                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
DAVID W. NOBLE, JR.,             )
                                 )
               Plaintiff,        )
                                )
          v.                     ) Civil Action No. 94-302 (EGS)
                                 )
VINCENT R. SOMBROTTO, et al.,   )
                                 )
               Defendants.       )
________________________________)

               SUPPLEMENTAL FINDINGS AND CONCLUSIONS

    David Noble, a member of the National Association of Letter

Carriers (“NALC”), brought this lawsuit in 1994 against Vincent

Sombrotto, the NALC’s then-president, as well as nine other

officers of the NALC, an officer of the union’s Mutual Benefit

Association, and an officer of the union’s Health Benefit Plan.1

Mr. Noble accused the individual defendants of violating their

fiduciary duties to the NALC under Section 501 of the Labor-

Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. §

401, et seq., by accepting: (1) an in-town allowance of $500 per

month to cover costs incurred in the performance of their




1 Over the course of this litigation, five of the individual
defendants—Vincent Sombrotto, Francis Conners, Walter Couillard,
George Davis, and Richard O’Connell—have died. As to each
individual, the defendants filed a suggestion of death pursuant
to Federal Rule of Civil Procedure 25(a)(1) and no motion to
substitute was filed. The Court accordingly dismissed those
individuals from this case. See Order, ECF No. 173; Minute Order
of August 30, 2013; Minute Order of December 2, 2013.
duties; (2) reimbursement for the employee portion of their

Federal Insurance Contributions Act taxes; and (3) per-diem

payments during the union’s national conventions. Mr. Noble also

alleged that the defendants violated their obligations under

Section 201 of the LMRDA by refusing his requests to inspect

certain documents in order to verify the contents of financial

reports that the NALC filed with the Department of Labor.

  On April 28, 2003, this Court denied the parties’ cross

motions for summary judgment. See Noble v. Sombrotto (“Noble

I”), 260 F. Supp. 2d 132 (D.D.C. 2003). The Court subsequently

held a trial and received proposed findings of fact and

conclusions of law. On September 30, 2005, the Court adopted the

defendants’ proposed findings, and dismissed Mr. Noble’s claims.

See Order, ECF No. 239. The Court denied Mr. Noble’s motion to

reconsider on September 20, 2006. See Noble v. Sombrotto (“Noble

II”), No. 94-302, 2006 WL 2708796 (D.D.C. Sept. 20, 2006).

  Mr. Noble appealed to the D.C. Circuit, which affirmed in part

and reversed in part. See Noble v. Sombrotto (“Noble III”), 525

F.3d 1230 (D.C. Cir. 2008). The D.C. Circuit affirmed this

Court’s dismissal of Mr. Noble’s Section 501 claims with respect

to the tax reimbursements and per-diem payments. Id. at 1237–39.

As for the in-town allowances, the Circuit disagreed with this

Court’s finding that Mr. Noble had failed to produce evidence

that the allowances had been used for personal gain. See id. at


                                2
1236. The Circuit also vacated this Court’s conclusion that Mr.

Noble’s Section 201 claim was moot. Id. at 1241–42.

  After the case was remanded, the Court held a status hearing,

decided to proceed with the existing record, and directed the

parties to submit proposed supplemental findings of fact and

conclusions of law, containing citation to evidence in the

record, and addressing the issues before the Court on remand.

See Minute Order of January 7, 2010. The parties have now

submitted proposed supplemental findings of fact and conclusions

of law. See Pl.’s Suppl. Proposals (“Pl.’s Proposals”), ECF No.

270; Defs.’ Suppl. Proposals (“Defs.’ Proposals”), ECF No. 272;

Individual Defs.’ Additional Suppl. Proposals (“Individual

Defs.’ Proposals”), ECF No. 274; Pls.’ Objs. to Defs.’ Suppl.

Proposals (“Pl.’s Objs.”), ECF No. 284.

  The Court subsequently “determined that the trial exhibits

that were introduced during the April 2004 bench trial are not

available on the docket in this case and that any hard copies

were returned to the parties sometime after the trial

concluded.” Minute Order of December 2, 2013. For that reason,

the Court directed the parties to file copies of their trial

exhibits “by no later than December 16, 2013.” Id. The

defendants filed their exhibits on December 16, 2013, but Mr.

Noble repeatedly requested an extension of this deadline. The

defendants did not oppose his first three extension requests,


                                3
but noted that they might oppose future requests. See Defs.’

Response to Third Extension Mot., ECF No. 292 at 1.

  On January 20, 2014, Mr. Noble made a fourth request,

asserting that “I located all of my trial exhibits except six by

January 9, 2014.” Fourth Extension Mot., ECF No. 293 at 2. The

remaining six exhibits, he said, were lost by him, and located

and provided by the NALC, but without sufficient time for Mr.

Noble to review them for accuracy. See id. at 2. The defendants

proposed a shorter extension, Opp. to Fourth Extension Mot., ECF

No. 294 at 2, but the Court granted Mr. Noble the full extension

to February 3, 2014, stating that “[f]urther requests for

extensions of time will be viewed with disfavor.” Minute Order

of January 24, 2014.

  Mr. Noble nonetheless sought a fifth extension of the deadline

for filing his exhibits, even though he had found “all of my

trial exhibits except six by January 9, 2014” and obtained the

remaining six by January 21, 2014. See Fifth Extension Mot., ECF

No. 295 at 1–2. He claimed that on January 28, 2014, he

discovered that one of the exhibits provided by the NALC was

incomplete, and that he did not receive a complete copy of that

exhibit until January 31, 2014. Id. at 2. Mr. Noble did not

explain how this prevented him from filing copies of the other

exhibits, which he had located by January 9, 2014. The Court

granted Mr. Noble’s motion in part, directing him to file by no


                                4
later than February 5, 2014 copies of all of the trial exhibits

except for Exhibit 1—the one he received on January 31, 2014.

See Minute Order of February 4, 2014. The Court gave Mr. Noble

until February 17, 2014 to file Exhibit 1. See id. On February

5, 2014, Mr. Noble filed only a small number of his trial

exhibits. See Exhibits, ECF No. 296 (Plaintiff’s Exhibit Nos. 2–

8, 13–14, 31, 38, 75, 76, 79, 89, and 91). He filed Exhibit 1 on

February 17, 2014. See Exhibit One, ECF No. 297.

  Notwithstanding Mr. Noble’s failure to comply with Court-

imposed deadlines, the Court granted Mr. Noble another chance in

July 2014, directing him to file a complete set of his trial

exhibits by August 18, 2014. See Minute Order of July 14, 2014.

Mr. Noble again failed to comply. On August 18, 2014, he filed a

motion “to vacate the July 14, 2014 Minute Order,” which

requested an additional one-month extension and asked that the

Court stay the case pending an election for the office of NALC

President. See Noble Declaration, ECF No. 298-1 at 1–2. The

Court denied both requests. See Minute Order of October 9, 2014.

  The Court therefore relies on the existing record, including

documents in the summary-judgment record that correspond to some

of Mr. Noble’s trial exhibits. Upon consideration of that

record, as well as the parties’ proposed supplemental findings

and the applicable law, the Court finds that (1) the Mutual

Benefit Association and the Health Benefit Plan are sufficiently


                                5
separate from the NALC that defendants Dunn and Vincenzi are

outside the scope of Section 501; (2) the remaining individual

defendants reasonably interpreted the NALC Constitution to

permit the in-town allowances and they used the money for union

business; and (3) the existing record is insufficient to resolve

Mr. Noble’s Section 201 claim. Accordingly, the Court enters

judgment in favor of the defendants on Mr. Noble’s Section 501

claims, and will direct the filing of additional pleadings

regarding his Section 201 claim.

I.        Findings of Fact

     The NALC is governed by a Constitution, which creates two

bodies for the governance of the union. See Noble III, 525 F.3d

at 1233. The national convention of union members meets

biennially, is empowered to amend the Constitution, and is the

union’s supreme body. Id. The Executive Council, which is made

up of twenty-eight officers, ten of whom are resident officers

who work in Washington, D.C., is charged with running the

union’s day-to-day operations. Id.

     A.     History of the In-Town Allowances.

     The Constitution charges the Executive Council to “‘act

between Conventions on all matters related to the welfare of the

Union not specifically prohibited by the membership,’” and to

“‘authorize and/or ratify the payment of salaries, wages,

expenses, allowances, and other disbursements which it deems


                                    6
necessary and appropriate to the purpose and functioning of this

Union, other than provided for.’” Id. (quoting NALC Const. art.

9, § 11(e) (1992)). Pursuant to these powers, the Executive

Council has, since the 1950s, authorized the payment of a $500

per month in-town allowance to its resident officers. Id. at

1234. The Executive Council reauthorized the same payments in

resolutions passed in 1975, 1977, and 1980. Id. at 1235.

