Noble v. Sombrotto , 233 F. Supp. 3d 123 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DAVID W. NOBLE, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 94-302 (EGS)
)
VINCENT R. SOMBROTTO, et al., )
)
Defendants. )
________________________________)
SUPPLEMENTAL FINDINGS AND CONCLUSIONS
The history of this lawsuit is set out comprehensively in
this Court’s post-remand Supplemental Findings and Conclusions
of March 27, 2015 and, accordingly, will not be rehashed again
here. See Noble v. Sombrotto (“Noble IV”), 84 F. Supp. 3d 11(D.D.C. 2015). Pursuant to those Supplemental Findings and
Conclusions, the Court issued an Order entering judgment in
favor of the defendants——the National Association of Letter
Carriers (“NALC”), various individual NALC officers, an officer
of the union’s Mutual Benefit Association, and an officer of the
union’s Health Benefit Plan——on David Noble’s claims under
Section 501 of the Labor-Management Reporting and Disclosure Act
(“LMRDA”), 29 U.S.C. § 401, et seq., regarding the payment of
in-town allowances. Order, ECF No. 305. The Court, however, was
unable to resolve Mr. Noble’s other surviving claim that “the
defendants violated their obligations under Section 201 of the
1
LMRDA by refusing his requests to inspect certain documents in
order to verify the contents of financial reports that the NALC
filed with the Department of Labor.” Noble IV, 84 F. Supp. 3d at
13.
The D.C. Circuit had vacated the Court’s earlier finding
that Mr. Noble’s Section 201 claim was moot and had directed the
Court to address the merits of that claim, “‘as well as the
factual determination of what (if any) records Noble has
requested but not yet received.’” Id. at 32 (quoting Noble v.
Sombrotto (“Noble III”), 525 F.3d 1230, 1242 (D.C. Cir. 2008)).
But, on remand, the Court concluded that the existing record and
the parties’ post-remand pleadings did not permit the Court to
make the requisite factual determination. Id. Mr. Noble’s post-
remand proposed findings made “a conclusory assertion that he
has not been provided sufficient documents,” id. (citing Pl.’s
Suppl. Proposals (“Pl.’s Proposals”), ECF No. 270 at 2, 4), and
the defendants’ post-remand proposals “did not explain precisely
what he has been given access to.” Id. (citing Defs.’ Suppl.
Proposals (“Defs.’ Proposals”), ECF No. 272 at 8-9). Without a
clearer explanation of which requests are at issue, the Court
found that it was unable to rule in favor of either party’s
Section 201 legal argument. Id.Accordingly, the Court directed the parties to file
supplemental briefs. Id. at 32-33. Specifically, Mr. Noble was
2
directed to “file a pleading setting forth in precise detail,
with corresponding evidentiary citations, which requests for the
inspection of documents he claims were refused by the NALC, and
why his Section 201 claim should succeed as to each individual
request,” id. at 33; the defendants were directed to “file a
response to these arguments, which shall include, among whatever
other arguments the defendants deem appropriate, an explanation,
with corresponding evidentiary citations, whether any requests
still pursued by Mr. Noble have been fully complied with,” id.;
and Mr. Noble was permitted a reply brief. Id.
Upon consideration of those supplemental filings, the
existing record, and the applicable law, the Court concludes
that Mr. Noble is not entitled to examine any NALC documents and
records. Accordingly, the Court enters judgment in favor of the
defendants on Mr. Noble’s Section 201 claim.
I. Findings of Fact
On August 16, 1993, Mr. Noble sent a letter to then-
President of the NALC Vincent Sombrotto informing President
Sombrotto that he had filed charges with the NALC Executive
Council. August 16, 1993 Letter from David Noble to Vincent
Sombrotto, Pl.’s Ex. 31, ECF No. 296-12 at 1. Mr. Noble asserted
that his charges were based on “significant and substantial
discrepancies between the constitutionally authorized amounts of
compensation and expenses payable to [President Sombrotto] and
3
the members of the NALC Executive Council and the amounts
disclosed under oath to the Department of Labor on the NALC’s
LM-2 Reports for the years 1984 through the present.” Id. Mr.
Noble further demanded “the right to inspect, review and verify
any and all documents, receipts, records, bills, checks,
ledgers, account books, petty cash receipts, charge slips,
minutes, and resolutions” that related to his charges. Id. at 3.
President Sombrotto responded in a letter dated August 31,
1993. See August 31, 1993 Letter from Vincent Sombrotto to David
Noble, Ex. Q to NALC’s Mot. for Summ. J., ECF No. 126. Although
President Sombrotto asserted that Mr. Noble had not established
the “just cause” required for review of the NALC’s records under
the applicable federal statute, id. at 1 (citing 29 U.S.C. §
431(c)), he informed Mr. Noble that the NALC records relevant to
his charges and “necessary to verify the NALC’s LM-2 reports for
1988-1993” would be made available to him for his examination at
the NALC’s headquarters on September 13, 1993 or a date
thereafter, and he directed Mr. Noble to contact Jerry Gutshall
to make an appointment for the requested document and record
examination. Id. at 1-2.
