Gilvin, Ron v. Fire, Edward

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2001 Decided August 21, 2001

No. 00-7221

Ron Gilvin,
Appellant

v.

Edward Fire, Individually and as President of the
International Union of Electronic, Electrical Salaried,
Machine and Furniture Workers, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 99-cv-00530)

James F. Wallington argued the cause and filed the brief
for appellant.

Thomas M. Kennedy argued the cause for appellee. With
him on the brief was Peter Mitchell.

 Before: Henderson, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Ron Gilvin challenges his suspen-
sion and subsequent removal from the office of Secretary-
Treasurer of the International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL-CIO (IUE).
Gilvin asserts that the IUE, the IUE's President, and mem-
bers of the IUE's Executive Board violated federal labor law
and the IUE's constitution by suspending and removing him
in retaliation for protected speech and participation in a civil
trial. The district court dismissed part of Gilvin's lawsuit for
failing to state a claim, and granted summary judgment
against the remainder. We affirm in part and reverse in
part.

I

In November 1996, the IUE elected defendant Edward
Fire to the office of IUE President and elected plaintiff
Gilvin, Fire's political opponent, to be Secretary-Treasurer.
Both took their posts in January 1997 and were scheduled to
serve until December 31, 2000. On June 10, 1998, however,
the IUE Executive Board suspended Gilvin with pay. And
on August 26, 1998, the IUE's Trustees certified petitions
from two local unions seeking Gilvin's recall from office.
Gilvin lost a recall election on October 9, 1998, and was
removed as IUE Secretary-Treasurer.

Gilvin and Fire came into conflict soon after their 1996
election.1 In April 1997, Fire, backed by the Executive
Board, proposed transferring money from the IUE's Strike
Insurance Fund to its General Fund in order to reduce the
union's operating deficit. Gilvin opposed the proposal on the

__________
1 Because Gilvin's complaint was dismissed pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 56, the following description of
the facts draws all reasonable inferences in Gilvin's favor. See
infra Part III.

ground that it would weaken the Strike Fund and conceal the
union's failure to maintain a balanced budget. Gilvin ex-
pressed that opposition in letters to IUE local union presi-
dents and members, which characterized the proposal as a
"raid" on the Strike Fund, J.A. 1161, "a reckless change in the
financial structure of our Union," id. at 1163, and an effort to
grant Fire "dictatorial powers," id. at 1161. The IUE mem-
bership eventually adopted Fire's proposal. Thereafter, at an
Executive Board meeting on April 21, 1997, defendant Board
members made clear, in no uncertain terms, their displeasure
with Gilvin's efforts to oppose the Strike Fund plan.2

In May 1997, Gilvin began questioning increases in IUE
subsidies to IUE District Councils, as well as raises and
travel reimbursements approved by President Fire. Gilvin
charged that checks for those expenditures were issued with-
out his knowledge or approval. Article VII(C) of the IUE
constitution requires that "[a]ll checks of the Union must bear
the signatures of the President and the Secretary-

__________
2 See, e.g., J.A. 1375 ("[T]here are letters all over my District
really taking on what we did. I think that's g*dd**ned outra-
geous...."); id. at 1376 ("I hope to h*ll we don't have to see any
more of these disruptive letters in this International Union."); id. at
1378 ("I was appalled at that letter. I think it does nothing but
disrupt this International Union and the goals that we're trying to
achieve."); id. ("I also don't appreciate the officers ... out there
with the staff at the locals, undercutting this Board. That's been
happening in my district and I want it to stop."); id. at 1339 ("The
way this thing came down I think was bull c**p.... I resented the
h*ll out of that [letter] being at the district meeting."); id. at 1410
(describing Gilvin's letter as "garbage trash--that goes out to our
membership and to the leadership ... to denounce our President,"
and charging that Gilvin "took the credibility of the Executive
Board and knifed us"); id. at 1417-18 ("If anybody has any
problems with the leadership of this union ... these things have to
be dealt with behind closed doors. It should not be made public.").

Treasurer," and Gilvin had previously authorized the union's
comptroller to utilize a facsimile of his signature on IUE
checks. In August 1997, Gilvin wrote Fire and the comptrol-
ler revoking that authorization, "[i]n order to assure that no
funds of the International are disbursed for other than legiti-
mate purposes and with adequate substantiation." Id. at
1175. Gilvin explained his decision in a letter to the Execu-
tive Board and local unions dated September 10, 1997. Call-
ing the raises and travel expenditures a "raid on the Interna-
tional treasury," id. at 1183, he wrote:

I will not sign any check until I can verify that all
International expenditures are properly authorized and
substantiated.... I consider it my Constitutional re-
sponsibility as Secretary-Treasurer to provide a vigilant,
meaningful financial oversight on behalf of the IUE
membership, and I won't be bullied into doing less!

