Opposition Brief — Foster v. Garcy

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IN THE , CLERK

Supreme Court of the Gnited a

DIANNE FOSTER, MARK ALBRECHT, RICHARD

DIGIACOMO, and BARRY LEE PARKS,

Petitioners,

¥.

LORRAINE GARCY, in her official capacity as Superintendent,

Board of Education, Livermore Valley Joint School

District; KIM LOGAN, Superintendent, Ukiah Unified

School District; JOE Coto, Superintendent, East Side

Union High School District; RUTH MCKENNA, in her

official capacity as Superintendent, Board of Education,

New Haven Unified School District,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STEPHEN P. BERZON *

JEFFREY B. DEMAIN

ALTSHULER, BERZON,

NUSSBAUM, RUBIN & DEMAIN

177 Post Street, Suite 300

San Francisco, California 94108

* Counsel of Record (415) 421-7151

May 2002 Attorneys for Respondents

ARE ARREARS i IRN ROI NOL LT OE TERE LI LINE ET TEL ET ELLIS TRAN AREIRET LE MSIL RII YSN AE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

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QUESTION PRESENTED

Whether the Court of Appeals properly held that a public

employer incurs no liability under 42 U.S.C. § 1983 for

failing to police the details of the union’s annual agency fee

notice issued pursuant to Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986), unless the employer takes adverse

action against the fee payers beyond making routine payroll

deductions for agency fees.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........::cssessesseesssereeeeeenennenens i

TABLE OF AUTHORITIES ............ccccscccsssseesereeeeeeenees iv

STATEMENT. .......0..cscccccsssssssccccsccsssesocsesscccssssssscosocsssees l

REASONS FOR DENYING THE WRIT ...........:0ee0000 l

I. CONTRARY TO PETITIONERS’ UNSUP-

PORTED ASSERTION, THE COURT OF

APPEALS’ DECISION WOULD NOT

PRECLUDE A DISTRICT COURT FROM

ISSUING AN INJUNCTION ENFORCE

ABLE AGAINST PUBLIC EMPLOYERS TO

RESTRAIN AN UNLAWFUL AGENCY FEE

COLLECTION .....cccccocssrccccrccsccsccssccscscsscsosscccsens 3

1. Agency Fee Payers Can Still Obtain

Injunctive Relief Against Unlawful Fee

Seizures Under the Court of Appeals’

BSCESIOM ...ccccecccrcsccccosceccccccenccoscccnscessessseoacess 3

2. Petitioners’ Argument that Public Employ-

ers Are Better Situated to Protect Fee

Payers’ Rights Than Are the Fee Payers

Themselves Is Erroneous and, in Any

Event, Does Not Present an Issue Worthy

OF CestiOr Ai ....eccccrerescsccccsscccccccccsesseccecveseesess 5

Il. THE COURT OF APPEALS’ DECISION

IS NOT CONTRARY TO THE STATE

ACTION DOCTRINE ...........ccccseccessssessseeeseeees 10

Ill. THERE IS NO SQUARE CONFLICT

BETWEEN THE CIRCUITS, OR BETWEEN

THE COURT OF APPEALS’ DECISION

AND THIS COURT’S DECISION IN

HUDSON ...1.0.secccsesssssccsscsssccenccceseeccesscsscsccossoesees 12

CONCLUSION ............sccccssssscssceeceessesesseecssnsesecseeesenes 17

TABLE OF AUTHORITIES |

CASES Page |

Chicago Teachers Union v. Hudson, 475 U.S.

TE aE icecream hanes cian eet passim

Cramer v. Matish, Nos. 89-1885/2077, 1990 WL

ee Ge i iciniissiciestnensnibiiaiianeicintiaaisiiics 13

Friends of the Earth v. Laidlaw Environmental

Series, TA UT. WET CHD cssnresninsasirciscsncintas 9

Hohe v. Casey, 956 F.2d 399 (3rd Cir. 1992) ........ 14, 15

Hudson v. Teachers Local No. 1, 743 F.2d 1187

(7th Cir. 1984), aff d, 475 U.S. 292 (1986) ...13, 14, 16

Knight v. Kenai Peninsula Borough School

District, 131 F.3d 807 (9th Cir. 1997)............... 11,15

Lugar v. Edmondson Oil Co., 457 U.S. 922

CAI atD snsisnsesnnsdaipissbisenlitieehaicnininninicclnsatanppadandaniilatinntiansid 4,10, 14

