Petition for Writ of Certiorari — David Seidemann, et al., Petitioners v. Professional Staff Congress Local 2334, et al.

ia

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Second Circuit,

Summary Order in 20-460,

Issued January 11, 2021 ..................................1a–10a

United States District Court for the

Southern District of New York,

Opinion and Order in 1:18-cv-09778-KPF,

Issued January 10, 2020 ................................ 11a–48a

1a

20-460

Seidemann v. Professional Staff Congress

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT

HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL

RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS

COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC

DATABASE

(WITH

THE

NOTATION

“SUMMARY ORDER”). A PARTY CITING TO A

SUMMARY ORDER MUST SERVE A COPY OF

IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 11th day of January,

two thousand twenty-one.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

MICHAEL h. PARK,

STEVEN j. MENASHI,

Circuit Judges.

___________________________________

2a

DAVID SEIDEMANN, BRUCE MARTIN,

individually and on behalf of all others

similarly situated,

Plaintiffs-Appellants,

v.

No. 20-460

PROFESSIONAL STAFF CONGRESS LOCAL

2334, AMERICAN FEDERATION OF

TEACHERS AFL-CIO, AMERICAN

FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS,

AMERICAN ASSOCIATION OF UNIVERSITY

PROFESSORS COLLECTIVE BARGAINING

CONGRESS, NEW YORK STATE UNITED

TEACHERS, NATIONAL EDUCATION

ASSOCIATION OF THE UNITED STATES,

Defendants-Appellees,

FACULTY ASSOCIATION OF SUFFOLK

COUNTY COMMUNITY COLLEGE,

UNITED UNIVERSITY PROFESSIONS,

FARMINGDALE STATE COLLEGE CHAPTER,

Appellees.

______________________________________

For PlaintiffsAppellants:

Gregory N. Longworth,

Clark Hill PLC, Grand

Rapids, MI; John J.

Bursch,

Bursch

Law

PLLC, Caledonia, MI

3a

For DefendantAppellee Professional

Staff Congress Local

2334:

Michael J. Del Piano,

Edward J. Greene, Jr.,

Andrea A. Wanner for

Robert T. Reilly, General

Counsel, New York State

United Teachers, New

York, NY; Charles G.

Moerdler, Alan M. Klinger,

Dina Kolker, Arthur J.

Herskowitz, Stroock &

Stroock & Lavan LLP, New

York, NY; Hanan B. Kolko,

Cohen, Weiss & Simon

LLP, New York, NY; Peter

Zwiebach, New York, NY

For DefendantsAppellees American

Federation of

Teachers and New

York State United

Teachers:

Michael J. Del Piano,

Edward J. Greene, Jr.,

Andrea A. Wanner for

Robert T. Reilly, General

Counsel, New York State

United Teachers, New

York, NY; Charles G.

Moerdler, Alan M. Klinger,

Dina Kolker, Arthur J.

Herskowitz, Stroock &

Stroock & Lavan LLP, New

York, NY

4a

For DefendantAppellee National

Education

Association of the

United States:

Michael J. Del Piano,

Edward J. Greene, Jr.,

Andrea A. Wanner for

Robert T. Reilly, General

Counsel, New York State

United Teachers, New

York,

NY;

Scott

A.

Kronland,

Altshuler

Berzon

LLP,

San

Francisco, CA

For DefendantAppellee American

Federation of Labor

and Congress of

Industrial

Organizations:

Kent

Y.

Gladstein,

Meginniss,

York, NY

For DefendantAppellee American

Association of

University Professors

Collective Bargaining

Congress:

David M. Slutsky, Levy

Ratner, P.C., New York,

NY

For Appellees:

Michael J. Del Piano,

Edward J. Greene, Jr.,

Andrea A. Wanner for

Robert T. Reilly, General

Counsel, New York State

United Teachers, New

York, NY

Hirozawa,

Reif

&

LLP,

New

5a

Appeal from a judgment of the United States

District Court for the Southern District of New York

(Failla, J.).

UPON DUE CONSIDERATION, IT IS

HEREBY

ORDERED,

ADJUDGED,

AND

DECREED that the judgment of the district court is

AFFIRMED.

Plaintiffs David Seidemann and Bruce Martin

(together, “Plaintiffs”), on behalf of themselves and all

others similarly situated, appeal from a judgment of

the United States District Court for the Southern

District of New York (Failla, J.), entered on January

10, 2020, dismissing all of their claims against the

defendant unions (together, “Defendants”). Plaintiffs

were both public employees who chose not to join the

unions representing their fellow employees. New York

law, however, still required both to pay agency shop

fees to those unions. In Janus v. AFSCME, Council

31, 138 S. Ct. 2448 (2018), the Supreme Court overruled its earlier decision in Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), and held that such

laws violate the First Amendment. Plaintiffs brought

suit requesting both prospective relief (declaring New

York’s law unconstitutional and enjoining Defendants

from collecting agency shop fees) as well as a refund

of the fees they and the other class members were

unconstitutionally required to pay. The district court

dismissed their request for prospective relief for lack

of subject-matter jurisdiction and their federal and

state law claims for a refund of their agency shop fees

for failure to state a claim. We assume the parties’

familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

*

*

*

6a

We first address the district court’s dismissal of

Plaintiffs’ claims for prospective relief under Rule

12(b)(1). The district judge concluded that Plaintiffs

lack Article III standing on the face of their complaint.

In such cases, review by this Court is de novo, accepting as true all material allegations in the complaint

and drawing all reasonable inferences in favor of the

plaintiff. Carter v. HealthPort Tech., LLC, 822 F.3d

47, 57 (2d Cir. 2016); see Already, LLC v. Nike, Inc.,

568 U.S. 85, 90 (2013) (“[Article III] requires those

who invoke the power of a federal court to demonstrate standing . . . .”). After reviewing Plaintiffs’ complaint, we agree that they have failed to demonstrate

standing to request prospective relief.

At the start, we acknowledge that, as a theoretical

matter, the Supreme Court’s decision in Janus may

not be the end of the standing inquiry in a case such

as this one. Cf. Pool v. City of Houston, 978 F.3d 307

(5th Cir. 2020) (holding plaintiffs had standing to

challenge a law the city admitted was unconstitutional under Supreme Court precedent). But standing

requires more than a mere allegation that an

unlawful state of affairs exists. To have standing, a

plaintiff must show that he or she has suffered an

injury in fact. Liberian Cmty. Ass’n of Conn. v.

Lamont, 970 F.3d 174, 184 (2d Cir. 2020). This, in

turn, requires that the injury must be “‘concrete and

particularized’ as well as ‘actual or imminent, not

conjectural or hypothetical.’” Id. (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In

particular, allegations of possible future injury are not

sufficient unless “the threatened injury is ‘certainly

impending,’ or there is a ‘substantial risk that the

harm will occur.’” Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014) (quoting Clapper v. Amnesty

Int’l, 568 U.S. 398, 414 & n.5 (2013)).

7a

Plaintiffs’ complaint does not meet this bar. It

contains no allegations of future harm or any factual

matter that could lead us to conclude that there is any

risk (much less a substantial one) that Defendants

will attempt to collect agency shop fees in the future.

See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d

Cir. 2016) (“Plaintiffs lack standing to pursue injunctive relief where they are unable to establish a ‘real or

immediate threat’ of injury.” (quoting City of Los

Angeles v. Lyons, 461 U.S. 95, 111 (1983))); see also

Pool, 978 F.3d at 312 (“Without any indication that

the government is planning to enforce a law after a

similar one has been held unconstitutional in a

binding decision, there would be no objective fear of

continued enforcement.”). Moreover, Plaintiffs admit

that the Defendants have provided assurances that

they will not deduct the unconstitutional agency shop

fees from Plaintiffs’ paychecks. Plaintiffs have

therefore failed to allege facts that would establish

standing to request prospective relief. Accordingly,

their claims were properly dismissed for lack of

subject-matter jurisdiction.

We turn next to Plaintiffs’ claim under 42 U.S.C.

§ 1983 that they are entitled to a refund of the agency

shop fees they paid to Defendants. Judge Failla’s wellreasoned opinion concluded that Defendants had a

good-faith defense against claims under § 1983 and

that Defendants had established an entitlement to

this defense as a matter of law. Since the district

court’s order, we have reached the same conclusion

about § 1983. Specifically, in Wholean v. CSEA SEIU

Local 2001, this Court held “that a party who

complied with directly controlling Supreme Court

precedent in collecting fair-share fees cannot be held

liable for monetary damages under § 1983.” 955 F.3d

332, 334 (2d Cir. 2020). Though Plaintiffs’ brief was

8a

filed after Wholean, it provides essentially no

explanation why Wholean’s holding does not control

the outcome here, choosing instead to explain why, in

their view, the case was wrongly decided. But absent

such a distinction, Wholean controls.1

Finally, Plaintiffs argue they are entitled to a

refund of the agency shop fees under a state-law

theory of conversion or, in the alternative, unjust

enrichment. Standing in their way is N.Y. CIV. SERV.

LAW § 215 which provides:

Notwithstanding any other law to the

contrary, any public employer, any employee

organization, the comptroller and the board,

or any of their employees or agents, shall not

be liable for, and shall have a complete

defense to, any claims or actions under the

laws of this state for requiring, deducting,

receiving, or retaining dues or agency shop fee

deductions from public employees, and current or former public employees shall not have

standing to pursue these claims or actions, if

the dues or fees were permitted or mandated

at the time under the laws of this state then

in force and paid, through payroll deduction or

otherwise, prior to June [27, 2018].

