Fort v. American Federation of State, County and Municipal Employees, AFL

09-2275-cv
Fort v. American Federation of State, County and Municipal Employees, AFL-CIO
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29 th day of April, two thousand ten.
PRESENT:
REENA RAGGI,
PETER W. HALL,
Circuit Judges.*
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CLAUDE FORT and VINCENT SAWINSKI,
Plaintiffs-Appellants,
v. No. 09-2275-cv
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, AFL-CIO,
Defendant-Appellee.
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APPEARING FOR APPELLANTS: ARTHUR Z. SCHWARTZ, Schwartz, Lichten &
Bright, P.C., New York, New York.
APPEARING FOR APPELLEE: BARRY I. LEVY (Harris J. Zakarin, on the
brief), Rivkin Radler LLP, Uniondale, New York.
*
Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in the
consideration of this appeal. The remaining two members of the panel, who are in
agreement, have determined this matter in accordance with Second Circuit Internal Operating
Procedure E(b).
Appeal from the United States District Court for the Southern District of New York
(Sidney H. Stein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on May 15, 2009, is AFFIRMED.
Plaintiffs Claude Fort and Vincent Sawinski, members and officers of the American
Federation of State, County and Municipal Employees, AFL-CIO (“AFSCME”), appeal the
dismissal of their Section 301 complaint, see 29 U.S.C. § 185, against AFSCME for failing
to afford them a timely trial on charges of misconduct, as required by AFSCME’s
constitution. More specifically, plaintiffs contend that the district court erred by (1) denying
their motion for a preliminary injunction barring AFSCME from proceeding on the
misconduct charges, (2) declining to exercise jurisdiction over their request for declaratory
relief, and (3) requiring them to exhaust internal union remedies.
We review a dismissal under Fed. R. Civ. P. 12(b)(6) de novo, accepting as true the
allegations in the complaint and drawing all reasonable inferences in plaintiffs’ favor. See
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). We likewise review de novo an
award of summary judgment, “resolving all ambiguities and drawing all permissible factual
inferences in favor of the party against whom summary judgment is sought.” Burg v.
Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). On appeal from
a dismissal under Fed. R. Civ. P. 12(b)(1), we review factual findings for clear error and
legal conclusions de novo. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
2
We review for abuse of discretion a decision to deny a preliminary injunction, see SEC v.
Dorozhko, 574 F.3d 42, 45 (2d Cir. 2009); to decline jurisdiction over a request for a
declaratory judgment, see Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d
384, 388 (2d Cir. 2005); or to require exhaustion of union remedies, see Maddalone v. Local
17, United Bhd. of Carpenters & Joiners of Am., 152 F.3d 178, 183 (2d Cir. 1998). In
applying these standards, we assume familiarity with the facts and procedural record, which
we reference only as necessary to explain our decision to affirm.
1. Preliminary Injunction
A party seeking a preliminary injunction must demonstrate “(1) a likelihood of
irreparable harm in the absence of the injunction; and (2) either a likelihood of success on
the merits or sufficiently serious questions going to the merits to make them a fair ground for
litigation, with a balance of hardships tipping decidedly in the movant’s favor.” Doninger
v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008). To show irreparable harm – “the single most
important prerequisite for the issuance of a preliminary injunction” – plaintiffs must establish
a likely injury “that is neither remote nor speculative, but actual and imminent, and one that
cannot be remedied if a court waits until the end of trial to resolve the harm.” Faiveley
Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation
marks omitted).
We detect no abuse of discretion in the district court’s determination that plaintiffs
failed to make the required showing of irreparable harm. Plaintiffs asked the district court
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to enjoin an ongoing disciplinary proceeding whose outcome remained unknown.1 Even had
the charges against them been sustained, appeals were available to the AFSCME
International Convention and thereafter in federal court. Thus, the claimed injury of possible
discipline was both speculative and redressable. See id. at 118; Cozza v. Lacey, 740 F. Supp.
285, 287 (S.D.N.Y. 1990) (declining to enjoin union disciplinary proceeding where “harm
[wa]s merely speculative since the charges ha[d] not been substantiated”); United States v.
Int’l Bhd. of Teamsters, 725 F. Supp. 162, 169 (S.D.N.Y. 1989) (same where plaintiffs
“ha[d] recourse to appeal”); Rivera v. Feinstein, 636 F. Supp. 159, 164 (S.D.N.Y. 1986)
(same and collecting cases).
Nor are we persuaded by plaintiffs’ contention that trial itself constituted irreparable
harm. Plaintiffs’ reliance on Sheridan v. Liquor Salesmen’s Union, 303 F. Supp. 999(S.D.N.Y. 1969), is misplaced. In Sheridan, the union had “no power to discipline plaintiffs
on [the challenged] charges.” Id. at 1004. Here, there is no question as to the union’s
authority over the charges, only its timely exercise of that authority. Under the AFSCME
constitution, a trial body’s failure to proceed in a timely fashion does not bar further
proceedings. Rather, “either party shall have the right to appeal to the next higher trial
body.”
Plaintiffs’ attempt to draw an analogy from the Speedy Trial Act, 18 U.S.C. §§ 3161-
1
Indeed, according to AFSCME, the appeal process is still ongoing, plaintiffs having
appealed unsuccessfully to its full Judicial Panel and most lately to its International
Convention, currently scheduled for June 2010.