Prior to undertaking any examination of records at the
NALC’s headquarters, Mr. Noble wrote to Jerry Gutshall on
September 14, 1993. Noble IV, 84 F. Supp. 3d at 21 (citing
September 14, 1993 Letter from David Noble to Jerry Gutshall,
4
Pl.’s Ex. 38, ECF No. 296-13 at 1). In that September 14, 1993
letter, Mr. Noble indicated that he wanted to review documents
and records that fell into the following eighteen categories:
1. The payroll records of President Sombrotto
and Secretary-Treasurer Richard P. O'Connell
from 1980 to the present date.
2. All payroll records of the NALC Trustees from
1980 to the present.
3. In order to understand the assets reported in
NALC's LM-2 reports, all records and
documents relating to the bank account at the
Minneapolis, Minnesota bank account at the
Union Bank & Trust Company, account number
110390400, from 1989 to the present.
4. All receipts and other records and documents
referred to in Item "3" of the NALC Executive
Council's December 8, 1980 resolution
concerning the payment of "in-town"
entertainment expenses.
5. Expense vouchers for all NALC Executive
Council members for August and September,
1988, 1990, and 1992. . . .
6. All NALC financial ledgers and accompanying
notes, memoranda and reports prepared by the
NALC, its employees, agents and service
providers from 1981 to the present.
7. All receipts, bills, checks, check stubs, and
charge card slips relating to expenditures
made by all current and former NALC Executive
Council members from 1981 to the present;
8. All bank records and documents pertaining the
[sic] each and every account maintained by
the NALC;
9. All receipts, bills, checks, check stubs,
charge card receipts, and any other document
in the actual or constructive possession of
5
the current NALC Executive Council members
substantiating their receipt from the NALC of
per diem expenses, “in-town expenses,”
housing expenses, and all other
reimbursements since their election to
national office;
10. All minutes, Executive Council resolutions
and presidential rulings, of the NALC’s
Executive Council since January 1, 1980, in
particular, all such documents that allegedly
authorize the payment of per diem expenses,
“in-town” expenses, FICA, medicare [sic], and
“lost-time” and all other payments made to
NALC Executive Council members during
conventions;
11. All records and documents that have been filed
with all and any agencies of the United States
Government, including all LM Reports and
accompanying correspondence by the NALC, its
agents, and service providers;
12. All drafts of reports, records, and documents
pertaining to the records and documents
identified in paragraph # 5, above;
13. All correspondence received by the NALC, its
agents and its service providers from any and
all agencies of the United States Government
concerning the information identified in the
records and documents filed with all and any
agencies of the United States Government;
14. All records, reports, notes, minutes, and
other documents relating to audits and any
investigation of alleged or suspected
financial improprieties by any current or
former NALC Executive Council member since
January 1, 1980.
15. All records and documents relating to the
financial and accounting standards utilized
by the NALC, including accounting manuals and
instructions;
6
16. All records and documents relating to all and
any payments made to any person, company,
association, or partnership concerning the
[sic] for housing expenses incurred by all
and any members of the NALC Executive Council
since January 1, 1980;
17. All records and documents relating to all and
any payments and/or reimbursements made to
all and any members of the NALC Executive
Council since 1980. [sic]; and
18. All records and documents prepared by the
NALC’s legal staff, counsel, accounting staff
and/or auditors discussing the propriety of
NALC’s payment and/or reimbursement of per
diem expenses, “in-town” expenses,
“convention expenses” (including “lost-time
expenses”), housing expenses, FICA, and
medicare [sic] for NALC Executive Council
members since January 1, 1980.
September 14, 1993 Letter from David Noble to Jerry Gutshall,
Pl.’s Ex. 38, ECF No. 296-13 at 1-3.