Moncharsh vy. Heily & Blase, 3 Cal. 4th 1, 10

Cal. Rptr. 2d 183, 832 P.2d 899 (1992)............. 6

Nat'l Collegiate Athletic Ass’n v. Tarkanian, 488

ths er Cis inalibieitiicintcinbetitanennsiniininceantaisiasnanens 11

Prescott v. County of El Dorado, 177 F.3d 1102

CE aati: SS a i scccsitneintsenaibhcnicsebcnnintionnniinnennnneiaiianian 9

Prescott v. County of El Dorado, 204 F.3d 984

CR Sis I ccricenntiitinesithnsncaiiiiponincdenieniieninemioniens 9

Prescott v. County of El Dorado, 528 U.S. 1111

CIIIIIE TT scssinsscisinniissinsisssinaiddaipnnischeinasiniialeibiniduieiieaaine 9

San Ramon Valley Unified School District

(Abbot), PERB Decision No. 751, 13 P.E.R.C.

DF RE © RID scseicesnsncnsiitinansninsbeniianmeienatanacnnsieniib 8

Sweetwater Union High School District (Ger-

ber), PERB Decision No. 1417, 25 P.E.R.C.

| TNT UTES 8

Tierney v. City of Toledo, 824 F.2d 1497 (6th

ij rn rN 12, 15

Weaver v. University of Cincinnati, 970 F.2d

Ee Ce Se, Fr iicsceinsastessinnncictcnihanitichtinanindiainet 12

a ee NE ee NE ee |

TABLE OF AUTHORITIES—Continued

STATUTES, RULES AND REGULATIONS Page

GE UB. S Fie ciliates eee 2,4, 10

OP Fp a acosndicieisictoitdinaaisepeatisanieiatinanninitads 6

California Education Code § 45061..................0006. 1]

California Government Code § 3541 .............ccccc0e- 7

FL | | ee 7

Fae EE ttsatasnsanns 7

2 | | aor 10

8 California Code of Regulations § 32992 ............ 7

Federal Rules of Civil Procedure Rule 65(d)......... 4,5, 14

Sixth Circuit Rules Rule 206(c).............ccccesecseeeees 13

IN THE

Supreme Court of the Gnited States

No. 01-1307

DIANNE FOSTER, MARK ALBRECHT, RICHARD

DIGIACOMO, and BARRY LEE PARKS,

Petitioners,

LORRAINE GARCY, in her official capacity as Superintendent,

Board of Education, Livermore Valley Joint School

District; KIM LOGAN, Superintendent, Ukiah Unified

School District; JoE Coto, Superintendent, East Side

Union High School District; RUTH MCKENNA, in her

official capacity as Superintendent, Board of Education,

New Haven Unified School District,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STATEMENT

We do not take issue with the facts stated in Petition’s

Statement of the Case (Pet. at 3-9), although we disagree with

the characterizations and legal conclusions intertwined

therein.

REASONS FOR DENYING THE WRIT

The Petition should be denied because it presents no

important issue which requires the attention of this Court and,

2 cn

moreover, identifies no square conflict between the circuits

or between the Court of Appeals’ decision and a decision of

this Court:

First, the federal district courts retain the authority

under the Court of Appeals’ decision to issue temporary,

preliminary and permanent injunctive relief to restrain

the unlawful collection of agency fees, and such relief

will be enforceable against public employers. Moreover,

fee payers are better situated to assert and protect their

own rights than are their employers. See Section I.

Second, the Court of Appeals’ decision is not contrary

to the state action doctrine and does not accord a blanket

immunity to public employers from suit under 42 U.S.C.

§ 1983. Rather, it merely recognizes that the legal duties

owed by a public employer to its fee-payer employees

differ from those owed by the union that represents

them. See Section II.

Third, the Court of Appeals decision is not in conflict

with any of the decisions of the other circuits identified

by Petitioners, nor is it in conflict with this Court’s

decision in Chicago Teachers Union v. Hudson, 475

U.S. 292 (1986), which did not address, much less

resolve, the issue of the public employer’s liability, vel

non, for legal deficiencies in the union’s Hudson notice.

See Section IIL.

