Reply Brief — Anchorage Education Ass'n v. Patterson

c

Supreme Court, U.S.

i rs ~ 1)

J se Be Pee

APR 17 1998

No. 97-1454

as a8 peneetennee-w

——s we

IN THE

Supreme Court of the United States

OcTOBER TERM, 1997

ANCHORAGE EDUCATION ASSOCIATION

and NEA-ALASKA,

Petitioners,

Vv.

REBECCA L. PATTERSON, ef al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

JOE P. JOSEPHSON ROBERT H. CHANIN

JOSEPHSON & ASSOCIATES JEREMIAH A. COLLINS *

750 W. Second Avenue BREDHOFF & KAISER, P.L.L.C.

Suite 215 1000 Connecticut Avenue, N.W.

Anchorage, AK 99501 Suite 1300

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

o <P ~

TABLE OF AUTHORITIES

ARGUMENT

TABLE OF CONTENTS

Page

ii

TABLE OF AUTHORITIES

CASES Page

Air Line Pilots Association v. Miller, No. 97-428..passim

Gilpin v. AFSCME, 875 F.2d 1310 (7th Cir.), cert.

Genied, 456 U.S. 1060 (1900) 2. 5

Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992)... 4,5

Hudson v. Chicago Teachers Union, Local 1, 922

F.2d 1306 (7th Cir.), cert. denied, 501 U.S. 1230

Be § SSSR ety Gene Sag Ri ER Nm Soe 3

Lowary v. Lexington Local Board of Education,

903 F.2d 422 (6th Cir.), cert. denied, 498 U.S.

DU A RI icici itt Dicicidasegn tegen ee ad 5

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

(6th Cir. 1992), cert. denied, 507 U.S. 917

ENE ssiicctnicocanceadcpeinacng itunes iain CES 5

STATUTES

Railway Labor Act, 45 U.S.C. § 151 et seq. -........... 1

ee Brn ar i iticctietninutiincbeccee passim

:

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1454

ANCHORAGE EDUCATION ASSOCIATION

and NEA-ALASKA,

. Petitioners,

REBECCA L. PATTERSON, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

ARGUMENT

As stated in the Petition for Writ of Certiorari (“Pet.”),

this case presents in the public sector the question now

pending before this Court under the Railway Labor Act

in Air Line Pilots Association v. Miller, No. 97-428. As

we explained, the fact that this case arises under 42 U.S.C.

§ 1983, while Miller arose under the Railway Labor Act,

was not deemed significant by the Ninth Circuit in this

case or by the parties in Miller, and is no ground for

denying certiorari. Rather, that distinction is relevant only

to determining whether the most appropriate disposition

upon grant of certiorari would be to remand this case

to the Ninth Circuit for reconsideration, or instead to set

the matter for briefing and argument in this Court. See

ret. 12, 15.

Although respondents devote much of their Brief in

Opposition (“Opp.”), to arguing the merits of requiring

2

“exhaustion” in a case brought under § 1983—and we

respond to those arguments briefly at pp. 5-6 infra—

respondents’ principal contention is that we have “mis-

charactefize[d] the issue decided by the lower court,” Opp.

6, because, in respondents’ view, “[t]his case is not about

a nonmember teacher’s obligation to exhaust the unions’

impartial decisionmaker process,” but instead “is about a

court’s effort to refer damages calculations to a non-

Article III decisionmaker.” Jd. There is no force to that

contention.

1. The question respondents declare not to be pre-

sented here—‘‘a nonmember teacher’s obligation to ex-

haust the union’s impartial decisionmaker process,” Opp.

6—is precisely the question the Ninth Circuit decided.

The Ninth Circuit stated the question presented as:

[Whether nonmembers can be forced to arbitrate a

union’s chargeability determinations before seeking

relief in federal court. [App. 16a]

Explaining that it “agree[d] with the [decision of the]

D.C. Circuit .. . [in] Miller,” App. 18a, the Ninth Circuit

answered that question as follows:

We therefore hold that nonmembers are not required

to exhaust union remedies to which they did not

agree before challenging the chargeability determina-

tions in federal court. [/d.]

In the end, respondents acknowledge that the Ninth

Circuit did decide the question presented in Miller and in

our certiorari petition, and respondents are reduced to

arguing that the court should not have decided that ques-

tion. See Opp. 17 (describing what respondents charac-

terize as “the panel’s . . . error” in defining the issue to be

decided). This quixotic contention ignores the true pos-

ture of the case.