On October 7, 1993, Mr. Noble reviewed NALC records in
person at NALC headquarters. Noble IV, 84 F. Supp. 3d at 21
(citing April 2, 2004 Noble Decl., ECF No. 215 ¶ 58). Although
it is not clear what documents and records Mr. Noble examined
that day aside from “some payroll records” and certain
“applications for in-town expenses,” April 2, 2004 Noble Decl.,
ECF No. 215 ¶ 58, Mr. Noble eventually received at least some
documents and records pertaining to categories 1, 2, 4, 6, 9,
10, 11, 16, and 17 as identified in his September 14, 1993
letter to Mr. Gutshall, but did not receive documents and
records pertaining to categories 3, 5, 7, 8, 12, 13, 14, 15, and
7
18. See Appellant’s Suppl. Filing as Allowed by the Panel at
Oral Arg., ECF No. 307-2 at 2; see also June 15, 2015 Noble
Decl., ECF No. 313-1 ¶ 31. The defendants do no argue that they
provided Mr. Noble with access to the documents and records that
pertain to categories 3, 5, 7, 8, 12, 13, 14, 15, and 18,
although they emphasize that during discovery in this case they
objected to Mr. Noble’s request for the documents pertaining to
category 3 concerning records related to a purported NALC bank
account in Minneapolis, Minnesota. Resp. of Defs.’ to Pl.’s
Submission on Section 201(c) Issue (“Defs.’ Resp.”), ECF No. 314
at 3 (citing Resp. of Def. NALC to Pl.’s Interrogs. and First
Req. for Produc. of Docs., Ex. to NALC’s Mot. for Summ. J., ECF
No. 126). Mr. Noble had “‘attempted to use discovery to develop
information about the Minneapolis regional office’s unauthorized
bank account,’” Noble IV, 84 F. Supp. 3d at 21 (quoting February
26, 2002 Noble Decl., ECF No. 139 ¶ 52), because in 1993 Mr. Jim
Draper, who worked with Mr. Noble in the NALC’s Minneapolis
regional office in 1979 and 1980, told Mr. Noble “that he was
concerned about what money was being deposited in the account
and what was being done with money that was withdrawn from the
account.” June 15, 2015 Noble Decl., ECF No. 313-1 ¶¶ 15, 17.
Mr. Draper later told Mr. Noble that in 1986 the Minneapolis
office “made photocopies of union materials at the national
union’s expense, sold them to branches within the region, and
8
deposited the money in the Minneapolis bank account” and told
Mr. Noble that funds from that account “had been used to pay at
least some of the re-election costs of the Sombrotto slate.” Id.
¶ 18. Mr. Noble maintains that the defendants have refused to
let him review any records related to the purported Minneapolis
bank account, id. ¶ 20, and that he wants to inspect those
records “to determine whether union funds were used for the non-
union purpose of electing candidates for union office” and “to
determine whether the funds the bank account contained were
reported in the union’s LM-2 reports.” Id. ¶ 19. But he is of
the view that he will be unable to determine “whether the assets
of the Minneapolis bank account were reported on the LM-2
reports” unless he can examine “the entirety of NALC’s records.”
Id. ¶ 30. The defendants indicate that “NALC has never
represented that it maintains a bank account in Minneapolis or
that it has records of any such account.” Defs.’ Resp., ECF No.
314 at 2 n.1.
Additionally, in his September 14, 1993 letter to Mr.
Gutshall, Mr. Noble stated a request to review all NALC
documents and records related to “payments made . . . for
housing expenses incurred by all and any members of the NALC
Executive Council since January 1, 1980.” September 14, 1993
Letter from David Noble to Jerry Gutshall, Pl.’s Ex. 38, ECF No.
296-13 at 2. Mr. Noble seeks these documents and records to try
9
to substantiate a finding of the Investigating Committee that
reported to the October 13, 1993 Special Meeting of the NALC
Convention that was called to resolve Mr. Noble’s internal union
charges. See June 15, 2015 Noble Decl., ECF No. 313-1 ¶¶ 27-28.
That finding was that NALC rent payments made for President
Sombrotto’s and Secretary-Treasurer O’Connell’s apartments were
deducted from President Sombrotto’s and Secretary-Treasurer
O’Connell’s paychecks. Id. Mr. Noble finds it suspicious that
the Investigating Committee never produced “copies of [President
Sombrotto’s and Secretary-Treasurer O’Connell’s] checks showing
the supposed deductions” for housing expenses paid by NALC on
their behalf. See id. ¶ 27. At least some documents and records
responsive to this request have been provided to Mr. Noble, see
Appellant’s Suppl. Filing as Allowed by the Panel at Oral Arg.,
ECF No. 307-2 at 2, and Mr. Noble is of the view that only
review of “the entirety of NALC’s records” will permit him to
determine whether the NALC payments covering President
Sombrotto’s and Secretary-Treasurer O’Connell’s housing expenses
were deducted from their paychecks. June 15, 2015 Noble Decl.,
ECF No. 313-1 ¶ 30.
By letter dated November 7, 1993, Mr. Noble additionally
requested from President Sombrotto a copy of a videotape and a
transcript of the October 13, 1993 Special Meeting of the NALC
Convention, and he requested payroll registers for NALC officers
10
for the years 1988 through 1993. Noble IV, 84 F. Supp. 3d at 21
(citing November 7, 1993 Letter from David Noble to Vincent
Sombrotto, Ex. V to NALC’s Mot. for Summ. J., ECF No. 126).
