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Bachowski v. Usery

filed: November 3, 1976.



Adams and Weis, Circuit Judges.*fn*

Author: Adams

ADAMS, Circuit Judge.

The present appeal, marking the second time this litigation comes before this Court,*fn1 is taken by the Secretary of Labor and the United Steelworkers of America from an order of the district court on remand from the opinion of the Supreme Court in Dunlop v. Bachowski.*fn2 The appellants contend that the district court transgressed the boundaries established by the Supreme Court for permissible review of a decision by the Secretary not to bring suit under 29 U.S.C. § 482(b) to overturn a union election. As a threshold matter, however, it is necessary to determine whether we are presented with a final judgment, appealable under 28 U.S.C. § 1291.


Walter Bachowski was one of three candidates for the office of Director of District 20 of the United Steelworkers of America in an election held on February 13, 1973. He was defeated by the incumbent, Kay Kluz, by a margin of 907 votes out of approximately 24,000 votes cast.*fn3 After exhausting his internal union remedies, Mr. Bachowski filed a complaint with the Secretary of Labor, alleging that there had been violations of Title IV of the Labor-Management Reporting and Disclosure Act which affected the outcome of the election. The Secretary declined to bring suit, and did not set forth the reasons for his decision.

Mr. Bachowski then initiated an action against the Secretary and the Steelworkers in the district court, seeking to compel the Secretary to file a complaint to upset the election. The district court dismissed the action for lack of subject matter jurisdiction, concluding that it was without authority to review the Secretary's determination.

In Bachowski v. Brennan,*fn4 a panel of this Court reversed the district court's order of dismissal, holding that the decision of the Secretary in refusing to file suit was subject to judicial review. The panel also held that the scope of review encompassed a challenge to the factual basis for the Secretary's conclusion, an inquiry that might necessitate a trial-type hearing. Finally, the Secretary was ordered to provide Mr. Bachowski with a detailed statement of reasons for not bringing suit.

The Supreme Court granted certiorari,*fn5 and in Dunlop v. Bachowski,*fn6 reversed the judgment of this Court. It agreed with the holding that the Secretary's determination not to bring suit under Title IV is judicially reviewable and that he must submit a statement of reasons to serve as a basis for judicial review.*fn7 However, the Court found the conclusions regarding the proper scope of this judicial review to be unacceptably broad. The Supreme Court noted that one of Congress' chief concerns in shaping the mechanisms of Title IV was "'to settle as quickly as practicable the cloud on the incumbents' titles to office'",*fn8 and that the procedures envisioned by this Court could serve only to prolong Title IV disputes. Thus, the Supreme Court held that review should ordinarily "be confined to examination of the 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."*fn9

On remand, Mr. Bachowski filed a motion with the district court for further proceedings, alleging that he was entitled to a trial-type hearing under the limited circumstances established by the Supreme Court*fn10 and, in the alternative, that the Secretary's statement was arbitrary and capricious on its face.

In an opinion filed on December 19, 1975,*fn11 the district judge, the Honorable Edward Dumbauld, rejected Mr. Bachowski's request for a trial-type hearing. However, the district judge ordered the Secretary to submit a supplemental statement of reasons, ruling that the initial statement did not adequately explain the basis for not bringing suit. In particular, Judge Dumbauld expressed dissatisfaction with certain aspects of the methodology employed by the Secretary to determine the possible effect of violations on the outcome of the election.

After receiving the supplemental statement, the district court ruled that the standard utilized by the Secretary in deciding whether to bring suit was "irrational," and remanded the cause to him for a "recount" to be conducted pursuant to guidelines established in the district court's opinion.*fn12 The district judge, however, did not direct the Secretary to file suit. Both the Secretary and the Steelworkers appealed from the second order that was entered by Judge Dumbauld.

On June 17, 1976, Mr. Bachowski filed a motion to dismiss the appeals for want of an appealable order. This motion was denied without prejudice on July 2, 1976. Mr. Bachowski's contention that this Court lacks statutory jurisdiction has been raised anew before this panel. We have concluded that the order of the district court is not a final order, appealable under Section 1291, and that the appeals, accordingly, must be dismissed.


Section 1291 is the sole basis relied upon by the Secretary and the Steelworkers to establish our jurisdiction. The cases are clear in their command that only final decisions of the district court are appealable under this statute.*fn13 Courts have recognized that the precepts forming the bulwark of this historic doctrine are the realization that piecemeal appeals are costly and inefficient and do not serve the cause of a just and speedy resolution of controversies.*fn14 Yet, the cases also admonish us to give section 1291 a "practical rather than a technical construction."*fn15

Mr. Bachowski maintains that the district court's order is not final because it does not bring about a final resolution of all the claims and defenses in this matter. He notes that the ultimate relief requested in his complaint was a decree ordering the secretary to file suit. Judge Dumbauld did not address himself to the demand that the Secretary file suit; instead, he merely remanded the cause to the Secretary for further proceedings.

If we were to affirm the district court and remand to the Secretary for the mandated recount, Mr. Bachowski argues, the Secretary might continue in his refusal to bring suit. He claims that such a course would necessitate a further round of proceedings in the district court, this Court, and, perhaps, the Supreme Court, dealing with the difficult constitutional issue whether a court may order the Secretary to bring suit. The consequence of such a splitting of appeals, Mr. Bachowski insists, would result in ...

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