259 F.3d 749 (D.C. Cir. 2001)
Ron Gilvin, Appellantv.Edward Fire, Individually and as President of the International Union of Electronic, Electrical Salaried, Machine and Furniture Workers, et al., Appellees
No. 00-7221
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 2001Decided August 21, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 99-cv-00530)[Copyrighted Material Omitted]
James F. Wallington argued the cause and filed the brief  for appellant.
Thomas M. Kennedy argued the cause for appellee.  With  him on the brief was Peter Mitchell.
Before:  Henderson, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Ron Gilvin challenges his suspension and subsequent removal from the office of SecretaryTreasurer of the International Union of Electronic, Electrical,  Salaried, Machine and Furniture Workers, AFL-CIO (IUE). Gilvin asserts that the IUE, the IUE's President, and members of the IUE's Executive Board violated federal labor law  and the IUE's constitution by suspending and removing him  in retaliation for protected speech and participation in a civil  trial.  The district court dismissed part of Gilvin's lawsuit for  failing to state a claim, and granted summary judgment  against the remainder.  We affirm in part and reverse in  part.


2
* In November 1996, the IUE elected defendant Edward  Fire to the office of IUE President and elected plaintiff  Gilvin, Fire's political opponent, to be Secretary-Treasurer. Both took their posts in January 1997 and were scheduled to  serve until December 31, 2000.  On June 10, 1998, however,  the IUE Executive Board suspended Gilvin with pay.  And  on August 26, 1998, the IUE's Trustees certified petitions  from two local unions seeking Gilvin's recall from office. Gilvin lost a recall election on October 9, 1998, and was  removed as IUE Secretary-Treasurer.


3
Gilvin and Fire came into conflict soon after their 1996  election.1  In April 1997, Fire, backed by the Executive  Board, proposed transferring money from the IUE's Strike  Insurance Fund to its General Fund in order to reduce the  union's operating deficit.  Gilvin opposed the proposal on the ground that it would weaken the Strike Fund and conceal the  union's failure to maintain a balanced budget.  Gilvin expressed that opposition in letters to IUE local union presidents and members, which characterized the proposal as a  "raid" on the Strike Fund, J.A. 1161, "a reckless change in the  financial structure of our Union," id. at 1163, and an effort to  grant Fire "dictatorial powers," id. at 1161.  The IUE membership eventually adopted Fire's proposal.  Thereafter, at an  Executive Board meeting on April 21, 1997, defendant Board  members made clear, in no uncertain terms, their displeasure  with Gilvin's efforts to oppose the Strike Fund plan.2


4
In May 1997, Gilvin began questioning increases in IUE  subsidies to IUE District Councils, as well as raises and  travel reimbursements approved by President Fire.  Gilvin  charged that checks for those expenditures were issued without his knowledge or approval.  Article VII(C) of the IUE  constitution requires that "[a]ll checks of the Union must bear  the signatures of the President and the Secretary Treasurer," and Gilvin had previously authorized the union's  comptroller to utilize a facsimile of his signature on IUE  checks.  In August 1997, Gilvin wrote Fire and the comptroller revoking that authorization, "[i]n order to assure that no  funds of the International are disbursed for other than legitimate purposes and with adequate substantiation."  Id. at  1175.  Gilvin explained his decision in a letter to the Executive Board and local unions dated September 10, 1997.  Calling the raises and travel expenditures a "raid on the International treasury," id. at 1183, he wrote:


5
I will not sign any check until I can verify that all International expenditures are properly authorized and substantiated....  I consider it my Constitutional responsibility as Secretary-Treasurer to provide a vigilant, meaningful financial oversight on behalf of the IUE membership, and I won't be bullied into doing less!


6
Id. at 1184 (emphasis omitted).


7
Fire responded with his own letter to the members of the  IUE.  He wrote that Gilvin "always has had the ability and  always was expected to see to it that expenditures are made  under proper accounting procedures and have proper documentation," acknowledging that "[t]hose are the basic responsibilities of the Secretary-Treasurer."  But Fire declared that  "if he refuses to sign a check, there will be a serious constitutional problem."  Id. at 1189.  Fire also wrote that for "Gilvin  to continue to characterize the [Strike Fund] plan as a 'raid'  on the ... Fund is an insult to our members and our  leadership."  Id. at 1191.  On October 15, 1997, Gilvin reauthorized the use of his facsimile signature, with the understanding that the IUE's comptroller would provide him with a  daily register of all checks and with supplemental documentation upon request.  Id. at 1199.  On November 13, 1997, the  Executive Board held a meeting at which several members again sharply decried Gilvin's letters, and suggested that  something had to be done to stop him from issuing more.3


8
In December 1997, Gilvin wrote an anonymous letter to the  "Hoekstra Committee," a Congressional subcommittee  chaired by Representative Peter Hoekstra that was investigating allegations of union corruption.  Gilvin's letter alleged  that three IUE checks, totaling $163,135.98, had been issued  without an identifiable union purpose.  Complaint WW 48, 49. Gilvin did not inform anyone at the IUE that he had sent the  letter.  J.A. 449-62.


