PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALEXIS M. HERMAN, Secretary of
Labor, United States Department of
Labor,
Plaintiff-Appellant,
                                                                   No. 99-1684
v.

LOCAL 305, NATIONAL POST OFFICE
MAIL HANDLERS, LIUNA, AFL-CIO,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-608)

Argued: April 4, 2000

Decided: May 23, 2000

Before HAMILTON, Senior Circuit Judge,
John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation, and David A. FABER,
United States District Judge for the Southern District of
West Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Senior Judge Hamilton
wrote the opinion, in which Senior Judge Godbold and Judge Faber
joined.

_________________________________________________________________
COUNSEL

ARGUED: Douglas Harry Hallward-Driemeier, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Thamer Eugene Temple, III,
MCSWEENEY, BURTCH & CRUMP, P.C., Richmond, Virginia, for
Appellee. ON BRIEF: David W. Ogden, Acting Assistant Attorney
General, Helen F. Fahey, United States Attorney, Barbara C. Biddle,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellant.

_________________________________________________________________

OPINION

HAMILTON, Senior Circuit Judge:

The Labor Management Reporting and Disclosure Act of 1959
(LMRDA), 29 U.S.C. §§ 401-531, authorizes the Secretary of Labor
(the Secretary) to initiate lawsuits in federal district court challenging
union elections that violate the terms of the LMRDA. See id.
§ 482(b). However, before the Secretary may bring an action under
the LMRDA, a union member first must file a timely administrative
complaint with the Secretary. See id. § 482(a). Under the LMRDA, a
union member may file an administrative complaint with the Secre-
tary within one calendar month of when either (1) the union member
"has exhausted the remedies available under the constitution and
bylaws of such organization and of any parent body," or (2) the union
member has "invoked such available remedies without obtaining a
final decision within three calendar months after their invocation." Id.
§ 482(a), (a)(1), (a)(2).

In this case, the Secretary brought this action against Local 305 of
the National Postal Mail Handlers Union (the Union) alleging, inter
alia, that the Union had used membership dues to promote its incum-
bent president's candidacy through its newsletter in violation of the
LMRDA. In response to the Secretary's complaint, the Union moved
to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), that
portion of the Secretary's complaint challenging the Union's election
for president.1 In granting the Union's motion to dismiss, the district
_________________________________________________________________
1 In her complaint, the Secretary challenged three other elections con-
ducted by the Union: (1) the election for state executive board member-

                     2
court held that the union member's administrative complaint, which
formed the basis of that portion of the Secretary's complaint challeng-
ing the Union's election for president, was not timely filed. On this
basis, the district court concluded that it lacked subject matter juris-
diction over that portion of the Secretary's complaint challenging the
Union's election for president. For the reasons stated below, we con-
clude that the union member's administrative complaint, which
formed the basis of that portion of the Secretary's complaint challeng-
ing the Union's election for president, was timely filed and, therefore,
the district court had subject matter jurisdiction over that portion of
the Secretary's complaint. Accordingly, we vacate the district court's
judgment and remand the case to the district court with instructions
to consider on the merits the Secretary's claims as they relate to the
Union's presidential election.

I

On January 17, 1998, the Union held its regularly scheduled trien-
nial election of officers. The election results were certified on January
30, 1998, and those results were posted for the general membership
of the Union during the first week of February 1998. Ronald Jones
(Jones) won the election for president by a margin of more than two
to one over the next closest candidate, Renee Holiday (Holiday).

On February 16, 1998, Holiday filed a timely protest with the
National Postal Mail Handlers Union's national president (National
President).2 In her protest, Holiday alleged, among other things, that
Jones had used union funds for campaigning, including sending a
_________________________________________________________________
Maryland; (2) the election for administrative vice president-Baltimore,
Maryland; and (3) the election for administrative vice president-
Washington, D.C. With respect to these three elections, in its motion to
dismiss, the Union conceded that new elections for those offices should
be conducted under the supervision of the Secretary. Accordingly, the
only election at issue before this court is the Union's election for presi-
dent.
2 Under section 6(1) of the Union's constitution, protests regarding the
conduct of an election must be filed with the National President within
fifteen days of the posting of the election results.

                     3
campaign magazine in the guise of a union newsletter. On May 13,
1998, the National President issued a letter denying Holiday's protest,
and Holiday received that letter the following day.

