United States v. Nee , 573 F. App'x 37 ( 2014 )

12-4883
United States v. Nee
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
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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
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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”)
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(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)
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(“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
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“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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