Jody Lutter v. Jneso

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2205

____________

JODY LUTTER,

Appellant

v.

JNESO, an incorporated employees labor organization;

COUNTY OF ESSEX; PHIL MURPHY, in his official

capacity as Governor of New Jersey; GURBIR S. GREWAL,

in his official capacity as Attorney General of New Jersey;

JOEL M. WEISBLATT; PAUL BOUDREAU; PAULA B.

VOOS; JOHN BONANNI; DAVID JONES; PASQUALE V.

PAPERO, in their official capacities as members of the New

Jersey Public Employment Relations Commission

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-19-cv-13478)

District Judge: Honorable Renée M. Bumb

____________

Argued: May 25, 2022

Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges.

(Filed: November 6, 2023)

____________

Patrick J. Wright [Argued]

MACKINAC CENTER LEGAL FOUNDATION

140 West Main Street

Midland, MI 48640

Matthew C. Moench

KING MOENCH & COLLINS

51 Gibraltar Drive

Suite 2F

Moore Plains, NJ 07950

Counsel for Appellant

Seth Ptasiewicz [Argued]

KROLL HEINEMAN PTASIEWICZ & PARSONS

91 Fieldcrest Avenue

Suite 35

Edison, NJ 08837

Counsel for Appellee JNESO

Alan Ruddy

OFFICE OF COUNTY COUNSEL

COUNTY OF ESSEX

465 Martin Luther King Boulevard

Hall of Records, Room 535

Newark, NJ 07102

Counsel for Appellee County of Essex

2

Angela Cai [Argued]

Ryan J. Silver

OFFICE OF ATTORNEY GENERAL OF NEW JERSEY

25 Market Street

Richard J. Hughes Justice Complex

P.O. Box 112

Trenton, NJ 08625

Caroline G. Jones

OFFICE OF ATTORNEY GENERAL OF NEW JERSEY

DIVISION OF LAW

25 Market Street

Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellees Governor Phil Murphy and

Attorney General Gurbir S. Grewal

Christine R. Lucarelli

PUBLIC EMPLOYMENT RELATIONS COMMISSION

495 West State Street

P.O. Box 429

Trenton, NJ 08625

Counsel for Appellees Joel M. Weisblatt, Paul

Boudreau, Paula B. Voos, John Bonanni, Pasquale V.

Papero, and David Jones

__________

OPINION OF THE COURT

__________

PHIPPS, Circuit Judge.

In late June 2018, the Supreme Court held that public-

sector unions could not charge fees from non-union employees

to fund collective bargaining efforts, as those unions were

3

previously able to do in New Jersey. Shortly afterwards, a

nurse at a county hospital in New Jersey requested in writing

to resign from the public-sector union that represented her and

to have her employer cease deducting union dues from her

paycheck so that she would pay neither dues nor fees. But a

state statute established an annual ten-day period during which

public-sector employees could revoke a prior authorization for

payroll deductions of union dues. And that ten-day period for

the nurse expired in early June, before the Supreme Court’s

decision. On that basis, her request to cease payroll deductions

was denied, and the county deducted union dues from her

paycheck for the next ten months. Once her annual ten-day

revocation window reopened, the nurse resubmitted her

request, and the county ceased payroll deductions of union

dues.

Within a week of her second request, the nurse filed this

suit against the union, the county, and several state officials

under 42 U.S.C. § 1983. She claimed that delaying her ability

to stop paying union dues violated her First Amendment right

by compelling her to subsidize union speech. For relief, the

nurse requested damages from the union to compensate her for

the payroll deductions of her union dues. In addition to seeking

attorney’s fees and costs, she sought among other things, an

order enjoining future deductions of union dues from her

paycheck and a declaratory judgment that the state statute was

unconstitutional.

About nine months later, in March 2020, the union sent her

a check in the amount of the deducted union dues plus interest.

By then, the nurse was no longer a member of the union, and

she did not cash or deposit that check. But the union, along

with other defendants, used her receipt of that check along with

her resignation from the union as grounds for requesting

dismissal of the suit as moot – an outcome that would eliminate

their exposure to liability for attorney’s fees. The defendants

also argued for dismissal on other grounds, including the

nurse’s lack of Article III standing. The District Court granted

4

those motions and dismissed the case through two separate

orders.

The nurse has now appealed, and on de novo review, the

check she received after her resignation from the union did not

moot her damages claims against the union. But the nurse – as

a non-union member no longer subject to payroll deductions of

union dues – lacks standing for her claims against the other

parties and for her additional requests for relief against the

union. Accordingly, we will affirm the District Court’s orders

in part, vacate them in part, and remand the damages claim

against the union to the District Court for resolution.

FACTUAL BACKGROUND (AS ALLEGED IN THE PLEADINGS)

On May 31, 2011, Jody Lutter began her employment with

Essex County, New Jersey, as a nurse at the Essex County

Hospital. She worked in a position within a bargaining unit

represented by JNESO, a labor union.

At that time, under Abood v. Detroit Board of Education,

431 U.S. 209 (1977), a public-sector union could charge fees

from non-union members whom the union represented in

collective bargaining without offending the First

Amendment’s prohibition on the compelled subsidization of

speech. Id. at 235–36. And under a New Jersey statute, public-

sector unions could deduct a “representation fee” from the

wages of non-union employees whom it represented. N.J. Stat.

Ann. §§ 34:13A-5.5 to -5.6 (West 2011). The money collected

by a representation fee, also referred to as an ‘agency fee,’

could not be used for political advocacy, see Abood, 431 U.S.

at 235–36, and the statute capped such fees at 85% of regular

union membership dues, fees, and assessments, N.J. Stat. Ann.

§ 34:13A-5.5(b). JNESO’s collective bargaining agreement

with Essex County authorized the collection of agency fees

from its non-union employees.

Thus, when Lutter began working for Essex County in

2011, she had to contribute to JNESO, and she had two options

5

for doing so. She could join JNESO and pay full dues. Or she

could not join JNESO and pay a portion of those dues as an

agency fee. Lutter chose the former: she joined JNESO and

authorized payroll deductions of her union dues within a month

of her start date.

Six years later, in September 2017, the Supreme Court

granted a petition for certiorari to reconsider Abood and the

constitutionality of agency fees. See Janus v. Am. Fed’n,

582 U.S. 966 (2017) (mem.) (granting petition for certiorari).

That issue, if resolved against the rule of Abood, had the

potential to significantly decrease the revenues of public-sector

unions because employees, by resigning from the union, could

avoid paying not only union dues but also agency fees.

