Opinion
CASE NO. 00-CV-72206-DT.
November 17, 2000.
OPINION
On May 15, 2000, Plaintiff Larry G. Thornton filed this pro se action against multiple Defendants, stemming from his prior involvement with the Transportation Communications International Union. Defendants have filed motions to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff has filed a motion for Judgment as a matter of law under Rule 50, or in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motions to dismiss shall be granted, and Plaintiff's motions for judgment as a matter of law and summary judgment shall be denied.
Background
Procedural History:
The parties involved in this case have a long and detailed history. Plaintiff is a former official of the Transportation Communications International Union ("the TCIU"), an AFL-CIO affiliate which represents railroad employees. Plaintiff has filed several suits stemming from his involvement with the TCIU and its officers. On November 10, 1997, Plaintiff filed his first suit against Robert A. Scardelletti ("Scardelletti"), the International President of the TCIU, and Richard A. Johnson ("Johnson"), President of the BRCA, a division within the TCIU, in Michigan state court, which Defendants removed to the United States District Court for the Eastern District of Michigan, styled Thornton v. Scaredelletti, et al., No. 97-40490 (E.D. Mich.). This first suit, which alleged that Defendants had slandered and defamed Plaintiff by stating that Plaintiff had engaged in financial mismanagement and misappropriation of funds, was dismissed without prejudice for lack of jurisdiction.
Plaintiff filed suit against Scardelletti and Johnson again on February 23, 1998, in the District Court of Maryland, styled Thornton v. Scardelletti, et al., No. 99-532 (D. Md.). In this second suit, Plaintiff asserted claims that: Scardelli and Johnson slandered and defamed him by accusing him of mismanagement and/or misappropriation of union funds, his constitutional rights were violated by "disparate impact discrimination," and that he suffered slander, defamation, harassment, and disparate discrimination in connection with the closing of Joint Protective Board ("JPB") 60 and in connection with a 1998 union hearing.
While his second suit was still pending, Plaintiff filed a third suit on June 5, 1998, in the District Court for the Eastern District of Michigan. This suit was transferred to the Maryland district court and styled Thornton v. TCU, No. 99-3328 (D. Md.). In this suit, Plaintiff alleged that the TCIU:
1) violated its constitution and the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401, et seq. ("LMRDA") when it when it merged JPB 60 with JPB 200 without first initiating a trusteeship over JPB 60 or filing charges against the officers of JPB 60;
2) violated the LMRDA and denied him due process when it concluded he had misappropriated and/or mismanaged union funds in March 1997;
3) violated the LMRDA, denied him due process, and attempted to extort money when it stated he owed the union approximately $25,000,000 in February of 1998;
4) violated the LMRDA when it called for his trial as "retaliation"for his questioning of TCIU finances, and
5) conducted an "illegal" trial in April 1998 because he was not able to attend for medical reasons.
Plaintiff was later permitted to add claims that the TCIU improperly refused to allow him to run for election as an officer of JPB 200 in a 1997 election, and that the United States Department of Labor had not ruled on a protest he filed over the election.
Plaintiff's two pending cases in Maryland were consolidated. On March 22, 1999, Judge Deborah K. Chasanow issued a Memorandum Opinion, granting summary judgment to defendants on all claims. (See Opinion attached as Ex. 1 to TCIU Defs.' Mot. to Dismiss). Plaintiff appealed the district court's decision, and the Fourth Circuit affirmed the trial court's decision granting summary judgment on August 30, 1999. (See TCIU Defs.' Mot. to Dismiss, Ex. 8). On October 12, 1999, the Fourth Circuit denied Plaintiff's petition for rehearing en banc. (See TCIU Defs.' Mot. to Dismiss, Ex. 9). The Supreme Court denied Plaintiff's petition for certiorari on January 24, 2000 (see Thornton v. Scaredelletti, et al., 120 S.Ct. 991 (2000)), and denied his petition for rehearing on February 28, 2000. (See Thornton v. Scardelletti, et al., 120 S.Ct. 1265 (2000)).