Id. at 1184 (emphasis omitted).

Fire responded with his own letter to the members of the
IUE. He wrote that Gilvin "always has had the ability and
always was expected to see to it that expenditures are made
under proper accounting procedures and have proper docu-
mentation," acknowledging that "[t]hose are the basic respon-
sibilities of the Secretary-Treasurer." But Fire declared that
"if he refuses to sign a check, there will be a serious constitu-
tional problem." Id. at 1189. Fire also wrote that for "Gilvin
to continue to characterize the [Strike Fund] plan as a 'raid'
on the ... Fund is an insult to our members and our
leadership." Id. at 1191. On October 15, 1997, Gilvin reau-
thorized the use of his facsimile signature, with the under-
standing that the IUE's comptroller would provide him with a
daily register of all checks and with supplemental documenta-
tion upon request. Id. at 1199. On November 13, 1997, the
Executive Board held a meeting at which several members

again sharply decried Gilvin's letters, and suggested that
something had to be done to stop him from issuing more.3

In December 1997, Gilvin wrote an anonymous letter to the
"Hoekstra Committee," a Congressional subcommittee
chaired by Representative Peter Hoekstra that was investi-
gating allegations of union corruption. Gilvin's letter alleged
that three IUE checks, totaling $163,135.98, had been issued
without an identifiable union purpose. Complaint WW 48, 49.
Gilvin did not inform anyone at the IUE that he had sent the
letter. J.A. 449-62.

On January 5, 1998, Gilvin was present at the United
States District Court for the Southern District of Ohio,
during the trial of a lawsuit brought against the IUE by
Gilvin's home local, IUE Local 801. Fire and other IUE
officials saw Gilvin in the courtroom. Several weeks later,
Fire sent Gilvin a memorandum asking him to explain why
his weekly attendance record reported that he was away from
the office that day on "Union Business." Id. at 1208. In a
one-sentence written reply, Gilvin responded that he had
been subpoenaed. Id. at 1210. At the next Executive Board
meeting, held on March 10, 1998, Gilvin was attacked by
defendant Board members who interpreted his appearance in
the courthouse as reflecting a willingness to testify against
the IUE.4

__________
3 See, e.g., J.A. 1448 ("[T]he whole problem lies there with the
rumor mongers, with the letters going out ... that's the bone of
contention."); id. at 1449 ("[T]he man's got to be censured.... We
can't put up with this garbage any more."); id. at 1460-61 ("I'm not
going to take any more s**t, right in the area that I live, from him
and his constituents.... [I]f it doesn't stop, then I don't have a
problem starting a recall petition...."); id. at 1470 ("I think that
we should draw the line, and put an end to all this mud-
slinging....").

4 See, e.g., J.A. 1484-85 ("I would not testify against this
International Union even if I disagreed with its leadership or its

 On April 26, 1998, Gilvin sent a letter to an IUE member,
opposing a proposed division of Local 801 into two separate
locals. Gilvin attributed the proposal to Fire, and wrote that
the President "should keep his nose out of the local's politics."
Id. at 1221. He also declared that "President Fire has his
own problems" in the form of an "International financial
crisis," charging that the union was operating at a deficit, that
operating expenses were increasing, and that the Strike Fund
had suffered a "$6,459,127.56 drop in one year." Id. Two
days later, Gilvin demanded Fire's authorization to mail the
letter to other IUE members at IUE expense, and Fire
refused. On April 30, 1998, the six IUE District Presidents,
who also served on the IUE's Executive Board and are
defendants here, responded to Gilvin's April 26 letter with the
following joint statement:

1. Ron Gilvin is hereby CENSORED [sic] for his publi-
cation and dissemination of false and scurrilous
charges.

2. Ron Gilvin is directed to adhere to the IUE Constitu-
tion and to serve at the direction of the President.

3. Ron Gilvin is put on notice that if he continues these
scurrilous attacks the undersigned will support the
efforts now being considered by members outraged
by his actions to recall him from office.

4. Ron Gilvin['s] right to engage in legitimate debate
over the issues facing this union must be conducted

__________
Executive Board.... I guess I have a problem, Ron.... with you
showing up in the courtroom ... not to testify on our side, but on
the side of Local 801...."); id. at 1486 ("That bothered me ...
that the Secretary-Treasurer of this International Union showed up
to testify against this International Union, that bothered me."); id.
at 1500 ("[D]on't kid me that you were subpoenaed. You were
subpoenaed because they knew how you were going to testify.").

 in the future in a manner which sticks to the issues
and avoids baseless slander.