The district court considered at length whether respond-

ents should be required “to use the arbitration procedures”

established by AEA to resolve chargeability objections, or

whether instead “[the] court should decide chargeability

issues.” App. 4la. Emphasizing that it had found no

3

deficiencies in AEA’s agency fee procedures, but only in

certain aspects of AEA’s agency fee notice, the district

court held that respondents were not free to avoid the

arbitration process and instead present their chargeability

disputes in court. App. 4la-44a, 46a.’ The district court

ruled that “the arbitration procedures established by de-

fendants . . ., utilizing the services of the American Arbi-

tration Association . . . must be utilized by employees who

wish to challenge the Associations’ calculation of charge-

able and nonchargeable items for the purpose of establish-

ing service fees.” App. 60a-6la. Accordingly, “all issues

of chargeability for the 1992-93 year between [respond-

ents] and [AEA], including issues raised by [respondents]

herein with regard to litigation expenses, organizational

maintenance and lobbying . . . shall be determined...

through arbitration, and chargeability issues may not be

brought to the court for determination until arbitration is

completed.” App. 61a.

What is more, the district court required arbitration for

the very reasons that have been advanced in Miller by the

petitioner and its amici: the court concluded that there is

no proper basis for a nonmember to complain in court of

a union’s chargeability determinations if the nonmember

has bypassed the impartial decisionmaking process estab-

lished by the union to consider objections to the union’s

proposed charges. See App. 41a-46a, citing, inter alia,

Hudson v. Chicago Teachers Union, Local 1, 922 F.2d

1306, 1314 (7th Cir.), cert. denied, 501 U.S. 1230

(1991) (“Were we to accept plaintiffs’ invitation and

provide a hearing and judicial determination of the cor-

rectness of the fee, we would in effect render redundant

and irrelevant the requirements that an impartial decision-

1 Far from requiring arbitration because of the deficiencies the

district court found in AEA’s notice, as respondents suggest, the

district court required arbitration despite those deficiencies. See

App. 4la, 43a, 46a. This was unexceptional, as respondents made

no showing that the deficiencies in the notice (described in the

certiorari petition at 4) were such as to make arbitration unfair

or inappropriate.

4

maker hear the dispute and that an escrow account be

provided for the amounts reasonably in dispute while the

challenge is pending” ).”

Although, as respondents emphasize, the Ninth Circuit

characterized the arbitration process required by the dis-

trict court as involving questions of “damages” or “re-

lief,” App. 15a, 16a, that characterization did not play

any part in the Ninth Circuit’s analysis of the question

presented. Rather, the Ninth Circuit saw this case as pre-

senting the same issue as Miller, and it decided the case

accordingly. See App. 16a-18a.

The court’s perception of the issue was correct. Under

the district court’s order, the only matter to be arbitrated

is whether AEA charged objecting nonmembers for activ-

ities that were not lawfully chargeable to them, such that

the objectors would be entitled to a partial refund. See

App. 60a-6la. (As the district court observed, respondents

identified “litigation expenses, organizational maintenance

and lobbying” as activities for which they allegedly had

improperly been charged. App. 6la.) Such a refund

would not constitute “damages” for AEA’s deficient notice,

as respondents suggest: on the contrary, an objector is

entitled to a refund of the nonchargeable portion of an

agency fee even if a union’s notice was perfect, and “the

issue of whether the notice contains a verification is ir-

relevant to whether the exclusive representative properly

calculated the proportionate share of total chargeable ex-

penses.” Hohe v. Casey, 956 F.2d 399, 416 (3d Cir.

1992).

Thus, notwithstanding respondents’ effort to recast this

case as one involving “damage calculations,” the issue

2In a belabored argument, respondents make much of the fact

that AEA’s impartial decisionmaking process utilizes an arbitrator

selected by the American Arbitration Association rather than by

the nonmembers. Opp. 22-24. For the reasons that have been pre-

sented in Miller by the petitioner and its amici, respondents’ attack

on the use of AAA-appointed arbitrators lacks merit. In any event,

this factor does not distinguish the present case from Miller, because

the same AAA procedure was utilized in Miller.

