author: CRAVEN, Circuit Judge: WIDENER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Paul N. HANKISH, and James L. Matthews, Appellants.
    No. 73-1926.
    United States Court of Appeals, Fourth Circuit.
    Argued March 7, 1974.
    Decided July 17, 1974.
    Widener, Circuit Judge, concurred in part and dissented in part and filed an opinion.

      Thomas A. Livingston, Pittsburgh, Pa. (Court-appointed counsel) (Dennis J. Clark, Pittsburgh, Pa., on brief), for appellants.
    Wayne A. Rich, Jr., Asst. U. S. Atty. (John A. Field, III, U. S. Atty., and Robert B. King, Asst. U. S. Atty., on brief), for appellee.
    Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

This is an appeal by Paul Hankish and James Matthews from convictions of crimes relating to a stolen interstate shipment of beer. Of the several questions presented, the most important are venue and the prejudicial effect of a newspaper article that appeared during trial.

According to the testimony most favorable to the prosecution, John Bruno and Jackie Longfellow stole a tractor-trailer rig loaded with 1,456 cases of Stroh’s beer. The shipment was in transit from Detroit to a distributing company in Huntington, West Virginia. The next day defendant Hankish agreed to buy the beer from Bruno for $1.50 a case and asked Bruno to bring it from Huntington to Wheeling, West Virginia. Longfellow drove the truck rig to Wheeling, where he was met by Bruno and Matthews. Following their directions, Longfellow crossed the line into Ohio but the truck broke down on a steep hill. The beer was unloaded into rented trucks and taken back to Wheeling. Even so, Hankish paid Bruno $2,000 for the beer.

Almost four years later, after Bruno and Longfellow had been convicted of federal crimes relating to the stolen shipment, a grand jury in the Southern District of West Virginia returned a three-count indictment against Hankish and Matthews. Count One charged a conspiracy to receive goods that had been stolen from an interstate shipment, to -transport in interstate commerce stolen merchandise worth over $5,000, and to transport in interstate commerce a stolen motor vehicle. Count Two charged Hankish and Matthews with the substantive offense of transporting the beer in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. § 659. Count Three charged Hankish with the substantive offense of transporting the stolen trailer in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. § 2314. At trial the jury convicted defendants on all counts.

I

Defendants contend that the Southern District of West Virginia was improper venue for the substantive crimes charged in Counts Two and Three. We have no difficulty sustaining venue on Count Three, which charged a violation of 18 U.S.C. § 2314. Venue under section 2314 is governed by the general provisions of 18 U.S.C. § 3237. United States v. DeKunchak, 467 F.2d 432 (2d Cir. 1972). Section 3237 (a) provides:

Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves. (emphasis added).

The government’s evidence supported the conclusion that the stolen trailer was transported, at the direction of Hankish, from the Southern District of West Virginia, through the Northern District of West Virginia, into the Southern District of Ohio. Thus venue would lie in any one of the three districts.

Count Two presents a harder problem. It was framed under 18 U.S.C. § 659, which contains a special venue provision applicable to the offense of transporting in interstate commerce any goods that have been stolen from an interstate shipment:

[T]he offense shall be deemed to have been committed in any district into which such [stolen goods] shall have been removed or into which the same shall have been brought by such offender.

On its face, this language clearly authorizes venue in the Northern District of West Virginia and in Ohio but does not apparently embrace the Southern District of West Virginia where the illegal transportation originated. The issue we face is whether this special venue provision comes within the “except as otherwise expressly provided by enactment of Congress” clause of section 3237. For the reasons that follow, we have concluded that section 659 was not intended to be an express exception and that section 3237 authorizes venue in the Southern District of West Virginia.

To begin with, the venue clause in section 659 is not couched in restrictive language. The Reviser’s Notes to section 3237 mention only one statute — 18 U.S.C. § 1073 — as an instance “where Congress desires to restrict the prosecution of offenses to particular districts.” Section 1073 is emphatically restrictive :

Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed, or in which the person was held in custody or confinement or in which an avoidance of service of process or a contempt ... is alleged to have been committed .... (emphasis added).

In contrast to the use of “only” in section 1073, section 659 employs the word “any.”

The history of section 659 suggests that the venue clause was written with the intent of enlarging venue rather than restricting it. The first version of section 659 was enacted in 1913. Act of Feb. 13, 1913, ch. 50, 37 Stat. 670. The Supreme Court had recently approved the broad venue provision in the Elkins Act, ch. 708, 32 Stat. 847 (1903). There Congress had prohibited rebates, concessions, and discrimination in interstate railroad freight rates, and had provided:

Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted ....

In Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681 (1908), the Supreme Court sustained this venue statute-against constitutional challenge, holding that transportation is a “continuing offense” which may be punished “at the beginning, at the end, or in the middle of the journey,” 209 U. S. at 74, 28 S.Ct. at 432.

Despite the breadth of the judicial authorization, between 1908 and 1913 the lower federal courts seemed reluctant to construe federal crimes as continuing offenses in the absence of special statutory language. For example, in Ex Parte Lair, 177 F. 789 (D.Kan.1910), rev’d on other grounds, 195 F. 47 (8th Cir. 1912), cert. denied, 229 U.S. 609, 33 S.Ct. 464, 57 L.Ed. 1350 (1913), and United States v. Capella, 169 F. 890 (N.D.Cal.1909), the courts had construed statutes prohibiting unlawful importation of aliens to create offenses that were complete at the port of entry. In Capella the court had explicitly held that the general venue statute did not apply and that there was no venue in the district where the defendant was harboring an illegally imported alien. To make its intentions clear, Congress amended the immigration laws of 1910, specifically authorizing venue “in any district to or into which said alien is brought in pursuance of said importation by the person or persons accused.” Act of Mar. 26, 1910, ch. 128, § 3, 36 Stat. 265 (now 8 U.S.C. § 1328). Enacted the same year, the Mann Act contained a similar clause to ensure that it would be construed to create a continuing offense. Act of June 25, 1910, ch. 395, § 5, 36 Stat. 826 (now 18 U.S.C. § 2421).

In this historical context we think it clear that the venue clause in section 659 was written with the intent of creating a continuing offense and thus multiplying the possible places of trial. The statute permitted venue in any district into which the stolen goods were removed or brought by the offender. It did not exclude other possibilities. Section 103 of the 1911 judicial code, which supplemented special venue provisions like that in section 659, authorized venue in the district where an offense began and the district where it was completed. Together, the two statutes would have allowed prosecutions for transporting stolen goods between states to be brought in the district where the transportation began, the district where it ended, or in any district along the route. With this background it would be irrational to read section 659 restrie-tively.

