Petition for Writ of Certiorari — David Schaszberger, et al., Petitioners v. American Federation of State, County and Municipal Employees, Council 13

App. 1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2172

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DAVID SCHASZBERGER; BRADFORD

SCHMITTLE; KYLE CLOUSE; COLBY CONNER;

JEANETTE HULSE; GARY LANDIAK,

Appellants

v.

AMERICAN FEDERATION OF STATE COUNTY

AND MUNICIPAL EMPLOYEES COUNCIL 13

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-19-cv-01922)

District Judge: Honorable Malachy E. Mannion

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Submitted Pursuant to Third Circuit L.A.R. 34.1

on February 10, 2022

Before: GREENAWAY, JR., SCIRICA,

and RENDELL, Circuit Judges.

(Filed: July 20, 2022)

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OPINION*

----------------------------------------------------------------------* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

App. 2

SCIRICA, Circuit Judge

This case arises out of the Supreme Court’s decision in Janus v. American Federation of State, County,

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

(2018), in which the Court held that the collection of

agency shop fees from nonconsenting employees by the

state or public-sector unions was a violation of the

First Amendment. American Federation of State, County

and Municipal Employees Council 13 (“AFSCME”), a

Pennsylvania public-sector union, was a union that

had previously been collecting these “fair-share” fees,

pursuant to then-binding Supreme Court precedent

and Pennsylvania state law. Appellants, non-AFSCME

members who worked in units represented by AFSCME, were subject to these fees. After the Supreme

Court found these fees to be unconstitutional, Appellants filed this putative class action to recover the fairshare fees AFSCME collected from them prior to the

Janus decision. The District Court granted AFSCME’s

motion to dismiss, finding AFSCME was shielded from

liability by virtue of its good faith reliance on thencontrolling Supreme Court precedent and state law.

Because we find AFSCME was entitled to a good faith

defense, we will affirm.

I.

Labor laws in the United States authorize employers and labor organizations to bargain for an “agency

shop.” Diamond v. Pa. State Educ. Ass’n, 972 F.3d

262, 265 (3d Cir. 2020). An agency shop arrangement

App. 3

permits a union to exclusively represent an entity’s

employees on the condition that the union represent

all of the entity’s employees, even those who do not join

the union. Id. at 265–66. Because agency shop arrangements can create an incentive for employees to decline

to join their union and avoid paying dues

while still accruing the benefits of union representation. . . . Congress often allowed unions and employers who opt for an agency

shop arrangement to require all employees either to join the union and pay dues or, if an

employee does not join the union, to nonetheless contribute to the costs of representation,

bargaining, and administration of bargaining

agreements.

Id. at 266.

These mandated contributions are known as “fairshare” fees. For decades, the Supreme Court consistently upheld the constitutionality of fair-share fees.

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 224–26

(1977).

Like many states, Pennsylvania enacted a law

providing that “[i]f the provisions of a collective bargaining agreement so provide, each nonmember of a

collective bargaining unit shall be required to pay to

the exclusive representative a fair share fee.” 71 Pa.

Stat. Ann. § 575. AFSCME is a government employee

union that served as the exclusive representative for

several bargaining units throughout Pennsylvania, including Appellants’ units. In 2016, pursuant to 71 Pa.

App. 4

Stat. Ann. § 575, AFSCME negotiated a Master Agreement with Pennsylvania for the collection of service

fees from nonmember employees, which provided:

The Employer further agrees to deduct a fair

share fee biweekly from all employees in the

bargaining unit who are not members of the

Union. Authorization from non-members to

deduct fair share fees shall not be required.

The amounts to be deducted shall be certified

to the Employer by the Union and, the aggregate deductions of all employees shall be remitted together with an itemized statement to

the Union by the last day of the succeeding

month, after such deductions are made.

App. 09–10.

But in 2018, the Supreme Court reversed its views

with respect to fair-share fees and overruled Abood in

Janus. The Court held “the First Amendment does not

permit the government to compel a person to pay for

another party’s speech just because the government

thinks that the speech furthers the interests of the

person who does not want to pay.” 138 S. Ct. at 2467.

This decision rendered statutes like 71 Pa. Stat. Ann.

§ 575 unconstitutional, meaning states and publicsector unions could no longer extract agency fees from

nonconsenting employees. After the Court issued this

decision, AFSCME promptly ceased its collection of

fair-share fees.

During the relevant time, Appellants were state

employees whose jobs fell within a classification covered by AFSCME but who were not dues-paying

App. 5

members of the union. Prior to Janus, AFSCME collected fair-share fees from Appellants. As noted, Appellants filed a suit on November 7, 2019, under 42 U.S.C.

§ 1983 on behalf of themselves and a putative class of

similarly situated employees, contending they should

be able to recover the fair-share fees AFSCME collected from them prior to Janus.

The trial judge granted AFSCME’s motion to dismiss. In dismissing Appellants’ claims, the trial judge

held “unions sued for a refund of pre-Janus fair-share

fees can assert the good-faith defense.” App. 22. Accordingly, the trial judge found that because AFSCME

relied in good faith on both a Pennsylvania state statute and unambiguous Supreme Court precedent in extracting these fees, the good faith defense shielded it

from liability for Appellants’ claims under § 1983. Appellants appealed.

II.

The District Court had jurisdiction under 28 U.S.C.

§§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291. We review a District Court’s grant

of a motion to dismiss de novo. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In considering

a motion to dismiss, we “accept all factual allegations

as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may

be entitled to relief.” Id. at 233 (quoting Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

App. 6

III.

This is not the first time such a case has come before us. In Diamond v. Pennsylvania State Education

Association, 972 F.3d 262 (3d Cir. 2020), the plaintiff

made allegations substantially similar to the ones

brought by Appellants. A divided panel of our colleagues found for the Diamond union and affirmed the

trial judge’s grant of the motion to dismiss. Id. at 265.

Judge Rendell concluded the Diamond union was entitled to a good faith defense, because “private defendants should not be held liable under § 1983 absent a

showing of malice and evidence that they either knew

or should have known of the statute’s constitutional infirmity.” Id. at 270 (quoting Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994)).

Judge Fisher concurred in the judgment, but disagreed

with Judge Rendell’s reasoning. Id. at 274 (Fisher, J.

concurring). Instead, Judge Fisher found the Diamond

union was entitled to a specific defense available at

common law that exempted the union from liability absent a showing of fraud or duress. Id. at 284–85. Judge

Phipps dissented, finding “a good faith affirmative defense” did not exist for this type of § 1983 claim because the defense was not firmly rooted at common law.

Id. at 285 (Phipps, J., dissenting).