Id. at 1230.

The conflict between Gilvin and the defendants continued
to escalate in May of 1998. On May 20, Gilvin sent Fire a
memorandum, seeking his assistance in auditing the financial
records of the IUE's districts, particularly the "wage and
operating subsidies" paid to the districts by the International.
Id. at 1232. Fire refused to authorize an audit, telling Gilvin
that, under the IUE constitution, the Secretary-Treasurer
may perform a district audit only if the district "has been
delinquent for thirty days or more or ... when there is
reason to believe that [the district's] financial affairs ... are
being mishandled or a defalcation has occurred." Id. at 1234
(quoting IUE Const. Art. XIII(N)). Fire directed Gilvin to
provide, immediately and in writing, any information he pos-
sessed pertaining to any such misconduct. Id.

Gilvin again revoked permission for the use of his facsimile
signature on May 27, 1998, stating that he would personally
sign any check that was accompanied by "proper vouchers or
other backup" or that he could "verify through audits as
being constitutionally proper and legal." Id. at 1263. The
next day, Fire wrote Gilvin a memorandum stressing that the
Secretary-Treasurer was not authorized "to determine the
spending policies of the International Union," and further
suggesting that if Gilvin attempted to do so, he would cause
"a serious constitutional crisis." Id. at 250. On June 2, 1998,
Gilvin refused to sign subsidy checks to the six districts. In a
letter to the comptroller, Gilvin stated that he had sought to
verify by audit "the validity and purpose of these extraordi-
nary payments," but had "been refused my constitutional
authority to account for these expenditures." Id. at 1331.
"Until a resolution is reached," Gilvin said, "I do not intend to
process any form of supplements [i.e., subsidies] that I cannot
account for, and [that] I have reason to ... believe violates
our Constitution or has legal implications." Id.

 Fire convened the Executive Board to discuss Gilvin's
revocation of his facsimile signature and his refusal to sign
the subsidy checks. On June 9, 1998, the Board passed a
resolution declaring that the six district checks were properly
documented and legitimate union expenses, that Gilvin was
constitutionally required to sign the checks, that a committee
should investigate Gilvin's conduct, and that Gilvin should in
the interim be suspended with pay from the office of
Secretary-Treasurer. Id. at 351-52. On July 15, 1998, the
Board's appointed committee issued a report concluding that
Gilvin's suspension "was right, proper and fully justified," and
recommending that the IUE membership consider initiating
"the recall of Ron Gilvin from the office of International
Secretary Treasurer." Id. at 300-01.

Two local unions petitioned for Gilvin's recall by election.
Id. at 378-79. Those petitions were endorsed by 92 addition-
al locals comprising over 37% of the IUE's total membership,
id. at 380, thus readily satisfying the constitutional require-
ments for initiating a recall. See IUE Const. Art. X(A). On
October 9, 1998, the IUE's Trustees announced that more
than 75% of the locals, representing more than 75% of the
eligible union members, had voted in favor of the recall. J.A.
419. As that was more than sufficient to accomplish a recall,
see IUE Const. Art. X(A), the Trustees declared Gilvin
recalled from office effective the following day. J.A. 419.

II

Gilvin filed suit against the IUE, President Fire, and
individual members of the Executive Board, charging that the
defendants had violated s 101(a) of the Labor-Management
Reporting and Disclosure Act (LMRDA), part of the "Bill of
Rights of Members of Labor Organizations." 29 U.S.C.
s 411(a); see id. ss 411-15. Gilvin alleged that, in suspend-
ing him from office, the defendants had violated his rights: (i)
to free expression, under s 101(a)(2), because the suspension
was imposed in retaliation for his criticizing the defen-

dants;5 (ii) to appear as a witness in a judicial proceeding,
under s 101(a)(4), because it was imposed for responding to a
subpoena in the litigation involving Local 801;6 (iii) to commu-
nicate with legislators, under s 101(a)(4), because it was
imposed for writing to the Hoekstra Committee; and (iv) to
equal rights, under s 101(a)(1), because it was imposed for
criticizing defendants and appearing as a witness.7 Gilvin
also charged that, in removing him from office, the defen-
dants had violated his rights under: (v) all three LMRDA
__________
5 Subsection 101(a)(2) provides:

Every member of any labor organization shall have the right to
meet and assemble freely with other members; and to express
any views, argument, or opinions...: Provided, That nothing
herein shall be construed to impair the right of a labor organi-
zation to adopt and enforce reasonable rules as to the responsi-
bility of every member toward the organization as an institu-
tion and to his refraining from conduct that would interfere
with its performance of its legal or contractual obligations.
29 U.S.C. s 411(a)(2).