The only circumstance that detracts from this analysis is the fact that the special venue clause was carried into the 1948 Code. Because section 3237 was written to make special venue clauses unnecessary, most such clauses were eliminated. The survival of the clause in section 659 might be taken to indicate that Congress meant to make section 3237 inapplicable. The absence of legislative history on this venue clause, and the presence of other nonrestrictive venue clauses in the 1948 Code, lead us to believe that its retention was inadvertent. For example, section 659 itself contains another venue clause that pertains to the offenses of stealing, receiving, and possessing goods from an interstate shipment. It clearly offers multiple choices of venue:

The offense shall be deemed to have been committed not only in the district where the violation first occurred, but also in any district in which the defendant may have taken or been in possession of the said money, baggage, goods, or chattels.

This clause has been read, since 1948, as an expression of intent to make the crime a continuing offense. United States v. Cores, 356 U.S. 405, 411 n. 1, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958) (Douglas, J., dissenting).

Moreover, in 1948 Congress amended section 659 to prohibit transportation of stolen interstate shipments in interstate or foreign commerce. If the venue provision is read to restrict venue to districts into which the goods are taken, there would be no venue for the crime of transporting stolen goods from Minnesota into Canada. Such a construction would nullify the clear intent of the amendment to cover transportation of stolen goods in foreign commerce — except for relatively few importation offenses. We do not think Congress intended such a result. Cf. United States v. Freeman, 239 U.S. 117, 36 S.Ct. 32, 60 L.Ed. 172 (1915).

Finally, we think the simple virtues of consistency support our conclusion that the venue clause was not meant to be restrictive. Section 2314, which prohibits interestate transportation of stolen property worth over $5,000, overlaps with this portion of section 659 whenever the goods stolen from interstate commerce are valued at $5,000 or more. In this ease, the beer was worth $4,624, and the trailer was worth about $6,000. Consequently, the interstate transportation of the trailer violated both section 659 and section 2314; that of the beer violated only section 659. There is no reason in policy or logic for fixing venue in different districts, depending only on the value of the goods or the choice of the prosecutor. Because the offenses are virtually identical, it would be anomalous to attribute to.Congress the intent of simultaneously restricting venue under section 659 and enlarging it under section 2314.

Whatever Congress’ motive for retaining the special venue clause in section 659, we think it did not intend to create an express exception to section 3237. Consequently we hold that either section 659 or section 3237 may provide venue for an offense charged under the transportation clause of section 659. In this case, the prosecution was properly brought in the Southern District of West Virginia, the district in which the illegal transportation originated.

We find no merit in appellants’ contention that the Constitution allows venue only in the Southern District of Ohio. Their argument that no crime was committed until the beer crossed the state line is effectively answered in Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L. Ed. 681 (1908). The crime, as defined by Congress, is not crossing a state line with stolen goods, but carrying or transporting stolen goods. Cf. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); Newton v. United States, 162 F.2d 795, 796 (4th Cir. 1947), cert. denied, 333 U.S. 848, 68 S.Ct. 650, 92 L.Ed. 1130 (1948). That it must be in interstate commerce is simply a jurisdictional peg without which the offense could not be tried in the federal courts but it is not, strictly speaking, an element of the criminal offense. The proposed revision of the federal criminal code makes this relationship explicit. Final Report of the National Commission on Reform of Federal Criminal Laws, Proposed New Federal Criminal Code § 201.

II

On the second day of trial an article appeared in a newspaper in Charleston, where the trial was being held. In addition to fairly summarizing Jackie Longfellow’s testimony from the first day, which could scarcely be prejudicial, the article described Hankish as a “Wheeling rackets figure” and reported:

The theft was one of many instances stemming from a multistate theft ring that operated during the late 1960s.
At the time the theft ring was broken up in 1969 by FBI agents, Hankish was described as having directed operations despite the loss of both legs five years earlier when his car was blown up in gangland fashion.

Defendants’ Exhibit No. 2. Immediately after the noon recess, defense counsel asked the trial judge to interrogate the jurors individually to determine whether any of them had read the newspaper article or discussed it with other jurors. The district judge declined to do so.

Appellants contend that the court’s refusal to poll the jury was error. We agree and are compelled to order a new trial because of the possibility that the jury’s verdit may have been influenced by the prejudicial newspaper article. The article speaks for itself. To put into the jury box an impression that Hankish was a racketeer and director of a multistate theft ring, and the implication that Matthews was a participant, is highly prejudicial.

The American Bar Association’s Standards Relating to Fair Trial and Free Press include a recommendation that supports appellants’ argument. Section 3.5(f) provides:

If it is determined that material disseminated during the trial raises serious questions of possible prejudice, the court may on its own motion or shall on the motion of either party question each juroi’, out of the presence of the others, about his exposure to that material. . . . [A] juror who has seen or heard reports of potentially prejudicial material shall be excused if the material in question would furnish grounds for a mistrial if referred to in the trial itself.

We believe this recommendation has merit but goes too far. As to procedure we prefer the practice of the Seventh Circuit:

Thus, the procedure required by this Circuit where prejudicial publicity is brought to the court’s attention during a trial is that the court must ascertain if any jurors who had been exposed to such publicity had read or heard the same. Such jurors who respond affirmatively must then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity. However, if no juror indicates, upon inquiry made to the jury collectively, that he has read or heard any of the publicity in question, the judge is not required to proceed further, (emphasis added).

Margoles v. United States, 407 F.2d 727, 735 (7th Cir.), cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84 (1969). If any of the jurors have been exposed, the questioning procedure will open the way for appropriate corrective measures —cautionary instructions, excusing individual jurors when alternates are available, or a mistrial if nothing else will cure the prejudice.

As to remedy, we reject the ABA cure as both extreme and inflexible. That there may be ground for mistrial does not, we think, inevitably command that jurors be excused with resultant mistrial. What to do about the problem should remain in the sounda discretion of the district judge, and he should exhaust other possibilities before aborting a trial.

Here we cannot explore other curative devices because of the district judge’s failure to lay open the extent of the infection. It is possible that none of the jurors had seen the article. Had it appeared that some or all had read it, it is also possible that colloquy with the court might have demonstrated that such jurors understood their duty to wholly disregard the prejudicial information and were mentally and emotionally capable of heeding the court’s instruction to do so. But this is mere speculation. We agree with the Seventh Circuit that when highly prejudicial information may have been exposed to the jury, the court must ascertain the extent and effect of the infection, and thereafter, in its sound discretion, take appropriate measures to assure a fair trial. Margoles v. United States, 407 F.2d 727 (7th Cir. 1969); United States v. Accardo, 298 F.2d 133 (7th Cir. 1962). See also Mares v. United States, 383 F.2d 805 (10th Cir. 1967); Marson v. United States, 203 F.2d 904 (6th Cir. 1953).