The Present Case:
Plaintiff filed this pro se action against: the United States Department of Labor ("DOL"), Alexis Herman, Secretary, Lary F. Yud, Chief Enforcement Officer, the United States Department of Justice, Janet Reno, U.S. Attorney General, James Sheehan, Assistant U.S. Attorney, Chief, Civil Division, Richard Mentzinger, Assistant U.S. Attorney, (hereafter referred to as "the Federal Defendants"), the TCIU, Robert A. Scardelletti, President, Richard A. Johnson, President, BRCA Division, and Mitchell Kraus, attorney for the TCIU (hereafter referred to as "the TCIU Defendants.")
The Court is aware that a pro se litigant's complaint is to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Plaintiff generally describes his cause of action as "US DOL Collusion with and or Conspiring Knowingly or unknowingly with a RICO union, TCIU." (See Civil Cover Sheet). Plaintiff indicates that the "main thrust" of his complaint is that "the US DOL OLMS be held liable for the misery caused this plaintiff, his family and membership across this country, due to the DOL arrogance in Washington, D.C., an unethical discretion and abuse of Agency authority utilizing caprice and capricious arbitrary interpretations of law thereof." (Pl.'s Amend. Compl. at 6). Liberally construed, the Court reads Plaintiff's complaint to allege the following claims:
1) that the TCIU Defendants slandered and defamed Plaintiff then they falsely accused him of misappropriating union funds;
2) that the TCIU unlawfully closed JPB 60 and merged it with JPB 200, thereby creating an "illegal trusteeship";
3) that the TCIU expelled Plaintiff after an illegal trial;
4) that the TCIU illegally refused to allow Plaintiff to run in a union election;
5) that Kraus, in-house counsel for the TCIU, committed fraud;
6) that the TCIU has committed violations of the civil Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.;
7) that a RICO conspiracy exists between the U.S. DOL and the TCIU, as evidenced by a settlement agreement they entered into;
8) that due to the alleged RICO conspiracy and collusive agreement between the U.S. DOL and the TCIU, the DOL failed to stop the TCIU from merging JPB's; and
9) that the U.S. DOL abused its discretion in finding that TCIU could disallow Plaintiff's candidacy in a 1997 union election.
The Federal Defendants and the TCIU Defendants have filed motions to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff has filed a motion for Judgment as a matter of law under Rule 50, or in the alternative, for summary judgment pursuant to Rule 56. Plaintiff has also filed a motion for joinder of involuntary plaintiffs. Standard of Review:
Plaintiff also submitted a response to "TCIU's motion for sanction's." However, the docket indicates that no such motion has been filed by the TCIU Defendants.
Rule 12(b)(6) addresses the failure to state a claim upon which relief may be granted. FED. R. Clv. P. 12(b)(6). A motion to dismiss may only be granted "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the burden of informing the court of the basis for his or her motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant must demonstrate either the absence of a genuine issue of fact or the absence of evidence supporting the nonmoving party's case. See id at 325, 106 S.Ct. at 2554.
The Court notes that Plaintiff has also filed a motion for judgment as a matter of law under Fed.R.Civ.P. 50, which governs judgments as a matter of law injury trials. However, that rule is inapplicable to this case, as there has been no jury trial.
Discussion
I. Claims Barred by Res JudicataThe TCIU Defendants contend that as most of Plaintiff's claims against them were heard and disposed of in the Maryland case, they are barred by the doctrine of res judicata. In his complaint, Plaintiff emphasized that the Fourth Circuit issued a "nonbinding, unpublished opinion" finding no error. ( Id.). Apparently, Plaintiff contends that the Fourth Circuit's decision affirming the Maryland district court's decision is not binding because it is unpublished. ( See Pl.'s Resp. to TCIU Defs.' Mot. to Dismiss at 12). Contrary to this contention, the Fourth Circuit allows unpublished opinions to be used for establishing res judicata. ( See 4th Cir. R. 36(c) providing that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case.)