6 Subsection 101(a)(4) states:

No labor organization shall limit the right of any member
thereof to institute an action in any court, or in a proceeding
before any administrative agency, irrespective of whether or
not the labor organization or its officers are named as defen-
dants or respondents in such action or proceeding, or the right
of any member of a labor organization to appear as a witness in
any judicial, administrative, or legislative proceeding, or to
petition any legislature or to communicate with any legisla-
tor....
29 U.S.C. s 411(a)(4).

7 Subsection 101(a)(1) states:

Every member of a labor organization shall have equal rights
and privileges within such organization to nominate candidates,
to vote in elections or referendums of the labor organization, to
attend membership meetings, and to participate in the deliber-
ations and voting upon the business of such meetings, subject
to reasonable rules and regulations in such organization's con-
stitution and bylaws.
29 U.S.C. s 411(a)(1).

subsections cited above; and (vi) the recall provisions of
Article X(A) of the IUE constitution.8

On September 15, 1999, the district court dismissed two
categories of Gilvin's charges for failure to state a claim upon
which relief can be granted, pursuant to Federal Rule of Civil
Procedure 12(b)(6). Gilvin v. Fire (Gilvin I), No. 99-cv-530,
slip op. at 6, 9-10 (D.D.C. Sept. 15, 1999). The court dis-
missed Gilvin's LMRDA s 101(a)(1) claim because he had not
alleged the violation of any "equal right" enumerated in that
subsection: i.e., the right to nominate candidates, to vote in
elections, to attend membership meetings, or to participate in
such meetings. See 29 U.S.C. s 411(a)(1). And the court
dismissed Gilvin's claim under the IUE constitution because
he had failed to respond to defendants' contention that the
recall had been initiated and carried out in accord with the
requirements of Article X(A).

On July 21, 2000, the district court granted summary
judgment against Gilvin's remaining LMRDA claims pursuant
to Federal Rule of Civil Procedure 56. Gilvin v. Fire (Gilvin
II), No. 99-cv-530, slip op. at 22 (D.D.C. July 21, 2000). The
court rejected Gilvin's s 101(a)(2) claim, that defendants had
suspended him in retaliation for criticizing them, because it
found Gilvin's speech unprotected by the statute. Subsection
101(a)(2) protects only the rights of union members, the court

__________
8 The complaint further charged other violations of the IUE
constitution. Those charges were dismissed by the district court,
and Gilvin has not pursued them here. See Gilvin Br. at 14.

Gilvin's LMRDA claims were brought pursuant to LMRDA
s 102, 29 U.S.C. s 412, which provides: "Any person whose rights
secured by the provisions of this subchapter have been infringed by
any violation of this subchapter may bring a civil action in a district
court of the United States...." The claims for violation of the
IUE constitution were brought under s 301(a) of the Labor Man-
agement Relations Act, 29 U.S.C. s 185(a), which states: "Suits for
violation of contracts between ... labor organizations, may be
brought in any district court of the United States having jurisdic-
tion of the parties...." See Wooddell v. Int'l Bhd. of Elec.
Workers, Local 71, 502 U.S. 93, 98 (1991) (holding that s 301(a)
"extends to suits on union constitutions brought by union mem-
bers").

ruled, not of union officers. Moreover, the court found
Gilvin's criticism so harsh that "Gilvin could not effectively
represent the union as an officer while making such accusa-
tions against its other leaders." Id. at 17.

The district court also rejected Gilvin's s 101(a)(4) claim of
retaliatory suspension for his January 1998 appearance in the
Local 801 litigation. The court found that there was "a
genuine issue of fact as to whether Defendants suspended
Gilvin in retaliation for his participation in that litigation."
Id. at 19. But the court held that Gilvin was unprotected by
s 101(a)(4) for two reasons: because, as with s 101(a)(2), the
statute does not protect union officers, and because Gilvin had
not actually testified in the Local 801 litigation. Id. at 20.
The court further dismissed Gilvin's s 101(a)(4) claim that he
was suspended in retaliation for writing to the Hoekstra
Committee, on the ground that Gilvin had failed to submit
"evidence that Defendants knew of his anonymous letter."
Id. at 18.

Finally, the district court rejected all claims concerning
Gilvin's removal by recall election because that election had
been conducted fully in accordance with the provisions of the
IUE constitution. Since Gilvin had produced no evidence
that the election's results or procedures were tainted, the
district court found that the LMRDA provided no basis for
setting aside the union members' democratic choice. Id. at
10-13.

