Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1990)

No. 89-55121.

United States Court of Appeals, Ninth Circuit.

Before DAVID R. THOMPSON and TROTT, Circuit Judges, and STANLEY A. WEIGEL,*  District Judge.


Appellants failed in their bids to become officeholders of the Greater Los Angeles Area Local of the American Postal Workers' Union and petitioned the Secretary of Labor ("the Secretary") to bring suit in federal court to set aside the election pursuant to 29 U.S.C. § 482(b) (1982). The Secretary declined, and the district court affirmed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982), and we affirm.

Under Dunlop v. Bachowski, 421 U.S. 560 (1975), this court's review of a Secretary's decision not to file suit is generally "confined to examination of the [Secretary's] reasons statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." Dunlop v. Bachowski, 421 U.S. 560, 572-73 (1975).

In the present case, the Secretary's Statement of Reasons adequately explains the Secretary's conclusion that the challenged publications were newsworthy rather than promotional. This decision was not "so irrational as to constitute the decision arbitrary and capricious."1  The Statement's detailed examination of the balloting irregularities also suffices to demonstrate that the Secretary's decision on that issue was not arbitrary and capricious. Finally, since appellants failed to protest the incumbents' alleged distribution of union-purchased items within the time limits established by the union's constitution, the district court properly found that appellants were barred from raising these issues in federal court. See 29 U.S.C. § 482(a).



The Honorable Stanley A. Weigel, Senior U.S. District Judge for the Northern District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Donovan v. Local Union 70, Int'l Brotherhood of Teamsters, 661 F.2d 1199 (9th Cir. 1981), Donovan v. Local 738, UAW, 575 F. Supp. 52 (D. Md. 1983), and Marshall v. Office & Professional Employees Union, Local 2, 505 F. Supp. 121 (D.D.C. 1981) are distinguishable, as they involved displays of support which were far more direct than those alleged in the present case


Although, as appellee concedes, the district court erred in finding that Williams failed to timely file, that error is insignificant here in light of the identity of the claims asserted by Williams and the other appellants. Similarly, appellant Mulkey's apparent failure to exhaust internal union remedies does not affect our analysis in light of the identity of his and the other appellants' claims