We do not hold that every newspaper article appearing during trial requires such protective measures. Unless there is substantial reason to fear prejudice, the trial judge may decline to question the jurors. United States v. Wenzel, 311 F.2d 164, 170 (4th Cir. 1962); see Gordon v. United States, 438 F.2d 858 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971); United States v. Edwards, 366 F.2d 853, 873 (2d Cir. 1966), cert. denied, 386 U. S. 919, 87 S.Ct. 882, 17 L.Ed.2d 790 (1967).

III

John Sauvogeot, one of the men who had helped unload the disabled truck, w.as called as a prosecution witness. He gave his name, age, and residence, and admitted his conviction for concealing the stolen beer, but claimed to remember nothing about the incident. To refresh his memory the United States attorney showed Sauvogeot the statement he had given the FBI in 1968. Although acknowledging that the signature looked like his, Sauvogeot denied any memory of making it. The United States attorney then proceeded, with permission of the court, to examine him as a hostile witness, questioning him at length about details of his prior statement. The following exchange is typical:

Q Did you tell the agents in September, 1968, “I returned to the Rock Garden Bar and sometime later Jacovetty called and said he had received a phone call that the stuff had arrived” ?
A I don’t remember that.
Q Well, did that happen?
A I don’t remember whether it did or not.
Q Did you tell the agents that ?
A I don’t remember that either.

Tr. 267. Defense counsel waived cross-examination. The district judge instructed that wherever Sauvegeot said he did not remember, the jury could not consider the questions as evidence in the case.

Appellants contend it was error to let the government cross-examine its own witness to such an extent. The result of the prosecution’s tactic, they insist, was to give the jury inadmissible hearsay with nothing but an inevitably futile instruction to keep them from considering the signed statement.

This circuit follows the rule of Di Carlo v. United States, 6 F.2d 364 (2d Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925): “The latitude to be allowed in the examination of a witness, who has been called and proves recalcitrant, is wholly within the discretion of the trial judge.” Id. at 368. Harman v. United States, 199 F.2d 34 (4th Cir. 1952); Walker v. United States, 104 F.2d 465 (4th Cir. 1939). It is settled in this circuit that the trial judge may allow questioning based on prior statements, whether inconsistent, impeaching, or for the purpose of authenticating past recorded recollection.

Observing Sauvogeot’s demean- or, the district judge was convinced that he was “evading answering questions that he could answer truthfully.” His belief was reasonable and under such circumstances it was reasonable to allow the prosecutor to go over the prior statement question by question in the presence of the jury.

IV

As to appellants’ other assignments of error, we offer the following brief comments for guidance upon retrial.

We think the record contains sufficient evidence to support the verdict. The judge’s charge on the elements of conspiracy was sufficiently related to the specific acts charged in the indictment. The charge of aiding and abetting was authorized by United States v. Duke, 409 F.2d 669 (4th Cir. 1969), cert. denied, 397 U.S. 1062, 90 S. Ct. 1497, 25 L.Ed.2d 683 (1970). Hankish’s contention that he could rest his own case and then be entitled to testify for Matthews with the assurance that his testimony could not be considered against him is wholly without merit.

Since there must be a new trial, we need not discuss the failure of the district court to reveal the contents of the presentence report. But see United States v. Johnson, 495 F.2d 377 (4th Cir. 1974); Baker v. United States, 388 F.2d 931 (4th Cir. 1968); Fed.R.Crim. P. 32(c)(3), as amended, 42 U.S.L.W. 4557 (1974).

We have some doubts about the admission of Bruno’s testimony that he had made “four or five” other deals with Hankish on stolen property. It is not clear on this record that the rationale of United States v. Baldivid, 465 F.2d 1277 (4th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 519, 34 L.Ed.2d 499 (1972), and United States v. Mastrototaro, 455 F.2d 802 (4th Cir.), cert. denied, 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 666 (1972), applies.

Reversed and remanded for a new trial.

WIDENER, Circuit Judge

(concurring and dissenting):

While I concur with the majority to a considerable extent, I am respectfully unable to agree that the venue provisions of 18 U.S.C. § 659, as applicable to the offense of carrying or transporting such stolen goods in interstate commerce, are not to be read literally, or that the prosecution’s cross-examination of witness Sauvogeot, by use of a prior statement which he could not remember making, was proper.

Since, as the majority points out, Count Two was an indictment under the “separate offense” provision of § 659, I think it should have been tried under the venue provisions of the very statute which created the crime. The venue provisions of the statute creating the crime are clear, the words used being “shall be deemed to have been committed.” I am further of opinion that this is an express exception to 18 U.S.C. § 3237. I am unable to see how Congress may create an exception unless to act as it has here.

I am of opinion the district court erred in allowing, the iding of the statement of the witness Sauvogeot to him in the presence of the jury, and then instructing the jury to disregard the questions. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

I share the doubts of the majority as to the admissibility of the testimony of Bruno concerning other crimes of ’the accused, and would go further. I think the evidence inadmissible under Lovely v. United States, 169 F.2d 386 (4th Cir. 1948).

      . While Longfellow was engaged in transferring the stolen beer into the rented trucks an Ohio state patrolman stopped to offer assistance. No one can fault Longfellow for giving an affirmative reply when the officer asked whether the beer was hot.

      . This portion of the indictment referred not to the White tractor that had been stolen along with the beer-laden trailer, but to a stolen Mack tractor that Longfellow had used for the trip to Wheeling.

      . The only way of reading this language to produce venue in the district from which the goods were transported is to interx>ret “removed” as a reference to the asportation element of common-law larceny and to treat the preposition “into” as the equivalent of “in.” This construction would authorize venue in the district in which the goods were stolen, but we think it too strained. The government has urged us to read “removed” in relation to the legal transportation of these goods from Detroit to Huntington, making the Southern District of West Virginia a district “into which the goods were removed.” This construction is even more strained. The crime is transportation of stolen goods, and the theft did not occur in Detroit or on the way to West Virginia.

      . Section 1073 prohibits travel in interstate commerce to avoid i>rosecution or confinement, to avoid giving testimony in criminal trroceedings, to avoid service of i>rocess requiring attendance and testimony before a state investigatory agency, or to avoid con-temx>t proceedings for disobedience of such process.

      . Revised Statutes § 731 provided:
      When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined and punished in either district, in the same manner as if it had been actually and wholly committed therein.
      This statute was incorporated into the 1911 judicial code as section 103. Act of Mar. 3, 1911, ch. 231, § 42, 36 Stat. 1100.