I. CONTRARY TO _ PETITIONERS’ UNSUP-

PORTED ASSERTION, THE COURT OF

APPEALS’ DECISION WOULD NOT PRE-

CLUDE A DISTRICT COURT FROM ISSUING

AN INJUNCTION ENFORCEABLE AGAINST

PUBLIC EMPLOYERS TO RESTRAIN AN

UNLAWFUL AGENCY FEE COLLECTION

1. Agency Fee Payers Can Still Obtain Injunctive Relief

Against Unlawful Fee Seizures Under the Court of Appeals’

Decision. Petitioners’ fundamental argument is that, under

the Court of Appeals’ decision, the federal courts will be

powerless to halt the collection of agency fees where the

union’s Hudson notice does nct comply with the requirements

this Court set forth in Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986). As we show below, however, that

argument is meritless.

Petitioners assert, without citing any supporting authority,

that unless the courts impose upon public employers a legal

duty to police the union’s Hudson notice, “a court cannot

enjoin the employers from taking employees’ money and

paying it to the unions; even where, as here, the court has

found the unions are not lawfully entitled to the fees.” Pet.

at 3. Petitioners later continue that, because “[mJany states

with public-sector agency shop permit involuntary

withholding from payroll to enforce compliance with union

subsidy obligations,” the “panel’s decision has the practical

effect of extinguishing the First Amendment rights of large

numbers of nonunion public-sector employees.” Pet. at 22.

The well-established law, however, clearly provides to the

contrary that the federal courts have ample authority to enjoin

an unlawful agency fee collection even though (as the Court

of Appeals decided) public employers have no legal duty to

police the union’s compliance with the details of Hudson’s

requirements, absent some adverse action going beyond a

mere payroll deduction. First, as Petitioners admitted in the

Court of Appeals, the presence of the public employer as a

defendant in Section 1983 suits over allegedly deficient

Hudson notices is not necessary for suit to be brought against

the union. See Plaintiffs’/Appellees’ Opposition Brief

(hereinafter “Pls’ Opp. Brf.”), filed in the Ninth Circuit on or

about May 10, 2000, at 23-24.'

Second, Federal Rule of Civil Procedure 65(d) clearly

confers authority to the federal district courts to restrain an

unlawful fee collection, through temporary, preliminary and

permanent injunctive relief, regardless of the presence vel non

of the public employer as a defendant to the action. Rule

65(d) states, in its entirety, as follows:

Every order granting an injunction and every

restraining order shall set forth the reasons for its

issuance; shall be specific in terms; shall describe in

reasonable detail, and not by reference to the complaint

or other document, the act or acts sought to be

restrained; and is binding only upon the parties to the

action, their officers, agents, servants, employees, and

attorneys, and upon those persons in active concert or

participation with them who receive actual notice of the

order by personal service or otherwise.

Fed. R. Civ. P. 65(d) (emphasis added).

Rule 65(d) gives the federal district courts clear authority

to issue temporary, preliminary and/or permanent injunctive

' Petitioners’ admission is supported by clear law. Where a private

party acts “under color of” state law, it can be sued under 42 U.S.C.

§ 1983 without the presence of a public entity or employee as a defendant.

See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Here, there

is no question that the “under color of” state law requirement of Section

1983 is satisfied by the state statutes permitting school districts to enter

- into and enforce agency fee agreements, the agency fee agreements

\ between the school districts and the unions in this case, and the actual

withholding of the fees from the plaintiffs’ paychecks. See, e.g., id., 457

U.S. at 941-42.

relief against a union to restrain the collection of agency fees

pursuant to a legally deficient Hudson notice.. Such relief

would also bind the non-party public employer which deducts

the fees from the employees’ paychecks, as long as it receives

actual notice of the order, because the employer undoubtedly

acts in “concert or participation” (Fed. R. Civ. P. 65(d)) with

the union in deducting agency fees pursuant to an agency fee

agreement. Thus, contrary *o the Petition, the federal courts

retain plenary power under the Court of Appeals’ decision to

restrain unlawful-agency fee collections.”

Since the district courts can enjoin unlawful fee collections

under the Court of Appeals’ decision, Petitioners’ request for

certiorari can have no practical effect in this case. As

Petitioners note, the district court did not grant nominal

damages against the public employers here (Pet. at 8 n.7), a

ruling that Petitioners did not appeal. As they also admit,

Petitioners dropped their claim against the public employers

for monetary relief, pursuant to the Eleventh Amendment. Jd.

