Alexander J. Bastani v. American Federation of Government Employees, Afl-Cio

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2022 Decided June 13, 2023
No. 20-7032
ALEXANDER J. B ASTANI, ET AL.,
APPELLANTS
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00063)
Eleanor Jenkins argued the cause and filed the briefs for
appellant.
Denise Duarte Alves argued the cause for appellee. With
her on the brief was Rushab Sanghvi.
Before: R AO and C HILDS , Circuit Judges, and R OGERS ,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
R OGERS .

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R OGERS , Senior Circuit Judge: Three former officers of a
local affiliate of the American Federation of Government
Employees, AFL-CIO (“AFGE”) filed this lawsuit alleging
that AFGE unlawfully retaliated against them for speech
protected under Section 101(a)(2) of the Labor-Management
Reporting and Disclosure Act of 1959 (“LMRDA”).
Specifically, the former officers challenge AFGE’s imposition
of a trusteeship on the local union and their removal from
office. The district court granted summary judgment to AFGE
as to two officers and, after a jury trial, entered judgment on
the merits for AFGE as to the third officer. For the following
reasons, this court affirms.
I.
The Labor-Management Reporting and Disclosure Act of
1959 provides a “bill of rights” for members of labor
organizations to “ensure . . . democratic[] govern[ance], and
responsive[ness] to the will of the union membership.” Sheet
Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 354 (1989)
(quoting Finnegan v. Leu, 456 U.S. 431, 441 (1982)).
Members may file a private cause of action for violations of
their rights, 29 U.S.C. § 412, which include the freedom of
speech and assembly, LMRDA § 101(a)(2), 29 U.S.C.
§ 411(a)(2).
The American Federation of Government Employees,
AFL-CIO is a national labor organization composed of affiliate
locals primarily representing federal government employees.
Alexander Bastani, Eleanor Lauderdale, and Kevin McCarron
are employees of the U.S. Department of Labor and members
of Local 12 of AFGE. From 2006 to 2017, Bastani was Local
12’s President, Lauderdale was Local 12’s Executive Vice
President, and McCarron was Local 12’s Treasurer. Compl.
¶¶ 4–6.

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On October 4, 2017, Local 12 was placed in trusteeship
following reports of financial misconduct by the Local. An
expedited procedure was initiated by J. David Cox, President
of AFGE National, upon the recommendation of Vice
President Eric Bunn and the vote of the AFGE National
Executive Council. National Representative Nathaniel Nelson
was appointed as trustee. In a memorandum to union members,
Cox stated that the proposed basis for imposing the trusteeship
was the failure of the Local Executive Board to abide by certain
votes of the Local membership, including to establish an audit
committee, and their expenditure of funds without proper
approval. Pursuant to the AFGE National Constitution, a
trusteeship hearing was held on December 1, 2017, in which
the three-member panel ratified the trusteeship decision and
removed the three Local 12 officers from their positions.
The Local 12 officers sought preliminary and permanent
injunctions against imposition of the trusteeship, and
declaratory and monetary relief against AFGE for violating
their statutory rights of free speech. The district court granted
partial summary judgment in favor of AFGE. Bastani v. AFGE,
No. 1:18-cv-00063, 2019 WL 5727961, at *8 (D.D.C. Nov. 5,
2019). Lauderdale could not establish a prima facie case that
AFGE had violated Section 101(a)(2) because she failed to
present evidence showing that her removal from office was the
result of protected speech and therefore constituted retaliation.
Id. at *5. Similarly, McCarron did not present evidence of a
causal connection between his protected speech and his
removal from office. Id. at *5–6. Bastani’s Section 101(a)(2)
claim did not suffer from the same deficiencies and proceeded
to trial, where a jury found that he had failed to show by a
preponderance of the evidence that his protected speech or
conduct was the cause of the adverse action against him. The
district court entered judgment on his speech claim for AFGE.
The Local 12 officers appeal the judgments.