9
On January 5, 1998, Gilvin was present at the United  States District Court for the Southern District of Ohio,  during the trial of a lawsuit brought against the IUE by  Gilvin's home local, IUE Local 801.  Fire and other IUE  officials saw Gilvin in the courtroom.  Several weeks later,  Fire sent Gilvin a memorandum asking him to explain why  his weekly attendance record reported that he was away from  the office that day on "Union Business."  Id. at 1208.  In a  one-sentence written reply, Gilvin responded that he had  been subpoenaed.  Id. at 1210.  At the next Executive Board  meeting, held on March 10, 1998, Gilvin was attacked by  defendant Board members who interpreted his appearance in  the courthouse as reflecting a willingness to testify against  the IUE.4


10
On April 26, 1998, Gilvin sent a letter to an IUE member,  opposing a proposed division of Local 801 into two separate  locals.  Gilvin attributed the proposal to Fire, and wrote that  the President "should keep his nose out of the local's politics." Id. at 1221.  He also declared that "President Fire has his  own problems" in the form of an "International financial  crisis," charging that the union was operating at a deficit, that  operating expenses were increasing, and that the Strike Fund  had suffered a "$6,459,127.56 drop in one year."  Id.  Two  days later, Gilvin demanded Fire's authorization to mail the  letter to other IUE members at IUE expense, and Fire  refused.  On April 30, 1998, the six IUE District Presidents,  who also served on the IUE's Executive Board and are  defendants here, responded to Gilvin's April 26 letter with the  following joint statement:


11
1. Ron Gilvin is hereby CENSORED [sic] for his publication and dissemination of false and scurrilous charges.


12
2. Ron Gilvin is directed to adhere to the IUE Constitution and to serve at the direction of the President.


13
3. Ron Gilvin is put on notice that if he continues these scurrilous attacks the undersigned will support the efforts now being considered by members outraged by his actions to recall him from office.


14
4. Ron Gilvin['s] right to engage in legitimate debate over the issues facing this union must be conducted  in the future in a manner which sticks to the issues and avoids baseless slander.


15
Id. at 1230.


16
The conflict between Gilvin and the defendants continued  to escalate in May of 1998.  On May 20, Gilvin sent Fire a  memorandum, seeking his assistance in auditing the financial  records of the IUE's districts, particularly the "wage and  operating subsidies" paid to the districts by the International. Id. at 1232.  Fire refused to authorize an audit, telling Gilvin  that, under the IUE constitution, the Secretary-Treasurer  may perform a district audit only if the district "has been  delinquent for thirty days or more or ... when there is  reason to believe that [the district's] financial affairs ... are  being mishandled or a defalcation has occurred."  Id. at 1234  (quoting IUE Const. Art. XIII(N)).  Fire directed Gilvin to  provide, immediately and in writing, any information he possessed pertaining to any such misconduct.  Id.


17
Gilvin again revoked permission for the use of his facsimile  signature on May 27, 1998, stating that he would personally  sign any check that was accompanied by "proper vouchers or  other backup" or that he could "verify through audits as  being constitutionally proper and legal."  Id. at 1263.  The  next day, Fire wrote Gilvin a memorandum stressing that the  Secretary-Treasurer was not authorized "to determine the  spending policies of the International Union," and further  suggesting that if Gilvin attempted to do so, he would cause  "a serious constitutional crisis."  Id. at 250.  On June 2, 1998,  Gilvin refused to sign subsidy checks to the six districts.  In a  letter to the comptroller, Gilvin stated that he had sought to  verify by audit "the validity and purpose of these extraordinary payments," but had "been refused my constitutional  authority to account for these expenditures."  Id. at 1331. "Until a resolution is reached," Gilvin said, "I do not intend to  process any form of supplements [i.e., subsidies] that I cannot  account for, and [that] I have reason to ... believe violates  our Constitution or has legal implications."  Id.


