           United States Court of Appeals
                       For the First Circuit

No. 17-1666

              R. ALEXANDER ACOSTA, Secretary of Labor,
                 United States Department of Labor,

                       Plaintiff, Appellant,

                                 v.

                    LOCAL UNION 26, UNITE HERE,

                        Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. George A. O’Toole, Jr., U.S. District Judge]


                               Before

                      Thompson, Circuit Judge,
                    Souter, Associate Justice,
                     and Selya, Circuit Judge.


     Casen B. Ross, Attorney, Appellate Staff, Civil Division,
with whom Chad A. Readler, Acting Assistant Attorney General,
Andrew E. Lelling, United States Attorney, William D. Weinreb,
Acting United States Attorney, Mark B. Stern, Attorney,
Appellate Staff, Civil Division, Nicholas C. Geale, Acting
Solicitor of Labor, Beverly Dankowitz, Associate Solicitor,
Civil Rights and Labor-Management Division, Clinton Wolcott,
Counsel for Labor-Management Programs, and Anna Laura Bennett,
Attorney, Department of Labor, were on brief, for appellant.

     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     Richard G. McCracken, with whom Paul L. More and McCracken,
Stemerman & Holsberry LLP, were on brief, for appellee.


                         July 11, 2018
              SOUTER,        Associate            Justice.            In    this    suit       brought

against defendant Local Union 26, UNITE HERE, the Secretary of

Labor    claims       that       the    union       violated          §    104     of    the    Labor-

Management Reporting and Disclosure Act of 1959 (the "LMRDA")

when it refused to allow one of its members to take notes while

inspecting its collective bargaining agreements ("CBAs") with

other employers.             The district court held that the member's

statutory right to "inspect" the agreements did not encompass a

right to take notes while doing so.                        We affirm.

              The     material         facts       may     be    stated          briefly.           Dimie

Poweigha is a member of Local 26.                         The union has negotiated more

than 40 CBAs, including one with Poweigha's employer.                                         Poweigha

was dissatisfied with the administration of Local 26, and asked

the   union      to      permit        her    to    review        37       CBAs    Local       26    had

negotiated with employers other than her own.                                    Eventually, once

the Secretary of Labor got involved, the union offered Poweigha

opportunities for this purpose, but said that it would not allow

her to take notes on the CBAs during her inspections.                                         When the

Secretary learned of the union's position, he filed this suit,

contending that the limitation on note-taking violated § 104 of

the     LMRDA,      29    U.S.C.        §     414,        in    particular,             the    union’s

obligation       under       §    104        to    make        such       CBAs    "available         for




                                                  - 3 -
inspection by any member or by any employee whose rights are

affected by such agreement[s]."1

          The parties filed dueling motions for judgment on the

pleadings, and the district court granted judgment for Local 26

on the issue before us.     We review a district court's judgment

on the pleadings de novo.    See Rezende v. Ocwen Loan Servicing,

LLC, 869 F.3d 40, 42 (1st. Cir. 2017).

          Section 104 reads, in relevant part, as follows:

     It shall be the duty of the secretary or corresponding
     principal officer of each labor organization, in the case
     of a local labor organization, to forward a copy of each
     collective   bargaining   agreement  made  by   such   labor
     organization with any employer to any employee who requests
     such a copy and whose rights as such employee are directly
     affected by such agreement, and in the case of a labor
     organization other than a local labor organization, to
     forward a copy of any such agreement to each constituent
     unit which has members directly affected by such agreement;
     and such officer shall maintain at the principal office of
     the labor organization of which he is an officer copies of
     any such agreement made or received by such labor
     organization,   which   copies   shall  be   available   for
     inspection by any member or by any employee whose rights
     are affected by such agreement.

29 U.S.C. § 414 (emphasis added).2

     1 Though the Secretary has previously taken this position in
litigation,   the  Labor   Department  has   not   promulgated  a
regulation addressing the scope of § 104’s inspection right.
     2 Before the district court, Local 26 contended that a union
member possesses no right even to inspect a CBA under § 104
unless that member's rights are "affected by such agreement."
29 U.S.C. § 414.     The district court rejected that argument,
holding that the statutory phrase "whose rights are affected by
such agreement" modifies "any employee," not "any member." The
rule of the last antecedent, "according to which a limiting
clause or phrase . . . should ordinarily be read as modifying
                              - 4 -
                  In   accord         with   standard         definition         and     common

understanding,            an   "inspection"       is    the    "[a]ct     or     process     of

inspecting," Webster's New International Dictionary 1286 (2d ed.