With the looming possibility that the Supreme Court in

Janus would overrule Abood and by so doing prompt a

membership exodus from public-sector unions, the New Jersey

Legislature enacted the Workplace Democracy Enhancement

Act (the ‘WDEA’). Under that statute, which became effective

on May 18, 2018, a union member could revoke an

authorization for payroll deductions only during the ten days

following the anniversary of that member’s employment start

date. See 2018 N.J. Sess. Law Serv. Ch. 15 (West) (codified

at N.J. Stat. Ann. § 52:14-15.9e (West Supp. 2021) (amended

2022)). If a union member provided notice to his or her

employer within that ten-day window, then the employer had

to notify the union within five days and cease payroll

deductions of union dues within thirty days of the employee’s

anniversary date. See id. By contrast, the version of the statute

in effect when Lutter joined JNESO allowed union members

to give a notice of revocation at any time, and that notice would

take effect the following January 1 or July 1, whichever came

sooner. See N.J. Stat. Ann. § 52:14-15.9e (West 2011)

(amended 2018, 2022).

A little over a month after the WDEA’s enactment, the

Supreme Court, on June 27, 2018, decided Janus. It

6

overturned Abood and held that the First Amendment prohibits

public-sector unions from collecting agency fees from

nonmembers without their clear and affirmative consent.

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31,

138 S. Ct. 2448, 2486 (2018).

By operation of the WDEA, however, Lutter could not

immediately avail herself of the flexibility that Janus afforded.

Instead, because her May 31 anniversary date had passed less

than a month beforehand, she would have to wait nearly a year

to be eligible to revoke her authorization for the payroll

deductions of her union dues. And even after that notice, those

union dues could still be deducted from her paycheck for thirty

days after her anniversary date.

Lutter attempted to avoid that expensive wait. In a letter

dated July 12, 2018, to Essex County, with a copy to JNESO,

she requested that the payroll deductions of her union dues

cease and she announced her resignation from JNESO. In an

email response, Essex County stated that Lutter could not

revoke her authorization for the payroll deductions of her union

dues for nearly a year – until June 2019, during the next ten-

day period permitted by the WDEA. True to its stated position,

Essex County deducted union dues from Lutter’s paycheck for

the next ten months.

On June 1, 2019, as soon as her ten-day revocation window

under the WDEA re-opened, Lutter sent a letter to Essex

County, with a copy to JNESO, indicating that she wanted the

payroll deductions of union dues to cease. Her next paycheck,

dated June 14, 2019, which covered the two-week pay period

beginning on May 25 and ending on June 7, did not have any

union dues deducted.

PROCEDURAL HISTORY

On June 6, 2019, within a week of sending her second letter,

Lutter filed this lawsuit under 42 U.S.C. § 1983 in District

Court. As revised by a pleading labeled as an ‘amended

7

complaint,’ filed on February 28, 2020, Lutter sued JNESO

and Essex County along with several state officials in their

official capacities: the Governor, the Attorney General, and

members of the New Jersey Public Employment Relations

Commission. Her first count asserted that through their

compliance with the WDEA, those defendants violated her

First Amendment right against the compelled subsidization of

speech by preventing her from immediately resigning from

JNESO following Janus. In her second count, Lutter argued

that her prior authorization for payroll deductions lost its

consensual character after Janus held that agency fees are

illegal, and thus the post-Janus deductions of union dues from

her paycheck similarly transgressed the protections of the First

Amendment.

In her prayer, Lutter sought several forms of relief. She

requested compensatory damages from JNESO for the union

dues that were deducted from her paycheck for the ten months

after her attempted resignation on July 12, 2018.1 She also

sought an order enjoining JNESO from collecting further dues

from her and preventing the New Jersey officials from

enforcing the WDEA. In addition, she sought declaratory

judgments that (i) the WDEA is void and unenforceable and

(ii) members of public-sector unions have a constitutional right

1

In her second complaint, Lutter seeks a refund of union dues

deducted from her paychecks, and that request could be

interpreted as seeking compensatory damages or specific

performance. But Lutter does not seek the return of “specific

currency or coins,” Bowen v. Massachusetts, 487 U.S. 879, 919

n.3 (1988) (Scalia, J., dissenting), and in her briefing, Lutter

makes clear that she seeks compensatory damages and thus her

request is most reasonably construed as a request for damages.

See id. at 918–19 (“Almost invariably, however, suits seeking

(whether by judgment, injunction, or declaration) to compel

the defendant to pay a sum of money to the plaintiff are suits

for ‘money damages,’ as that phrase has traditionally been

applied . . . .”).

8

to resign from the union and cease paying union dues at any

time. Lutter sought the ancillary relief of attorney’s fees and

costs, see 42 U.S.C. § 1988(b), and she included a request for

all other relief deemed just, proper, and equitable. As a case

implicating federal questions and her civil rights, Lutter’s

action was putatively within the District Court’s original

subject-matter jurisdiction. See 28 U.S.C. §§ 1331 (federal-

question jurisdiction), 1343 (jurisdiction over cases involving

the deprivation of the rights or privileges of United States

citizens).

Shortly after Lutter filed her second complaint, JNESO

attempted to refund the dues that she had requested. In

correspondence sent to Lutter’s counsel on March 12, 2020,

JNESO’s attorney enclosed a check in the amount of

$1,209.58. The accompanying letter explained that JNESO

was not “seeking any conditions or promises from Ms. Lutter,”

and that “[t]he check is sent to refund the dues that were

deducted from [her paychecks] after she declared her desire to

resign from membership in JNESO, along with an amount to

reflect accrued interest.” Letter from Seth Ptasiewicz, Counsel

for JNESO, Kroll, Heineman, Carton, to Matthew C. Moench,

Counsel for Jody Lutter, King, Moench, Hirniak & Mehta, LLP

(Mar. 12, 2020) (JA85). Lutter did not cash the check

promptly – or ever.

JNESO then relied on that correspondence and Lutter’s

resignation from the union in moving to dismiss Lutter’s

second complaint. Based on those developments, JNESO

asserted that Lutter’s claims for compensatory damages were

moot. Also, because Lutter was not a member of JNESO when

she filed her second complaint, JNESO argued that she lacked

9

Article III standing for her requests for injunctive and

declaratory relief.2

In subsequent filings, the other defendants joined JNESO’s

mootness argument. Essex County gave notice that it agreed

with JNESO that the case was moot. In their separate motion

to dismiss, the members of the Public Employment Relations

Commission argued that Lutter’s case should be dismissed on

mootness grounds as well.3 Although they initially responded

to Lutter’s second complaint by filing an answer, the Governor

and Attorney General later filed a brief supporting JNESO’s

mootness and standing arguments.

Through two separate rulings, the District Court dismissed

all of Lutter’s claims. It concluded that by providing the check

to Lutter, JNESO mooted her damages claim. It also dismissed

her requests for injunctive relief because by the time of her

second complaint, she had resigned from the union. After

receiving supplemental briefing, the District Court further

dismissed Lutter’s requests for declaratory relief because, as a

non-union employee, she lacked Article III standing to litigate

whether the WDEA is unconstitutional and whether a member

of a public-sector union has a constitutional right to

immediately resign from the union. Lutter timely appealed,

2

In the alternative, JNESO argued that Lutter’s claims failed

to state a claim for relief because Janus did not invalidate

previous valid authorizations of payroll deductions of union

dues and because JNESO was not a state actor subject to suit

under § 1983.