18
Fire convened the Executive Board to discuss Gilvin's  revocation of his facsimile signature and his refusal to sign  the subsidy checks.  On June 9, 1998, the Board passed a  resolution declaring that the six district checks were properly  documented and legitimate union expenses, that Gilvin was  constitutionally required to sign the checks, that a committee  should investigate Gilvin's conduct, and that Gilvin should in  the interim be suspended with pay from the office of  Secretary-Treasurer.  Id. at 351-52.  On July 15, 1998, the  Board's appointed committee issued a report concluding that  Gilvin's suspension "was right, proper and fully justified," and  recommending that the IUE membership consider initiating  "the recall of Ron Gilvin from the office of International  Secretary Treasurer."  Id. at 300-01.


19
Two local unions petitioned for Gilvin's recall by election. Id. at 378-79.  Those petitions were endorsed by 92 additional locals comprising over 37% of the IUE's total membership,  id. at 380, thus readily satisfying the constitutional requirements for initiating a recall.  See IUE Const. Art. X(A).  On  October 9, 1998, the IUE's Trustees announced that more  than 75% of the locals, representing more than 75% of the  eligible union members, had voted in favor of the recall.  J.A.  419.  As that was more than sufficient to accomplish a recall,  see IUE Const. Art. X(A), the Trustees declared Gilvin  recalled from office effective the following day.  J.A. 419.

II

20
Gilvin filed suit against the IUE, President Fire, and  individual members of the Executive Board, charging that the  defendants had violated         101(a) of the Labor-Management  Reporting and Disclosure Act (LMRDA), part of the "Bill of  Rights of Members of Labor Organizations."  29 U.S.C.          411(a); see id.         411-15.  Gilvin alleged that, in suspending him from office, the defendants had violated his rights:  (i)  to free expression, under         101(a)(2), because the suspension  was imposed in retaliation for his criticizing the defendants;5 (ii) to appear as a witness in a judicial proceeding,  under         101(a)(4), because it was imposed for responding to a  subpoena in the litigation involving Local 801;6  (iii) to communicate with legislators, under         101(a)(4), because it was  imposed for writing to the Hoekstra Committee;  and (iv) to  equal rights, under         101(a)(1), because it was imposed for  criticizing defendants and appearing as a witness.7  Gilvin  also charged that, in removing him from office, the defendants had violated his rights under:  (v) all three LMRDA  subsections cited above;  and (vi) the recall provisions of  Article X(A) of the IUE constitution.8


21
On September 15, 1999, the district court dismissed two  categories of Gilvin's charges for failure to state a claim upon  which relief can be granted, pursuant to Federal Rule of Civil  Procedure 12(b)(6).  Gilvin v. Fire (Gilvin I), No. 99-cv-530,  slip op. at 6, 9-10 (D.D.C. Sept. 15, 1999).  The court dismissed Gilvin's LMRDA         101(a)(1) claim because he had not  alleged the violation of any "equal right" enumerated in that  subsection:  i.e., the right to nominate candidates, to vote in  elections, to attend membership meetings, or to participate in  such meetings.  See 29 U.S.C.         411(a)(1).  And the court  dismissed Gilvin's claim under the IUE constitution because  he had failed to respond to defendants' contention that the  recall had been initiated and carried out in accord with the  requirements of Article X(A).


22
On July 21, 2000, the district court granted summary  judgment against Gilvin's remaining LMRDA claims pursuant  to Federal Rule of Civil Procedure 56.  Gilvin v. Fire (Gilvin  II), No. 99-cv-530, slip op. at 22 (D.D.C. July 21, 2000).  The  court rejected Gilvin's         101(a)(2) claim, that defendants had  suspended him in retaliation for criticizing them, because it  found Gilvin's speech unprotected by the statute.  Subsection  101(a)(2) protects only the rights of union members, the court  ruled, not of union officers.  Moreover, the court found  Gilvin's criticism so harsh that "Gilvin could not effectively  represent the union as an officer while making such accusations against its other leaders."  Id. at 17.


23
The district court also rejected Gilvin's         101(a)(4) claim of  retaliatory suspension for his January 1998 appearance in the  Local 801 litigation.  The court found that there was "a  genuine issue of fact as to whether Defendants suspended  Gilvin in retaliation for his participation in that litigation." Id. at 19.  But the court held that Gilvin was unprotected by          101(a)(4) for two reasons:  because, as with         101(a)(2), the  statute does not protect union officers, and because Gilvin had  not actually testified in the Local 801 litigation.  Id. at 20. The court further dismissed Gilvin's         101(a)(4) claim that he  was suspended in retaliation for writing to the Hoekstra  Committee, on the ground that Gilvin had failed to submit  "evidence that Defendants knew of his anonymous letter." Id. at 18.