1957), and to "inspect" does not mean to take notes, but rather

"[t]o look upon; to view closely and critically, esp. so as to

ascertain          quality      or     state,     to    detect         errors,      etc.;    to

scrutinize," id.               Taking the plain meaning of the word as its

statutory meaning is buttressed by two features of the LMRDA

that       convince    us      that    Congress       did   not    intend     the      relevant

clause       to    give     union      members    a    right      to   take    notes      while

inspecting other employers' CBAs.3

                  First, the LMRDA uses the term "inspect" elsewhere,

and the drafting and legislative history of that neighboring

provision makes clear that Congress did not intend the term to

include a right to take notes.                        Section 401(c) of the LMRDA,

enacted at the same time as § 104, provides that:

       Every bona fide candidate shall have the right, once within
       30 days prior to an election of a labor organization in


only the noun or phrase that it immediately follows," supports
the district court's construction. Barnhart v. Thomas, 540 U.S.
20, 26 (2003).    But because the union does not reprise this
particular argument on appeal, we need not resolve the issue
conclusively. Instead, we may assume that Poweigha had a right
to inspect the CBAs in issue.
       3
       The Secretary requests "some measure of deference" if we
find the scope of the inspection right to be unclear.    Because
we do not, we have no occasion to grant him any.
                                             - 5 -
        which he is a candidate, to inspect a list containing the
        names and last known addresses of all members of the labor
        organization who are subject to a collective bargaining
        agreement requiring membership therein as a condition of
        employment, which list shall be maintained and kept at the
        principal office of such labor organization by a designated
        official thereof.

29 U.S.C. § 481(c) (emphasis added).

             Critically, earlier drafts of this provision provided

candidates       not    merely     with     a    right    to    "inspect"       membership

lists, but with a right to "inspect and copy" such lists.                                   See

H.R. 8400, 86th Cong. § 401(b) (1959).                      But Congress dropped the

words "and copy" from the final version of the LMRDA.

             "Few      principles      of       statutory      construction         are   more

compelling       than        the    proposition       that       Congress       does        not

intend sub silentio to             enact     statutory       language        that    it     has

earlier    discarded         in    favor    of    other     language."          I.N.S.       v.

Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (internal quotation

marks     omitted).          And    the     legislative        history       confirms       the

application of this common-sense principle here.                             See H.R. Rep.

No. 86-1147, at 34 (1959) (stating that the words "and copy"

were eliminated to "deny candidates the right to copy membership

lists");    see     also     Garcia    v.    United      States,       469    U.S.    70,    76

(1984)    ("In    surveying        legislative       history      we    have    repeatedly

stated     that        the     authoritative         source        for       finding        the

Legislature's intent lies in the Committee Reports on the bill,

which represent the considered and collective understanding of
                                            - 6 -
those       Congressmen    involved       in   drafting       and    studying    proposed

legislation."          (internal         quotation          marks      and      alteration

omitted)).4           In   other    words,      under       § 401(c)    of    the   LMRDA,

Congress         plainly   did     not   intend       the    right     to    "inspect"    to

include the right to copy.                 Not surprisingly, the Secretary has

issued       a    regulation     reaching      this    same    conclusion.          See   29

C.F.R. § 452.71 (the right to inspect a membership list under

§ 401(c) "does not include the right to copy the [membership]

list").          And no distinction can be drawn from the difference

between "copying" then and "note-taking" now, because in 1959,

the year of enactment, a right to "copy" would, as a practical

matter, have been exercised by handwritten note-taking.                             "Office

copying as we know it didn’t arrive until 1960."                              David Owen,

Copies in Seconds 10 (2004).

                 If the right to "inspect" in § 401(c) of the LMRDA

does not provide a right to take notes, it would be at odds with

another well-established canon of statutory interpretation to

read "inspect" in § 104 of the same Act to confer that same

right.           That canon teaches that "identical words and phrases

within       the    same   statute       should    normally      be     given    the   same

meaning."          Powerex Corp. v. Reliant Energy Servs., Inc., 551

        4
       The Secretary concedes the point.  See Reply Brief for
Appellant 2 ("The legislative history of section 401(c)
indicates that it does not include a right to copy membership
lists . . . .").
                                           - 7 -
U.S. 224, 232 (2007).            After all, it would assume a certain

whimsy on the part of Congress to conclude that it used the term

"inspect"     in   two   different   senses   within      the    same   statute.5

