The opinion of the court was delivered by: MCLEAN
This is an action by a member of a local union to compel the Secretary of Labor to institute suit under 29 U.S.C. § 482 to set aside a union election. Defendant moves under Rule 12(b) to dismiss the action on the grounds that the court lacks jurisdiction of the subject matter and that the complaint fails to state a claim. The allegations of the complaint, which must be taken as true for the purposes of this motion, may be summarized as follows:
Plaintiff was a candidate for the office of Chairman of the Local in an election held on June 18, 1965. He lost by a margin of 35 votes. He was also a candidate for the office of Council Delegate. For that office he received 186 votes, which was 11 votes short of the number necessary for election.
Prior to the election, the union officers provided plaintiff's opponents with an accurate and up-to-date list of union members, but they furnished plaintiff only with an inaccurate and out-of-date list which contained erroneous addresses for more than 70 members. The union refused plaintiff's request, made within thirty days prior to the election, to inspect a current membership list. As a result, plaintiff's campaign literature failed to reach at least 70 members who did have the benefit of his opponent's campaign literature. Furthermore, the union allowed more than 35 "membership books to accumulate in the possession of the Financial Secretary of the Local," thereby enabling the Financial Secretary "to cause improper and illegal votes to be cast."
Plaintiff exhausted his union remedies without success. He thereupon complained to the Secretary of Labor within the time prescribed in 29 U.S.C. § 482. The Secretary investigated and "found probable cause to believe that a violation of Section 401 of the Act, 29 U.S.C. 481, had occurred and had not been remedied." Nevertheless, the Secretary refused to sue, in reliance upon one of his regulations, 29 C.F.R. § 452.16, which provides that the Secretary will not sue "unless he finds probable cause to believe that they (the violations) 'may have affected the outcome of an election'."
The relief asked is that the court declare this regulation invalid and that it issue an injunction ordering the Secretary to sue.
Two questions are presented by this action and this motion: (1) does the Secretary of Labor have discretion under 29 U.S.C. § 482 to refuse to sue, once he has found probable cause to believe that a violation has occurred; (2) if so, does this court have jurisdiction to review that discretion?
The first question is one of construction of the statute. The pertinent language of Section 482 is:
"(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election . . . ."
Subdivision (c) of Section 482 provides:
"(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds -
(2) that the violation of section 481 of this title may have affected the ...