Plaintiffs raise a number of unavailing arguments

against the application of this provision to their

1 Plaintiffs argue in addition that Defendants did not act in good

faith. The district court correctly observed, however, that the

complaint is devoid of allegations to this effect, nor can such allegations be found anywhere in the “narrow universe of materials”

outside the complaint that a court may consider when ruling on

a Rule 12(b)(6) motion. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d

Cir. 2016). As a result, we agree that Plaintiffs’ federal claims

were properly dismissed.

9a

claims, the strongest of which is based on the New

York Constitution.2 The New York Constitution

provides, in pertinent part, that “[n]o provision shall

be embraced in any appropriation bill submitted by

the governor or in such supplemental appropriation

bill unless it relates specifically to some particular

appropriation in the bill, and any such provision shall

be limited in its operation to such appropriation.” N.Y.

CONST. art. VII, § 6. Plaintiffs claim that § 215 violates

this provision. We agree with the district court, however, that the relevant New York cases interpreting

this provision impose a relatively low bar for what

“relates specifically to some particular appropriation.”

See Ctr. for Judicial Accountability, Inc. v. Cuomo,

167 A.D.3d 1406, 1411–12 (3d Dep’t 2018) (concluding

that creation of a commission to review judicial

compensation was related to items in the budget); see

also Schuyler v. S. Mall Constructors, 32 A.D.2d 454,

456 (3d Dep’t 1969) (concluding that the challenged

provision “relate[d] specifically to some particular

appropriation in the bill, even though the ‘particular

appropriation’ to which it relates [was] not precisely

itemized in the general appropriation bill”). We

further agree that because the relevant budget here

appropriated funds for the compensation of public

employees, a provision impacting the liability of the

individuals and entities that manage employees’

paychecks satisfies the standard articulated by New

York courts interpreting this constitutional

requirement.

*

*

*

2 We conclude that Plaintiffs’ other objections are meritless for

the reasons explained by the district court.

10a

We have considered Plaintiffs’ remaining arguments and find them to be without merit. Accordingly,

we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

11a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DAVID SEIDEMANN and

BRUCE MARTIN, individually

and on behalf of all others

similarly situated,

Plaintiffs,

18 Civ. 9778 (KPF)

OPINION AND

ORDER

-v.PROFESSIONAL STAFF

CONGRESS LOCAL 2334;

FACULTY ASSOCIATION OF

SUFFOLK COUNTY

COMMUNITY COLLEGE;

UNITED UNIVERSITY

PROFESSIONS,

FARMINGDALE STATE

COLLEGE CHAPTER;

NATIONAL EDUCATION

ASSOCIATION OF THE

UNITED STATES; AMERICAN

FEDERATION OF TEACHERS;

AMERICAN FEDERATION OF

LABOR AND CONGRESS OF

INDUSTRIAL

ORGANIZATIONS; AMERICAN

ASSOCIATION OF

UNIVERSITY PROFESSORS

COLLECTIVE BARGAINING

CONGRESS; and NEW YORK

STATE UNITED TEACHERS,

Defendants.

KATHERINE POLK FAILLA, District Judge:

12a

Plaintiffs David Seidemann and Bruce Martin

bring this putative class action against Defendants

Professional Staff Congress Local 2334 (“PSC”),

American Federation of Teachers (“AFT”), American

Federation of Labor and Congress of Industrial

Organizations (“AFL-CIO”), American Association of

University Professors Collective Bargaining Congress

(“AAUPCBC”), New York State United Teachers

(“NYSUT”), National Education Association of the

United States (“NEA”), Faculty Association of Suffolk

County Community College (“FASCCC”), and United

University Professions, Farmingdale State College

Chapter (“UUP”). Prior to the Supreme Court’s decision in Janus v. American Federation of State, County,

and Municipal Employees, Council 31, 138 S. Ct. 2448

(2018), Plaintiffs were required to pay agency shop

fees to the unions that represented their respective

places of employment, in compliance with New York

Civil Service Law § 208 and as authorized by Abood v.

Detroit Board of Education, 431 U.S. 209 (1977).

Plaintiffs now allege that they are entitled to the

return of all agency shop fees previously paid, raising

constitutional claims under 42 U.S.C. § 1983 and

common-law claims for conversion and unjust enrichment. Additionally, Plaintiffs seek a declaratory

judgment stating that both compulsory agency shop

fees and New York State laws that authorize them are

unconstitutional, as well as an injunction against the

collection of those fees. Defendants move to dismiss

Plaintiffs’ suit in its entirety under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). For the reasons

set forth in the remainder of this Opinion, Defendants’

motion to dismiss is granted.

13a

BACKGROUND1

A. Legal Background

Before stating the facts of this case, it is necessary

to understand the legal backdrop to Plaintiffs’ claims.

1 The facts contained in this Opinion are drawn primarily from

Plaintiffs’ Amended Complaint, which is the operative pleading

in this case and is referred to in this Opinion as the “Amended

Complaint” or “Am. Compl.” (Am. Compl. (Dkt. #65)). The Court

has not considered the declaration submitted by Plaintiff

Seidemann as part of his submission in opposition to Defendants’

motion to dismiss (Dkt. #93), as Seidemann has offered no legal

basis for the Court to do so. See Marolla v. Devlyn Optical LLC,

No. 18 Civ. 7395 (VSB), 2019 WL 4194330, at *4 n.5 (S.D.N.Y.

Sept. 3, 2019) (citing Goodman v. Port Auth. of N.Y. & N.J., 850

F. Supp. 2d 363, 381 (S.D.N.Y. 2012) (“Plaintiff’s additional

factual assertions, provided in his opposition papers and affidavit, are inadmissible.”); Wachtel v. Nat’l R.R. Passenger Corp.,

No. 11 Civ. 613 (PAC), 2012 WL 292352, at *2 (S.D.N.Y. Jan. 30,

2012) (“While Plaintiff attached an affidavit to his opposition

brief in an attempt to support his argument, the Court cannot

consider affidavits in ruling on a motion to dismiss.”)); see also

Troy v. City of New York, No. 13 Civ. 5082 (AJN), 2014 WL

4804479, at *1 (S.D.N.Y. Sept. 25, 2014) (“[T]he Court does not

rely on factual assertions made for the first time in Plaintiff’s

opposition brief … as it is axiomatic that the Complaint cannot

be amended by briefs in opposition to a motion to dismiss.”

(internal citations and quotation marks omitted)), aff’d, 614 F.

App’x 32 (2d Cir. 2015) (summary order).

The Court also draws jurisdictional facts from the exhibits

attached to the Declaration of Deborah E. Bell in Support of

Defendants’ Motion to Dismiss the Amended Complaint, referred

to as the “Bell Decl.” (Dkt. #89); the Declaration of Tina M.

George in Support of Defendants’ Motion to Dismiss the

Amended Complaint, referred to as the “George Decl.” (Dkt. #90);

and the Declaration of Peter N. DiGregorio in Support of Defendants’ Motion to Dismiss the Amended Complaint, referred to as

the “DiGregorio Decl.” (Dkt. #91). Defendants are permitted to

[Footnote continued on next page]

14a

In 1977, the Supreme Court addressed whether

unions could compel non-members that they nevertheless represented to pay service fees pursuant to an

“agency shop” clause; such fees are known colloquially

as agency shop fees. See Abood v. Detroit Bd. of Ed.,

431 U.S. 209, 212 (1977). In a unanimous opinion, the

Supreme Court held that such fees were constitutional insofar as they were spent in advancement of

the union’s duties as collective-bargaining representative, but that they could not be spent on political or

ideological causes over the objection of the represented employee. See id. at 235-36. This remained the

law of the land for decades, albeit with sporadic

warnings in dicta about its potential infirmity, see,

e.g., Harris v. Quinn, 573 U.S. 616, 635-38 (2014), and

states such as New York enacted statutes in reliance

on Abood’s holding, see N.Y. Civ. Serv. L. § 208(3)

(McKinney 2019). In June 27, 2018, however, the

Court expressly overruled Abood and declared all

agency shop fees in the public employment setting to

be violative of the First Amendment. See Janus v. Am.

Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S.

Ct. 2448, 2459-60 (2018).

B. Factual Background

At all relevant times, Plaintiffs were college professors at public educational institutions in New York.

present extrinsic evidence showing lack of subject matter jurisdiction on a motion brought under Federal Rule of Civil

Procedure 12(b)(1). See Carter v. HealthPort Technologies, LLC,

822 F.3d 47, 57 (2d Cir. 2016).

For ease of reference, the Court refers to the parties’ briefing as

follows: Defendants’ opening brief as “Def. Br.” (Dkt. #83);

Plaintiffs’ opposition brief as “Pl. Opp.” (Dkt. #92); and

Defendants’ reply brief as “Def. Reply” (Dkt. #94).

15a

(Am. Compl. ¶¶ 1-2). David Seidemann was a professor at the City University of New York (“CUNY”)

(id. at ¶ 1), while Bruce Martin was a professor at both

Suffolk County Community College (“SCCC”) and

Farmingdale State College (“FSC”) (id. at ¶ 2). Both

plaintiffs thus qualified as “public employees” for

purposes of N.Y. Civ. Serv. Law § 208. As a faculty

member at CUNY, Seidemann was represented by

Defendant PSC and thus was required to pay agency

shop fees to PSC, portions of which were then

forwarded to Defendants AFT, AFL-CIO, AAUPCBC,

and NYSUT. (Id. at ¶¶ 1, 3). Of note, however,

Seidemann was never a member of PSC and never

affirmatively consented to pay agency shop fees. (Id.

at ¶ 1).