Although President Sombrotto rejected those requests via letter
dated November 30, 1993, id. (citing November 30, 1993 Letter
from Vincent Sombrotto to David Noble, Ex. W to NALC’s Mot. for
Summ. J., ECF No. 126), Mr. Noble later received the requested
videotape and transcript of the Special Meeting during discovery
in this case. Id. at 32 n.12 (citing April 2, 2004 Noble Decl.,
ECF No. 215 ¶¶ 82, 84).
On September 30, 2002, this Court denied the parties’
cross-motions for summary judgment and directed the parties “‘to
file a single, concise, specific, and final statement of each
party’s outstanding requests for documents or other tangible
evidence, as well as efforts made to date to obtain them, by no
later than October 31, 2002.’” Id. at 21-22 (quoting Order, ECF
No. 151). In his statement filed in response to that Order, Mr.
Noble identified four remaining discovery requests: “(1)
‘transcripts and audio tapes of witnesses who testified before
an internal NALC committee’; (2) ‘video tapes of the October
1993 special convention’; (3) ‘video tapes of the third session
of the 1986 convention’; and (4) ‘in-town expense applications
for the individually named defendants.’” Id. at 22 (quoting
Pl.’s Discovery Statement, ECF No. 152 at 2). The Court
11
subsequently ordered the defendants to make the requested
materials available to Mr. Noble for a period of five days;
directed Mr. Noble to “‘provide defendants with a specific list
of documents, tapes and videotapes he wishes to obtain copies of
. . . , along with reasonable payment as agreed to by the
parties for those copies’”; and directed the defendants to
“‘provide plaintiff with all copies of documents, tapes and
videotapes requested and paid for by plaintiff.’” Id. (citing
Order, ECF No. 155). The NALC has asserted that it has fully
complied with this Order, id. (citing Defs.’ Proposals, ECF No.
272 at 9), and Mr. Noble has never contested that assertion. Id.
(citing Pl.’s Objs. to Defs.’ Suppl. Proposals (“Pl.’s Objs.”),
ECF No. 284); see also Defs.’ Resp., ECF No. 314 at 12.
Although Mr. Noble asserts that only “two LMRDA § 201(c)
requests remain”——“[1] [his] request to review the records of
the Minneapolis bank account, and [2] [his] request to verify
NALC’s LM-2s in their entirety,” Pl.’s Reply to Resp. of Defs.’
to Pl.’s Submission on Section 201(c) Issue (“Pl.’s Reply”), ECF
No. 315 at 3; see also Pl.’s Suppl. Mem. Concerning the Issue of
Verification of NALC’s Forms LM-2 (“Pl.’s Suppl. Mem.”), ECF No.
313 at 2——he also indicates that he still seeks to examine “NALC
financial records to try to determine whether the payments made
for Sombrotto’s and O’Connell’s apartments were truly paid for
by deductions from their checks.” See June 15, 2015 Noble Decl.,
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ECF No. 313-1 ¶ 28. Thus Mr. Noble articulates three requests to
review documents and records that the NALC has refused: (1) a
request to review documents and records from January 1, 1989
through September 14, 1993 pertaining to a NALC bank account
numbered 110390400 and located in Minneapolis, Minnesota, see
September 14, 1993 Letter from David Noble to Jerry Gutshall,
Pl.’s Ex. 38, ECF No. 296-13 at 1; (2) a request to review
documents and records from January 1, 1980 through September 14,
1993 pertaining to NALC payments for housing expenses for
President Sombrotto and Secretary-Treasurer O’Connell, see id.
at 2; and (3) a request to review all documents and records
responsive to the requests in categories 5, 7, 8, 12, 13, 14,
15, and 18 of his September 14, 1993 letter to Mr. Gutshall. See
June 15, 2015 Noble Decl., ECF No. 313-1 ¶ 31.
II. Conclusions of Law
Section 201 of the LMRDA “requires labor unions to ‘file
annually with the Secretary [of Labor] a financial report,’
known as an LM-2 Report.” Noble IV, 84 F. Supp. 3d at 31 (citing
29 U.S.C. § 431(b)). The LM-2 Report “must include specified
information related to the union’s finances, including assets,
receipts, salaries, and similar matters.” Id. (citing 29 U.S.C.
§ 431(b)). Section 201(c) imposes a judicially enforceable duty
on unions and their officers to permit union members “for just
cause to examine any books, records, and accounts necessary to
13
verify [an LM-2 report].” 29 U.S.C. § 431(c). Thus, “Section
201(c) creates a right of action for union members who (1) made
a request to inspect documents ‘to verify’ an LM-2 Report, (2)
that was supported by ‘just cause,’ and (3) was denied by the
union.” Noble IV, 84 F. Supp. 3d at 31 (citing id.).
Although the required just cause showing is minimal——“it is
enough if a reasonable union member would be put to further
inquiry,” Fruit and Vegetable Packers and Warehousemen Local 760
v. Morley, 378 F.2d 738, 744 (9th Cir. 1967)——a union member
“bears the burden of showing just cause for examining records.”