5

decided by the Ninth Circuit is the same as the issue pend-

ing decision in Miller: should objections to the charge-

ability of particular union activities be heard by the courts

if those objections were not presented to the impartial de-

cisionmaker provided by the union.*

2. Respondents present a lengthy argument on the

merits of whether “exhaustion” of a union’s impartial de-

cisionmaking process can be required where a nonmember

has sued under § 1983. Nothing in that exegesis con-

stitutes a ground for denying certiorari,* and this is not

%In yet another attempt to rewrite the decision below, respond-

ents contend that the Ninth Circuit should be understood as having

determined that respondents cannot be charged any fee for the

year at issue, Opp. 5, and therefore the need to examine AEA’s

chargeability determinations, whether by arbitration or in court,

has been “obviated.” Opp. 21. That is nonsense. The Ninth Circuit

noted without disapproval that the district court had rejected re-

spondents’ claim for “a full refund of all collected fees.” App. l5a.

The district court’s rejection of that claim was consistent with well-

settled law. See, e.g., Weaver v. University of Cincinnati, 970 F.2d

1523, 1533-34 (6th Cir. 1992), cert. denied, 507 U.S. 917 (1993);

Hohe v. Casey, 956 F.2d at 416; Lowary v. Lexington Local Board

of Education, 903 F.2d 422, 432-33 (6th Cir.), cert. denied, 498

U.S. 958 (1990); Gilpin v. AFSCME, 875 F.2d 1310, 1314-16 (7th °

Cir.), cert. denied, 493 U.S. 1080 (1990). Respondents would have

it that the Ninth Circuit, with no discussion whatsoever, reversed

the district court sub silentio on the “full refund” issue, parted

company with the decisions of every circuit that has considered the

issue, and held (again sub silentio) that a union must entirely

forfeit the collection of agency fees, even for matters concededly

germane to collective bargaining, if there was any deficiency in the

union’s notice for a particular year. That untenable suggestion

cannot be squared with the Ninth Circuit’s explicit holding that the

district court’s error lay in declining to adjudicate respondents’

“challeng|e}| [to] the [union’s] chargeability determinations.” App.

18a. Plainly, the court of appeals did not set the fee at zero and

thus “obviate” the need for review of AEA’s chargeability determi-

nations, as respondents suggest. Rather, what the Ninth Circuit

held (as the D.C. Circuit held in Miller) is that the union’s charge-

ability determinations should be reviewed in the first instance by

the district court rather than by an arbitrator.

* Respondents themselves state that “the circuits have conflicted”

on the question respondents believe is presented by this case. Opp.

6

the time for a full response on the merits. We merely

note two points.

First, none of this Court’s § 1983 cases holding that

exhaustion of remedies was not required involved a situa-

tion where a litigant was permitted to bypass a decision-

making process that a private party had been required by

federal law to create in order to resolve the very dispute

the litigant wished to take to court.

Second, respondents correctly note that a union may

violate constitutional requirements not only by spending

objecting nonmembers’ funds in a manner that improperly

forces objectors to subsidize ideological activity, but also

by failing to establish proper procedures for collecting

agency fees. See Opp. 25-26. However, where a union

escrows funds as required by Hudson and provides an im-

partial decisionmaking process to consider any objections

to the amount the union proposes to charge, no valid

First Amendment claim—whether of forced subsidization

or of improper procedures—arises from collecting and

spending the funds of a nonmember who fails to present

an objection through the impartial decisionmaking proc-

ess. See Pet. 14-15. Hence, the fundamental problem with

respondents’ position is not that respondents failed to ex-

haust in arbitration a First Amendment claim that other-

wise would be cognizable under § 1983; it is that AEA’s

collection and expenditure of funds of nonmembers who

did not avail themselves of the impartial decisionmaking

process did not violate the First Amendment in the first

place.

19. And, on the issue framed in the certiorari petition, which

respondents incorrectly maintain is not presented, respondents in-

explicably assert both that “every court agrees with the Ninth Cir-

cuit,” Opp. 18, and that “one court ... has reached a contrary

conclusion.” Jd.

7

CONCLUSION

The petition for certiorari should be granted and the

case should either be remanded for reconsideration in

light of Miller or set for briefing and argument in this

Court.

Respectfully submitted,

JOE P. JOSEPHSON ROBERT H. CHANIN

JOSEPHSON & ASSOCIATES JEREMIAH A, COLLINS *

750 W. Second Avenue BREDHOFF & KAISER, P.L.L.C.

Suite 215 1000 Connecticut Avenue, N.W.

Anchorage, AK 99501 Suite 1300

Washington, D.C. 20086

(202) 833-9340

* Counsel of Record