      . Congress followed the practice of drafting special “continuing offense” venue clauses up until 1948, when the current criminal code was enacted with section 3237 as a general definition of continuing offenses. See National Motor Vehicle Theft Act, ch. 89, § 5, 41 Stat. 325 (1919) ; National Stolen Property Act, ch. 333, § 6, 48 Stat. 795 (1934) (codified in 1948 as 18 U.S.C. §§ 2312 and 2314, respectively). The Supreme Court attached significance to .the absence of special venue provisions. In United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (1944), the Court held that the Federal Denture Act (which prohibited use of the mails for sending dentures made by unlicensed persons) did not create a continuing offense. The Court said :
      It is significant that when Congress desires to give a choice of trial, it does so by specific venue provisions giving jurisdiction to prosecute in any criminal court of the United States through which a process of wrongdoing moves. . . . The absence of such a provision would in itself be significant.

        Id. at 276, 65 S.Ct. at 251.

      . Supra, note 4. See Mahaffey v. Hudspeth. 128 E.2d 940 (10th Cir.), cert. denied, 317 U.S. 666, 63 S.Ct. 76, 87 L.Ed. 535 (1942) (holding that § 103 supplemented special venue clause of Xational Stolen Property Act). Section 103 was carried over into the 1948 criminal code as the first clause of section 3237(a). It now reads:
      Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

      . The mystery is enhanced by the fact that a 1946 amendment to section 659 consolidated the venue clause relating to interstate transportation of stolen goods with the venue clause i)ertaining to the statute’s other offenses, providing:
      Prosecutions under this Act may be instituted in any district wherein the crime shall have been committed, or in which the offender may have taken, removed, brought or been in possession of said money, freight, express, baggage, goods, or property.
      Act of July 24, 1946, ch. 606, § 1(g), 60 Stat. 657. This venue clause had a brief existence. Without exidanation, the draftsmen of the 1948 code restored the language of the 1913 statute. If the occasion for change was an unfavorable judicial construction in the two-year interim, we have been unable to locate it.

      . See also 18 U.S.C. § 660.

      . See United States v. Persico, 425 F.2d 1375 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970).

      . See Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).

      . Although the rule in this circuit prohibiting the use of prior statements as substantive evidence remains unchanged, see United States v. Payne, 492 F.2d 449 (4th Cir. 1974), we note that the proposed rules of evidence currently being considered by Congress would remove prior inconsistent state-merits from the hearsay rule. Proposed. Federal Rules of Evidence 801(d)(1). In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court upheld the constitutionality of a similar state rule.


source: Caselaw Access Project

author: VAN DUSEN, Circuit Judge.

license: Public Domain

text:
    Walter BACHOWSKI, Appellant, v. Peter BRENNAN, Secretary of Labor, United States Department of Labor and United Steelworkers of America.
    No. 73-2029.
    United States Court of Appeals, Third Circuit.
    Argued May 14, 1974.
    Decided July 26, 1974.
    As Amended Sept. 3, 1974. Certiorari Granted Dec. 16, 1974.
    See 95 S.Ct. 654.

      Joseph L. Rauh, Jr., Rauh & Silard, Washington, D. C., Kenneth J. Yablon-ski, Washington, Pa., for appellant.
    Irving Jaffe, Acting Asst. Atty. Gen., Richard L. Thornburgh, U. S. Atty.; Stephen F. Eilperin, and Michael H. Stein, Attys., U. S. Dept, of Justice for the Secretary of Labor.
    Michael H. Gottesman, Bredhoff, Chishman, Gottesman & Cohen, Washington, D. C.; James D. English, Pittsburgh, Pa. ; Bernard Kleiman, Chicago, 111. (of counsel), for United Steelworkers of America.
    Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This case is an appeal from the district court’s dismissal for lack of subject matter jurisdiction of a suit to compel the Secretary of Labor (the “Secretary”) to bring an action to upset a union election under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (“L-MRDA”), 29 U.S. C. § 482(b). The issue presented is whether the Secretary’s decision not to bring such an action is subject to judicial review.

Plaintiff Walter Bachowski was a candidate for the office of District Director of District 20 of the United Steelworkers of America (the “USWA”) in an election held on February 13, 1973. He was defeated in that election b.y 907 votes out of approximately 24,000 votes cast. After exhausting his administrative remedies within the union, Bach-owski filed a complaint with the Department of Labor on June 21, 1973, alleging numerous election irregularities and violations of the union constitution and § 401 of.the L-MRDA, 29 U.S.C. § 481. Following an investigation of this complaint, the Secretary notified Bachowski and the union that he had decided not to bring an action to set aside the contested election. Bachowski thereupon brought the present lawsuit, naming as defendants the Secretary and the union. The complaint alleges, inter alia, that the Secretary’s investigation had substantiated the enumerated charges of election irregularities and that these irregularities affected the outcome of the election, but that the Secretary nevertheless refused to file a suit to set aside the election and failed even to inform Bachowski of his reasons for that refusal. The complaint concludes that these actions by the Secretary were arbitrary and capricious and requests that the district court direct the Secretary (1) to make available to the plaintiff all evidence he has obtained concerning his investigation of the contested election, (2) to reach an agreement with the union extending the period of time for filing suit to set aside that election, and (3) to file such suit.

I.

The only jurisdictional allegations contained in the complaint are § 402 of the L-MRDA and § 10(a) of the Administrative Procedure Act (the “APA”), 5 U.S.C. § 702. This court has repeatedly held that the APA does not confer jurisdiction upon federal courts over cases not otherwise within their competence, Richardson v. United States, 465 F.2d 844, 849 n. 2 (3d Cir. 1972) (en banc), cert. denied, 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 688 (1973); Zimmerman v. United States Government, 422 F.2d 326, 330-331 (3d Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2200, 26 L. Ed.2d 565 (1970); Operating Engineers Local 542 v. N.L.R.B., 328 F.2d 850, 854 (3d Cir. 1964). In addition, §. 402 of the L-MRDA confers federal jurisdiction only over actions brought by the Secretary to challenge the conduct of a union election, 29 U.S.C. § 482(b). However, although not specifically alleged in the complaint, we believe that 28 U.S.C. § 1337 provides a basis for federal jurisdiction in this case. The L-MRDA is an “Act of Congress regulating commerce” within the meaning of § 1337, see § 2(c) of the L-MRDA, 29 U.S.C. §. 401(c), and we believe that the instant case “arises under” that Act. Plaintiff’s claim is founded directly on the L-MRDA in that he asserts a right, supported by his construction of § 402, to have the Secretary file a suit on his behalf to set aside the contested election where the evidence shows that violations occurred which affected its outcome and where the Secretary has not come forward with any valid reason for refusing to do so. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Starin v. New York, 115 U. S. 248, 257, 6 S.Ct. 28, 29 L.Ed. 388 (1885). In a closely analogous case, we held that a suit by the business agent of a union local for injunctive relief and declaratory judgment that he was not barred by 29 U.S.C. § 504 from continuing in office was a case “arising under” the L-MRDA and that, therefore, there existed federal question jurisdiction pursuant to 28 U.S.C. § 1337. Serio v. Liss, 300 F.2d 386, 387-388 (3d Cir. 1961).

