                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-1999

Ruocchio v. Local 60
Precedential or Non-Precedential:

Docket 98-6281,98-6363




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Recommended Citation
"Ruocchio v. Local 60" (1999). 1999 Decisions. Paper 160.
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Filed June 23, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-6281 & 98-6363

EUGENE RUOCCHIO;
ROBERT A. D'ANGIOLILLO,
       Appellants

v.

UNITED TRANSPORTATION UNION, LOCAL 60;
DONALD J. BOGEN (Dan);
UNITED TRANSPORTATION UNION

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 97-cv-5732)
(District Court Judge: Honorable Nicholas H. Politan)

Argued: March 2, 1999

Before: STAPLETON, RENDELL, and ALDISERT,
Circuit Judges

(Filed June 23, 1999)

       Arthur L. Fox, II, Esq. (ARGUED)
       Lobel, Novins & Lamont
       1275 K Street, N.W., Suite 770
       Washington, DC 20005
        Attorney for Appellants
       Kevin C. Brodar, Esq. (ARGUED)
       United Transportation Union
       Assistant General Counsel
       14600 Detroit Avenue
       Cleveland, OH 44107
       Timothy R. Hott, Esq.
       Hott & Margolis
       591 Summit Avenue, Suite 300
       Jersey City, NJ 07306
        Attorneys for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellants Eugene Ruocchio and Robert A. D'Angiolillo,
members of the United Transportation Union ("UTU"),
appeal the District Court's dismissal of their action against
appellee UTU and its local chapter and chairperson.
Ruocchio was suspended from his position as treasurer of
the local chapter, UTU Local 60, when he was charged with
"willfully circularizing untrue statements" in violation of
Article 78 of the UTU constitution. Ruocchio filed suit
against the UTU, Local 60, and Donald Bogen, the General
Chairperson of Local 60, alleging that the charges against
him violated Title I of the Labor-Management Reporting and
Disclosure Act ("LMRDA"), seeking reinstatement to his
position, and requesting various forms of injunctive and
declaratory relief, as well as money damages and attorney's
fees. The District Court, while retaining jurisdiction,
determined not to proceed to entertain the action until after
the union's internal procedure was complete. Although the
union Trial Board found that Ruocchio had violated Article
78 and removed him from office, its ruling was overturned
by the UTU's International President during the internal
union appeals process and Ruocchio was reinstated as
treasurer. The District Court then dismissed Ruocchio's
action as moot, finding that, in light of Ruocchio's
reinstatement as treasurer, no case or controversy existed.
Ruocchio filed the instant appeal. We find that Ruocchio's
complaint is not moot, and remand to the District Court for
further proceedings in light of this opinion.

                               2
I.

Eugene Ruocchio and Robert A. D'Angiolillo are members
of the UTU and its local chapter, UTU Local 60. Ruocchio
also served as treasurer of Local 60, having been elected
with support from D'Angiolillo. As treasurer, Ruocchio was
responsible for depositing a refund check for overpayment
Local 60 received from Vernay Moving, Inc., a moving
company that had moved Local 60 into new offices.
Ruocchio claims that he was unable to deposit Vernay's
original refund check, dated May 28, 1997, because it was
not made out to the union, but to Local 60's secretary,
Susan Bogen, who also is the wife of Local 60's General
Chairperson, Donald Bogen. To resolve this problem,
Ruocchio requested Susan Bogen to ask Vernay to prepare
another check, this time made out to Local 60. The record
reflects that Susan Bogen did so, in a letter to Vernay dated
July 28, 1997.

Vernay sent a new check to Susan Bogen, made out to
the union, and it was forwarded to Ruocchio. On September
15, 1997, Ruocchio addressed a letter to Local 60's Vice
Chairperson Ronald B. Hicks,1 addressing various union
financial matters, including the check from Vernay.
Ruocchio noted:

       Finally, over a month ago I had received a refund check
       from the VERNAY Company for which I returned as a
       result of it being rejected from the bank as a third
       party check. I have since received another check from
       the same company, however the amount is drastically
       reduced with no explanation. Please advise why this
       has happened and when I am to expect the additional
       monies owed to our members.

Copies of the checks issued to Susan Bogen and the union
show that the amount of both checks was the same--
$125. Thus, Ruocchio's representation that the amount of
the new check was "drastically reduced" from the prior one
was inaccurate.
_________________________________________________________________

1. Copies of the letter were sent to "S. Padelski, L #60" and "B. Walsh,
Sec. #60." The union Trial Board noted that the letter was read at the
monthly union meeting on September 28, 1997 during Ruocchio's
treasurer's report.

                               3
The minutes of the September 28th meeting reflect that
the inaccuracy of the representation in Ruocchio's letter
was discussed, and that Ruocchio agreed to print a
retraction, although no retraction was issued. In a letter
dated October 14, 1997, General Chairperson Donald
Bogen charged Ruocchio with a violation of Article 78 of the
union constitution, which provides: "A member who
willfully circularizes untrue statements shall be expelled
from membership in the United Transportation Union if,
after being charged and tried under the trial provisions of
this Constitution, his/her guilt has been established." UTU
Constitution, Art. 78, lines 1-4. Bogen, referencing the
excerpt from Ruocchio's letter reproduced above, noted:

       "This statement is a lie, both checks were exactly for
       the same amount. . . . As you know, Susan Bogen my
       wife, is our office secretary and this is a direct affront
       to her character as she is the person who the original
       check was addressed to." At the next monthly union
       meeting, on October 26, 1997, Ruocchio was removed
       from office pending trial.2 The trial was originally set
       for November 21, 1997.

Prior to the original trial date, in addition to appealing
unsuccessfully to the union's International President for
relief,3 Ruocchio filed suit in the District Court against the
UTU, Local 60, and Donald Bogen. Ruocchio alleged that
Bogen had filed the charge against him in retaliation for his
political opposition in the November 1996 union elections.
Ruocchio averred in his complaint that:

       Ruocchio is politically opposed to the Bogan [sic]
       administration. He campaigned against them in the
       last election and ran against their hand-picked
_________________________________________________________________

2. It appears that the formal charge was not forwarded to Ruocchio until
October 31, 1997.

3. In three letters, two dated November 7, 1997, and one dated November
11, 1997, Ruocchio asked the International President for a ruling that
the charge against him violated the LMRDA and the UTU constitution,
and complained that the Trial Board scheduled to preside at his hearing
was politically partisan and biased against him. The International
President refused to intervene while the Trial Board hearing and decision
were pending.

                               4
       candidates in the previous elections; further, he has
       voiced his opposition to the policies of the Bogan
       administration.

       ****

       Bogan and his political allies are using internal charges
       to punish their political opponents.

Complaint, PP 10, 13. Additionally, Ruocchio elaborated on
his allegations in a second affidavit, filed about two months
after the complaint was filed:

       In the last officer elections conducted by UTU Local 60
       in November of 1996, I ran on a slate running in
       opposition to the slate supported by the Local's
       principal officer, General Chairman Don Bogen, who
       considers me to be his arch political enemy -- the
       proverbial camel who got its nose under Bogen's tent.

       ****

       For whatever reasons, Don Bogen reportedly took great
       umbrage, perhaps because my question concerning the
       Vernay reimbursement allegedly constituted "a direct
       affront to [his wife's] character," . . . but more likely
       because he was hunting for some excuse to remove a
       "dissident" from his Executive Board otherwise
       comprised of loyalists or people he can control one way
       or another.