Brennan v. Int’l Bhd. of Teamsters, No. 95-1375, 1997 WL 446259,
at *2 (D.D.C. July 30, 1997) (citing Mallick v. Int’l Bhd. of
Elec. Workers, 749 F.2d 771, 784 (D.C. Cir. 1984)). Just cause
is shown in either of two ways: “(1) when ‘the union member had
some reasonable basis to question the accuracy of the LM-2 or
the documents on which it was based,’ or (2) when ‘information
in the LM-2 has inspired reasonable questions about the way
union funds were handled.’” Krokosky v. United Staff Union, 291
F. Supp. 2d 835, 840 (W.D. Wis. 2003) (quoting Kinslow v. Am.
Postal Workers Union, Chicago Local, 222 F.3d 269, 274 (7th Cir.
2000)). As to the verification requirement——which courts often
treat as part of the just cause requirement, see Mallick, 749
F.2d at 784 & n.30——the union member also bears the burden of
establishing “a direct connection between records sought to be
14
accessed and the union’s federal filings,” such that a union
member must “state what he wishes to verify in the LM Reports
and how the particular union records he is requesting are
expected to assist him in doing so.” Fernandez-Montes v. Allied
Pilots Ass’n, 987 F.2d 278, 285-86 (5th Cir. 1993).
After directing the parties to submit supplemental filings
with the Court in order to clarify “which requests are at issue”
pursuant to the Section 201(c) claim, see Noble IV, 84 F. Supp.
3d at 32, the Court has found that Mr. Noble articulates three
requests to review documents and records that the NALC has
refused: (1) a request to review documents and records from
January 1, 1989 through September 14, 1993 pertaining to a NALC
bank account numbered 110390400 and located in Minneapolis,
Minnesota; (2) a request to review documents and records from
January 1, 1980 through September 14, 1993 pertaining to NALC
payments for housing expenses for President Sombrotto and
Secretary-Treasurer O’Connell; and (3) a request to review all
documents and records responsive to the requests in categories
5, 7, 8, 12, 13, 14, 15, and 18 of his September 14, 1993 letter
to Mr. Gutshall. See supra Part I.
A. Mr. Noble Has Not Waived His Section 201(c) Claim
The defendants argue that Mr. Noble has “waived his
requests for the information that he now claims to seek” because
he did not include them in his list of outstanding discovery
15
requests that he filed with the Court in response to the Court’s
September 30, 2002 Order that directed each party “to file a
single, concise, specific, and final statement of [its]
outstanding requests for documents or other tangible evidence.”
Defs.’ Resp., ECF No. 314 at 7-8 (citing Order, ECF No. 151).
This waiver argument is unavailing.
First, as the Circuit Court acknowledged, discovery in this
case——and, particularly, the parties’ responses to the Court’s
September 30, 2002 Order for a “single, concise, specific, and
final statement” of outstanding discovery requests——was
primarily focused on Mr. Noble’s Section 501(a) claims, not his
Section 201(c) claim. See Noble III, 525 F.3d at 1241-42(explaining that the defendants have argued “that Noble
forfeited his claim to any further documents by failing to
request them properly in the course of discovery on his § 501(a)
claims”) (emphasis added). Because discovery was focused on
documents and records related to the Section 501(a) claims and
not the Section 201(c) claim, Mr. Noble cannot be said to have
waived his Section 201(c) requests by not doggedly pursuing in
discovery the documents and records that are the focus of those
requests.
To the extent that the defendants’ waiver argument is that
Mr. Noble, at certain junctures during discovery in this case,
sought the same records and documents pursuant to his Section
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501(a) claims that he seeks pursuant to his Section 201(c) claim
and by abandoning those discovery requests in the context of the
Section 501(a) claims he has waived his attempt to access the
documents and records via his Section 201(c) claim, that
argument also fails. The D.C. Circuit has not definitively
decided how Section 501(a) and Section 201(c) interact when it
comes to accessing union documents and records, and it certainly
has not held that not pursuing documents and records under
Section 501(a) forfeits an attempt to access those same
documents and records under Section 201(c). See Mallick, 749
F.2d at 785-86 (narrowly holding that, under the facts of the
case, Section 501(a) provides no greater right to documents and
records than Section 201(c)). Another Circuit has held that a
union’s LM-2 Report-related records can only be accessed
pursuant to Section 201(c), not pursuant to Section 501(a).
Gabauer v. Woodcock, 594 F.2d 662, 668 (8th Cir. 1979) (en banc)
(“We do not view s 501 as an independent discovery tool to
investigate official use of union funds. Section 201 provides
that tool.”). Thus Mr. Noble cannot be said to have waived his
attempt under Section 201(c) to examine certain of the NALC’s
LM-2 Report-related records by abandoning his attempt to access
those records through discovery on his Section 501(a) claims.
