                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

                                   )
THOMAS BRENNAN, et al.,            )
                                   )
               Plaintiffs,         )
                                   ) Civil Action No. 11-1448(EGS)
          v.                       )
                                   )
HILDA L. SOLIS,                    )
Secretary of Labor,                )
                                   )
               Defendant.          )
                                   )

                          MEMORANDUM OPINION

     Plaintiffs Thomas Brennan and Charles Rightnowar filed this

action against the Secretary of Labor under Section 481 of the

Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”),

29 U.S.C. § 1981.     In their Complaint, plaintiffs request an

Order requiring the Secretary to file suit to set aside the

December 15, 2010 officer election in the National Division of

the Brotherhood of Locomotive Engineers and Trainmen (BLET) or,

in the alternative, for a supplemental Statement of Reasons as

to why the Secretary failed to file suit.      Upon consideration of

the motions, the responses and replies thereto, the applicable

law, the administrative record, and for the reasons set forth

herein, defendant’s motion is GRANTED and plaintiffs’ cross-

motion is DENIED as moot.
     I.     BACKGROUND

            a. Factual Background

          Plaintiffs were unsuccessful candidates for union officer

positions in the December 15, 2010 BLET election.          Compl. ¶¶ 7-

9.    Brennan was a candidate for the office of President in

BLET’s National Division.        Id. ¶ 2.   Plaintiff Rightnowar was a

candidate for the office of Secretary Treasurer of BLET’s

National Division.       Id. ¶ 3.   Incumbent President Dennis R.

Pierce and incumbent Secretary Treasurer William C. Walpert were

among the other opposing candidates in the election, and were

re-elected.       Id. ¶¶ 9-11.   Incumbent officers Pierce and Walpert

were part of what was called the “Unity Slate.”        Id. ¶¶ 12-13.

In addition to Pierce and Walpert, the Unity Slate included

several additional candidates, two of whom were running opposed

and several who were running unopposed.        Id. ¶ 13.

          The December 15, 2010 election was the first “rank and

file” election for the National Division; previously, positions

had been filled through a delegate convention.        Id. ¶ 16.

Plaintiffs allege that prior to the election, the incumbent

officers 1 set up a “Get Out the Vote” drive (“GOTV Drive”).        Id.

¶ 19.       Plaintiffs allege that the GOTV drive was “allegedly


1
  Plaintiffs’ allegation on this point makes an unclear reference
to “they.” See Compl. ¶ 19. It is unclear whether “they”
refers to the incumbent officers, the Unity Slate, or some
combination of the two.
                                      2
neutral” but “consisted of persons opposed to the use of the

rank and file election and in favor of the delegate convention.”

Id. ¶ 19.    Plaintiffs further allege that after the efforts to

change back to a delegate convention were rejected, the GOTV

Drive was continued for the upcoming election.     Id. ¶ 20.

     Plaintiffs allege that although the “official position” of

the incumbent officer candidates was that the BLET National

Division was sponsoring a neutral effort to increase voter

turnout, plaintiffs state that there were several improprieties

in connection with the administration of the GOTV Drive.

Plaintiffs allege that “[t]wo union officers headed the GOTV

Drive and worked on a full time basis throughout the campaign

period leading up to the December 15, 2010 period and were

possibly paid by two railroad companies.”     Compl. ¶ 21.

Plaintiffs further allege that the “Unity Slate web site stated

that the GOTV [Drive] was an activity of the Unity Slate

campaign.”    Id. ¶ 23.   Specifically, the website, a copy of

which is attached to the Complaint as an exhibit, told members

that “if they wished to support the Unity Slate, they should

become active in the ‘BLET Unity’s Slate Get Out the Vote

Drive.”   Id. ¶ 25.   Plaintiffs further allege that BLET officers

“were permitted on union time to make phone calls and contact

various members—allegedly just to urge them to vote.”     Id. ¶ 26.

Plaintiffs aver that “no one knows to whom such calls were made,

                                   3
and there is no documentation as to all members who may have

received such calls.”   Id. ¶ 27.

         b. Plaintiffs’ Pre-Election Protests

     Prior to the election, plaintiff Rightnowar filed several

pre-election protests on behalf of himself and Thomas Brennan. 2

In protest number ND-2010-17, filed November 8, 2010, Rightnowar

raised several issues with the then-upcoming election.    R. 56.

Rightnowar asserted

     (1) alleged violations of portions of the [LMRDA], the
     IBT Constitution, BLET By-laws and the BLET Election
     Rules; (2) the use of Union resources ‘to “construct”
     a nation-wide canvassing to get out the vote from the
     persons most likely to vote for the incumbent National
     Division officers’; (3) request for [National
     Secretary-Treasurer] Walpert’s replacement as
     ‘Election Officer’ with such appointment to be
     made/approved by ‘the IRB and President Hoffa’; (4) a
     ‘complete accounting’ of the alleged misuse of Union
     resources and; (5) ‘A ballot form that is fair and
     neutral and not skewed to favor the Unity Slate.