"The doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the `parties or their privies from relitigating issues that were or could have been raised' in a prior action." Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995) (quoting Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981)). Res judicata has the following "four elements: 1) a final decision on the merits by a court of competent jurisdiction; 2) a subsequent action between the same parties or their privies; 3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and 4) an identity of the causes of action. Kane, 71 F.3d at 560 (citing Sanders Confectionary Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 480 (6th Cir. 1992). "It is well established that for res judicata purposes, summary judgment constitutes a final judgment on the merits." Cox v. Tennessee Valley Auth., 16 F.3d 1218, 1994 WL43433, 1 n. 1 (6th Cir. 1994). ( See also RESTATEMENT (SECOND) OF JUDGMENTS § 19, cmt. g).
The Court agrees that several of Plaintiff's claims against the TCIU Defendants are barred by the doctrine of res judicata. First, as a grant of summary judgment, Judge Chasanow's Opinion and Order of March 22, 1999, constitute a final judgment on the merits. Second, the Court finds that this case is a subsequent action between the same parties or their privies. In the Maryland case, Plaintiff named Scardelletti, Johnson and the TCIU as defendants. In this case, Plaintiff has again named Scardelletti, Johnson, and the TCIU as Defendants.
Third, several issues in this subsequent action were litigated in the prior action. The Maryland case considered and disposed of all of Plaintiff's claims, including the following: 1) that Scardellietti and Johnson slandered and defamed Plaintiff by accusing him of mismanagement and/or misappropriation of union funds; 2) that the TCIU violated its constitution and the LMRDA when it unlawfully closed JPB 60 and merged it with JPB 200, thereby creating an "illegal trusteeship"; 3) that the TCIU illegally refused to allow Plaintiff to run in a union election; and 4) that the TCIU expelled Plaintiff after an illegal trial. In this case, Plaintiff again asserts these same claims against the same TCIU Defendants.
The Court is also satisfied that the fourth and final element is satisfied. The fourth element, "identity of causes of action" refers to "an identity of the facts creating the right of action and of the evidence necessary to sustain each action." Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). All of the above referenced claims against the TCRJ Defendants in this action are based upon the same facts and evidence presented in the Maryland action. Therefore, these claims are identical, and all of the elements of res judicata are met. Accordingly, summary judgment is proper as to Plaintiff's claims against Scardelletti, Johnson and the TCIU that were considered and disposed of in the Maryland case.
II. Fraud Claim
Plaintiff has also named Mitchell M. Kraus, General Counsel for the TCIU as a Defendant in this case. Although he had not yet named Kraus as a party, Plaintiff alleged the following in his original complaint:
Kraus also committed "fraud" when he stated in a letter to DOL officers, "Thornton would not be eligible to hold union office anyway, because Thornton was "GUILTY" of misappropriation of union funds. . . . This was fraud by Kraus, and perjury to the US DOL Agency.
Plaintiff also neglected to name Kraus as a Defendant in his first amended complaint, filed on May 19, 2000. On May 23, 2000, Plaintiff filed a motion for joinder of persons needed for just adjudication. On May 30, 2000, this case was assigned to Magistrate Judge Thomas A. Carlson for all pretrial proceedings. On June 12, 2000, Magistrate Carlson ordered Plaintiff to prepare and file a second amended complaint, naming all Defendants and stating precisely his allegations against each Defendant. On June 21, 2000, Plaintiff filed his second amended complaint, in which he added Kraus as a Defendant, claiming as follows:
Defendant Mitchell Kraus, in-house attorney TCIU: Gross misconduct as attorney. Count 24 — Mitchell Kraus letter to Mr. Lary Yud US DOL, stating the TCIU would give DOL 30 more days before DOL went to District Court with my election complaint. This was so TCIU could have their ad hoc trial, which was retaliation and a method get rid of me, an honest union member. This was interference with a legal protest of elections and my rights to due process. Yud finally sided with Kraus and TCIU arbitrarily and capricious! Kraus was laying his foundation for fraud.
Count 25 — In communications with Yud, Mr. Kraus stated in writing, that "Thornton would not be eligible to hold office anyway, because he was " GUILTY" of misappropriating union funds and TCIU had never charged me of such a thing at the time Kraus stated this lie. Let Kraus prove his lie in this court or be held for perjury to a US Agency. US DOL nor the DOJ believed I misappropriated union funds!