Finally, review by this Court can have no practical effect

even on an award of attorneys’ fees to Petitioners. The

defendants are signatory to an agency fee indemnification

agreement whereby the unions promise to indemnify the

public employers against agency fee litigation (including

attorneys’ fees), and thus even a fee award would ultimately

be borne solely by the union defendants.”

2. Petitioners’ Argument that Public Employers Are Better

Situated to Protect Fee Payers’ Rights Than Are the Fee

Payers Themselves Is Erroneous and, in Any Event, Does Not

? Petitioners complain, “At no time prior to the district court’s ruling

did the school districts discontinue the collection of agency fees from the

teachers’ wages.” Pet. at 5. While that is true, Petitioners have no one to

blame but themselves, as they failed even to seek a temporary restraining

order or a preliminary injunction to halt the fee collection.

* Petitioners asserted no challenge to the indemnification agreement in

this action.

Present an Issue Worthy of Certiorari. To the extent that

Petitioners are seeking to argue that agency fee payers’ rights

will be infringed under the Court of Appeals’ decision,

notwithstanding the continued availability of injunctive relief

against unlawful fee collection, because they will have to go

to court to obtain such relief (see Petition at 22-25), that

argument is no more persuasive.

In essence, Petitioners’ argument is that public employers

are better situated than are their agency fee payer employees

to protect the fee payers’ Hudson rights, so that public policy

favors imposing on the employer a duty to evaluate the

union’s compliance with the details of Hudson’s requirements

and to cease deducting the agency fee if the employer

determines such compliance to be inadequate. This argument

is based upon a false premise. Petitioners apparently

contemplate the alternatives as litigation brought by the fee

payers, on the one hand, versus a cost-free refusal of the

public employer to continue collecting agency fees until the

union complies in all respects with the details of Hudson, on

the other hand. But a public employer’s refusal to collect

agency fees would invariably result in the union bringing a

breach of contract claim against the employer to enforce the

agency fee agreement, as to which each party would bear its

own costs and fees regardless of which side prevails.* The

fee payers, on the other hand, can recover their costs and fees

under 42 U.S.C. § 1988, if they prevail.

* Indeed, it is likely that such a claim would be subject to arbitration

under the collective bargaining agreement, in which the union would

prevail because arbitrators commonly refuse to look to external !aw but

instead enforce the parties’ agreement. See, e.g, Moncharsh v. Heily &

Blase, 3 Cal. 4th 1, 10-11, 10 Cal. Rptr. 2d 183, 832 P.2d 899 (1992)

(arbitrators need not apply external law). The union could then enforce

the arbitration award in state court, since California does not permit its

courts to refuse to enforce an arbitration award even where the arbitrator

has con.nitted patent legal error. See id., 3 Cal. 4th at 33.

Thus, only where the fee payers act on their own behalf

will the cost of vindicating their rights be borne by the union.

Fee payers are therefore in a better position to safeguard their

rights than is the public employer, since the threat of having

to reimburse the fee payers for their attorneys’ fees provides a

strong incentive for the union to fulfill its Hudson obligations.

Petitioners’ effort to drag the public employer into their

dispute with the union, and to saddle it with a Hobson’s

choice of either being sued by the fee payers if it continues to

deduct agency fees or being sued by the union if it refuses to

do so, is not supported by law, logic or public policy.

The public employer is also particularly ill-suited to

intervene in the dispute between the union and its agency fee

payers regarding the union’s Hudson notice because well-

established public policy prohibits it from interfering in

the internal affairs of the union and the employees whom

the union represents. See California Government Code

§ 3543.5(d) (prohibiting California public school districts

from interfering in the administration of the unions

representing their employees).

Consistent with this statutory mandate, the California

Public Employment Relations Board (“PERB”)—the state

agency charged with interpreting and enforcing public

employment bargaining laws including Government Code

§ 3543.5(d)°—has promulgated regulations specifying that

the union, not the public employer, is responsible for

informing the employees of the amount and basis for

calculating the agency fee, as well as of the procedure for

challenging it. 8 California Code of Regulations § 32992.