Our conclusion that the district court had federal question jurisdiction to entertain this case, however, does not resolve what is the underlying issue in this case: whether the Secretary’s decision not to bring suit to upset a union election under § 402 of the L-MRDA is subject to judicial review. Although the district court’s dismissal was technically for lack of subject matter jurisdiction, the record reveals that its action was based on a determination that such a decision by the Secretary is not reviewable. Thus, in the interest of judicial economy, it is necessary to reach this issue on this appeal and decide, in effect, if plaintiff Bachowski has stated a claim upon which relief can be granted.

II.

Plaintiff seems to be entitled to judicial review under the APA, 5 U.S.C. § 702, unless the Secretary’s decision not to bring suit to set aside the election is excluded, from the coverage of the APA by § 701(a), which provides:

“This chapter applies, according to the provisions thereof, except to the extent that—
“(1) statutes preclude judicial review ; or
“(2) agency action is committed to agency discretion by law.”

The burden of establishing such exclusion, however, is on the defendants. See Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed. 2d 681 (1967). As the Second Circuit has noted:

“Absent any'evidence to the contrary, Congress may rather be presumed to have intended that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion and safeguarding the rights of the individual.”

Cappadora v. Celebrezze, 356 F.2d 1, 6 (2d Cir. 1966). With this construction in mind, we turn to an examination of the purpose behind the enforcement procedure set forth in Title IV of the L-MRDA and the nature of the discretion exercised by the Secretary pursuant to that procedure in order to determine if the Secretary’s action in this case is reviewable.

—A—

Defendants contend that Congress’ intent to preclude judicial review and to commit to the Secretary’s absolute discretion the decision whether to bring suit can be inferred from two features of the L-MRDA: (1) the Secretary has exclusive authority to sue to set aside a union election, and (2) he must exercise that authority within 60 days of the filing of a complaint. After careful consideration of defendants’ arguments and the cases cited in support thereof, we do not find that there exists the necessary “clear and convincing evidence” of a legislative intent to restrict judicial review. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, supra, 387 U.S. at 141, 87 S.Ct. 1507.

Section 403 of the L-MRDA, 29 U.S.C. § 483, makes suit by the Secretary the “exclusive” post-election remedy for violations of Title IV of the Act, and the Supreme Court held in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), that union members are thereby prohibited from initiating a private suit to set aside an election. In Trbovich v. United Mine Workers, 404 U.S. 528, 532, 92 S.Ct. 630, 633, 30 L.Ed.2d 686 (1974), the Court described the purpose behind this procedure as follows:

“A review of the legislative history shows that Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election. Title IV as enacted serves these purposes by referring all complaints to the Secretary so that he can screen out frivolous ones, and by consolidating all meritorious complaints in a single proceeding, the Secretary’s suit in federal district court.”

In light of these purposes, the Court went on to hold in Trbovich that Congress did not intend to prevent a union from intervening in a suit brought by the Secretary, but that such intervening union was not entitled to raise additional grounds for setting aside the election, not contained in the Secretary’s complaint, since that would circumvent the Secretary’s screening function. Id. at 536-537, 92 S.Ct. 630.

Applying this reasoning to the instant case, we do not believe that a limited judicial review of the Secretary’s decision not to bring suit would in any way conflict with the purposes behind the Secretary’s screening function. Unions would not be subjected to unnecessary judicial interference with their elections, since under the “arbitrary and capricious" standard of review, a court would overturn the Secretary’s judgment only where there is compelling evidence that he has ignored a meritorious complaint. See 5 U.S.C. § 706 (2) (A) and Citizens To Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. 814. Furthermore, unions would remain protected from harassment or the burden of frivolous litigation, since the primary responsibility for defending suits such as this one would lie with the Secretary. Finally, in those rare instances when a challenge to the Secretary’s decision not to bring suit is successful, the subsequent litigation would still be centralized in a single proceeding. We therefore conclude that in making a suit by the Secretary the exclusive post-election remedy, Congress did not intend to make the Secretary’s decision not to bring suit unreviewable. On the contrary, we believe judicial review would further the general policy of Title IV of the L-MRDA by ensuring that the Secretary does not deny a remedy to those whose rights Congress sought to protect. As one court has observed :

“Indeed, the very exclusivity of the remedy serves to emphasize the necessity of some degree of Court supervision. To rule otherwise would enable the Secretary to frustrate the will of Congress; it would leave the Secretary’s conduct immune from scrutiny in matters where he is charged with significant responsibilities that must be carried out if the sweeping congressional directive to infuse basic principles of democratic free election into union organizations is to be implemented.”

DeVito v. Shultz, 300 F.Supp. 381, 382 (S.D.N.Y.1969).

Nor do we find sufficient evidence of a congressional intent to restrict judicial review in the requirement of § 402(b) that the Secretary file suit within 60 days after the filing of a complaint. We realize that, if permitted, a challenge to the Secretary’s decision not to bring suit may in some cases result in a court ordering the Secretary to file suit long after this time limit, thereby conflicting with Congress’ concern to assure that the cloud on the incumbents’ titles to office will be resolved as quickly as possible, Wirtz v. Bottle Blowers Ass’n, 389 U.S. 463, 468-469, n. 7, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). That concern, however, may be subordinated to the goal of providing an effective remedy for election irregularities. Thus, the Secretary has been allowed to file suit beyond the 60-day period not only in those cases where the union has waived the requirement to permit additional investigations or settlement negotiations, Hodgson v. Machinists Lodge 851, 454 F.2d 545 (7th Cir. 1971); Hodgson v. International Pressmen, 440 F.2d 1113 (6th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971), but also where the union has by its conduct impeded the Secretary’s investigations, Wirtz v. Carpenters Local 1622, 285 F.Supp. 455 (N.D.Cal.1968); Wirtz v. Independent Workers Union, 65 L.R.R.M. 2104, 2108 (M.D.Fla.1967); Wirtz v. Great Lakes District Local 47, 240 F.Supp. 859 (N.D.Ohio 1965). Although here it is the alleged wrongdoing of the Secretary, rather than the union, which has caused the delay, we believe a court would be acting consistently with the fundamental purpose of the LMRDA in entertaining a suit beyond the time limit in those rare cases where the Secretary’s original decision not to file suit has been successfully challenged.