Under the Union's constitution, Holiday had fifteen days from the
date of her receipt of the National President's decision to appeal that
decision to the National Postal Mail Handlers Union's national execu-
tive board (National Executive Board). Holiday did not appeal the
National President's decision to the National Executive Board.
Instead, on June 14, 1998, she filed an administrative complaint with
the Secretary.

After investigating Holiday's administrative complaint, the Secre-
tary filed this action in the United States District Court for the Eastern
District of Virginia. As noted earlier, the Secretary's complaint chal-
lenged four of the elections held on January 17, 1998.3

On December 17, 1998, the Union moved to dismiss that portion
of the Secretary's complaint challenging the Union's election for
president. In its motion, the Union argued that Holiday's administra-
tive complaint was not timely filed with the Secretary, and, therefore,
the district court lacked subject matter jurisdiction over the Secre-
tary's challenge to the Union's election for president. On April 8,
1999, the district court granted the motion, and the Secretary noted a
timely appeal.

II

On appeal, the Secretary challenges the district court's determina-
tion that it lacked subject matter jurisdiction over the Secretary's chal-
lenge to the Union's election for president. In this case, the Secretary
carries the burden of proving subject matter jurisdiction. See Jones v.
American Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999).
We review de novo the district court's determination that it lacked
subject matter jurisdiction. See id.

Under the LMRDA, the Secretary is authorized to initiate lawsuits
_________________________________________________________________

3 See ante at 2 n.1.

                       4
in federal district court challenging union elections that violate the
terms of the LMRDA. See 29 U.S.C. § 482(b). However, before the
Secretary can bring a lawsuit challenging a union election, a union
member first must file a timely administrative complaint with the Sec-
retary. See id. § 482(a). Section 482(a) of the LMRDA provides in
relevant part:

          (a) Filing of complaint; presumption of validity of chal-
          lenged election.

           A member of a labor organization--

            (1) who has exhausted the remedies available
          under the constitution and bylaws of such orga-
          nization and of any parent body, or

            (2) who has invoked such available remedies with-
          out obtaining a final decision within three cal-
          endar months after their invocation,

           may file a complaint with the Secretary within one cal-
          endar month thereafter alleging the violation of any
          provision of § 481 of this title . . . .

Id. § 482(a).

Courts have recognized that § 482(a) establishes two procedural
requirements that must be met before the Secretary may file a com-
plaint in federal district court challenging a union election. See, e.g.,
Reich v. Local 399, IBEW, 3 F.3d 184, 188 (7th Cir. 1993); Schultz
v. Local 1291, Int'l Longshoreman's Ass'n, 429 F.2d 592, 595 (3d
Cir. 1970). First, the union member must have either (1) fully
exhausted all remedies available under the union's constitution and
bylaws, see 29 U.S.C. § 482(a)(1), or (2) invoked the remedies pro-
vided by the union's constitution and bylaws for a period of three
months and not obtained a final decision, see id. § 482(a)(2). Second,
the union member must file an administrative complaint with the Sec-
retary within one month of either full exhaustion of the union's reme-
dies or the expiration of the three-month period of futile invocation
of union remedies. See Local 399, 3 F.3d at 188.

                     5
As noted above, the district court held that Holiday's administra-
tive complaint was not timely filed with the Secretary and, therefore,
the district court lacked subject matter jurisdiction over that portion
of the Secretary's complaint challenging the Union's election for
president. In reaching this holding, the district court first found, as
both parties had agreed, that § 482(a)(1) was inapplicable because
Holiday had not exhausted her administrative remedies, including
appeals, available under the Union's constitution. The district court
next concluded that § 482(a)(2) was inapplicable because Holiday had
obtained a final decision within three months of invoking her admin-
istrative remedies. According to the district court, the National Presi-
dent's May 13, 1998 decision was a final decision even though
Holiday enjoyed the right to appeal that decision. Notwithstanding its
holding that § 482(a)(2) was inapplicable, the district court went on
to conclude that Holiday could have filed a timely administrative
complaint under § 482(a)(2) if she had done so within one month of
the National President's May 13, 1998 decision. However, because
Holiday filed her administrative complaint on June 14, 1998, more
than one month after the date of the National President's decision, the
district court concluded that her administrative complaint was not
timely filed. In reaching this latter conclusion, the district court
opined that the date of the National President's decision and not the
date that Holiday received that decision was the date that triggered
§ 482(a)'s one-month period.