Second, to the extent that the defendants’ argument is that
Mr. Noble failed to use discovery to access the documents and
17
records he seeks pursuant to his Section 201(c) claim and
thereby waived his Section 201(c) claim, see Defs.’ Resp., ECF
No. 314 at 8, or that he did use discovery requests to try to
access certain documents and records that were solely the
subject of his Section 201(c) claim and then waived his Section
201(c) claim by eventually abandoning those discovery requests,
see id. at 7, those arguments also fail. Using discovery to
access the documents and records that are the subject of a
Section 201(c) claim makes little sense because, like in the
Freedom of Information Act context, in the Section 201(c)
context a court should not grant discovery “that would be
tantamount to granting the final relief sought.” See Tax
Analysts v. IRS, 410 F.3d 715, 722 (D.C. Cir. 2005) (internal
quotation marks omitted). If discovery could be used to review
the documents and records that are the subject of a Section
201(c) claim, such discovery would “turn [Section 201(c)] on its
head, awarding [a plaintiff] in discovery the very remedy for
which it seeks to prevail in the suit.” See id. Accordingly, Mr.
Noble’s failure to use discovery to access the documents and
records that are the subject of his Section 201(c) claim, see
Defs.’ Resp., ECF No. 314 at 8, or his abandonment of attempts
to use discovery to access those documents and records, see id.
at 7, does not amount to waiver of his Section 201(c) claim. Mr.
18
Noble cannot be said to have waived an opportunity that was
never his for the taking.1
B. Mr. Noble is Not Entitled to Relief on the Merits of
His Section 201(c) Claim
Mr. Noble fails to carry his burden of demonstrating to the
Court that he is entitled to relief on the merits of his Section
201(c) claim. He comes closest to carrying that burden in the
context of his most clearly articulated request to examine NALC
documents and records: His request to examine all of the NALC’s
documents and records from January 1, 1989 through September 14,
1993 pertaining to a NALC bank account numbered 110390400 and
located in Minneapolis, Minnesota. Mr. Noble requested access to
these Minneapolis bank account documents and records in his
September 14, 1993 letter to Mr. Gutshall. See September 14,
1993 Letter from David Noble to Jerry Gutshall, Pl.’s Ex. 38,
ECF No. 296-13 at 1. The NALC never gave Mr. Noble access to
these documents and records and, instead, has emphasized in its
waiver argument that it objected to Mr. Noble’s request for them
1 In any event, even when a court does permit discovery in the
context of a Section 201(c) claim, the scope of discovery is not
understood to demarcate the scope of the documents and records
ultimately subject to the reach of Section 201(c). See Landry v.
Sabine Indep. Seamen’s Ass’n, 623 F.2d 347, 349-50 (5th Cir.
1980) (holding that union members were entitled to union
documents and records dating from 1970 even though their
discovery request, consistent with the district court’s pre-
trial discovery order, only sought documents and records dating
from January 1, 1975).
19
during discovery and that, thereafter, Mr. Noble did not seek
them again during discovery. See Defs.’ Resp., ECF No. 314 at 7.
But, for the reasons stated above, Mr. Noble’s abandonment of
his attempt to obtain these documents and records through
discovery did not amount to waiver of his claim to them under
Section 201(c). See supra Part II.A.
Further, Mr. Noble satisfies Section 201(c)’s just cause
requirement as it pertains to the Minneapolis bank account
records request. Mr. Noble’s just cause burden is minimal. He
carries that burden if a reasonable union member in his position
“‘would be put to further inquiry.’” Mallick, 749 F.2d at 782(quoting Morley, 378 F.2d at 744). A union member who has been
told by someone who worked in the NALC’s Minneapolis regional
office that the NALC might have been concealing money in a bank
account in Minneapolis, Minnesota, as Mr. Noble was, would be
put to further inquiry regarding that bank account and whether
its funds were properly reported in the union’s federal
financial filings. See June 15, 2015 Noble Decl., ECF No. 313-1
¶¶ 15-20. Accordingly, Mr. Noble has carried his burden of
demonstrating just cause to inspect the NALC’s documents and
records concerning the Minneapolis bank account.
But Mr. Noble fails to satisfy Section 201(c)’s
verification requirement as it pertains to the Minneapolis bank
account records request. To satisfy this requirement, Mr. Noble
20
must demonstrate a “direct connection between records sought to
be accessed and the union’s federal filings,” Fernandez-Montes,
987 F.2d at 286, which requires him “[1] to state what he wishes
to verify in the LM Reports and [2] how the particular union
records he is requesting are expected to assist him in doing
so.” Id. at 285.