       In any event, the very first notice I had that my simple,
       honestly intended question had caused a political
       aneurysm was when, at the next general membership
       meeting on October 26, 1997, I was brought up on
       internal union charges, effectively tried before those
       members who happened to be in attendance, and
       removed from the office to which I had been elected by
       the entire membership. In essence, I was caught totally
       off balance by Bogen and his lynch mob. I now
       understand that the event had been carefully scripted
       for the purpose of eliminating a political opponent.

Second Affidavit of Eugene Ruocchio, PP 2, 8-9 (alteration
in original).

                                5
Ruocchio's complaint alleged various violations of Title I
of the LMRDA, 29 U.S.C. S 411. Ruocchio claimed that
defendants violated his right to free speech under
S 411(a)(2) of the Act,4 and that his suspension from office
pending trial violated S 411(a)(5), which provides that
members will be afforded certain procedural safeguards
before being "fined, suspended, expelled, or otherwise
disciplined."5 D'Angiolillo alleged that Ruocchio's removal
_________________________________________________________________

4. Section 411(a)(2) provides:

         Every member of any labor organization shall have the right to meet
         and assemble freely with other members; and to express any views,
         arguments, or opinions; and to express at meetings of the labor
         organization his views, upon candidates in an election of the labor
         organization or upon any business properly before the meeting,
         subject to the organization's established and reasonable rules
         pertaining to the conduct of meetings: Provided, That nothing
herein
         shall be construed to impair the right of a labor organization to
         adopt and enforce reasonable rules as to the responsibility of
every
         member toward the organization as an institution and to his
         refraining from conduct that would interfere with its performance
of
         its legal or contractual obligations.

5. We note that Ruocchio's S 411(a)(5) claim is not cognizable, since it
is
based on removal from office, not membership. In Sheridan v. United
Brotherhood of Carpenters & Joiners of America, Local No. 626, 306 F.2d
152 (3d Cir. 1962), this Court held that removal from office did not
constitute a form of discipline as that term was used in S 529 of Title
29.
See id. at 156. Section 529 provides that "[i]t shall be unlawful for any
labor organization . . . to fine, suspend, expel, or otherwise discipline
any
of its members for exercising any right to which he is entitled under the
provisions of [the LMRDA]." 29 U.S.C. S 529. We reached this conclusion
because we understood S 529's enumeration offine, suspension, and
expulsion to "manifest an intention by Congress to protect members qua
members. Removal from office, on the other hand, is a sanction that can
be directed only against the limited group of members who happen to be
officers." Sheridan, 306 F.2d at 156. Thus, we concluded that the
plaintiff could not state a violation of S 529 based on his removal from
office. Furthermore, we concluded that S 411 did not protect the
plaintiff 's status as an officer since the Bill of Rights contained
therein
repeatedly refers to the rights of members, not to the rights of officers
or
employees. See id.
In subsequent cases, we have held that S 411(a)(5) protects the union-
member relationship, not the union-officer or union-employee

                               6
from office had deprived D'Angiolillo, who had voted for
Ruocchio as treasurer, of his right to participate in the
governance of the local union through a duly elected
representative and spokesperson in violation ofS 411(a)(1).6

In addition to a request for money damages to
compensate for loss due to Ruocchio's alleged improper
removal, and for attorney's fees, plaintiffs also sought
various forms of injunctive and declaratory relief. Ruocchio
requested an injunction barring defendants from going
forward with the trial against him, and reinstating him to
his position as treasurer. The complaint also requested 1)
declaratory relief that Article 78 is null and void; and 2)
injunctive relief not only enjoining defendants from
enforcing Article 78 and requiring they notify union
members that Article 78 is no longer in force, but also
enjoining defendants from retaliating against union
members for exercising their rights under Title I of the
LMRDA.

Prior to the union trial, which had been postponed from
the originally scheduled November date, the District Court
_________________________________________________________________

relationship -- both because of Sheridan's specific holding regarding
S 411 as a whole and because of the parallel language in S 411(a)(5) and
S 529. See Martire v. Laborers' Local Union 1058, 410 F.2d 32, 35 (3d
Cir. 1969) (holding that S 411(a)(5) did not afford a remedy for removal
from office prior to expiration of term); Harrison v. Local 54 of the Am.
Fed'n of State, County & Mun. Employees, 518 F.2d 1276, 1281 (3d Cir.
1975) (noting that the LMRDA does not provide relief for removal from
office or for loss of income resulting therefrom).

6. Only two charges listed in the "Causes of Action" section of the
complaint refer specifically to D'Angiolillo: theS 411(a)(1) charge, and
the
S 411(a)(2) charge that Article 78 "infringes and chills the exercise of
plaintiffs' free speech rights." The complaint's prayer for relief does
not
specify what, if any, relief D'Angiolillo is seeking; in fact, in
requesting
relief, it refers to "plaintiff " in the singular. We assume that
D'Angiolillo
intended that his claims be remedied by Ruocchio's reinstatement, and
the other equitable and declaratory relief sought by Ruocchio as
"plaintiff." We therefore discuss the relief that Ruocchio seeks, and do
not address separately any relief sought by D'Angiolillo. This does not
mean that D'Angiolillo could not seek to clarify his position in this
regard
on remand to the District Court.

                               7
heard oral argument on Ruocchio's application for a
preliminary injunction, but granted defendants' motion to
dismiss the application, while retaining jurisdiction over the
matter pending the outcome of the internal union trial. The
Court explained that it would "not interfere with the
internal workings of the Union at this point in time."
Nonetheless, the Court noted: "Though not making a
determination one way or the other at this time, the Court
is compelled to note that it has serious reservations as to
the validity of Article 78."

The union trial was held on March 30, 1998, and, on
April 10, 1998, the Trial Board ruled that Ruocchio had
violated Article 78. On May 30, 1998, Ruocchio appealed
this decision to the International President, who overturned
the Trial Board and reinstated Ruocchio to his position as
treasurer, stating:

         I have carefully reviewed the trial transcript, exhibits,
         and your appeal letter. After such review I have
         determined that the trial board failed to focus on
         charges brought and that the record as a whole does
         not present a violation of any willful circulization of
         untrue statements as contemplated by Article 78.

On July 13, 1998, in a letter addressed to Bogen (of which
Ruocchio and other union officials received copies), the
International President explained that, in overturning the
Board's decision, he had not judged the propriety of
Ruocchio's conduct, but had simply concluded that there
was insufficient evidence of "willful" conduct on Ruocchio's
part.7
_________________________________________________________________

7. The letter provided, in relevant part:

         In considering the appeal, I am duty bound to focus on the precise
         charge brought, and particularly upon the "willfully" standard
stated
         in Article 78 of the Constitution, especially where, as here, the
free
         speech rights contained in Title I of the LMRDA limit application
of
         Article 78 to narrow circumstances similar to the limitations the
         First Amendment to the U.S. Constitution places on defamation
         actions in some circumstances. In short, there was insufficient
         evidence of record that the clearly erroneous statement in the
letter
         that was the focus of the charge made against Mr. Ruocchio had

                                 8
Shortly thereafter, plaintiffs filed a renewed motion for a
preliminary injunction and a motion for summary judgment
before the District Court. On July 8, 1998, the District
Court dismissed the complaint, finding that there was no
case or controversy due to Ruocchio's reinstatement to his
position as treasurer. Ruocchio filed a motion for
reconsideration, which was denied on July 30, 1998. The
District Court also denied Ruocchio's request for attorney's
fees by letter order dated September 9, 1998, on the basis
that Ruocchio was not a prevailing party in the litigation.
The instant appeal followed.