We are bound by decisions of this Court, and accordingly, must decide if an opinion in Diamond controls here. See Montgomery Cnty. v. MicroVote Corp.,

175 F.3d 296, 300 (3d Cir. 1999). The Third Circuit has

“no specific rules for how to identify the holdings and

legal standards” for split opinions in which no majority

App. 7

agrees on both the holding and the reasoning. Holloway v. Att’y Gen., 948 F.3d 164, 170 (3d Cir. 2020). But

the Supreme Court has provided instructions on how

to identify the controlling standards in their own split

decisions, which guide our opinion.1

In Marks v. United States, the Supreme Court instructed that when there is a divided court, and no single rationale receives a majority vote, “the holding of

the Court may be viewed as that position taken by

those Members who concurred in the judgments on the

narrowest grounds.” 430 U.S. 188, 193 (1977) (quoting

Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). We

have interpreted the Marks rule to mean that “[w]hen

sorting out a fractured decision of the Court, the goal

is ‘to find a single legal standard’ that ‘produce[s] results with which a majority of the [Court] in the case

articulating the standard would agree.’ ” Binderup v.

Att’y Gen., 836 F.3d 336, 356 (3d Cir. 2016) (en banc)

(quoting United States v. Donovan, 661 F.3d 174, 182

(3d Cir. 2011)).

As noted, Judge Rendell and Judge Fisher applied

different legal standards to find for the Diamond union. Because Judge Fisher’s vote was necessary for the

judgment, Judge Rendell’s opinion is “not a majority

opinion except to the extent that it accords with [Judge

Fisher’s] views.” B.H. ex rel. Hawk v. Easton Area Sch.

Dist., 725 F.3d 293, 310 (3d Cir. 2013) (quoting McKoy

1

We have previously looked to Marks v. United States, 430

U.S. 188 (1977) and its progeny for guidance on how to read split

opinions. See Holloway, 948 F.3d at 170.

App. 8

v. North Carolina, 494 U.S. 433, 462 n.3 (1990)

(Scalia, J., dissenting)). But Judge Fisher found for

the Diamond union on an entirely separate ground, so

his rationale does not provide the “least common denominator necessary to maintain a majority opinion”

between Judge Rendell and Judge Fisher. B.H., 725

F.3d at 311; see also id. at 310 (“[The] linchpin justice’s

opinion ‘cannot add to what the majority opinion holds’

by ‘binding the other [ ] justices to what they have not

said’ because his views would not be the narrowest

grounds.” (quoting McKoy, 494 U.S. at 462 n.3 (Scalia,

J., dissenting))); King v. Palmer, 950 F.2d 771 (D.C. Cir.

1991) (en banc) (“[T]he narrowest opinion must represent a common denominator of the Court’s reasoning;

it must embody a position implicitly approved by at

least five Justices who support the judgment.”); Abbas

v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1336–37

(D.C. Cir. 2015) (Kavanaugh, J.) (finding no opinion

could be “the Marks middle ground or narrowest opinion” where the Justices who concurred in the judgment

adopted different legal formulations).

The only common denominator in the Diamond

majority is the ultimate outcome of the case, and thus

we are not bound by the reasoning of either opinion.

See Anker Energy Corp. v. Consolidation Coal Co., 177

F.3d 161, 170 (3d Cir. 1999) (“[I]n cases where approaches differ, no particular standard is binding on an

inferior court because none has received the support of

a majority. . . .”); United States v. Guillen, 995 F.3d

1095, 1115 (10th Cir. 2021) (“[Where] there is no discernable implicit consensus or common denominator

App. 9

among the Justices who support the Court’s judgment

. . . we do not apply Marks.”).2

Appellants urge us to read Judge Fisher’s and

Judge Phipps’s opinions regarding the lack of a good

faith defense as controlling precedent. We have previously “looked to the votes of dissenting Justices if they,

combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue.”

United States v. Donovan, 661 F.3d 174, 182 (3d Cir.

2011) (collecting cases). But even in these cases, the

cobbled-together collective is only persuasive, rather

than binding, authority. United States v. Richardson,

658 F.3d 333, 340 (3d Cir. 2011). Accordingly, while the

three opinions in Diamond should be considered for

their persuasive value, we believe none constitutes

binding authority here.

2

In United States v. Duvall, 740 F.3d 604 (D.C. Cir. 2013),

then-Judge Kavanaugh discussed the rare circumstance where

there is “no `narrowest’ opinion that would identify how a majority of the Supreme Court would resolve all future cases” because

no opinion has “adopted a legal standard that would produce results with which a majority of the Court in that case necessarily

would agree.” Id. at 611 (Kavanaugh, J., concurring). Diamond is

one such circumstance. To the extent Justice Kavanaugh would

encourage us to “decide the case . . . in a way consistent with how

the [Court]’s opinions in the relevant precedent would resolve the

current case,” by “run[ning] the facts and circumstances . . .

through the tests articulated in the Justices’ various opinions in

the binding case and adopt[ing] the result that a majority of the

[Court] would have reached,” id., we would reach the same result.

We note this portion of our opinion is an alternative holding.

App. 10

IV.

Because Diamond does not control our decision

here, we turn to the question of whether Appellee is

entitled to a good faith defense. We hold a good faith

defense exists, where, as here, Appellee relied on thencontrolling Supreme Court precedent and state law.

42 U.S.C. § 1983 provides a cause of action for persons who have been deprived of “any rights, privileges,

or immunities secured by the Constitution” under color

of state law. A private party may be liable under § 1983

if it “deprived the plaintiff of a constitutional right by

exercising ‘a right or privilege having its source in

state authority’ and where the private-party defendant

may be ‘appropriately characterized as a state actor.’ ”

Diamond, 972 F.3d at 269–70 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)).

While “[o]n its face § 1983 admits no immunities,”

the Supreme Court has “consistently recognized that

substantive doctrines of privilege and immunity may

limit the relief available.” Tower v. Glover, 467 U.S. 914,

920 (1984). Most notably, government officials are entitled to immunity from § 1983 liability where the “tradition of immunity was so firmly rooted in the common

law and was supported by such strong policy reasons

that Congress would have specifically so provided had

it wished to abolish the doctrine.” Owen v. City of Independence, 445 U.S. 622, 637 (1980) (internal quotation

omitted). In Wyatt v. Cole, the Court refused to extend

§ 1983 immunity to private parties, finding the rationales supporting qualified immunity for government

App. 11

officials did not apply to private parties. 504 U.S. 158,

168 (1992). But the Court differentiated defenses to

suit from immunity from suit. Id. at 166. Because

“principles of equality and fairness may suggest” that

“private citizens who rely unsuspectingly on state laws

they . . . may have no reason to believe are invalid

should have some protection from liability,” the Court

“[did] not foreclose the possibility” that private parties

“could be entitled to an affirmative defense based on

good faith and/or probable cause.” Id. at 169. Instead,

the Court left open the question of a good faith defense

“for another day.” Id.

