for the Court filed by Chief Judge Wald.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

In Mallick v. International Brotherhood of Electrical Workers, 242 U.S. App. D.C. 93, 749 F.2d 771 (D.C. Cir. 1984) (Mallick I), we held that under § 201(c) of the Labor-Management Reporting and Disclosure Act of 1959 , 29 U.S.C. § 431(c), a union member has "just cause" to examine union records relating to "a sudden, apparently significant, and unexplained change in an item on his union's LM-2 [financial] reports," *fn1 unless the union can demonstrate that the disclosure of this information will cause the union a "genuine harm" that "outweighs the strong policy favoring access for union members who have otherwise satisfied the statutory requirement for examination." Id. at 781, 785 (footnote omitted). We remanded the case to the District Court to determine whether the union could make such a showing. Upon remand, the District Court determined that the union raised "no issue of material fact, which could lead to a finding that the harm from disclosure would outweigh Mallick's statutorily protected interest." Joint Appendix at 15 (citation omitted). The District Court, therefore, granted plaintiff's motion for summary judgment and ordered that the union allow plaintiff to examine all relevant records. 633 F. Supp. 867 (1986). See J.A. at 18-19. The union appealed this decision. I. ISSUES ARISING FROM MALLICK'S DEATH

Ten days after the District Court entered judgment in favor of Mallick (January 31, 1986), Mallick died (February 10, 1986). *fn2 Although the death occurred before the union filed its notice of appeal, the union apparently did not learn of it until afterwards. In any event, the union filed its notice of appeal on February 28, 1986.

A. A Question of Procedure

Rule 43(a) of the Federal Rules of Appellate Procedure provides that once a notice of appeal is filed, a substitution of parties, if any, is to "be affected in the court of appeals in accordance with this subdivision." In part, Rule 43(a) states: "If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct." *fn3 Nevertheless, in this case, the IBEW first made a suggestion of death to the District Court and asked the District Court to vacate the judgment for this reason (March 24, 1986). In response to this motion, three of Mallick's fellow union members (Doyle, et al.) moved the District Court to substitute them for Mallick as plaintiffs in this action (April 21, 1986).

While these motions were pending in the District Court, the union made a suggestion of death to this court and asked that we delay the briefing schedule for its appeal to allow the District Court to rule on the pending substitution and vacation motions. Although the union members opposed any delay to the proceedings in this court, they expressed a willingness to have the District Court rule on their substitution request. See Appellee's Opposition to Motion to Suspend Briefing Schedule Indefinitely at 3. We granted the union's motion to delay the briefing schedule in this appeal. See Order (June 10, 1986).

Although the more normal course of proceeding under Fed. R. App. P. 43(a) is for this court to decide the substitution issue directly, the Rule provides that "proceedings shall . . . be had as the court of appeals may direct." We believe that this flexibility, built into the Rule, allows us to take cognizance of the District Court's opinion on the issue -- especially in a case where the parties themselves have chosen to proceed before the District Court. Following our decision to await its ruling, the District Court ruled in favor of Doyle, et al. and substituted the new plaintiffs in this case. J.A. at 20 (June 18, 1986). Having solicited the District Court's opinion on this issue, we will adopt its order as our own and will permit the substitution under Fed. R. App. P. 43(a), unless we are convinced by the appellant union's argument that it is contrary to law. It is to that question we now turn.

B. Survivorship of LMRDA § 201(c) Claims

Whether Mallick's action under § 201 of the LMRDA survives his death is a question of federal law. The Supreme Court has repeatedly held that the survivorship of a federal claim is itself an issue of federal law. Most recently, in holding that Bivens actions *fn4 survive the death of the wronged individual (at least in certain circumstances),5 the Supreme Court stated: " Bivens actions are a creation of federal law and, therefore, the question of whether respondent's action survives [her son's] death, is a question of federal law." Carlson v. Green, 446 U.S. 14, 23, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). Although the action in this case is a creation of a federal statute (whereas Bivens actions are not), the logic of Carlson dictates that federal law determines the survivorship of federal statutory claims, as they are evidently "creation[s] of federal law." Indeed, the Supreme Court has stated that the question of whether a federal statutory claim survives the death of one of the parties is essentially a question of how to interpret the statute that provides for the action. Cox v. Roth, 348 U.S. 207, 210, 99 L. Ed. 260, 75 S. Ct. 242 (1955).6