It is clear that Holiday did not exhaust all of her union remedies
as required under § 482(a)(1). The full process of appeal would have
taken her to the National Executive Board and to the Laborer's Inter-
national Union of North America. Therefore, the question presented
in this case is whether Holiday invoked the Union's available reme-
dies without obtaining a final decision within three months and, thus,
fell within the confines of § 482(a)(2).

The parties correctly agree that § 482(a)(2)'s three-month period
began on February 16, 1998 when Holiday filed her protest with the
National President and ended three months later on May 16, 1998.
The parties' principal disagreement centers on whether the district
court correctly concluded that the National President's May 13, 1998
decision was a "final decision." If the National President's decision
was a final decision, then, by its terms, § 482(a)(2) was unavailable

                    6
to Holiday. However, if the National President's May 13, 1998 deci-
sion was not a final decision, then § 482(a)(2) was available to Holi-
day because on May 16, 1998, the date on which the thirty-day period
ended, she was still invoking her union remedies, i.e., she had union
remedies available that were unexhausted.

To determine what constitutes a final decision under§ 482(a)(2),
we must first examine the relevant statutory language chosen by Con-
gress to express its intentions. See Holloway v. United States, 119
S. Ct. 966, 969 (1999). If the intent of Congress is clear, then our
analysis proceeds no further, for we "must give effect to the unam-
biguously expressed intent of Congress." Chevron U.S.A., Inc. v. Nat-
ural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

Because there are several plausible meanings for the term "final
decision," we believe the term is ambiguous. A decision may be con-
sidered a final decision when a union representative, such as the
National President in this case, renders his decision. See BLACK'S
LAW DICTIONARY 847 (7th ed. 1999) (defining a final decision or
judgment as a "court's last action that settles the rights of the parties
and disposes of all issues in controversy, except the award of costs
(and, sometimes, attorney's fees) and enforcement of the judgment").
This is the definition chosen by the district court. Alternatively, in the
context of a union that has one or multiple layers of appellate review,
a decision could be considered a final decision when the union's high-
est appellate tribunal issues its decision, or, in the absence of such, a
decision could be considered a final decision when any period for
appeal established by the union's constitution or bylaws expires.

Because the term "final decision" is ambiguous, we must determine
what level of deference we should afford the Secretary's interpreta-
tion of the term "final decision." "The law is well settled that an agen-
cy's interpretation of a statute with which it has been charged with
administering and which has been reduced to a regulation is to be
fully accepted by a court as long as Congress has not directly spoken
as to the precise question at issue and the interpretation proffered by
the agency is a permissible one." Jones, 192 F.3d at 427. Here, in
accordance with its statutory duty to administer those provisions of
the LMRDA pertaining to the enforcement of § 481, see 29 U.S.C.
§ 482(b), the Secretary has promulgated interpretive regulations con-

                     7
cerning § 481's enforcement. See 29 C.F.R. §§ 452.135-452.136. The
Secretary's proffered interpretation of the term"final decision" as
found in § 482(a)(2) has been reduced to a regulation, see id.
§ 452.135, and Congress has not directly spoken on what constitutes
a "final decision." Therefore, if the Secretary's proffered interpreta-
tion is a permissible one, we must enforce the Secretary's interpreta-
tion. See id.

The Secretary's interpretation of § 482(a) is contained in 29 C.F.R.
§ 452.135. That section of the Code of Federal Regulations states:

          (a) Any member of a labor organization may file a com-
          plaint with the Office of Labor-Management Standards
          alleging that there have been violations of require-
          ments of the Act concerning the election of officers,
          delegates, and representatives (including violations of
          election provisions of the organization's constitution
          and bylaws that are not inconsistent with the Act.). The
          complaint may not be filed until one of the two follow-
          ing conditions has been met: (1) The member must
          have exhausted the remedies available to him under the
          constitution and bylaws of the organization and its par-
          ent body, or (2) he must have invoked such remedies
          without obtaining a final decision within three calendar
          months after invoking them.

          (b) If the member obtains an unfavorable final decision
          within three calendar months after invoking his avail-
          able remedies, he must file his complaint within one
          calendar month after obtaining the decision. If he has
          not obtained a final decision within three calendar
          months, he has the option of filing his complaint or of
          waiting until he has exhausted the available remedies
          within the organization. In the latter case, if the final
          decision is ultimately unfavorable, he will have one
          month in which to file his complaint.