3

The members of the Commission also argued for a lack of

subject-matter jurisdiction due to Eleventh Amendment

immunity. In addition, they moved in the alternative to dismiss

for failure to state a claim for relief on the grounds that Janus

applied only to non-union employees who paid agency fees and

that the Commission did not enforce or administer the WDEA.

10

bringing her suit within this Court’s appellate jurisdiction. See

28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A).

During the pendency of this appeal, on January 18, 2022,

New Jersey enacted the Responsible Collective Negotiations

Act. That legislation eliminated the WDEA’s ten-day window

for a public-sector union member to revoke a prior

authorization for the payroll deductions of union dues. See

2021 N.J. Sess. Law Serv. Ch. 411, at 6 (West) (codified at N.J.

Stat. Ann. § 52:14-15.9e). Under that statutory revision, an

employee, like Lutter, who had authorized the payroll

deductions of union dues before the WDEA’s effective date,

could revoke that authorization “in accordance with the law in

effect at the time of [her] initial authorization of payroll

deduction[s]” or within the terms set forth by that

authorization. Id. If that law had been in place at the time of

the Janus decision, then Lutter could have revoked her

authorization for the payroll deductions of union dues at any

time.

DISCUSSION

On appeal, the lines of argument mirror those presented in

the District Court. Lutter asserts that her claims and requests

for damages, injunctions, and declaratory judgments are

justiciable. The defendants dispute Lutter’s standing to seek

injunctive and declaratory relief, and they argue that her claim

for damages has been mooted by JNESO’s presentment of the

check to Lutter’s counsel.4

4

In addition to the justiciability challenges, the defendants

argue that the District Court’s ruling can be affirmed on other

grounds. JNESO contends that Lutter fails to state a claim for

relief for two reasons: Janus did not invalidate her previous

authorization of the payroll deductions of union dues and

JNESO is not a state actor. The members of the Commission

argue that the dismissal of the claims against them may be

11

A. Article III Standing

In partial effectuation of the Preamble, which announced

the intention to “establish Justice,” Article III of the

Constitution creates and defines the judicial power of the

United States. U.S. Const. pmbl.; id. art. III. One limitation

on that power is its applicability to only certain types of cases

and controversies. Article III identifies, by subject matter,

three categories of cases that are within the federal judicial

power, and it specifies, by the parties thereto, six categories of

controversies subject to the federal judicial power. Id. art. III,

§ 2. Beyond those limitations based on subject matter and

party, the terms ‘cases’ and ‘controversies’ themselves have

meaning. See Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)

(“The constitutional power of federal courts cannot be defined,

and indeed has no substance, without reference to the necessity

‘to adjudge the legal rights of litigants in actual

controversies.’” (quoting Liverpool S.S. Co. v. Comm’rs of

Emigration, 113 U.S. 33, 39 (1885))).5 They require genuine

upheld due to Eleventh Amendment immunity. The Governor

and the Attorney General point out that Lutter’s constitutional

challenges depend on the ten-day revocation window in the

WDEA, which has not been construed by any court, and they

advocate for certification of those issues related to the WDEA

to the New Jersey Supreme Court. See N.J. R. App. Prac.

2:12A-1 (“The Supreme Court may answer a question of law

certified to it by the United States Court of Appeals for the

Third Circuit, if the answer may be determinative of an issue

in litigation pending in the Third Circuit and there is no

controlling appellate decision, constitutional provision, or

statute in this State.”).

5

As originally understood, ‘cases’ was the broader term,

encompassing civil and criminal lawsuits, while

‘controversies’ referred only to civil suits. See Aetna Life Ins.

Co. of Hartford v. Haworth, 300 U.S. 227, 239 (1937) (“The

12

adversity among at least two parties to the litigation,6 and they

prevent advisory opinions.7 If the judicial power were to

extend beyond cases and controversies, then federal courts

would exceed “the traditional role of Anglo-American courts,”

Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009), and

they could encroach on the powers of the other two Branches

– to say nothing of their potential to impermissibly interfere

with States and the people, see Clapper v. Amnesty Int’l, USA,

568 U.S. 398, 408 (2013); Allen v. Wright, 468 U.S. 737, 752

(1984).

The doctrine of Article III standing represents an additional

limitation on the federal judicial power derived from the case-

term ‘controversies,’ if distinguishable at all from ‘cases,’ is so

in that it is less comprehensive than the latter, and includes only

suits of a civil nature.” (quotation and citation omitted));

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793)

(opinion of Iredell, J., dissenting); see also Cass R. Sunstein,

What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and

Article III, 91 Mich. L. Rev. 163, 168 (1992) (“In the original

understanding, ‘cases’ included both civil and criminal

disputes, whereas ‘controversies’ were limited to civil

disputes.”).

6

See United States v. Johnson, 319 U.S. 302, 305 (1943)

(dismissing a case on jurisdictional grounds due to the absence

of a genuine adversary issue between the parties); see also GTE

v. Sylvania, Inc. v. Consumers Union of the U.S., Inc., 445 U.S.

375, 382–83 (1980).

7

See Flast v. Cohen, 392 U.S. 83, 96 (1968) (“[T]he oldest and

most consistent thread in the federal law of justiciability is that

the federal courts will not give advisory opinions.” (citing C.

Wright, Law of Federal Courts 34 (1963)); Muskrat v. United

States, 219 U.S. 346, 354 (1911) (describing the Supreme

Court’s refusal in 1793 to advise President George Washington

on issues of foreign affairs during the war between France and

England).

13

or-controversy requirement. See Spokeo, Inc. v. Robins,

578 U.S. 330, 340 (2016) (recognizing that “the doctrine of

standing derives from the case-or-controversy requirement”);

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he

core component of standing is an essential and unchanging part

of the case-or-controversy requirement of Article III.”). At the

pleading stage, to have Article III standing, a litigant invoking

the power of a federal court must plausibly allege (i) an injury-

in-fact (ii) that is fairly traceable to the conduct of the party

sued, and (iii) that is judicially redressable. See Spokeo,

578 U.S. at 338; Lujan, 504 U.S. at 560–61; see also Lutz v.

Portfolio Recovery Assocs., LLC, 49 F.4th 323, 327–28 (3d

Cir. 2022) (summarizing the plausibility pleading standard).

Such a party must meet those requirements “for each claim that

[it] press[es] and for each form of relief that [it] seek[s].”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021)

(citing Davis v. Fed. Election Comm’n, 554 U.S. 724, 734

(2008)); Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)

(“[S]tanding is not dispensed in gross.”).

As far as timing, the general rule is that a plaintiff in federal

court must have Article III standing on the date the lawsuit was

commenced. See Davis, 554 U.S. at 734 (“[T]he standing

inquiry remains focused on whether the party invoking

jurisdiction had the requisite stake in the outcome when the suit

was filed.”). But under Rule 15, the complaint initiating the

lawsuit may later be amended and supplemented. See Fed. R.