We addressed this question in Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994).

In Jordan, we held that private parties sued for monetary damages under § 1983 are entitled to a subjective

good faith defense if the court finds no malice and no

evidence the party knew or should have known “of the

statute’s constitutional infirmity.” 20 F.3d at 1276 (internal quotation omitted). In Diamond, Judge Rendell

read Jordan to establish that this good faith defense

is open to private-party defendants as a categorical

rule. 972 F.3d at 271.3 We agree a good faith defense

exists in this case for private party defendants who

3

Other circuits have read Jordan in this same manner. See,

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

31, 942 F.3d 352, 362 (7th Cir. 2019) (Janus II) (“[Jordan] held

that, while a private party acting under color of state law does not

enjoy qualified immunity from suit, it is entitled to raise a goodfaith defense to liability under section 1983.”).

App. 12

reasonably rely on both Supreme Court precedent and

state law.

The availability of a good faith defense is consistent with Wyatt, equitable considerations, and the

views of several of our sister circuits. In Wyatt, the

Court explained

[i]f parties seeking immunity were shielded

from tort liability when Congress enacted the

Civil Rights Act of 1871—§ 1 of which is codified at 42 U.S.C. § 1983—we infer from legislative silence that Congress did not intend to

abrogate such immunities when it imposed liability for actions taken under color of state

law.

504 U.S. at 164.

Accordingly, when determining whether Congress

intended to confer immunity, the Court instructed us

to look to the “most closely analogous torts” to see

whether there was an immunity at common law. Id.

Appellants encourage us to find this directive applies

to determining “the elements or defenses to constitutional claims under § 1983” with respect to private

party defendants. Appellants’ Br. 31. But Wyatt only

decided the proper inquiry to determine what immunities might be available to government officials. And we

are not persuaded to apply the Court’s historical immunity analysis to the separate question of a good

faith defense, which the Court explicitly left open in

Wyatt. See Diamond, 972 F.3d at 272. As Justice Kennedy acknowledged in Wyatt, the distinction between

App. 13

immunity and a defense is “important” and “fundamental.” Wyatt, 504 U.S. at 173–74 (Kennedy, J., concurring). And the rationales, limitations, and legal

bases for the doctrines are not interchangeable. Danielson v. Inslee, 945 F.3d 1096, 1100–01 (9th Cir. 2019).

Accordingly, Wyatt does not appear to require us to apply the “most closely analogous tort” methodology to a

good faith defense.4

Moreover, qualified immunity itself is no longer

bound by a common law tort analogy. The Supreme

Court has emphasized that it has “never suggested

that the precise contours of official immunity can and

should be slavishly derived from the often arcane rules

of the common law.” Anderson v. Creighton, 483 U.S.

635, 645 (1987). And as the Ninth Circuit observed in

Danielson, the good faith defense is rooted in legitimate concerns about equality and fairness, “values

that are inconsistent with rigid adherence to the oftarbitrary elements of common law torts as they stood

4

Even if we accepted Appellants’ argument and looked to the

most closely analogous tort, we would still find for Appellee. Like

many of our sister circuits, we believe that abuse of process is the

most analogous common law tort to a Janus First Amendment

claim. See Akers v. Md. State Educ. Ass’n, 990 F.3d 375, 382 (4th

Cir. 2021); Ogle v. Ohio Civ. Serv. Emps. Ass’n, AFSCME Loc. 11,

951 F.3d 797 (6th Cir. 2020); Doughty v. State Emps. Ass’n of

N.H., SEIU Loc. 1984, 981 F.3d 128, 134 (1st Cir. 2020); Janus II,

942 F.3d at 365; Danielson, 945 F.3d at 1102. At common law, one

accused of abuse of process was entitled to a good faith defense.

See Shaw v. Fulton, 266 Mass. 189, 191 (1929); Reay v. Butler, 69

Cal. 572, 585 (Cal. 1886). Accordingly, even if we conducted a common-law tort inquiry, we would find Appellee is entitled to a good

faith defense.

App. 14

in 1871.” 945 F.3d at 1101. Indeed, modern causes of

action litigated in § 1983 cases often bear little resemblance to any 19th Century tort. We agree with the

Ninth Circuit in finding it would be “neither ‘equal’ nor

‘fair’ for a private party’s entitlement to a good faith

defense to turn not on the innocence of its actions but

rather on the elements of an 1871 tort that the party

is not charged with committing.” Id. at 1101–02.

Accordingly, we join a growing list of our sister

circuits in recognizing a good faith defense for § 1983

private defendants who relied on then-controlling Supreme Court precedent and then-existing state law.

See Lee v. Ohio Educ. Ass’n, 951 F.3d 386, 390–91 (6th

Cir. 2020) (“Since Wyatt, a consensus has emerged

among the lower courts that while a private party acting under color of state law does not enjoy qualified immunity from suit, it is entitled to raise a good-faith

defense to liability under section 1983. It is not surprising then that the Seventh Circuit, the Ninth Circuit, and each of the District Courts to have considered

the precise issue before us have all concluded that the

good-faith defense precludes claims brought under

§ 1983 for a return of fair-share fees collected under

the Abood regime.” (cleaned up)); Wholean v. CSEA

SEIU Loc. 2001, 955 F.3d 332, 335–36 (2d Cir. 2020);

Danielson, 945 F.3d at 1101–02; Janus v. Am. Fed’n

of State, Cnty. & Mun. Emps., Council 31, 942 F.3d

352, 365 (7th Cir. 2019) (Janus II). We agree. Because

App. 15

AFSCME relied in good faith on both Janus and 71 Pa.

Stat. Ann. § 575, it is entitled to a good faith defense.5

V.

We recognize a good faith defense here for § 1983

private defendants who reasonably relied on then-controlling Supreme Court precedent and then-existing

state law. Under this standard, Appellee is entitled to

a good faith defense. Accordingly, we will affirm the

judgment of the District Court.

5

Appellants contend that even if a good faith defense exists,

it is only a mechanism to defeat the elements of malice or probable cause in those constitutional claims in which malice or probable cause are elements. They argue that since a Janus First

Amendment claim does not contain these elements, there can be

no good faith defense. We are not persuaded by this argument. An

affirmative defense “need not relate to or rebut specific elements

of an underlying claim.” Wholean, 955 F.3d at 336 (internal quotation omitted).

