The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, SENIOR DISTRICT JUDGE:
Section 402(b) of the Labor-Management Reporting and Disclosure Act ("LMRDA" or "Act"), 29 U.S.C. § 482(b) (1982), gives the Secretary of Labor authority to file civil actions challenging union elections already conducted "if he finds probable cause to believe that a violation of [the Act] has occurred and has not been remedied." Section 403 makes that authority exclusive. 29 U.S.C. § 483.
Plaintiff Thomas Doyle protests the Secretary's decision not to challenge and seek to overturn a June 1984 election held by Local 6 of the International Brotherhood of Electrical Workers ("Local 6"). Doyle seeks relief from this Court directing the Secretary either to commence a civil action on his behalf against the union or to provide a more satisfactory Statement of Reasons for his decision not to do so. Before the Court are the parties' cross-motions for summary judgment.
After considering the legal memoranda and the supporting documentation submitted by counsel, and for the reasons set out below, the Court determines that the plaintiff is entitled to summary judgment.
In May of 1984, plaintiff Doyle was nominated as a candidate for the Executive Board of Local 6. However, he was ruled ineligible as a candidate because of a bylaw provision that a nominee must attend at least one-half of the regular meetings held in the year preceding the nominations.
It was determined from an attendance register that Doyle had attended only two meetings in the preceding year and thus was ineligible. Alleging that he had actually attended more than the required number of meetings, even though he had not signed the register, Doyle first pursued internal union remedies. He then filed a complaint with the Secretary of Labor.
After an investigation, the Secretary declined to file suit on Doyle's behalf, announcing his decision in a Statement of Reasons issued in December 1984. Doyle's counsel then requested the Secretary to reconsider his decision. On February 15, 1985, Richard Hunsucker, Director, Office of Elections, Trusteeships and International Union Audits of the Department of Labor ("DOL"), responded to and denied the request on behalf of the Secretary ("Hunsucker letter"). This lawsuit, filed on February 20, 1985, was a response to the Secretary's decision.
I. The Standard of Review
Unlike many agency decisions relating to enforcement or prosecutorial action, the Secretary of Labor's decision whether to file suit under section 402 of the LMRDA is not immune from judicial review. See Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 1657, 84 L. Ed. 2d 714 (1985). In Dunlop v. Bachowski, 421 U.S. 560, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975), the Supreme Court held that the Secretary's disposition of a union member's complaint should be reviewed under the "arbitrary and capricious" standard of section 706(2)(A) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). The majority found, however, that while the intent of the LMRDA was not to preclude altogether judicial review of the Secretary's action, a court cannot simply substitute its judgment for the Secretary's. The Secretary is required only to provide a concise "statement of reasons" supporting his decision not to file suit such that a reviewing court can determine if there is a rational and defensible basis for the decision. "The court's review should be confined to examination of the 'reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." 421 U.S. at 572-73. Accordingly, a trial-type hearing on challenges to the factual bases of the Secretary's decision is not permitted. But the statement of reasons must be sufficient "to enable a court to determine whether the Secretary's decision was reached for an impermissible reason or no reason at all." Id. at 573; Accord Donovan v. Local 6, Washington Teachers' Union, 241 U.S. App. D.C. 274, 747 F.2d 711, 715 (D.C. Cir. 1984).
Before turning to the merits of Doyle's challenge under this standard, it is appropriate to consider what might be termed an evidentiary dispute. The Secretary argues that the standard of review outlined in Bachowski, characterized by our Circuit Court as "much narrower than applies under [§ 706(2)(A) of the APA]," Usery v. Local Union No. 639, International Brotherhood of Teamsters, 177 U.S. App. D.C. 222, 543 F.2d 369, 378 (D.C. Cir. 1976), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573, 97 S. Ct. 1159 (1977), precludes the trial court from considering the findings and recommendations of the Secretary's investigators.
This interpretation stretches the cautionary language of Bachowski too far.
A similar situation is presented here. The investigative findings of the DOL were available to and utilized by the Secretary when he decided against pursuing Doyle's complaint. It is proper for this Court to consider them in determining the sufficiency of the reasons advanced in support of the decision. They will help determine whether the statement of reasons is internally ...