Civ. P. 15(a), (d).8 An amendment revises the allegations,

8

Although parties and courts often refer to any revision to a

pleading as an ‘amendment,’ that is a potential misnomer

because the text of Rule 15 treats amendment and

supplementation differently. Compare Fed. R. Civ. P. 15(a),

with id. 15(d); see Wilcox v. Miller, 691 F.2d 739, 740 n.1 (5th

Cir. 1982) (recognizing that parties often confuse amendment

and supplementation); 6A Charles Alan Wright & Arthur

Miller, Federal Practice and Procedure § 1504 (3d ed. 2019)

14

claims, and prayers for relief in a complaint to reflect the state

of things as of the date the action was commenced. See Garrett

v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019) (explaining

that amendment allows the inclusion of “matters that were

overlooked or were unknown at the time the party interposed

the original complaint” (citation omitted)); 6 Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice

and Procedure § 1473 (3d ed. 2010) [hereinafter ‘Federal

Practice and Procedure’] (explaining that an amended

pleading should relate only “to matters that have taken place

prior to the date of the earlier pleading”). By contrast,

supplementation adds or alters allegations, claims, or prayers

for relief in the complaint based on events that occurred after

the initiation of the lawsuit. See Garrett, 938 F.3d at 82.9

Amended complaints and supplemental complaints differ

in their treatment of the date upon which a plaintiff must

establish Article III standing. An amended complaint – while

the operative pleading for purposes of evaluating the

sufficiency of the allegations, the viability of the claims, and

the requested relief10 – does not restart the date for assessing

(“Parties and courts occasionally confuse supplemental

pleadings with amended pleadings and mislabeling is

common.”).

9

See also T Mobile Ne. LLC v. City of Wilmington, 913 F.3d

311, 326 (3d Cir. 2019) (“Supplemental pleadings . . . are

limited to subsequent events related to the claim or defense

presented in the original pleading.” (quoting 3 James Wm.

Moore et al., Moore’s Federal Practice ¶ 15.30 (3d ed.

2018))); 6A Federal Practice and Procedure § 1504

(explaining that supplemental pleadings “deal with events

subsequent to the pleading to be altered and represent additions

to or continuations of the earlier pleadings”).

10

See Saint-Jean v. Palisades Interstate Park Comm’n,

49 F.4th 830, 835 (3d Cir. 2022) (recognizing that “an

15

standing. See Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565

(1829) (Marshall, C.J.) (“Where there is no change of party, a

jurisdiction depending on the condition of the party is governed

by that condition, as it was at the commencement of the suit.”

(emphasis added)).11 Rather, an amended complaint provides

additional information that can be used to evaluate standing as

of the date that the lawsuit was filed. See Mollan v. Torrance,

22 U.S. (9 Wheat.) 537, 539 (1824) (Marshall, C.J.)

(explaining that subject-matter jurisdiction “depends upon the

state of things at the time of the action brought”).12 That is so

because an amended complaint revises the prior pleading only

to reflect a more accurate understanding of the state of things

when the action was filed – not to update the pleading with

later occurring facts. But, if a district court permits a

supplemental complaint,13 then for the claims and requested

amended complaint ‘supersedes the pleading it modifies’”

(quoting 6 Federal Practice and Procedure § 1476)).

11

See also Rockwell Int’l Corp. v. United States, 549 U.S. 457,

473 (2007) (“The state of things and the originally alleged state

of things are not synonymous; demonstration that the original

allegations were false will defeat jurisdiction. So also will the

withdrawal of those allegations, unless they are replaced by

others that establish jurisdiction.” (citations omitted)); Grupo

Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 574–75

(2004) (holding that a party’s post-filing change in citizenship

cannot cure a lack of diversity jurisdiction from the lawsuit’s

outset).

12

Cf. 28 U.S.C. § 1653 (“Defective allegations of jurisdiction

may be amended, upon terms, in the trial or appellate courts.”);

GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29,

36 (3d Cir. 2018) (remanding for the potential cure of a

jurisdictional defect through amendment).

13

The standards for amendment and supplementation are

similar, but they do not conform exactly as more lenience is

afforded to amendment. Compare Fed. R. Civ. P. 15(a)

16

relief substantively affected by the alleged post-suit

developments,14 a plaintiff’s Article III standing is evaluated

as of the date of the supplemental pleading. See, e.g.,

Greenberg v. Lehocky, 81 F.4th 376, 384 n.4 (3d Cir. 2023)

(evaluating a plaintiff’s standing – and not mootness – based

on a later-filed complaint that challenged a revision to a rule

that occurred after the original complaint); Common

Cause/Ga. v. Billups, 554 F.3d 1340, 1347–52 (11th Cir. 2009)

(evaluating plaintiffs’ Article III standing based on a

subsequent complaint challenging a revised statute).15

Here, Lutter labeled her second complaint as an ‘amended

complaint,’ but that is not entirely precise: that pleading

amended and supplemented the original complaint. It added

the date that she submitted a dues deduction authorization card,

June 30, 2011. It also dropped another union as a party. Those

revisions reflect the state of things as of her original complaint,

and thus they are amendments. But Lutter’s second complaint

removed the original allegation that Lutter “is a member of the

JNESO.” Compare Compl. ¶ 19 (JA44), with Am. Compl.

¶¶ 21–25 (JA56–57). It also added factual allegations that

arose after the original complaint: that Lutter did not have any

(amendment “once as a matter of course” within a certain

period and afterwards leave to amend should be “freely give[n]

. . . when justice so requires”), with id. 15(d) (supplementation

“on just terms”). But cf. T Mobile Ne. LLC, 913 F.3d at 327–

29 (applying relation-back principles from amended pleadings

to supplemental pleadings).

14

See Mathews v. Diaz, 426 U.S. 67, 75 (1976) (recognizing

that a supplemental complaint supersedes the prior complaint

with respect to the allegations it supplements).

15

Supplementation may not affect every claim and every form

of requested relief. A supplemental pleading allows the

reassessment of a plaintiff’s Article III standing only for the

claims and relief substantively affected by the

supplementation.

17

opportunity to cease paying dues for nearly a year and that such

dues were deducted from her paycheck during that time.

Because those alterations reflect post-filing developments,

they supplement the original complaint. Accordingly, Lutter’s

second complaint, although labeled as an ‘amended

complaint,’ is actually an amended and supplemental

complaint.

Critically for purposes of Article III standing, the

supplemental allegations substantively affect all of Lutter’s

claims and requested relief. She now proceeds as a non-

member of a union who seeks relief for the prior deduction of

union dues from her paycheck for nearly a year. Because the

supplemented allegations substantively affect the entirety of

her claims and relief sought, Lutter’s Article III standing

should be evaluated as of February 28, 2020, the date she filed

the second complaint.