App. 16

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2172

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DAVID SCHASZBERGER; BRADFORD

SCHMITTLE; KYLE CLOUSE; COLBY CONNER;

JEANETTE HULSE; GARY LANDIAK,

Appellants

v.

AMERICAN FEDERATION OF STATE COUNTY

AND MUNICIPAL EMPLOYEES COUNCIL 13

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-19-cv-01922)

District Judge: Honorable Malachy E. Mannion

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Submitted Pursuant to Third Circuit L.A.R. 34.1

on February 10, 2022

Before: GREENAWAY, JR., SCIRICA,

and RENDELL, Circuit Judges.

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JUDGMENT

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This cause came to be considered on the record

from the United States District Court for the Middle

District of Pennsylvania and was submitted pursuant

App. 17

to Third Circuit L.A.R. 34.1(a) on February 10, 2022.

On consideration whereof, it is now hereby

ORDERED and ADJUDGED by this Court that

the order of the District Court entered May 20, 2021,

be, and the same is hereby AFFIRMED. Costs taxed

against Appellants. All the above in accordance with

the opinion of this Court.

ATTEST

s/ Patricia S. Dodszuweit

Clerk

DATED: July 20, 2022

App. 18

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

David SCHASZBERGER, :

et al.,

:

:

CIVIL ACTION

Plaintiffs

:

NO. 3:19-1922

v.

:

: (JUDGE MANNION)

AMERICAN FEDERATION

:

OF STATE, COUNTY &

:

MUNICIPAL EMPLOYEES,

:

COUNCIL 13,

:

Defendant

:

MEMORANDUM

(Filed May 20, 2021)

Presently before the court is the motion to dismiss

the first amended complaint (“FAC”), (Doc. 16), of

plaintiffs David Schaszberger, Bradford Schmittle,

Kyle Clouse, Colby Conner, Jeanette Hulse, Gary Landiak, and Andrew Malene filed by defendant American

Federation of State, County and Municipal Employees

Union, Council 13 (“AFSCME”), (Doc. 18). Defendant

AFSCME’s motion seeks dismissal of the plaintiffs’

claims against it for retrospective monetary relief under 42 U.S.C. § 1983 for failure to state a claim upon

which relief may be granted pursuant to Fed.R.Civ.P.

12(b)(6), and it seeks dismissal of plaintiffs’ request

for declaratory judgment under Rule 12(b)(1). Specifically, AFSCME contends that plaintiffs’ First Amendment claims against it, in this putative class action, for

App. 19

retrospective monetary relief under § 1983 should be

dismissed since it relied in good faith on the formerly

valid Pennsylvania law and longstanding United States

Supreme Court precedent that allowed it to collect fairshare fees from public-sector employees who were not

members of the union. AFSCME contends that plaintiffs’ request for declarative judgment should be dismissed for lack of standing and mootness. Once again,

see Wenzig v. SEIU Local 668, 426 F. Supp. 3d 88 (M.D.

Pa. 2019), aff ’d, Diamond v. Pennsylvania State Education Ass’n, 972 F.3d 262 (3d Cir. 2020), petition for

cert. pending. This court concurs with the now well-settled caselaw that has dismissed claims identical to

those raised by plaintiffs in their FAC, including the

Third Circuit and five other Circuit Courts as well as

numerous other district courts. For the reasons that follow, AFSCME’s motion to dismiss will be GRANTED

and, all of plaintiffs’ claims against AFSCME will be

DISMISSED WITH PREJUDICE.

I.

BACKGROUND

The plaintiffs are non-members of AFSCME seeking to recover fair-share fees paid to the union when

such fees were authorized by Pennsylvania state law,

71 P.S. § 575, and had been held constitutional by the

United States Supreme Court in Abood v. Detroit

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

bring this civil rights action pursuant to 42 U.S.C.

§ 1983, and seek compensatory and declaratory relief

against the Union in connection with its collection of

App. 20

fair-share fees from them prior to the U.S. Supreme

Court’s ruling in Janus.1

Pennsylvania permits certain of its own employees

to organize and bargain collectively with the Commonwealth, through a representative organization of their

choosing, over the terms and conditions of their employment. 43 P.S. §§ 1101.101, et. seq. AFSCME is a

labor organization certified as the exclusive representative of certain classifications of state employees

and for several bargaining units in the state. Plaintiffs

were employed by the state in jobs that were within a

classification covered by AFSCME and their bargaining units were represented by AFSCME. Since the

FAC states the particular employment of each plaintiff

as well as the state agency for which they worked, they

are not repeated herein. (Doc. 16 at 2-3). AFSCME had

a legal duty to represent equally the interests of all

employees in the bargaining units, in collective bargaining and grievance administration, whether they

were dues-paying members of the union or not. Plaintiffs were not members of AFSCME, but they allege

that the union was legally allowed to collect fair share

1

The facts alleged in plaintiffs’ FAC must be accepted as

true in considering defendant AFSCME’s motion to dismiss. See

Dieffenbach v. Dept. of Revenue, 490 Fed.Appx. 433, 435 (3d Cir.

2012); Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).

Also, since the legal standard to state a claim under § 1983

is referenced in the briefs and is well known, the court will not

repeat it herein. See Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.

1996) (To state an actionable claim under § 1983, a plaintiff must

prove that someone deprived her of a constitutional right while

acting under the color of state law.).

App. 21

fees from them under Pennsylvania’s Public Employee

Fair Share Fee Law, 71 P.S. § 575, since it represented

them in collective bargaining.2

Under state law, AFSCME negotiated with the

state a Master Agreement (“MA”) for the collection of

fair-share fees from nonmembers state employees, including plaintiffs.

In particular, Article 4, Section 2 of the MA, which

was effective from July 1, 2016 through June 30, 2019,

provided:

The Employer further agrees to deduct a fair

share fee biweekly from all employees in the

bargaining unit who are not members of the

Union. Authorization from non-members to

deduct fair share fees shall not be required.

The amounts to be deducted shall be certified

to the Employer by the Union and, the aggregate deductions of all employees shall be remitted together with an itemized statement to

the Union by the last day of the succeeding

month, after such deductions are made.

Thus, under the MA, prior to June 27, 2018, all

Commonwealth employees in the collective bargaining

units who were represented by AFSCME and who were

not union members, such as plaintiffs, were forced to

2

Since plaintiffs were public employees employed by Pennsylvania, they were subject to its “agency-shop statute”, the fair

share fee law, namely, 71 Pa.Stat.Ann. § 575. See also Diamond

v. Pennsylvania State Education Association, 399 F.Supp.3d 361,

371 (W.D. Pa. 2019), aff ’d, Diamond v. Pennsylvania State Education Ass’n, 972 F.3d 262 (3d Cir. 2020).