We base our jurisdiction on 28 U.S.C. S 1291, which
allows us to review final orders of the district courts. The
District Court had jurisdiction over this matter pursuant to
28 U.S.C. S 1331. Our review of the District Court's
determination that Ruocchio's action was moot is plenary.
See International Bhd. of Boilermakers v. Kelly, 815 F.2d
912, 914 (3d Cir. 1987).8
_________________________________________________________________

       been made "willfully" as the courts would apply that term. I have
no
       criticism of the action of the Trial Board in hearing this matter
and
       making the determination they did. It was just a question of my
       obligation to construe our Constitution to make sure that its text
       and application would remain within the difficult boundaries of
       federal law.

8. The plenary standard of review seems appropriate since mootness
doctrine relates to courts' constitutional authority to hear a case; a
court
must dismiss a case as moot if there is no Article III case or
controversy.
However, mootness analysis often encompasses prudential
considerations, in addition to the threshold constitutional dimension,
that could be more appropriately reviewed for abuse of discretion. See
Kelly, 815 F.2d at 915; see also In re Continental Airlines, 91 F.3d 553,
560 (3d Cir. 1996) (reviewing a mootness determination in the
bankruptcy context for abuse of discretion, because it involved a
discretionary balancing of equitable and prudential factors, rather than
the limits of the federal courts' authority under Article III). In
practice,
courts frequently do not parse the two. See Kelly, 815 F.2d at 915. The
District Court, while not specifically grounding its decision on the
constitutional aspect of the mootness doctrine, noted that it was
dismissing the case because "no case or controversy exists." Thus, it
seems the plenary standard of review is particularly appropriate here,
where the District Court has appeared to rely solely on constitutional
grounds.
9
II.

Although the precise issue before us relates to mootness
of the instant dispute, and whether plaintiff is entitled to
relief, the issue is best couched in the following terms for
our purposes: whether the decision of the dispute
continues to be justified by sufficient prospect that it will
have impact on the parties. See 13A CHARLES A. WRIGHT
ET AL., FEDERAL PRACTICE AND PROCEDURE S 3533, at 212 (1984).
We conclude that, in light of the unique considerations
involved in the union speech context, and the facts averred
in this case, it is likely that a decision in the case
will impact the parties notwithstanding Ruocchio's
reinstatement. We will therefore remand to the District
Court for a determination of the claims that should be
decided, in light of this opinion.

As indicated above, plaintiff sought several types of relief:
money damages; attorney's fees; a declaration that Article
78 is null and void; and injunctive relief, enjoining
defendants from enforcing Article 78, requiring defendants
to provide notice to union members that Article 78 is
unenforceable, and prohibiting defendants from retaliating
against union members in violation of their rights under
Title I of the LMRDA.9 The District Court held that the
reinstatement rendered the entire case moot. However, a
case may be moot as to one remedy, but not as to others.

Here there can be no question that Ruocchio's claim for
monetary damages survives and is not moot. See Sheet
Metal Workers' Int'l Ass'n v. Lynn, 488 U.S. 347, 354-55
(1989) (holding that an officer had stated a cause of action
under S 411(a)(2) because retaliatory removal from office
constituted a price paid for the exercise of his membership
right of free speech). The District Court never addressed
this claim, but we hold that on this basis alone the District
Court must hear the case to determine Ruocchio's
entitlement to damages. The question as to whether
_________________________________________________________________

9. Plaintiffs also requested injunctive relief prohibiting the union trial
from going forward, and reinstating Ruocchio to his position as
treasurer. These claims for relief are clearly moot, in light of the fact
that
the union trial has already taken place, and that Ruocchio has already
been reinstated.

                               10
plaintiff continues to have a claim for declaratory and
injunctive relief is a closer one. However, based on the
allegations of plaintiff's complaint and his affidavit in this
case, we have little difficulty in finding that these claims,
too, are very much alive, and have not been rendered moot
by Ruocchio's reinstatement. Ruocchio's complaint paints a
picture of the union employing a provision of its
constitution to silence speech in opposition to the union
leadership. The entire check incident is averred to have
been employed as a device to punish Ruocchio for his vocal
support of others. Whether or not the union's International
President ultimately reinstated Ruocchio to his office, his
complaint is based on retaliation for speech protected by
the LMRDA, and we view our decisions in Mallick v.
International Brotherhood of Electrical Workers, 644 F.2d
228 (3d Cir. 1981) and Semancik v. United Mine Workers of
America District # 5, 466 F.2d 144 (3d Cir. 1972) as
requiring that his claim for declaratory and injunctive relief
be heard. We will also remand the decision regarding
plaintiffs' entitlement to attorney's fees for further
consideration.

III.

This appeal presents a situation in which First
Amendment principles intersect with concerns particular to
union speech issues in a way that has, historically, caused
Congress and the federal courts to proceed with special
care. Congress's commitment to providing special
protection for free speech rights in the union context is
illustrated by Title I of the LMRDA, commonly referred to as
the LMRDA's "Bill of Rights." The courts have played a
significant role in defining the contours of the LMRDA's
speech provisions, and have "shaped the Bill of Rights into
a guarantee of union democracy, with the right of free
speech enjoying a particularly favored position." Fulton
Lodge No. 2 of the Int'l Ass'n of Machinists & Aerospace
Workers v. Nix, 415 F.2d 212, 217 (5th Cir. 1969). In
construing its terms, the Supreme Court has considered
that the predecessor to the LMRDA's current Bill of Rights
was adopted as an amendment on the Senate floor by
legislators who "feared that the bill did not go far enough

                               11
because it did not provide general protection to union
members who spoke out against the union leadership."
United Steelworkers of Am. v. Sadlowski, 457 U.S. 102, 109
(1982); see also Sheet Metal Workers' Int'l Ass'n v. Lynn,
488 U.S. 347, 352 (1989). The Court concluded that the
legislative history revealed that Title I of the LMRDA was
modeled after the Constitution's Bill of Rights, and was
intended "to restate a principal First Amendment value --
the right to speak one's mind without fear of reprisal."
Sadlowski, 457 U.S. at 111 (finding, however, that the
scope of S 411(a)(2) of the LMRDA is not identical to the
scope of the First Amendment).

Violations of rights guaranteed by the LMRDA are of
particular concern because discipline of one union member
based on such a violation may deter other members from
exercising their rights, thereby threatening the rights of all
union members. See Hall v. Cole, 412 U.S. 1, 8 (1973). In
Hall, the Court determined that courts had authority to
award attorney's fees to successful LMRDA plaintiffs,
observing that, "by vindicating his own right, the successful
litigant dispels the `chill' cast upon the rights of others." Id.
at 8-9, 14. As the Second Circuit Court of Appeals noted in
Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963):

       The LMRDA of 1959 was designed to protect the rights
       of union members to discuss freely and criticize the
       management of their unions and the conduct of their
       officers. The legislative history and the extensive
       hearings which preceded the enactment of the statute
       abundantly evidence the intention of the Congress to
       prevent union officials from using their disciplinary
       powers to silence criticism and punish those who dare
       to question and complain.

Id. at 448-49. Salzhandler held that the protection afforded
by the LMRDA was so broad that even libelous speech was
protected. See id. at 450-51 (holding that libelous speech
that may be the basis for a civil action may not be the basis
for union discipline, because union "procedure is peculiarly
unsuited for drawing the fine line between criticism and
defamation"); see also Gertz v. Welch, 418 U.S. 323, 347
(1974) (finding, in the First Amendment context, that states
may not impose liability for false and defamatory speech

                                12
absent a showing of fault).10 Courts have also held that the
LMRDA provides them with broad discretion to fashion
appropriate relief for LMRDA violations. See Gartner v.
Soloner, 384 F.2d 348, 354-56 (3d Cir. 1967) (discussing
courts' broad remedial power under the LMRDA, in
determining that attorney's fees may be awarded under the
statute).