R. 56.   The Election Protest Committee determined that

Rightnowar did not meet his burden “to provide a preponderance

of reliable evidence that any members of the National Division

Advisory Board or any members of the Unity Slate are in


2
  Intervenor BLET suggests in a footnote that only the claims of
plaintiff Rightnowar are properly before the Court because
Brennan did not personally file any pre-election protests and
did not sign Rightnowar’s protests. BLET Opp. to Pls.’ Mot. for
Summ. J. at 3 n.2. In reply, the Secretary states that it does
not seek dismissal of Brennan as a plaintiff “because Rightnowar
is properly before the Court and dismissal of Brennan would not
alter the claims necessary for the court to decide.” Def.’s
Reply at 2 n.1.
                                    4
violation of the Election Rules in any respect.”      R. 64.    A

second pre-election protest, ND-2010-18, filed by letters dated

November 15 and 16, 2010, alleged substantially similar

violations.    R. 65.   The Election Protest Committee determined

that the second protest was not timely filed and declined to

consider it.    R. 67-68.   The Committee noted that it had

considered the identical issues in ND-2010-17.      R. 68.

     On December 8, 2010, Rightnowar filed an appeal of the

Election Protest Committee’s decision in ND-2010-17.      R. 78.

Rightnowar asserted that union funds had been improperly used in

connection with the activities of the Mobilization Network and

the GOTV Drive.    R. 79.   Rightnowar also alleged that Unity

Slate supporters were traveling on union time to engage in

election activities.     R. 79.   Rightnowar also challenged the

Election Protest Committee’s determination that George Faulkner,

rather than Walpert, was serving as Election Officer.        R. 79.

Finally, Rightnowar alleged that the current ballot was in

violation of BLET By-laws.     R. 79.   On December 15, 2010, the

BLET Advisory Board issued a Decision on Appeal on Rightnowar’s

pre-election protests ND-2010-17 and ND-2010-18.      R. 82.    The

Advisory Board concluded that the Election Protest Committee’s

decision was neither arbitrary nor capricious under the

applicable rules and affirmed the decision. R. 85-86.



                                    5
      After the election, on January 12, 2011, plaintiffs filed a

complaint with the Secretary asking that the election results be

set aside.   R. 409. (“Agency Complaint”).     The Agency Complaint,

which stated that it was based on pre-election protests ND-2010-

17 and ND-2010-18, alleged several violations of the LMRDA.       R.

51.   Plaintiffs alleged that “National Division officers running

for election used union funds to ‘get out the vote’ in the

officer election.”    R. 51.    Plaintiffs also alleged that union

funds were used to create a so-called Mobilization Network

during the election period, which had a bias toward the Unity

Slate.   R. 52.   Plaintiffs also alleged that railroad carrier

funds were also used in setting up the Mobilization Network.      R.

52.   Plaintiffs further alleged that the incumbent candidates

increased their official travel during the time they were

running for office and were essentially campaigning on union

funds, which was a misuse of union funds in violation of 29

U.S.C. § 481(g).    R. 53.     Plaintiffs also contended that a

defunct publication, the Locomotive Engineers and Trainmen

Journal was revived during the time period of the election

solely for the purpose of supporting the incumbent officers.      R.

54.   Finally, plaintiffs argued that “the very form of the

ballot was an ‘advertisement’ on behalf of the candidacy of the

Unity Slate” because the ballot listed the names of the members

of the Unity Slate, of whom all but four had already been

                                    6
elected.   R. 54.    Plaintiffs contended that the only purpose of

listing all of the names was making clear that the four

candidates had the support of the BLET establishment and that,

by comparison, plaintiffs “were marginal candidates unable to

form a full slate.”     R. 54.

     On May 25, 2011, the Secretary issued a Statement of

Reasons denying the relief requested in the Agency Complaint,

finding that no violations of Title IV, as alleged by plaintiff,

had occurred.   Statement of Reasons (“SOR”), Compl. Ex. B.     The

Secretary explained that plaintiffs’ allegations regarding the

incumbent officers’ improper use of union funds and resources

for the GOTV Drive were not substantiated by the evidence.      SOR

at 1.   Similarly, plaintiffs’ allegations that the incumbent

BLET National Division officers improperly campaigned while they

were being compensated by the union also were not substantiated

by the evidence.     Id.   The Secretary explained that the use of

the Mobilization Network was in accordance with Section 7(h) of

BLET’s 2006 Bylaws, despite the fact that this was the first

time the Mobilization Network had been used for officer

elections.   Id.    The Secretary further explained that the

investigation found that union members “received consistently

clear communications that the Mobilization Network’s purpose was

to increase voter turnout and not to direct members to vote for

specific candidates or slates.”      SOR at 2.   The Secretary noted

                                    7
that plaintiffs themselves “were asked to be part of [the] Get-

Out-the-Vote-Drive for the election.”    Id.    The Secretary

further concluded that BLET National Secretary-Treasurer Walpert

had not improperly served as an Election Officer while being a

candidate in the election, and that Walpert’s actions were

permitted within the 2006 Bylaws. 3   The Secretary also concluded

that there was no evidence of any discrimination in favor of or

against any candidate, or that “anything improper or irregular

occurred during the election.”   SOR at 2.     Finally, the

Secretary found that the candidates’ names were listed in the

election ballot in the “order specified in Article I of the

election rules.”   Id.   Thus, the Secretary concluded that there

was no violation of the Act. 4

       c. Proceedings Before This Court

     On August 8, 2011, plaintiffs filed this action, alleging a

violation of Section 706 of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 557.   Plaintiffs argue that the Secretary’s