App. 22

pay “fair-share fees” to AFSCME as a condition of their

public employment. Plaintiffs state that at no time was

any one of them a member of AFSCME. Plaintiffs further allege that before June 27, 2018, government

employers covered by the MA, such as they were, involuntarily had fair-share fees deducted from their

paychecks despite the fact that they “never affirmatively authorized these fees to be taken from their

[wages].” Rather, they allege that “their employer automatically garnished [their] wages directly from

[their] paychecks and transmitted them to AFSCME.”

Plaintiffs further allege that before June 27, 2018,

government employers covered by the CBA “deducted

fair share fees from Plaintiffs’ and other nonmembers’

wages without their consent and, . . . , transferred

those funds to AFSCME, which collected those funds.”

(Doc. 16 at paras. 16-18).

As such, plaintiffs aver that “AFSCME should

have known that its seizure of fair share fees from nonconsenting employees likely violated the First Amendment.” (Id. at para. 18).

Plaintiffs also seek to bring this case as a class action under Fed.R.Civ.P. 23(b)(3) for themselves and for

all others similarly situated. They define the proposed

class as “all current and former Commonwealth employees from whom AFSCME collected fair share fees

pursuant to its collective bargaining agreement with

the Commonwealth of Pennsylvania.” (Id. at para. 19).

Plaintiffs raise claims in their FAC under the

First Amendment. Specifically, plaintiffs allege that

App. 23

“AFSCME [acting under color of state law in concert

with Pennsylvania] violated [their] and class members’

First Amendment rights to free speech and association,

as secured against state infringement by the Fourteenth Amendment to the United States Constitution

and 42 U.S.C. § 1983, by requiring the payment of fair

share fees as a condition of employment and by collecting such fees.” (Id. at 7).

As relief, plaintiffs request declaratory judgment,

pursuant to 28 U.S.C. § 2201(a), “declaring that AFSCME violated Plaintiffs’ and class members’ constitutional rights by compelling them to pay fair share

fees as a condition of their employment and by collecting fair-share fees from them without consent.” Additionally, plaintiffs seek monetary damages “in the full

amount of fair share fees and assessments seized from

their wages”, as well as costs and attorneys’ fees under

42 U.S.C. § 1988. (Id. at 8).

Plaintiffs are proceeding on their FAC filed on December 18, 2020. (Doc. 16). On January 19, 2021, AFSCME filed its motion to dismiss plaintiffs’ FAC, (Doc.

18), and filed its brief in support, (Doc. 24), on February

2, 2021. On February 16, 2021, plaintiffs filed their

brief in opposition. (Doc. 26). AFSCME filed its reply

brief on March 2, 2021. (Doc. 28).

The court has jurisdiction over this case pursuant

to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a) because

plaintiffs aver violations of their rights under the U.S.

Constitution. Venue is appropriate in this court since

AFSCME is located in this district and the alleged

App. 24

constitutional violations occurred in this district. See

28 U.S.C. § 1391.

II.

DISCUSSION

Plaintiffs instituted this case after the Supreme

Court decided Janus.3 Plaintiffs are state employees

who, before Janus, were required to pay fair-share fees

to AFSCME for collective bargaining representation.

Specifically, the MA contained a fair-share fee provision which required plaintiffs to pay fair share fees to

AFSCME. However, after the Janus decision, AFSCME

stopped receiving fair-share fees from non-members,

including plaintiffs. In this action, plaintiffs seek

AFSCME to repay themselves, as well as a putative

class of all non-union state employees, all the fairshare fees that the union received prior to Janus.

As a backdrop, prior to Janus, unions representing government employees could use “agency shop”

clauses in collective bargaining agreements “which required every employee represented by a union, even

those who declined to become union members for political or religious reasons, to pay union dues.” Diamond,

399 F.Supp.3d at 370-71. In Abood v. Detroit Board of

Education, 431 U.S. 209, 97 S.Ct. 1782 (1977), the Supreme Court “held that the charges were constitutional to the extent they were used to finance the

union’s collective-bargaining, contract-administration,

3

Janus v. American Federation of State, County, and Municipal Employees, Council 31, ___ U.S. ___, 138 S. Ct. 2448

(2018).

App. 25

and grievance activities.” Id. at 370. “[T]he Court [in

Abood] also concluded that the agency-shop clause and

fees were unconstitutional insofar as the clause compelled non-member teachers to pay fees to the union

that supported the union’s political activities.” Id.

In accordance with Abood, Pennsylvania enacted its own agency-shop statute for public

employees in 1988, 71 Pa. Stat. § 575. According to Section 575, if mandated by the provisions of a collective-bargaining agreement,

non-members of public-employee unions must

pay fair-share fees to the unions. Id. § 575(b).

These fees consist of the regular union-membership dues less “the cost for the previous

fiscal year of [the unions’] activities or undertakings which were not reasonably employed

to implement or effectuate the duties of the

employee organization as exclusive representative.” Id. § 575(a).

Id. at 371.

Thus, prior to Janus, Pennsylvania law expressly

allowed a labor union which was the representative of

a bargaining unit of public employees to collect fairshare fees from the employees who were members of

the bargaining unit but who did not join the union, as

a condition of their employment. See 71 P.S.A. § 575; 43

P.S.A. § 1102.3. Further, based on Abood, “the general

propriety of the fair-share fees permitted under Section 575 withstood constitutional scrutiny for many

years.” Diamond, 399 F.Supp.3d at 370. Id. (string citations omitted).

App. 26

In Janus, the Supreme Court overruled Abood,

and held that “a state law requiring non-union-member public employees to pay fees to the union to compensate the union for costs incurred in the collectivebargaining process” was unconstitutional. Id. at 372.

Thus, the Court in Janus, 138 S. Ct. at 2486, held that

“States and public-sector unions may no longer extract

agency fees from nonconsenting employees.” Id. Further, the Court held that “[n]either an agency fee nor

any other payment to the union may be deducted from

a non[-]member’s wages, nor may any other attempt be

made to collect such a payment, unless the employee

affirmatively consents to pay.” Id. See also Babb v. California Teachers Association, 378 F.Supp.3d 857, 867

(C.D. Ca. 2019) (In Janus, the Supreme Court “overruled Abood [ ] and its progeny, holding that no form of

payment to a union, including agency fees, can be deducted or attempted to be collected from an employee

without the employee’s affirmative consent.”) (citing

Janus, 138 S.Ct. at 2486).