29 C.F.R. § 452.135.

                    8
Under the Secretary's regulation, before a union member may file
an administrative complaint with the Secretary, the union member
must exhaust her union remedies by obtaining a final decision by the
union's highest tribunal and, thereafter, file within one month of that
decision. Alternatively, if the union member has not obtained a final
decision by the union's highest tribunal within three months of invok-
ing her union remedies, she can file with the Secretary within one
month after the three-month period expires. Thus, under the Secre-
tary's interpretation, a union member who has diligently pursued
available union remedies will necessarily have satisfied § 482(a)(1) or
§ 482(a)(2) no later than three months after invoking the union's
remedial procedures; if the requirements of § 482(a)(1) are not met at
the end of the three-month period, i.e., the union's highest tribunal,
through no fault of the union member, has not rendered a decision,
then the requirements of § 482(a)(2) will have been met and vice-versa.4

We have no trouble concluding that the Secretary's interpretation
of the operation of § 482(a) is a permissible one. As noted above, in
the context of a union that has one or multiple layers of appellate
review, the term "final decision" plausibly can be construed to mean
a decision rendered by the union's highest appellate tribunal. This is
the interpretation chosen by the Secretary. We note that the Secre-
tary's interpretation fully comports with the manifest purpose of
§ 482(a) which is "to postpone governmental intervention until the
union is afforded the opportunity to redress the[LMRDA] violation."
Wirtz v. Local 153, Glass Bottle Blowers, Ass'n , 389 U.S. 463, 472
(1968). Under the Secretary's interpretation, a union is given the lati-
tude to establish its own appellate review process, but must ensure
that this review process is completed in three months. In our view, the
Secretary's interpretation furthers the Congressional goal of protect-
_________________________________________________________________
4 At oral argument, the Secretary acknowledged that if a union member
fails to appeal a decision in the union review process, and the time for
appeal expires before the three-month period of§ 482(a)(2) expires, the
union member cannot file with the Secretary. Under these circumstances,
§ 482(a)(1) obviously is unavailable because the union member did not
exhaust her available remedies under the union's constitution. Section
482(a)(2) likewise is unavailable because the union member has not "in-
voked such available remedies" under the constitution and bylaws of the
union.

                    9
ing union independence, while, at the same time, ensuring that elec-
tion challenges are decided promptly. See S. Rep. No. 86- 187 (1969),
reprinted in 1959 U.S.C.C.A.N. 2318, 2337 (stating that § 482(a)
"preserves a maximum amount of independence and self-government
by giving every international union the opportunity to correct
improper elections. . . . Since time is of the essence, no complaint
may be entertained which is filed more than 1 month after the union
has denied a remedy or the 3-month period has expired"). The Secre-
tary's interpretation also avoids the result, surely not intended by
Congress, of requiring a union member to continue to exhaust avail-
able remedies by filing a notice of appeal after the three-month period
has expired.

The reasonableness of the Secretary's interpretation of the applica-
tion of § 482(a) becomes all the more apparent when one examines
the illogic of the district court's interpretation. First, under the district
court's construction of the operation of § 482(a), the one month filing
deadline under § 482(a) was triggered on May 13, 1998 when the
National President's decision was issued. However, the alternative
statutory triggering events for the one month filing deadline are
exhaustion, see 29 U.S.C. § 482(a)(1), which all parties (and the dis-
trict court) agree did not occur, or the absence of a final decision at
the end of the three month-period. See id.§ 482(a)(2) ("[A union
member] who has invoked such available remedies without obtaining
a final decision within three calendar months after their invocation
. . . ." (emphasis added)). Thus, the district court's construction of the
operation of § 482(a) is incongruous with the plain language of
§ 482(a), as it allows § 482(a)'s one month filing deadline to be trig-
gered where the union member has not exhausted her union remedies,
but has obtained a decision from the union's initial decision maker
within the three-month period.

Second, the district court's holding that a union member must file
an administrative complaint with the Secretary within one month of
obtaining the decision of the union's initial decision maker, in fact,
subverts union independence because it permits a union member to
file an administrative complaint with the Secretary without pursuing
further union remedies for the remainder of the three-month period.
For example, if the National President's decision had been issued on
March 1, 1998, under the district court's construction, Holiday could

                      10
have filed an administrative complaint with the Secretary under
§ 482(a)(2) any time between March 1 and April 1, 1998, rather than
pursuing further union remedies through the end of the three-month
period on May 16, 1998. This construction is blatantly at odds with
Congress' express intent that a union member invoke the remedies of,
not only the union member's local union, but also of its "parent
body." Id. § 482(a)(2).

