The matter before the court also fails to meet another requisite of an actual controversy in that the case in its present posture does not lend itself to specific conclusive relief. If it were determined in this declaratory action that Wojcik's conviction does not fall within the proscription of § 504(a), that finding would not be binding upon the Secretary of Labor, since he is not a party, and criminal prosecution would not be barred. On the other hand, if it were to be determined here that Wojcik's conviction is for a violation of the "narcotics laws", neither Union nor Wojcik would be bound in the event that criminal proceedings were instituted against them.
The existence of an "actual controversy" between the parties is a jurisdictional requisite. The absence of such controversy here deprives this court of jurisdiction to declare the rights of the parties.
Whether to grant or withhold declaratory relief in a particular case is a matter committed to the sound discretion of the district court. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 7 L. Ed. 2d 317, 82 S. Ct. 337 (1961); Brillhart v. Excess Ins. Co., 316 U.S. 491, 86 L. Ed. 1620, 62 S. Ct. 1173 (1942). If it be ultimately determined that there is a controversy within the meaning of the Declaratory Judgment Act sufficient to confer jurisdiction upon this court to grant the relief sought, there remains the question whether, in the exercise of the court's discretion, the requested relief should be granted.
The mutual interest of Union and Wojcik in avoiding future criminal prosecution creates the distinct possibility that the parties may conduct themselves in a collusive manner. Rather than lend the court's assistance to such a possibility, the wiser course seems to me to refrain from exercising the court's power under the Declaratory Judgment Act, 28 U.S.C. § 2201.
In making the determination to stay the court's hand, I am not unmindful of Serio v. Liss, 300 F.2d 386 (3d Cir. 1961). In that case a union officer brought an action for declaratory and injunctive relief to restrain the union from terminating his services. Whether the termination was proper depended upon interpretation of § 504(a). The court in that case declared the rights of the parties and held that the officer was properly terminated. At first blush, Serio seems, at least inferentially, to approve the use of declaratory judgment procedures to declare the rights of a union and its officers under § 504(a). At the end of the opinion, however, Chief Judge Biggs, for the majority, noted that the Secretary of Labor had intervened as a party defendant and had fully and adversely litigated the legal issues presented and that it would not be appropriate, under such circumstances to regard the suit as non-adversary. Judge (now Chief Judge) Hastie dissented and, in dictum, at p. 392, noted his "great difficulty . . . in avoiding the conclusion that this is a collusive suit as against the union."
In my view, Serio contains a plain warning to district courts that they should refrain from declaring the rights of the parties under § 504(a) in suits between a union and its officers because of the potential of collusion between the parties unless the Secretary of Labor has intervened. In the instant case, counsel for Union advised at oral argument that the Secretary had been notified of the institution of these proceedings and had been invited to intervene. Despite the passage of a considerable period of time, the Secretary has not, to this date, accepted the invitation. Under the circumstances, Serio reinforces our decision not to venture into this doubtful controversy.
Plaintiff's motion for declaratory judgment will be dismissed for lack of jurisdiction because of the absence of a controversy between the parties. Alternatively, if it be determined that there is a controversy within the meaning of the declaratory judgment act, in the exercise of the court's discretion, plaintiff's request for declaratory relief will be denied.
This 8th day of April, 1971, it is ORDERED
1. Plaintiff's action for declaratory judgment is DISMISSED for lack of jurisdiction because of the absence of controversy between the parties;
2. Alternatively, in the event that it is determined that there is a controversy between the parties, in the exercise of the court's discretion, the court declines to entertain the matter and plaintiff's request for declaratory relief is Denied.