Additionally, the Supreme Court in Janus, 138

S.Ct. at 2459, 2486, held that it was a violation of the

First Amendment for public sector unions to require

non-members to pay fair-share fees as a condition of

public employment. Following Janus, Pennsylvania’s

statute allowing the collection of “fair-share” fees from

non-members by unions is no longer enforceable. See

Hartnett v. Pennsylvania State Education Association,

390 F.Supp.3d 592, 600 (M.D. Pa. 2019), aff ’d, 963 F.3d

301 (3d Cir. 2020). In Diamond, 399 F.Supp.3d at

385, the court held that the issue of “whether Union

App. 27

Defendants could constitutionally collect fair-share

fees from Plaintiffs pursuant to Section 575” “was

mooted by the intervening Janus decision, which held

that fair-share fees are unconstitutional.”

Plaintiffs essentially argue that they suffered injury from the pre-Janus agency-shop arrangements because they were forced to pay AFSCME fair-share fees

as a condition of their employment with the state even

though they declined union membership. They basically contend that their constitutional right to withhold money from the union was violated and that this

inflicted an injury upon them that can be redressed under § 1983 by an award of money damages for the violation of their First Amendment rights to free speech

and association by forcing them to pay AFSCME fairshare fees as a condition of their employment.

Plaintiffs assert that the good faith defense should

not apply to their claim for damages under § 1983

since they contend it is contrary to the statute. Plaintiffs argue that the Third Circuit’s decision in Diamond

supports their position, but the court does not find

plaintiffs’ contention persuasive.

AFSCME contends that it is entitled to assert a

good faith defense to plaintiffs’ § 1983 claim seeking

retrospective monetary relief for their payments of the

fair-share fees based on “Pennsylvania statute and

then-controlling and directly on-point United States

Supreme Court precedent that expressly authorized

fair-share fees.” There is no dispute that before Janus the collection of fair-share fees by AFSCME was

App. 28

permitted by Pennsylvania law as well as by the Supreme Court which repeatedly held that fair-share fees

were constitutional and that public employees who

were non-union members could be compelled to pay

such fees that financed the union’s collective bargaining activities. Abood, 431 U.S. at 225, 97 S.Ct. 1782.

Thus, requiring non-union member public employees

to pay fair-share fees as a condition of their public employment was undoubtedly deemed constitutional in

Abood, 431 U.S. at 232, 97 S.Ct. 1782. As such, AFSCME

contends that since it acted “in good-faith reliance on

presumptively valid state laws [in collecting pre-Janus

fair-share fees], [it] ha[s] a complete defense to § 1983

liability” and cannot be held retrospectively liable to

plaintiffs in this case.

AFSCME points out that since Janus, “six courts

of appeals—including the Third Circuit in Diamond—

and more than 30 federal district courts [including this

court] have decided the exact issue presented here:

whether public employees who were required to pay

fair share fees prior to the Janus decision are entitled

under 42 U.S.C. § 1983 to the repayment of those fees,

which they paid at a time when fair share fee requirements were authorized by state law and Supreme

Court precedent. Without exception, all of these courts

have held that the good-faith defense available to private parties under § 1983 precludes such attempts to

hold unions liable for following the law as it existed at

the time of their actions.” (Doc. 24 at 11-12) (string citations omitted).

App. 29

As such, AFSCME states that “[t]hese [numerous]

decisions are, . . . , firmly grounded in the law and fully

applicable here.” (Id.). It states that these cases have

all rejected the same § 1983 claim plaintiffs raise in

the instant case based on the good-faith defense.4 Despite plaintiffs’ arguments in their brief in opposition

as to why the good faith defense should not bar their

suit for damages under § 1983, the court again finds,

as it did in Wenzig, the many cases to which AFSCME

cites are persuasive and concurs with their conclusion

that the good faith defense shields the union from liability with respect to plaintiffs’ post-Janus claims for

damages under § 1983.

Further, Diamond does not support the plaintiffs’

arguments regarding the good-faith defense and their

contention that AFSCME cannot rely on this defense

with respect to their claims for pre-Janus fair-share

fees. In Oliver v. SEIU Local 668, 830 Fed.Appx. 76, 80

(3d Cir. 2020) (non-precedential), the Third Circuit explained that in Diamond, 972 F.3d at 271, “Judge Rendell’s opinion for the Court concluded that ‘the good

faith defense is available to a private-party defendant

in a § 1983 case if, after considering the defendant’s

‘subjective state of mind,’ the court finds no ‘malice’

and no ‘evidence that [the defendant] either knew or

should have known of the statute’s constitutional infirmity.’ “ (citations omitted). The Court then stated that

4

Since AFSCME correctly cites to the cases in its brief, (Doc.

24 at 11-12), which have held that the good-faith defense precluded recovery in § 1983 actions similar to the instant case, the

court does not re-cite all of the applicable cases.

App. 30

“Judge Rendell further concluded that ‘principles of

equality and fairness’ foreclose § 1983 liability when

the union adhered to the governing law of the state.”

Id. (citations omitted). The Court also indicated that in

his concurring opinion, “Judge Fisher likewise concluded that the union had no retroactive civil liability.”

Id. (citation omitted).

As summarized by AFSCME, (Doc. 28 at 4), “[t]he

Oliver court then held that Diamond foreclosed the

plaintiffs’ claim for pre-Janus monies remitted to the

defendant union in that case”, and thus, “the law of the

Third Circuit as expressed in Diamond is that nonmembers cannot recover back fees remitted to unions

before Janus.” See Oliver, 830 Fed.Appx. at 80.

Plaintiffs contend that their fair-share payments

would have been deemed involuntary under the common law based on Judge Fisher’s concurring opinion in

Diamond. Plaintiffs then cite to paragraph 16 of their

FAC, (Doc. 16), which they filed after Diamond, and

contend that they did not make their payment of fair

share fees voluntarily because they “never affirmatively authorized that these fees could be taken from

their paychecks.” They then claim that, under Judge

Fisher’s reading of the common law, the good faith

defense is not available to AFSCME and that their

unauthorized fees paid to the union are recoverable.