  The in-town allowances are intended “to cover the expenses

NALC officers residing in Washington, D.C. incurred in the

performance of their official duties.” Id. These expenses

include costs for “transportation, entertainment, and other

expenses for the benefit of the Association in the Washington,

D.C., Metropolitan Area,” which were estimated to “approximate,

on the average” $500 per month. 1980 Resolution, Defs.’ Ex. 2,

ECF No. 288-3 at 5; see also Noble II, 2006 WL 2708796, at *2.

The NALC President was authorized to receive an in-town

allowance in excess of $500 per month for “all official

expenditures made by him, both in town and out of town.” Noble

III, 525 F.3d at 1235. The $500 per month limit on in-town

expenditures has remained constant since the 1950s. Id. at 1234.

  An officer was required to request the in-town allowance each

month the officer wished to receive it, and any officer seeking

reimbursement for over $500 was required to provide a receipt

and the express authorization of the NALC President to incur the


                                7
extra expense. See Noble II, 2006 WL 2708796, at *2; 1980

Resolution, Defs.’ Ex. 2, ECF No. 288-3 at 6. Officers were not

required to submit receipts to receive an in-town allowance of

up to $500 per month; rather, the Resolution stated,

“[a]pplication for allowances pursuant to this Resolution

constitute[s] a representation by the applying officer or

employee that the sum requested was expended on behalf of the

Association in the course of performance of official duties.”

1980 Resolution, Defs.’ Ex. 2, ECF No. 288-3 at 5; see also

Noble III, 525 F.3d at 1235; Transcript of April 13, 2004 Bench

Trial, ECF No. 224 at 98:22–24 (Mr. Sombrotto: “It’s assumed

that you’re using it for the Union activities. That’s what the

resolution is there for.”). Officers were, however, required to

“personally keep their receipts for a ‘reasonable period’ of up

to five years.” Noble III, 525 F.3d at 1235 (quoting 1980

Resolution, Defs.’ Ex. 2, ECF No. 288-3 at 5).

  B.    Evidence of How the In-Town Allowances Were Used.

  NALC officers testified that no officer would have incurred

less than $500 per month in expenses. President Sombrotto

testified that “I don’t know any officer” who claimed the $500

each month despite not having incurred at least $500 in

expenses. Transcript of April 13, 2004 Bench Trial, ECF No. 224

at 100:14-19. Indeed, testimony of NALC officials indicated that

it would be difficult for an officer to spend less than $500 in


                                8
a given month. President Young stated: “[s]ince I’ve been here

in 1990, I’m not aware of a single resident officer that doesn’t

spend in excess of $500 a month for all these various things

we’re talking about.” Id. at 176:24-177:12.

  It nonetheless appears that NALC officers understood the

resolution to permit a hypothetical officer who incurred less

than $500 per month in expenses to claim the full $500

allowance. For example, when asked whether “Chuck Overby [who]

suffered a stroke and was in the hospital for several months”

could “draw[] $500 a month in in-town expenses,” Mr. Sombrotto

answered “Yeah. If he applied for it, he received it. Whether he

did it or not . . . . I can’t testify to that. But if he had, he

would have received it.” Id. at 103:21-104:1; see also id. at

96:14-19 (Mr. Sombrotto agreed that an officer could claim $500

without incurring as much in expenses, “[b]ut if you do and you

don’t receipt it, then you have to pay taxes”); id. at 179:5-10

(when asked whether “a hypothetical officer spent $100 on in-

town expenses” was “entitled to $500 for the month,

notwithstanding the fact that she or he spent only $100,” Mr.

Young responded “you get $500”). These general assertions about

the in-town allowances are supplemented by additional testimony




                                9
from Presidents Sombrotto and Young, as well as receipts that

were submitted by NALC officials.2

    President William Young submitted receipts for nearly all of

the expenses he incurred between December 1990 and July 1993.

Defs. Ex. 8, ECF No. 288-9 at A-12 (Mr. Young incurred $16,358

in expenses during this period, received $16,000 in in-town

expense allowances, and submitted receipts for $15,798 of those

expenditures); Transcript of April 13, 2004 Bench Trial, ECF No.

224 at 177:16-17 (President Young: “My initial history in the

Union from 1990 until about 1994 or 5 was to receipt

everything”); Young Receipts, Pl.’s Ex. 7, ECF No. 296-6. Mr.

Young stopped submitting receipts “because it wasn’t worth the

aggravation.” Id. at 177:17-18. He explained:

      So I just decided [for] my own benefit that I wasn’t
      going to receipt much. And now I’m somewhere in between
      the two. Every now and then I’ll throw in a receipt if
      it’s easy, especially the ones where I use credit cards.

2 Mr. Noble objects generally to the Court’s consideration of the
trial testimony of Mr. Sombrotto and Mr. Young. See Pl.’s Objs.
at 2–3. According to plaintiff, “[t]o the extent that they
testified about what they were told by INDs other than
themselves[,] their testimony was hearsay,” and “[w]hen they
testified about themselves[,] their testimony was wholly
conclusory.” Id. The Court largely relies on testimony by Mr.
Sombrotto and Mr. Young about their own practices. Mr. Noble
does not explain why this evidence is so conclusory that the
Court cannot consider it. See id. To the extent that Mr. Noble
intended to object to the Court’s consideration of statements
regarding Mr. Sombrotto’s and Mr. Young’s perceptions of other
individual’s practices, the testimony relied upon by the Court
relates to their own understanding, not to what any other
officer told them. Mr. Noble does not explain why he believes
this testimony is hearsay or conclusory.


                                 10
     But if I just pay cash money, I’m not going to receipt
     it because it isn’t worth the hassle in the long run.

Id. at 177:24-178:4.

  Mr. Young’s receipts reflect, for example, expenditures on

meals with visiting union officials to discuss a potential

“prescription co-pay that could benefit [the] members,” id. at

164:18-165:2, Christmas gifts to union secretaries, drivers, and

cooks, and expenses for mailing Christmas cards to union

officials. Id. at 165:3-166:3; see also Young Receipts, Pl.’s

Ex. 7, ECF No. 296-6. Ultimately, Mr. Young used the in-town

allowance “for any legitimate expenses that I incurred while in-

town not on an assignment from the president.” Transcript of

April 13, 2004 Bench Trial, ECF No. 224 at 166:6-20.

  President Sombrotto kept some receipts during the course of

his tenure as an NALC officer, ranging from some months in which

he submitted no receipts, to others in which he submitted over

$100 worth of receipts. See Sombrotto Receipts, Pl.’s Ex. 1, ECF

No. 297. Many of the receipts were for restaurants in

Washington, D.C., and President Sombrotto testified that these

expenses were often incurred while having dinner with Richie

O’Connell, a union officer. See id. at 112:8-115:13.

  President Sombrotto testified that he regularly incurred

union-related expenses in excess of $500 per month. See

Transcript of April 13, 2004 Bench Trial, ECF No. 224 at 96:9–13



                               11
(Sombrotto: ”I spent more than $500 a month, I guarantee you

that.”); Sombrotto Decl. (“2001 Sombrotto Decl.”), Ex. to ECF

No. 128 ¶ 15; see also Young Decl. (“2001 Young Decl.”), Ex. to

ECF No. 128 ¶ 4.3 As President, he and President Young could have

claimed an amount in excess of $500, Noble II, 2006 WL 2708796,

at *3, but neither did. See Sombrotto Decl. ¶ 15; Young Decl. ¶

4. Instead, each paid for any additional expenses out of their

own pocket. See Sombrotto Decl. ¶ 15; Young Decl. ¶ 4.

    Defendant Lawrence Hutchins submitted receipts for a large

portion of his in-town expenses. See Investigative Committee

Report, Defs.’ Ex. 8, ECF No. 288-9 at A-10 (reflecting that Mr.

Hutchins provided receipts for approximately $12,700 of the




3 Mr. Noble objects to the Court’s consideration of the November
19, 2001 declarations of defendants Sombrotto, Young, Vincenzi,
and Dunn because “[e]ach of the declarations concludes with a
statement that ‘the foregoing is true and correct to the best of
my knowledge and belief.” Pl.’s Objs. at 2. Plaintiff argues
that, because the declarations do not make clear “which parts
were statements of knowledge and which were statements of
belief,” they are inadmissible under Federal Rule of Evidence
602 and 28 U.S.C. § 1746. These provisions, which seek to ensure
that evidence admitted—and specifically, evidence admitted via
affidavit—is within the personal knowledge of the declarant,
would require a sufficient foundation for a finding that the
matters discussed were within the declarants’ personal
knowledge. See, e.g., Lux v. Great N. Ins. Co., No. 12-cv-2632,
2013 WL 6076157, at *4 (D. Colo. Nov. 19, 2013) (“although the
qualifier ‘to the best of my knowledge’ is a limitation that
raises significant concern,” the Court relied on the challenged
affidavits where the declarant “adequately described facts which
show that he has personal knowledge”). The Court accordingly
relies on these declarations only for propositions that are
clearly supported by such a foundation.

