Marciszewski v. Reich

85 F.3d 616

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Anthony P. MARCISZEWSKI, Plaintiff in Case a and Plaintiff
in Case B; Vanessa W. Kelly, Plaintiff in Case A
and Plaintiff in Case B,
Plaintiffs-Appellants,
v.
Robert B. REICH, Secretary of Labor, Defendant in Case A and
Defendant in Case B; The Baltimore Municipal Employees
Local 44, AFSCME, AFL-CIO, Defendant in Case A; American
Federation of State, County and Municipal Employees,
AFL-CIO, Defendant in Case A, Defendants-Appellees,
and
Maryland Public Employees Council 67, American Federation of
State, County & Municipal AFL-CIO, Defendant in
Case A; Local 3836, AFSCME, AFL-CIO,
Defendant in Case A, Defendants.

No. 95-2664.

United States Court of Appeals, Fourth Circuit.

Argued April 3, 1996.
Decided May 7, 1996

Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, District Judge. (CA-93-1216-WMN)

ARGUED: David William Erb, WEINBERG & GREEN, L.L.C., Baltimore, Maryland; David Arnold Sherbow, Baltimore, Maryland, for Appellants. Lewis James Karesh, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Andrew Dean Roth, BREDHOFF & KAISER, Washington, D.C., for Appellees. ON BRIEF: Theodore Sherbow, WEINBERG & GREEN, L.L.C., Baltimore, Maryland, for Appellants. Thomas S. Williamson, Jr., Solicitor of Labor, John F. Depenbrock, Associate Solicitor, Dennis Paquette, Counsel for Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Appellee Reich.

D.Md.

AFFIRMED.

Before ERVIN, Circuit Judge, LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.

PER CURIAM:

1

Anthony P. Marciszewski and Vanessa W. Kelly (Appellants) filed an action seeking judicial review of a decision by the Secretary of Labor (the Secretary) not to bring a civil action under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (the Act), 29 U.S.C.A. §§ 481-83 (West 1985), against Local 44, American Federation of State, County, and Municipal Employees (the Union). Appellants, members of the Union, alleged that violations of the Act occurred during an election of officers and that the Secretary was required to bring suit against the Union to set aside the election. The district court dismissed the action, holding that Appellants had failed to establish that the Secretary's decision not to bring an action against the Union was irrational. Marciszewski and Kelly now appeal, maintaining that the decision not to bring a civil action against the Union was based on an erroneous interpretation of the Act. In addition, they contend that the facts made this a "rare case" that required the district court to go beyond determining whether the Secretary's decision not to sue--as expressed in the Statement of Reasons--was arbitrary and capricious, and instead, to apply its own judgment to the facts. See Dunlop v. Bachowski, 421 U.S. 560, 572-73 (1975).

2

We have carefully considered the briefs and arguments of the parties and, finding no reversible error, affirm the judgment of the district court. Marciszewski v. Reich, No. 93-1216 (D.Md. July 7, 1995).

AFFIRMED