Further, in light of the above concerns, courts have been
expansive in their view of a litigant's standing to bring legal
action in situations in which free speech rights are
implicated. Cases addressing issues of standing in the free
speech labor context -- which mirror the same concerns
that exist regarding mootness -- have recognized that
limitations on free speech rights can result in a"chilling
effect" on others' exercise of those rights, and have taken a
broad view of standing based on this prospect.11 In Nelson
v. International Association of Bridge, Structural &
Ornamental Iron Workers, 680 F. Supp. 16 (D.D.C. 1988),
_________________________________________________________________

10. The dissent cites Linn v. United Plant Guard Workers of America,
Local 114, 383 U.S. 53, 63 (1966), for the proposition that libelous
statements of union members are not protected from union action.
Although there is language in Linn suggesting that unions should adopt
procedures proscribing libelous speech, Linn ultimately dealt with a civil
action against libelous speech, not union action against libelous speech.
See id. at 55. As noted above, Salzhandler distinguished between the
two, finding that speech that may be the basis of a civil action might not
be an appropriate basis for union action. See Salzhandler, 316 F.2d at
450-51. Thus, Linn is not inconsistent with Salzhandler's conclusion that
unions may not proscribe libelous speech.

11. Cases addressing standing are relevant to our inquiry because the
question of standing "bears close affinity" to the question of mootness.
See Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). Both standing and
mootness involve the consideration of whether an Article III case or
controversy exists. See id. at 498; Kelly, 815 F.2d at 914. In dismissing
the instant case, the District Court equated mootness with the absence
of a case or controversy. Mootness has been described as representing "a
time dimension of standing, requiring that the interests originally
sufficient to confer standing persist throughout the suit." WRIGHT ET AL.,
supra, S 3533.1, at 220. We adopted a similar view in Artway v. Attorney
General, 81 F.3d 1235 (3d Cir. 1996), in which we explained that
mootness "asks whether a party who has established standing has now
lost it because the facts of her case have changed over time." Id. at
1246.

                               13
the court looked to the First Amendment overbreadth
doctrine in determining if plaintiffs had standing to
challenge a union provision as violative of the LMRDA. See
id. at 24. One of the plaintiffs had not even been charged
under the provision, and simply alleged that his own
interpretation of the broad provision induced him to remain
silent. See id. at 23. Nonetheless, the court explained that,
under the relaxed rules of standing applied in this context:

       Litigants, therefore, are permitted to challenge a
       statute not because their own rights of free expression
       are violated, but because of a judicial prediction or
       assumption that the statute's very existence may cause
       others not before the Court to refrain from
       constitutionally protected speech or expression.

Id. at 24 (quoting Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973)). The court concluded that the plaintiffs had
standing to challenge the section of the union constitution,
because it was so "grossly overbroad," and"so plainly"
violated the LMRDA that " `no judicial prediction or
assumption' is necessary to ascertain that free speech will
be chilled," and denying plaintiffs standing would
perpetuate the chilling effect on the rights of all union
members. Id. at 25; see also Virginia v. American
Booksellers Ass'n, 484 U.S. 383, 393 (1988) (plaintiffs had
standing to raise a facial challenge to an allegedly speech-
infringing statute before the statute had been enforced
because they had alleged "an actual and well-founded fear"
that the statute would be enforced against them, and"the
alleged danger of this statute is, in large measure, one of
self-censorship; a harm that can be realized even without
an actual prosecution").12

We have had occasion to endorse this expansive view of
union speech rights, in Mallick v. International Brotherhood
of Electrical Workers, 644 F.2d 228 (3d Cir. 1981) and
_________________________________________________________________

12. The dissent characterizes plaintiff 's claim arising from the
application of Article 78 to him as an "abstract" injury, rather than one
that is "distinct" and "palpable." We submit, however, that in the context
of union speech, a claim that rights have been chilled has been deemed
anything but abstract. See Mallick v. International Bhd. of Elec. Workers,
644 F.2d at 235.

                               14
Semancik v. United Mine Workers of America District # 5,
466 F.2d 144 (3d Cir. 1972). In Mallick, plaintiff union
members were "vocal and persistent critics" of union
leadership who were charged with violating various
provisions of the union constitution, including provisions
similar to the one at issue in this case. See Mallick, 644
F.2d at 230-32. The provisions made punishable:
"[p]ublishing or circulating among the membership, or
among [local unions] false reports or misrepresentations,"
and "[s]landering or otherwise wronging a member of the
[union] by any willful act or acts." Id. at 231 n.1. The
penalties assessed for violations of these particular
provisions were eventually reversed by the union's
international representative, due to insufficient evidence
that the statements at issue were untrue, much like the
charges were reversed in the instant case. See id. at 232 &
n.5. In addition to compensatory and punitive damages,
plaintiffs sought declaratory and injunctive relief barring
enforcement of the allegedly illegal union provisions under
which they had been charged. See id. at 232. The district
court determined that plaintiff union members lacked
standing to challenge the validity of union provisions that
formed the basis for charges that had been overturned by
the international representative. See id. at 233. We
reversed. See id. at 236.

In holding that the district court erred in failing to
consider plaintiffs' equitable claims based on these charges,
we noted the "expansive protection" given to union
members' speech rights. See id. at 235 ("The Bill of Rights
section of the [LMRDA] is designed to foster democratic
governance within labor unions, and to encourage members
freely to dissent from the policies and administration of the
leadership or to discuss openly those policies and
practices."). Had the district court properly considered the
broad protections afforded to speech under the LMRDA,
and the unique nature of speech infringements, it would
not have concluded that, because the charges were
overturned on appeal, plaintiffs necessarily did not suffer
an actionable injury. See id.

       Harm to free speech rights . . . is not measured solely
       in economic terms, nor must concrete punishment be

                               15
       meted out to confer standing to sue. The right to speak
       one's views freely is so fundamental that the spectre of
       punishment, or the uncertainty created by a vaguely
       worded prohibition of speech, is injurious as well.

Id. We noted that the mere fact that the members were
charged, as well as the possibility of future charges based
on the challenged prohibitions, could have a substantial
chilling effect on plaintiffs' and other union members'
exercise of their free speech rights: "The goal of union
democracy, achieved through the expression of opposing
viewpoints, would be difficult to realize if members felt
deterred from expressing their opinions by the prospect of
disciplinary proceedings." Id. at 236. Accordingly, we
remanded for the district court to consider whether the
provisions at issue violated S 411 of the LMRDA. See id.13

In Semancik, we recognized the district courts' broad
discretion to fashion remedies for speech violations in the
union context, and determined that the district court
properly entered a permanent injunction prohibiting
enforcement of a union provision that violated the LMRDA,
because the union provision was broad and ill-defined, and
had been repeatedly utilized to stifle protected speech. See
Semancik, 466 F.2d at 152-53, 156. In so doing, we
rejected the defendants' argument that the district court
was limited to granting individual injunctions on a case-by-
case basis to union members who could show that their
speech rights had been violated. We concluded that under
S 412 of the LMRDA the district court's power to grant relief
was not so circumscribed, and that S 412 afforded district
courts the discretion to fashion whatever relief was
appropriate to protect union members' rights, including
injunctions. See id. at 155-56. We specifically stated that
courts' "discretionary power is to be broadly construed to
effectuate the purposes of the statute." Id. at 156. This
provision, coupled with S 411(b) of the LMRDA, which
_________________________________________________________________

13. While our dissenting colleague seeks to distinguish Mallick based on
the actual injury in that case, our focus in Mallick was not on the extent
of union reprisal but, rather, on the harm visited in non-economic terms
via the chill on, and deterrence of, the right of expression. See Mallick,
644 F.2d at 235-36.