                                 12
$18,000 he received between 1988 and 1990, and for nearly all of

the $16,000 he received between 1991 and July 1993); Hutchins

Receipts, ECF Nos. 296-7, 296-8, 296-9. Mr. Hutchins’s receipts

largely reflect expenditures at restaurants, as well as taxi and

parking charges. See Hutchins Receipts, ECF Nos. 296-7, 296-8,

296-9. Defendant Michael O’Connor appears only to have received

an in-town allowance during 1994, but the record contains

receipts for over $400 of the $500 he received each month. See

O’Connor Receipts, Pl.’s Ex. 6, ECF No. 296-5. Mr. O’Connor’s

receipts related to restaurants, taxis, and parking. See id.

    The record contains no evidence regarding defendants Souza and

Worsham, who appear never to have received an in-town allowance

because they did not reside in Washington, D.C. See 2001

Sombrotto Decl. ¶ 6 (noting that Souza and Worsham “while not

‘Resident Officers,’ were members of the Executive Council”).

The remaining individual defendants, Francis Connors, Richard

O’Connell, George Davis, and Walter Couillard have died during

the course of this litigation. See supra at 1 n.1.4




4 The record contains minimal evidence regarding these
defendants’ use of in-town expenses, with the exception of
Francis Conners. See Transcript of April 13, 2004 Bench Trial,
ECF No. 224 at 119:10-24; Frank Conners Receipts, Pl.’s Ex. 5,
ECF No. 296-4. President Young testified that Mr. Conners “made
the decision for his own reasons, and I don’t know what they
were, not to receipt anything. Just to go ahead and pay the
taxes rather than go through the hassle of writing on the
receipts who he’s entertaining, what it was about, where he was,


                                 13
  C.   The In-Town Allowances Provided by the Mutual Benefit
       Association and the Health Benefit Plan.

  The Mutual Benefit Association and the Health Benefit Plan are

“separate and distinct” from the NALC. See Noble II, 2006 WL

2708796, at *7; see also Noble III, 525 F.3d at 1237 (noting

that this factual finding is “conclusive on remand”). Indeed,

the plans each have their own constitution, separate from the

NALC constitution. Transcript of April 14, 2004 Bench Trial, ECF

No. 225 at 73:1-11. They are governed separately, and have

separate offices and staff. See id. at 72:19–22, 75:2–4;

Vincenzi Decl. (“2001 Vincenzi Decl.”), Ex. to ECF No. 128 ¶ 4;

Dunn Decl. (“2001 Dunn Decl.”), Ex. to ECF No. 128 ¶ 3.

  The Mutual Benefit Association is incorporated in Tennessee.

Transcript of April 14, 2004 Bench Trial, ECF No. 225 at 72:19-

25; Dunn Decl. Ex. A. It is a fraternal benefit corporation that

offers life and disability insurance, and receives its funds

through the sale of those insurance policies, as well as through

investment income earned through investing the premiums.

Transcript of April 14, 2004 Bench Trial, ECF No. 225 at 72:19-

73:19; Dunn Decl. ¶ 4.

  Defendant William Dunn served as the NALC’s Director of

Insurance, which made him Director of the Mutual Benefit




all of that.” Transcript of April 13, 2004 Bench Trial, ECF No.
224 at 176:20-177:9.


                               14
Association, until 1994. Dunn Decl. ¶ 2. Mr. Dunn’s role was

governed by the Mutual Benefit Association’s Constitution. Id. ¶

5. His salary, benefits, business expenses, and $500 per month

in-town allowance were all paid by the Mutual Benefit

Association, not the NALC. Dunn Decl. ¶¶ 4, 6; Transcript of

April 14, 2004 Bench Trial, ECF No. 225 at 73:25-74:6. Mr. Dunn

used his in-town allowance on various business-related

expenditures, including transportation and meals with union

officials. Dunn Decl. ¶ 9.

     The Health Benefit Plan is “part of the federal employee

health benefit plan operated under rules promulgated by the

Office of Personnel Management” and makes its money by selling

insurance policies “to members of [the NALC] and other federal

employees.” Transcript of April 14, 2004 Bench Trial, ECF No.

225 at 74:13-19. Mr. Vincenzi served as the Health Benefit

Plan’s director from 1986 until 1994. Vincenzi Decl. ¶ 2. His

duties were governed by the Plan’s Constitution. Id. ¶ 5. Mr.

Vincenzi’s salary, benefits, and in-town allowances were paid by

the Health Benefit Plan from its funds. Id. ¶¶ 6, 7; Transcript

of April 14, 2004 Bench Trial, ECF No. 225 at 75:5–24. Mr.

Vincenzi spent the allowance on union-related business at

restaurants, as well as for transportation and the costs of

hosting colleagues at his home to discuss union business. Id. ¶

9.


                                  15
  D.   Discussion and Authorization of the In-Town Allowances at
       NALC National Conventions.

  The in-town allowances were discussed during a number of NALC

National Conventions. See Noble III, 525 F.3d at 1234, 1237.

  First, during the 1976 National Convention, when James

Rademacher was President, a delegate named John Bourlon informed

the Convention that “I am advised that sometime in 1975 the

Executive Council approved the expenditure for the National

Officers for in-town expenses” and that “they will be allowed

$500 and it does not say if they list it on an expense account.

It says they will be given $500.” Minutes of 1976 NALC

Convention, Pl.’s Ex. 13, ECF No. 296-10 at 1–2. President

Rademacher responded “[w]ell, your information is incorrect. The

Chair stands here in front of 5,000 delegates and says your

information is incorrect.” Id. at 2. The Resolution in existence

at that time permitted resident officers “to draw up to $500.00

each month as an allowance for official in-town expenses,”

stated that “[a]pplication for allowances pursuant to this

Resolution constitute[s] a representation . . . that the sum

requested was expended on behalf of the Association in the

course of performance of official duties,” and made it “the

responsibility of each officer . . . to make and preserve for a

reasonable period, not exceeding five years, records and

receipts.” 1975 Resolution, ECF No. 288-9 at 32–33.



                               16
  In 1980, soon after Vincent Sombrotto became President, the

Executive Council reauthorized the in-town allowances. See 1980

Resolution, Defs.’ Ex. 2, ECF No. 288-3. That resolution

recognized that “resident officers . . . in the performance of

their official duties are expected to and regularly do incur and

pay transportation, entertainment, and other expenses for the

benefit of the Association in the Washington, D.C., Metropolitan

Area, in amounts which are estimated to approximate, on the

average [$500].” Id. at 5. Just like the prior resolutions, the

1980 Resolution made any application for an in-town allowance “a

representation by the applying officer or employee that the sum

requested was expended on behalf of the Association in the

course of performance of official duties” and required officers

“to make and preserve for a reasonable period, not exceeding

five years, records and receipts of expenditures covered by

allowance for examination by the Fiscal Committee and by any

other legally authorized authority.” Id. at 5–6.

  The in-town expenditures were not discussed again until the

1986 National Convention, when the following discussion occurred

in connection with a debate over a proposal to increase the

salaries of NALC officers:

     DELEGATE LIPPE: . . . I personally believe that all the
     national officers deserve a salary increase. However, I
     want to take a look at what it is that we are going to
     decide today. You have always said that you want the
     membership to be completely informed, and I have some


                               17
     information that I would like them to know. Based on the
     figure   of   $65,038,    which  is   currently  in   the
     Constitution, there are some unseen salary increases
     that the membership needs to be made aware of. In
     addition to the salary of $65,038, the Constitution
     provides    for   the   membership    to  pay   for   the
     noncontributory retirement program. Based on that
     figure, the number is $14,959. Additionally, the NALC
     pays 7 percent of all national officers’ salary into
     their civil service retirement fund based on the $65,000
     figure. That cost is approximately $3,500. Additionally,
     the NALC pays both sides of the Social Security taxes,
     7.15   percent,     which    is   approximately   $3,003.
     Additionally, all resident national officers receive a
     sum of $6,000 per annum unaccountable expense money. If
     you add to the salary of $65,038, the $14,000 as well as
     the other benefits that are paid by the Union, the salary
     is $90,750. . . .

     PRESIDENT SOMBROTTO: Thank, you     Sister.   (Applause.)
     Microphone No. 1 on privilege.

     DELEGATE MCNULTY: Gene McNulty, Branch 9, Minneapolis.
     I would like to correct the Sister. As a National
     Business Agent and one of your employees, you do not pay
     for the 7 percent of the retirement contribution. That
     is taken out of my check just like it is taken out of
     yours. Also, another piece of misinformation by the
     Sister, there is not for the resident national officers
     $6,000 unaccountable. They have to account for that. If
     you don’t believe me, check with the IRS.

     PRESIDENT SOMBROTTO: Microphone No. 2, against.

Minutes of 1986 NALC Convention, Defs.’ Ex. 11, ECF No. 288-

12 at 2.

