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August 9, 2004.

ELAINE L. CHAO, Secretary, United States Department of Labor Defendant.

The opinion of the court was delivered by: SIDNEY STEIN, District Judge


Plaintiff Patrick Ellis challenges the decision of the Secretary of the United States Department of Labor to dismiss Ellis's administrative complaint alleging fraudulent activities in the February 2000 statewide election for officers of the Civil Service Employees Association (the "CSEA"). Ellis seeks a declaratory judgment voiding that election as well as an injunction directing the Secretary of Labor to conduct a new statewide election for CSEA officers in New York. Because this Court finds that the Secretary's decision to dismiss plaintiff's complaint was not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law," her motion for summary judgment is granted.

Shortly after this litigation was commenced in 2001, the parties cross-moved for summary judgment; this Court granted summary judgment to the Secretary and denied plaintiff's motion as well as his request for leave to amend the Complaint. See Ellis v. Chao, 2001 WL 1550809, 169 L.R.R.M. 2016 (S.D.N.Y. Dec. 5, 2001). The United States Court of Appeals for the Second Circuit subsequently affirmed the denial of summary judgment to Ellis, but vacated and remanded the grant of summary judgment to the Secretary as well as this Court's denial of Ellis's motion to amend. See Ellis v. Chao, 336 F.3d 114 (2d Cir. 2003). Upon remand, the parties have once again cross-moved for summary judgment.


  Three candidates vied for the position of president of the statewide CSEA organization in the February 2000 election: the incumbent Danny Donohue and two challengers — plaintiff and Bill Walsh. Pursuant to a contract with CSEA, True Ballot, Inc. was responsible for the design, printing and mailing of the ballots, collecting and securing the returned ballots, and tallying the votes. True Ballot in turn contracted with NewKirk Products, Inc. to print ballots designed by True Ballot and to mail those ballots to CSEA members. The ballots were sent to union members in January of 2000.

  On February 8, 2000, True Ballot obtained the returned ballots from Trustco Bank — the custodian of those returned envelopes — and began the vote tallying process. For this exercise, a conference room was reserved in an Albany hotel. Plaintiff and a number of individuals associated with the other candidates were present as observers to monitor the vote tallying. As True Ballot made an initial automatic tally by scanning the returned ballots, monitors in the conference room showed projections of the election results. Apparently based on one such projection, a news release was issued on February 9 that the incumbent Donohue had been re-elected with 51% of the votes. At that time, the projection showed that Ellis had come in second with approximately 15,000 votes.

  As the tallying process progressed, True Ballot discovered that the vote count had become skewed due to systematic misreading by the scanning machines, apparently the result of mistakes in the design and printing of the ballots. After consultation with the election committee, True Ballot undertook various corrective measures, including recounting the votes manually. Because CSEA had to vacate the conference room, the manual tally was halted on February 10 and resumed on February 22 at the same location.

  The entire tallying process, including an audit of the results, was completed by February 25, when True Ballot provided the election results to the election committee: Donohue, the incumbent, had been re-elected with more than 19,000 votes, plaintiff received approximately 14,000 votes and Bill Walsh received approximately 3,000 votes.

  Through his observations, Ellis believed that the tallying process had been infected with a number of improprieties, including unreasonable restriction on the observers' right of access and failures to comply with relevant protocols. Ellis filed four internal protests with CSEA's statewide election committee (the "election committee"), alleging various violations of CSEA's electoral procedures and of the provisions of the Labor Management Reporting and Disclosure Act (the "LMRDA"), 29 U.S.C. § 401, et. seq. and regulations promulgated thereunder, 29 C.F.R. § 452, et. seq. The election committee dismissed all four protests in a March 14 determination sent to Ellis.

  Plaintiff then filed a complaint with the Office of Labor and Management Standards of the United States Department of Labor, seeking a review of the election pursuant to 29 U.S.C. § 482(a). That provision permits a union member who has exhausted his internal union remedies to file a complaint with the Secretary of Labor, who must then conduct an independent investigation of the union member's complaint. See 29 U.S.C. § 482 (b), 521. Ellis alleged numerous violations of the LMRDA, including improper ballot design and mailing, Walsh's receipt of unlawful funding, restriction on observers' right of access, errors in vote tallying, and the failure of the election committee to monitor and control the conduct of the election. Ellis's complaint was subsequently dismissed for the reasons provided in a "Statement of Reasons for Dismissing the Complaint of Patrick Ellis concerning the Election of Union Officials of the CESA" (the "Statement of Reasons").

  This action was then commenced, seeking a declaratory judgment as well as an injunction directing the Secretary to bring a civil suit to compel a new election pursuant to 29 U.S.C. § 482(b). As noted above, summary judgment was granted to the Secretary. Upon appeal, the Second Circuit found that the Secretary's Statement of Reasons was "obviously conclusory" and "not sufficient for [the court] to be able to determine whether the Secretary's [decision was] arbitrary and capricious." See Ellis v. Chao, 336 F.3d at 123. Specifically, the Second Circuit noted that Secretary had failed to provided explanations as to why certain substantiated allegations, such as the restrictions of observers' rights, could not have altered the outcome of the election, failed to describe the investigation her agency undertook, failed to provide a verified final vote tally, and failed to address certain allegations asserted by plaintiff, such as the improper exclusion of over 2,000 votes. See id., 336 F.3d at 124. As a result, the Second Circuit remanded the action and directed this Court to require the Secretary to present a more substantive statement of reasons "explaining not only what the Secretary's ultimate determination was, but also the process that led to, and the basis for, that decision." See id., 336 F.3d at 127.

  Approximately eight months after the remand, the Secretary issued a "Supplemental Statement of Reasons for Dismissing the Complaint of Patrick Ellis Concerning the Election of Union Officers of the CESA" (the "Supplemental Statement of Reasons"), which sets forth defendant's factual findings and conclusions in greater detail. It contains findings both as to the accuracy of plaintiff's allegations and as to their sufficiency. In the first category, it states that the Secretary's investigation only substantiated five of the allegations asserted by Ellis and found 11 allegations to be inaccurate. And as of those five allegations substantiated in the investigation, she found that it was improbable that any of them could have affected the outcome of the election. Consequently, the Secretary concluded that she did not have a statutory duty to initiate a civil action to void the February 2000 election because "there was no violation of [29 U.S.C. § 481] that may have affected the outcome of the election." See Supplemental Statement of Reasons ("Supp. Stmt.") at 16.


  The moving party is entitled to summary judgment if the record, considered as a whole, "show[s] that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the Court will construe the evidence in the light most favorable to the nonmoving party and draw all inferences in his or her favor. See Niagara Mohawk Power Corp. v. Jones Chemical ...

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