—B—

In concluding that the procedures set forth in §§ 402 and 403 do not evince a congressional intent to preclude judicial review of the Secretary’s decision whether to bring suit, we do not mean to deny that the Secretary has considerable discretion in the exercise of his enforcement powers. Speaking of the Secretary’s duty to screen complaints before filing suit, the Court stated in Calhoon v. Harvey, supra, 379 U. S. at 140, 85 S.Ct. at 296:

“It is apparent that Congress decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest ... . Reliance on the discretion of the Secretary is in harmony with the general congressional policy to allow unions great latitude in resolving their own internal controversies, and where that fails, to utilize the agencies of [the] Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts.”

However, the fact that an agency action involves some discretion does not necessarily make it unreviewable. See Ferry v. Udall, 336 F.2d 706, 711 (9th Cir., 1964). Rather,

“[t]he question is whether the Secretary . . . enjoys absolute discretion — whether such a decision is totally committed to the judgment of the agency because of the practical requirements of the task to be performed, absence of available standards against which to measure the administrative action, or even the fact that no useful purpose could be served by judicial review.”

Cappadora v. Celebrezze, supra, 356 F.2d at 5-6.

. The Secretary contends that his decision whether to bring suit under § 402 of the L-MRDA is an exercise of prosecutorial discretion which is unreviewable and cannot be compelled by a court. See Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1869); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Spillman v. United States, 413 F.2d 527 (9th Cir.), cert. denied, 396 U.S. 930, 90 S.Ct. 265, 24 L. Ed.2d 228 (1969); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (D.C.Cir. 1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966). Not every refusal by a Government official to take action to enforce a statute, however, is unreviewable. See Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973). Cf. Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Although the Secretary’s decision to bring suit bears some similarity to the decision to commence a criminal prosecution, the principle of absolute prosecutorial discretion is not applicable to the facts of this case.

To begin with, we believe that the doctrine of prosecutorial discretion, should be limited to those civil cases which, like criminal prosecutions, involve the vindication of societal or governmental interest, rather than the protection of individual rights. The Confiscation Cases, supra, on which the Secretary primarily relies, were suits to confiscate property used in aid of rebellion; there was little question that they were “for the benefit of the United States,” id., 74 U.S. at 457, rather than on behalf of any aggrieved individuals. However, the legislative history of the L-MRDA demonstrates a deep concern with the interest of individual union members, as well as the .general public, in the integrity of union elections. Thus, in seeking to remedy violations of the Act, the Secretary acts not only for the benefit of the country as a whole, but also on behalf of those individuals whose rights have been infringed. To grant the Secretary absolute discretion in this situation seems particularly inappropriate, for if he wrongfully refuses to file suit, individual union members are left without a remedy.

Furthermore, as Professor Davis has observed, perhaps the most convincing reason for the unreviewability of prose-cutorial discretion is that a prosecutor “may be actuated by many considerations that are beyond the judicial capacity to supervise.” Davis, Administrative Law Treatise, § 28.16 at 984 (1970 Supp.). The factors to be considered by the Secretary, however, are more limited and clearly defined: § 482(b) of the L-MRDA provides that after investigating a complaint, he must determine whether there is probable cause to believe that violations of § 481 have occurred affecting the outcome of the election. Where a complaint is meritorious and no settlement has been reached which would remedy the violations found to exist, the language and purpose of § 402(b) indicate that Congress intended the Secretary to file suit. • Thus, apart from the possibility of settlement, the Secretary’s decision whether to bring suit depends on a rather straightforward factual determination, and we see nothing in the nature of that task that places the Secretary’s decision “beyond the judicial capacity to supervise.” See p. 88, supra.

Nevertheless, the question remains as to what the proper scope of such judicial review should be. In De-Vito v. Shultz, supra, 300 F.Supp. at 384, the court held that “the Secretary must provide those who petitioned for his intervention with an adequate written statement of his reasons for non-intervention.” Since the letter explaining the Secretary’s decision not to bring suit conceded that serious irregularities had occurred but failed to mention the Secretary’s conclusions as to the effect of those irregularities on the outcome of the election, the court in DeVito ordered the Secretary to reconsider his decision, and if after reconsideration he was still determined not to act, the court held that the individual complainant is entitled to a fuller statement of reasons. We have found no case which questions this requirement. Indeed, in Ravaschieri v. Shultz, supra at 2274, although the court concluded that it had no jurisdiction to review the Secretary’s refusal to bring suit, it stressed the importance of the fact that he had made known the reasons for that decision. In addition, “a brief statement of the grounds for denial” is required by the APA, 5 U.S.C. § 555(e), and as Professor Davis has pointed out, the practical reasons for requiring findings are as applicable to informal agency action as to action based on formal hearings. Davis Administrative Law Treatise § 16.00 at 559 (1970 Supp.). Thus, judicial review of the Secretary’s decision not to bring suit should extend at the very least to an inquiry into his reasons for that decision to ensure that he has not abused the discretion granted him by the L-MRDA.

The relief requested by the complaint in the instant case, however, goes beyond such an inquiry. Anticipating the Secretary’s reasons, plaintiff seeks an opportunity to challenge the factual basis for his conclusion either that no violations occurred or that they did not affect the outcome of the election. Only one court has held that it had the power to review this exercise of the Secretary’s discretion. Schonfeld v. Wirtz, supra, 258 F.Supp. at 708-709. The majority of courts considering the matter have refused to conduct such a review. Howard v. Hodgson, supra; Orphan v. Hodgson, 78 L.R.R.M. 2825 (N.D.Ill. 1971); Ravaschieri v. Shultz, supra; McArthy v. Wirtz, 65 L.R.R.M. 2411 (E.D.Mo.1967); Katrinic v. Wirtz, 62 L.R.R.M. 2557 (D.D.C.1966); Altman v. Wirtz, 56 L.R.R.M. 2651 (D.D.C. 1964). Insofar as these cases stand for the proposition that the Secretary’s determination of the merit of a complaint is completely unreviewable, we decline to follow them. The Secretary may as easily defeat the purpose of the LMRDA by ignoring overwhelming evidence of violations affecting the outcome of an election as by refusing to file suit for reasons not intended by Congress. In either ease, judicial review should be available to ensure that the Secretary's actions are not arbitrary, capricious, or an abuse of discretion. The Supreme Court has explained this scope of review as follows:

“Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (1964 ed., Supp. Y). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. [Citations omitted.] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.”