Martin, for his part, was represented by Defendant FASCCC in his capacity as a professor at SCCC

and by Defendant UUP in his capacity as a professor

at FSC, and thus was required to pay agency shop fees

to both organizations. (Am. Compl. ¶¶ 2, 4-5). Portions

of these agency shop fees were then forwarded to

Defendants AFT, AFL-CIO, NEA, and NYSUT. (Id. at

¶¶ 4-5). Like Seidemann, Martin was never a member

of either FASCCC or UPP, and never affirmatively

consented to pay agency shop fees. (Id. at ¶ 2). All

agency shop fees were paid via a direct deduction from

Plaintiffs’ paychecks, as authorized by N.Y. Civ. Serv.

Law § 208(3). (Id. at ¶ 13). Neither Seidemann nor

Martin alleges that he has been required to pay

agency shop fees since the Supreme Court’s decision

in Janus.

C. Procedural Background

Seidemann filed his initial complaint in this

action on October 24, 2018, several months after

Janus was issued; initially, he named AAUPCBC,

16a

AFL-CIO, AFT, NYSUT, and PSC as Defendants.

(Dkt. #1). On January 11, 2019, Defendants asked the

Court for leave to file a motion to dismiss (Dkt. #46),

to which Seidemann responded on January 16, 2019

(Dkt. #47). The parties appeared before the Court for

a pre-motion conference on January 31, 2019, during

which time the Court set a briefing schedule for the

proposed motion to dismiss. (Minute Entry of January

31, 2019). The Court then adjourned that schedule

after granting Seidemann’s request of March 20,

2019, to file an amended class action complaint. (Dkt.

#60, 62).

Seidemann filed an Amended Complaint, joined

by Martin, on April 12, 2019, in which the pair added

FASCCC, NEA, and UUP as Defendants. (Dkt. #65).

Defendants filed their motion to dismiss, along with

an accompanying memorandum and numerous

declarations, on May 24, 2019. (Dkt. #82). Plaintiffs

filed a brief in opposition, along with a declaration, on

June 21, 2019. (Dkt. #93). Defendants filed their reply

brief on July 12, 2019. (Dkt. #94).

DISCUSSION2

A. Applicable Law

1. Motions to Dismiss Under Fed. R. Civ. P.

12(b)(1)

Defendants challenge Plaintiffs’ request for an

injunction and a declaratory judgment as non2 The Court notes that while it is, to its knowledge, the first court

in this District to hear claims regarding whether non-unionmember public employees are entitled to the refund of their

agency shop fees, substantially identical claims have been

brought, and disposed of, across the country. See, e.g., Ogle v.

Ohio Civ. Serv. Emps. Ass’n, AFSCME, Local 11, 397 F. Supp. 3d

[Footnote continued on next page]

17a

justiciable for reasons of mootness. (See Def. Br. 1).

The Court analyzes these claims for equitable relief

under the rubric of Rule 12(b)(1). See PlatinumMontaur

Life

Scis.

LLC

v.

Navidea

Biopharmaceuticals, Inc., No. 17 Civ. 9591 (VEC),

2018 WL 5650006, at *2 (S.D.N.Y. Oct. 31, 2018)

(citing All. For Envtl. Renewal, Inc. v. Pyramid

Crossgates Co., 436 F.3d 82, 89 n.6 (2d Cir. 2006)) (“As

the Second Circuit has explained … standing challenges are jurisdictional questions that are properly

resolved under Rule 12(b)(1).”), vacated and remanded on other grounds, 943 F.3d 613 (2d Cir. 2019).

1076 (S.D. Ohio 2019); Babb v. Cal. Teachers Ass’n, 378 F. Supp.

3d 857 (C.D. Cal. 2019); Wholean v. CSEA SEIU Local 2001, No.

18 Civ. 1008 (WWE), 2019 WL 1873021 (D. Conn. Apr. 26, 2019);

Akers v. Md. State Educators Ass’n, 376 F. Supp. 3d 563 (D. Md.

2019); Bermudez v. Serv. Emps. Int’l Union, Local 521, No. 18

Civ. 4312 (VC), 2019 WL 1615414 (N.D. Cal. Apr. 16, 2019);

Mooney v. Ill. Educ. Ass’n, 372 F. Supp. 3d 690 (C.D. Ill. 2019),

aff’d, 942 F.3d 368 (7th Cir. 2019); Lee v. Ohio Educ. Ass’n, 366

F. Supp. 3d 980 (N.D. Ohio 2019); Hough v. SEIU Local 521, No.

18 Civ. 4902 (VC), 2019 WL 1785414 (N.D. Cal. Apr. 16, 2019);

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

AFL-CIO, No. 15 Civ. 1235 (RWG), 2019 WL 1239780 (N.D. Ill.

Mar. 18, 2019); Carey v. Inslee, 364 F. Supp. 3d 1220 (W.D. Wash.

2019); Crockett v. NEA-Alaska, 367 F. Supp. 3d 996 (D. Alaska

2019); Cook v. Brown, 364 F. Supp. 3d 1184 (D. Or. 2019);

Danielson v. Am. Fed’n of State, Cty., & Mun. Emps., Council 28,

AFL-CIO, 340 F. Supp. 3d 1083 (W.D. Wash. 2018). Although

there are slight variations between and among the above cases,

their underlying facts and legal arguments largely mirror the

ones before this Court, and the respective district courts have

offered thoughtful and comprehensive analyses of these

arguments. Although the Court is not bound by any of the other

district court opinions and has conducted its own independent

analysis, that analysis is shaped by the persuasive reasoning of

these other courts.

18a

Rule 12(b)(1) permits a party to move to dismiss a

complaint for “lack of subject-matter jurisdiction.”

Fed. R. Civ. P. 12(b)(1). “A case is properly dismissed

for lack of subject matter jurisdiction under Rule

12(b)(1) when the district court lacks the statutory or

constitutional power to adjudicate it.” Lyons v. Litton

Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y.

2016) (quoting Makarova v. United States, 201 F.3d

110, 113 (2d Cir. 2000)).

The Second Circuit has drawn a distinction

between two types of Rule 12(b)(1) motions: (i) facial

motions and (ii) fact-based motions. See Carter v.

HealthPort Technologies, LLC, 822 F.3d 47, 56-57 (2d

Cir. 2016); see also Katz v. Donna Karan Co., L.L.C.,

872 F.3d 114, 119 (2d Cir. 2017). A facial Rule 12(b)(1)

motion is one “based solely on the allegations of the

complaint or the complaint and exhibits attached to

it.” Carter, 822 F.3d at 56. A plaintiff opposing such a

motion bears “no evidentiary burden.” Id. Instead, to

resolve a facial Rule 12(b)(1) motion, a district court

must “determine whether [the complaint and its

exhibits] allege[ ] facts that” establish subject matter

jurisdiction. Id. (quoting Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per

curiam)). And to make that determination, a court

must accept the complaint’s allegations as true “and

draw[ ] all reasonable inferences in favor of the

plaintiff.” Id. at 57 (internal quotation marks and

citation omitted).

“Alternatively, a defendant is permitted to make

a fact-based Rule 12(b)(1) motion, proffering evidence

beyond the complaint and its exhibits.” Carter, 822

F.3d at 57. “In opposition to such a motion, [plaintiffs]

must come forward with evidence of their own to

controvert that presented by the defendant, or may

19a

instead rely on the allegations in the[ir p]leading if

the evidence proffered by the defendant is immaterial

because it does not contradict plausible allegations

that are themselves sufficient to show standing.”

Katz, 872 F.3d at 119 (internal citations and

quotations omitted). If a defendant supports his factbased Rule 12(b)(1) motion with “material and

controverted” “extrinsic evidence,” a “district court

will need to make findings of fact in aid of its decision

as to subject matter jurisdiction.” Carter, 822 F.3d at

57.

2. Motions to Dismiss Under Fed. R. Civ. P.

12(b)(6)

Defendants seek to dismiss the remainder of the

Amended Complaint pursuant to Rule 12(b)(6). When

considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), a court must “draw all reasonable inferences in Plaintiff’s favor, assume all wellpleaded factual allegations to be true, and determine

whether they plausibly give rise to an entitlement to

relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104

(2d Cir. 2011) (internal quotation marks omitted); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

plaintiff is entitled to relief if he alleges “enough facts

to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);

see also In re Elevator Antitrust Litig., 502 F.3d 47, 50

(2d Cir. 2007) (“While Twombly does not require

heightened fact pleading of specifics, it does require

enough facts to nudge plaintiff’s claims across the line

from conceivable to plausible.” (internal quotation

marks omitted) (citing Twombly, 550 U.S. at 570)).

“Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short

of the line between possibility and plausibility of

20a

entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557). Moreover, “the tenet that

a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id.

B. Analysis

Defendants advance three principal arguments

for dismissal: (i) Plaintiffs’ claims for prospective

relief are moot due to Defendants’ undisputed compliance with Janus since June 27, 2018; (ii) Plaintiffs’

claims for a refund under 42 U.S.C. § 1983 fail as a

matter of law because Defendants can rely on the

good-faith defense; and (iii) Plaintiffs’ common-law

claims also fail as a matter of law on various grounds.