  In 1994, the NALC Convention rejected proposed amendments that

would have limited the Executive Council’s ability to authorize

salaries, wages, expenses, allowances, and other disbursements

for itself. See Noble II, 2006 WL 2708796, at *6; Minutes of

1994 NALC Convention, Defs.’ Ex. 12, ECF No. 288-13 at 4–5. The


                                18
1996 Convention rejected similar amendments. See Minutes of 1996

NALC Convention, Defs.’ Ex. 13, ECF No. 288-14 at 3–5. The 1996

Convention also adopted a resolution—by a vote of 3,952 to 541—

that specifically confirmed that the payment of the in-town

allowances comported with the NALC Constitution. See id. at 6

(resolution stating “[t]hat the following NALC past practice

payments are hereby approved and confirmed: 1. Up to $500 per

month allowance to Resident Officers for in-town expenses”).

  E.   Mr. Noble’s Internal Charges Against the NALC and
       Requests for Documents.

  Mr. Noble sent a letter on August 16, 1993, asking the NALC to

permit him to inspect “any and all documents, receipts, records,

bills, checks, ledgers, account books, petty cash receipts,

charge slips, minutes, and resolutions that relate to the

violations set forth in the enclosed charges and described

above.” August 16, 1993 Letter from David Noble to Vincent

Sombrotto, Pl.’s Ex. 31, ECF No. 296-12 at 3. He justified this

request as based on his concerns regarding “discrepancies

between the constitutionally authorized amounts of compensation

and expenses payable to [NALC officers] . . . and the amounts

disclosed under oath to the Department of Labor on the NALC’s

LM-2 Reports for the years 1984 through the present.” Id. at 1.

  President Sombrotto responded to Mr. Noble on August 31, 1993.

See August 31, 1993 Letter from Vincent Sombrotto to David



                               19
Noble, Ex. Q to NALC’s Mot. for Summ. J., ECF No. 126.5 While he

maintained the NALC’s right to object that Mr. Noble “ha[d] not

established just cause for such review within the meaning of     .

. . 29 U.S.C. 431(c),” President Sombrotto stated:

      [T]here will be made available for your examination, at
      NALC Headquarters on or after September 13, 1993, copies
      of NALC records which are relevant to your charges and
      necessary to verify the NALC’s LM-2 reports for 1988-
      1993. Please telephone Jerry Gutshall to arrange an
      appointment to examine these records.

Id.

    Before taking President Sombrotto up on this offer, Mr. Noble

wrote to Jerry Gutshall on September 14, 1993. See September 14,

1993 Letter from David Noble to Jerry Gutshall, Pl.’s Ex. 38,

ECF No. 296-13 at 1. Mr. Noble’s September 14, 1993 letter

vastly expanded the scope of documents he sought to review. Mr.

Noble listed eighteen categories of documents in total. See

September 14, 1993 Letter from David Noble to Jerry Gutshall,

Pl.’s Ex. 38, ECF No. 296-13 at 1-3. Some related to the salary

issues Mr. Noble had previously raised, while others raised

entirely new issues. See id. On October 7, 1993, Mr. Noble

reviewed NALC records in person. See Noble Decl., ECF No. 215 ¶

58.




5 This letter appears to have been Mr. Noble’s Exhibit No. 34.
See Pl.’s Post-Trial Proposed Findings, ECF No. 241-3 at 29
n.102.


                                 20
    The Investigating Committee convened by President Sombrotto

ultimately “confirmed that Noble’s complaints were based in

fact” and “presented its findings to the special [NALC]

convention on October 13, 1993.” Noble III, 525 F.3d at 1234;

see also Investigating Committee Report, Defs.’ Ex. 8, ECF No.

288-9. “Delegates to the special convention roundly rejected

each of Noble’s charges of wrongdoing by an average margin of 25

to 1.” Noble III, 525 F.3d at 1234. Mr. Noble then wrote to

President Sombrotto on November 7, 1993 to request “the

videotape and a copy of the transcript of the October 13th

Special Meeting of the Convention,” as well as “copies of

payroll registers for several officers for the years 1988

through 1993.” November 7, 1993 Letter from David Noble to

Vincent Sombrotto, Ex. V. to NALC’s Mot. for Summ. J., ECF No.

126.6 President Sombrotto denied both requests on November 30,

1993. See November 30, 1993 Letter from Vincent Sombrotto to

David Noble, Ex. W to NALC’s Mot. for Summ. J., ECF No. 126.7

    F.   Mr. Noble’s Discovery Requests During this Case.




6 This letter appears to have been Mr. Noble’s Exhibit No. 28.
See Pl.’s Post-Trial Proposed Findings, ECF No. 241-3 at 29
n.104.

7 This letter appears to have been Mr. Noble’s Exhibit No. 39.
See Pl.’s Post-Trial Proposed Findings, ECF No. 241-3 at 30
n.105.


                                 21
  In his February 26, 2002 declaration in support of his motion

for summary judgment, Mr. Noble asserted that “NALC has not yet

provided me with all of the material it indicated in discovery

that it would furnish.” February 26, 2002 Noble Decl., ECF No.

139 ¶ 16. He elaborated: “For example, NALC has not yet provided

me with: a) videotapes of the 1986 convention debate concerning

officers’ salaries, b) videotapes of the 1993 special

convention, c) transcripts or tape recordings of all of the

witnesses who appeared before the investigating committee, d)

copies of Bill Young’s in-town expense applications.” Id. Mr.

Noble also stated that he had “attempted to use discovery to

develop information about the Minneapolis regional office’s

unauthorized bank account,” and that “[w]hen and if the court

orders NALC to permit me to inspect records in order to verify

NALC’s LM-2 reports I will use that opportunity to develop more

information.” Id. ¶ 52.

  Shortly thereafter, the Court denied the parties’ cross

motions for summary judgment and issued an Order directing the

parties “to file a single, concise, specific, and final

statement of each party’s outstanding requests for documents or

other tangible evidence, as well as efforts made to date to

obtain them, by no later than October 31, 2002, and responses

thereto by no later than November 15, 2002.” Order, ECF No. 151.

On October 31, 2002, Mr. Noble asserted that he had “no


                               22
outstanding discovery requests to the individually named

defendants” and only “four outstanding discovery requests to

defendant NALC.” Pl.’s Discovery Statement, ECF No. 152 at 1.

Those four requests were for: (1) “transcripts and audio tapes

of witnesses who testified before an internal NALC committee”;

(2) “video tapes of the October 1993 special convention”; (3)

“video tapes of the third session of the 1986 convention”; and

(4) “in-town expense applications for the individually named

defendants.” Id. at 2. Mr. Noble listed no other documents.

  On November 15, 2002, the defendants jointly responded to Mr.

Noble’s statement. See Defs.’ Second Joint Discovery Statement,

ECF No. 154. They indicated that they had given Mr. Noble the

opportunity to inspect all responsive documents in 1996 and that

Mr. Noble “requested and received copies of the produced

documents.” Id. at 3. After a 1999 hearing before Magistrate

Judge Kay, defendants claimed, they offered to let Mr. Noble

inspect documents again, he “reviewed the documents between

March 5 and 8, stated that he would like to continue reviewing

the files on March 29,” but “did not appear on March 29 . . .

and cancelled another date arranged for April 6” and then “never

reappeared to continue his review of documents.” Id. at 5.

  On March 31, 2003, the Court issued an Order regarding these

discovery matters. See Order, ECF No. 155. The Court ordered the

defendants to “make the documents, videotapes and transcripts


                               23
identified as the subject of outstanding discovery requests by

Mr. Noble in his October 15, 2002 submission to the Court

available to Mr. Noble for viewing by no later than April 28,

2003, for a period of five business days ending on May 2, 2003.”

Id. at 2. The Court further directed Mr. Noble to “provide

defendants with a specific list of documents, tapes and

videotapes he wishes to obtain copies of by no later than May

15, 2003, along with reasonable payment as agreed to by the

parties for those copies.” Id. Finally, the Court directed the

defendants to “provide plaintiff with all copies of documents,

tapes and videotapes requested and paid for by plaintiff by no

later than May 30, 2003.” Id. The NALC asserts that it “fully

complied with that Order; [Mr.] Noble has never claimed

otherwise.” Defs.’ Proposals at 9. Mr. Noble does not contest

this assertion. See generally Pl.’s Objs.

II.    Conclusions of Law

  A.     Mr. Noble’s Section 501 Claims

  Mr. Noble’s remaining Section 501 claim relates to the in-town

expenditures. Before addressing the merits of the claim, the

Court must assess which defendants remain subject to it.

  First, the claim cannot be made against the NALC directly

because “claims made pursuant to Section 501 of the LMRDA cannot

be brought against labor organizations . . . but rather can be

made only against officers acting in their official capacities.”


                                 24
Saunders v. Hankerson, 312 F. Supp. 2d 46, 58 (D.D.C. 2004); see

also Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972);

Pignotti v. Local No. 3 Sheet Metal Workers’ Int’l Ass’n, 477

F.2d 825, 832 (8th Cir. 1973); Commer v. McEntee, 145 F. Supp.

2d 333, 339–40 (S.D.N.Y. 2001), aff’d in relevant part sub nom.

Commer v. Giuliani, 34 F. App’x 802, 805 (2d Cir. 2002). Nor

does Mr. Noble appear to press this claim as to the NALC.