III

We review both of the district court's orders de novo. See
Wilson v. Pena, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996) ("Our
standard of review under Federal Rules 12(b)(6) and 56 is the
same: de novo."). In considering the claims dismissed pursu-
ant to Rule 12(b)(6), we must treat the complaint's factual
allegations as true, must grant plaintiff the benefit of all
reasonable inferences from the facts alleged, and may uphold
the dismissal only if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); see id. at 1113. As for
the claims denied on summary judgment pursuant to Rule 56,

we may affirm only if "there is no genuine issue as to any
material fact [and] the moving party is entitled to judgment
as a matter of law." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). A dispute
about a material fact is "genuine" if a reasonable jury,
drawing all reasonable inferences in Gilvin's favor, could
return a verdict against the defendants. See Flemmings v.
Howard Univ., 198 F.3d 857, 860 (D.C. Cir. 1999); Anderson
v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999).

Applying these standards, we conclude that the district
court erred in granting summary judgment against two of
Gilvin's claims: that he was suspended for exercising his
LMRDA s 101(a)(2) right to free expression, and for exercis-
ing his s 101(a)(4) right to appear as a witness in a judicial
proceeding. We consider these claims in Parts IV and V
below. We conclude that the court properly dismissed the
remainder of Gilvin's claims, which we discuss in Part VI.

IV

We begin with Gilvin's allegation that he was suspended for
his criticism of Fire and the Executive Board, in violation of
LMRDA s 101(a)(2). That subsection states that "[e]very
member of any labor organization shall have the right to meet
and assemble freely with other members; and to express any
views, argument, or opinions." 29 U.S.C. s 411(a)(2). It also
includes a proviso that "nothing herein shall be construed to
impair the right of a labor organization to adopt and enforce
reasonable rules as to the responsibility of every member
toward the organization as an institution and to his refraining
from conduct that would interfere with its performance of its
legal or contractual obligations." Id. Defendants contend
that Gilvin was not suspended because of his criticism, but
because his refusal to sign or authorize his facsimile for use
on IUE checks constituted insubordination and derogation of
his official duties in a manner that falls within the proviso.
Summary judgment was warranted, defendants contend, be-

cause there was "no genuine issue of material fact" as to
whether Gilvin's criticism caused his suspension.

Defendants may be correct that Gilvin could have been
suspended for an unreasonable refusal to inscribe his signa-
ture on IUE checks.9 But the district court did not find that
there was no genuine issue regarding the actual motivation
for the suspension. And we certainly cannot make such a
finding on the record before us, given the defendants' re-
peated attacks on Gilvin for sending critical letters, and their
declarations that something had to be done to stop him from
sending more. See supra notes 2, 3 and pp. 6-7.

Rather than rely on the absence of a genuine factual
dispute, the district court determined that Gilvin's criticism of
the other union leaders was unprotected by s 101(a)(2).
First, the court held that s 101(a)(2) protects the free speech
rights only of union members, not of union officers. That
holding was an error of law. In Finnegan v. Leu, 456 U.S.
431 (1982), the Supreme Court held that s 101(a)(2) does not
protect appointed union officials from discharge on account of
the expression of their opinions. But seven years later, in
Sheet Metal Workers' International Association v. Lynn, 488
U.S. 347 (1989), the Court announced a different rule for
elected officials like Gilvin. In Lynn, an elected business
agent was removed from his post in retaliation for statements
he made at a union meeting in opposition to a dues increase
sought by the union trustee. Although removal of an ap-
pointed agent under such circumstances would not have been
protected under Finnegan, the Lynn Court held that "[t]he
consequences of the removal of an elected official are much

__________
9 The qualifier "unreasonable" is necessary because Gilvin could
not lawfully have signed a check that, for example, violated his
fiduciary obligations as Secretary-Treasurer. See 29 U.S.C.
s 501(a) (setting forth the fiduciary obligations of the officers of a
labor organization with respect to the organization's "money and
property"); IUE Const. Art. VII(B) (requiring the Secretary-
Treasurer to "account for all monies" of the union); see also 29
U.S.C. s 501(c) (imposing a fine or imprisonment for, inter alia,
embezzlement of union funds).

different." Id. at 355. "To begin with," the Court said,
"when an elected official like Lynn is removed from his post,
the union members are denied the representative of their
choice." Id. "Furthermore," the Court continued, "the po-
tential chilling effect on [LMRDA] free speech rights is more
pronounced when elected officials are discharged." Id. In
such cases, "[n]ot only is the fired official likely to be chilled
in the exercise of his own free speech rights, but so are the
members who voted for him." Id. Accordingly, the Court
held that "Lynn's retaliatory removal stated a cause of action
under s 102." Id.

