"It must be emphasized that the Act, even if found to be applicable here, is entirely permissive in nature; it in no way mandates a particular result or the entry of a particular order. It is addressed to the discretionary power of the court." Id.
In the instant case, Simpson argues that both the United States Constitution and principles of fairness require this Court to exercise its discretionary authority under the Act. Simpson contends that if he is not granted the subpoena power, his constitutional right to due process and his rights under the fifth and sixth amendments will be violated. See Simpson's Motion Papers, Motion at 4; id., McCabe Aff. at P 10.
Simpson's constitutional argument is flawed. The hearing does not implicate any of Simpson's constitutional rights because the IRB is not a state actor. It is well settled that the constitutional provisions that Simpson cites only regulate the conduct of state actors, not private entities. See United States v. International Bhd. of Teamsters, 941 F.2d 1292, 1296 (2d Cir. 1991), cert. denied, 502 U.S. 1091, 112 S. Ct. 1161, 117 L. Ed. 2d 408 (1992). "To qualify as state action, the conduct in question 'must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State by a person for whom the State is responsible,' and 'the party charged with the [conduct] must be a person who may fairly be said to be a state actor.'" Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982)) (brackets in Teamsters). The Second Circuit held, during an earlier phase of the Consent Decree, that the Independent Administrator ("the IA") was not a state actor for two reasons. First, although the IA brought disciplinary proceedings against Union members, the IA only brought these proceedings pursuant to the Consent Decree and the IBT Constitution. 941 F.2d at 1296. Thus, the IA was not a state actor because the charges were "premised on violations of Article II, section 2(a) of the IBT Constitution, not on violations of any federal or state law." See id. at 1296. Second, the court ruled that the IA may not be fairly said to be a state actor because "the IA has offices that are provided by the IBT, and the IBT pays his salary." Id. Similarly, the IRB has acted solely pursuant to the authority that it derives from the Consent Decree and the Union's constitution. The IRB has only charged Simpson with violating the IBT Constitution and has not charged him with violating any state or federal law.
Further, the Union pays all of the IRB's costs and expenses.
Thus, the IRB is not a state actor.
Simpson's constitutional argument is also flawed because, even if the IRB were a state actor, Simpson has failed to demonstrate that his due process rights
will be infringed if he attends the hearing without being able to subpoena witnesses. "Due process is 'flexible and calls for such procedural protections as the particular situation demands.'" United States v. International Bhd. of Teamsters, 1991 U.S. Dist. LEXIS 16303, No. 88 Civ. 4486 (DNE), 1991 WL 243268 at * 4, (S.D.N.Y. Nov. 8, 1991) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972)), aff'd, 962 F.2d 4 (2d Cir. 1992)). To insure that union members who face disciplinary proceedings receive adequate procedural protections, Congress passed the Labor-Management Reporting and Disclosure Act ("the LMRDA"), 29 U.S.C. § 411. The LMRDA requires a union to provide a "full and fair hearing" when the union takes disciplinary action against a union member.
29 U.S.C. § 411(a)(5)(C). However, the Second Circuit has held that the power to subpoena witness is not "a requirement of a 'full and fair' hearing under section 411(a)(5)(C)." United States v. International Bhd. of Teamsters, 962 F.2d 4, Order at 3 (2d Cir. 1992). As this decision indicates, constitutional due process does not require that a union member has the power to subpoena witnesses to appear at a union disciplinary hearing. Further, neither the Consent Decree nor the IBT Constitution grants Union members the right to subpoena witnesses. In sum, Simpson has no right to subpoena witnesses under the due process clause or the Consent Decree or the IBT Constitution.
Finally, Simpson's contention that notions of fairness require this Court to exercise its discretion under the Act is without merit. Simpson claims that he needs to subpoena Ellis because "Ellis' testimony will not withstand cross-examination by Simpson's lead counsel." See Simpson's Motion Papers, Motion at 2. However, fairness does not require that Simpson's attorneys be granted the opportunity to cross-examine Ellis at the hearing. Simpson can attack Ellis's testimony in a variety of ways: Simpson can testify that the statements are false; he can introduce any contradictory statements that Ellis made, including contradictory statements in Ellis's deposition testimony; he can present physical or documentary evidence that shows that these statements are false; and he can argue that Ellis's deposition testimony should not be given substantial weight because Ellis has not appeared at the hearing. In fact, as the Consent Decree states, Simpson can "present any facts, evidence, or testimony which is relevant to the issue before the Independent Review Board." Consent Decree at 22.
Likewise, notions of fairness do not require that Simpson be able to subpoena witnesses that "have indicated to counsel for Simpson that they are not comfortable with appearing voluntarily at the IRB hearing and would prefer to be subpoenaed." Simpson's Motion Papers, Motion at 3. These concerns simply do not rise to a level that might render Simpson's hearing unfair.
In sum, because neither constitutional concerns nor notions of fairness require that Simpson be able to subpoena witnesses, this Court declines to exercise its discretion under the All Writs Act.
Accordingly, Simpson's motion is DENIED.
DATED: New York, New York
December 15, 1994
David N. Edelstein