Though the rule, like most, admits of exceptions, there is no

apparent reason to question its applicability here.6

              The second feature of the statute that persuades us of

our reading is that when Congress wished to provide individuals

with a right to a "copy" of a CBA, it said so expressly.                      In

particular, § 104 entitles "any employee . . . whose rights as

such employee are directly affected by [a CBA]" to a copy of

that CBA.      29 U.S.C. § 414.      If Congress had intended to entitle

union members to copies of every CBA a union negotiates, it

needed only to say so.          Cf. Knight v. C.I.R., 552 U.S. 181, 188

(2008) ("If Congress had intended the Court of Appeals' reading,

it   easily    could     have   replaced   'would'   in    the    statute   with

'could,' and presumably would have.            The fact that it did not

adopt this readily available and apparent alternative strongly

      5The Secretary observes that §§ 104 and 401(c) were enacted
in separate Titles of the LMRDA. But the canon is not limited
to terms enacted in the same statutory title.        See Antonin
Scalia & Bryan A. Garner, Reading Law 172 ("The presumption of
consistent usage applies also when different sections of an act
or code are at issue.").    The Secretary cites no authority to
the contrary.
      6The Secretary tries to avoid application of this canon by
suggesting that membership lists are more sensitive than CBAs
and therefore entitled to greater protection.          But these
concerns are not apparent on the face of the statute, and the
Secretary cites no legislative history in support of the point.
                                     - 8 -
supports    rejecting        the   Court      of        Appeals'       reading.").          But

Congress did not say so.                To be sure, what Poweigha claims is

not a right to obtain a copy but, in effect, a right to make one

herself.        We doubt, however, that the distinction matters.                             It

would be passing strange, if not downright mean, for Congress to

have    intended       to   withhold    a    right       to    receive     a    copy,    while

simultaneously          conferring       a    right           on     members     to     create

handwritten copies themselves.


             The    Secretary's        remaining         counterarguments          need     not

detain     us    long.         First,       the     Secretary          asserts    that      the

inspection right would "be nullified without the ability to take

notes."     See Reply Brief for Appellant 5.                         But as the Secretary

himself acknowledges, "the purpose behind section 104" is to

"give[] union members . . . 'ideas'" that they may "put forward

to   the   union’s      negotiators."             Id.    at     6.      One    need   not    be

permitted to take notes in real time to come away with ideas

from the review of a CBA; a working memory will do.                              Second, the

Secretary suggests that his interpretation is the better one

because    it     is    more    supportive         of     the      LMRDA’s      purposes     of

protecting       union       members        and     promoting          democratic        self-

government       within      unions.          But        Congress        was     undoubtedly

balancing competing interests in enacting the LMRDA, and, in any

case,      "no         legislation          pursues its              purposes      at       all

costs."    Rodriguez v. United States, 480 U.S. 522, 525–26 (1987)

                                            - 9 -
(per curiam); cf. Calhoon v. Harvey, 379 U.S. 134, 140 (1964)

(noting,      in    construing    the    LMRDA,     "the       general      congressional

policy to allow unions great latitude in resolving their own

internal      controversies").            Third,    the        Secretary          points    to

another provision of the LMRDA, permitting members "for just

cause to examine any books, records, and accounts necessary to

verify"       the    union's     annual     financial          reports,       29        U.S.C.

§ 431(c), which some courts have interpreted to permit note-

taking, see, e.g., Conley v. United Steelworkers of Am., Local

Union No. 1014, 549 F.2d 1122, 1123-24 (7th Cir. 1977).                                Whether

that interpretation is correct or not, the meaning of the word

"examine" in a separate provision of the LMRDA has little, if

any, bearing on the meaning of the word "inspection" in § 104 of

the Act.       That is particularly apparent in light of the "just

cause"     requirement         that     "protect[s]        .     .     .    unions         from

harassment" when it comes to the exercise of the examination

right,    a   protection       that   unions   do    not       enjoy       when    a    member

wishes to inspect a union's CBAs with other employers.                                 Conley,

549 F.2d at 1124.

              For these reasons, we hold that, in conferring a right

on union members to "inspect[]" CBAs under § 104 of the LMRDA,

Congress did not also invest the members with a right to take

notes.     Unions are free to permit note-taking, of course, or to




                                         - 10 -
provide copies of such CBAs.   But Congress has not commanded

them to do so.


Affirmed.




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