Defendants seek to distinguish Lynn on the ground that
there the officer was removed from office, while this aspect of
Gilvin's claim relates only to his suspension.10 The distinc-
tion, however, is insufficient to persuade us that Lynn is
inapplicable here. The term of Gilvin's suspension was indefi-
nite, and it immediately relieved him of all official authority.
That action implicates the same concerns relied upon by the
Court in Lynn: Union members who voted for Gilvin were
denied the representative of their choice for the length of the
suspension, and both Gilvin and those who observed what
happened to him were likely to be "chilled in the exercise" of
their free speech rights. Lynn, 488 U.S. at 355. We are
unable to perceive a difference in the degree of "chill" gener-
ated by suspension as compared to removal sufficient to
justify a difference in outcomes.

Second, the district court held that "Gilvin's letters to union
members criticizing Defendants were not protected under
101(a)(2) because they were inconsistent with [his] duties
[and] preclude[d] his effective representation of the union."
Gilvin II, slip op. at 16 (internal quotation omitted). The
court was particularly concerned that Gilvin's letters were
"replete with serious accusations against the IUE's President
and Board." Id. at 17. But the fact that the letters were
critical of the union leadership can hardly suffice to remove

__________
10 Gilvin's claims relating to his removal are discussed in Part
VI.B below.

the protections of s 101(a)(2), a point defendants rightly
conceded at oral argument. Indeed, as the Supreme Court
noted in Lynn, such criticism was "precisely" what Congress
intended to protect in passing the LMRDA.11

Nor does it matter that the tone of Gilvin's letters was
harsh, and even intemperate. Subsection 101(a)(2)'s protec-
tion of a union member's right "to express any views, argu-
ments, or opinions" is not limited to discourse clothed in the
polite language of diplomats in striped pants.12 Gilvin's oppo-
nents certainly did not think that they were so constrained, as
they gave quite as good as they got. See supra notes 2-4.

Finally, there was nothing about the substance of Gilvin's
criticism that was inconsistent with his duties as a union
official. To the contrary, Gilvin's letters challenged the finan-
cial policy of the President and Executive Board, a topic well
within the rights of any union member and certainly of the
Secretary-Treasurer, whose responsibilities include "per-
form[ing] all such duties as may be deemed necessary to a
proper and effective administration of the financial affairs of
the Union." IUE Const. Art. VII(B); see id. (requiring
Secretary-Treasurer to "account for all monies" of the union).
Indeed, at oral argument defendants candidly agreed that no
duty of Gilvin's office prevented him from expressing his
views on such proposals as the transfer of money from the
Strike Fund.13

__________
11 See Lynn, 488 U.S. at 355 ("[Congress] recognized that democ-
racy would be assured only if union members are free to discuss
union policies and criticize the leadership without fear of reprisal."
(quoting United Steelworkers v. Sadlowski, 457 U.S. 102, 112
(1982))).

12 See Petramale v. Local No. 17 of Laborers Int'l Union, 736
F.2d 13, 17 (2d Cir. 1984) (noting that "union meetings, especially
those involving ... disputes between rival factions within the union,
... can be fraught with tension and even sparked with vitriol and
calumny," and holding that "leeway for the expression of strongly
held views in emotional terms ... must be afforded union mem-
bers") (internal quotation omitted).

13 Cf. Lynn, 488 U.S. at 355 n.6 ("There is no suggestion that
Lynn's speech in opposition to the dues increase contravened any

In sum, because Gilvin's criticism of the union leadership
was protected speech under s 101(a)(2), and because on this
record a reasonable jury could find that Gilvin was suspended
because of that criticism, the grant of summary judgment to
defendants was erroneous.14

V

Gilvin also claims that he was suspended, in violation of
LMRDA s 101(a)(4), for appearing in federal court in re-
sponse to a subpoena in a lawsuit brought against the Inter-
national by IUE Local 801. Subsection 101(a)(4) provides
that "[n]o labor organization shall limit the right of any
member ... to appear as a witness in any judicial ...
proceeding." 29 U.S.C. s 411(a)(4). Defendants dispute that
Gilvin was suspended for his courthouse appearance, arguing
that it "occurred months before his suspension, which was
based upon an entirely different sequence of events." Fire
Br. at 37. Accordingly, defendants insist that the district
court's grant of summary judgment on this claim was appro-
priate.