Compare First Am. Compl., ECF No. 25 ¶¶ 115–19 (bringing the

Section 501 claims against the NALC), with Pl.’s Proposals at 3

(discussing only the individual defendants in connection with

the claim).

    Second, five of the twelve individual defendants have died

during the course of this litigation and were dismissed, without

objection by Mr. Noble or any attempt to file a motion to

substitute. See supra at 1 n.1. In light of that, Mr. Noble’s

Section 501 claims against those individuals—Vincent Sombrotto,

Francis Conners, Walter Couillard, George Davis, and Richard

O’Connell—are no longer part of the case.8




8 See, e.g., Cowger v. Rohrbach, 734 F. Supp. 914, 916 (C.D. Cal.
1990) (“The goals which underlie the LMRDA and the
practicalities of a trial necessarily involving uniquely
individual actions lead [the court] to the conclusion that
justice is best served by abatement of this [Section 501] cause
of action.”); Fed. R. Civ. P. 25(a)(1) (“If a party dies and the
claim is not extinguished, the court may order substitution of
the proper parties,” but “[i]f the motion [for substitution] is
not made within 90 days after service of a statement noting the


                                 25
  Third, Mr. Noble never raised a Section 501 claim against

defendants Souza and Worsham related to in-town expenses. See

1993 Investigation Report, Defs.’ Ex. 8, ECF No. 288-9 at 3

(list of officials Mr. Noble had charged internally with

accepting the in-town allowances, which does not include

defendants Souza or Worsham); First Am. Compl., ECF No. 25 ¶ 8

(Souza and Worsham were not listed as NALC “resident officers”);

id. ¶¶ 115–19 (Souza and Worsham were omitted from Count II,

which raises a Section 501 claim regarding the in-town

expenses). They are therefore not subject to this claim.

  Accordingly, Mr. Noble’s Section 501 claim relates only to

William Dunn, Lawrence Hutchins, Michael O’Connor, Robert

Vincenzi, and William Young. Defendants Dunn and Vincenzi argue

that they cannot be subject to a Section 501 claim because they

are not union officials, and the Court addresses this argument

first. After finding that defendants Dunn and Vincenzi are

correct, the Court analyzes Mr. Noble’s Section 501 claims

against defendants Hutchins, O’Connor, and Young.

     1.   Officers of the Mutual Benefit Association and Health
          Benefit Plan Are Outside the Scope of Section 501.

  Section 501(a) of the LMRDA defines the duty owed by “[t]he

officers, agents, shop stewards, and other representatives of a




death, the action . . . against the decedent must be
dismissed.”).


                               26
labor organization” to “such organization and its members as a

group.” 29 U.S.C. § 501(a). The Act therefore requires covered

individuals, “taking into account the special problems and

functions of a labor organization, to hold its money and

property solely for the benefit of the organization and its

members and to manage, invest, and expend the same in accordance

with its constitution and bylaws and any resolutions of the

governing bodies adopted thereunder.” Id. The D.C. Circuit

directed this Court to consider on remand whether defendants

Dunn and Vincenzi, as officers of the Mutual Benefit Association

and Health Benefit Plan, are subject to Section 501. See Noble

III, 525 F.3d at 1237. This Court had previously found the

Mutual Benefit Association and Health Benefit Plan to be

“separate and distinct” from the NALC, Noble II, 2006 WL

2708796, at *7, a finding the D.C. Circuit noted was “conclusive

on remand.” Noble III, 525 F.3d at 1237. Nonetheless, the

Circuit stated that “the degree of separation necessary to avoid

§ 501’s application is itself uncertain.” Id.

  Mr. Dunn and Mr. Vincenzi argue that they are not covered by

Section 501 because their in-town expenditures were paid using

funds of the Mutual Benefit Association and Health Benefit Plan,

not the NALC. See Individual Defs.’ Proposals at 6–8. Although

the D.C. Circuit remanded for this Court to consider this issue,

Mr. Noble did not mention it in his proposed supplemental


                               27
findings. See generally Pl.’s Proposals. Nor did he respond in

his opposition brief to the defendants’ arguments on this point.

See generally Pl.’s Objs. For this reason, Mr. Noble has

conceded that defendants Dunn and Vincenzi are outside the scope

of Section 501. See, e.g., McGinnis v. District of Columbia, No.

13-1254, 2014 WL 4243542, at *15 (D.D.C. Aug. 28, 2014) (when a

party “fails to address [an argument] in its motion and fails to

respond to [an opposing party’s] point in its reply, the Court

will deem it abandoned”).

  In any event, the Court finds that the Mutual Benefit

Association and Health Benefit Plan are sufficiently distinct

from the NALC that their officers are not covered by Section

501(a) with respect to their in-town allowances. Claims under

Section 501(a) “may only relate to the misuse of union funds.”

Hearn v. McKay, No. 07-60209, 2008 WL 2694005, at *4 (S.D. Fla.

July 1, 2008), aff’d 603 F.3d 897 (11th Cir. 2010). For that

reason, a Section 501(a) claim may not be made in connection

with allegations of misuse of funds in benefit plans that “are

not union funds.” Id. As another Judge of this Court has held,

“Section 501 only applies to activities affecting union money,”

so such a claim may not be brought with respect to “money in the

Plan [that] was no longer property of the union.”   Yager v.

Carey, 910 F. Supp. 704, 728 (D.D.C. 1995). This conclusion

flows from the plain language of the statute, which applies only


                               28
to “officers, agents, shop stewards, and other representatives

of a labor organization” and dictates that, with respect to that

labor organization, the officers must use “its money and

property solely for the benefit of the organization and its

members and to manage, invest, and expend the same in accordance

with its constitution and bylaws and any resolutions of the

governing bodies adopted thereunder.” 29 U.S.C. § 501(a)

(emphasis added).

  Trustees of employee-benefit plans that are related to unions

will therefore be outside the scope of Section 501(a) when “the

funds in these plans are not union money or property but rather

the property of the plans or trusts.” Hearn, 2008 WL 2694005, at

*4 (documents establishing the plan “state[d] that the union

does not ‘have any right, title or interest in or to the Fund,

or any part thereof,” and that “[o]nce funds are transferred

into these plans they are part of an ‘irrevocable trust’ and

‘assets of the Plan.’”); see also Yager, 910 F. Supp. at 728

(“the Plan is funded by the [union] on behalf of its

affiliates,” but “once the [union] makes a payment to the plan,

‘that money belongs to the . . . Plan and is no longer [union]

property”). Both the Mutual Benefit Association and Health

Benefit Plan receive their funds through their own activities,

rather than from the union. See Transcript of April 14, 2004

Bench Trial, ECF No. 225 at 72:19-73:19, 74:13-19; Dunn Decl. ¶


                               29
4. The in-town allowances of Mr. Dunn and Mr. Vincenzi,

moreover, were paid entirely by their respective plans, not by

the NALC. See Dunn Decl. ¶¶ 4, 6; Vincenzi Decl. ¶¶ 6, 7;

Transcript of April 14, 2004 Bench Trial, ECF No. 225 at 73:25-

74:6, 75:5-24. Accordingly, the in-town allowances of defendants

Dunn and Vincenzi were not paid for using union funds and

therefore any claim against them alleging the misuse of those

funds cannot be brought under Section 501.

  This conclusion is bolstered by the possibility that trustees

of such plans may be “subject to their own fiduciary

requirements under the Employment Retirement Income Security

Act, [29 U.S.C. § 1001, et seq.]” Hearn, 2008 WL 2694005, at *4.

If so, ERISA makes such plans “distinct legal entities separate

from the union . . . controlled exclusively by the trustees for

the benefit of the plan participants and beneficiaries.” Hearn,

603 F.3d at 902 (citing 29 U.S.C. §§ 1104(a)(1), 1132(d)). “When

a plan’s assets are misused, the breach of duty is one between

the trustees and the plan’s beneficiaries (a separate

constituency from the union and its members as a group).” Id.

Nor would the fact that a plan trustee is also a union officer

affect the analysis. “[A]n employee benefit fund trustee is a

fiduciary whose duty to the trust beneficiaries must overcome

any loyalty to the interest of the party that appointed him.”

