United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR
IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT 
J. Tarnow Senior United States District Judge
filed a pro se complaint on June 10, 2016 
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 , on October 12, 2016. Plaintiff filed a
response  on November 28, 2016 and Defendant replied 
on December 9, 2016.
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  is GRANTED.
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.
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].
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].
sent Plaintiff a letter on October 22, 2015 from Defendant
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
…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.
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,
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].
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].
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].
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 ...