The problem with this argument, as with defendant's paral-
lel argument under s 101(a)(2), is that the district court did
not hold that there was no genuine issue of material fact as to

__________
obligation properly imposed upon him as an elected business agent
of the Local.").

14 Gilvin also sought, and was denied, recovery under s 101(a)(2)
on the theory that defendants were involved in a "scheme to
suppress dissent." This theory, adopted by the Second Circuit,
provides a cause of action for appointed union officers who are
unprotected under Finnegan and Lynn. See Maddalone v. Local
17, United Bhd. of Carpenters, 152 F.3d 178, 184 (2d Cir. 1998). At
least with respect to elected officers, however, the Supreme Court
expressly rejected the contention "that a union official must estab-
lish that his firing was part of a systematic effort to stifle dissent
within the union in order to state a claim." Lynn, 488 U.S. at 355
n.7. Thus, Gilvin's free speech claim depends only upon whether he
can show retaliation against protected expression. He need not
demonstrate any broader "scheme."

whether Gilvin was suspended for his participation in the
Local 801 litigation. To the contrary, the court, referring to
statements made by defendants at the IUE Executive Board
meeting of March 10, 1998, held: "These statements do
create a genuine issue of fact as to whether Defendants
suspended Gilvin in retaliation for his participation in that
litigation." Gilvin II, slip op. at 19 (emphasis added); see
also supra note 4.

Instead of relying on an absence of a genuine factual
dispute, the district court once again concluded that the
LMRDA offered Gilvin no protection. First, as with
s 101(a)(2)'s protection of free speech, the court held that
s 101(a)(4)'s protection of the right to appear as a witness
applies only to union members and not to officers: As an
officer, the court held, "Gilvin was not protected by section
101(a)(4) against retaliation for his involvement with the Local
801 lawsuit." Id. at 20. For the reasons described in the
previous section, this conclusion is erroneous as applied to an
elected officer like Gilvin. Although Lynn itself involved
s 101(a)(2), there is no reason to suspect that its principles
are not equally applicable to s 101(a)(4). The right at stake
here--the right to appear as a witness in a judicial proceed-
ing--is just as likely as the right of free speech to be chilled
by punishment for its exercise.15

Second, the district court held that because Gilvin "never
did actually testify at the January 1998 proceeding," he "did
not engage in activity that would be protected by section
101(a)(4) even if undertaken by a union member." Gilvin II,
slip op. at 20. But if s 101(a)(4)'s command--that a union

__________
15 See International Org. of Masters v. Prevas, 175 F.3d 341, 344
(4th Cir. 1999) (holding that the LMRDA bars any conduct that
either limits or is "likely to chill the exercise of a member's right to
[sue]" (quoting NLRB v. Industrial Union of Marine & Shipbuild-
ing Workers, 391 U.S. 418, 425 (1968))).

may not "limit" a member's right to "appear" as a witness--
were restricted to those members who actually testify, it
would be a flimsy protection indeed. Witnesses often are
called to the courthouse, yet end up not testifying. The
reasons vary widely, and are usually wholly beyond the
witnesses' control: ranging from judicial rulings, to stipula-
tions on the subject of their testimony, to counsel's last-
minute strategic decisions. Since potential witnesses can
rarely be guaranteed that they will testify, a rule like that
adopted by the district court would chill their willingness to
appear. Indeed, carried to its logical extreme, restricting the
protection of s 101(a)(4) to those who actually testify would
permit an antagonist to impose all kinds of impediments to a
witness' appearance at the courthouse--as long as the impedi-
ments succeed in keeping the witness off the stand, or are put
in place before the testimony actually begins. There is no
justification for such a narrow reading of such an important
element of a union member's Bill of Rights.16

Accordingly, because Gilvin's appearance at the federal
courthouse in connection with the Local 801 litigation was
protected conduct under LMRDA s 101(a)(2), and because
there is a genuine issue of material fact as to whether Gilvin
was suspended because of that appearance, the grant of
summary judgment to defendants on this claim must be
reversed.

VI

In the following sections, we consider Gilvin's remaining
claims. These do not fare as well, substantially for the
reasons stated by the district court.

__________
16 See Phillips v. Int'l Ass'n of Bridge, Structural & Ornamental
Iron Workers, Local 118, 556 F.2d 939, 942 (9th Cir. 1977) (declar-
ing that "[i]f a union member's right [under s 101(a)(4)] is to have
any meaning, courts must be ever vigilant in protecting that right
against indirect and subtle devices as well as against direct and
obvious limitations").

 A

Gilvin contends that his suspension violated LMRDA
s 101(a) on two grounds in addition to those discussed in
Parts IV and V. First, Gilvin claims that his suspension for
criticizing defendants and for appearing as a witness violated
not only LMRDA ss 101(a)(2) and (4), but also s 101(a)(1)--
which guarantees every member of a labor organization:

equal rights and privileges within such organization to
nominate candidates, to vote in elections or referendums
of the labor organization, to attend membership meet-
ings, and to participate in the deliberations and voting
upon the business of such meetings....