Statement of Reasons was arbitrary and capricious.      Compl. ¶ 38.

Plaintiffs argue that the GOTV Drive violated the regulations

3
  This allegation is not mentioned specifically in the Agency
Complaint but had been alleged earlier in the union protest
process, and was addressed by the Secretary nonetheless.
4
  The Secretary rejected plaintiffs’ remaining claims as not
having been raised properly through the union’s internal protest
procedure. SOR at 2. The Secretary concluded that the
remaining issues had not been properly exhausted and declined to
reach those issues.


                                  8
regarding the use of union funds in union-officer election

campaigns.   Plaintiffs further challenge the Secretary’s

conclusion that there was no evidence to support plaintiffs’

claims in view of a statement on the Unity Slate campaign

website urging supporters to join the GOTV Drive.

      In the Complaint, plaintiffs also make various allegations

regarding what the Secretary allegedly did not properly

determine in the Statement of Reasons.    Plaintiffs allege that

the Secretary “has failed to explain why the use of union funds

in a Get Out the Vote drive of this particular kind is a

permitted use of union funds when it is not a permitted use in

the Secretary’s own regulations.”    Compl. ¶ 43.   Plaintiffs

further allege that “the Secretary fails to state whether the

officer election was conducted with adequate safeguards.”      Id. ¶

47.   Plaintiffs further contend that the Statement of Reasons

“fails to address whether safeguards were in place to prevent

the misuse of union funds in a Get Out the Vote drive.”     Id. ¶

50.   In addition, plaintiffs argue, the “Statement of Reasons

fails to even mention 401(c) or discuss the adequacy and

transparency of safeguards that plaintiffs and members of the

opposition to the Unity Slate could observe.”    Id. ¶   51.

Plaintiffs also argue that the Secretary impermissibly required

plaintiffs to “prove” misuse of union funds, and thus the

decision was both arbitrary and capricious and in violation of

                                 9
Section 401(c) of the LMRDA.   Id. ¶   53.   Plaintiffs conclude

that “[w]here a union has engaged in a new and novel use of

union funds in an election campaign in a manner not covered by

existing regulations, and where the union has put no adequate

safeguards in place, and where the Secretary has not provided

any discussion or meaningful discussion as to what such

safeguards must be if such an unprecedented use of union

treasury funds is upheld, the Secretary should either bring suit

or provide an adequate Statement of Reasons why the Secretary

has failed to do so.”   Id. ¶ 55.

     In their Complaint, plaintiffs request that the Court (1)

declare the Statement of Reasons to be inadequate for failure to

determine whether adequate safeguards were in place under the

standard of Section 401(c) of the LMRDA; (2) declare that the

Statement of Reasons is arbitrary and capricious and in conflict

with the law, specifically Section 401 of the LMRDA; (3) direct

the Secretary to either file suit to invalidate the December 15,

2010 election or provide a legally sufficient Statement of

Reasons as to why the Secretary has failed to do so.

     On November 1, 2011, the Secretary moved to dismiss or, in

the alternative, for summary judgment.    ECF No. 9.   The

Secretary argued that several of plaintiffs’ claims were not

raised before the Secretary and are outside of the scope of

judicial review.   As to the issues that were properly raised,

                                10
the Secretary argues that her decision was supported by the

evidence and was not arbitrary and capricious.     Plaintiffs filed

a cross-motion for summary judgment, arguing that the

Secretary’s decision was arbitrary and capricious.     ECF No. 14.

Plaintiffs argue that the Secretary failed to determine whether

the union officer election was conducted lawfully, that the

Secretary impermissibly disregarded evidence from a website, and

that the Secretary departed from applicable regulations and

enforcement policy.   On January 18, 2012, Intervenor BLET filed

a memorandum in opposition to plaintiffs’ cross-motion for

summary judgment and in support of defendants’ motion to dismiss

or in the alternative for summary judgment.    ECF No. 18.   BLET

argues that the Secretary’s decision was neither arbitrary nor

capricious and that plaintiffs’ arguments are based on mere

speculation and innuendo.   Also on January 18, 2012, the

Secretary filed a reply in further support of her motion and in

opposition to plaintiffs’ motion.    ECF No. 19.   The Secretary

argued again that plaintiffs’ election protests that were before

the Secretary did not allege that monitoring of campaign

expenditures is required under the LMRDA, and that plaintiffs

misconstrue the Secretary’s authority.    The Secretary also

argues that plaintiffs’ arguments are based on a

misrepresentation of the facts and speculation.     On November 19,

2012, plaintiffs filed a supplemental memorandum of law, to

                                11
which defendants responded, contending that a recent decision in

the case of Corner v. Solis, No. 11-8652, 2012 U.S. Dist. LEXIS

75742 (N.D. Ill. Jun. 1, 2012), required a finding in this case

that the Secretary’s Statement of Reasons was arbitrary and

capricious.