Citizens To Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 823. Thus, on remand, plaintiff is entitled to a sufficiently specific statement of the factors upon which the Secretary relied in reaching his decision not to file suit so that plaintiff may have information concerning the allegations contained in his complaint.

For the above reasons, the district court order granting the motion to dismiss for lack of subject matter jurisdiction will be vacated and the case will be remanded for further proceedings consistent with this opinion.

      . “(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance witli the provisions of this subchapter and such rules and regulations as the Secretary may prescribe. The court shall liave power to take such action as it deems proper to preserve the assets of the labor organization.”

      . In pleading that this action is brought “under” § 402 of the L-MRDA, plaintiff may have intended to allege jurisdiction founded on the existence of a question “arising under” that statute. Of. 2A Moore’s Federal Practice f 8.9 [2J at 1652 and F.R.Civ.P. Official Form 2(c). In any case, the failure of the complaint specifically to cite 28 U.S. C. § 1337 does not prevent this court from considering it as a basis for jurisdiction, for, under the facts of this case, “ [i] t is not necessary to name the statutory section if in fact a complaint states a cause of action under it.” Copra v. Suro, 236 F.2d 107, 114 (1st Cir. 1956).

      . Section 1337 provides :
      “Tlie district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.”
      The tests required by § 1337 are the same as those demanded by § 1331, except that no jurisdictional amount need be alleged. See Peyton v. Railway Express Agency, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525 (1942) ; 1 Moore’s Federal Practice 1f 0.60[8.-3] at 627.

      . It is possible that federal jurisdiction in this case also exists under 28 U.S.C. 8 1361, since tlie complaint may be read to allege that the Secretary lias acted contrary to law. See Howard v. Hodgson, 490 F.2d 1194, 1195 (8th Cir. 1974) ; Wright & Miller, Federal Practice and Procedure § 1350, n. 54 (1969). In view of our holding below as to Xilaintiff’s right to the remedy of judicial review under the APA, however, it is not necessary to decide whether the eomxilaint also states a claim for which mandamus relief can be granted, for the scope of judicial review under the APA seems clearly broader than that available upon a petition for mandamus. As we held in Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc), cert. denied, 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 688 (1973):
      “In order for mandamus to issue, a xilaiu-tiff must allege that an officer of the Government owes him a legal duty which is a specific, x>lain ministerial act ‘devoid of the exercise of judgment or discretion.’ An act is ministerial only when its performance is x>ositively commanded and so xdainly prescribed as to be free from doubt.”
      Thus, while a petition would issue to order tlie Secretary to file suit to set aside an election where his own investigation revealed violations affecting tlie outcome, mandamus relief would not be available to question whether the findings and conclusions of such an investigation were arbitrary and capricious and an abuse of discretion. See tlie discussion of Howard v. Hodgson, supra, at notes 13 and 16 below. Rut see Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 501, 565 (1970) (Mandamus may issue to correct abuse of discretion).

      . There was no oiiinion accompanying the district court’s order granting defendants’ motion for dismissal, but at tlie conclusion of tlie November 8, 1973, hearing, after extensive discussion of the question of review-ability, the court concluded that it lacked “authority” to find that the Secretary’s actions were arbitrary and capricious and to order him to file suit. See I)oc. 9 at p. 27 (AV.D.Pa., Civil No.-73-0954).

      . The Secretary argues that § 606 of the L-ilRDA, 29 U.S.C. § 526, which governs tlie apxilicability of the APA to actions taken pursuant to tlie L-MRDA, does not provide plaintiff here a basis for judicial review, since the Secretary’s determination not to bring suit is not an “adjudication.” "Whatever tlie merit of this contention (see the definition of “adjudication” in 5 U.S.C. § 551(7)), it has no bearing on xilaintiff's claim for relief because the APA subjects to judicial review not only “[a]gency action made reviewable by statute,” but also “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.

      . We recognize that in reaching this conclusion, the Supreme Court employed some broad and unqualified language concerning the intent of Congress in assigning this screening function to the Secretary:
      “With respect to litigation by union members, then, the legislative history supports the conclusion that Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary.” Id. at 536, 92 S.Ct. at 635 (emphasis added).
      “[W]e think Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary.” Id. at 537, 92 S.Ct. at 635 (emphasis added).
      However, we do not believe that the Court intended to imply by that language that the Secretary’s decision was unreviewable, for that issue was not presented in Trbovich. Bather, the above-quoted statements must be read in the context of the Court’s holding that an intervening, union would not be permitted to circumvent the screening function assigned to the Secretary by raising additional claims which he had not liad an opportunity to evaluate or had already rejected.

      . The USWA contends that another legislative concern in enacting Title IV was to avoid “unnecessary expenditure of the limited resources of the Secretary of Labor,” Hodgson v. Steelworkers Local 6799, 403 U.S. 333, 339, 91 S.Ct. 1841, 1845, 29 L.Ed.2d 510 (1971), and that this objective will be frustrated if the Secretary can be required to defend his decisions not to bring suit. We do not consider this argument sufficiently persuasive to support a holding of nonreviewability on the facts of this case. In the first place, Congress’ “concern” with husbanding the Secretary’s resources was mentioned in Ilodgson merely as a secondary reason for requiring an individual to exhaust his union remedies before filing a complaint with the Secretary. Moreover, the expense to an agency of defending its decisions can hardly be considered a valid reason for restricting judicial review. Finally, the Secretary could help to discourage frivolous suits against him and thus avoid unnecessary expenditures by providing in each case an adequate statement of his reasons for not bringing suit.

      . The Secretary also cites Georgia v. Mitchell, 146 U.S.App.D.C. 270, 450 F.2d 1317, 1321 (1971), for the proposition that the principles regarding prosecutorial discretion enunciated in criminal cases are applicable to the exercise oí prosecutorial discretion in a civil context. However, the doctrine applied there was not that the discretion of the Attorney General and the Secretary of HEW is absolute, but only that judicial review of their discretionary conduct is narrowly restricted. Since the court found that the prosecution of cfe jure segregation in Georgia without challenging de facto segregation elsewhere did not constitute selective or discriminatory enforcement of school desegregation, it held that the case then before the court was inappropriate for judicial review.

