                       UNITED STATES COURT OF APPEALS                    FILED
                           FOR THE NINTH CIRCUIT                          APR 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
SOUTHWEST REGIONAL COUNCIL OF                   No.   15-55879
CARPENTERS,
                                                D.C. No.
                Plaintiff-Appellee,             2:14-cv-02762-JVS-JC
                                                Central District of California,
 v.                                             Los Angeles

MICHAEL MCCARRON,                               ORDER

                Defendant-Appellant,

 and

SOUTHWEST CARPENTERS TRAINING
FUND; DECARLO & SHANLEY, P.C.,

                Third-party-defendants.

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

       Appellant’s petition for panel rehearing (Docket Entry No. 27) is granted.

       The memorandum disposition filed February 27, 2018, is withdrawn. A

superseding memorandum will be filed concurrently with this order.

       No further Petitions for Panel Rehearing or Petitions for Rehearing En Banc

will be entertained.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SOUTHWEST REGIONAL COUNCIL OF                   No.    15-55879
CARPENTERS,
                                                D.C. No.
                Plaintiff-Appellee,             2:14-cv-02762-JVS-JC

 v.
                                                MEMORANDUM*
MICHAEL MCCARRON,

                Defendant-Appellant,

 and

SOUTHWEST CARPENTERS TRAINING
FUND; DECARLO & SHANLEY, P.C.,

                Third-party-defendants.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                          Submitted February 23, 2018**


Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Michael McCarron appeals pro se from the district court’s interlocutory

order granting summary judgment in favor of Southwest Regional Council of

Carpenters (“SWRCC”), an affiliate of the United Brotherhood of Carpenters and

Joiners of America, on SWRCC’s claim and McCarron’s counterclaims under the

Labor Management Reporting and Disclosure Act (“LMRDA”). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Corns v. Laborers Int’l

Union of N. Am., 709 F.3d 901, 907 (9th Cir. 2013), and we affirm in part, reverse

in part, and remand.

                                         I

      The district court properly granted summary judgment as to liability on

SWRCC’s claim of breach of fiduciary duty under LMRDA § 501(a) because

McCarron violated SWRCC’s bylaws, and thus breached his fiduciary duties as a

union officer as a matter of law, by making payments to the Southwest Carpenters

Training Fund (“SWTF”) without first referring SWTF’s rental overpayment bills

to SWRCC trustees for review. See Servs. Emps. Int’l Union v. Nat’l Union of

Healthcare Workers, 718 F.3d 1036, 1046 (9th Cir. 2013); Kerr v. Shanks, 466

F.2d 1271, 1276 n.3 (9th Cir. 1972). McCarron did not establish any affirmative

defense based on SWRCC council executive committee’s approval of the

payments he made to SWTF because there is no good faith defense to a claim

under LMRDA § 501(a), see Servs. Emps. Int’l Union, 718 F.3d at 1046-47


                                         2
(holding that belief that violations of union constitution were justified did not

absolve union officers of liability), and the defense of authorization does not apply

when an authorization is in conflict with a union’s constitution or bylaws, see id. at

1049.

                                          II

        As to the issue of damages caused by McCarron’s breach of his fiduciary

duty to SWRCC, however, the district court clearly erred in effectively construing

McCarron’s answers to SWRCC’s ambiguous requests for admissions as binding

declarations that SWRCC owed no money to the SWTF when he paid SWTF

$5,364,970.10 from SWRCC’s coffers.

        Everyone in this controversy knew from the outset that McCarron paid

SWTF’s bill for over market rent charges (with compound interest) because he

concluded that the bill was justified. The purpose of SWTF’s bill to SWRCC was

clear: to recoup for the overpayment of rent. To quote the district court in its

March 4, 2015 Order, “In its Complaint, SWRCC alleges multiple times that

McCarron overcharged the Training Fund for rental of leased properties. The

amount of damages sought [by SWRCC] is ‘the difference between proper market

rents and what McCarron actually charged.’ These allegations do not form the

basis for actual damages to SWRCC because SWRCC cannot be entitled to the

amount it wrongfully overcharged the Training Fund.” S.E.R. Vol. 1, 9.