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3174, is also unconvincing. The Act itself is inapplicable in civil proceedings, even where
the risk of prejudice is substantially greater than it is here. See, e.g., United States v.
Guevara-Umana, 538 F.3d 139, 141 (2d Cir. 2008) (“[C]ivil immigration detention does not
normally trigger the Act’s thirty-day arrest-to-indictment time limit.”). Moreover, even
violations of the Act do not foreclose trial, as district courts may dismiss indictments without
prejudice. See 18 U.S.C. § 3162(a); United States v. Kiszewski, 877 F.2d 210, 213 (2d Cir.
1989).
2. Permanent Injunction
Plaintiffs’ patent inability to demonstrate imminent and irreparable harm further
supports the dismissal of their complaint seeking permanent injunctive relief. See Roach v.
Morse, 440 F.3d 53, 56 (2d Cir. 2006) (identifying irreparable harm as essential to claim for
permanent injunction). No different conclusion is warranted by plaintiffs’ effort to recast
their claim as one for specific performance of contractual obligations embodied in the
AFSCME constitution. The amended complaint may omit the original pleading’s references
to preliminary and permanent injunctions, but it effectively seeks identical relief, including
“an order directing AFSCME to dismiss the charges.” Am. Compl. at 11. Such an order is
indistinguishable from an injunction. See Petrello v. White, 533 F.3d 110, 114 (2d Cir. 2008)
(observing that specific performance order may be “injunctive in character”); cf. HBE
Leasing Corp. v. Frank, 48 F.3d 623, 632 n.6 (2d Cir. 1995) (noting that order prohibiting
party “from pursuing litigation in another court is unquestionably an injunction for purposes
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of interlocutory appeal” (quoting 16 Charles A. Wright et al., Federal Practice and Procedure
§ 3923 (1977))). In any event, as irreparable harm is “a common element” required for either
specific performance or injunctive relief, Nemer Jeep-Eagle, Inc. v. Jeep-Eagle Sales Corp.,
992 F.2d 430, 433 (2d Cir. 1993), plaintiffs’ inability plausibly to demonstrate such imminent
injury supported dismissal.
3. Declaratory Relief
The Declaratory Judgment Act, see 28 U.S.C. § 2201(a), vests district courts with
“broad discretion” to decline jurisdiction over requests for declaratory relief, Dow Jones &
Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003) (identifying factors relevant to
exercise of such discretion, including, inter alia, “whether the judgment will serve a useful
purpose in clarifying or settling the legal issues involved”; “whether a judgment would
finalize the controversy and offer relief from uncertainty”; and “whether the proposed
remedy is being used merely for ‘procedural fencing,’ or a ‘race to res judicata’” (internal
quotation marks omitted)). We identify no abuse of discretion in the district court’s decision
declining jurisdiction in this case.
In the absence of any constitutional provision precluding AFSCME from simply re-
charging plaintiffs, the district court reasonably concluded that a judgment declaring the
pending charges unlawful would not significantly clarify the legal issues or finalize the
controversy. It found further that by suing in federal court even as they pursued their internal
union remedies, plaintiffs appeared to have engaged in “procedural fencing” militating
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against the grant of a declaratory judgment. This assessment of the appropriate factors
cannot be said to rest on a clearly erroneous factual finding or an incorrect legal conclusion,
and we will not disturb it. See id. at 360.
4. Exhaustion
Because we affirm the dismissal of plaintiffs’ complaint, we need not reach their
argument that the district court abused its discretion by requiring them to exhaust their
internal union remedies before pursuing relief in federal court.2 Nevertheless, we doubt that
any abuse could be identified, in light of plaintiffs’ success in defending against prior charges
of misconduct, the absence of any suggestion that the AFSCME appeals process was
incapable of exonerating them, and the availability of two levels of internal appeal within a
period of several months. See Maddalone v. Local 17, United Bhd. of Carpenters & Joiners
of Am., 152 F.3d at 186 (noting that, in determining whether to require exhaustion, district
court should consider “[f]irst, whether union officials are so hostile to the employee that he
could not hope to obtain a fair hearing on his claim; second, whether the internal union
appeals procedures would be inadequate either to reactivate the employee’s grievance or to
award him the full relief he seeks . . .; and third, whether exhaustion of internal procedures
would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the
merits of his claim” (internal quotation marks omitted)). Notwithstanding plaintiffs’ contrary
2
Without objection from the parties, the district court characterized this ruling as a
decision on a motion for summary judgment.
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suggestion, this case bears little resemblance to Detroy v. American Guild of Variety Artists,
286 F.2d 75 (2d Cir. 1961), which held that exhaustion should not be required “where the
internal union remedy [wa]s uncertain and ha[d] not been specifically brought to the attention
of the disciplined party, the violation of federal law clear and undisputed, and the injury to
the union member immediate and difficult to compensate by means of a subsequent money
award.” Id. at 81 (internal quotation marks omitted). Here, it is undisputed that plaintiffs
were made aware of available remedies. Moreover, AFSCME by no means concedes that
the challenged disciplinary proceeding violates federal law.
We have considered plaintiffs’ remaining contentions, and we conclude that they are
without merit. The judgment of the district court is therefore AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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