NLRB v. Amax Coal Co., 453 U.S. 322, 334 (1981); see also Hearn,


                               30
603 F.3d at 902–03 (“when a union official is acting in his role

as an ERISA benefit plan trustee, he does so exclusively for the

benefit (or to the detriment) of the plan participants and

beneficiaries, not the union or its members as a group”).9

      2.   Mr. Noble’s Section 501 Claims Against Defendants
           Hutchins, O’Connor, and Young Fail.

    Mr. Noble’s in-town-expense claim thus remains only as to

three individuals: Lawrence Hutchins, Michael O’Connor, and

William Young. Mr. Noble’s claim that their in-town allowances

were not properly authorized cannot stand if the in-town

allowances were made “in accordance with [the union’s]

constitution and bylaws and any resolutions of the governing

bodies adopted thereunder.” 29 U.S.C. § 501(a). The D.C. Circuit

has affirmed that, in evaluating whether an action comports with




9 The Court is not persuaded by pre-ERISA cases involving plans
that “were an exclusively union undertaking.” Hearn II, 603 F.3d
at 903 n.8 (describing Hood v. Journeyman Barbers, Hairdressers,
Cosmetologists & Proprietors Int’l Union, 454 F.2d 1347 (7th
Cir. 1972) and Morrissey v. Curran, 423 F.2d 393 (2d Cir.
1970)). Pre-ERISA decisions are especially unpersuasive because
“ERISA obviated the need for federal courts to strain to imply a
cause of action in favor of employee benefit fund participants
and beneficiaries.” Hearn, 2008 WL 2694005, at *5 (quotation
marks omitted). Nor is the Court persuaded by Morrissey v.
Curran, 650 F.2d 1267 (2d Cir. 1981), where allegedly improper
payments from a pension fund jointly run by a union and its
members’ employers fell within the scope of Section 501 because
the pension fund’s assets “belong to union members.” Id. at
1284. By contrast, the Mutual Benefit Association and Health
Benefit Plan both sell to non-members, and their funds come not
from union or member contributions, but from the payment of
insurance premiums and investments of those premiums.

                                 31
a union’s constitution and bylaws, the Court must “defer to an

interpretation of a union constitution rendered by officials of

a labor organization . . . unless the court finds the

interpretation was unreasonable or made in bad faith.” Noble

III, 525 F.3d at 1235 (quotation marks omitted; alteration in

original). This deference is even greater “when, as here, a

union convention has approved the officers’ interpretation of

the union constitution because such approval undermines a

finding that the officers’ interpretation was unreasonable and

made in bad faith.” Id. (quotation marks and alteration

omitted); see also Monzillo v. Biller, 735 F.2d 1456, 1458 (D.C.

Cir. 1984). This deference takes into account “whether there was

arguable authority for the officer’s act from the officer’s

viewpoint at the time, not from a court’s more sophisticated

hindsight.” Stelling v. Int’l B’hood of Elec. Workers, 587 F.2d

1379, 1389 n.10 (9th Cir. 1978).

  This Court previously concluded that Article 9, § 11(e) of the

NALC Constitution could reasonably be viewed as authorizing the

individual defendants’ actions. See Noble II, 2006 WL 2708796,

at *8–9. This holding was based on the following provisions:

     “Second only to the Convention in legislative and policy-
      making authority, [the Executive Council] shall act between
      Conventions on all matters related to the welfare of the
      Union not specifically prohibited by the membership.”

     “[The Executive Council may] authorize and/or ratify the
      payment of salaries, wages, expenses, allowances, and other


                                32
     disbursements which it deems necessary and appropriate to
     the purpose and functioning of this Union, other than
     provided for.”

Id. Because the NALC Constitution does not “specifically

prohibit or otherwise provide for the payment of either an in-

town expense allowance or the reimbursement of un-itemized

expenses,” this Court agreed with the defendants that the above

provisions had been “reasonably interpreted . . . to permit a

$500 per month in-town expense allowance resolution for Resident

Officers” and that “the Council’s determinations for many years

that it would not require Resident Officers to submit receipts

for in-town expenses were reasonable and made in good faith.”

Id. at *9.

  The D.C. Circuit “agree[d] . . . that the NALC constitution

was ambiguous.” Noble III, 525 F.3d at 1236. It held that

“[t]hough NALC Const. art. 6 § 1 expressly entitles all elected

union officers to obtain reimbursement of itemized expenses,

that minimum entitlement does not unambiguously prohibit the

council from providing additional payment for expenses or

allowances” and that other provisions relied upon by Mr. Noble

do not “unambiguously require[] a contrary interpretation.” Id.

Accordingly, the Circuit agreed with this Court’s application of

a “more deferential standard of review in evaluating the

reasonableness of the NALC Executive Council’s interpretation of

their authority to authorize the expenses.” Id. The individual


                               33
defendants’ interpretation of the NALC Constitution to permit

the in-town expense allowance was therefore reasonable under the

deferential standard applicable to this case, giving them

arguable authority for accepting $500 per month pursuant to the

resolution for use in connection with union-related business in

Washington, D.C.

  The D.C. Circuit reversed this Court’s dismissal of Mr.

Noble’s claim because it disagreed with the factual finding that

Mr. Noble “produced no evidence that officers had used the

allowance for purely personal reasons, unrelated to union

business.” Id. at 1236 (quotation marks omitted). Although no

direct evidence of misuse had been provided, the Circuit held

that personal use may be proven by indirect evidence. See id. at

1236–37. Mr. Noble, the Circuit found, had produced two relevant

forms of circumstantial evidence: (1) the evidence of bad faith

provided by two misleading statements by NALC officers regarding

the in-town allowances, and (2) defendants’ failure to submit

receipts despite the resolution’s requirement that they retain

receipts for a reasonable period and their “direct financial

incentive” to do so. See id. The Circuit directed this Court on

remand to “weigh[] Noble’s circumstantial evidence of misuse

against any evidence the officers present to the contrary.” Id.

at 1237.

       a.   The Statements at the 1976 and 1986 NALC Conventions


                               34
  This Court’s analysis is framed by two statements made during

NALC National Conventions held a decade apart, which arguably

support an inference of “bad faith regarding the in-town expense

allowance.” Id. As the Circuit summarized it: “The evidence

Noble presented showing that NALC presidents twice misleadingly

denied the allowance’s existence when challenged on the issue at

National Conventions is troubling.” Id. The Circuit therefore

directed this Court to apply United States v. DeFries, 129 F.3d

1293 (D.C. Cir. 1997), “which suggests that courts should

closely scrutinize self-serving courses of conduct when union

officers conceal vital information from union members.” Noble

III, 525 F.3d at 1237.

   DeFries arose in connection with criminal proceedings against

individuals who had been officers of a union that subsequently

merged with another union. See 129 F.3d at 1297. Those officers,

pursuant to the merger agreement, became officers in the new

union. Id. Despite this, the officers received severance

payments totaling $2,000,000 upon consummation of the merger, as

a result of a severance plan adopted by the former union’s

leadership committee. Id. In assessing the officers’ contention

that the severance plan was permitted by the union’s bylaws, the

D.C. Circuit noted that the officers had “t[aken] steps to

conceal from the union membership the adoption, terms, and



                               35
triggering event of the plan.” Id. The officers “failed to

mention the plan in the minutes of the meeting at which they

adopted it, direct[ed] the union’s controller not to reveal any

details of the plan,” and “failed to disclose the plan’s

existence to the union’s independent auditor until more than a

year after its adoption.” Id. Moreover, the Circuit noted, “the

membership was kept completely in the dark as to any of [the

severance plan’s] details until after the unions were merged and

the payments were made.” Id. at 1307. Accordingly, the D.C.

Circuit held, “the membership was prevented through [the

officers’] subterfuge from exercising its ultimate authority to

prevent this looting of the union treasury, and authorization

secured without disclosure of material information is a

nullity.” Id. (quotation marks and alteration omitted). The

situation in this case is not as clear as DeFries.

  The first statement at issue here is indeed troubling. In

1976, then-President Rademacher appeared to deny the existence

of “in-town expenses” for which officers were “allowed $500,”

without needing to “list it on an expense account” while

speaking to the National Convention. Minutes of 1976 NALC

Convention, Pl.’s Ex. 13, ECF No. 296-10 at 1–2; see id. at 2

(President Rademacher’s response: “Well, your information is

incorrect. The Chair stands here in front of 5,000 delegates and

says your information is incorrect.”). No reading of the in-


                               36
town-expense resolution in existence at the time can be squared

with this statement. See 1975 Resolution, ECF No. 288-9 at 32–

33.

  President Rademacher’s statement, then, bears some resemblance

to the concealment found in DeFries. To be sure, there is no

evidence that President Rademacher or his officers engaged in

additional conduct that was also present in DeFries: There is no

evidence that the in-town allowances were omitted from any

meeting minutes or other official records, and no evidence

exists that auditors or other officials were kept in the dark or

instructed to keep the allowances quiet. Nonetheless, President

Rademacher’s statement denies the existence of the payments.

  The key difference between this statement and the defendants’

actions in DeFries is that President Rademacher is not a

defendant in this case, and the individuals who are defendants

in this case were officers during the administration of

President Sombrotto, which occurred five years later and after

the intervening administration of President Vaca. The in-town

allowances authorized by President Sombrotto and at issue in

this case were made pursuant to a 1980 Resolution, which

superseded President Vaca’s 1977 Resolution, which itself

superseded the 1975 Resolution in effect when President

Rademacher spoke in 1976. President Rademacher’s statement

surely sets the stage for concern, especially in light of the


                               37
similarity between the 1975, 1977, and 1980 Resolutions, but

unlike the actions in DeFries, it is not probative of the intent

of the defendants in this case and therefore makes it difficult

to infer, as the D.C. Circuit could in DeFries, that the

defendants sought to conceal the payments.