Mr. Noble satisfies the first of these two sub-
requirements: that he must “state what he wishes to verify in
the LM Reports.” Id. One of Mr. Noble’s stated motivations for
examining the Minneapolis bank account documents and records——
“to determine whether union funds were used for the non-union
purpose of electing candidates for union office,” June 15, 2015
Noble Decl., ECF No. 313-1 ¶ 19——is insufficient because a
request for records grounded in political opposition to union
officials that is not directly keyed to a specific concern with
transactions summarized on an LM-2 Report does not involve
verification of an LM-2 Report. See Mallick, 749 F.2d at 782-83
(citing Flaherty v. Warehousemen, Garage and Serv. Station
Emps.’ Local Union No. 334, 574 F.2d 484, 486 (9th Cir. 1978)).
However, Mr. Noble separately articulates a motive “to inspect
the records of the Minneapolis bank account . . . to determine
whether the funds the bank account contained were reported in
the union’s LM-2 reports.” June 15, 2015 Noble Decl., ECF No.
313-1 ¶ 19. That intent to confirm whether certain bank funds
21
are reported in the NALC’s LM-2 Reports has remained consistent
throughout the life of this case, see September 14, 1993 Letter
from David Noble to Jerry Gutshall, Pl.’s Ex. 38, ECF No. 296-13
at 1 (requesting documents and records relating to the
Minneapolis bank account “to understand the assets reported in
NALC’s LM-2 reports”), and is a clear articulation of “what [Mr.
Noble] wishes to verify in the LM Reports.” See Fernandez-
Montes, 987 F.2d at 285. The defendants’ argument that Mr. Noble
does not satisfy the sub-requirement of stating what he wishes
to verify in the NALC’s LM-2 Reports is unavailing. They argue
that Mr. Noble has not identified “any particular entry on any
of NALC’s LM-2 reports” that he seeks to verify or that he
believes to be “suspicious or questionable.” Defs.’ Resp., ECF
No. 314 at 10. That line of argument fails because if it
prevailed, “unions that wished to shield certain information
from scrutiny would omit it from their LM-2 filings and would
effectively preclude any subsequent § 201(c) actions demanding
the information.” Bembry v. New York Metro Postal Union, No. 08-
2369, 2009 WL 690245, at *7 (S.D.N.Y. Mar. 12, 2009).
Accordingly, Mr. Noble does not need to point “to particular
lines on the LM-2” to sufficiently articulate what it is that he
seeks to verify in the NALC’s LM-2 Reports. See id. What he
seeks to verify is whether the Minneapolis bank account funds
were reported in the NALC’s LM-2 Reports.
22
But Mr. Noble fails to satisfy the second of the
verification sub-requirements: that he must “state . . . how the
particular union records he is requesting are expected to assist
him” in verifying the NALC’s LM-2 Reports. See Fernandez-Montes,
987 F.2d at 285. While Mr. Noble articulates that he “would like
to inspect the records of the Minneapolis bank account and
NALC’s LM-2s to determine whether the funds the bank account
contained were reported in the union’s LM-2 reports,” June 15,
2015 Noble Decl., ECF No. 313-1 ¶ 19, and thereby articulates
what he seeks to verify in the NALC’s LM-2 Reports, he does not
articulate how the Minneapolis bank account records will help
him achieve that verification. Instead, he asserts that it is
“only by looking at the entirety of NALC’s records” that he will
be able to determine “whether the assets of the Minneapolis bank
account were reported on the LM-2 reports.” Id. ¶ 30. By
conceding that only review of the entirety of the NALC’s records
will permit him to verify that the Minneapolis bank account
funds were reported in the NALC’s LM-2 Reports, Mr. Noble admits
that he does not know and, consequently, is unable to explain
how examination of the Minneapolis bank account records——
separate and apart from the entirety of the NALC’s records——will
assist him in verifying that the bank account funds were
reported in the NALC’s LM-2 Reports. Without that explanation,
the Court is unable to permit Mr. Noble to undertake an
23
examination of the NALC records pertaining to the Minneapolis
bank account. Denying Mr. Noble that opportunity to examine
records is consonant with the reason Section 201(c) demands that
union members explain how the particular union records sought to
be examined are expected to assist them in verifying LM-2
Reports: “[T]o guard against the ‘wholesale random audits’ of
unions’ financial records.” See Bembry, 2009 WL 690245, at *7
(citing Ellis v. Civil Serv. Emps. Ass’n, Inc., No. 95-105, 1995
WL 779266, at *4 (N.D.N.Y. Dec. 29, 1995)). Mr. Noble’s
inability to articulate how the bank records——separate and apart
from the entirety of the NALC’s records——could help him verify
the NALC’s LM-2 Reports reveals his crusade to undertake an
impermissible “wholesale random audit” of the NALC’s records.