Plaintiffs attempt to distinguish Diamond from their

case by stating that they “allege that the money was

taken from them involuntarily” is not convincing. As

AFSCME explains, (Doc. 28 at 5), and as this court is

well-aware regarding the complaint in Wenzig, “the

App. 31

Diamond and Wenzig plaintiffs also alleged that they

had not authorized the deduction of any fair-share fees

before those fees were deducted from their paychecks,

and Judge Fisher [in Diamond] concluded that those

plaintiffs ‘have not pleaded any facts, suggesting that

their payments were either sufficiently involuntary or

exacted on a fraudulent basis, to permit a reasonable

person to infer that the unions might be liable.’ ” (quoting Diamond, 972 F.3d at 285) (emphasis added by AFSCME). As Judge Fisher noted in Diamond, 972 F.3d

at 285 n. 7, “the plaintiffs [including our plaintiffs]

have [not] pleaded anything approaching the kind of

involuntariness or duress articulated in the cases I discuss [in his opinion].” Id. at 285 n.7.

Insofar as the plaintiffs rely upon Judge Phipps’

dissenting opinion, (Doc. 26, at 7-9), as well as their interpretation of Judge Fisher’s concurring opinion, and

urge the court to “repudiate the purported grounds for

carving a ‘good faith’ defense into Section 1983”, the

court is obliged to follow the precedential majority

opinion in Diamond. As the court noted in Brown v.

AFSCME, Council No. 5, 519 F.Supp.3d 512, 514

(D.Minn. 2021), explained:

Neither the Supreme Court nor the Eighth

Circuit has squarely addressed whether § 1983

affords private actors a good faith defense to

liability, nor whether such a defense applies to

a public-sector employee’s claim for reimbursement of fair-share fees paid prior to Janus. But in analyzing the Unions’ proffered

defense, the Court is not without persuasive

App. 32

authority: every court to consider the issue

has held that public-sector unions may assert

a good faith defense to § 1983 claims for reimbursement of pre-Janus fair-share fees. E.g.,

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

Emps., Council 31; AFL-CIO, 942 F.3d 352,

364 (7th Cir. 2019) (“Janus Remand”); Danielson v. Inslee, 945 F.3d 1096, 1098 (9th Cir.

2019), cert. denied, No. 19-1130, ___ U.S. ___,

___ S.Ct. ___, ___ L.Ed.2d ___, 2021 WL

231555 (U.S. Jan. 25, 2021); Lee v. Ohio Educ.

Ass’n, 951 F.3d 386, 389 (6th Cir. 2020), cert.

denied, No. 20-422, ___ U.S. ___, ___ S.Ct. ___,

___ L.Ed.2d ___, 2021 WL 231559 (U.S. Jan.

25, 2021); Wholean v. CSEA SEIU Local 2001,

955 F.3d 332, 334 (2d Cir. 2020); Diamond v.

Pennsylvania State Educ. Ass’n, 972 F.3d 262,

271 (3d Cir. 2020); Doughty v. State Emps.’

Ass’n of New Hampshire, SEIU Local 1984,

CTW, CLC, 981 F.3d 128, 133 (1st Cir. 2020).

The court in Brown, id. at n. 1, also addressed the

different opinions in Diamond and noted:

Plaintiffs argue that the Third Circuit’s decision in Diamond departed from the opinions

of the other circuits. There, Judge Rendell,

writing for the court, recognized the good faith

defense and held that it barred the plaintiffs’

Janus claim against their union. Id. at 271.

Judge Fisher, concurring in the judgment, disagreed with Judge Rendell’s reasoning, but

similarly concluded that the Union had a

defense to the plaintiffs’ claims. Id. at 274

(“There was available in 1871, in both law and

equity, a well-established defense to liability

App. 33

substantially similar to the liability the unions face here. Courts consistently held that

judicial decisions invalidating a statute or

overruling a prior decision did not generate

retroactive civil liability with regard to financial transactions or agreements conducted,

without duress or fraud, in reliance on the invalidated statute or overruled decision.”).

Only Judge Phipps, in dissent, squarely rejected a defense based on the union’s good

faith reliance on the state statute and Abood.

Id. at 285. Thus, both Judge Rendell and

Judge Fisher recognized that the union’s reliance on the state statute and Abood established an affirmative defense to the plaintiffs’

Janus claim, though they reached that conclusion by different reasoning.

The court in Brown, id. at 514 n.1, then concluded

that the good faith defense, although “narrow”, applied

and held:

The Unions collected fair-share fees from Plaintiffs as authorized by the Minnesota [law

“PELRA”]. The Unions’ reliance on PELRA

was supported by Abood and forty years of

precedent thereafter. Plaintiffs do not allege

that the Unions acted with malice, with the

knowledge that PELRA was unconstitutional,

or that the Unions otherwise acted in bad

faith. Accordingly, the Court finds that the

Unions’ good faith defense is established on

the face of the Complaints, and dismissal under Federal Rule of Civil Procedure 12(b)(6) is

therefore proper. [citation and footnote omitted].

App. 34

Thus, it is now clear in this Circuit following Diamond that unions sued for a refund of pre-Janus fairshare fees can assert the good-faith defense. See Oliver,

830 Fed.Appx. at 80 (holding that Diamond foreclosed

refund claim against union for pre-Janus monies); Diamond, 972 F.3d at 271 (“It is fair—and crucial to the

principle of rule of law more generally—that private

parties like the Unions should be able to rely on statutory and judicial authorization of their actions without

hesitation or fear of future monetary liability.”) (citations omitted).

AFSCME contends that “[t]he good-faith defense

precludes Plaintiffs’ demand for damages based on the

Union’s receipt of fair share fee payments prior to the

Janus decision of June 27, 2018” and that “[t]here is no

dispute that these fees were assessed and collected under state law specifically authorizing them.” (Doc. 24

at 17) (citing 71 P.S. § 575). Indeed, as this court held

in Wenzig, and based on the numerous cases cited

therein, the court again finds that a union such as AFSCME can raise the good-faith defense with respect to

plaintiffs’ First Amendment claims under § 1983 for

the repayment of the fair-share fees that they paid

the union. See also Janus v. AFSCME, 942 F.3d 352,

(7th Cir. 2019) (“Janus III”). As such, since AFSCME

“relied substantially and in good faith on both a [PA]

state statute and unambiguous Supreme Court precedent [Abood] validating that statute”, id. at 367 (emphasis original), AFSCME can assert the good faith

defense to plaintiffs’ First Amendment claims seeking to hold it liable under § 1983. See Hoekman v.

App. 35

Education Minnesota, ___ F.Supp.3d ___, 2021 WL

533683 (D. Minn. Feb. 12, 2021) (“this Court [in Brown,

supra] held that private actors who act in good faith

reliance on a state statute and Supreme Court case law

holding that statute constitutional have an affirmative

defense to § 1983 liability.” Like every court to consider

the issue, the Court finds that the good faith defense

bars [plaintiffs’] § 1983 claims for a refund of fair-share

fees paid prior to Janus.”) (sting citations omitted).