      . “It needs no argument to demonstrate the importance of free and democratic union elections. Under the National Labor Relations and Railway Labor Acts the union which is the bargaining representative has power, in conjunction with the employer, to fix a man’s wages, hours, and conditions of employment. The individual employee may not lawfully negotiate with his employer. He is bound by the union contract. >In practice, the union also has a significant role in enforcing the grievance procedure where a man’s contract rights are enforced. The Government which gives unions this power has an obligation to insure that the officials who wield it are responsive to the desires of the men and women whom they represent. The best assurance which can be given is a legal guaranty of free and periodic elections.
      The responsiveness of union officers to the will of the members depends upon the frequency of elections, and an honest count of the ballots. Guaranties of fairness will preserve the confidence of the public and the members in the integrity of union elections.”
      S.Rep.No.187, 86th Cong., 1st Sess. (1959), quoted at p. 2336, U.S.Code Cong. & Admin.News. The Supreme Court has summarized this purpose as follows :
      “The LMRDA was the first major attempt of Congress to regulate the internal affairs of labor unions. Having conferred substantial power on labor organizations, Congress began to be concerned about the danger that union leaders would abuse that power, to the detriment of the rank- and-file members. Congress saw the principle of union democracy as one of the most important safeguards against such abuse, and accordingly included in the LMRDA a comprehensive scheme for the regulation of union elections.”
      Trbovich v. United Mine Workers, supra, 404 U.S. at 530-531, 92 S.Ct. at 632.

      . This case is. therefore, distinguishable from Vaca v. Sipes, 386 U.S. 171, 182-183, n. 8, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967), where the Court held that the General Counsel of the National Labor Relations Board has unreviewable discretion to refuse to institute an unfair labor practice complaint because, under § 10(c) of the National Labor Relations Act, “ [t] he public interest in effectuating the i>olicies of the federal labor laws, not the wrong done the individual employee, is always the Board’s principal concern in fashioning unfair labor practice remedies.”

      . Despite its literal language, § 402(b) does not require the Secretary to bring an action whenever he finds a violation that has not been remedied, but rather confers discretion upon him also to determine whether there is probable cause to believe that such violation affected the outcome of the election. Wirtz v. Bottle Blowers Ass’n, supra, 389 U.S. at 472, 88 S.Ct. 643; Howard v. Hodgson, supra; Ravaschieri v. Shultz, 75 L.R.R.M. 2272 (S.D.N.Y.1970) ; Schonfeld v. Wirtz, 258 F.Supp. 705, 708 (S.D.N.Y.1966); S.Rep.No.187, 86th Cong., 1st Sess. (1959), quoted at p. 2337, U.S.Code Cong. & Admin. News.

      . After holding that the Secretary had discretion not to file suit where he has determined that there is not probable cause to believe that such violations as occurred affected the outcome of the election, the court in Howard v. Hodgson, supra, 490 F.2d at 1197, went on to state:
      “This is not to say that the Secretary’s discretion under § 482 is absolute. If the Secretary finds probable cause to believe that a violation has occurred and also finds probable cause to believe that the violation may have affected the outcome of the election, the Act requires that he commence an action against the labor organization.”

      . Two of these reasons are clearly applicable to the instant case: facilitating judicial review and assuring careful administrative consideration. The latter would be relevant even if the Secretary’s decision were unre-viewable. See Johnson v. Chairman of New York Board of Parole, 500 F.2d 925 (2d Cir. 1974). In oases where agency action is subject to judicial review, this court has repeatedly held that an adequate statement of reasons is necessary for courts to perform their function properly. See United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972); United States v. Neamand, 452 F.2d 25 (3d Cir. 1971); Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970). Cf. Dry Color Mfrs. Ass’n v. Department of Labor, 486 F.2d 98, 105-106 (3d Cir. 1973). Since the Supreme Court’s decision in SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943), this principle has been followed by other courts in a wide variety of context. See generally Davis, Administrative Law Treatise § 16.05 (1958 ed. & 1970 Supp.).

      . See also Brennan v. Connecticut State UAW, Community Action Program Council, 373 F.Supp. 286 (D.Conn.1974), where the court cited both Schonfeld v. Wirtz, supra, and DeVito v. Shultz, supra, with approval in holding that the views of intervening union members could not be disregarded just because the union stipulated to a remedy without conceding any violations.
      In Schonfeld the Secretary’s investigation revealed that violations of the L-MRDA had occurred, and its holding could therefore be limited to permit review only of the Secretary’s determination that there is not probable cause to believe that such violations affected the outcome of the election. See McArthy v. Wirtz, 05 L.R.R.M. 2411, 2413 (E.D.Mo.1967). However, we believe that there is no meaningful distinction between the finding as to the existence of a violation and the finding as to its effect on the election. We note that this distinction was explicitly rejected in Howard v. Hodgson, 356 F.Supp. 692, 694 (E.D.Mo.1973), aff’d, 490 F.2d 1194 (8th Cir. 1974), where the court concluded that an even stronger case for deferring to the Secretary’s expertise existed where he had determined that a violation did not affect the outcome of an election than where he found no violation at all.

      . Since nearly all of these cases discussed the issue of reviewability in the context of mandamus, it is unclear whether they necessarily imply that the Secretary’s discretion is absolute whatever the basis for jurisdiction or relief. See note 4, supra. In Ra-vaschieri v. Shultz, supra at 2275, for example, the court was careful to distinguish Schonfeld on the ground that the decision not to bring suit there was “palpably arbitrary and capricious,” while in Ravaschieri the court found that the Secretary properly exercised his discretion after his investigation disclosed that the plaintiffs had failed to invoke their internal remedies as required by § 402(a), and that it would be difficult to prove that any violations which occurred affected the outcome of the election. Similarly, in Howard v. Hodgson, supra, the Court of Appeals did not even confront the issue of whether the Secretary’s factual findings are reviewable, concluding only that the Secretary acted within his discretion in not filing suit where lie determined that such violations as occurred did not affect the outcome of the election. See note 12, supra. However, the district court had decided that issue, 83 L.R.R.M. 3023, 3025 (E.D.Mo. 1973), and thus the Eighth Circuit’s affirmance of the district court’s dismissal apparently means that mandamus will not issue to review the Secretary’s finding that a complaint is without merit.

      . The court recognizes that certain data in the Secretary’s files may be privileged and confidential. Cf. Weisberg v. U. S. Department of Justice, 489 F.2d 1195 (D.C.Cir. 1973); Frankel v. Securities & Exchange Commission, 460 F.2d 813 (2d Cir. 1972). Whether the Government’s interest in maintaining the confidentiality of such information outweighs the plaintiff’s interest in their production should be a matter for the trial court to decide on motions for discovery so as to assure “a fair determination of the issues.’’ Mitchell v. Roma, 265 F.2d 633, 636 (3d Cir. 1959).