Mr. Noble’s two other record examination requests——a
request to examine documents and records from January 1, 1980
through September 14, 1993 pertaining to NALC payments for
housing expenses for President Sombrotto and Secretary-Treasurer
O’Connell, and a request to examine all documents and records
responsive to the requests in categories 5, 7, 8, 12, 13, 14,
15, and 18 of his September 14, 1993 letter to Mr. Gutshall——
miss the Section 201(c) mark by a wider margin. As concerns the
request to examine records pertaining to payments for housing
expenses, the failure of the Investigating Committee to produce
“copies of [President Sombrotto’s and Secretary-Treasurer
24
O’Connell’s] checks showing the supposed deductions” for housing
expenses paid by NALC on their behalf, see June 15, 2015 Noble
Decl., ECF No. 313-1 ¶ 27, satisfies the minimal just cause
requirement, as a reasonable union member in Mr. Noble’s
position “would be put to further inquiry.” See Morley, 378 F.2d
at 744. But this request satisfies neither of the verification
requirement’s prongs. At no point——not in his September 14, 1993
letter to Mr. Gutshall, see September 14, 1993 Letter from David
Noble to Jerry Gutshall, Pl.’s Ex. 38, ECF No. 296-13 at 3, nor
in his supplemental memorandum in support of his Section 201(c)
claim, see generally Pl.’s Suppl. Mem., ECF No. 313, nor
anywhere else——does Mr. Noble explain “what he wishes to verify
in the LM Reports” by examining records related to housing
expense payments. See Fernandez-Montes, 987 F.2d at 285. He
makes clear that he seeks to verify “whether the payments made
for Sombrotto’s and O’Connell’s apartments were truly paid for
by deductions from their checks,” June 15, 2015 Noble Decl., ECF
No. 313-1 ¶ 28, but he does not sufficiently articulate what it
is that he seeks to verify in the NALC’s LM-2 Reports. He does
not simply state that he seeks to verify whether the housing
payments were reported in the NALC’s LM-2 Reports, and the Court
will not fill in the blanks for him——the Section 201(c) burden
is Mr. Noble’s to carry, not the Court’s. Furthermore, without
articulating what it is that he seeks to verify in the LM-2
25
reports by examining these housing expense payment records, it
is impossible for Mr. Noble to state “how the particular union
records he is requesting are expected to assist him” in that
verification of LM-2 Reports. See Fernandez-Montes, 987 F.2d at
285.
As concerns Mr. Noble’s request to examine all of the
documents and records responsive to the requests in categories
5, 7, 8, 12, 13, 14, 15, and 18 of his September 14, 1993 letter
to Mr. Gutshall, Mr. Noble points to a laundry list of actions
taken by NALC officers over the years that he asserts amount to
just cause for his generalized “request to verify NALC LM-2s.”
See Pl.’s Suppl. Mem., ECF No. 313 at 2-3. Even assuming that
some of these activities would put Mr. Noble “to further
inquiry,” Morley, 378 F.2d at 744, he again fails to articulate
what it is exactly that he “he wishes to verify in the LM
Reports” by means of this request to examine an enormous amount
of the NALC’s documents and records. See Fernandez-Montes, 987
F.2d at 285. Mr. Noble does not need to point “to particular
lines on the LM-2” to sufficiently articulate what it is that he
seeks to verify in the NALC’s LM-2 Reports, see Bembry, 2009 WL
690245, at *7, but he needs to be more specific than just
repeating that he seeks “to verify NALC LM-2s.” See Pl.’s Suppl.
Mem., ECF No. 313 at 2, 3; Pl.’s Reply, ECF No. 315 at 3, 4.
And, again, without more specificity about what it is that he
26
seeks to verify in the NALC LM-2 Reports by means of this
expansive request, it is impossible for Mr. Noble to state “how
the particular union records he is requesting are expected to
assist him” in that verification. See Fernandez-Montes, 987 F.2d
at 285. At bottom, Mr. Noble’s request to review all of the NALC
documents and records responsive to the requests in categories
5, 7, 8, 12, 13, 14, 15, and 18 of his September 14, 1993 letter
to Mr. Gutshall amounts to an attempt to undertake a “wholesale
random audit” of the NALC’s records that should not be
permitted. See Ellis, 1995 WL 779266, at *4.2
III. Conclusion
For the foregoing reasons, the Court enters judgment in
favor of the defendants on Mr. Noble’s Section 201 claim. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
January 17, 2017
2 Having concluded that Mr. Noble is not entitled to review any
documents and records because he fails to satisfy Section
201(c)’s requirements as they apply to his three requests for
document and record examination, the Court does not need to
address the defendants’ argument that Mr. Noble’s Section 201(c)
claim against the individual defendants fails because Mr. Noble
has not established that the individual defendants, separate and
apart from the NALC, have actual possession of the documents and
records he seeks to inspect. See Defs.’ Resp., ECF No. 314 at
11.
27