                               16
provides that union provisions in violation of the LMRDA
shall be "of no force or effect," empowered the district court
to enjoin permanently a union provision violative of the
LMRDA. See id. at 155-56. Once again, we took into
account the important consideration that union power is
subject to restrictions in the face of the members'
competing freedom of speech claim. See id. at 153
("[C]ourts have responded by making clear that labor
organizations properly exercise their disciplinary powers
only over a limited area of proscribed conduct inimical to
the union as an entity and collective bargaining
mechanism. Unless statements fall into these categories,
they are protected from union action even if libelous.").

Both Mallick and Semancik illustrate the broad protection
the LMRDA affords speech rights in the union context, and
demonstrate that we may view the harm caused by
regulation of such speech somewhat differently from the
harm or injury occurring in other contexts. Both cases also
reflect the wide discretion granted to district courts so that
they may fashion remedies that satisfy these concerns.
These factors are present in the instant case, and lead us
to the same conclusion that we reached in Mallick -- that
the District Court should have considered whether
equitable and declaratory relief was appropriate. Ruocchio's
reinstatement and the reversal of the charges against him
no more automatically foreclose his rights to additional
relief than the reversal of the charges did in Mallick; the
remedies sought by Ruocchio of an injunction against
enforcement of the constitutional provision, and declaration
of its invalidity, may indeed retain sufficient utility to justify
their implementation. In both of these cases, we reiterated
in broad and expansive terms the need for the courts to
entertain, and enjoin, union exercise of power that chills
speech protected by the LMRDA. To conclude, as the
dissent does, that these important rulings do not support
our conclusion is to turn our jurisprudence on its head.

Our dissenting colleague urges that our ruling opens the
flood gates to union members' protests against valid union
regulation based upon the "sole" "bald" allegation that their
speech has been "chilled." Rather than take issue with this
view, we embrace this characterization as a fair statement

                               17
of what the law requires. Our jurisprudence compels us to
give a union member the opportunity to protect his right to
speak his views as legislatively mandated by S 411(a)(2) of
the LMRDA. In so doing we suggest that the harm it seeks
to avoid is very real, and the power it seeks to curtail can
be wielded in ways not apparent on the face of a union
constitution. See Mallick, 644 F.2d at 235; Semancik, 466
F.2d at 152.

We do not decide whether Ruocchio is entitled to
declaratory and injunctive relief; we hold only that the
claims do have vitality before the District Court. We note
that by determining that these claims for relief are not
moot, we have addressed the simplest part of the equation.
Determining whether the conduct of the union actors,
and/or the challenged constitutional provision itself, violate
S 411(a)(2) of the LMRDA and, if so, what relief should be
provided, are far more complicated inquiries. As this case
was dismissed without the aid of any discovery, we cannot
begin to address these issues and must entrust them to the
District Court for resolution on remand.

We will also vacate the District Court's ruling denying
plaintiffs' request for attorney's fees. To recover attorney's
fees under the LMRDA, a claimant must be a prevailing
party and his lawsuit must provide a common benefit to all
union members. See Pawlak v. Greenawalt, 713 F.2d 972,
980 (3d Cir. 1983). The District Court found that Ruocchio
could not recover attorney's fees because he did not
technically prevail in the case before it. We view this
decision as reflecting an inadequate inquiry into the factors
set forth in Pawlak. On remand, the District Court will
necessarily revisit its ruling based on the outcome of the
monetary, equitable, and declaratory claims for relief it will
now hear as discussed above, and in doing so, should
reconsider the Pawlak factors. We note that, for purposes
of Pawlak's "prevailing party" requirement, Ruocchio need
not obtain ultimate success in the form of a judgment in
order to be entitled to attorney's fees. See Baumgartner v.
Harrisburg Housing Auth., 21 F.3d 541, 544 (3d Cir. 1994);
Brennan v. United Steelworkers of Am., 554 F.2d 586, 591
n.5 (3d Cir. 1977). Rather, if plaintiffs have been a
"catalyst," so that defendants voluntarily ceased the

                               18
behavior challenged by plaintiffs, plaintiffs can still be
"prevailing parties" if they prove that the lawsuit was a
material contributing factor in bringing about the desired
relief. See Baumgartner, 21 F.3d at 544-45 (citing Wheeler
v. Towanda Area Sch. Dist., 950 F.2d 128, 132 (3d Cir.
1991)); see also Riley v. McCarthy, 723 F. Supp. 1521,
1522 (D.D.C. 1989) (finding that an LMRDA plaintiff is a
"prevailing party" even absent judgment on the merits as
long as the lawsuit was not frivolous, the plaintiff
substantially obtained the relief sought, and the lawsuit
was an important factor in obtaining that relief). Further,
plaintiffs may satisfy Pawlak's common benefit requirement
if, by vindicating their rights under the LMRDA, they have
"dispelled the `chill' cast upon the rights of all Union
members and contributed to the preservation of union
democracy." Pawlak, 713 F.2d at 980.

IV.

For all of the foregoing reasons, we will reverse the
District Court's determination that plaintiffs' lawsuit was
moot, vacate the District Court's denial of attorney's fees,
and remand to the District Court for proceedings consistent
with this opinion.

                               19
ALDISERT, Circuit Judge, dissenting.

The Supreme Court has consistently made clear that lies
and willful defamation are not shielded by the expansive
reach of the First Amendment. Yet, the majority suggests
that a provision of a union constitution, which prohibits
this same type of defamation, creates a chilling effect on
speech sufficient to create a justiciable controversy in a
case pursuant to the Labor-Management Reporting and
Disclosure Act ("LMRDA"). This conclusion is unacceptable
to me. I dissent.

This appeal requires us to decide whether the district
court erred by dismissing Appellants' claims as moot after
Eugene Ruocchio was reinstated to the office of treasurer of
United Transportation Local #60 on June 10, 1998.
Ruocchio was first suspended from that office on October
27, 1997, pending a trial board hearing on a charge that he
violated Article 78 of the Union Constitution, and was
removed from office on April 10, 1998 after the board found
him guilty. Article 78 provides:

       A member who willfully circularizes untrue statements
       shall be expelled from membership in the United
       Transportation Union if, after being charged and tried
       under the trial provisions of this Constitution, his/her
       guilt has been established.

App. at 39. Notwithstanding the mootness issue, critical to
our ultimate decision is whether the mere accusation that
a union member has violated Article 78, without proof that
the member has been damaged by the accusation, is such
an injury as to make out a justiciable case or controversy
as a violation of the LMRDA, specifically 29 U.S.C.
S 411(a)(2). The majority believes that an accusation is
sufficient. I am unable to agree because, in my view,
Appellants no longer have a case or controversy vesting the
district court with jurisdiction. Accordingly, for reasons
related to those expressed by the district court but with a
somewhat different emphasis on the doctrine of
justiciability, I would affirm the judgment of the district
court.

                                20
I.

Article III of the Constitution confines the judicial power
by extending it only to cases and controversies." `All of the
doctrines that cluster about Article III--not only standing
but mootness, ripeness, political question, and the like--
relate in part, and in different though overlapping ways, to
an idea, which is more than an intuition but less than a
rigorous and explicit theory, about the constitutional and
prudential limits to the powers of an unelected,
unrepresentative judiciary in our kind of government.' "
Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Vander
Jagt v. O'Neill, 699 F.2d 1166, 1178-1179 (D.C. Cir. 1982)
(Bork, J., concurring)).