  The statements during the 1986 National Convention are less

clear. A delegate, Karen Lippe, was speaking in favor of

providing a more modest salary increase to NALC officers than

had been proposed. She sought to make clear the additional non-

salary compensation that NALC officers were receiving, and in

the process mentioned: (1) “pay for the noncontributory

retirement program”; (2) “7 percent of all national officers’

salary into their civil service retirement fund”; (3) “both

sides of the Social Security taxes”; and (4) “a sum of $6,000

per annum unaccountable expense money.” Minutes of 1986 NALC

Convention, Defs.’ Ex. 11, ECF No. 288-12 at 2. President

Sombrotto at this time was essentially moderating the debate on

the proposed salary increase, by alternately calling on

individuals in favor of and against the proposal based upon

which microphone they were standing at. See id. After Delegate

Lippe spoke, President Sombrotto stated “[t]hank, you Sister,”

the audience applauded, and President Sombrotto recognized

“Microphone No. 1 on privilege.” Id. Another delegate, Gene

McNulty, stated:


                               38
       I would like to correct the Sister. As a National
       Business Agent and one of your employees, you do not pay
       for the 7 percent of the retirement contribution. That
       is taken out of my check just like it is taken out of
       yours. Also, another piece of misinformation by the
       Sister, there is not for the resident national officers
       $6,000 unaccountable. They have to account for that. If
       you don’t believe me, check with the IRS.

Id. President Sombrotto then recognized “Microphone No. 2,

against.” Id.

     The effect of this dialogue is much less clear than President

Rademacher’s 1976 denial of the existence of the payments. No

one in 1986 disputed that the payments existed or that they

amounted to $500 per month. The dialogue thus cannot be read as

evidence that anyone sought to hide the payments or their

amounts. The misstatement was Delegate McNulty’s when he stated

that NALC officers “have to account for” the in-town allowances.

Delegate McNulty is not a defendant in this case, so it is

difficult to attribute his statement to the remaining individual

defendants. President Sombrotto did not step in to correct

Delegate McNulty’s statement, but neither did he ratify it.10

     At most, then, the in-town allowances had been concealed by a

prior administration, and described by the administration with

which the individual defendants are affiliated as if they




10The Court notes, moreover, that President Sombrotto is no
longer a defendant in this case, further attenuating the
connection between the 1986 dialogue and the intent of the
remaining individual defendants.


                                  39
required “accounting,” when in fact they did not. This differs

enough from DeFries that the Court cannot say that these

individual defendants—Lawrence Hutchins, Michael O’Connor, and

William Young—sought to conceal the existence of the challenged

payments. At the same time, the history of prior concealment and

the confusion about accounting in 1986 paint a picture that

counsels in favor of a more careful review of how the individual

defendants used their in-town allowances.

       b.   Direct Evidence of How Defendants Hutchins,
            O’Connor, and Young Used the In-Town Allowances

  With this framework in mind, the Court reviews Mr. Noble’s

additional circumstantial evidence of misuse. This evidence

stems from the incentive officers faced to keep receipts, based

in the Resolution itself, which tasked them with “mak[ing] and

preserv[ing] for a reasonable period, not exceeding five years,

records and receipts of expenditures covered by allowance for

examination by the Fiscal Committee and by any other legally

authorized authority.” 1980 Resolution, ECF No. 288-3 at 5–6. So

tasked, an officer had a financial incentive to submit such

receipts because any portion of the in-town expense for which a

business-related receipt was provided would be exempt from

income taxation. See Noble III, 525 F.3d at 1236.

  Against this circumstantial case, the Court must weigh the

evidence presented by the individual defendants in support of



                               40
their contention that they did not misuse the in-town

allowances. At least with respect to defendants Hutchins,

O’Connor, and Young, direct evidence rebuts this circumstantial

evidence and shows that these three defendants used their in-

town allowances for union-related business.

  Of the three remaining defendants, the record is most

illuminating as to the practices of President William Young.

President Young submitted receipts—largely reflecting meals and

transportation expenses—for nearly all of the expenses he

incurred between December 1990 and July 1993. Defs. Ex. 8, ECF

No. 288-9 at A-12 (Mr. Young incurred $16,358 in expenses during

this period, received $16,000 in in-town expense allowances, and

submitted receipts for $15,798); Transcript of April 13, 2004

Bench Trial, ECF No. 224 at 177:16-17 (President Young: “[My]

initial history in the Union from 1990 until about 1994 or 5 was

to receipt everything”); Young Receipts, Pl.’s Ex. 7, ECF No.

296-6. Mr. Young later chose to stop submitting receipts

“because it wasn’t worth the aggravation.” Id. at 177:17-18.

Thus, although there was a financial incentive to submit

receipts for the $500 or more President Young incurred in the

course of his official duties—and President Young had for years

been incurring that amount and saving receipts in response to

that incentive—he decided “[for] my own benefit that I wasn’t

going to receipt much. . . . [B]ecause it isn’t worth the hassle


                               41
in the long run.” Id. at 177:24-178:4. President Young’s prior

practice over the course of several years of providing receipts

for nearly every dollar he received strongly supports the

inference that he stopped submitting receipts for the reason he

gave: the inconvenience of preparing them, not because he was

suddenly able to do his job while incurring fewer expenses and

decided to pocket the difference.

  Defendant Lawrence Hutchins similarly submitted receipts for a

substantial portion of his in-town expenses. See Investigative

Committee Report, Defs.’ Ex. 8, ECF No. 288-9 at A-10

(reflecting that Mr. Hutchins provided receipts for

approximately $12,700 of the $18,000 he received between 1988

and 1990, and for nearly all of the $16,000 he received between

1991 and July 1993); Hutchins Receipts, ECF Nos. 296-7, 296-8,

296-9. Mr. Hutchins’s receipts largely reflect expenditures at

restaurants, as well as taxi and parking receipts. See Hutchins

Receipts, ECF Nos. 296-7, 296-8, 296-9. Defendant Michael

O’Connor appears only to have received an in-town allowance

during 1994, but the record contains receipts for over $400 of

the $500 he received each month. See O’Connor Receipts, Pl.’s

Ex. 6, ECF No. 296-5. Mr. O’Connor’s receipts included charges

for restaurants, taxis, and parking. See id.

  Accordingly, all three individual defendants provided receipts

for a substantial portion of the in-town allowances they


                               42
received, and President Young’s testimony explains why they

might not have provided every single receipt: Although an

income-tax benefit could be realized by providing receipts for

everything, even an officer who kept receipts for essentially

all of his expenses for years might decide that continuing to do

so was not worth the administrative burden. In light of this

record, the Court finds that direct evidence of how the

remaining individual defendants actually used the in-town

allowances demonstrates that these three individual defendants

largely accounted for their expenses. To the extent they did not

account for them, the record reflects that the financial

incentive for submitting receipts that the Resolution required

be kept for a “reasonable period” of time was outweighed by the

administrative burden experienced by those, like President

Young, who once sought to submit receipts for every expense.

Finally, the existence of a significant record of receipts

describing the types of union-related expenses contemplated by

the Resolution supports testimony that $500 per month was a

reasonable amount that a resident officer could expect to have

to spend in order to perform the job. See supra at 9. This

bolsters the conclusion that any unreceipted portion of these

defendants’ allowances was not used for personal gain.

  Mr. Noble challenges the receipts themselves, calling them

“worthless as evidence.” Pl.’s Objs. at 3–4. Although phrased as


                               43
an evidentiary objection, Mr. Noble does not appear to dispute

their admissibility. Instead, he appears to argue that the

receipts cannot form the requisite evidence “of how the union’s

money was actually used,” Noble III, 525 F.3d at 1237, because

they do not contain a written notation of the purpose for which

the expense was incurred. This argument relies on an alleged

requirement that receipts contain such a notation. See Pl.’s

Objs. at 3-4.