24
Finally, the district court rejected all claims concerning  Gilvin's removal by recall election because that election had  been conducted fully in accordance with the provisions of the  IUE constitution.  Since Gilvin had produced no evidence  that the election's results or procedures were tainted, the  district court found that the LMRDA provided no basis for  setting aside the union members' democratic choice.  Id. at  10-13.

III

25
We review both of the district court's orders de novo.  See  Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996) ("Our  standard of review under Federal Rules 12(b)(6) and 56 is the  same:  de novo.").  In considering the claims dismissed pursuant to Rule 12(b)(6), we must treat the complaint's factual  allegations as true, must grant plaintiff the benefit of all  reasonable inferences from the facts alleged, and may uphold  the dismissal only if "it appears beyond doubt that the  plaintiff can prove no set of facts in support of his claim which  would entitle him to relief."  Sparrow v. United Air Lines,  Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000) (quoting Conley v.  Gibson, 355 U.S. 41, 45-46 (1957));  see id. at 1113.  As for  the claims denied on summary judgment pursuant to Rule 56, we may affirm only if "there is no genuine issue as to any  material fact [and] the moving party is entitled to judgment  as a matter of law."  Anderson v. Liberty Lobby, Inc., 477  U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)).  A dispute  about a material fact is "genuine" if a reasonable jury,  drawing all reasonable inferences in Gilvin's favor, could  return a verdict against the defendants.  See Flemmings v.  Howard Univ., 198 F.3d 857, 860 (D.C. Cir. 1999);  Anderson  v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999).


26
Applying these standards, we conclude that the district  court erred in granting summary judgment against two of  Gilvin's claims:  that he was suspended for exercising his  LMRDA         101(a)(2) right to free expression, and for exercising his         101(a)(4) right to appear as a witness in a judicial  proceeding.  We consider these claims in Parts IV and V  below.  We conclude that the court properly dismissed the  remainder of Gilvin's claims, which we discuss in Part VI.

IV

27
We begin with Gilvin's allegation that he was suspended for  his criticism of Fire and the Executive Board, in violation of  LMRDA         101(a)(2).  That subsection states that "[e]very  member of any labor organization shall have the right to meet  and assemble freely with other members;  and to express any  views, argument, or opinions."  29 U.S.C.         411(a)(2).  It also  includes a proviso 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."  Id. Defendants contend  that Gilvin was not suspended because of his criticism, but  because his refusal to sign or authorize his facsimile for use  on IUE checks constituted insubordination and derogation of  his official duties in a manner that falls within the proviso. Summary judgment was warranted, defendants contend, because there was "no genuine issue of material fact" as to  whether Gilvin's criticism caused his suspension.


28
Defendants may be correct that Gilvin could have been  suspended for an unreasonable refusal to inscribe his signature on IUE checks.9  But the district court did not find that  there was no genuine issue regarding the actual motivation  for the suspension.  And we certainly cannot make such a  finding on the record before us, given the defendants' repeated attacks on Gilvin for sending critical letters, and their  declarations that something had to be done to stop him from  sending more.  See supra notes 2, 3 and pp. 6-7.


29
Rather than rely on the absence of a genuine factual  dispute, the district court determined that Gilvin's criticism of  the other union leaders was unprotected by         101(a)(2). First, the court held that         101(a)(2) protects the free speech  rights only of union members, not of union officers.  That  holding was an error of law.  In Finnegan v. Leu, 456 U.S.  431 (1982), the Supreme Court held that         101(a)(2) does not  protect appointed union officials from discharge on account of  the expression of their opinions.  But seven years later, in  Sheet Metal Workers' International Association v. Lynn, 488  U.S. 347 (1989), the Court announced a different rule for  elected officials like Gilvin.  In Lynn, an elected business  agent was removed from his post in retaliation for statements  he made at a union meeting in opposition to a dues increase  sought by the union trustee.  Although removal of an appointed agent under such circumstances would not have been  protected under Finnegan, the Lynn Court held that "[t]he  consequences of the removal of an elected official are much  different."  Id. at 355.  "To begin with," the Court said,  "when an elected official like Lynn is removed from his post,  the union members are denied the representative of their  choice."  Id. "Furthermore," the Court continued, "the potential chilling effect on [LMRDA] free speech rights is more  pronounced when elected officials are discharged."  Id.  In  such cases, "[n]ot only is the fired official likely to be chilled  in the exercise of his own free speech rights, but so are the  members who voted for him."  Id.  Accordingly, the Court  held that "Lynn's retaliatory removal stated a cause of action  under         102."  Id.