Using that date to evaluate her standing, Lutter has failed

to plausibly allege standing except with respect to her claims

against JNESO for a refund of her union dues.16

1. Injury-in-Fact

Lutter’s claims satisfy the injury-in-fact requirement. An

injury-in-fact is “‘an invasion of a legally protected interest’

that is ‘concrete and particularized’ and ‘actual or imminent,

not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339

(citing Lujan, 504 U.S. at 560). Her operative complaint

16

By plausibly alleging standing for one claim, Lutter also has

standing for her requests for attorney’s fees and costs, which,

in this case, are dependent on the viability of her underlying

claims. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480

(1990) (recognizing that a request for attorney’s fees under

42 U.S.C. § 1988 is “insufficient to create an Article III case or

controversy where none exists on the merits of the underlying

claim” (citation omitted)).

18

sufficiently alleges the invasion of her First Amendment right

against the compelled subsidization of speech. Lutter did not

wish to financially support JNESO’s speech, but as directed by

the WDEA, union dues were deducted from her paycheck for

ten months after she requested that they cease.17 The invasion

of that interest is actual since the funds were taken out of her

paycheck against her wishes and used by JNESO. See Tyler v.

Hennepin County, 598 U.S. 631, 636 (2023) (recognizing a

claim that one party kept money that it was not entitled to was

“a classic pocketbook injury sufficient [for] standing”);

Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 293 (3d

Cir. 2005) (“Monetary harm is a classic form of injury-in-fact.”

(citation omitted)); see also Edmonson v. Lincoln Nat’l Life

Ins. Co., 725 F.3d 406, 417 (3d Cir. 2013) (holding that an

injury-in-fact exists by virtue of a defendant’s “use of assets

that belonged to” the plaintiff). Lutter’s injury is particularized

because the deduction of those union dues from her paycheck

affected her “in a personal and individual way.” Spokeo,

578 U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1). And the

deduction of union dues is concrete because it was “real, and

not abstract.” Id. at 340 (quotation marks and citation omitted).

17

Because Lutter ties the deductions of her union dues to the

WDEA, the nature of her injury-in-fact differs from the

plaintiff in LaSpina v. SEIU Pennsylvania State Council,

985 F.3d 278 (3d Cir. 2021). There, a member of a public-

sector union in Pennsylvania sued the union for continuing to

collect dues for two months after she submitted a resignation,

but unlike Lutter, the former union member did not allege that

the union’s delay was pursuant to the express direction from a

state statute, such as the WDEA. See id. at 287 (“The

deduction of membership dues without authorization in this

context may be an injury. It is just not a constitutional one.”);

cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 933 (1982)

(“[P]rivate use of the challenged state procedures with the help

of state officials constitutes state action for purposes of the

Fourteenth Amendment.”).

19

For completeness, and relevant for evaluating fairly

traceable causation and redressability, which both depend on

the nature of the injury-in-fact, see TransUnion LLC,

141 S. Ct. at 2203, Lutter does not plausibly allege an

imminent injury-in-fact. At the time of her second complaint,

Lutter was no longer a member of JNESO, so neither her

inability to immediately resign from a union nor the deduction

of future JNESO union dues from her paycheck was “certainly

impending” or subject to a “substantial risk” of reoccurring.

Clapper, 568 U.S. at 409, 414 n.5 (quoting Lujan, 504 U.S. at

565 n.2); see also Whitmore v. Arkansas, 495 U.S. 149, 158

(1990) (“A threatened injury must be certainly impending to

constitute [an] injury in fact.” (quotations and citation

omitted)). Thus, Lutter alleges standing only for an actual

injury-in-fact.

2. Fairly Traceable Causation

Lutter’s operative complaint plausibly alleges a fairly

traceable causal connection between her injury-in-fact and two

of the defendants, but not the others. Fair traceability requires

a causal connection between the injury-in-fact and a

defendant’s conduct; the injury cannot result from “the

independent action of some third party not before the court.”

Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rts.

Org., 426 U.S. 26, 41–42 (1976)). Here, Lutter’s operative

complaint alleges that JNESO and Essex County were

responsible for the deductions of union dues from her

paycheck, so her injury-in-fact is fairly traceable to their

actions.

By contrast, Lutter’s claims against the other defendants –

all of whom are New Jersey officials sued in their official

capacities – fail to allege fairly traceable causation. Because

the WDEA prolonged the deductions of union dues from her

paycheck, she sues the Governor, the Attorney General, and

the Members of the Public Employment Relations Commission

for declaratory and injunctive relief. Although Lutter alleges a

causal nexus to the WDEA, she does not identify any action

20

taken by these state officials to enforce that statute; she alleges

that only Essex County and JNESO were responsible for the

dues deductions. See Lugar v. Edmondson Oil Co., 457 U.S.

922, 941 (1982) (“While private misuse of a state statute does

not describe conduct that can be attributed to the State, the

procedural scheme created by the statute obviously is the

product of state action.”). And without identifying a fairly

traceable nexus between her injury-in-fact and conduct by the

New Jersey officials, Lutter’s allegations fail the second prong

of Article III standing with respect to them.18

3. Redressability

The redressability requirement ensures that the asserted

injury-in-fact is capable of resolution in a manner consistent

with the traditional understanding of the judicial process. See

United States v. Texas, 143 S. Ct. 1964, 1970 (2023); Raines v.

Byrd, 521 U.S. 811, 819 (1997). For requested relief to satisfy

this requirement, it “must be ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’” Lujan, 504 U.S. at 561 (quoting Simon, 426 U.S.

at 38, 43). With respect to claims for legal or equitable relief,

a favorable opinion need not relieve every injury; the judgment

need only relieve “a discrete injury.” Larson v. Valente,

456 U.S. 228, 243 n.15 (1982). However, for a declaratory

judgment to provide redress, it must “completely resolve[] a

concrete controversy susceptible to conclusive judicial

determination.” Calderon v. Ashmus, 523 U.S. 740, 749

(1998); see also Coffman v. Breeze Corps., 323 U.S. 316, 323–

24 (1945) (holding that a plaintiff lacked standing for a

18

It is permissible to challenge the constitutionality of a state

statute without suing state officials in their official capacities:

both a federal statute and a federal rule of civil procedure

expressly contemplate such a situation. See 28 U.S.C.

§ 2403(b); Fed. R. Civ. P. 5.1(a).

21

requested declaratory judgment on potential defenses to a

claim that could be later adjudicated).

Applying these principles, Lutter’s claim for compensatory

damages against JNESO is redressable. Damages, which

operate as a “substitute for a suffered loss,” are a recognized

form of judicial redress for past injuries. Bowen v.

Massachusetts, 487 U.S. 879, 895 (1988) (citing D. Dobbs,

Handbook on the Law of Remedies 135 (1973)); see also

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021)

(holding that even nominal damages provide redress for a past

injury-in-fact).