(Pl.'s Mot. for Second Am. Compl. at 10-11).
Liberally construed, the Court reads Plaintiff's complaint to allege a claim for fraud. "The general rule is that to constitute an actionable fraud it must appear: 1) that defendant made a material misrepresentation; 2) that it was false; 3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion; 4) that he made it with the intention that it should be acted upon by plaintiff; 5) that plaintiff acted in reliance upon it; and 6) that he thereby suffered injury." Greening v. Litton Indus. Automation Sys., Inc., 53 F.3d 331, 1995 WL94743 (6th Cir. 1995) (citing Candler v. Heigho, 208 Mich. 115, 121 (1919)). In addition, Rule 9(b) of the Federal Rules of Civil Procedure requires that in all averments of fraud, the circumstances constituting the fraud shall be stated with particularity. The Court finds that Plaintiff failed to plead his fraud claim with particularity. Plaintiff did not allege sufficient facts to establish a fraud claim against Kraus, as he made no allegations as to the fourth and fifth elements of a fraud claim. Accordingly, this Court finds summary judgment is proper as to Plaintiff's fraud claim against Defendant Kraus.
III. RICO Claims
Plaintiff has also asserted claims under the civil Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. In asserting these claims, Plaintiff states:
Racketeering Influenced Corrupt Organization: These RICO laws were broken and are being broken by Scardelletti et. al. The US DOL OLMS has been informed and has made no recognizable effort to curtail the actions of Scaredelletti et al, specifically, a pattern of closing out and or mergers of autonomous clerks and Brotherhood Railway Carmen divisions autonomous Joint Protective Boards (JPB's). This is quite apparent with the closing of 22 out of 29 JPB's and the transferring of the JPB's funds to TCIU Treasury and "politically" friendly JPB's. . . This is a pattern.
(Pl.'s Compl. at 10). Plaintiff has also stated that "[t]his case is about violations of the RICO laws of this country . . . criminality has occurred on a pattern of illegally closing JPB's and locals as far back as 1984 by the defendants Scardelletti et. al." (Pl.'s Resp. to Fed. Defs.' Mot. to Dismiss at 4). In his complaint Plaintiff also states:
This complaint contains apparent collusion and a set up as apparent conspiracy (knowingly or unknowingly) by the US DOL OLMS in Washington, DC with an organization in which long standing act's are a pattern of RICO activity. This complaint is necessary in order to correct the malfeasance and resulting collusion between the United States Department of Labor and Transportation Communications International Union President Robert A. Scardelletti. This collusive venture was signed and made a record in the Philadelphia Eastern District Court in February, 1994. That cooperative act by the defendants and Scardelletti, was in the form of a settlement agreement between the two because of a case filed against Robert Reich, US DOL and about eight TCIU members for invasion of Scardelletti's privacy . . . That act of collusion in court records state that the US DOL will notify Scardelletti or his attorney, if anyone tries under FOIA to get copies of the investigative findings by US DOL against Scardelletti and his friends for embezzling huge amounts of union funds among other findings.
(Pl.'s Compl. at 2). Plaintiff also states:
As far as the law, and membership rights under the TCIU constitution, rights and autonomy does not exist when it comes to TCIU as far as US DOL is concerned. (They are under contract.)
The TCIU unilaterally came in and took control of JPB #60 and after that took control of 22 other JPB's in the carman div, BRCA. This has been reported to DOL and no apparent actions in favor of membership . . . This activity continues to this day and the US DOL is looking the other way. It can only be construed, DOL is under contract . . .
(Pl.'s First Am. Compl. at 4).
Thus, liberally construed, it appears Plaintiff contends that by "illegally" closing and merging JPB's the TCIU Defendants have engaged in a pattern of racketeering in violation of 18 U.S.C. § 1961, et seq. The Court also reads Plaintiff's complaint to allege that a RICO conspiracy exists between the U.S. Department of Labor and the TCIU, as evidenced by a "collusive" settlement agreement entered into by the parties. Plaintiff further claims that due to the alleged RICO conspiracy and collusive agreement, the U.S. DOL failed to stop the TCIU from merging JPB's.