The Supreme Court has further instructed that in deciding whether a federal action survives the death of a party, courts should formulate a federal rule of decision that best serves the goals which underlie the federal right of action itself. In Carlson, the Supreme Court referred to "the deterrence goals" which "underlie Bivens actions" and held that "[a] uniform rule that claims such as respondent's survive the decedent's death is essential if we are not to frustrate in an important way the achievement of the goals of Bivens actions." 446 U.S. at 25 (footnote and internal quotation omitted). The Supreme Court explained that deterrence of unconstitutional conduct requires that "[a] federal official contemplating unconstitutional conduct . . . be prepared to face the prospect of a Bivens action" and that this principle would not be well served if Bivens actions abate when the victims of unconstitutional conduct die (especially when the death is a result of the unconstitutional conduct).

When an Act of Congress has created the action at issue, the role of the courts in deciding the survivorship issue is to effectuate the will of Congress as best they can. As the Supreme Court observed in Cox v. Roth (supra) the fact that Congress has failed to provide a clause on survivorship to accompany the statute granting the right of action does not necessarily mean that Congress intended that the action abate upon the death of a party. Quoting its earlier opinion in Markham v. Cabell, 326 U.S. 404, 409, 90 L. Ed. 165, 66 S. Ct. 193 (1945), the Court in Cox v. Roth stated: "The policy as well as the letter of the law is a guide to decision. Resort to the policy of a law may be had to ameliorate its seeming harshness or to qualify its apparent absolutes." 348 U.S. at 209. In Cox v. Roth, the Supreme Court specifically held that a suit under the Jones Act survives the death of the tortfeasor. The Court reasoned that references in the Jones Act to the earlier Federal Employers' Liability Act, in which Congress had provided for tort claims against railroads in receivership, suggested that Congress would similarly not wish the "death of the tortfeasor to defeat recovery under the Jones Act." Id.

Applying the approach to survivorship questions set forth by the Supreme Court in Carlson v. Green and Cox v. Roth, we hold that Mallick's lawsuit under § 201 of the LMRDA survives his death, thereby allowing the substitution of Mallick's fellow union members as plaintiffs. First, as with Bivens actions, deterrence of wrongful conduct is a major goal underlying the authorization for union member lawsuits in § 201 of the LMRDA. In Mallick I, we quoted at length from the House Report reflecting that deterrence motivation. See 749 F.2d at 780. We will not repeat the relevant passage in its entirety here. For our purposes, it is sufficient to note that after acknowledging the existence of abuses by union leaders in managing union funds and union affairs, the House Report asserted:

It is the purpose of this bill to insure that full information concerning the financial and administrative practices and procedures of labor organizations shall be . . . available to the members of such organizations. . . . By such disclosure, and by relying on voluntary action by members of labor organizations, it is hoped that a deterrent to abuses will be established.

H.R. Rep. No. 741, 86th Cong., 1st Sess. 8 (1959) (emphasis added). This goal of deterrence is best served by allowing the § 201 lawsuit to survive the death of the particular union member who happens to initiate the action and by substituting for the decedent other union members who seek the same information and come forward as willing plaintiffs. As in Carlson, union officials contemplating abusive conduct must know that they are readily accountable through § 201 lawsuits to verify the union's reports. The congressional goal of deterring official abuse will be frustrated if unions can avoid disclosing information through protracted recalcitrance made possible, in part, by the abatement of 201 lawsuits upon the death of an individual plaintiff. In any event, a rule allowing survival and substitution would certainly "prevent frustrations of the deterrence goals of [the LMRDA]." Carlson, 446 U.S. at 25.

Second, although Congress has not expressly provided for the survival of § 201(c) lawsuits, the language of the statute reveals why their survival, and the substitution of the ...


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