(See Def. Br. 1-3). The Court will address each

argument in turn.

1. The Court Lacks Subject Matter

Jurisdiction over Plaintiffs’ Claims for a

Declaratory Judgment and Injunctive

Relief3

Federal courts are courts of limited jurisdiction,

“and lack the power to disregard such limits as have

3 At the outset, the Court points out that it is of no moment that

Plaintiffs have styled their claim as a putative class action if they

themselves cannot demonstrate that they have standing to bring

this case. “[N]amed class plaintiffs must allege and show that

they personally have been injured, not that the injury has been

suffered by other, unidentified members of the class to which

they belong and which they purport to represent.” Hidalgo v.

Johnson & Johnson Consumer Cos., Inc., 148 F. Supp. 3d 285,

292 (S.D.N.Y. 2015) (citing Central States SE & SW Areas Health

& Welfare Fund v. Merck-Medco Managed Care, LLC, 443 F.3d

181, 199 (2d Cir. 2005)).

21a

been imposed by the Constitution or Congress.”

Platinum-Montaur Life Scis., LLC v. Navidea

Biopharmaceuticals, Inc., 943 F.3d 613, 616 (2d Cir.

2019). Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies,’” thereby “restrict[ing] the authority of federal

courts to resolving ‘the legal rights of litigants in

actual controversies.’” Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 71 (2013) (internal quotation

marks omitted) (quoting Valley Forge Christian

College v. Americans for Separation of Church and

State, Inc., 454 U.S. 471 (1982)). The “Case” and

“Controversy” requirement places the burden on

“those who invoke the power of a federal court to demonstrate standing — a ‘personal injury fairly traceable

to the defendant’s allegedly unlawful conduct and

likely to be redressed by the requested relief.’”

Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). A

case ceases being a “Case” or “Controversy” — or, in

other words, becomes moot — “when the issues

presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Id. at 91.

This is the case “[n]o matter how vehemently the

parties continue to dispute the lawfulness of the

conduct that precipitated the lawsuit.” Id.

Starting with Plaintiffs’ pleadings, the Court

observes that at no point do Plaintiffs allege that

Defendants have failed to comply with the Supreme

Court’s decision in Janus or that Plaintiffs have paid

agency shop fees following that decision. (See Am.

Compl. ¶¶ 1-2 (stating only that Plaintiffs were

required to pay agency shop fees “prior to Janus”)).

Indeed, the only allegation of continuing harm is a

conclusory claim that Defendants “continue to violate

Plaintiffs’ First Amendment rights to free speech and

association.” (Id. at ¶ 33). Thus, given the absence of

22a

any plausible allegation of present or future harm,

Plaintiffs lack standing on the face of the Amended

Complaint alone. See O’Neill v. Standard

Homeopathic Co., 346 F. Supp. 3d 511, 526 (S.D.N.Y.

2018) (noting that “Plaintiffs lack standing to pursue

injunctive relief where they are unable to establish a

‘real or immediate threat’ of injury” (quoting Nicosia

v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir.

2016))).

This finding is only buttressed by Defendants’

additional evidence — which, as noted, the Court may

properly consider on a Rule 12(b)(1) motion. See

Carter, 822 F.3d at 57. Specifically, Defendants have

presented uncontroverted evidence that all relevant

entities — the Defendant Unions, the Plaintiffs’

employers, and the New York State Comptroller’s

Office — immediately complied with Janus by ceasing

the deduction of agency shop fees from Plaintiffs’

paychecks and reimbursing to Plaintiffs any fees that

might have been deducted after June 27, 2018. (See

Bell Decl. ¶¶ 13-14, 16-17, 20-21, 24; George Decl. ¶¶

15-16, 18-19, 22; DiGregorio Decl. ¶¶ 18-21, 24-25).

Moreover, Defendants PSC, FASCCC, and UUP have

affirmed their conviction that compelled agency shop

fees in the public sector are no longer constitutional in

the wake of Janus (see Bell Decl. ¶ 27; George Decl. ¶

27; DiGregorio Decl. ¶ 22), and that they have no

intention of, and in most cases are incapable of,

resuming the deduction of agency shop fees from

Plaintiffs’ paychecks (see Bell Decl. ¶¶ 30-31; George

Decl. ¶¶ 22, 29; DiGregorio Decl. ¶ 23; see also Bell

Decl., Ex. 3 (providing Payroll Bulletin No. 1660 from

the New York State Comptroller’s Office, which

notifies of the cessation of all compelled agency shop

fees in light of Janus)). On this record, the Court

cannot discern a basis for Plaintiffs to assert Article

23a

III injury at the time they filed this suit, or, in the

alternative, why their claims for prospective relief are

not now moot.4 See Berman v. N.Y. State Pub. Emp.

Fed’n, No. 16 Civ. 204 (DLI) (RLM), 2019 WL

1472582, at *3 (E.D.N.Y. Mar. 31, 2019) (finding that

claims based on pre-Janus conduct were moot given

Payroll Bulletin No. 1660 and defendants’ acknowledgement of the illegality of compelled agency shop

fees); Lamberty v. Conn. State Police Union, No. 15

Civ. 378 (VAB), 2018 WL 5115559, at *9 (D. Conn.

Oct. 19, 2018) (finding that claims based on pre-Janus

conduct were moot where “none of the Defendants in

this case are disputing that the law of the land has

changed, or are trying to collect agency fees”).

Plaintiffs raise three counter-arguments, all of

which are easily rebutted. First, Plaintiffs claim that

the “voluntary cessation” exception to the mootness

doctrine should apply here. (See Pl. Opp. 2-3 n.6). The

Court does not believe that mootness is the correct

analytical framework for this situation, given that

Plaintiffs have failed to plead facts or to present

evidence demonstrating that a controversy existed

when they brought suit. See Ogle v. Ohio Civ. Serv.

Emps. Ass’n, AFSCME, Local 11, 397 F. Supp. 3d

4 The Court briefly acknowledges that, insofar as the Court

dismisses Plaintiffs’ claims for prospective relief based on a lack

of standing as opposed to mootness, its reasoning differs slightly

from the other district courts that have heard substantially

similar claims. See supra at 6 n.2. The Court believes that the

other courts’ focus on mootness is in part due to the timing of

their respective actions — some were filed prior to Janus — and

in part due to the parties’ briefing focusing on mootness. Indeed,

Defendants here primarily argue for dismissal based on

mootness. (See Def. Br. 9). However, despite the slightly different

analytical path, the Court nonetheless finds the prior district

court opinions helpful and cites to them where appropriate.

24a

1076, 1085 (S.D. Ohio 2019) (explaining that mootness

applies when an actual controversy existed at the

outset of the suit but later ceased to exist, while

standing applies when no controversy exists at the

outset). Although mootness and standing are linked,

see Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 170

(2000) (discussing the Supreme Court’s “repeated

description of mootness as ‘the doctrine of standing set

in a time frame’”), they differ significantly in that they

entail different burdens, see Mhany Management, Inc.

v. County of Nassau, 819 F.3d 581, 603 (2d Cir. 2016).

“The burden of establishing standing falls on the

plaintiff,” but “the burden of showing mootness …

falls on a defendant.” Mhany Mgmt., 819 F.3d at 603.

Plaintiffs here bear the burden of proving that

they had standing to request prospective relief at the

outset, but the only facts they allege are that they

were subjected to unlawful conduct prior to Janus.

(See Am. Compl. ¶¶ 1-2). And as noted, Plaintiffs

cannot rely on that prior unlawful conduct to establish

standing for prospective relief. See Shain v. Ellison,

356 F.3d 211, 215 (2d Cir. 2004) (explaining that

plaintiff “cannot rely on past injury to satisfy the

injury[-in-fact] requirement [of standing] but must

show a likelihood that he will be injured in the future”

(internal ellipsis removed) (quoting Deshawn E. by

Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir.

1998))). Thus, Plaintiffs have failed to establish that

they have standing to pursue prospective relief,

whether it be injunctive or declaratory in nature. The

Court need not discuss the “voluntary cessation” doctrine, as mootness is not at issue here. Even if it were,

Plaintiffs’ claims would be unequivocally moot. See

Wholean v. CSEA SEIU Local 2001, No. 18 Civ. 1008

(WWE), 2019 WL 1873021, at *3 (D. Conn. Apr. 26,

25a

2019) (finding plaintiffs’ claims moot on substantially

identical facts because “[i] the Supreme Court has

already determined the issue, and [ii] defendants

have demonstrated that collection of such fees has

ceased and is unlikely to recur”).

Second, Plaintiffs argue that because Janus did

not directly address the constitutionality of N.Y. Civ.

Serv. Law § 208, the Court is still obligated to declare

that statute unconstitutional. (See Pl. Opp. 3 n.7).