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The district court dismissed the officers’ separate claims
for violation of the AFGE National Constitution under Section
301 of the Labor Management Relations Act, 29 U.S.C. § 185,
and for breach of contract under District of Columbia law.
Neither of these rulings is challenged on appeal.
II.
This court reviews the grant of summary judgment de
novo. See Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am., Inc. v. Nat’l Right to Work Legal
Def. & Educ. Found., Inc., 781 F.2d 928, 933 (D.C. Cir. 1986).
The district court’s findings of fact are reviewed for clear error.
FED. R. CIV. P. 52(a)(6); see also United States v. AT&T, Inc., 916
F.3d 1029, 1033 (D.C. Cir. 2019). Evidentiary rulings on
preserved challenges are reviewed for abuse of discretion.
Bowie v. Maddox, 642 F.3d 1122, 1134 (D.C. Cir. 2011).
Where an objection is first raised on appeal, review is for plain
error. See Salazar ex rel. Salazar v. District of Columbia, 602
F.3d 431, 437 (D.C. Cir. 2010) (citing United States v. Olano,
507 U.S. 725, 732 (1993)).
A.
In appealing the district court’s judgments for AFGE, the
Local 12 officers present procedural and evidentiary
challenges. Two officers take issue with the district court’s
view of the record in granting summary judgment for AFGE,
Appellants’ Br. 8–11, specifically that the court failed to
examine factual assertions “in-depth,” id. at 9.
To prevail on a motion for summary judgment, the movant
must show that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. C IV. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). To withstand summary judgment, the non-
moving party must identify “specific facts” in the record
“showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 256.
Section 101(a)(2) of LMRDA provides:
Every member of any labor right organization shall
have the right to . . . express any views, arguments, or
opinions; and to express at meetings of the labor
organization his views . . . upon any business properly
before the meeting, subject to the organization’s
established and reasonable rules pertaining to the
conduct of meetings.
29 U.S.C. § 411(a)(2). To establish a prima facie free speech
claim under Section 101(a)(2), then, a plaintiff must show that
(1) she engaged in speech protected by LMRDA; (2) she was
subject to an adverse action; and (3) that action is causally
linked to the protected speech. If the non-movant, after
adequate time for discovery and upon motion, “fails to make a
sufficient showing to establish an element essential to that
party’s case, and on which that party will bear the burden of
proof at trial,” a court must enter summary judgment against it.
Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C. Cir.
1988) (quoting Celotex, 477 U.S. at 322). Neither Lauderdale
nor McCarron made the requisite showing, and consequently
summary judgment was appropriate on their free speech
claims.
1.
Lauderdale’s challenge fails to show a genuine dispute of
material fact as to the first element of her free speech claim

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under Section 101(a)(2). She has not identified any specific
instance of protected speech that could have formed the basis
for retaliation against her. The reply to AFGE’s motion for
summary judgment fails even to reiterate the bare allegations
of the complaint: that Bastani was openly critical of several
aspects of Cox’s leadership as AFGE National President, and
that Lauderdale was “generally,” similarly critical. Compl.
¶ 28. No response is proffered to AFGE’s argument that
Lauderdale neither identified critical comments she made of
AFGE national leadership nor showed that the national union
officers Cox or Bunn had knowledge of such criticism, whereas
AFGE submitted sworn testimony from Cox that he had no
such knowledge. See Defs.’ Mot. Summ. J. 21–22 (citing Tr.
77 (Apr. 16, 2018)).
Lauderdale acknowledged in responding to interrogatories
that “many of [the] statements were made by . . . Bastani, not
by [her],” and baldly asserted that she and Bastani were “well
known . . . to be aligned with each other on matters of AFGE
internal politics and AFGE’s relationship with Local 12.”
Lauderdale Interrogs. 3, ECF No. 34-13. That is not the
standard for a protected speech claim under Section 101(a)(2).
Nor on appeal does Lauderdale identify any specific instance
of her protected speech.
Further, Lauderdale acknowledges that her responses to
interrogatories were “admittedly broad,” Appellants’ Br. 8, and
that she was “relying on the assumption that she would be
allowed to expound on her responses during the pre-trial
hearing on the motion for summary judgment,” id. at 8–9. She
observes that the district court allowed only Bastani and
McCarron to testify, not her, but makes no specific proffer of
what she would have testified. Id. at 9. Lauderdale
distinguishes Helmer v. Briody, 759 F. Supp. 170 (S.D.N.Y.
1991), cited by the district court, on the basis that unlike here,