Finally, under the district court's interpretation of the operation of
§ 482(a), the only time § 482(a)(2)'s three-month period is implicated
is when the union's initial decision maker does not issue a decision
within the three-month period. In any other case, a union member
could file an administrative complaint with the Secretary only when,
if ever, all of the union's internal appeals were concluded. Surely,
Congress did not intend to allow unions to have the ability to post-
pone government intervention indefinitely.

Our inquiry need not proceed further. However, several cases inter-
preting § 482(a) are further instructive and consistent with the Secre-
tary's interpretation of § 482(a) that a union member is not required
to continue to exhaust available union remedies by filing a notice of
appeal after the three-month period expires. In Martin v. Local 480,
Int'l Bhd. of Teamsters, 946 F.2d 457 (6th Cir. 1993), two unsuccess-
ful candidates for union office timely protested the union's elections
on November 8, 1989, thus triggering the three-month period that
expired on February 8, 1990. See id. at 459. On February 6, 1990, the
protest was denied by the union's joint council, and, under the union's
constitution, the unsuccessful candidates had fifteen days (or until
February 21, 1990) to appeal the denial to the union's general execu-
tive board. See id. The unsuccessful candidates filed an appeal seven-
teen days later with the union's general executive board. See id. at
459-60. On February 28, and March 1, 1990, respectively, each
unsuccessful candidate filed an administrative complaint with the
Secretary. See id. at 460. On March 8, 1990, the union's general exec-
utive board denied the appeal because it was untimely. See id.

In Local 480, the Sixth Circuit concluded that the unsuccessful
candidates were not required to exhaust available union remedies and,
instead, could file an administrative complaint with the Secretary

                    11
under § 482(a)(2). See id. at 461-63. In reaching this conclusion, the
Local 480 court observed that

          the union was afforded the opportunity intended by the Act
          to hear and redress the complaining members' charges, but
          it failed to render a final decision within three months after
          the complainants initially invoked the union's internal griev-
          ance procedures. Consequently, the union members' com-
          plaints, filed with the Secretary within one month after the
          three-month deadline passed, complied with the prerequi-
          sites of section [482(a)(2)]. . . .

          When the three-month period lapsed, the complainants had
          done all that they were required to do under the union rules
          for invoking internal remedies and had failed to meet no
          deadline under those rules. Consequently, under the Act,
          they had the right to complain to the Secretary of Labor
          when the process they invoked had not run its course at the
          expiration of three calendar months.

Id. at 461-62.

The court in Local 399 reached a similar result to that reached by
the court in Local 480. In Local 399, union members filed a formal
protest of an upcoming election with the international vice-president
of the union on May, 13, 1991, thus triggering the three-month period
that expired on August 13, 1991. See 3 F.3d at 185. On May 20, 1991,
the international vice-president denied the protest. Following the June
10, 1991 election, the union members appealed the international vice-
president's denial to the union's international president. On July 26,
1991, the international president denied the appeal. Under the union's
constitution, the union members had until August 26, 1991 to appeal
the international president's decision to the union's international
executive council. Instead of filing an appeal, the union members
filed an administrative complaint with the Secretary on September 6,
1991. See id. at 185-87.

Relying heavily on the Sixth Circuit's decision in Local 480, the
Seventh Circuit held in Local 399 that the union members were not
required to file an appeal with the international executive council to

                    12
preserve their right to file an administrative complaint with the Secre-
tary. See id. at 190-91. According to the court, § 482(a)(2)'s invoca-
tion of remedies requirement is satisfied if the union member does all
that he is required to do under the union's rules for invoking union
remedies and meets all of those deadlines during the three-month
period. See id. at 191. Because the union members had met all dead-
lines under the union's rules on the date the three-month period
expired (August 13, 1991), the union members did not have to file an
appeal by August 26, 1991 and could file a timely administrative
complaint with the Secretary up until September 13, 1991, which they
did. See id.

Like the union members in both Local 480 and Local 399, Holiday
met all deadlines on the date the three-month period expired, May 16,
1998. She, therefore, had until June 16, 1998 to file an administrative
complaint with the Secretary. Because she filed her administrative
complaint with the Secretary on June 14, 1998, her administrative
complaint was timely filed. Because her administrative complaint was
timely filed, the district court had subject matter jurisdiction over that
portion of the Secretary's complaint challenging the Union's election
for president.

III

For the reasons stated herein, the judgment of the district court is
vacated and the case is remanded to the district court with instructions
to consider on the merits the Secretary's claims as they relate to the
Union's presidential election.

VACATED AND REMANDED

                     13