Plaintiffs specifically analogize to Jernigan v. Crane

(see id.), in which the Eighth Circuit held that the

Supreme Court’s decision in Obergefell v. Hodges, 135

S. Ct. 2584 (2015), did not moot a suit challenging

Arkansas’s laws barring same-sex marriage. See 796

F.3d 976, 979-80 (8th Cir. 2015). Again, this is an

argument sounding on mootness, and the Court has

already determined that mootness is not at play here

because of Plaintiffs’ antecedent failure to establish

standing. Regardless, Jernigan is inapposite because

the Eighth Circuit there noted that Obergefell

specifically invalidated only the state laws challenged

by the petitioners. See Jernigan, 796 F.3d at 979

(quoting Obergefell, 135 S. Ct. at 2591). Janus, by

contrast, had a much broader holding: “States and

public-sector unions may no longer extract agency fees

from nonconsenting employees.” Janus, 138 S. Ct. at

2486. This broad holding covers all state laws authorizing the extraction of agency fees from nonconsenting employees, including New York’s statute. See

Diamond v. Penn. State Educ. Ass’n, 399 F. Supp. 3d

361, 388 (W.D. Pa. 2019) (explaining that Obergefell

was written narrowly to hold invalid particular states’

laws, while “Janus broadly overruled Abood,”

“moot[ing] controversies in ways Obergefell’s narrow

holding did not”).

26a

Third, Plaintiffs cite United States Department of

Treasury, Bureau of Alcohol, Tobacco and Firearms v.

Galioto, 477 U.S. 556 (1986), for the proposition that

the New York legislature’s failure to repeal N.Y. Civ.

Serv. Law § 208 provides Plaintiffs with standing to

obtain injunctive relief. (See Pl. Opp. 3 n.9). Plaintiffs,

however, have flipped the earlier case on its head. The

Galioto court held that the plaintiff’s case had become

moot because Congress had amended the problematic

statute. See Galioto, 477 U.S. at 560-61. It did not hold

the inverse — that a case remains live so long as the

legislature retains a problematic statute on the books.

As has already been noted above and by numerous

other district courts, Janus fundamentally changed

the law of the land, see, e.g., Diamond, 399 F. Supp.

3d at 386-87; Lamberty, 2018 WL 5115559, at *9, and

by virtue of the Supremacy Clause, Janus’s broad

holding preempts any state law to the contrary, see

U.S. Const. art. VI; Cooper v. Aaron, 358 U.S. 1, 18

(1958). Neither Defendants nor any agent of New

York State has argued to the contrary. Thus, in lieu of

an actual dispute, the Court is back where it started:

Plaintiffs lack standing. See Symczyk, 569 U.S. at 71.

2. Plaintiffs Fail to State a Claim Under

§ 1983

Plaintiffs seek retrospective, and not merely prospective, relief. In this regard, they bring claims under

42 U.S.C. § 1983, alleging that Defendants violated

their First Amendment rights to free speech and

association, and demanding a refund “of all agency

shop fees unlawfully withheld or collected from

Plaintiffs.” (Am. Compl. ¶¶ 33 & Ex. E). Defendants

argue (see Def. Br. 13), and Plaintiff disputes (see Pl.

Opp. 8-9), that the good-faith defense applies in this

case and bars Plaintiffs’ claims under § 1983.

27a

Section 1983 “provides a cause of action against

persons who, acting under color of state law, subject

individuals to the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and

laws’ of the United States.” Davis v. N.Y.C. Housing

Auth., 379 F. Supp. 3d 237, 244 (S.D.N.Y. 2019)

(quoting 42 U.S.C. § 1983). Defendants do not concede

that they acted under color of state law or qualify as

state actors (see Def. Br. 13 n.3), but the Court will

conduct its analysis based on the assumption that

Defendants indeed fall within § 1983’s ambit, albeit

without deciding the question. Therefore, the primary

question is whether Defendants are correct about the

application of the good-faith defense.5

The good-faith defense — a defense that private

actors can raise in response to § 1983 claims — has a

murky history that is worth exploring. In Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 935 (1982), the

Supreme Court held that private actors could be held

liable under § 1983. However, the Court chose not to

address whether a defense should be available for

“private individuals who innocently make use of

seemingly valid state laws” that are “subsequently

held to be unconstitutional,” as is available for government actors through the doctrines of good faith and

qualified immunity. See Lugar, 457 U.S. at 942 n.23.

The Court revisited the subject in Wyatt v. Cole, 504

U.S. 158, 158 (1992), making clear that private actors

are not entitled to the qualified immunity that the

Court described in Harlow v. Fitzgerald, 457 U.S. 800

(1982). Even then, the Court did “not foreclose the

possibility that private defendants faced with § 1983

liability … could be entitled to an affirmative defense

5 In analyzing Plaintiffs’ § 1983 claims, the Court also assumes

without deciding that Janus applies retroactively.

28a

based on good faith.” Wyatt, 504 U.S. at 169. Indeed,

Wyatt recognized that “principles of equality and

fairness may suggest … that private citizens who rely

unsuspectingly on state laws they did not create and

may have no reason to believe are invalid should have

some protection from liability.” Id. at 168. The Court

merely held that qualified immunity would not offer

that protection. See id.

Since Wyatt, numerous Circuit Courts of Appeals

have stepped into the breach left by the Supreme

Court and recognized the existence of a good-faith

defense for private actors in § 1983 cases. See, e.g.,

Clement v. City of Glendale, 518 F.3d 1090, 1097 (9th

Cir. 2008) (holding that private defendants may

assert a good-faith defense against § 1983 cases);

accord Vector Research, Inc. v. Howard & Howard

Attorneys P.C., 76 F.3d 692, 699 (6th Cir. 1996);

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1276-77 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d

1113, 1118 (5th Cir. 1993). More importantly, the

Second Circuit has recognized the good-faith defense,

see Pinsky v. Duncan, 79 F.3d 306, 311-13 (2d Cir.

1996), and has reaffirmed the existence of that

defense (albeit in a summary order) in circumstances

remarkably analogous to the ones presently before the

Court, see Jarvis v. Cuomo, 660 F. App’x 72, 75 (2d

Cir. 2016) (summary order) (upholding the application

of the good-faith defense against claims that plaintiffs

were owed refunds of agency shop fees paid prior to

the Supreme Court’s decision in Harris). Plaintiffs

have offered no compelling reason why this Court

should ignore the Second Circuit, as well as the

thoughtful opinions of the other district courts that

have heard essentially the same claim. See, e.g., Babb

v. Cal. Teachers Ass’n, 378 F. Supp. 3d 857, 872 (C.D.

Cal. 2019) (collecting cases recognizing existence of

29a

good-faith defense on substantially identical facts). 6

This Court joins these courts in finding that a goodfaith defense exists under these circumstances.

Plaintiffs raise numerous arguments as to why,

even if a good-faith defense exists for private actors in

§ 1983 cases, it would be inapplicable under these

circumstances. In particular, Plaintiffs argue that: (i)

the good-faith defense is inapplicable because the

most analogous common-law tort here is conversion,

to which good faith is not a defense (see Pl. Opp. 1112); (ii) the good-faith defense only applies to

individuals, not entities (see id. at 15); (iii) the goodfaith defense is limited to individuals fulfilling a

governmental function (see id. at 16); (iv) the goodfaith defense is inapplicable because, under the

declaratory theory of law, Defendants cannot rely on

Abood (see id. at 7-8); (v) the good-faith defense is

inapplicable because Plaintiffs seek equitable relief

additional to monetary damages (see id. at 8); (vi)

Plaintiffs seek the return of unconstitutionally taken

property (see id.); (vii) Defendants cannot establish

that they acted in good faith (see id. at 16-20); and

(viii) it is inappropriate to make a finding of good faith

at this stage of litigation (see id. at 20-21). The Court

addresses, and rejects, each of these arguments in the

remainder of this section.

6 Plaintiffs argue that the Supreme Court’s decision in Filarsky

v. Delia, 566 U.S. 377 (2012), negates the need for the good-faith

defense (see Pl. Opp. 10-11), but Filarsky does not apply. Filarsky

merely held that a private individual may obtain the protection

of qualified immunity when they are essentially working as an

adjunct to the government. See 566 U.S. at 393-94. It does not

address whether private actors, working independently of the

government, may rely in good faith on seemingly valid state

laws.

30a

a. Plaintiffs Misperceive the CommonLaw Tort Analogue

Plaintiffs rely on the Fifth Circuit’s decision on

remand in Wyatt and on Pierson v. Ray, 386 U.S. 547

(1967), for the proposition that application of the goodfaith defense requires the court to determine the most

closely analogous common-law tort to the alleged

offense, and then determine whether good faith was a

defense to that tort in 1871, the year § 1983 was

enacted. (See Pl. Opp. 11-12). Several district courts,

on the other hand, have eschewed such analyses. See

Mooney v. Ill. Educ. Ass’n, 372 F. Supp. 3d 690, 703

(C.D. Ill. 2019) (holding that reliance on the good-faith

defense does not require a determination of the most

analogous common-law tort); see also Babb, 378 F.

Supp. 3d at 873 (explaining that Ninth Circuit precedent “gives no indication that courts must analyze a

common law analogue to apply the good-faith

defense”). For its part, the Court does not find either

Pierson or the Fifth Circuit’s remand decision in Wyatt

to be particularly helpful as guides, given that the

former predates the Supreme Court’s landmark decisions in Lugar, Harlow, and Wyatt, and is concerned

with defenses available to state actors, see Pierson,

386 U.S. at 556-57, while the latter is from a different

Circuit. However, the Court does consider the Second

Circuit’s handling of the question, principally in

Pinsky and Jarvis. Unfortunately, even the guidance

from the Circuit is unclear: while Pinsky expressly

engaged in the exercise of identifying the most closely

analogous tort, see 79 F.3d at 312, Jarvis did not

comment on the need for the analysis one way or the

other, see 660 F. App’x at 75. The wisest course is to

follow the clearer authority, and so the Court agrees

with Plaintiffs that it is appropriate to engage in an

31a

analysis of the most closely analogous tort when

deciding the applicability of the good-faith defense.