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the trial judge was familiar with the plaintiff’s underlying
assertions because he had examined them in depth in prior
litigation. Appellants’ Br. 9. But out-of-circuit precedent is
neither binding on this court nor sufficient to eliminate the non-
movant’s burden in opposing summary judgment. The
question before this court is whether the record shows that
Lauderdale carried that burden. Because she has failed to do
so, no reasonable jury could have found in her favor.
2.
The record shows that McCarron engaged in protected
speech on at least one occasion, when he participated in 2016
in an AFGE employee picket line with Bastani. McCarron
Dep. 10, ECF No. 34-6. But McCarron points to no evidence
that this speech was the reason for his dismissal as Local 12’s
Treasurer. Absent evidence that Cox or Bunn was aware of his
protected speech or acted in response to it, McCarron’s claim
fails on the third element because the allegation of retaliation
lacks “any factual basis in the record.” Dist. Intown Props.
Ltd. v. District of Columbia, 198 F.3d 874, 878 (D.C. Cir.
1999). Consequently, as with Lauderdale, entry of summary
judgment on McCarron’s statutory speech claim was
appropriate.
B.
The third officer, Bastani, challenges evidentiary rulings
by the district court in allowing and omitting certain testimony
at trial. Appellants’ Br. 12–15. Principally he contends that the
district court improperly found AFGE national president Cox
unavailable pursuant to Federal Rule of Evidence 804(a)(4) and
allowed “actors” to testify in his stead, depriving the jury of
the critical opportunity to observe the AFGE witnesses’

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demeanor and violating Bastani’s due process rights.
Appellants’ Br. 5, 12–15.
Federal Rule of Evidence 804 provides in relevant part:
(a) Criteria for Being Unavailable. A declarant is
considered to be unavailable as a witness if the
declarant:
. . .
(4) cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity,
physical illness, or mental illness; or
(5) is absent from the trial or hearing and the
statement’s proponent has not been able, by
process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of
a hearsay exception under Rule 804(b)(1)
or (6).
. . .
But this subdivision (a) does not apply if the
statement’s proponent procured or wrongfully caused
the declarant’s unavailability as a witness in order to
prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by
the rule against hearsay if the declarant is unavailable
as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing,
or lawful deposition, whether given during
the current proceeding or a different one;
and

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(B) is now offered against a party who had —
or, in a civil case, whose predecessor in
interest had — an opportunity and similar
motive to develop it by direct, cross-, or
redirect examination.
The Rule contemplates that a trial judge is well situated to
determine unavailability, given the “unique opportunity” the
judge is afforded “to evaluate the credibility of witnesses and
to weigh the evidence.” Inwood Lab’ys, Inc. v. Ives Lab’ys,
Inc., 456 U.S. 844, 855 (1982). The Advisory Committee notes
indicate that the Rule is sensitive to the preference for live
testimony, recognizing that the “opportunity to observe
demeanor is what in a large measure confers depth and
meaning upon oath and cross-examination.” F ED. R. EVID.
804(b)(1). When a witness is unavailable to testify at trial, the
Rule permits the admission of former testimony only if the
party against whom the testimony is offered had an opportunity
to develop it. Id. Where, as here, an unavailable witness has
provided a sworn deposition in the same proceeding, the
hearsay exceptions provide that such earlier testimony may be
admitted. See id.; Tr. 24–25 (Mar. 11, 2020); see also FED. R.
C IV. P. 32(a)(4).
The district court found pursuant to Rule 804(a)(4) that Cox
was unavailable to appear at the trial in person due to physical
illness. Cox’s attorneys presented a note signed by Cox’s
treating physician stating that Cox, who was to undergo a
shoulder surgery in North Carolina, was not cleared to travel to
the District of Columbia to testify during the pendency of the
trial. Tr. 5–6 (Mar. 9, 2020). The district court determined
that Cox was unavailable to testify in person and allowed his
prior sworn testimony to be read in by a substitute AFGE
representative. Tr. 24–25 (Mar. 11, 2020).