Moreover, PERB has also specifically held that imposing

°See California Government Code §§ 3541 (establishing PERB);

3541.3(g) (authorizing PERB “to adopt . . . rules and regulations to carry

out the provisions and effectuate the purposes and policies of this

chapter”).

such a duty on the employer would conflict with the statutory

prohibition on interference with the union’s affairs. San

Ramon Valley Unified School District (Abbot), PERB Deci-

sion No. 751, 13 P.E.R.C. ¥ 20201 at p. 732 (1989); accord

Sweetwater Union High School District (Gerber), PERB

Decision No. 1417, 25 P.E.R.C. 4 32024 (2001).

As PERB held in Abbot, the position espoused by

Petitioners here “is incompatible with the entire notion of

collective bargaining,” because “[t]he ‘arm’s length’

relationship required by collective bargaining recognizes that

the employer and the union have conflicting interests” which

“obviously render unworkable any scheme where the

employer must police the union’s actions, lest it be held liable

for them.” Abbot, 13 P.E.R.C. J 20201 at p. 732. Moreover,

as PERB also recognized, there are “practical reasons why

creating such a duty [as to the employer] makes little sense,”

such as the fact that “[a] public school employer simply does

not have the authority or resources to review union

procedures dnd determine if they are statutorily or

constitutionally adequate.” /d.

The reasoning of Abbot is compelling. The public

employer’s role in the agency fee context is limited to

deducting the fees and transmitting them to the unions; the

employers retain no more control over the fees than they do

over payroll deductions that they may make for the United

Way or for other charitable organizations. The unions act

alone and in their own interest in determining both the

purposes for which agency fees shall be spent and the form

and content of their Hudson notices. Moreover, public

employers lack the information and expertise to look over the

unions’ shoulders and review the legality of their agency fee

procedures. The Court of Appeals’ decision is thus eminently

reasonable, not only as a matter of law, but as a matter of

public policy as well.

Finally, the authorities on which Petitioners’ rely for their

argument (see Petition at 23-25) are inapposite, as they

concerned claims by fee payers that the indemnification

provisions of agency fee agreements, whereby the unions

promise to indemnify the public employers in the event of

litigation over the withholding of agency fees, should be

declared void as against public policy. In the present case,

however, the courts below rendered no decision as to any

indemnification provision for the simple reason that

Petitioners brought no such challenge in this case. See Pet.

App. A, B, C, D; Pls’ Opp. Brf. at 41-42. There is thus no

conflict between the Court of Appeals’ decision and those

relied on by Petitioners concerning the propriety of such

indemnification provisions. Indeed, the Ninth Circuit has not

yet ruled on that issue,° and thus there is no square conflict

between the indemnification decisions relied upon by

Petitioners and any decision of the Ninth Circuit.

° In Prescott v. County of El Dorado, 177 F.3d 1102, 1111-12 (9th Cir.

1999), the Ninth Circuit rejected a challenge by agency fee payers to an

agency fee indemnification provision, based upon lack of standing. This

Court reversed and remanded that decision for reconsideration in light of

its then-recent decision in Friends of the Earth v. Laidlaw Environmental

Services, 528 U.S. 167 (2000). See Prescott v. County of El Dorado, 528

U.S. 1111 (2000). On remand, the Ninth Circuit in turn remanded the

issue for reconsideration by the district court in the first instance,

reinstating the remainder of its decision. Prescott v. County of El Dorado,

204 F.3d 984 (9th Cir. 2000). On remand, the district court adhered to its

prior ruling that the fee payers lacked standing, after reconsideration of

the issue under Laidlaw. Plaintiffs’ appeal from that decision is currently

under submission to the Ninth Circuit, which heard oral argument

on April 9, 2002. See http://www.ca9.uscourts.gov/ca9/calendar.nsf/a970-

d6cd327cd7d1882564030063ce23/d3e08e463029 10ca88256b8f0063 1765

/$FILE/sf04_02.PDF

II. THE COURT OF APPEALS’ DECISION IS

NOT CONTRARY TO THE STATE ACTION

DOCTRINE

Petitioners argue that the Court of Appeals’ decision is

contrary to the state action doctrine. See Pet. at 18-22. The

crux of Petitioners’ argument is their assertion that “[b]ecause

the unions, unlike the school districts, are non-governmental

actors, there is no intellectually tenable way to hold the

unions, but not the school districts, liable for a constitutional

violation arising out of joint participation in the enforcement

of an agency fee agreement.” Petition at 18. This assertion

is incorrect.