30
Defendants seek to distinguish Lynn on the ground that  there the officer was removed from office, while this aspect of  Gilvin's claim relates only to his suspension.10  The distinction, however, is insufficient to persuade us that Lynn is  inapplicable here.  The term of Gilvin's suspension was indefinite, and it immediately relieved him of all official authority. That action implicates the same concerns relied upon by the  Court in Lynn:  Union members who voted for Gilvin were  denied the representative of their choice for the length of the  suspension, and both Gilvin and those who observed what  happened to him were likely to be "chilled in the exercise" of  their free speech rights.  Lynn, 488 U.S. at 355.  We are  unable to perceive a difference in the degree of "chill" generated by suspension as compared to removal sufficient to  justify a difference in outcomes.


31
Second, the district court held that "Gilvin's letters to union  members criticizing Defendants were not protected under  101(a)(2) because they were inconsistent with [his] duties  [and] preclude[d] his effective representation of the union." Gilvin II, slip op. at 16 (internal quotation omitted).  The  court was particularly concerned that Gilvin's letters were  "replete with serious accusations against the IUE's President  and Board."  Id. at 17.  But the fact that the letters were  critical of the union leadership can hardly suffice to remove the protections of         101(a)(2), a point defendants rightly  conceded at oral argument.  Indeed, as the Supreme Court  noted in Lynn, such criticism was "precisely" what Congress  intended to protect in passing the LMRDA.11


32
Nor does it matter that the tone of Gilvin's letters was  harsh, and even intemperate.  Subsection 101(a)(2)'s protection of a union member's right "to express any views, arguments, or opinions" is not limited to discourse clothed in the  polite language of diplomats in striped pants.12  Gilvin's opponents certainly did not think that they were so constrained, as  they gave quite as good as they got.  See supra notes 2-4.


33
Finally, there was nothing about the substance of Gilvin's  criticism that was inconsistent with his duties as a union  official.  To the contrary, Gilvin's letters challenged the financial policy of the President and Executive Board, a topic well  within the rights of any union member and certainly of the  Secretary-Treasurer, whose responsibilities include "perform[ing] all such duties as may be deemed necessary to a  proper and effective administration of the financial affairs of  the Union."  IUE Const. Art. VII(B);  see id. (requiring  Secretary-Treasurer to "account for all monies" of the union). Indeed, at oral argument defendants candidly agreed that no  duty of Gilvin's office prevented him from expressing his  views on such proposals as the transfer of money from the  Strike Fund.13


34
In sum, because Gilvin's criticism of the union leadership  was protected speech under         101(a)(2), and because on this  record a reasonable jury could find that Gilvin was suspended  because of that criticism, the grant of summary judgment to  defendants was erroneous.14

V

35
Gilvin also claims that he was suspended, in violation of  LMRDA         101(a)(4), for appearing in federal court in response to a subpoena in a lawsuit brought against the International by IUE Local 801.  Subsection 101(a)(4) provides  that "[n]o labor organization shall limit the right of any  member ... to appear as a witness in any judicial ...  proceeding."  29 U.S.C.         411(a)(4).  Defendants dispute that  Gilvin was suspended for his courthouse appearance, arguing  that it "occurred months before his suspension, which was  based upon an entirely different sequence of events."  Fire  Br. at 37.  Accordingly, defendants insist that the district  court's grant of summary judgment on this claim was appropriate.


36
The problem with this argument, as with defendant's parallel argument under         101(a)(2), is that the district court did  not hold that there was no genuine issue of material fact as to  whether Gilvin was suspended for his participation in the  Local 801 litigation.  To the contrary, the court, referring to  statements made by defendants at the IUE Executive Board  meeting of March 10, 1998, held:  "These statements do  create a genuine issue of fact as to whether Defendants  suspended Gilvin in retaliation for his participation in that  litigation."  Gilvin II, slip op. at 19 (emphasis added);  see  also supra note 4.