In the Maryland case Plaintiff's claim that the TCIU violated LMRDA by merging JPB's was dismissed on summary judgment.
Apparently, in response to a request submitted under the Freedom of Information Act ("FOIA"), the the DOL erroneously released portions of an investigative report concerning allegations against Scardelletti and other TCIU officers. As a result, the TCIU filed suit against the DOL, alleging that the DOL unlawfully disclosed confidential investigatory materials. The TCIU and the DOL later resolved the matter by agreeing to a Stipulation for Compromise Settlement. (See TCIU Defs.' Mot. to Dismiss, Ex. 3). In that settlement the DOL agreed to place a copy of the settlement agreement with the investigative report, and to notify Scardelletti or his counsel of any future FOIA request for the investigative report. Id.
After careful review of the pleadings, the Court concludes that Plaintiff has failed to sufficiently state a claim under RICO. 18 U.S.C. § 1962(c) provides in relevant part: "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1961 (5) provides that a "pattern of "racketeering activity" requires at least two acts of racketeering activity. 18 U.S.C. § 1961 (1) then defines the various acts that constitute "racketeering activity."
In order to establish "racketeering activity" Plaintiff must allege a predicate act under 18 U.S.C. § 1961 (1). Advocacy Org. for Providers Patients v. Auto Club Ins. Ass'n, 176 F.3d 315, 322 (6th Cir. 1999). Plaintiff has failed to allege that either the DOL or the TCIU Defendants have committed any of the acts that constitute "racketeering activity" under 18 U.S.C. § 1961 (1). As Plaintiff has failed to sufficiently allege predicate acts in support of his RICO claims against the TCIU Defendants and against the Federal Defendants, summary judgment is warranted as to these claims.
The Court notes that as Plaintiff's RICO claims against the TCIU Defendants could have been raised in the Maryland case, summary judgment as to these claims is also proper on the alternative basis that these claims are barred by the doctrine of res judicata.
III. DOL's Decision Regarding 1997 Election
In his final claim, Plaintiff alleges that the U.S. DOL abused its discretion in finding that the TCIU had not violated the LMRDA when it determined that Plaintiff was ineligible to run in a 1997 union election. Following the merger of JPB 60 with JPB 200, eliminating Plaintiff's position as General Chairman of JPB 60, Plaintiff decided to seek election to the position of General Chairman of JPB 200 at the next scheduled election. However, the TCIU determined that Plaintiff was not eligible to run in the election and notified him of that decision.
Plaintiff then filed a complaint with the Secretary of Labor ("the Secretary"), alleging that violations of the LMRDA occurred in connection with the 1997 election of union officers. More specifically, Plaintiff alleged he was improperly disqualified from running for union office. The Secretary investigated the complaint and determined that the investigation failed to disclose any violation of the LMRDA. The Secretary issued a statement of reasons explaining the basis for the decision that legal action was not warranted, and the essential facts upon which that decision was based. ( See Fed. Defs.' Mot. to Dismiss, Ex. 2). Plaintiff now claims that the U.S. DOL abused its discretion by its arbitrary and capricious decision that the TCIU had not violated the LMRDA when they determined Plaintiff was ineligible to run in the 1997 election.
Under Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), this Court's review of the Secretary of Labor's decision not to file suit is generally "confined to examination of the `reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." Id at 572. If the court finds that there is a "rational and defensible basis [stated in the reasons statement] for [the Secretary's] determination, then that should be an end of this matter, for it is not the function of the Court to determine whether or not the case should be brought or what its outcome would be." Id at 573.