As early as 1937, the Court made clear that a genuine
case or controversy is necessary for the federal courts to
grant relief to litigants. Aetna Life Ins. Co. of Hartford, Conn.
v. Haworth, 300 U.S. 227, 239-240 (1937) (interpreting the
Declaratory Judgment Act). The court enunciated precepts
that define "case or controversy":

       A "controversy" in this sense must be one that is
       appropriate for judicial determination. A justiciable
       controversy is thus distinguished from a difference or
       dispute of a hypothetical or abstract character; from
       one that is academic or moot. The controversy must be
       definite and concrete, touching the legal relations of
       parties having adverse legal interests. It must be a real
       and substantive controversy admitting of specific relief
       through a decree of conclusive character, as
       distinguished from an opinion advising what a law
       would be upon a hypothetical state of facts.

Id. at 240-241 (citations omitted).

Thus, Article III requires a party seeking relief to allege
personal injury that is fairly traceable to the defendant's
allegedly unlawful conduct and likely to be redressed by the
requested relief. See Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 472 (1982). The injury alleged must be
distinct and palpable, Gladstone, Realtors v. Village of
Bellwood, 441 U.S. 91, 100 (1979), and not "abstract" or
"conjectural" or "hypothetical," City of Los Angeles v. Lyons,

                               21
461 U.S. 95, 101-102 (1983); O'Shea v. Littleton, 414 U.S.
488, 494 (1974). In the absence of such an injury, the
requirements of Article III are not satisfied and the district
court does not have jurisdiction to entertain the action
before it.

II.

As a threshold consideration, Appellants cannot breathe
justiciability into their law suit by claiming economic injury
from Ruocchio's suspension, removal and subsequent
reinstatement as treasurer of the local union. The
complaint's allegations relating to monetary damages are
grounded on Ruocchio's suspension as an officer of the
union, not as a member. We have held that "the LMRDA
does not provide relief to a union officer for suspension as
an officer, nor for loss of income resulting therefrom."
Harrison v. Local 54 of Amer. Fed'n of State, County & Mun.
Employees, AFL-CIO, 518 F.2d 1276, 1281 (3d Cir. 1975).
See also Martire v. Laborers' Local Union 1058, 410 F.2d
32, 35 (3d Cir. 1969) ("In Sheridan v. United Brotherhood of
Carpenters, 306 F.2d 152 ([3d Cir.] 1962) we held that . . .
Title I of the LMRDA . . . [does not] afford[ ] a remedy to a
business agent of a union who has been removed from his
elected office prior to the expiration of his term, for the
reason that `[i]t is the union-member relationship, not the
union-officer or union-employee relationship, that is
protected.' ").

III.

The majority believes that an amorphous "chilling effect"
of Article 78 on Appellants' speech is sufficient to confer
standing such that a justiciable controversy exists and in
so doing, makes an assumption that standing in a First
Amendment case is co-extensive with standing in a
S 411(a)(2) claim. Although courts have looked to First
Amendment cases for guidance in S 411(a)(2) cases, it is
clear that the two are not co-extensive. United Steelworkers
of America v. Sadlowski, 457 U.S. 102, 111 (1982)
("However, there is absolutely no indication that Congress
intended the scope of S 101(a)(2) to be identical to the scope

                               22
of the First Amendment. Rather, Congress' decision to
include a proviso covering `reasonable' rules refutes that
proposition."). Because the First Amendment provides
broader protection of speech rights, there is no reason to
assume that standing requirements in S 411(a)(2) cases are
equivalent to those required to seek First Amendment relief.
Indeed, ruling case law indicates that the exact reverse is
true.

Notwithstanding the slightly broader concepts of standing
in a First Amendment context, there are clear limits to what
non-economic injury is sufficient to confer standing in a
complaint brought under S 411(a)(2). Section 411(a)(2) itself
provides one such limit:

       Every member of any labor organization shall have the
       right to meet and assemble freely with other members;
       and to express any views, arguments, or opinions; and
       to express at meetings of the labor organization his
       views, upon candidates in an election of the labor
       organization or upon any business properly before the
       meeting, subject to the organization's established and
       reasonable rules pertaining to the conduct of meetings:
       Provided That nothing herein shall be construed to
       impair the right of a labor organization to adopt and
       enforce reasonable rules as to the responsibility of every
       member toward the organization as an institution and
       to his refraining from conduct that would interfere with
       its performance of its legal or contractual obligations.

29 U.S.C. S 411(a)(2) (emphasis added). The legislative
history indicates that the provision that

       preserves the union's right to adopt reasonable rules
       governing the responsibilities of its members . . . was
       designed to remove "the extremes raised by the
       [freedom of speech and assembly provisions]" . . . and
       to assure that the amendment would not "unduly
       harass and obstruct legitimate unionism."

United Steelworkers of America, 457 U.S. at 110 (quoting
105 Cong. Rec. 6721, 6722 (1959) (statements of Sen.
Cooper and Sen. Church)). Thus, we must determine
whether Article 78 qualifies as one of the permitted

                               23
"reasonable rules" under S 411(a)(2). If it is a reasonable
rule, there is no justiciable controversy in this case.

A.

"Congress adopted the freedom of speech and assembly
provision [of the LMRDA] in order to promote union
democracy." Id. at 112. To understand the breadth of union
democracy, we must ascertain the limitations to speech in
the broader community in which we live, under a political
democracy. Because the First Amendment provides greater
protection for speech, any limitation of its protection
applies a fortiori to the protections ofS 411(a)(2).

Even under the broader limitations of the First
Amendment, our speech is restricted by the law of
defamation and the criminal statutes that proscribe or
punish lying under oath. The law of defamation, for
example, imposes liability for any statement that"asserts or
implies a statement of fact which is damaging to
reputation." Sedore v. Recorder Publishing Co., 716 A.2d
1196, 1200 (N.J. Super. Ct. App. Div. 1998); see also Sisler
v. Gannett Co., Inc., 516 A.2d 1083, 1086-1088 (N.J. 1986)
(discussing cases that "attempt to pacify the warring
interests of free speech and individual reputation").
Numerous state and federal laws prohibit the making of
false statements under oath, "under penalty" or to law
enforcement officers. See, e.g., 18 U.S.C. S 1621 (perjury);
18 U.S.C. S 1623 (false declarations before grand jury or
court); N.J. Stat. Ann. S 2C:28-1 (perjury); N.J. Stat. Ann.
S 2C:28-2 (false swearing); N.J. Stat. Ann. S 2C:28-3
(unsworn falsification to authorities); N.J. Stat. Ann.
S 2C:28-4 (false reports to law enforcement authorities).

Whatever have been the recent efforts in some quarters to
denigrate the importance of telling the truth, society still
places a premium on truth-telling and a penalty for
violating the precepts prohibiting lying under oath. Even
the President of the United States is not immune from such
penalties. See Jones v. Clinton, 36 F. Supp.2d 1118, 1130,
1131 (E.D. Ark. 1999) (adjudging the President to be in civil
contempt because his "deposition testimony regarding
whether he had ever been alone with Ms. Lewinsky was

                                24
intentionally false, and his statements regarding whether
he had ever engaged in sexual relations with Ms. Lewinsky
likewise were intentionally false, notwithstanding tortured
definitions and interpretations of the term `sexual
relations.' ").

Deliberately telling a lie or circularizing an untruth in the
general community is neither protected nor acceptable in
our society:

       [T]he use of the known lie as a [political] tool is at once
       at odds with the premises of democratic government
       and with the orderly manner in which economic, social,
       or political change is to be effected. . . . [T]he knowingly
       false statement and the false statement made with
       reckless disregard of the truth, do not enjoy
       constitutional protection.

