    12-4883
    United States v. Nee


                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
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         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 23rd
    day of July, two thousand fourteen.

    PRESENT:
              BARRINGTON D. PARKER,
              PETER W. HALL,
              RAYMOND J. LOHIER, JR.,
                   Circuit Judges.
    _____________________________________

    United States of America,

                           Plaintiff-Appellee,

                 v.                                        12-4883

    Patrick Nee, Levy Messinetti,

                           Appellants,

    N.Y.C. District Council of N.Y.C.
    & Vicinity of the United Brotherhood
    of Carpenters, Paschal McGuinness,
    Robert J. Cavanaugh, Irving Zeidman,
    First Vice President, Frederick W. Devine,
    Second Vice President, Francis J.P. McHale,
    Secretary-Treasurer, Anthony Salerno,
    AKA Fat Tony, Vincent DiNapoli,
    Peter DeFeo, Alexander Morelli,
    AKA Black Alex, Liborio Bellomo,
    AKA Barney, Anthony Fiorino,
District Council, Peter Thomassen,
John W. Holt, Sr., John R. Abbatemarco,

               Defendants.1
_____________________________________

FOR APPELLANTS:               Patrick Nee, pro se, Maspeth, N.Y.,
                              Levy Messinetti, pro se, Lawrence,
                              N.Y.

FOR APPELLEE:                 Benjamin H. Torrance, Tara M. La
                              Morte, Sarah S. Normand, Assistant
                              United States Attorneys, for Preet
                              Bharara, United States Attorney for
                              the Southern District of New York,
                              New York, N.Y.

     Appeal from an order of the United States District Court for

the Southern District of New York (Berman, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is VACATED and the

matter is REMANDED for further proceedings.

     Appellants Patrick Nee and Levy Messinetti, proceeding pro

se, appeal from the October 23, 2012 order of the district court

denying their petitions for review of a “Notice of Veto,” issued

by court-appointed Review Officer Dennis Walsh (“RO”), which

removed them from their positions as elected officers in one of

the local unions that comprise the District Council of New York

City and Vicinity of the United Brotherhood of Carpenters and

Joiners of America (the “District Council”).   The RO was



     1
        The Clerk of Court is directed to amend the official
caption to read as shown above.

                                2
appointed, and issued the Notice of Veto, pursuant to a

Stipulation and Order between the Government and the District

Council.   The Stipulation and Order were approved by the district

court in June 2010 (the “Stipulation”).    We assume the parties’

familiarity with the underlying facts, the procedural history of

the case, and the issues presented for review.

     The Stipulation provides that any “aggrieved person” may

petition the district court for review of a decision made by the

RO pursuant to Paragraph 5(b) of the Stipulation and that, in

reviewing such a decision, the court must “apply the same

standard of review applicable to review of final agency action

under the Administrative Procedure Act.”    See Stipulation ¶ 11.

It further provides, however, that nothing in the Stipulation

“precludes . . . any aggrieved person from petitioning the Court

on the ground that the Review Officer has exceeded his authority

under th[e] Stipulation.”    Id.

     Here, a liberal construction of the Appellants’ pro se

petitions for review indicates that they challenged both the

propriety of the RO’s Notice of Veto and his authority to remove

them from their positions.   Prior to reviewing the propriety of

the RO’s action, we first examine the RO’s authority under the

Stipulation to remove the Appellants from their elected offices,

an issue of interpretation that we review de novo.    See Broad.

Music, Inc. v. DMX Inc., 683 F.3d 32, 43 (2d Cir. 2012) (“DMX”)


                                   3
(reviewing the interpretation of a consent decree de novo); see

also Doe v. Pataki, 481 F.3d 69, 76 (2d Cir. 2007) (construction

of a stipulation underlying a consent decree reviewed de novo).

     Consent decrees (and their attendant stipulations) are to be

construed “basically as contracts,” DMX, 683 F.3d at 43 (internal

quotation marks omitted), and “ordinary rules of contract

interpretation are generally applicable,” Doe, 481 F.3d at 75.

When interpreting a particular provision of a consent decree, “we

are required . . . to read that provision in light of the decree

as a whole.”   United States v. Local 1804-1, Int’l Longshoremen’s

Ass’n, 44 F.3d 1091, 1097 (2d Cir. 1995).   When the language of

the decree is ambiguous, “a court may consider extrinsic evidence

to ascertain the parties’ intent, including the circumstances

surrounding the formation of the decree.”    United States v.

Broad. Music, Inc., 275 F.3d 168, 175 (2d Cir. 2001) (internal

quotation marks omitted).

     In its October 23, 2012 order, the district court held that

the RO “unquestionably has the power to remove elected officials”

under Paragraph 5(b) of the Stipulation.    United States v. Dist.

Council of N.Y.C., No. 90-cv-5722, 2012 WL 5236577, at *7

(S.D.N.Y. Oct. 23, 2012). In so holding, the district court

relied on its prior decision construing the Stipulation.    See id.

at *6-*7 (citing United States v. Dist. Council of N.Y.C., No.