                                           3
          Nevertheless, the district court at the urging of the plaintiffs seized upon

McCarron’s answers conclusively to mean something that he vigorously

disclaimed: that he gratuitously delivered SWRCC’s money to the SWTF to cover

a claimed “debt” that SWRCC did not owe.

          In his opposition to the motion for summary judgment, McCarron attempted

to clarify his responses. His papers said, “The SWRCC relies on purported

admission to generate its new damage theory. This admission was taken out of

context and mischaracterized. Mike’s theory has always been that the rents were

over market and had to pay back. This admission is the subject of a motion to

withdraw or amend which is/was set for hearing on 02/10/15.” C.R. 166 at 17.1

          McCarron supported his opposition with his own declaration to the same

effect:

                19. I was sued for various LMRDA violations, such as
                my reimbursement of improperly retained funds. The
                SWRCC inadvertently overcharged the Southwest
                Carpenters’ Training Fund (“SWTF” or the “fund”) on
                leases to various buildings it rented from the SWRCC.

                20. I have no real estate or lease experience and I did not
                set the rates which are the subject of this case. The rents
                were set by Randy Sowell, UBC’s Director of Real
                Estate, on behalf of the SWRCC. The rents were not set
                by me, as I don’t know how to set lease rates. I am not a
                lawyer and do not have any real estate or lease
                experience.

1
    McCarron lost his motion. His failure to appeal the results do not preclude
him from challenging the meaning of his responses.

                                              4
            21. Four different appraisals confirmed that the leases
            were improper, including Strategic Partner Advisors,
            who sent me a letter dated May 31, 2013 confirming that
            the subject leases were charging above-market rates. The
            rates came to be above-market at the downturn in the
            economy.

            22. I paid the SWTF back. The money belonged to the
            SWTF. I sought to reverse any unjust enrichment to the
            SWRCC by properly reimbursing the SWTF. I risked
            breach of my fiduciary duty to the SWRCC if I was to
            subject the SWRCC to an avoidable law suit by the
            SWTF. I balanced the books of the SWRCC and the
            SWTF as I am required to do under the SWRCC bylaws,
            Section 8.

            .   .   .

            24. In any event, there was no loss or damage to the
            SWRCC - it wrongfully obtained $5.3 million from the
            SWTF and the SWTF was properly paid back.

S.E.R. Vol. 2, 72-73

      Alan Goldberg, McCarron’s attorney filed his own declaration making the

same point in support of McCarron’s opposition to the motion:

            2. The admission referred to by the SWRCC in page 10
            of its Motion, along with all the admissions attributed to
            Mike in the WRCC’s motion, numbers 51-68, do not
            accurately reflect Mike’s theory of this case. His theory
            is and was, and the theory which I have been developing
            throughout this litigation is, that due to the recession the
            leases at issue became leases with rates which were
            above market value. In assisting Mike with these
            responses I did not notice that his denial could be used
            against him as an admission that the leases did not charge
            over market rents. As soon as I became aware of the

                                         5
             SWRCC’s plan to use those Responses to Requests for
             Admissions, on 12/31/14, I immediately took action to
             right this error. This error is the subject of a motion to
             withdraw or amend which is set for hearing on February
             10, 2015. Mike’s theory is and was that the rents were
             over market and he had to pay back. SUF 52, 53.

C.R. 168.

      As to the plaintiff’s requests for admissions, we conclude that they are

manifestly ambiguous, in particular the use of the word “require.” Plaintiff’s

requested that McCarron admit “that the lease[s] . . . require the Training Fund to

pay above market rents to the SWRCC.” S.E.R. vol. 2 at 148-55. The leases

themselves do not so require. The terms of the leases may have resulted in above

market rates due to the subsequent downturn in the market after they were

negotiated, however the leases themselves contained no requirement of “above

market rents” language or expectations.