       The motions are ripe for the Court’s decision.

  II.    LEGAL FRAMEWORK

         a. Motion to Dismiss or, in the Alternative, for Summary

            Judgment

       The Secretary has moved for dismissal under Federal Rule of

Civil Procedure Rule 12(b)(6), and alternatively moves for

summary judgment under Rule 56.    Rule 12(d) provides that “[i]f,

on a motion under Rule 12(b)(6) . . . matters outside the

pleadings are presented to and not excluded by the court, the

motion must be treated as one for summary judgment under Rule

56.”    Fed. R. Civ. P. 12(d).   If the motion is considered under

Rule 56, “[a]ll parties must be given a reasonable opportunity

to present all the material that is pertinent to the motion.”

Id.    Here, because both parties have presented materials outside

the pleadings for the Court to consider in adjudicating their

motions, the Court deems it appropriate to treat both

submissions as motions for summary judgment.    See Marshall Cnty.

Health Care. Auth. v. Shalala, 988 F.2d 1221, 1226 & n. 5 (D.C.

Cir. 1993) (noting that a district court considering a Rule

                                  12
12(b)(6) motion “can consult the [administrative] record to

answer the legal question[s] before the court,” but that “[i]t

is probably the better practice for a district court always to

convert to summary judgment”); Mortgage Bankers Ass'n v. Solis,

864 F. Supp. 2d 193, 201-02 (D.D.C. 2012) (in APA case,

converting motion to dismiss, or in the alterative, for summary

judgment into a motion for summary judgment). 5

     “Summary judgment is the proper mechanism for deciding, as

a matter of law, whether an agency action is supported by the

administrative record and consistent with the APA standard of

review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d

42, 52 (D.D.C. 2010) (citing Stuttering Found. of Am. v.

Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)).   However, due

to the limited role of a court in reviewing the administrative

record, the typical summary judgment standards set forth in Rule

56(c) are not applicable.   Stuttering, 498 F. Supp. 2d at 207

(citation omitted).   Rather, “[u]nder the APA, it is the role of

the agency to resolve factual issues to arrive at a decision

that is supported by the administrative record, whereas ‘the

function of the district court is to determine whether or not as

a matter of law the evidence in the administrative record

5
  For the reasons discussed herein, the Court finds it
unnecessary to look beyond the Secretary’s Statement of Reasons
and the documents reflecting plaintiffs’ prior union protests;
nonetheless, the Court has converted this motion to one for
summary judgment.
                                13
permitted the agency to make the decision it did.’ ” Id.

(quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th

Cir. 1985)).

     A reviewing court will “hold unlawful and set aside agency

action, findings, and conclusions found to be ... arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with the law.”    Ludlow v. Mabus, 793 F. Supp. 2d 352,

354 (D.D.C.2011) (quoting 5 U.S.C. § 706(2)(A)).    In Motor

Vehicle Manufacturers Ass'n of U.S. v. State Farm Mutual

Automobile Insurance Co., the Supreme Court explained the

“arbitrary and capricious” review by noting that “an agency rule

would be arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to consider, entirely

failed to consider an important aspect of the problem, offered

an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product of agency

expertise.”    463 U.S. 29, 43 (1983).   However, the standard of

review is a narrow one and “[t]he court is not empowered to

substitute its judgment for that of the agency.”    San Luis

Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789

F.2d 26, 37 (D.C. Cir. 1986).    “[T]he party challenging an

agency's action as arbitrary and capricious bears the burden of

proof,” id., and the APA directs a reviewing court to “review

                                 14
the whole record or those parts of it cited by a party” in

making this assessment, 5 U.S.C. § 706.

          b. The LMRDA

     Title IV of the LMRDA governs union elections.    Under 29

U.S.C. § 481, union members are guaranteed free and democratic

elections.    See Wirtz v. Local 153, Glass Bottle Blowers Ass’n,

389 U.S. 463, 470-71 (1968).    Under Section 401(a) of the LMRDA,

“[e]very national or international labor organization, except a

federation of national or international labor organizations,

shall elect its officers not less often than once every five

years by secret ballot among the members in good standing or at

a convention of delegates chosen by secret ballot.”    29 U.S.C. §

481(a).    Section 401(c) of the LMRDA also provides that

“[a]dequate safeguards to insure a fair election shall be

provided, including the right of any candidate to have an

observer at the polls and at the counting of the ballots.”    Id.