Garrison v. State of Louisiana, 379 U.S. 64, 75 (1964). Even
in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and
its progeny in actions against public officials, the First
Amendment does not shield the publication of defamatory
falsehood made " `with actual malice'--that is, with
knowledge that it was false or with reckless disregard of
whether it was false or not." Id. at 280.

B.

In the context of Article 78, "willfully," in the sense of
intentionally or knowingly, is equivalent to the"actual
malice" definition in New York Times Co. v. Sullivan.
Because the First Amendment does not insulate a public
official from making a statement with knowledge that it is
false, there can be no doubt that S 411(a)(2) does not
protect a union member from the consequences of his own
willful circularization of untrue statements. Thus, a union
rule restricting this practice cannot be considered
unreasonable. Cf. Linn v. United Plant Guard Workers of
America, Local 114, 383 U.S. 53, 55 (1966) (determining
that, in the context of national labor policy, a district court
has jurisdiction to entertain a civil action for libel instituted
under state law by a party to a labor dispute).

The fundamental purpose of labor unions also supports
the reasonableness of Article 78. Implicit in all phases of

                               25
labor organizations is the hallowed workers' proclamation
"In union there is strength." The keystone of our national
labor policy was articulated in the National Labor Relations
Act of July 5, 1935, ch. 372, S 1, 49 Stat. 449 (the "Wagner
Labor Act"), and repeated verbatim in the Labor
Management Relations Act, 1947, 29 U.S.C. S 141 et seq.:

       It is hereby declared to be the policy of the United
       States to eliminate the causes of certain substantial
       obstructions to the free flow of commerce and to
       mitigate and eliminate these obstructions when they
       have occurred by encouraging the practice and
       procedure of collective bargaining and by protecting the
       exercise by workers of full freedom of association, self
       organization, and designation of representatives of their
       own choosing, for the purpose of negotiating the terms
       and conditions of their employment or other mutual
       aid or protection.14

29 U.S.C. S 151. The Wagner Labor Act also stated:

       The inequality of bargaining power between employees
       who do not possess full freedom of association or
_________________________________________________________________

14. National labor policy was first announced in the National Industrial
Recovery Act of 1933:

       Sec.7. (a) Every code of fair competition, agreement, and license
       approved, prescribed, or issued under this title shall contain the
       following conditions: (1) That employees shall have the right to
       organize and bargain collectively through representatives of their
       own choosing, and shall be free from the interference, restraint,
or
       coercion of employers of labor, or their agents, in the designation
of
       such representatives or in self-organization or in other concerted
       activities for the purpose of collective bargaining or other mutual
aid
       or protection; (2) that no employee and no one seeking employment
       shall be required as a condition of employment to join any company
       union or to refrain from joining, organizing, or assisting a labor
       organization of his own choosing; and (3) that employers shall
       comply with the maximum hours of labor, minimum rates of pay,
       and other conditions of employment, approved or prescribed by the
       President.

National Industrial Recovery Act of 1933, ch. 90,S 7(a), 48 Stat.195, 198
(1933) (held invalid by A.L.A. Schecter Poultry Corp. v. United States,
295
U.S. 495 (1935)).
26
       actual liberty of contract, and employers who are
       organized in the corporate or other forms of ownership
       association substantially burdens and affects theflow
       of commerce, and tends to aggravate recurrent
       business depressions, by depressing wage rates and
       the purchasing power of wage earners in industry and
       by preventing the stabilization of competitive wages
       rates and working conditions within and between
       industries.

Ch. 372, S 1, 49 Stat. 449. Finally, the Labor Management
Relations Act states:

       Experience has proved that protection by law of the
       right of employees to organize and bargain collectively
       . . . restor[es] equality of bargaining power between
       employers and employees.

29 U.S.C. S 151. Thus, we must recognize that the
fundamental purpose of the United Transportation Union
Local #60 was to permit members to organize and bargain
collectively for terms and conditions of employment in order
to offset the economic, social and political power of
employers.

In sensitive collective bargaining with employers and in
processing grievances, the unified front of the union is of
paramount importance. It is therefore a desirable objective
to promote harmony and minimize acrimony within the
ranks. A union is not an academic debating society; it is a
formal democratic association of fellow workers founded to
implement the "practice and procedure of collective
bargaining." 29 U.S.C. S 151; Wagner Labor Act, ch. 372,
S 1, 47 Stat. 449.

The prohibition of the commission of deliberate
falsehoods by one union member against another helps to
insure maximum harmony and thus to produce unity
within the union. It serves the salutary purpose of
minimizing dissension, disharmony and internal conflict
within a labor organization whose effectiveness in
bargaining collectively or processing grievances is
calculated on unity of action. Article 78, exactly this type of
prohibition, therefore implements the aims and objectives of

                               27
labor unions as protected by precepts of a national labor
policy in force for well over half a century.

To suggest as do the Appellants that Article 78 is illegal
on its face is a concept that flouts the basic precepts of
organized labor and free speech rights. To encourage willful
circulation of untrue statements within a union is to
generate dissension and disharmony within the union's
rank and file, weaken the union's effectiveness and play
into the hands of those segments of society that have
steadfastly opposed and battled the legitimacy of organized
labor and collective bargaining, all of which have been
hallmarks of our national labor policy at least since 1933
and 1935.

Accordingly, I would hold as a matter of law that Article
78 is one of the "reasonable rules" that a union may adopt
in accordance with S 411(a) (2). Thus, in my view, any
nebulous, so-called chilling effect of Article 78 is
insufficient to create a justiciable controversy.

IV.

The majority determines that certain precedents of this
court dictate that Appellants' case is still alive because
Appellants asserted declaratory and equitable claims in
addition to their claims for monetary relief. See Maj. Op. at
11 ("[W]e view our decisions in Mallick v. International
Brotherhood of Electrical Workers, 644 F.2d 228 (3d Cir.
1981) and Semancik v. United Mine Workers of America
District # 5, 466 F.2d 144 (3d Cir. 1972) as requiring that
his claim for declaratory and injunctive relief be heard.").
An examination of these cases indicates that they
constitute no meaningful authority for the majority's
attempt to breathe life into this moribund case.

A.

In Mallick, we determined that "[h]arm to free speech
rights . . . is not measured solely in economic terms, nor
must concrete punishment be meted out to confer standing
to sue." 644 F.2d at 235. We then explained:"The right to
speak one's views is so fundamental that the spectre of

                                28
punishment, or the uncertainty created by a vaguely
worded prohibition of speech, is injurious as well." Id.

In discussing Mallick, the majority states:

       We noted that the mere fact that the members were
       charged, as well as the possibility of future charges
       based on the challenged prohibitions, could have a
       substantial chilling effect on plaintiffs' and other union
       members' exercise of their free speech rights: "The goal
       of union democracy, achieved through the expression
       of opposing viewpoints, would be difficult to realize if
       members felt deterred from expressing their opinions
       by the prospect of disciplinary proceedings."[Mallick,
       644 F.2d] at 236. Accordingly, we remanded for the
       district court to consider whether the provisions at
       issue violated S 411 of the LMRDA. Id.

Maj. Op. at 16. This intimates that the only injury suffered
by the Mallick plaintiff union members was the chilling of
their free speech rights. In fact, in Mallick , there was
substantial economic injury averred as well as "the spectre
of punishment" for engaging in protected activity. For
example, the Mallick plaintiffs alleged harassment for
talking to newsmen and communicating with the National
Labor Relations Board, Congressmen and Labor
Department officials. They also claimed retaliation by the
union in the form of less desirable job assignments. We
stated that "[t]hese claims of emotional distress and
economic injury were deemed sufficient to support damage
awards by the jury, and they confer standing to challenge
the validity of a union constitution which was invoked to
punish them for protected conduct." Mallick, 644 F.2d at
236.