Where the Court parts company with Plaintiffs is

on the results of that analysis. Plaintiffs argue that

the most closely analogous common-law tort in this

case is conversion. (See Pl. Opp. 12). Conversion

occurs “when someone, intentionally and without

authority, assumes or exercises control over personal

property belonging to someone else, interfering with

that person’s right of possession.” Colavito v. N.Y.

Organ Donor Network, Inc., 8 N.Y.3d 43, 49-50 (2006).

In addition, Plaintiff indirectly argues that because

intent, or scienter, is not an element of conversion,

good faith has not been in the past and cannot be now

a defense to conversion. (See Pl. Opp. 12 n.63-66).

Plaintiff’s argument doubly fails. First, the Second

Circuit held in Jarvis that it is irrelevant whether the

underlying tort contains a scienter element. See 660

F. App’x at 75 (holding that the specific elements of

the underlying tort are irrelevant because “affirmative defenses [like the good-faith defense] need not

relate to or rebut specific elements of an underlying

claim”).

Second, even if the Court were to disregard Jarvis

and accept that a scienter element is needed for the

good-faith defense to apply, the defense would still

apply here because conversion is not, in fact, the most

closely analogous common-law tort. As other district

courts have noted, “Plaintiffs’ First Amendment claim

turns not upon the Union Defendants’ receipt of Plaintiffs’ property, but upon the dignitary harm resulting

from being compelled to support speech with which

they disagree.” Babb, 378 F. Supp. 3d at 873. Indeed,

Defendants note that Plaintiffs’ core injury stems

from “Defendants’ use of governmental process,

32a

§ 208(3), to violate their First Amendment rights.”

(See Def. Br. 16). This injury does not mirror conversion; it mirrors abuse of process. See Dowd v.

DeMarco, 314 F. Supp. 3d 576, 585 (S.D.N.Y. 2018)

(“[T]he gist of abuse of process is the improper use of

process after it is regularly issued.” (emphasis

removed) (quoting Curiano v. Suozzi, 63 N.Y.2d 113,

116 (1984))); see also Wyatt, 504 U.S. at 164

(describing abuse of process as a “cause[] of action

against private defendants for unjustified harm

arising out of the misuse of governmental processes”).

Other district courts have likewise found abuse of

process to be an apt analogy for Plaintiffs’ harm. See,

e.g., Diamond, 399 F. Supp. 3d at 398; Babb, 378 F.

Supp. 3d at 873; Carey v. Inslee, 364 F. Supp. 3d 1220,

1230 (W.D. Wash. 2019); Cook v. Brown, 364 F. Supp.

3d 1184, 1191-92 (D. Or. 2019). Because intent is an

element of abuse of process under New York law, see

Gilman v. Marsh & McLennan Cos., Inc., 868 F. Supp.

2d 118, 131 (S.D.N.Y. 2012), the good-faith defense

applies even under Plaintiffs’ preferred rules of

analysis.

b. The Good-Faith Defense Applies to

Both Individuals and Entities

Plaintiffs next contend, in reliance on Owen v.

City of Independence, 445 U.S. 622 (1980), that the

good-faith defense only applies to individuals, and

cannot be raised by entities. (See Pl. Opp. 15).

However, Plaintiffs’ reliance on Owen is faulty. As

Defendants note (see Def. Br. 19), Owen discusses

whether municipalities are entitled to qualified

immunity (and discusses such immunity prior to the

Supreme Court’s retooling of the entire qualified

immunity doctrine in Harlow), see 445 U.S. at 638.

Owen says nothing about the good-faith defense as

33a

discussed in Wyatt and then applied by numerous

circuit courts, including the Second Circuit. See, e.g.,

Jarvis, 660 F. App’x at 75-76 (finding that defendant

union was entitled to good-faith defense); Clement,

518 F.3d at 1096-97 (finding that private towing

company was entitled to good-faith defense); Vector

Research, 76 F.3d at 699 (finding law firm could raise

good-faith defense); Jordan, 20 F.3d at 1276-77

(same). Moreover, as the Mooney court aptly

explained, the good-faith defense and qualified

immunity are not coterminous, and the rationales

motivating the application of qualified immunity —

and its application to municipalities — do not apply in

the context of the good-faith defense and private

actors. See 372 F. Supp. 3d at 704-05. Therefore, the

Court does not accept Plaintiffs’ proposed limitation

on the good-faith defense.

c. The Good-Faith Defense Is Not

Limited to Governmental Functions

Plaintiffs rely again on Filarsky v. Delia, 566 U.S.

377 (2012), this time for the proposition that the goodfaith defense should be limited to actions fulfilling a

governmental function. (See Pl. Opp. 16). Not only do

Plaintiffs provide no support for such a limitation in

any prior application of the good-faith defense, but

Filarsky actually argues against Plaintiffs’ position.

As already noted, the Filarsky court held that private

individuals acting in a governmental capacity are

entitled to qualified immunity. See 566 U.S. at 393-94.

If such individuals are already protected by qualified

immunity, why should they also need a good-faith

defense? Such an interpretation of either Filarsky or

the good-faith defense would make the defense

redundant. The Court accordingly rejects such an

interpretation.

34a

d. The Declaratory Theory of Law Does

Not

Foreclose

the

Good-Faith

Defense

Undeterred, Plaintiffs next argue that under the

“declaratory theory of law,” Defendants cannot rely on

N.Y. Civ. Serv. Law § 208 as a defense for their

unconstitutional conduct. (See Pl. Opp. 7-8). The crux

of Plaintiffs’ argument seems to be not only that § 208

is unconstitutional and therefore must be considered

completely void (see id. at 6 (citing Reynoldsville

Casket Co. v. Hyde, 514 U.S. 749, 760 (1995)), but also

that the declaratory theory of law requires this Court

to consider § 208 as if it had always been invalid (see

id. at 7). Thus, the argument goes, Defendants cannot

say that their conduct was lawful because § 208 was

valid under Abood, because in the deeper, more

metaphysical sense of the law, Abood and all laws

authorized by it have never been valid. As support,

Plaintiffs point to Richardson v. United States, 465

F.2d 844, 850 (3d Cir. 1972) (en banc), rev’d on other

grounds, 418 U.S. 166 (1974), wherein the Third

Circuit refused to allow the Government to rely on the

Central Intelligence Agency Act for a defense when it

was claimed that the Act was unconstitutional,

writing that an unconstitutional law is “void and of no

effect.”

While the Court agrees with Plaintiffs that a

defendant cannot simply argue that conduct was

constitutional at the time in order to escape liability

for unlawful conduct, that is not the issue before the

Court. Instead, the Court is determining whether

Defendants may assert the good-faith defense, a

recognized affirmative defense in § 1983 actions. And

there is no question that while a party cannot merely

point to a void law as a basis for relief, see

35a

Reynoldsville, 514 U.S. at 751, a party can still rely on

“a previously existing, independent legal basis,” see id.

at 759. The good-faith defense is such an independent

legal basis, see Diamond, 399 F. Supp. 3d at 396, and

thus Plaintiffs’ argument based on the “declaratory

theory” must fail. Indeed, were the Court to find

otherwise and adopt Plaintiffs’ interpretation of the

“declaratory theory,” the Court would have to ignore

Second Circuit precedent and find that there could

never be a good-faith defense in § 1983 actions. It is

not the Court’s place to make such a finding, and so it

will not.

e. Plaintiffs’ Effort to Recast Their

Claims as Equitable Claims Fails

Although Plaintiffs do not clearly articulate it, the

Court reads Plaintiffs’ briefing as making an argument that they are entitled to a refund of their agency

shop fees as a matter of equity, as opposed to law. (See

Pl. Opp. 8 (arguing that Defendants took Plaintiffs’

property based on an unconstitutional statute, and

that both law and equity require that property’s

return)). Plaintiffs do not articulate how, if at all, an

equitable claim would preclude Defendants’ entitlement to the good-faith defense. However, insofar as

the distinction between legal and equitable claims is

relevant, Plaintiffs’ claims clearly sound in law, not

equity. As other district courts have noted, Plaintiffs

seek a repayment of previously paid agency shop fees

“not from particular funds or property in the [D]efendant[s]’[] possession, … but from Union Defendants’

general assets.” See, e.g., Diamond, 399 F. Supp. 3d at

400-01 (internal quotation marks and citation

omitted) (citing Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204, 213 (2002)). Indeed, as in the

other district court cases, see, e.g., id. at 401 (collecting

36a

similar cases), Plaintiffs’ core claim is that

Defendants PSC, FASCCC, and UPP either spent the

collected agency shop fees or forwarded them to the

other Defendants (see Am. Compl. ¶¶ 3-5). “[W]here

the property sought to be recovered or its proceeds

have been dissipated so that no product remains, the

plaintiff’s claim is only that of a general creditor.”

Knudson, 534 U.S. at 213-14 (internal quotation

marks and brackets omitted). Therefore, this Court

joins other courts in finding that Plaintiffs’ have

presented solely legal claims.

f.

Plaintiffs’ Potential Entitlement to

the Return of Property Does Not

Foreclose a Good-Faith Defense

Plaintiffs claim that “wrongfully taken property

must always be returned when the statute relied on

for taking the property is later declared unconstitutional.” (See Pl. Opp. 8). But Plaintiffs’ proffered

authorities do not stand for such a broad proposition,

and even if they did, they say nothing about a goodfaith defense in a § 1983 suit for monetary damages.