§ 481(c).

     The LMRDA provides that any union member may challenge an

election believed to be held in violation of the statute's fair

election procedures by filing a complaint with the Secretary of

Labor after exhausting internal union remedies.    See 29 U.S.C. §

482(a).    The Secretary may file suit in federal district court

to invalidate the election if she determines that probable cause

exists to believe that that both (1) a violation of the Act has

                                 15
occurred that has not been remedied; and (2) the violation may

have affected the election’s outcome.   Dunlap v. Bachowski, 421

U.S. 560, 569-71 (1975); 29 U.S.C. § 482(b); 29 C.F.R. §

452.136.   The requirement that there be probable cause to

believe that the violation may have affected the outcome serves

to “free unions from the disruptive effect of a voided election

unless there is a meaningful relation between a violation of the

Act and results of a particular election.”   Wirtz v. Hotel,

Motel and Club Employees Union, Local 6, 391 U.S. 492, 507

(1968); see 29 C.F.R. § 452.5 (“[T]he Secretary as a matter of

policy will not file suit to enforce the election provisions

unless the violations found are such that the outcome may have

been affected.”).   If the Court finds that there was a violation

of Section 401 of the LMRDA that “may have affected the outcome

of an election, the court shall declare the election . . . to be

void and direct the conduct of a new election under supervision

of the Secretary and, so far as lawful and practicable, in

conformity with the constitution and bylaws of the labor

organization.”   29 U.S.C. § 482(c).

     The Secretary of Labor holds exclusive authority to bring

suit to set aside union elections that violate Title IV.     See 29

U.S.C. §§ 482, 483.   Title IV precludes private action by a

union member to contest a completed election.   See Local No. 82,

Furniture & Piano Moving, Furniture Drivers, Helpers,

                                16
Warehousemen & Packers v. Crowley, 467 U.S. 526, 544, 549

(1984).    “The legislative history shows that Congress weighed

how best to legislate against revealed abuses in union elections

without departing needlessly from its long-standing policy

against governmental intrusion into internal union affairs.”

Local 153, Glass Bottle Blowers Ass’n, 389 U.S. at 470-71.

       If the Secretary does not find probable cause to believe

that there were any violations of the Act that may have affected

the outcome of the election, the Secretary may not commence

legal action.    29 U.S.C. § 482(b).   Under such circumstances, a

union member is entitled to a statement of the Secretary’s

reasons for declining to sue.    If dissatisfied, the union member

may obtain judicial review of the Statement of Reasons to

determine whether the Secretary’s decision was arbitrary,

capricious, an abuse of discretion or otherwise not in

accordance with the law.    See Bachowski, 421 U.S. at 566, 571-

73; 29 C.F.R. § 458.64(b).    The Statement of Reasons is “to

cover the relevant points and eschew irrelevancies.”    Id. at

572.    The Statement of Reasons must permit the Court “to

determine with some measure of confidence whether or not the

discretion, which still remains with the Secretary, has been

exercised in a manner that is neither arbitrary nor capricious.”

Id. at 571.    The Secretary is not required to provide detailed



                                 17
reasons nor address every issue raised by Plaintiff in order for

her decision to be upheld.    Id. at 573.

     Judicial review of the Statement of Reasons is exceedingly

narrow.   Id. at 591 (Burger, J., concurring); see id. at 571-73.

“[S]ince the statute relies on the special knowledge and

discretion of the Secretary for the determination of both the

probable violation and the probable effect, clearly the

reviewing court is not authorized to substitute its judgment for

the decision of the Secretary not to bring suit.”     Id. at 571.

Review is to be confined to the four corners of the Statement of

Reasons, id. at 572, and the Court may not consider “challenges

to the factual bases for the Secretary’s conclusion either that

no violations occurred or that they did not affect the outcome

of the election.”   Id. at 573.    The Court must defer to the

Secretary’s factual findings.     Id.

     Finally, the remedies available to Plaintiff in the

district court are limited.    Should the Court determine that the

Secretary's Statement of Reasons fails to provide an adequate

account of her decision, the Court may not order a new election.

The Secretary retains the “exclusive authority to challenge and,

if successful, to supervise union elections.”     See Local No. 82

v. Crowley, 467 U.S. 526, 548 n.22 (1984).     If the Court

determines that the Secretary's decision was arbitrary and

capricious, the Secretary may be ordered to reopen consideration

                                  18
of Plaintiff's former complaint and to supplement her Statement.

See Bachowski, 421 U.S. at 574—75.    When the district court

determines that the Secretary's statement of reasons adequately

demonstrates that the decision not to sue is not contrary to

law, the complaining union member's suit fails and should be

dismissed.    Bachowski, 421 U.S. at 574.