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At trial, Bastani posed no objection to allowing Cox’s
earlier testimony to be read to the jury in his absence. Id.; Tr.
10–13 (Mar. 9, 2020). On appeal, his principal criticism of the
district court’s evidentiary ruling is that Cox’s “clear game
plan” was to avoid “fac[ing] the jury.” Reply Br. 6. He
suggests that AFGE sought to benefit from Cox’s absence and
“tr[ied] to divorce” Cox from their organization, as evidenced
by the fact that Cox had left his AFGE position and relocated to
North Carolina shortly before trial. Id.; Tr. 6–7 (Mar. 9,
2020). Despite efforts to procure Cox’s attendance and
testimony by subpoena, Bastani was unable to do so. Tr. 8–9
(Mar. 9, 2020).
The district court acknowledged that those circumstances
might be relevant to a determination of witness unavailability
under Federal Rule of Evidence 804(a)(5). Tr. 10 (Mar. 9,
2020). But because Cox had presented a medical rationale for
his absence, the district court advised that he would rule Cox
unavailable pursuant to Rule 804(a)(4), not Rule 804(a)(5).
Bastani’s counsel did not then object, although he had earlier
objected to Cox’s “last minute” notice of the medical
procedure. Id. at 8. On appeal, Bastani does not maintain that
AFGE “procured or wrongfully caused the declarant’s
unavailability as a witness in order to prevent the declarant
from attending or testifying.” FED. R. EVID. 804(a). Neither
does he challenge the legitimacy or sufficiency of the
documentation of Cox’s unavailability on which the district
court relied.
To preserve a claim of error on appeal, a party typically
must raise the issue before the trial court. Salazar, 602 F.3d at
436; District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084
(D.C. Cir. 1984). Were this court to find that Bastani forfeited
objections to the Rule 804(a)(4) ruling, he would be required
to demonstrate plain error affecting a substantial right and he

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has not done so. For instance, at no point does he maintain that
the district court’s error is “clear under current law,” Olano,
507 U.S. at 734, or show beyond bare assertion that the
evidentiary ruling affected the outcome of the proceedings or
impinged upon his “substantial rights,” id. at 734–36. Absent
such a showing, the district court’s ruling would not warrant an
exercise of remedial discretion by this court. Salazar, 602 F.3d
at 434 (citing Flynn v. Comm’r, 269 F.3d 1064, 1069 (D.C. Cir.
2001)).
Even were this court to conclude that the Rule 804(a)(4)
objection was not forfeited at trial, Bastani failed to include the
challenge in his opening brief before this court, and so the
argument in his reply brief comes too late. Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008); see United
States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497
(D.C. Cir. 2004). Even assuming he preserved the issue on
appeal, Bastani’s argument fails to show an abuse of discretion
by the district court. See Bowie, 642 F.3d at 1134. He does not
maintain, for example, that the district court’s reliance on the
doctor’s note submitted by Cox was “clearly unreasonable,
arbitrary, or fanciful.” Id. at 1136 (quoting Charter Oil Co. v.
Am. Emps.’ Ins. Co., 69 F.3d 1160, 1171 (D.C. Cir. 1995)).
Instead, he objects only that “[t]he trial judge failed to
recognize” that AFGE “took no steps to obtain [Cox’s] visual
testimony by any electronic means.” Reply Br. 7. But Federal
Rule of Evidence 804 does not make this a requirement.
Absent a showing of error in the district court’s ruling pursuant
to Rule 804(a)(4) that Cox was unavailable due to an
uncontested physical infirmity, there was no abuse of
discretion.
Bastani has forfeited additional arguments by failing to
raise them in the district court, Salazar, 602 F.3d at 436,
namely that AFGE failed to provide timely notice of its witness

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list and that the district court erred by not demanding the
appearance of additional witnesses Nate Nelson and an AFGE
auditor, Appellants’ Br. 12, 14–15. On appeal, his arguments
are insufficiently elaborated and forfeited on that ground as
well. Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005).
Accordingly, the court affirms the judgments for AFGE as
to each former Local 12 officer’s Section 101(a)(2) claim.

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