90-cv-5722, 2010 WL 5297747, at *8-*9 (S.D.N.Y. Dec. 21, 2010)


                                 4
(“Willoughby”) (holding that the RO had “been granted broad power

to ‘eradicate corruption’” within the union and that, under

Paragraph 5(b)(iii) of the Stipulation, had been “specifically

authorized to issue a veto if a person’s conduct is inconsistent

with the objectives of [the Stipulation]”)).   Reviewing the

Stipulation de novo, we note that its language is capable of

multiple interpretations and therefore ambiguous.   See Compagnie

Financiere de CIC et de L’Union Europeenne v. Merrill Lynch,

Pierce, Fenner & Smith Inc., 232 F.3d 153, 158 (2d Cir. 2000).

We thus disagree with the district court’s conclusion that the

Stipulation “unquestionably” affords the RO the power to veto the

tenure of elected local union officials.2

     Paragraph 5(b) of the Stipulation — the provision under

which the RO removed the Appellants from office — addresses the

RO’s “review and oversight authority,” and lists a number of

“matters” over which the RO may exercise that authority.   See



     2
        We have previously recognized that “[f]ew persons are in
a better position to understand the meaning of a consent decree
than the district judge who oversaw and approved it,” United
States v. Local 359, United Seafood Workers, 55 F.3d 64, 68 (2d
Cir. 1995) (emphasis added) (internal quotation marks omitted),
and we give deference “to the interpretation made by the district
judge who approve[d] the decree,” Doe, 481 F.3d at 76. Here,
however, the case was transferred to Judge Berman shortly after
Judge Haight approved the Stipulation. While Judge Berman did
interpret the Stipulation close in time to its approval by Judge
Haight, the rationale for according deference to the original
judge who oversaw the stipulated consent decree is undercut when
we are reviewing the interpretation of the Stipulation by the
transferee judge.

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Stipulation ¶ 5(b)(i)(1)-(4).   Included in that list is “the

authority to review the persons currently holding office or

employment.”   Id. ¶ 5(b)(i)(3).   In turn, Paragraph 5(b)(iii)

states that:

          Upon   reviewing   any  matter   described   in
          [Paragraph 5(b)(i)], the Review Officer may
          determine that the matter reviewed . . . (c) is
          contrary to or violates any law or Court order
          entered in this case; or (d) is contrary to any
          fiduciary responsibility imposed by 29 U.S.C.
          § 501 . . .; or (e) is inconsistent with the
          objectives of this Stipulation and Order. Upon
          such a determination . . . the Review Officer
          may veto or require the District Council to
          rescind its action, proposed action, or lack of
          action.

Stipulation ¶ 5(b)(iii).

     The Appellants argue that the RO’s veto authority is limited

to “actions” under 5(b)(iii).   That is, Paragraphs 5(b)(i) and

(iii) should be read as providing the RO with the authority to

review and to veto “actions” taken by “persons currently holding

office” only when the RO has determined that those actions were

unlawful, contrary to § 501, or inconsistent with the objectives

of the Stipulation, but those paragraphs do not provide the RO

with the authority to veto the services of officers of the local

union.   By contrast, the Government maintains that, having been

provided the authority under Paragraph 5(b)(i) to review “persons

currently holding office,” the RO necessarily has the power under

Paragraph 5(b)(iii) to veto an individual’s appointment to or

continuing occupation of an office upon concluding that

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“officeholding by such persons” was unlawful, contrary to § 501,

or inconsistent with the objectives of the Stipulation.”       Both

interpretations are reasonable based on the language in the

Stipulation.   Thus an ambiguity exists.

     Nor does construing the provisions by reading them in light

of the Stipulation as a whole, see Local 1804-1, Int’l

Longshoremen’s Ass’n, 44 F.3d at 1097, provide further clarity.

First, as the district court in Willoughby observed, the

Government’s reading finds support in the preamble of the

Stipulation, which states that the purpose of the RO’s position

is the “eradication of corruption and racketeering as they affect

union carpenters and union employers.”     Stipulation at 3.   On the

other hand, the RO’s “disciplinary authority” is explicitly

addressed in Paragraph 5(f) of the Stipulation, which permits the

RO to initiate disciplinary proceedings against union officers or

members.   See Stipulation ¶ 5(f).   This provision, Appellants

argue, provides the mechanism by which the RO should have

effected their removal.

     While we acknowledge the government has advanced what may be

a valid argument, based on a reading of the text of the

Stipulation we also cannot foreclose the possibility that the

plaintiffs’ interpretation is correct.     Given these dueling

plausible interpretations of and attendant ambiguity in the

language of the Stipulation, extrinsic evidence may be considered


                                 7
“to ascertain the parties’ intent, including the circumstances

surrounding the formation of the decree.”     BMI, 275 F.3d at 175

(internal quotation marks omitted).   Such evidence may assist the

court in defining the RO’s authority under Paragraph 5(b) and in

determining whether there are differences between “disciplinary

actions” and the actions taken against Appellants.    Those

questions, however, should be resolved by the district court in

the first instance.   See JA Apparel Corp. v. Abboud, 568 F.3d

390, 397 (2d Cir. 2009) (“[T]he meaning of the ambiguous contract

is a question of fact for the factfinder.”).    For the foregoing

reasons, we remand for further proceedings.     See, e.g., Macey v.

Carolina Cas. Ins. Co., 674 F.3d 125, 131 (2d Cir. 2010).

     Accordingly, we VACATE the district court’s October 23, 2012

order and REMAND the matter for further proceedings not

inconsistent with this order.   We express no opinion regarding

the propriety of the RO’s action.



                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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