    III. DISCUSSION

         a. Claims Properly Before the Court

      As an initial matter, it is important to distinguish

between the issues that were actually before the Secretary and

those that were not.   The Secretary may only consider issues

that are properly exhausted and raised in a complaint.      29

U.S.C. § 482(a)(1); Hodgson v. Local Union 6799, United

Steelworkers of Am., AFL CIO, 403 U.S. 333, 336 (1971). 6




6
  None of the parties squarely address whether the claims brought
by Thomas Brennan were properly exhausted. Intervenor BLET
suggests in a footnote that only the claims of plaintiff
Rightnowar are properly before the Court because Brennan did not
file any pre-election protests and did not sign Rightnowar’s
protests. BLET Opp. to Pls.’ Mot. for Summ. J. at 3 n.2. In
reply, the Secretary states in a footnote that it does not seek
dismissal of Brennan as a plaintiff “because Rightnowar is
properly before the Court and dismissal of Brennan would not
alter the claims necessary for the court to decide.” Def.’s
Reply at 2 n.1. Because the Court finds that exhaustion is not
jurisdictional under the LMRDA, see Solis v. Communications
Workers of America, 766 F. Supp. 2d 84, 97 (D.D.C. 2011), and
because plaintiffs’ claim will be dismissed for other reasons
discussed herein, the Court declines to reach the question of
whether Brennan exhausted his administrative remedies.
                                 19
      In the Agency Complaint, plaintiffs alleged several

violations in connection with the December 15, 2010 election.

Plaintiffs alleged that “National Division officers running for

election used union funds to ‘get out the vote’ in the officer

election.”   R. 51.   Plaintiffs also alleged that union funds

were used to create a so-called Mobilization Network during the

election period, which had a bias toward the Unity Slate.       R.

52.   Plaintiffs also alleged that railroad carrier funds were

also used in setting up the Mobilization Network.      R. 52.

Plaintiffs further alleged that the incumbent candidates

increased their official travel during the time they were

running for office and were essentially campaigning on union

funds, which was a misuse of union funds in violation of 29

U.S.C. § 481(g).    R. 53.     Plaintiffs also contended that a

defunct publication, the Locomotive Engineers and Trainmen

Journal was revived during the time period of the election

solely for the purpose of supporting the incumbent officers.         R.

54.   Finally, plaintiffs argued that “the very form of the

ballot was an ‘advertisement’ on behalf of the candidacy of the

Unity Slate” because the ballot listed the names of the members

of the Unity Slate, of whom all but four had already been

elected.   R. 54.   Plaintiffs alleged that the Agency Complaint

was based on Rightnowar’s pre-election protests numbered ND-

2010-17 and ND-2010-18.      R. 51.

                                      20
     In the Statement of Reasons, the Secretary addressed

several of these issues.    The Secretary first addressed

plaintiffs’ allegations regarding improper use of union funds in

connection with the Mobilization Network, the GOTV Drive, and

travel for campaigning.    SOR at 1.    The Secretary then addressed

plaintiffs’ allegations regarding the appearance of the ballots.

Id. at 2.   Finally, the Secretary addressed an allegation

regarding whether Secretary-Treasurer Walpert was serving as an

Election Officer, which had been raised in the union protest

process, even though this allegation was not specifically

addressed in plaintiffs’ Agency Complaint.      Id.   The Secretary

declined to address the remaining issues raised by plaintiffs,

finding that they were not properly exhausted under the union’s

internal protest procedure.    These allegations included that

railroad carrier funds were used in setting up the Mobilization

Network and that a journal was revived for the purpose of

supporting incumbent candidates.      Id.   In the Complaint and in

the parties’ subsequent briefing, plaintiffs do not challenge

the Secretary’s decision in the Statement of Reasons that these

remaining issues were not exhausted.

     Accordingly, the issues that were properly raised before

the Secretary by plaintiffs are: (1) the improper use of union

funds in connection with the December 15, 2010 election,

specifically in the GOTV Drive, the Mobilization Network, and

                                 21
travel for campaigning; (2) the appearance of the ballots; and

(3) whether Secretary-Treasurer Walpert was improperly serving

as Election Officer.

       b. Plaintiffs’ Allegations Regarding What the Secretary

          Failed to Decide

     In opposition to the Secretary’s motion and in support of

plaintiffs’ cross-motion for summary judgment, plaintiffs argue

that the Secretary’s decision was arbitrary and capricious

because it failed to address the issue of whether adequate

safeguards were in place to ensure that union funds were not

misused in violation of Section 401(c).   Pls.’ Cross-Mot. for

Summ. J. at 5.   Plaintiffs contend that in a December 17, 2010

post-election protest, they challenged the lack of adequate

safeguards.   Pls.’ Cross-Mot. for Summ. J. at 5.   Plaintiffs

also contend that the Agency Complaint put the Secretary on

notice of their allegation that adequate safeguards were not in

place by alleging that plaintiffs were unable to track and

monitor the GOTV Drive.    Id. at 6.

     There are several problems with plaintiffs’ argument.