37
Instead of relying on an absence of a genuine factual  dispute, the district court once again concluded that the  LMRDA offered Gilvin no protection.  First, as with          101(a)(2)'s protection of free speech, the court held that          101(a)(4)'s protection of the right to appear as a witness  applies only to union members and not to officers:  As an  officer, the court held, "Gilvin was not protected by section  101(a)(4) against retaliation for his involvement with the Local  801 lawsuit."  Id. at 20.  For the reasons described in the  previous section, this conclusion is erroneous as applied to an  elected officer like Gilvin.  Although Lynn itself involved          101(a)(2), there is no reason to suspect that its principles  are not equally applicable to § 101(a)(4).  The right at stake  here--the right to appear as a witness in a judicial proceeding--is just as likely as the right of free speech to be chilled  by punishment for its exercise.15


38
Second, the district court held that because Gilvin "never  did actually testify at the January 1998 proceeding," he "did  not engage in activity that would be protected by section  101(a)(4) even if undertaken by a union member."  Gilvin II,  slip op. at 20.  But if         101(a)(4)'s command--that a union  may not "limit" a member's right to "appear" as a witness-were restricted to those members who actually testify, it  would be a flimsy protection indeed.  Witnesses often are  called to the courthouse, yet end up not testifying.  The  reasons vary widely, and are usually wholly beyond the  witnesses' control:  ranging from judicial rulings, to stipulations on the subject of their testimony, to counsel's lastminute strategic decisions.  Since potential witnesses can  rarely be guaranteed that they will testify, a rule like that  adopted by the district court would chill their willingness to  appear.  Indeed, carried to its logical extreme, restricting the  protection of         101(a)(4) to those who actually testify would  permit an antagonist to impose all kinds of impediments to a  witness' appearance at the courthouse--as long as the impediments succeed in keeping the witness off the stand, or are put  in place before the testimony actually begins.  There is no  justification for such a narrow reading of such an important  element of a union member's Bill of Rights.16


39
Accordingly, because Gilvin's appearance at the federal  courthouse in connection with the Local 801 litigation was  protected conduct under LMRDA         101(a)(2), and because  there is a genuine issue of material fact as to whether Gilvin  was suspended because of that appearance, the grant of  summary judgment to defendants on this claim must be  reversed.

VI

40
In the following sections, we consider Gilvin's remaining  claims.  These do not fare as well, substantially for the  reasons stated by the district court.


41
* Gilvin contends that his suspension violated LMRDA          101(a) on two grounds in addition to those discussed in  Parts IV and V.  First, Gilvin claims that his suspension for  criticizing defendants and for appearing as a witness violated  not only LMRDA         101(a)(2) and (4), but also         101(a)(1)-which guarantees every member of a labor organization:


42
equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings....


43
29 U.S.C.         411(a)(1).  But Gilvin does not dispute that he did  vote, did attend membership meetings, and did participate in  deliberations.  Accordingly, this claim was properly dismissed  because, as the district court held, Gilvin has failed to articulate how he was deprived of any of the specific rights  protected by         101(a)(1).  See Carothers v. Presser, 818 F.2d  926, 931 (D.C. Cir. 1987) (holding that to prevail on an equal  rights claim under         101(a)(1), a plaintiff must demonstrate  that defendants "deprived the plaintiff[ ] of a right specifically enumerated in the statute, such as the right to an equal  vote").


44
Second, Gilvin claims that he was suspended in violation of  LMRDA         101(a)(4) for writing a letter to the Hoekstra  Committee alleging that IUE checks had been issued without  an identifiable union purpose.  Retaliation for such an act  would have violated Gilvin's right "to communicate with any  legislator."  29 U.S.C.         411(a)(4).  But Gilvin acknowledges  that he sent the letter anonymously, and, as the district court  found, he "has not offered any evidence that Defendants knew  of his anonymous letter to the Hoekstra Committee, thus  leaving no foundation for his argument that they suspended  him in retaliation for it."  Gilvin II, slip op. at 18.

B

45
Gilvin further contends that his ultimate removal from  office violated the rights guaranteed by LMRDA         101(a) and  the recall provisions of the IUE constitution.  Neither the  statute nor the theory of the Lynn case, however, protects a  union official--elected or otherwise--from removal by a recall  election.  The Lynn Court noted that, in adopting "Title I of  the LMRDA ....  Congress sought to further the basic  objective of the LMRDA:  ensuring that unions [are] democratically governed and responsive to the will of their memberships."  Lynn, 488 U.S. at 352.  The Court concluded that  protecting elected officials from removal by other officials in  retaliation for their speech was necessary to ensure democratic responsiveness.  Id. at 355.  But that rationale has no  application to removal by a recall election.  Removing an  officer by a vote of the union's membership, because his  opinions no longer represent the will of that membership,  represents the expression of democracy, not its subversion.