Harper v. Virginia Department of Taxation, 509 U.S.

86, 98-99 (1993), deals with whether a court must

apply a judicial decision retroactively; Wyatt v. Cole,

994 F.2d at 1115, held that defendants can, in fact,

rely in good faith on a statute later declared unconstitutional; United States v. Lewis, 478 F.2d 835, 836

(5th Cir. 1973), discusses whether a criminal defendant is entitled to a return of fines paid pursuant to a

guilty plea to a statute subsequently determined to be

unconstitutional; United States v. Venneri, 782 F.

Supp. 1091, 1093 (D. Md. 1991), similarly addressed

the return of restitution paid by a criminal defendant

on the basis of what was later found to be an unlawful

(but not unconstitutional) conviction; and United

37a

States v. Rayburn House Office Building Room 2113,

497 F.3d 654, 656 (D.C. Cir. 2007), mandated the

return of documents seized in violation of the Speech

or Debate Clause of the Constitution. These cases,

whether taken separately or in the aggregate, do not

speak to Plaintiffs’ rule. Moreover, with the exception

of Wyatt, each is easily distinguishable from the particular circumstances before the Court — Plaintiffs

seeking a refund of money that was deducted

pursuant to statutes drafted in full compliance with

prevailing Supreme Court precedent. As observed by

another district court, “in situations where the

Supreme Court has reversed a prior ruling but not

specified that the party before it is entitled to retrospective monetary relief, it seems unlikely that lower

courts should even consider awarding retrospective

monetary relief based on conduct the Court had

previously authorized.” Bermudez v. Serv. Emps. Int’l

Union, Local 521, No. 18 Civ. 4312 (VC), 2019 WL

1615414, at *1 (N.D. Cal. Apr. 16, 2019). This Court

agrees.

g. Defendants’ Are Entitled to the GoodFaith Defense as a Matter of Law

In the absence of other obstacles to the application

of the good-faith defense, Plaintiffs argue that Defendants did not, in fact, act in good faith. (See Pl. Opp.

16). In support of this argument, Plaintiffs devote four

pages of their briefing to detailing Defendants’ alleged

violations of Chicago Teachers Union, Local No. 1,

AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986), and

other cases by overcharging Plaintiffs. (See id. at 1720). These claims are neither alleged in Plaintiffs’

Amended Complaint, nor are they matters of which

the Court may take judicial notice. See Fed. R. Evid.

201 (“The court may judicially notice a fact that is not

38a

subject to reasonable dispute.”). Indeed, they are

fundamentally different claims, and they fall far

outside the “narrow universe of materials” the Court

may consider on a Rule 12(b)(6) motion. See Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). Therefore, the Court will not consider those allegations.

Plaintiffs also argue Defendants could not have

acted in good faith because they were “on notice”

about Abood’s shaky foundations. (See Pl. Opp. 16). As

a matter of Second Circuit precedent, this argument

fails. See Jarvis, 660 F. App’x at 76 (finding defendants not liable for collection of agency shop fees

“[b]ecause it was objectively reasonable for [defendant] ‘to act on the basis of a statute not yet held

invalid’” (quoting Pinsky, 79 F.3d at 313)). Moreover,

as other district courts have noted, Plaintiffs’ position

would “imperil the rule of law,” see Cook, 364 F. Supp.

3d at 1193, since it would lead to individuals

disregarding Supreme Court precedent based on their

personal divinations of what the law might become at

some future date. As every other district court that

has considered the issue has found, Defendants were

entitled to rely on what was indisputably the law of

the land at the time. See, e.g., Danielson v. Am. Fed’n

of State, Cty., & Mun. Emps., Council 28, AFL-CIO,

340 F. Supp. 3d 1083, 1086-87 (W.D. Wash. 2018). The

good-faith defense does not require a defendant to be

clairvoyant.

Moreover, the Court finds that Defendants have

satisfied the requirements of the good-faith defense,

even in the context of a Rule 12(b)(6) motion. As the

Second Circuit has recognized, the good-faith defense

provides that “private defendants … may be held

liable for damages under § 1983 only if they … knew

or should have known that the statute upon which

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they relied was unconstitutional.” See Pinsky, 79 F.3d

at 311 (quoting Wyatt, 994 F.2d at 1118). And as

already mentioned, in the Second Circuit it is

“objectively reasonable” to rely on a “statute not yet

held invalid.” See Jarvis, 660 F. App’x at 76 (quoting

Pinsky, 79 F.3d at 313). There is no dispute that

Defendants collected agency fees as authorized by

N.Y. Civ. Serv. Law § 208(3) and in full compliance

with then-binding Supreme Court precedent; nor have

Plaintiffs shown, if the Court were to apply a subjective standard, that Defendants knew or should have

known that § 208(3) was unconstitutional. Therefore,

the Court must find as a matter of law that Defendants acted in good faith and cannot be held liable for

monetary damages under § 1983.

h. Plaintiffs Are Not Entitled

Discovery on Good Faith

to

As a final matter, Plaintiffs assert that it would

be inappropriate for the Court to decide whether

Defendants have asserted the good-faith defense

without allowing Plaintiffs to take discovery first. (See

Pl. Opp. 20-21). However, all the information the

Court needs to make its finding appears on the face of

the Amended Complaint. As Plaintiffs acknowledge, it

was not until Janus that the Supreme Court declared

compulsory agency shop fees in the public sector to be

unconstitutional. (See Am. Compl. Introduction). And

as already discussed, it was objectively reasonable for

Defendants to rely on a “statute not yet held invalid.”

See Jarvis, 660 F. App’x at 76 (quoting Pinsky, 79 F.3d

at 313). Indeed, Justice Kennedy noted in Wyatt that

“there is support in the common law for the proposition that a private individual’s reliance on a statute,

prior to a judicial determination of unconstitutionality, is considered reasonable as a matter of law.” 504

40a

U.S. at 174 (Kennedy, J., concurring) (emphasis

added). Given the objective reasonableness of Defendants’ reliance on controlling law at the time, there is

no need for discovery into Defendants’ state of mind

at the time. Dismissal is both appropriate and

warranted.

3. Plaintiffs Fail to State a Claim Under

State Law

In addition to their federal claims under § 1983,

Plaintiffs also bring state-law claims for conversion

and unjust enrichment. (See Am. Compl. ¶¶ 38-49).

Defendants raise numerous arguments, including

that these state-law claims are precluded by N.Y. Civ.

Serv. Law § 215. (See Def. Br. 21). Section 215

provides:

Notwithstanding any other law to the

contrary, any public employer, any employee

organization, … or any of their employees or

agents, shall not be liable for, and shall have

a complete defense to, any claims or actions

under the laws of this state for requiring,

deducting, receiving, or retaining agency shop

fee deductions from public employees, and

current or former public employees shall not

have standing to pursue these claims or

actions, if the fees were permitted or mandated at the time under the laws of this state

then in force and paid, through payroll deduction or otherwise, prior to June [27, 2018].

N.Y. Civ. Serv. Law § 215(1) (McKinney 2019)

(emphasis added). The statute states expressly that it

applies “to claims and actions pending or filed on or

after June [27, 2018].” Id. § 215(2).

41a

Plaintiffs argue that § 215, despite its express

language to the contrary, does not apply here. (See Pl.

Opp. 21). Their theory is that N.Y. Civ. Serv. Law. §

208 was never “in force,” since under the declaratory

theory of law it was always void, and therefore the fees

collected were not permitted under any law. (See id.).

Although the Court appreciates that Plaintiffs may be

correct about § 208’s metaphysical status, that does

not mean that § 208 was not, in reality, in force prior

to Janus. For the purposes of the statute, § 208 was

indeed in force prior to June 27, 2018.

Moreover, although Plaintiffs do not raise the

issue in their briefing, it is clear that § 215 applies

retroactively to Plaintiffs’ state-law claims. Under

New York law, “[a]mendments are presumed to have

prospective application unless the Legislature’s

preference for retroactivity is explicitly stated or

clearly indicated.” Matter of Gleason, 96 N.Y.2d 117,

122 (2001) (citing People v. Oliver, 1 N.Y.2d 152, 157

(1956)). Additionally, “remedial legislation should be

given retroactive effect in order to effectuate its beneficial purpose.” Id. (citing Majewski v. BroadalbinPerth Cent. Sch. Dist., 91 N.Y.2d 577, 584 (1998)).

“Remedial statutes are those designed to correct

imperfections in the prior law.” N.Y. Stat. § 54(a),

Comment (McKinney 2019).

Section 215 expressly provides for retroactive

application by stating that it applies “to claims and

actions pending or filed on or after” June 27, 2018, see

N.Y. Civ. Serv. Law § 215(2), which includes actions

filed prior to the statute’s enactment in April 2019.

Section 215 is also a remedial statute because it was

designed to ensure that employee organizations,

among others, would remain free from liability for the

previously lawful collection of agency shop fees now

42a

that Janus has made such conduct unlawful. Cf.

Majewski, 91 N.Y.2d at 584-85 (describing legislation

as “remedial” when it was enacted to restore immunity to tort liability following a Court of Appeals decision). Thus, there is no question that § 215 is retroactive legislation and applies to the matter at hand.