First, plaintiffs did not make an “adequate safeguards” argument

in the Agency Complaint.    As the Secretary explains, plaintiffs

only raised allegations regarding misuse of union funds, not

that there were inadequate safeguards to prevent misuse of union

funds, and thus the Secretary’s failure to address adequate

                                 22
safeguards is not arbitrary or capricious.       Plaintiffs’

allegations, at most, put the Secretary on notice that

plaintiffs were unable to determine how the union funds were

being used.    Plaintiffs did not allege that the union failed to

have adequate safeguards in place to track the use of union

funds.   This is not a case where the Secretary overlooked entire

arguments.    See, e.g., Frizelle v. Slater, 111 F.3d 172, 177

(D.C. Cir. 1997).    The Secretary is not obligated to investigate

what is, at most, a tangential inference arising from

plaintiffs’ actual allegations.     Plaintiffs argue that Hodgson

v. Local Union 6799 requires the Court to liberally construe

plaintiffs’ allegations because “union members may use broad and

imprecise language in framing their internal union protests.”

403 U.S. 333, 340 (1971).     Hodgson concluded, however, that

union members are required to meet the exhaustion requirement by

indicating “in some discernible fashion” the alleged election

violation.    Id. at 341.   Here, the issue is not whether

plaintiffs were unable to articulate theories of election

violations; indeed, plaintiffs’ allegations have been

articulately and precisely made.       Rather, plaintiffs did not

include among their various allegations of wrongdoing any

allegation that BLET failed to provide adequate safeguards to

insure a fair election in violation of Section 401(c).



                                  23
     In addition, even if plaintiffs had included their

“adequate safeguards” argument in their Agency Complaint, they

failed to exhaust their remedies in the union protest

proceedings.    See 29 U.S.C. § 482.     Plaintiffs allege that they

raised the “adequate safeguards” argument in a December 17, 2010

post-election protest.    See R. 467.     Assuming that is true, the

December 17 protest was not incorporated into the Agency

Complaint, which specifically stated that it was based on the

November 8, 15 and 16 pre-election protests, for which

plaintiffs received a final decision on December 21, 2010.           In

addition, at the time Rightnowar filed his Agency Complaint,

Rightnowar had not yet received a final decision on his December

21, 2010 post-election protest.       The final decision on appeal

was not issued until January 21, 2011, nine days after the

filing of the Agency Complaint.       R. 486. 7   Accordingly, the

“adequate safeguards” issue was not properly exhausted and the

Secretary’s failure to address it is neither arbitrary nor

capricious.    See 29 U.S.C. § 482.

     In their opposition to defendants’ motion and in their

cross-motion for summary judgment, plaintiffs do not appear to

raise any other arguments regarding allegations the Secretary




7
  The January 21, 2011 Decision on Appeal does not appear to
discuss an “adequate safeguards” violation.
                                  24
failed to address in the Statement of Reasons.     Accordingly,

plaintiffs’ arguments on those points are deemed conceded.

       c. Plaintiffs Allege that the Secretary’s Finding of “No

          Evidence” was Arbitrary and Capricious

     Plaintiffs next turn to the Secretary’s decision that the

investigation did not substantiate plaintiffs’ allegations that

union funds were used improperly.     Section 401(g) of the Act

prohibits the use of employer or union funds to promote a

candidate for union office as follows:

     No moneys received by any labor organization . . .
     shall be contributed to promote the candidacy of any
     person in any election subject to the provisions of
     this subchapter. Such moneys of a labor organization
     may be utilized for notices, factual statements of
     issues not involving candidates, and other expenses
     necessary for the holding of an election.

29 U.S.C. § 481(g).   The Act prohibits promotion of candidates,

as emphasized by the related regulation, which states that “the

Act does not prohibit impartial publication of election

information.”   Id.

     In the Statement of Reasons, the Secretary concluded that

the use of union funds in the December 15, 2010 election did not

violate the Act.   The Secretary further explained that the

Mobilization Network was permitted under Section 7(h) of the

BLET By-laws.   SOR at 1.   The Secretary found that union members

had received “consistently clear communications” regarding the

purpose of the Mobilization Network and about efforts to

                                 25
increase voter turnout.    The Secretary noted that even

Rightnowar was asked to participate in the GOTV Drive.     The

Secretary concluded that

     [t]he investigation found no evidence that the
     Mobilization Network was used to promote the candidacy
     of the incumbent slate, or that the Mobilization
     Network directed its efforts toward supports of the
     incumbent slate. The investigation also found no
     evidence that anyone working for the Mobilization
     Network campaigned for the incumbent slate while being
     paid by the union or at times when activities were to
     be devoted to Mobilization Network activities. There
     was no violation of the Act.

SOR at 2.   Plaintiffs first argue a number of theories regarding

the motivation of various union members and also argue that the

“lack of adequate safeguards” caused there to be no evidence.

In addition, plaintiffs cite a piece of evidence—a website—that

they contend establishes “the Unity Slate’s use of the GOTV for

campaign purposes.”   Pls.’ Mot. for Summ. J. at 9 (citing Compl.