To the extent that the plaintiffs contend AFSCME’s good-faith defense conflicts with the Supreme

Court’s cases on the retroactive application of its decisions, as the Third Circuit did in Diamond, 972 F.3d at

268 n. 1, even if this court assumed, arguendo, that Janus applied retroactively it nonetheless would find

that the good faith defense still precludes the relief our

plaintiffs seek. See Brown, 2021 WL 533690, *4 (holding that “the good faith defense to a Janus claim for

reimbursement of fair-share fees is not an ad hoc ‘remedy’ designed to vindicate the Unions’ reliance interests and undermine Janus’s retroactivity.” The court in

Brown, id. at *4 n. 4, also noted that “[it] assumes,

without deciding, that Janus is retroactively applicable—as did many of the other courts to address Janus

claims like Plaintiffs.’ ” (citing Wholean v. CSEA SEIU

Local 2001, 955 F.3d 332, 336 (2d Cir. 2020)) (“[W]e

note that nothing in Janus suggests that the Supreme

Court intended its ruling to be retroactive. . . . Even if

the retroactivity of Janus is presumed, . . . [a] goodfaith defense would still preclude the relief Appellants

seek.”).

App. 36

AFSCME was acting in accordance with Abood

and state law, prior to Janus, at the time it allegedly

was violating the plaintiffs’ First Amendment rights.

Thus, as AFSCME points out, (Doc. 28 at 12), “both

Judge Rendell and Judge Fisher cited [Reynoldsville

Casket v. Hyde, 514 U.S. 749 (1995)], and determined

that the unions’ defense constituted a previously existing, independent legal basis for denying the relief

sought by the plaintiffs.” (citing Diamond, 972 F.3d at

268 n. 1 (opinion of Rendell, J.), 972 F.3d at 284 (concurring opinion of Fisher, J.)).

Thus, the court will grant AFSCME’s motion and

dismiss with prejudice plaintiffs’ First Amendment

claims in their FAC seeking to hold the union retrospectively liable under § 1983. Based on the foregoing,

the court finds futility in allowing plaintiffs leave to

file a second amended complaint. See Janus, III, supra;

Diamond, supra; Wenzig, supra; Babb, 378 F.Supp. 3d

at 872 (“[E]very district court to consider whether unions that collected agency fees prior to Janus have a

good-faith defense to § 1983 liability [has] answered in

the affirmative.”) (citations omitted).

Finally, AFSCME argues that plaintiffs’ request

for Declaratory Judgment should be dismissed under

Rule 12(b)(1) for lack of standing. It states that “Plaintiffs do not allege any ongoing constitutional violation;

rather, the deduction of fair share fees by the Commonwealth and the transmission of those fees to the Union

ceased more than a year before Plaintiffs filed their

original Complaint.” As such, it contends that “Plaintiffs do not have standing to seek a judgment declaring

App. 37

that the Union’s prior conduct was unconstitutional.”

(Doc. 24 at 18-19).

In Wenzig, 426 F. Supp. 3d at 100, this court held

that “Declaratory judgment is not meant to adjudicate alleged past unlawful activity.” In Diamond, 399

F.Supp. 3d at 385, 389, the court also held that plaintiffs’ claims for declarative and injunctive relief with

respect to fair-share fees were moot based on the Janus

decision and union defendants’ compliance with it.

(citing collection of cases). See also Hartnett, 390

F.Supp.3d at 600-02, aff ’d, 963 F.3d 301 (3d Cir. 2020)

(court found claims for declaratory and injunctive relief moot post-Janus since “[p]laintiffs face no realistic

possibility that they will be subject to the unlawful collection of ‘fair share’ fees”); Blakeney v. Marsico, 340

Fed.Appx. 778, 780 (3d Cir. 2009) (Third Circuit held

that to satisfy the standing requirement of Article III,

a party seeking declaratory relief must allege that

there is a substantial likelihood that he will suffer

harm in the future) (citations omitted).

The court again concurs with the courts in Diamond and Hartnett, and holds that our plaintiffs’ request for declarative judgment in their FAC is moot

based on Janus and, based on the undisputed fact that

AFSCME stopped collecting fair-share fees from state

non-union member employees, including plaintiffs, following the Janus decision. As AFSCME indicates, (Doc.

28 at 13), the Janus decision and its subsequent cessation of collecting fair share fees from state non-union

member employees “occurred more than one year before Plaintiffs filed their Complaint and more than two

App. 38

years before Plaintiffs filed their [FAC], and there is no

reasonable likelihood that the collection of fair share

fees will reoccur.” See also Oliver v. SEIU Local 668,

415 F.Supp.3d 602, 613 (E.D. Pa. 2019), aff ’d, 830

Fed.Appx. 76 (3d Cir. 2020) (holding “Plaintiff ’s claims

for declaratory and injunctive relief regarding the

application of 43 P.S. §§ 1101.301(18), 1101.401, and

1101.705 suffers from lack of standing and mootness.”).5

Thus, AFSCME’s motion to dismiss will be granted

with respect to plaintiffs’ request for declaratory judgment.

III. CONCLUSION

Based on the foregoing reasons, defendant AFSCME’s motion to dismiss plaintiffs’ FAC, (Doc. 16),

pursuant to Fed. R. Civ. P. 12(b)(1) and (6), (Doc. 18),

is GRANTED, and all of the plaintiffs’ claims are DISMISSED WITH PREJUDICE. An appropriate order

will issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

5

Also, as AFSCME notes, (Doc. 24 at 19 n. 5), there are several other cases holding that when a union had received fair-share

fees before Janus and then stopped receiving such fees after Janus, a claim for declaratory judgment was non-justiciable. (citations omitted).

App. 39

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

David SCHASZBERGER, :

et al.,

:

:

CIVIL ACTION

Plaintiffs

:

NO. 3:19-1922

v.

:

: (JUDGE MANNION)

AMERICAN FEDERATION

:

OF STATE, COUNTY &

:

MUNICIPAL EMPLOYEES,

:

COUNCIL 13,

:

Defendant

:

ORDER

(Filed May 20, 2021)

In accordance with the court’s memorandum issued this same day, IT IS HEREBY ORDERED

THAT:

(1) Defendant AFSCME’s motion to dismiss,

(Doc. 18), the plaintiff ’s First Amended

Complaint, (Doc. 16), is GRANTED and,

all of the plaintiffs’ claims are DISMISSED WITH PREJUDICE.

(2) The Clerk of Court is directed to CLOSE

THIS CASE.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

App. 40

DATED: May 20, 2021

19-1922-01-Order