Here, by contrast, there are no allegations of economic
injury qua membership in the union. The allegations of
injury are insufficient to satisfy even the lenient
requirements of standing for a S 411(a)(2) claim. There was
only one charge brought against Ruocchio and, as detailed
in great length above, see supra Part III, it was for
unprotected speech. See Linn, 383 U.S. at 63 ("[T]he most
repulsive speech enjoys immunity provided it falls short of
a deliberate or reckless untruth.") (emphasis added);

                               29
Garrison, 379 U.S. at 75 ("[T]he knowingly false statement
and the false statement made with reckless disregard of the
truth, do not enjoy constitutional protection."); New York
Times, 376 U.S. at 279-280 (holding that the First
Amendment does not shield the publication of defamatory
falsehood made with actual malice). Ruocchio's temporary
removal from office, and any economic loss he suffered as
an officer is not an injury that may be recouped under the
LMRDA and thus is also insufficient to confer standing.
Harrison, 518 F.2d at 1281. The only remaining allegation
of injury is Appellants' assertion that their speech has been
"chilled." To consider this bald allegation sufficient to confer
standing under the LMRDA is to eviscerate the entire
concept of standing in the free speech context.

The majority believes that the material facts of this case
and those of Mallick are identical or substantially similar.
This suggestion does not reflect the complete material or
adjudicative facts in that case. As stated above, the Mallick
plaintiffs were charged for clearly protected activity and
received less desirable job assignments.

       A judicial precedent attaches a specific legal
       consequence to a detailed set of facts in an adjudged
       case or judicial decision, which is then considered as
       furnishing the rule for the determination of a
       subsequent case involving identical or similar material
       facts and arising in the same court or a lower court in
       the judicial hierarchy.

Allegheny General Hospital v. Nat'l Labor Relations Bd., 608
F.2d 965, 969-970 (3d Cir. 1979) (footnote omitted and
emphasis added). Mallick does not qualify as a legal
precedent for this case because the basic differences in
material or adjudicative facts outweigh the resemblances to
qualify it as a proper analogy.

B.

Nor may Appellants find support in the teachings of
Semancik. At issue in Semancik was Article X, Section 10 of
the United Mine Workers constitution, which provided in
part:

                               30
       [A]ny member or members resorting to dishonest or
       questionable practices to secure the election or defeat of
       any candidate for district office shall be tried by the
       district executive board and fined, suspended or
       expelled as the magnitude of the transgression may
       warrant.

See Semancik, 466 F.2d at 147 (emphasis added). We held
that Section 10 "presents a threat and obstacle to free
speech because it is so vague and ill-defined that whenever
a union member might exercise the right guaranteed to him
under the LMRDA, he is in peril of violating the provision.
In response to such a union rule, a reasonable man might
well refrain from taking full advantage of his rights." Id. at
153-154.

I am unwilling to equate the "vague and ill-defined"
Section 10 with the clear and unambiguous terms of Article
78, which prescribes penalties for any member who
"willfully circularizes untrue statements." The average
union member would certainly understand what is meant
by "untrue statements" or "circularizes." This is a far cry
from the obtuse expressions in Semancik:"dishonest or
questionable practices." Nor can we fault the use of the
word "willfully," in the sense that this means intentionally
or knowingly as distinguished from accidentally or
negligently. Were we to hold otherwise, hundreds of federal
criminal statutes in Title 18 of the United States Code
would suffer the same lethal fate. I therefore have no
difficulty in distinguishing Article 78 in this union's
constitution from the condemned Article X, Section 10 in
the United Mine Workers constitution in Semancik.

Nor does the following portion of the Semancik opinion,
relied upon by the majority, give effective support to its
theory:

       [C]ourts have responded by making clear that labor
       organizations properly exercise their disciplinary
       powers only over a limited area of proscribed conduct
       inimical to the union as an entity and the collective
       bargaining mechanism. Unless statements fall into
       these categories, they are protected from union action
       even if libelous.

                                31
Id. at 153, quoted in Maj. Op. at 17. Consistent with
Semancik, Article 78 does prohibit "conduct inimical to the
union as an entity and the collective bargaining
mechanism." As stated in detail above, see supra Part III,
the mantra of organized labor is "In union, there is
strength." By proscribing the willful circularizing of untrue
statements, Article 78 serves that purpose by minimizing
acrimony and promoting harmony within the ranks.

Moreover, notwithstanding the quoted language of
Semancik, the reference that statements of union members
are protected from union action "even if libelous" is simply
not a correct statement of ruling Supreme Court case law.
This proposition flies in the face of the unambiguous
holding of the Court in Linn:

       [T]he most repulsive speech enjoys immunity provided
       it falls short of a deliberate or reckless untruth. But it
       must be emphasized that malicious libel enjoys no
       constitutional protection in any context. After all, the
       labor movement has grown up and must assume
       ordinary responsibilities. The malicious utterance of
       defamatory statements in any form cannot be condoned,
       and unions should adopt procedures calculated to
       prevent such abuses.

383 U.S. at 63 (emphasis added). Accordingly, the
teachings of Semancik do not support the existence of a
justiciable controversy in this case.

C.

Therefore, the two major cases that form the linchpin of
the majority's opinion do not support their conclusions.
Moreover, acceptance of the notion that any union member
who is charged with violating Article 78--without proof of
actual financial injury or of the deprivation of the right to
vote, to discuss union matters or to hold office--may bring
an action in federal court to challenge the legality of the
Article will generate a state of labor union disruption that
will hail unions, their members and their officers into
federal court every time any disciplinary rule of a union is
invoked by a member, officer or committee against another,
under the guise that merely initiating an internal union

                               32
proceeding, in and of itself, violates a member's"right to
meet and assemble freely." This certainly does not promote
union democracy, nor does it promote unity and harmony
within the rank and file. Although I am absolutely
convinced that my distinguished colleagues certainly did
not so intend, the effect of their holding is to weaken and
undermine labor union effectiveness as envisioned and
protected by our national labor policy.

V.

In sum, the abstract injury asserted by the Appellants--
the right to be free from any application of Article 78 to
them--does not meet the threshold requirement that"[a]
plaintiff must always have suffered a distinct and palpable
injury to himself that is likely to be redressed if the
requested relief is granted." Gladstone Realtors, 441 U.S. at
100 (internal citations and quotations omitted).

Because Article 78 is reasonable as a matter of law, it is
impossible to discern how Appellants sustained the
necessary injury entitling them to an injunction restraining
the future operation of the article. Appellants were not
prevented from criticizing union policies or from mounting
effective challenges to union leadership. They were not
denied an opportunity to work. They were not denied the
opportunity to express any views, arguments or opinions or
to express at all meetings of the labor organizations their
views of candidates in an election of the labor organization
or of any business properly before the meeting.

Rather, Ruocchio was precluded only from "willfully
circularizing untrue statements." As punishment for his
alleged violation of Article 78, he was not expelled from
membership; he was denied only the opportunity, for
several months, to exercise his office as treasurer. On
appeal after trial, he was restored to his office with all full
privileges and rights. The only injury he sustained was his
temporary removal from office. Because this was an injury
as an officer and not as a member, the LMRDA does not
afford relief.

Accordingly, I dissent and would affirm the judgment of
the district court for the foregoing reasons.

                               33
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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