      SWTF and SWRCC are not normal arm’s-length parties to economic

transactions. Because SWTF falls within the ambit of ERISA, it is subject by

statute to the watchful eye and umbrella of the United States Department of Labor

(“DOL”). 29 U.S.C. §§ 1132(a), 1134(a), 1136(b). After the district court’s order,

the DOL issued letters to SWTF regarding its investigation of the disputed leases

in this case. McCarron asks us to take judicial notice of these documents. We

grant his request.

      The DOL’s letter of March 12, 2015, reads in pertinent part as follows:


                                          6
Dear Mr. DeCarlo:

The Department of Labor (the Department) has
responsibility for administration and enforcement of Title
I of the Employee Retirement Income Security Act of
1974 (ERISA). Title I of ERISA establishes standards
governing the operation of employee benefit plans such
as the Southwest Carpenters Training Fund (Training
Fund).

.   .   .

This office has concluded its investigation of the
Training Fund and of the activities of the fiduciaries.
Based on the facts gathered in this investigation, and
subject to the possibility that additional information may
lead us to revise our views, it appears that, as fiduciaries,
the Board, the Trustees individually, and Ripley, may
have violated several provisions of ERISA. The purpose
of this letter is to advise you of our findings and to give
you an opportunity to comment before the Department
determines what, if any, action to take.

.   .   .

From 2008 through 2013, it was revealed that the
Training Fund had paid rent to the SWRCC that was
grossly in excess of comparable market rental values
relating to the lease agreements entered into prior to May
2009. Specifically, based on an assessment of
comparable fair market rental values, it was concluded
that the Training Fund had paid rent to the SWRCC that
was $5,843,434.25 in excess of fair market rental values
from 2008 through June of 2013.

.   .   .

Because the terms of the lease agreements and the
amounts paid by the Training Fund were in excess of
comparable market rates, this office has determined that

                              7
            the lease agreements did not constitute a reasonable
            arrangement, and the amount paid by the Training Fund
            to the SWRCC was more than reasonable compensation.
            Additionally, this office has determined that the amount
            paid by the Training Fund to the SWRCC was in excess
            of adequate consideration. Consequently, the conditions
            of ERISA Sections 408(b)(2) and (17) were not met.

            .   .   .

                         Correction

            On May 31, 2013 and June 21, 2013, McCarron, on
            behalf of the SWRCC reimbursed the Training Fund
            $4,736,970.52 and $627,999.58, respectively,
            representing excessive rent for periods from 2008
            through June 2013, plus lost opportunity cost.

      On August 4, 2015, the DOL sent another letter to the SWTF:

            Dear Mr. DeCarlo:

            I have received your letter, dated March 16, 2015,
            concerning the Southwest Carpenters Training Fund
            (Training Fund), which was in response to my letter,
            dated March 12, 2015.

            .   .   .

            It is my understanding that you have taken corrective
            action with respect to the specific violations detailed in
            my letter of March 12, 2015. Specifically, the Southwest
            Regional Council of Carpenters (Union) reimbursed the
            Training Fund a total of $6,203,145.18 in connection
            with the above-market rent paid to the Union for the
            lease of various training facilities.

      The district court’s award of damages to SWRCC constituted an

inappropriate windfall and a miscarriage of justice. Using the amount McCarron

                                        8
returned to SWRCC as a measure of damages was not proper. However, we are

unable to determine on the record whether SWRCC might have suffered other

compensable damages caused by McCarron’s related inappropriate activities.

                                         III

      The district court properly granted summary judgment on McCarron’s

counterclaims for retaliation and violation of his free speech rights under LMRDA

§ 101(a)(2) because he made no showing that SWRCC took action against him

after he expressed his opposition to union policies. See United Steel Workers

Local 12-369 v. United Steel Workers Int’l, 728 F.3d 1107, 1118 (9th Cir. 2013)

(setting forth elements of claim).

                                     CONCLUSION

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings in accord with this disposition.

      Each party shall bear its own costs on appeal.




                                         9