29 U.S.C. s 411(a)(1). But Gilvin does not dispute that he did
vote, did attend membership meetings, and did participate in
deliberations. Accordingly, this claim was properly dismissed
because, as the district court held, Gilvin has failed to articu-
late how he was deprived of any of the specific rights
protected by s 101(a)(1). See Carothers v. Presser, 818 F.2d
926, 931 (D.C. Cir. 1987) (holding that to prevail on an equal
rights claim under s 101(a)(1), a plaintiff must demonstrate
that defendants "deprived the plaintiff[ ] of a right specifical-
ly enumerated in the statute, such as the right to an equal
vote").

Second, Gilvin claims that he was suspended in violation of
LMRDA s 101(a)(4) for writing a letter to the Hoekstra
Committee alleging that IUE checks had been issued without
an identifiable union purpose. Retaliation for such an act
would have violated Gilvin's right "to communicate with any
legislator." 29 U.S.C. s 411(a)(4). But Gilvin acknowledges
that he sent the letter anonymously, and, as the district court
found, he "has not offered any evidence that Defendants knew
of his anonymous letter to the Hoekstra Committee, thus
leaving no foundation for his argument that they suspended
him in retaliation for it." Gilvin II, slip op. at 18.

 B

Gilvin further contends that his ultimate removal from
office violated the rights guaranteed by LMRDA s 101(a) and
the recall provisions of the IUE constitution. Neither the
statute nor the theory of the Lynn case, however, protects a
union official--elected or otherwise--from removal by a recall
election. The Lynn Court noted that, in adopting "Title I of
the LMRDA .... Congress sought to further the basic
objective of the LMRDA: ensuring that unions [are] demo-
cratically governed and responsive to the will of their mem-
berships." Lynn, 488 U.S. at 352. The Court concluded that
protecting elected officials from removal by other officials in
retaliation for their speech was necessary to ensure demo-
cratic responsiveness. Id. at 355. But that rationale has no
application to removal by a recall election. Removing an
officer by a vote of the union's membership, because his
opinions no longer represent the will of that membership,
represents the expression of democracy, not its subversion.

Moreover, we agree with the district court's conclusion that
"Gilvin provide[d] no evidence to support his claim that the
recall vote was tainted" or that the IUE constitution was
violated in any way. Gilvin II, slip op. at 13. Two local
unions initiated the petition for recall, with the endorsement
of 92 other locals comprising over 37% of the IUE's total
membership. J.A. 380. This was substantially more than
was constitutionally required for initiation of a recall. See
IUE Const. Art. X(A) (requring initiation by one local, with
the endorsement of at least 25 others comprising 25% of the
IUE membership). More than 270 locals, representing more
than 75% of both the locals and the eligible IUE membership,
voted in favor of the recall, J.A. 419--far in excess of the
number required to remove Gilvin from office. See IUE
Const. Art. X(A) ("The President or Secretary-Treasurer
shall be declared recalled if locals having a majority of the
members of the Union in good standing have voted for his or
her recall."). Although Gilvin had every right to disagree
with the policies of the IUE's President and Executive Board,

it is apparent that the union's membership did not share that
disagreement, and Gilvin had no right to remain in office once
the members resoundingly voted him out.

VII

For the reasons stated in Parts IV and V, we reverse the
district court's grant of summary judgment against Gilvin on
his claims that defendants violated his rights to free speech
and to appear as a witness, by suspending him from office in
retaliation for the exercise of those rights. See LMRDA
ss 101(a)(2), (4), 29 U.S.C. ss 411(a)(2), (4).17 In making this
determination, we have, as required by the applicable stan-
dard of review, examined the evidence in the light most
favorable to Gilvin, and we express no views regarding the
merits or ultimate outcome of the case. See Borgo v. Goldin,
204 F.3d 251, 254 (D.C. Cir. 2000). For the reasons stated in
Part VI, the remaining portions of the district court's judg-
ment, including the court's grant of summary judgment
against Gilvin on claims arising out of the recall election, are
affirmed.

Affirmed in Part and Reversed in Part.

__________
17 The district court granted summary judgment in favor of
defendants in their individual capacities solely on the ground "that
Gilvin's public speech and anticipated testimony in judicial proceed-
ings were not protected from retaliation under the LMRDA."
Gilvin II, slip op. at 22; see id. at 21 (noting that "an individual
union officer may be individually liable under Title I [of the
LMRDA] if he or she 'aids, abets, instigates or directs a wrongful
use of union power to deprive a member of his rights under s 101' "
(quoting Rosario v. Amalgamated Ladies' Garment Cutters' Union,
Local 10, 605 F.2d 1228, 1246 (2d Cir. 1979))). Since we hold that
Gilvin's speech and courthouse appearance were protected, we
necessarily reverse the grant of summary judgment in favor of the
individual defendants as well.