Ex. A).   Specifically, the Unity Slate’s website stated:

     Volunteer to participate in the BLET Unity Slate get
     out the vote campaign in the historical one man one
     vote election following our National Convention in
     October. It is imperative that all members exercise
     our right to vote in this election and we need your
     help to encourage everyone to vote.

Compl. Ex. A.   Plaintiffs acknowledge that this evidence was

before the Secretary. 8   Plaintiffs also admit that the Secretary

8
  Plaintiffs acknowledge that the Secretary requested evidence
regarding whether the union officers who worked on the “Get Out
The Vote Drive” picked their own supporters to call or engage in
the drive to help the Unity Slate. Compl. ¶ 29. Plaintiffs
also acknowledge that plaintiff’s counsel spoke with
                                 26
is not required to address in the Statement of Reasons every

piece of evidence submitted.   Plaintiffs argue, however, that

the Secretary’s statement that there was “no evidence” of misuse

of union funds suggests that the Secretary did not consider the

website evidence at all, rendering the Statement of Reasons

arbitrary and capricious.

     The Secretary argues that the statement on the Unity

Slate’s website is not evidence that the GOTV Drive was used to

promote particular candidates on the incumbent slate.    In this

respect, the Secretary contends that plaintiffs misunderstand

the applicable statutory standard.   Specifically, the Secretary

argues that Section 401(g) prohibits the “promotion” of a

particular candidate, and it was under the standard that

plaintiffs’ allegations were evaluated.     The Secretary contends

that plaintiffs’ arguments focus instead on an alleged

subjective purpose of the GOTV Drive to support the incumbent

slate.

     The Court agrees with the Secretary.    As an initial matter,

and as plaintiffs concede, the Secretary is not required to

address in the Statement of Reasons every piece of evidence


representatives of the Department of Labor during the
Department’s investigation of plaintiffs’ allegations and
provided the Department with evidence that purported to support
plaintiffs’ allegations; in particular, the contents of the
website. Compl. ¶ 30.



                                27
before her.   Bachowski, 421 U.S. at 573.   In addition, the Court

finds that the statement on the website is does not, by itself,

establish probable cause that union funds were misused, and that

the misuse of union funds affected the outcome of the election.

See 29 U.S.C. § 482(b).   At most, it evidences the unknown

writer’s belief that the Unity Slate had organized the GOTV

Drive.   The Court notes that the statement is otherwise neutral

on its face, encouraging everyone to vote.    And, as the

Secretary noted, plaintiff Rightnowar was asked to be a part of

the Mobilization Network.   SOR at 2.   In view of all of these

factors, the Secretary’s finding that there was “no evidence” of

the misuse of union funds is not arbitrary or capricious. 9




9
  The case submitted by plaintiffs with a notice of supplemental
authority also does not provide support for plaintiffs’
arguments. See Corner v. Solis, No. 11-8652, 2012 U.S. Dist.
LEXIS 75742 (N.D. Ill. Jun. 1, 2012). In Corner, the district
court remanded a narrow issue to the Secretary for a
supplemental statement of reasons. Specifically, the court
found that the Secretary’s decision not to challenge the
election eligibility of a union member was not sufficiently
explained in the Statement of Reasons. The Secretary had
appeared to conclude that probable cause existed to believe that
a violation had occurred, but the Secretary then cited to an
inapplicable statutory provision in stating that suit would not
be brought. Corner thus stands for the unremarkable proposition
that a court may remand an issue to the Secretary in the
appropriate case where the Secretary’s reasoning is unclear or
contradictory. This is not such a case. Because plaintiffs
failed to raise the “adequate safeguards” issue properly, the
Secretary’s failure to address it does not require remand.
                                28
       The Court has considered plaintiffs’ other arguments and

finds that they lack merit. 10   When the district court determines

that the Secretary's statement of reasons adequately

demonstrates that the decision not to sue is not contrary to

law, the complaining union member's suit fails and should be

dismissed.      Bachowski, 421 U.S. at 574.

     IV.   CONCLUSION

       For all of the foregoing reasons, defendant’s motion to

dismiss or, in the alternative, for summary judgment is GRANTED.

Plaintiff’s cross-motion for summary judgment is DENIED as moot.

An appropriate Order accompanies this Memorandum Opinion.



Signed:      Emmet G. Sullivan
             United States District Judge
             March 31, 2013




10
  Plaintiffs’ final argument is that the Secretary’s decision
not to bring suit was arbitrary and capricious because it is
allegedly inconsistent with the Secretary’s own regulations.
Here, plaintiffs are essentially repeating their allegation that
union funds were used in violation of Section 401(g), which
prohibits the use of union funds to “promote” certain
candidates. Plaintiffs’ argument assumes that union funds were
used to promote certain candidates despite the Secretary’s
conclusion that no violation of the Act occurred. For the
reasons stated above, the Court finds that the Secretary’s
decision was not arbitrary and capricious.
                                  29