Nevertheless, Plaintiffs contend that § 215 is

unconstitutional under both the United States and

New York7 constitutions. Specifically, Plaintiffs allege

that § 215 (i) violates the procedural and substantive

due process protections provided by both constitutions; (ii) constitutes an unlawful taking in violation

of the Fifth Amendment, as incorporated through the

Fourteenth Amendment; and (iii) violates Article VII,

§ 6 of the New York State Constitution. The Court will

address each argument in turn.

a. Section 215 Does Not Violate

Plaintiffs’ Procedural Due Process

Rights

Both the federal and New York State constitutions provide that “[n]o person shall … be deprived of

life, liberty or property, without due process of law.”

U.S. Const. amend. V; N.Y. Const. Art. I, § 6

(McKinney, Westlaw through L. 2019, chapter 579).

“Procedural due process imposes constraints on

governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests,” Mathews v. Eldridge,

7 The Court of Appeals, New York’s highest court, reads New

York’s due process guarantee as largely coterminous with the

due process guaranteed under the U.S. Constitution. See Am.

Econ. Inst. Co. v. State, 30 N.Y.3d 136, 157-58 (2017); People v.

David W., 95 N.Y.2d 130, 136 (2000). Therefore, the Court will

offer a merged analysis of the federal and state constitutional

due process claims, as opposed to disaggregating them.

43a

424 U.S. 319, 332 (1976), by requiring the Government to provide some sort of procedural protections

when a deprivation occurs, see Zinermon v. Burch, 494

U.S. 113, 125-27 (1990). However, as the Supreme

Court has recognized, “the State remains free to

create substantive defenses or immunities for use in

adjudication,” Logan v. Zimmerman Brush Co., 455

U.S. 422, 432 (1982); accord Stoianoff v. Commissioner of Motor Vehicles, 107 F. Supp. 2d 439, 448

(S.D.N.Y. 2000), aff’d sub nom. Stoianoff v. Commissioner of Department of Motor Vehicles, 12 F. App’x 33

(2d Cir. 2001) (summary order), and when it does so,

“the legislative determination provides all the process

that is due,” Logan, 455 U.S. at 433. Indeed, the Supreme Court held as much in Martinez v. California,

where it recognized that even if California’s immunity

statute had deprived plaintiffs of a property interest,

it had not done so without due process. See 444 U.S.

277, 281-83 (1980). Relevantly, the Court also wrote

that “the State’s interest in fashioning its own rules of

tort law is paramount to any discernable federal

interest, except perhaps an interest in protecting the

individual from state action that is wholly arbitrary

or irrational.” Id. at 282.

Here, the New York legislature’s determination to

immunize those involved in the collection of agency

shop fees from liability is all the process that Plaintiffs

are due. Plaintiffs primarily rely on Logan (see Pl.

Opp. 22-23), but as already noted, Logan cuts against

Plaintiffs by reaffirming that the legislative process

satisfies any procedural due process concerns, see 455

U.S. at 433. The Supreme Court’s finding that the

Constitution entitles the claimant to “some form of

hearing,” see Logan, 455 U.S. at 433, is limited to

when the State institutes “a procedural limitation on

the claimant’s ability to assert his rights,” as opposed

44a

to altering “a substantive element of the … claim,” see

id. Moreover, insofar as solely federal constitutional

claims are concerned, it cannot be argued that the

New York legislature’s action was “wholly arbitrary or

irrational.” The legislature wanted to protect those

who had relied in good faith on § 208, a statute

designed in full compliance with prevailing Supreme

Court precedent at the time. The Court cannot regard

such an objective or action as irrational. Section 215

comports fully with procedural due process.

b. Section 215 Does Not Violate

Plaintiffs’ Substantive Due Process

Rights

Whereas the procedural component of due process

ensures that no deprivation occurs without adequate

procedural safeguards, see Zinermon, 494 U.S. at 12527, substantive due process “guard[s] the individual

against ‘the exercise of power without any reasonable

justification in the service of a legitimate governmental objective,’” Lombardi v. Whitman, 485 F.3d

73, 79 (2d Cir. 2007) (quoting County of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998)). However, “[g]enerally speaking, state laws need only be rational and

non-arbitrary in order to satisfy the right to substantive due process.” Gibson v. Am. Cyanamid Co., 760

F.3d 600, 614 (7th Cir. 2014). Indeed, as the New York

Court of Appeals has noted, “the test of due process

for retroactive legislation ‘is met simply by showing

that the retroactive application of the legislation is

itself justified by a rational legislative purpose.’” Am.

Econ. Ins. Co. v. State, 30 N.Y.3d 136, 158 (2017). As

already noted, the Court does not view the legislature’s decision to immunize those who lawfully

collected agency shop fees prior to Janus as irrational.

45a

Alternatively, retroactive legislation can run afoul

of substantive due process if it impairs “vested or

property rights.” See All. of Am. Insurers v. Chu, 77

N.Y.2d 573, 586 (1991); cf. Davis, 379 F. Supp. 3d at

252-53 (explaining that a plaintiff can show a

substantive due process violation where there is a

“valid property interest,” or “property right,” and an

infringement of that right “in an arbitrary or irrational manner”). However, Plaintiffs currently have

no property interest that the legislation can impair or

infringe, as property rights in a cause of action do not

vest until “a final unreviewable judgment” has been

obtained. See Worldwide Directories, S.A. De C.V. v.

Yahoo! Inc., No. 14 Civ. 7349 (AJN), 2016 WL

1298987, at *6 (S.D.N.Y. Mar. 31, 2016) (quoting Ileto

v. Glock, Inc., 565 F.3d 1126, 1141 (9th Cir. 2009)); see

also Hosp. Ass’n of N.Y. State, Inc. v. Tola, 577 F.2d

790, 797 (2d Cir. 1978) (affirming district court’s

finding that “hospitals possessed no vested right in

the judgment entitling it to protection under the Due

Process Clause because it had not yet become final

and unreviewable”); Hodes v. Axelrod, 70 N.Y.2d 364,

370 (1987) (explaining that “vested rights doctrine”

protects a judgment from subsequent legislation

“after [the judgment] becomes final”). Given the lack

of any vested right or arbitrary behavior on the part

of the legislature, the Court finds that § 215 also does

not violate substantive due process.

c. Section 215 Does Not Violate the

Takings Clause

The Fifth Amendment of the U.S. Constitution

and Article I, § 7 of the New York State Constitution

provide that private property shall not “be taken for

public use, without just compensation.” U.S. Const.

amend. V; N.Y. Const. Art. I, § 7. As Plaintiffs note

46a

(see Pl. Opp. 24), the Takings Clause “prevents the

Legislature (and other government actors) from

depriving private persons of vested property rights,”

Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994)

(emphasis added). Plaintiffs’ argument, therefore fails

for the same reason their substantive due process

argument fails — they possess no vested property

right, and thus nothing has been taken from them.

Section 215 does not run afoul of the Takings Clause.

d. Section 215 Does Not Violate Article

VII, § 6 of the New York State

Constitution

Plaintiffs’ final argument for § 215’s invalidity is

that it violates Article VII, § 6 of the New York State

Constitution, which provides that “[n]o provision shall

be embraced in any appropriation bill … unless it

relates specifically to some particular appropriation in

the bill.” Section 215 was enacted as part of the 2019

appropriation bill, see generally N.Y. Legis. 56

(McKinney 2019), and therefore must comport with

Article VII, § 6. The bar, however, is low. In Schuyler

v. S. Mall Constructors, 303 N.Y.S.2d 901, 903 (3d

Dep’t 1969), the court held that a provision in the

appropriation bill to negotiate a contract for the construction of a public building at the Albany South Mall

was in compliance with Article VII, § 6 because the

bill appropriated money “for the construction of State

buildings and other public improvements, including

the erection of the building in question.” The court

found that the provision “relate[d] specifically to some

particular appropriation in the bill[] even though the

‘particular appropriation’ to which it relate[d] [was]

not precisely itemized in the general appropriation

bill.” Id. at 904. Similarly, the Appellate Division

upheld the creation of the Commission on Legislative,

47a

Judicial, and Executive Compensation via appropriation bill because the Commission’s purpose — “to

provide for periodic review of the compensation of

state officers — relate[d] to items of appropriation in

the budget.” Ctr. for Judicial Accountability, Inc. v.

Cuomo, 91 N.Y.S.3d 553, 559 (3d Dep’t 2018). Reading

these cases together, the common theme is that there

must be a rational relationship between the challenged provision and a general item of appropriation

in the budget; there is no need to tie the provision to

a specific, itemized appropriation. Therefore, insofar

as the budget appropriates funds for the compensation of public employees, the Court finds that § 215

relates to “some particular appropriation” in the

budget because § 215 governs liability for those individuals and entities managing public employees’

paychecks. Plaintiffs’ final challenge to § 215 fails,

and the Court thus finds that § 215 precludes all of

Plaintiffs’ state-law claims.

In sum, the Court joins the numerous other

district courts that have heard substantially the same

facts, claims, and arguments, in finding that Plaintiffs

have failed to state any claim upon which relief may

be granted. Moreover, Plaintiffs are not entitled to

either injunctive relief or a declaratory judgment

because they lack standing to request such prospective relief. Accordingly, Defendants’ motions to

dismiss are granted in full.

CONCLUSION

For the reasons set forth in this Opinion, Defendants’ motion to dismiss is GRANTED and Plaintiffs’

claims are DISMISSED WITH PREJUDICE. The

Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.

48a

SO ORDERED.

Dated: January 3, 2020

New York, New York

KATHERINE POLK FAILLA

United States District Judge