46
Moreover, we agree with the district court's conclusion that  "Gilvin provide[d] no evidence to support his claim that the  recall vote was tainted" or that the IUE constitution was  violated in any way.  Gilvin II, slip op. at 13.  Two local  unions initiated the petition for recall, with the endorsement  of 92 other locals comprising over 37% of the IUE's total  membership. J.A. 380.  This was substantially more than  was constitutionally required for initiation of a recall.  See  IUE Const. Art. X(A) (requring initiation by one local, with  the endorsement of at least 25 others comprising 25% of the  IUE membership).  More than 270 locals, representing more  than 75% of both the locals and the eligible IUE membership,  voted in favor of the recall, J.A. 419--far in excess of the  number required to remove Gilvin from office.  See IUE  Const. Art. X(A) ("The President or Secretary-Treasurer  shall be declared recalled if locals having a majority of the  members of the Union in good standing have voted for his or  her recall.").  Although Gilvin had every right to disagree  with the policies of the IUE's President and Executive Board, it is apparent that the union's membership did not share that  disagreement, and Gilvin had no right to remain in office once  the members resoundingly voted him out.

VII

47
For the reasons stated in Parts IV and V, we reverse the  district court's grant of summary judgment against Gilvin on  his claims that defendants violated his rights to free speech  and to appear as a witness, by suspending him from office in  retaliation for the exercise of those rights.  See LMRDA          101(a)(2), (4), 29 U.S.C.         411(a)(2), (4).17  In making this  determination, we have, as required by the applicable standard of review, examined the evidence in the light most  favorable to Gilvin, and we express no views regarding the  merits or ultimate outcome of the case.  See Borgo v. Goldin,  204 F.3d 251, 254 (D.C. Cir. 2000).  For the reasons stated in  Part VI, the remaining portions of the district court's judgment, including the court's grant of summary judgment  against Gilvin on claims arising out of the recall election, are  affirmed.


48
Affirmed in Part and Reversed in Part.



Notes:


1
 Because Gilvin's complaint was dismissed pursuant to Federal  Rules of Civil Procedure 12(b)(6) and 56, the following description of  the facts draws all reasonable inferences in Gilvin's favor.  See  infra Part III.


2
 See, e.g., J.A. 1375 ("[T]here are letters all over my District  really taking on what we did.  I think that's g*dd**ned outrageous....");  id. at 1376 ("I hope to h*ll we don't have to see any  more of these disruptive letters in this International Union.");  id. at  1378 ("I was appalled at that letter.  I think it does nothing but  disrupt this International Union and the goals that we're trying to  achieve.");  id. ("I also don't appreciate the officers ... out there  with the staff at the locals, undercutting this Board.  That's been  happening in my district and I want it to stop.");  id. at 1339 ("The  way this thing came down I think was bull c**p....  I resented the  h*ll out of that [letter] being at the district meeting.");  id. at 1410  (describing Gilvin's letter as "garbage trash--that goes out to our  membership and to the leadership ... to denounce our President,"  and charging that Gilvin "took the credibility of the Executive  Board and knifed us");  id. at 1417-18 ("If anybody has any  problems with the leadership of this union ... these things have to  be dealt with behind closed doors.  It should not be made public.").


3
 See, e.g., J.A. 1448 ("[T]he whole problem lies there with the  rumor mongers, with the letters going out ... that's the bone of  contention.");  id. at 1449 ("[T]he man's got to be censured....  We  can't put up with this garbage any more.");  id. at 1460-61 ("I'm not  going to take any more s**t, right in the area that I live, from him  and his constituents....  [I]f it doesn't stop, then I don't have a  problem starting a recall petition....");  id. at 1470 ("I think that  we should draw the line, and put an end to all this mudslinging....").


4
  See, e.g., J.A. 1484-85 ("I would not testify against this  International Union even if I disagreed with its leadership or its  Executive Board....  I guess I have a problem, Ron.... with you  showing up in the courtroom ... not to testify on our side, but on  the side of Local 801....");  id. at 1486 ("That bothered me ...  that the Secretary-Treasurer of this International Union showed up  to testify against this International Union, that bothered me.");  id.  at 1500 ("[D]on't kid me that you were subpoenaed.  You were  subpoenaed because they knew how you were going to testify.").


5
 Subsection 101(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, argument, or opinions...:  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.         411(a)(2).


6
 Subsection 101(a)(4) states:
No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator....
29 U.S.C.         411(a)(4).