  Even if Mr. Noble were correct about the existence of an

independent requirement that receipts contain such a notation,

that does not render the receipts useless for the narrow purpose

to which the Circuit has directed this Court’s focus: Weighing

against Mr. Noble’s circumstantial evidence of misuse any

evidence put forth by the defendants of how they actually used

the in-town allowances. The defendants claim to have used the

allowances for union-related expenses at restaurants and for

transportation expenses. The receipts support this claim by

reflecting the contemporaneous submission by the individual

defendants of receipts for such expenses in connection with

applications for the monthly in-town allowance. Thus, even if

the failure to provide a written notation violated some other




                               44
legal requirement, not before the Court, the receipts would

still bear on the narrow question that is before the Court.11

     B.   Mr. Noble’s Section 201 Claim

     In addition to his breach-of-fiduciary-duty claims under

Section 501, Mr. Noble brought a claim pursuant to Section 201

of the LMRDA. That provision requires labor unions to “file

annually with the Secretary [of Labor] a financial report,”

known as an LM-2 Report. 29 U.S.C. § 431(b). “The primary

purpose of § 201 is to make full information related to the

financial affairs of unions available to union members to




11Indeed, Mr. Noble’s various citations do not bear on whether
the receipts are useful evidence regarding the Section 501 claim
that is before this Court. Mr. Noble’s argument that NALC policy
or the NALC Constitution requires such notations is belied by
this Court’s finding that the individual defendants had arguable
authority for accepting the in-town allowances without
accounting for them, pursuant to a distinct section of the NALC
Constitution that did not require itemized receipts. See supra
at 33-34; Noble III, 525 F.3d at 1235-36. Mr. Noble’s reliance
on a December 9, 2004 letter from the Department of Labor is
unhelpful because that letter is not part of the record of this
case—it was created after discovery closed and the trial had
been held. See Pl.’s Objs. at 4. Moreover, the letter, which was
attached to a status report Mr. Noble filed in 2009, addressed
the Department of Labor’s findings with respect to an entirely
distinct section of the LMRDA. See December 9, 2004 Letter, ECF
No. 257-2. Finally, Mr. Noble’s assertion that IRS Regulations
require such notations is based solely on a 1985 letter from
Richard O’Connell to NALC officers, which directs officers to
supply certain information “which is required by I.R.S.
regulation when entertaining,” including the purpose for the
expense. February 27, 1985 Letter, Pl.’s Ex. 76, ECF No. 296-15.
Even assuming the truth of this assertion, that does not make
the receipts irrelevant to the Court’s assessment of Mr. Noble’s
Section 501 claim.

                                  45
strengthen their efforts to rid their unions of unworthy or

corrupt officers.” McGinnis v. Local Union No. 710, Int’l B’hood

of Teamsters, 664 F. Supp. 1212, 1213 (N.D. Ill. 1987). The

report must include specified information related to the union’s

finances, including assets, receipts, salaries, and similar

matters. See 29 U.S.C. § 431(b). Section 201(c) creates a right

of action for union members who (1) made a request to inspect

documents “to verify” an LM-2 Report, (2) that was supported by

“just cause,” and (3) was denied by the union. See 29 U.S.C. §

431(c).

  “The burden of proof in demonstrating just cause is on the

union member, and he may not inquire into union records out of

idle curiosity.” Mallick v. Int’l B’hood of Elec. Workers, 749

F.2d 771, 784 (D.C. Cir. 1984) (citations omitted). The

demonstration of just cause, moreover, is keyed to the

particular information on an LM-2 report that the union member

seeks to verify. See Krokosky v. United Staff Union, 291 F.

Supp. 2d 835, 843 (W.D. Wisc. 2003) (“The statute’s structure

indicates that just cause ought to relate to the LM-2.”).

“Establishing ‘just cause’ requires the union member to state

what he wishes to verify in the LM Reports and how the

particular records he is requesting are expected to assist him

in doing so.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d

278, 285 (5th Cir. 1993).


                               46
  The precise scope of Mr. Noble’s Section 201 claim has

remained vague throughout this case. What is clear is that Mr.

Noble sent the NALC three letters in 1993 that contained

requests for the inspection of documents. See supra Part I.E.

His August 16 and September 14 letters included requests for

inspection of a variety of documents related both to his

internal charges regarding payments to members of the Executive

Committee, as well as other issues. See supra at 19-21. The NALC

appeared to grant the August 16 request, did not respond to the

September 14 request, and permitted Mr. Noble to inspect an

unspecified set of records on October 7, 1993. See id. It is not

clear whether that inspection granted access to everything Mr.

Noble had requested.

  Mr. Noble’s third request was rejected by the NALC. His

November 7, 1993 letter sought “a videotape and a copy of the

transcript of the October 13th Special Meeting of the

Convention,” as well as “copies of payroll registers for several

officers for the years 1988 through 1993.” November 7, 1993

Letter from David Noble to Vincent Sombrotto, Ex. V. to NALC’s

Mot. for Summ. J., ECF No. 126. President Sombrotto rejected the

requests in full on November 30, 1993. See November 30, 1993




                               47
Letter from Vincent Sombrotto to David Noble, Ex. W to NALC’s

Mot. for Summ. J., ECF No. 126.12

     In his post-trial proposed findings of fact regarding the

Section 201 claim, Mr. Noble recited the chronology of this

correspondence, but did not explain which, if any of the

requests made in his August 16 and September 14 letters had been

refused. See Pl.’s Post-Trial Proposed Findings, ECF No. 241-3

¶¶ 77–81. Rather, Mr. Noble made the general and conclusory

statement that “[w]hile plaintiff has been furnished with some

financial information while conducting discovery in the instant

case, and a smaller amount after filing the charges, the

material he has been permitted to review has been insufficient

for him to verify even one of the NALC’s annual LM-2 reports,”

id. ¶ 83, which was itself a verbatim quotation from Mr. Noble’s

pre-trial affidavit. See April 2, 2004 Noble Decl., ECF No. 215

¶ 57.

     This Court previously found that during the course of

proceedings in this case—and in the lead up to the filing of

this case—Mr. Noble had been given “access to all of the

pertinent NALC records,” rendering his Section 201 claim moot.




12Although it is clear from the record that Mr. Noble received
in discovery copies of the videotape and transcript of the
October 1993 Special Meeting, rendering that portion of the
request moot, April 2, 2004 Noble Decl., ECF No. 215 ¶¶ 82, 84,
it is not clear whether the other request has been satisfied.


                                  48
Noble II, 2006 WL 2708796, at *11. The D.C. Circuit disagreed

that a factual record existed to find that Mr. Noble had been

permitted to inspect all documents he had requested to view, and

therefore vacated this finding. See Noble III, 525 F.3d at 1241.

It left for this Court to address the merits of the claim, “as

well as the factual determination of what (if any) records Noble

has requested but not yet received.” Id. at 1242.

  The existing record and the parties’ post-remand pleadings do

not permit the Court to make this determination. Mr. Noble’s

post-remand proposed findings made only a conclusory assertion

that he has not been provided sufficient documents. See Pl.’s

Proposals at 2, 4. The defendants’ proposals reiterated that Mr.

Noble has been provided access to a significant amount of

documents, and noted that the limited set of discovery disputes

he raised in 2002 had been fully complied with, but did not

explain precisely what he has been given access to. See Defs.’

Proposals at 8-9.

  Nor can the Court rule in favor of either party’s legal

argument without a clearer explanation of which requests are at

issue. The defendants’ argument that Mr. Noble has not

demonstrated just cause to inspect “any financial records other

than those to which NALC has already given him access,” Defs.’

Proposals at 16, neither explains what Mr. Noble has been given

access to, nor establishes why every single request Mr. Noble


                               49
made was entirely unsupported by just cause. At the same time,

Mr. Noble’s argument that his discovery of the challenged

payments entitles him to a “broad review” of the NALC’s finances

cannot be evaluated without explanation of how that discovery

provides just cause for specific requests that were rejected by

the NALC.13 Accordingly, the Court will direct the filing of

supplemental briefs, which shall include citation to the trial

record and any additional evidence the parties feel is necessary

to resolve the Section 201 claim.

     The Court notes that the burden is on Mr. Noble to explain to

the Court why he is entitled to relief on his Section 201 claim.

He must explain which inspection requests the NALC rejected, how

the requests relate to the verification of the union’s LM-2

Report, and the basis for a finding that the requests were

supported by just cause. Mr. Noble’s past unsupported and

conclusory statements were insufficient and the Court may treat

another failure by Mr. Noble to explain or provide evidentiary

support for his claim as a forfeiture of the claim. Cf. Jackson

v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,




13Mr. Noble’s other argument, that the defendants waived their
ability to contest his Section 201 claim because they raised no
defense to it other than mootness, Pl.’s Proposals at 4, is
incorrect: The D.C. Circuit referred to the defendants’
arguments regarding the merits of the Section 201 claim, and
suggested that this Court reach those arguments on remand. Noble
III, 525 F.3d at 1242.


                                  50
153 (D.C. Cir. 1996) (refusing, in connection with summary-

judgment rule requiring clear and concise statements of material

facts, to “plac[e] the burden on the court, rather than on the

opposing party or his counsel, ‘to winnow the wheat from the

chaff’”).

                            *   *    *

  Mr. Noble shall therefore file a pleading setting forth in

precise detail, with corresponding evidentiary citations, which

requests for the inspection of documents he claims were refused

by the NALC, and why his Section 201 claim should succeed as to

each individual request.

  The defendants shall file a response to these arguments, which

shall include, among whatever other arguments the defendants

deem appropriate, an explanation, with corresponding evidentiary

citations, whether any requests still pursued by Mr. Noble have

been fully complied with.

  Mr. Noble may file a reply brief, which shall respond to the

defendants’ arguments but may not raise new arguments. See

Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 196 (D.C. Cir.

1992) (noting the general rule that courts “refuse[] to

entertain arguments raised for the first time in an appellant’s

reply brief”).

III. Conclusion




                                51
  For the foregoing reasons, the Court enters judgment in favor

of the defendants on Mr. Noble’s Section 501 claims and requests

supplemental briefing regarding Mr. Noble’s Section 201 claim.

An appropriate Order accompanies this Memorandum Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          March 27, 2015




                               52