The other forms of relief that Lutter requests will not

redress her injury-in-fact. She seeks a preventive injunction

against JNESO and Essex County to enjoin the further

collection of union dues from her paycheck. See Dobbs &

Roberts, Law of Remedies: Damages, Equity, Restitution

§ 2.9(1) (3d ed. 2018) (“A preventive injunction attempts to

prevent the loss of an entitlement in the future”). But by the

time of her operative complaint, Lutter was not a member of

JNESO, and Essex County was not deducting union dues from

her paycheck. Because those deductions had already occurred

and were not likely to reoccur – at least without Lutter’s

consent – a preventive injunction was unlikely to remedy the

compelled past deductions of union dues from her paycheck.

Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)

(“Past exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.”

(quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974))).

Lutter’s requests for declaratory judgments also fail the

redressability requirement. She seeks declarations that the

WDEA is unconstitutional and that she has a constitutional

right to immediately resign from public-sector unions. But for

a declaratory judgment to redress an injury-in-fact, as opposed

to serving as an advisory opinion, it must provide something

22

other than the “emotional satisfaction” of a favorable ruling.

Ashcroft v. Mattis, 431 U.S. 171, 172 (1977); see also

Diamond v. Charles, 476 U.S. 54, 62 (1986) (“The presence of

a disagreement, however sharp and acrimonious it may be, is

insufficient by itself to meet [Article] III’s requirements.”).

Instead, to redress an injury-in-fact, a declaratory judgment

must provide conclusive resolution of a concrete controversy

related to a prospective course of action by one of the adverse

parties. See Calderon, 523 U.S. at 749 (holding that a

declaratory judgment was not justiciable because it “would not

completely resolve [all] challenges but would simply carve out

one issue in the dispute for separate adjudication”); Aetna Life

Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240–41 (1937)

(holding that a request for a declaratory judgment regarding an

insured’s disability was justiciable). Yet Lutter does not

identify any prospective course of action of her own or by

JNESO or Essex County for which she needs legal resolution

through declaratory judgments. See Hendrickson v. AFSCME

Council 18, 992 F.3d 950, 958 (10th Cir. 2021) (holding that a

former-union-member plaintiff lacks standing for “a

declaration [of the] constitutionality of the Union’s opt-out

window as applied to him”). If anything, Lutter’s operative

complaint, by alleging that she has resigned her JNESO

membership and that the payroll deductions of union dues had

ceased, confirms that resolution of either the constitutionality

of the WDEA or her putative constitutional right to

immediately resign from a public-sector union would have

nothing more than an abstract value to her.

In short, based on her supplemental allegations, Lutter’s

operative complaint plausibly alleges Article III standing for

only her damages claim against JNESO (as well as for her

ancillary request for attorney’s fees and costs from JNESO).

B. Article III Mootness

Like standing, Article III mootness derives from the case-

or-controversy requirement. See Liner v. Jafco, Inc., 375 U.S.

301, 306 n.3 (1964) (“Our lack of jurisdiction to review moot

23

cases derives from the requirement of Article III of the

Constitution under which the exercise of judicial power

depends upon the existence of a case or controversy.”); cf. The

Mootness Doctrine in the Supreme Court, 88 Harv. L. Rev.

373, 374 (1974) (recognizing that initially courts grounded

mootness “in the common law doctrine that courts lack power

to decide abstract questions in cases where no dispute exists”).

Accordingly, much of the mootness analysis parallels the

tripartite standing test in that a prerequisite for mootness is the

loss of standing during the pendency of the litigation. See

Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“[T]hroughout the

litigation, the plaintiff ‘must have suffered, or be threatened

with, an actual injury traceable to the defendant and likely to

be redressed by a favorable judicial decision.’” (quoting Lewis

v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990))); Arizonans

for Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997) (“To qualify

as a case fit for federal-court adjudication, ‘an actual

controversy must be extant at all stages of review, not merely

at the time the complaint is filed.’” (quoting Preiser v.

Newkirk, 422 U.S. 395, 401 (1975))). And just as the party

seeking to establish standing bears the burden of proof, the

party seeking to demonstrate the loss of standing during the

pendency of the litigation bears the burdens of production and

persuasion. See Hartnett v. Pa. State Educ. Ass’n, 963 F.3d

301, 305–06 (3d Cir. 2020). Also, mootness, like standing,

may be raised at any time, but unlike standing, mootness

depends on the state of things after the lawsuit commenced.

See Church of Scientology of Cal. v. United States, 506 U.S. 9,

12 (1992) (permitting a mootness challenge based on events

that occurred while the case was on appeal); The Mootness

Doctrine in the Supreme Court, 88 Harv. L. Rev. at 377–78

(“In mootness inquiries . . . the range of factual questions

which must be considered is greater than in other justiciability

cases.”).

Despite its similarities to standing, mootness is not merely

the post-suit absence of standing. See Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190

24

(2000) (“Careful reflection on the long-recognized exceptions

to mootness, however, reveals that the description of mootness

as ‘standing set in a time frame’ is not comprehensive.”);

Hartnett, 963 F.3d at 306. The other case-or-controversy

considerations – the genuine-adversity requirement and the

prohibition on advisory opinions – also influence the mootness

analysis. For instance, if a defendant ceases conduct that

resulted in an actual or imminent injury-in-fact, the parties may

remain genuine adversaries if the defendant, upon dismissal of

the case, were “free to return to his old ways.” United States

v. W. T. Grant Co., 345 U.S. 629, 632 (1953).19 Thus, a

defendant’s voluntary cessation of the complained-of conduct

does not moot claims for prospective relief unless that

defendant meets the “heavy” burden of establishing that “there

is no reasonable expectation that the wrong will be repeated,”

id. at 633 (quotation omitted), and “interim relief or events

have completely and irrevocably eradicated the effects of the

alleged violation,” County of Los Angeles v. Davis, 440 U.S.

625, 631 (1979) (citations omitted).20 Similarly, if during the

litigation, a plaintiff can no longer satisfy the elements of

19

See also Knox v. Serv. Emps. Int’l Union, Loc. 1000,

567 U.S. 298, 307 (2012) (“The voluntary cessation of

challenged conduct does not ordinarily render a case moot

because a dismissal for mootness would permit a resumption

of the challenged conduct as soon as the case is dismissed.”);

cf. City News & Novelty, Inc. v. City of Waukesha, 531 U.S.

278, 284 n.1 (2001) (refraining from applying the voluntary

cessation doctrine when it was the plaintiff, “not its adversary,

whose conduct sap[ped] the controversy of vitality” (emphasis

added)).

20

See also Friends of the Earth, 528 U.S. at 189 (“The ‘heavy

burden of persua[ding]’ the court that the challenged conduct

cannot reasonably be expected to start up again lies with the

party asserting mootness.” (alteration in original) (quoting

United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S.

199, 203 (1968))); Hartnett, 963 F.3d at 305–06.

25

standing, a court ruling may not be an advisory opinion if the

plaintiff establishes that the defendant’s conduct was capable

of repetition yet evading review. See County of Butler v.

Governor of Pa., 8 F.4th 226, 231 (3d Cir. 2021) (“A plaintiff

bears the burden to show that the ‘capable of repetition yet

evading review’ exception applies.” (citations omitted)); N.J.

Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d

Cir. 1985). In sum, the absence of Article III standing is a

necessary condition for mootness, but due to the voluntary-

cessation and capable-of-repetition-yet-evading-review

exceptions, it is not always a sufficient condition.

In challenging mootness, JNESO bears the burden of

establishing that Lutter lost Article III standing after the filing

of her supplemental complaint on February 28, 2020. As far

as its burden of production, JNESO relies on correspondence

from its counsel to Lutter’s attorney dated March 12, 2020.

Enclosed therein was a check, which JNESO’s counsel

described in the cover letter as being in the amount of the union

dues collected from Lutter “after she declared her desire to

resign from membership in JNESO,” plus interest. Letter from

Ptasiewicz (JA85). There is, however, no evidence that Lutter

ever cashed or deposited the check. Also, during the pendency

of this appeal, New Jersey enacted the Responsible Collective

Negotiations Act, which eliminated the ten-day window

provided by the WDEA for public-sector employees to revoke

their authorizations for payroll deductions of union dues. See

2021 N.J. Sess. Law Serv. Ch. 411 (West) (codified at N.J.

Stat. Ann. § 52:14-15.9e). On that record, JNESO must – as a

prerequisite to establishing mootness – demonstrate that

Lutter’s Article III standing was extinguished.

For the first and second elements of standing, those

intervening events do not undo Lutter’s injury-in-fact or its fair

traceability to JNESO. Lutter’s alleged injury-in-fact was the

invasion of her First Amendment right protecting her from the

compelled subsidization of speech through the operation of the

WDEA, which, at the time, governed the deduction of union

26

dues from her paycheck. See Janus, 138 S. Ct. at 2464 (“When

speech is compelled, . . . additional damage is done. In that

situation, individuals are coerced into betraying their

convictions.”). But neither JNESO’s check for Lutter’s dues

plus interest nor the repeal of the WDEA’s ten-day window

changed Lutter’s allegations that she had subsidized JNESO’s

speech against her will. See id. (“Because the compelled

subsidization of private speech seriously impinges on First

Amendment rights, it cannot be casually allowed.”). So her

injury-in-fact persists, and it remains fairly traceable to

JNESO, which received union dues from Lutter’s paycheck

after she requested that the deductions cease and that she resign

from the union. Cf. Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66, 81 (2013) (Kagan, J., dissenting) (explaining that

after an unaccepted offer of judgment, the plaintiff’s “stake in

the lawsuit . . . remained what it had always been”); see also

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 162 (2016)

(adopting Justice Kagan’s analysis in her Genesis Healthcare

dissent).

Like the other two elements, the third, redressability, is

“rooted in the traditional understanding of a case or

controversy.” Spokeo, 578 U.S. at 338; see also Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 103 (1998); Raines,

521 U.S. at 818–19. Relevant here, the mechanism of contract

has been traditionally understood to limit the scope of judicial

redress. It is firmly entrenched in American jurisprudence that

parties can contractually agree not to resolve disputes in court

but proceed instead through arbitration. See Bel-Ray Co. v.

Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999)

(“Arbitration is strictly a matter of contract.”); see also United

Steelworkers of Am. v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 582 (1960) (“[A]rbitration is a matter of contract

and a party cannot be required to submit to arbitration any

dispute which he has not agreed so to submit.”). Once in court,

parties may still alter their rights relative to one another by

agreeing to resolve pending claims. Yet, from the founding, it

has been understood that “courts ‘render a judgment or decree

27

upon the rights of the litigant[s].’” Texas, 143 S. Ct. at 1980

(Gorsuch, J., concurring) (alterations in original) (quoting

Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 718

(1838)). So when parties alter their rights relative to one

another through a settlement agreement, they typically

eliminate the necessity of judicial redress with respect to the

settled matters. See Alvarez v. Smith, 558 U.S. 87, 94 (2009)

(recognizing that “where mootness results from settlement

rather than happenstance, the losing party has voluntarily

forfeited his legal remedy” (quotations and citations omitted)).

But cf. Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d

218, 224 (3d Cir. 2000) (holding that a case subject to a “high-

low settlement agreement” was not moot). And by settling a

dispute, the parties dramatically diminish the likelihood that a

favorable decision would redress the injury-in-fact.21

But here there was no settlement contract to alter the

parties’ rights relative to each other and affect the scope of

traditionally permissible judicial relief. JNESO’s

correspondence is not a valid settlement offer. In its cover

letter, JNESO sought no promise or performance in return for

the check. See Restatement (Second) of Contracts § 24 (Am.

L. Inst. 1981) (“An offer is the manifestation of willingness to

enter into a bargain, so made as to justify another person in

understanding that his assent to that bargain is invited and will

conclude it.”); id. § 3 (“A bargain is an agreement to exchange

21

The mootness-by-reason-of-settlement principle makes

unnecessary consideration of the voluntary-cessation and the

capable-of-repetition-yet-evading-review exceptions. See U.S.

Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 29

(1994) (recognizing “mootness by reason of settlement” and

discussing its consequences on a judgment under review);

United Airlines, Inc. v. McDonald, 432 U.S. 385, 400 (1977)

(Powell, J., dissenting) (“The settlement of an individual claim

typically moots any issues associated with it.”); Lusardi v.

Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992) (“Settlement of

a plaintiff’s claims moots an action”).

28

promises or to exchange a promise for a performance or to

exchange performances.” (emphasis added)). To the contrary,

JNESO disavowed “seeking any conditions or promises from

Ms. Lutter.” Letter from Ptasiewicz (JA85). Similarly, neither

the cover letter nor the check contained conspicuous language

that the check was tendered in full satisfaction of Lutter’s

claims – as required by New Jersey’s Uniform Commercial

Code for a check to function as a settlement offer. See N.J.

Stat. Ann. § 12A:3-311(b) (West 2018) (allowing discharge of

a claim “if the person against whom the claim is asserted

proves that the instrument or an accompanying written

communication contained a conspicuous statement to the effect

that the instrument was tendered as full satisfaction of the

claim”). Even if the check did suffice for a settlement offer,

Lutter did not accept it because under New Jersey’s Uniform

Commercial Code, to accept such an offer, the recipient has to

“obtain[] payment of the instrument,” and there is no evidence

that Lutter ever did so. Id. § 12A:3-311(a); see also Hoekman

v. Educ. Minn., 41 F.4th 969, 977 (8th Cir. 2022) (“[A]n

uncashed check is not materially different from an unaccepted

offer of settlement.”). Yet, an unaccepted settlement offer –

even one that purports to satisfy a claim in full – does not moot

a case. See Campbell-Ewald, 577 U.S. at 162–63; id. at 174

(Thomas, J., concurring in the judgment) (“[S]tate and federal

courts have not considered a mere offer, without more,

sufficient to moot [a] case.”); Knox v. Serv. Emps. Int’l Union,

Loc. 1000, 567 U.S. 298, 307 (2012) (holding that a post-

certiorari offer to class members to fully refund the collection

of disputed union dues did not moot the case); LaSpina v. SEIU

Pa. State Council, 985 F.3d 278, 288 n.2 (3d Cir. 2021)

(suggesting in dicta that a former union member’s “refusal to

cash the check may be sufficient to defeat mootness”).22 Thus,

22

See also Genesis Healthcare, 569 U.S. at 81 (Kagan, J.,

dissenting) (recognizing that an unaccepted offer of judgment

does not limit “the court’s capacity to grant . . . relief”); Gates

v. Towery, 430 F.3d 429, 432 (7th Cir. 2005) (“A defendant

29

JNESO’s correspondence to Lutter, inclusive of the check for

union dues plus interest, does not, by itself, moot her case.