Accordingly, this Court must examine the Secretary's reasons statement, and decide if there is a rational and defensible basis in that statement for the Secretary's determination that the TCIU did not violate the LMRDA when it determined Plaintiff was ineligible to run in the 1997 election. The Statement of Reasons noted that the TCIU Constitution provides:
Section 6(a) No member shall be eligible for nomination and election as delegate or alternate unless he has been a member of the Union in good standing continuously for one year immediately preceding the date of his nomination. In addition, he must have met his full dues obligation for the preceding year and must continue to do so for his term of office. He must actually be employed (40) hours or more in each calendar month, in railroad, steamship, airline, express or other service, on a position that is fully covered by the working rules Agreement, or exclusively employed by the Grand Lodge or any subordinate unit of the Union, and must have been so employed continuously for at least ninety (90) days immediately prior to the date of his nomination . . . (Employed continuously shall be construed as: (i) the receiving of any compensation or payment in lieu thereof from an employer subject to TCU agreements, the Grand Lodge or any subordinate unit of the Union, (ii) receiving benefits based on such service, (iii) a person who has a discharge grievance pending, (iv) temporary sickness or layoff not exceeding thirty (30) days for which compensation or benefits are not paid, (v) not working because of a bona fide labor dispute, (vi) not working because of navigation conditions or seasonal operations.)
(Fed. Defs.' Mot. to Dismiss, Ex. 2 at 1). The Statement of Reasons. then noted that the investigation revealed that in January of 1996, Plaintiff's employer, Grand Trunk Western Railroad, negotiated an employee protective agreement with the TCIU as a consequence of its ceasing of some operations in Port Huron. Employees affected by this action were granted certain options. As one of the affected employees, Plaintiff chose an option that provided as follows:
Without being subject to recall employee may elect to be compensated extra board pay for: (1) a period of up to five years at which time the employee will forfeit all seniority; (2) the time the employee is first eligible for an unreduced annuity under the Railroad Retirement Act or (3) until deceased, whichever occurs first. If retirement age is extended through legislative action the protective period shall extend commensurately so as to attain an unreduced annuity. Employee will not be subject to future wage adjustments but will be eligible for earned Railroad Retirement Benefits . . . Employee will be subject to union shop and dues check-off agreement.
(Fed. Defs.' Mot. to Dismiss, Ex. 2 at 2).
The TCIU found that Plaintiff did not meet the eligibility requirements of section 6 of its constitution because, pursuant to the option he selected, Plaintiff was no longer "actually" employed within the meaning of the section. Plaintiff argued that under the option he chose he was "continuously employed."
The Secretary found that Plaintiff's eligibility turned on the interpretation of the term "actually employed" in section 6 of the TCIU constitution. The Secretary stated:
It is not clear from the language of the provision that actually employed and continuously employed are synonymous terms as argued by the complainant. Pursuant to the language of the section one must be both actually employed and so employed continuously. Such language leaves room for an interpretation of actual employment that is not the equivalent of continuous employment.
(Fed. Defs.' Mot. to Dismiss, Ex. 2 at 2). The Secretary then followed the department's interpretive regulations, which provide that the interpretation consistently placed on a union's constitution by the union will be accepted unless the interpretation is clearly unreasonable. The Secretary determined that the evidence presented by the TCIU established that the TCIU had acted uniformly in interpreting and applying its eligibility criteria. The Secretary did recognize that the language in section 6 may be susceptible to more than one interpretation. However, the Secretary found that section 6 could be read as contemplating an employer/employee relationship subject to a working rules agreement, which is in effect a "working at the trade requirement," found in many union constitutions. Accordingly, the Secretary found no violation of the act as she did not find that the union's interpretation was unreasonable or made in bad faith.
This Court is satisfied that Secretary's statement of reasons adequately explains the Secretary's decision that legal action was not warranted. As the Secretary's decision is not "so irrational as to constitute the decision arbitrary and capricious," summary judgment is proper as to Plaintiff's final claim against the Federal Defendants.
Conclusion
For the reasons set forth above, the motions for summary judgment filed by the TCIU Defendants and the Federal Defendants shall be granted. Plaintiff's motions for summary judgment and judgment as a matter of law shall be denied. In addition, Plaintiff's motion for joinder of involuntary plaintiffs shall be denied as moot.
An Order consistent with this Opinion shall issue forthwith.