To be sure, we do not dispute that the otherwise private

labor organizations which receive agency fees pursuant to the

state agency fee statutes are thereby suable under 42 U.S.C.

§ 1983 for violations of their Hudson obligations.’ Likewise,

Petitioners do not dispute that the public employer need not

be named in such an action in order to sue the union. See Pls’

Opp. Brf. at 23-24; accord Lugar, 457 U.S. at 941-42.

Petitioners’ conclusion that “there is no_ intellectually

tenable way to hold the unions, but not the school districts,

liable for a constitutional violation arising out of joint

participation in the enforcement of an agency fee agreement”

(Petition at 18) does not follow from this premise, however.

The public employer and the union are “joint[ly]

, participat[ing]” only in the sense that they are both operating

under the agency fee agreement between them; in fulfilling its

duties with regard to the notice, however, the union acts

separately and independently of the employer. As the Court

’ See discussion, supra, at Section I(1), n.1. At the time the agency fee

agreements at issue in this case were negotiated, California law permitted

public school districts to negotiate such agreements with the unions that

represent their employees. On January 1, 2001, that statute was amended

to require the school districts to adopt agency fee arrangements upon the

request of the union. See Cal. Gov’t Code § 3546(a).

eee

of Appeals held, each has separate and distinct legal duties

and the violation by the union of its legal duty does not render

the public employer vicariously liable therefor. There is

nothing “intellectually [un]tenable” about such a division of

duties, which corresponds to the aspects of the agency fee

system that each controls.

Nor does the Court of Appeals’ decision grant any “blanket

immunity for public employers that enforce illegal agency fee

demands.” Pet. at 17. To the contrary, public employers

remain liable to suit if they violate the legal duties they owe

to fee payers. Thus, under both the Court of Appeals’

decision (see Pet. App. A at 6a-9a & n.8) and the Ninth

Circuit’s prior decision in Knight v. Kenai Peninsula Borough

School District, 131 F.3d 807, 817 (9th Cir. 1997), the public

employer can incur liability if it takes affirmative action

against a public employee, e.g., discipline or discharge, going

beyond the mere routine deduction of fees, without making

sure that the union fulfilled its notice obligations under

Hudson.® For that reason, Nat’! Collegiate Athletic Ass'n v.

Tarkanian, 488 U.S. 179 (1988), a decision relied on by

Petitioners notwithstanding that it has nothing to do with

agency fees (see Pet. at 21-22 n.15), is of no help to them

since the public employer in that case in fact terminated the

plaintiff's employment at the behest of a private entity.”

® Plaintiffs are incorrect that because California law permits payment

of agency fees by a nonconsensual payroll deduction, California unions

will never need to seek disciplinary action against fee payers to enforce

their agency fee obligation. See Pet. at 17. Since California Education

Code § 45061 gives fee payers the option to pay agency fees directly to

the union, rather than through a payroll deduction, a California union may

need to request a public employer to take disciplinary action against a fee

payer who elects to pay agency fees directly but then fails to do so.

® Moreover, none of the authorities relied upon by Petitioners for their

“state action” argument (see Pet. at 18-22) are circuit court decisions, so

Petitioners have failed to identify a circuit conflict on this issue.

Ill. THERE IS NO SQUARE CONFLICT BETWEEN

THE CIRCUITS, OR BETWEEN THE COURT

OF APPEALS’ DECISION AND THIS COURT’S

DECISION IN HUDSON

Petitioners also have failed to identify a square conflict

between the circuits or between the Court of Appeals’

decision and a decision of this Court.

1. Despite Petitioners’ assertion, there is no conflict

between the Court of Appeals’ decision and prior decisions of

the Sixth, Seventh and Third Circuits. Pet. at 10-14.

First, although Petitioners cite the Sixth Circuit’s decision

in Tierney v. City of Toledo, 824 F.2d 1497 (6th Cir. 1987),

they concede that the Court of Appeals’ decision “interpreted

Tierney not to impose employer liability where the union put

in place a plan comporting with Hudson but a nonunion

employee nonetheless did not receive adequate notice ....

Pet. at 1 1 (emphasis in original).