Still, a settlement agreement is not necessary to moot a

case. See Campbell-Ewald, 577 U.S. at 180 (Roberts, C.J.,

dissenting) (“Article III does not require the parties to

affirmatively agree on a settlement before a case becomes

moot.”). The unilateral action of one party may eliminate a

plaintiff’s Article III standing, but that commonly occurs when

some unilateral action abates the asserted injury-in-fact,

especially for injuries that are ongoing or imminent. See Burke

v. Barnes, 479 U.S. 361, 364 n* (1987) (concluding that the

expiration of a statute extinguished any “judicially cognizable

injury”); cf. Lewis, 494 U.S. at 481 (permitting “suits for

prospective relief to go forward despite abatement of the

underlying injury only in the ‘exceptional situations’” of an

injury capable of repetition yet evading review (quoting Lyons,

461 U.S. at 109)); DeFunis v. Odegaard, 416 U.S. 312, 318

(1974) (recognizing the usual applicability of voluntary

cessation concerns in response to a defendant’s “unilateral

change” that eliminates the claimed injury).

But this case involves an actual injury-in-fact inflicted in

the past that remains. So to show that Lutter’s claim is

presently non-redressable, JNESO must demonstrate that even

without a settlement agreement to alter the rights of the parties,

a damages award would be unlikely to redress Lutter’s injury.

JNESO identifies one case fitting that description: California

v. San Pablo & Tulare R.R. Co., 149 U.S. 308 (1893). There,

a railroad that owed delinquent taxes to California deposited

the amount of money owed in taxes plus interest, penalties, and

costs, into a bank. Under a state statute, those actions

“extinguished” the railroad’s obligation for the payment of

money. Id. at 314. Because a state statute allowed the

cannot simply assume that its legal position is sound and have

the case dismissed because it has tendered everything it admits

is due.”).

30

unilateral action by one party to alter the parties’ rights relative

to each other and affect the scope of traditionally permissible

judicial relief, the Supreme Court held that the case was moot.

Id. But here, there is no applicable law that, when coupled with

JNESO’s post-filing actions, would alter the rights of the

parties relative to one another.

Altogether, in the absence of a settlement agreement or

some other alteration of the litigants’ relative rights, JNESO

has not demonstrated that the traditional damages remedy

would not likely provide some redress to Lutter. See

13C Federal Practice and Procedure § 3533.3 (“The

availability of damages or other monetary relief almost always

avoids mootness.”). And without proof that Lutter lost

Article III standing during the litigation, this case is not moot.

See Wheeling-Pittsburgh Steel Corp. v. United Steelworkers of

Am., AFL-CIO-CLC, 791 F.2d 1074, 1080 (3d Cir. 1986)

(recognizing that one party’s “motivating interest in securing a

precedent does not render the case nonjusticiable as long as

there are, in fact, stakes at issue”).23

This holding – that the post-suit provision of a check for the

amount owed for the underlying claims plus interest does not

moot Lutter’s claims – aligns well with the fee-shifting

consequences of dismissals on mootness grounds. Even when

a statute authorizes the recovery of attorney’s fees, a plaintiff

cannot recover fees for a mooted claim because such a

disposition lacks the “judicial imprimatur” of a change in the

legal relationship of the parties. Buckhannon Bd. & Care

Home, Inc. v. W.V. Dep’t of Health & Hum. Res., 532 U.S. 598,

605 (2001) (emphasis removed); see also Lewis, 494 U.S. at

480. Under that rule, a dismissal on mootness grounds is an

attractive disposition for a defendant who is subject to liability

23

Because the voluntary-cessation and capable-of-repetition-

yet-evading-review exceptions apply only when a plaintiff has

lost Article III standing during the course of the litigation, it is

not necessary to address their applicability here.

31

for attorney’s fees but who does not wish to contest liability for

the underlying claims. In contrast to the other options

commonly available to such a defendant for resolving the case

expeditiously – settling it,24 defaulting,25 or making an offer of

judgment26 – which require an accounting for fee liability at

some point, a dismissal on mootness grounds does not. So if a

check in the amount owed for the underlying claims (but not

fees and costs) sufficed for mootness, then defendants could

avoid fee liability in an unprecedented manner. By avoiding

that outcome, today’s holding does not open a loophole for

defendants to avoid fee exposure. See N.Y. State Rifle & Pistol

Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1538 (2020)

(Alito, J., dissenting) (“But where a live controversy remains,

a defendant who would otherwise be liable for attorney’s fees

should not be able to wiggle out on the basis of a spurious claim

of mootness.”).27

24

See Buckhannon, 532 U.S. at 609 (“If a case is not found to

be moot, and the plaintiff later procures an enforceable

judgment, the court may of course award attorney’s fees.

Given this possibility, a defendant has a strong incentive to

enter a settlement agreement, where it can negotiate attorney’s

fees and costs.”).

25

See Fed. R. Civ. P. 55.

26

See Fed. R. Civ. P. 68(a), (d); see also 42 U.S.C. § 1988(b)

(defining attorney’s fees as part of “costs”); Marek v. Chesney,

473 U.S. 1, 46 (1985) (Brennan, J., dissenting, app.)

(recognizing 42 U.S.C. § 1988 as a statute in which attorney’s

fees were referred to as ‘costs’).

27

Because it dismissed Lutter’s complaint on standing and

mootness grounds, the District Court did not consider JNESO’s

two additional challenges to the legal sufficiency of the

operative complaint. But with the partial vacating of the

District Court’s order to allow Lutter’s damages claim against

JNESO, those two issues – whether Janus invalidated

32

CONCLUSION

For the foregoing reasons, the orders of the District Court

will be affirmed in part and vacated in part, and this case will

be remanded for resolution of Lutter’s claims for damages (and

potentially attorney’s fees and costs) against JNESO.

previous, valid authorizations of payroll deductions of union

dues and whether JNESO was a state actor subject to suit under

§ 1983 – are properly addressed in the first instance by the

District Court on remand. Also, because Lutter lacks standing

to pursue claims against the official-capacity defendants, it is

not necessary to resolve their arguments in favor of Eleventh

Amendment immunity and certification to the New Jersey

Supreme Court.

33