7
 Subsection 101(a)(1) states:
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
29 U.S.C.         411(a)(1).


8
 The complaint further charged other violations of the IUE  constitution.  Those charges were dismissed by the district court,  and Gilvin has not pursued them here.  See Gilvin Br. at 14.
Gilvin's LMRDA claims were brought pursuant to LMRDA          102, 29 U.S.C.         412, which provides:  "Any person whose rights  secured by the provisions of this subchapter have been infringed by  any violation of this subchapter may bring a civil action in a district  court of the United States...."  The claims for violation of the  IUE constitution were brought under         301(a) of the Labor Management Relations Act, 29 U.S.C.         185(a), which states:  "Suits for  violation of contracts between ... labor organizations, may be  brought in any district court of the United States having jurisdiction of the parties...."  See Wooddell v. Int'l Bhd. of Elec.  Workers, Local 71, 502 U.S. 93, 98 (1991) (holding that         301(a)  "extends to suits on union constitutions brought by union members").


9
 The qualifier "unreasonable" is necessary because Gilvin could  not lawfully have signed a check that, for example, violated his  fiduciary obligations as Secretary-Treasurer.  See 29 U.S.C.          501(a) (setting forth the fiduciary obligations of the officers of a  labor organization with respect to the organization's "money and  property");  IUE Const. Art. VII(B) (requiring the SecretaryTreasurer to "account for all monies" of the union);  see also 29  U.S.C.         501(c) (imposing a fine or imprisonment for, inter alia,  embezzlement of union funds).


10
 Gilvin's claims relating to his removal are discussed in Part  VI.B below.


11
 See Lynn, 488 U.S. at 355 ("[Congress] recognized that democracy would be assured only if union members are free to discuss  union policies and criticize the leadership without fear of reprisal."  (quoting United Steelworkers v. Sadlowski, 457 U.S. 102, 112  (1982))).


12
 See Petramale v. Local No. 17 of Laborers Int'l Union, 736  F.2d 13, 17 (2d Cir. 1984) (noting that "union meetings, especially  those involving ... disputes between rival factions within the union,  ... can be fraught with tension and even sparked with vitriol and  calumny," and holding that "leeway for the expression of strongly  held views in emotional terms ... must be afforded union members") (internal quotation omitted).


13
 Cf. Lynn, 488 U.S. at 355 n.6 ("There is no suggestion that  Lynn's speech in opposition to the dues increase contravened any  obligation properly imposed upon him as an elected business agent  of the Local.").


14
 Gilvin also sought, and was denied, recovery under         101(a)(2)  on the theory that defendants were involved in a "scheme to  suppress dissent."  This theory, adopted by the Second Circuit,  provides a cause of action for appointed union officers who are  unprotected under Finnegan and Lynn.  See Maddalone v. Local  17, United Bhd. of Carpenters, 152 F.3d 178, 184 (2d Cir. 1998).  At  least with respect to elected officers, however, the Supreme Court  expressly rejected the contention "that a union official must establish that his firing was part of a systematic effort to stifle dissent  within the union in order to state a claim."  Lynn, 488 U.S. at 355  n.7.  Thus, Gilvin's free speech claim depends only upon whether he  can show retaliation against protected expression.  He need not  demonstrate any broader "scheme."


15
 See International Org. of Masters v. Prevas, 175 F.3d 341, 344  (4th Cir. 1999) (holding that the LMRDA bars any conduct that  either limits or is "likely to chill the exercise of a member's right to  [sue]" (quoting NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 425 (1968))).


16
 See Phillips v. Int'l Ass'n of Bridge, Structural & Ornamental  Iron Workers, Local 118, 556 F.2d 939, 942 (9th Cir. 1977) (declaring that "[i]f a union member's right [under         101(a)(4)] is to have  any meaning, courts must be ever vigilant in protecting that right  against indirect and subtle devices as well as against direct and  obvious limitations").


17
 The district court granted summary judgment in favor of  defendants in their individual capacities solely on the ground "that  Gilvin's public speech and anticipated testimony in judicial proceedings were not protected from retaliation under the LMRDA." Gilvin II, slip op. at 22;  see id. at 21 (noting that "an individual  union officer may be individually liable under Title I [of the  LMRDA] if he or she 'aids, abets, instigates or directs a wrongful  use of union power to deprive a member of his rights under         101' "  (quoting Rosario v. Amalgamated Ladies' Garment Cutters' Union,  Local 10, 605 F.2d 1228, 1246 (2d Cir. 1979))).  Since we hold that  Gilvin's speech and courthouse appearance were protected, we  necessarily reverse the grant of summary judgment in favor of the  individual defendants as well.