Petitioners challenge the Court of Appeals’ reading of

Tierney on the ground that “Tierney requires not only that

constitutionally adequate procedures be established, but also

that these procedures be ‘operating.’” Pet. at 11 (quoting

Tierney, 824 F.2d at 1504, 1507). That observation does not

a conflict make, however. As the Court of Appeals’ decision

reflects, “a plan comporting with Hudson” (Pet. App. at 8a,

emphasis deleted) was not only in place but also operating

when the fees were deducted. The dispute in this case was

not that there was no “plan” in place and operating that

generally complied with Hudson, but rather about whether the

details of the plan or of the union’s implementation of the

plan complied with Hudson in every regard.

Second, there is no conflict with the Sixth Circuit’s

decision in Weaver v. University of Cincinnati, 970 F.2d 1523

(6th Cir. 1992). See Pet. at 12. Weaver involved, in rele-

vant part, a challenge brought by agency fee payers to

indemnification provisions of the agency fee agreements,

pursuant to which the unions pledged to indemnify the public

employers against liability in agency fee litigation. As noted

above, the Court of Appeals’ decision does not decide or even

address any challenge to an agency fee indemnification clause

for the simple reason that no such challenge was brought in

this case, and indeed the propriety of indemnification

provisions (and, for that matter, agency fee payers’ standing

to challenge them) is an open question in the Ninth Circuit.

See discussion, supra, at Section I(2) and n.6.'°

Third, there is no conflict with the Seventh Circuit’s

decision in Hudson v. Teachers Local No. 1, 743 F.2d 1187

(7th Cir. 1984), aff d, 475 U.S. 292 (1986). See Pet. at 12-13.

Petitioners quote that decision as follows: “[T]he public

employer must establish a procedure that will make

reasonably sure that the wages of nonunion employees will

not be used to support those of the union’s political and

ideological activities that are not germane to collective

bargaining.” Pet. at 12-13 (quoting Hudson, 743 F.2d at

1194). As we have already pointed out above with regard to

Tierney, there is no conflict here because the Court of

Appeals’ decision reflects that “a plan comporting with

Hudson” (Pet. App. at 8a, emphasis deleted) was in place and

operating when the fees were deducted. To the contrary, the

Seventh Circuit’s statement that the public employer merely

must “make reasonably sure” that the agency fees will not be

used to subsidize ideological activities that are not germane to

collective bargaining (Hudson, 743 F.2d at 1194 (emphasis

'0 For the same reason, there is no conflict with Cramer v. Matish, Nos.

89-1885/2077, 1990 WL 169640 (6th Cir. 1990), see Pet. at 12, which in

any event is an unpublished and therefore non-precedential decision. Cf.

Sixth Circuit Rule 206(c) (published decisions are binding on subsequent

panels).

added)), only underscores that it is not obligated to insure

that the details of the union’s plan or of the union’s

implementation of the plan are perfect.’

Fourth, there is no conflict with the Third Circuit’s deci-

sion in Hohe v. Casey, 956 F.2d 399 (3rd Cir. 1992). Pet. at

13-14. Petitioners quote Hohe to the effect that the public

employer “may be enjoined from imposing the fair share fees

on nonmembers when it is determined that the exclusive

representative has not complied with the constitutional

requirements.” Pet. at 14 (quoting Hohe, 956 F.2d at 411).

The same is true under the Court of Appeals’ decision. As

we have shown above, where it is determined that the union

has not complied with Hudson, it can be enjoined from

accepting agency fees until it has complied with Hudson and,

under Federal Rule of Civil Procedure 65(d), that injunction

will be binding upon a public employer which receives actual

notice thereof. Hohe did not decide whether the public em-

ployer must necessarily be a defendant to such a suit (which,

in any event, it need not, see Lugar, 457 U.S. at 941-42),

since the relevant discussion in Hohe arose in the context of

the fee payers’ challenge to the agency fee indemnification

clause, rather than a motion for dismissal or summary judg-

ment by the public employer. See Hohe, 956 F.2d at 411."

'' Petitioners also cite the Seventh Circuit’s discussion of the state

action issue in Hudson. Pet. at 13. As they concede, however, that issue

in Hudson revolved around whether the union could be considered a state

actor—an issue not raised in the present case. /d. The statement in the

Seventh Circuit's decision that “when a private entity such as a union acts

in concert with a public agency to deprive people of the federal

constitutional rights, it is liable under section 1983 along with the agency”

(id., emphasis in original; quoting Hudson, 743 F.2d at 1191), must be

understood in the larger context of the case itself, in which the court found

the plan itself to be invalid and not merely the details of the union’s

implementation of the plan.

