Mary L. Corner v. SETH D. HARRIS, Acting Secretary of Labor

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 15, 2013*
Decided March 25, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12-2565
MARY L. CORNER,
Plaintiff-Appellant,
v.
SETH D. HARRIS, Acting Secretary of Labor,
Defendant-Appellee.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 11 C 8652
Harry D. Leinenweber, Judge.
Order
Mary Corner ran unsuccessfully for president of the American Postal Workers Un-
ion (Local 7140) in 2011. She believes that Jacqueline Engelhart, the incumbent who pre-
vailed at the ballot box, was ineligible because she had not paid dues consistently for
the preceding year and therefore had not maintained the good standing required by
federal law, 29 U.S.C. §481(e), and the union’s constitution.
After the local and national unions rejected her protests, Corner complained to the
Secretary of Labor. After an investigation, the Secretary concluded that Engelhart and
two other officers were eligible to run and that their election was valid. The Secretary
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 12-2565 Page 2
declined to take legal action against the union. Corner then sued the Secretary, lost in
the district court, 2012 U.S. Dist. LEXIS 75742 (N.D. Ill. June 1, 2012), and appealed.
Section 402 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §482,
requires the Secretary to investigate reports of election irregularities and decide wheth-
er to contest the result. Dunlop v. Bachowski, 421 U.S. 560 (1975), holds that a decision not
to sue is reviewable. According to Bachowski, the Secretary must file suit if there is prob-
able cause to believe that a violation of federal law probably affected the outcome of the
election—and that, when deciding not to sue, the Secretary must provide the complain-
ant with reasons for concluding that a probable violation or a probable effect has not
been established. The Secretary concluded that the three candidates in question had
paid their dues and were eligible to stand for office. (In a supplementary explanation on
remand from the district court, the Secretary observed that one candidate’s brief failure
to pay dues was the union’s fault rather than the candidate’s, so that the omission,
which had been cured, did not affect the candidate’s eligibility.)
Corner’s brief states that she does not want the court to order the Secretary to file
suit to annul the election. This creates a potential question of standing, for if Corner
does not seek the relief that Bachowski says a court can provide, what is this appeal
about? Corner contends that she wants, not a suit by the Secretary, but copies of the
three candidates’ cancelled checks. The Secretary has declined to provide them, or evi-
dence that the three candidates paid their dues in some other way. A dispute about the
availability of information is a case or controversy within the judiciary’s power, just as a
suit under the Freedom of Information Act, 5 U.S.C. §552, seeking information in an
agency’s files is justiciable. Corner’s problem, however, is that nothing in the text of
§402 requires the Secretary to provide her with the information she seeks.
Section 402 requires the Secretary to investigate complaints and, when warranted,
ask a district court to set aside the results of the election. Bachowski created a statement-
of-reasons requirement to assist the court when the Secretary’s decision is challenged.
If, as here, the complainant does not challenge the Secretary’s non-litigation decision, it
is not apparent that a statement of reasons would serve any function. At all events,
Bachowski was clear that the Secretary must give reasons, 421 U.S. at 571, not open the
agency’s files to disclose whatever evidence the complainant desires to see. A prosecu-
tor (the Secretary occupies a prosecutorial role) needs to be able to promise confidential-
ity in order to gather information—especially when there is a deadline that may prevent
resort to compulsory process. (Section 402(b) gives the Secretary only 60 days to inves-
tigate and decide whether to file suit.)
Even federal statutes that, unlike §402, create enforceable rights of access to infor-
mation, have exceptions for material gathered in the course of pre-litigation investiga-
tions. For example, exemption 7 to the Freedom of Information Act, 5 U.S.C. §552(b)(7),
blocks disclosure of information “compiled for law enforcement purposes” when dis-
closure would interfere with enforcement or invade personal privacy—and the sort of

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No. 12-2565 Page 3
information that Corner wants could do both. She has not cited any case holding that
§402 or the doctrine of Bachowski can be used to get access to the contents of the Secre-
tary’s investigatory files. Bachowski requires a statement of reasons, nothing more, and
we will not create additional legal obligations that cannot be found in either the statute
or the Supreme Court’s decision.
Corner’s other arguments have been considered but do not require discussion.
AFFIRMED

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