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Davis v. U.S. Department of Labor Office of Labor Management Standards

United States District Court, E.D. Michigan, Southern Division

August 15, 2017

Robert Davis, Plaintiff,
v.
U.S. Department of Labor Office of Labor Management Standards, ET. AL., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT [15]

          Arthur J. Tarnow Senior United States District Judge

         Plaintiff filed a pro se complaint on June 10, 2016 [1] against the U.S. Department of Labor Office of Labor Management Standards (“OLMS”) alleging various claims of unconstitutional vagueness in 29 USC §504 of the Labor-Management Reporting and Disclosure Act (“LMRDA”), and a Bivens claim against individual Defendant Ian Burg, the District Director for the Defendant OLMS in the Detroit-Milwaukee District Offices. Defendants filed a Motion to Dismiss, or in the Alternative for Summary Judgment [15], on October 12, 2016. Plaintiff filed a response [19] on November 28, 2016 and Defendant replied [20] on December 9, 2016.

         The Court finds the motion suitable for determination without a hearing, in accord with Local Rule 7.1(f)(2), with respect to all of Plaintiff's claims. For the reasons stated below, Defendants' Motion to Dismiss or in the Alternative for Summary Judgment [15] is GRANTED.

         Factual Background

         Plaintiff was employed by AFSCME Council 25 (AFSCME) as a staff representative. ASFCME is a labor union covered by the Labor Management Reporting and Disclosure Act (LMRDA) 29 U.S.C. §504. Plaintiff worked under a union bargaining agreement, signed by AFSCME and his union.

         On September 2, 2014, Plaintiff signed a plea agreement in which he admitted guilt to unlawful conversion of program funds and the filing of a false income tax return when he was an elected member of the Highland Park Board of Education. [No. 12-CR-20224 (EDMI) at 62]. On this same day, Plaintiff filed a Motion for an Exemption from Application of Section 504 of the LMRDA because Plaintiff hoped to remain employed with ASFCME. [CR Docket 60]. The United States filed a response in opposition to Plaintiff's Motion for an Exemption from Section 504 of the LMDRA on November 13, 2014 [CR Docket at 70] and Plaintiff replied on November 18, 2014 [CR Docket at 71]. OLMS, per agency procedures, completed an investigation of Plaintiff, a report of investigation and an analysis and recommendation memorandum regarding the motion. [See CV Docket 15-2 at ¶7-8; CR Docket at 78, Pg ID 548].

         The Court held a hearing on Plaintiff's motion regarding the exemption on November 19, 2014. Plaintiff filed a supplemental brief on November 25, 2014 [CR Docket 72]. On December 18, 2014, Plaintiff was sentenced to serve 18 months in a minimum security camp, and on December 29, 2014, a criminal judgment was signed and entered against Plaintiff. The Court denied Plaintiff's motion for exemption without prejudice on October 20, 2015, stating that allowing Plaintiff to remain employed in the union after pleading guilty to embezzlement would be contrary to the purpose of section 504 and that the request was premature because Plaintiff's rehabilitation was just beginning. [CR Docket 78 at Pg ID 552-553].

         OLMS sent Plaintiff a letter on October 22, 2015 from Defendant Ian Burg.

         [CV Docket 15-3]. In relevant part, the letter stated:

On December 18, 2014, you were convicted of Theft of Funds from a Federally-Funded Program, in violation of 18 U.S.C. §666(a)(1)(A). Therefore, you are prohibited by section 504 of the Labor Management Reporting and Disclosure Act of 1959 (LMDRA) (29 U.S.C. 504) from holding or being permitted to hold union office or employment or serving in other prohibited capacities.
…Under the provisions of LMRDA section 504, you may not serve or be permitted to serve in any of the positions or capacities listed above until 13 years after the conviction or until 13 years after the end of any imprisonment resulting from the conviction, whichever is the later date. This disability applies unless (1) your citizenship rights were revoked as a result of such conviction, (2) your conviction is finally reversed on appeal, or (3) you are granted an exemption from disqualification.

         [Id].

         Plaintiff sent Defendant Burg a letter, received on November 19, 2015, requesting that he issue a corrected letter, stating that his date of conviction was December 29, 2014, the date that this Court formally signed and entered his criminal judgment. [CV Docket 15-4]. Defendant Burg responded on November 30, 2015, stating that:

Under the provisions of LMRDA section 504, you may not serve or be permitted to serve in any of the positions or capacities listed in the letter dated October 22, 2015, until 13 years after you conviction, or 13 years after the end of any imprisonment resulting from the conviction, whichever is the late date. Since you were incarcerated some time after sentencing, the bar will begin on the date you are released from incarceration and will run for 13 years. Whether the date of your sentencing was, technically, the date of the hearing…or the date the judgment was signed by the judge and filed…is irrelevant for the purpose of determining the applicable bar period.

[CV Docket 15-5].

         Plaintiff was released from prison on February 3, 2016 and placed first in home confinement and then in a halfway house. [CR Docket 79 at Pg ID 557].

         Plaintiff filed a renewed motion before the Court on March 18, 2016, once again asking for an exemption from the Section 504 bar. [CR Docket 79]. Plaintiff sent an email to Defendant Burg and Senior Investigator Grant Thomas on March 21, 2016, seeking clarification on when the employment bar began because he was interested in seeking employment within a labor union. Specifically, Plaintiff asked if the bar began on the date he was released from prison, February 3, 2016, or if it would begin the date that he is released from the halfway house. [15-10767 (EDMI), Docket 76-1]. Defendant Burg replied by email on March 23, 2016, informing Plaintiff that the bar would began the date Plaintiff was released from prison. [Id, Docket 76-2].

         The Court denied without prejudice Plaintiff's renewed Motion for Exemption from the Employment Bar on March 30, 2016, once again stating that the claim of rehabilitation was premature. [CR Docket 82 at Pg ID 593]. Plaintiff appealed this decision to the Sixth Circuit on April 6, 2016. The Sixth ...


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