'? Petitioners also quote Hohe to the effect that “the employer and the

union must have a constitutional procedure in place before deducting

meeeneiemmeinnmaemnnaiiiiiinaeiiiiaiiaial

Additionally, it is worth noting that all of the circuit court

decisions relied upon by Petitioners were rendered not only

prior to the Court of Appeals’ decision, but also prior to the

Ninth Circuit’s 1997 decision in Knight, on which the more

recent decision is based. Knight criticized the reasoning of

several prior decisions, including Tierney, for misreading

Hudson as imposing certain duties on the public employer

which Hudson did not. See Knight, 131 F.3d at 817. This

does not amount to a square conflict between the circuits, for

the reasons discussed above. But, to the extent that there is

some tension between the reasoning of Knight and that of

some of the decisions relied upon by Petitioners, it is worth

noting that Petitioners have not cited a single decision

rendered after Knight, much less one considering and

rejecting Knight’s reasoning. We submit that any tension

between these decisions (much less any asserted “conflict”)

should not be the basis for intervention by this Court until

such time (if ever) that it is more fully developed by

subsequent circuit decisions that have had an opportunity to

address Knight.

2. Finally, there is no conflict with this Court’s decision in

Hudson, which does not speak, expressly or impliedly, to the

potential liability of a public employer for legal deficiencies

in the union’s annual agency fee notice.

In Hudson, this Court affirmed in part the Seventh Circuit's

reversal of the district court’s judgment, rendered after a

bench trial, for the defendants upholding the agency fee

[agency] fees,” and that this requirement “means that if a court

subsequently ~determines that the procedures are constitutionally

inadequate, both the public employer and the [union] shall be accountable

for the constitutional violation.” Pet. at 14 (first substitution added,

second substitution in original; quoting Hohe, 956 F.2d at 405-06,

emphasis in original). Again, there is no conflict with the Court of

Appeals’ decision since such a plan was clearly in piace at all relevant

times, and the dispute was instead over the details of that plan or of the

union’s implementation of the plan.

procedure. See Hudson, 475 U.S. at 298-301; Hudson, 743

F.2d at 1190. This Court did not affirm any judgment of

liability against the public employer, since there was no such

judgment below. Rather, the Seventh Circuit, whose decision

this Court affirmed in part, had reversed the judgment of the

district court and remanded the case for further proceedings

consistent with its opinion. Hudson, 743 F.2d at 1197.

Further, there is no indication in this Court’s opinion that

the public employer ever raised the issue before this Court

that is implicated here—whether a public employer can incur

liability for the deficiencies in the union’s annual fee notice

merely by the routine deduction of agency fees. Nor does the

Court’s opinion in Hudson decide that issue, either explicitly

or implicitly. To be sure, as Petitioners point out, the Court

did recite that the public employer accepted the union’s

calculation of the fair share fee, made the requested fee

deductions, and did not provide fee payers with an

explanation of the union’s calculation or the agency fee

procedures. See Pet. at 15 (quoting Hudson, 475 U.S. at 296).

But the Court’s observations on this point were merely set

forth in its statement of the underlying facts Of the case. The

Court nowhere alluded to (much less relied on) these facts in

its discussion, nor did it draw any conclusions from them.

ater war <e ote:

In fact, there is virtually nothing in the Court’s discussion

that bears on the liability of the public employer at all, much

less in the context within which that issue is raised here—the

union’s annual fee notice. The Hudson Court’s discussion of

government responsibility arose in the context of its separate

discussion of the requirement of a reasonably prompt decision

by an impartial decisionmaker as to challenges to the union’s

calculation of the agency fee (i.e., the agency fee arbitration),

rather than in its discussion of the union’s annual fee notice.

See Hudson, 475 U.S. 307 & n.20. And, even as to its

discussion of the agency fee arbitration, the Hudson court did

not impose any liability upon the public employer. Rather,

NT Ts

the Court made clear that the union has the responsibility to

provide such an expedited procedure, if the government qua

government (not gua employer) chooses not to do so.

Id. at n.20.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,