United States District Court, D. Oregon, Eugene Division
CHE' S. COOK, et al, Plaintiffs,
KATE BROWN, et al. t Defendants.
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE
Cook, Clifford H. Elliott, J. Scott English, Bethany
Harrington, William Lehner, Carmen Lewis, and Trudy Metzger
(collectively, "Plaintiffs") were forced to
pay compulsory union agency fees to the American Federation
of State, County, and Municipal Employees, Council 75
("AFSCME"). They brought suit against AFSCME as
well as against two public officials: Kate Brown and Katy
Coba ("State Defendants"). Before the Court is
AFSCME's Motion for Judgment on the Pleadings
or, Motion for Summary Judgment (doc. 24). For the
reasons discussed, AFSCME's motion is GRANTED.
are public employees who were exclusively represented by
AFSGME. Oregon's Public Employee Collective Bargaining
Act ("PECBA") gives certain public employees the
right to unionize and to elect an exclusive representative.
AFSCME is such an exclusive representative and PECBA requires
it to also represent the interests of non-members during
collective bargaining negotiations. To avoid free-riders, the
Act authorizes public employers to deduct a fraction of full
union dues, often called "agency fees," from
non-members to cover the costs of general collective
filed an action under 42 U.S.C. § 1983 challenging the
constitutionality of these fees. They argued that Defendants
were violating their First Amendment rights by forcing
compulsory agency fee payments to AFSCME as a condition of
their employment, even though Plaintiffs did not belong to
this union and did not wish to subsidize the union's
activities. Plaintiffs sought (i) a declaratory judgment that
all pertinent statutes, rules, regulations, and
collective-bargaining agreements that compel agency fees
violate the First Amendment; (ii) an injunction against
activities that violate the declaratory judgment; and (iii)
compensatory damages or restitution from AFSCME for the
wrongfully seized agency fees.
this case was pending, the Supreme Court handed down its
decision in Janus v. AFSCME on June 27, 2018. 138
S.Ct. 2448 (2018). Janus was the culmination of a
series of cases that expressed skepticism about the core
holding of Abood v, Detroit Board of
Education-namely, that public employees could be
required to pay agency fees as a condition of their
employment without violating the First Amendment. 431 U.S.
209, 209 (1977). In 2012, the Supreme Court considered
Knox v. Service Employees International Union and
called Abood "something of an anomaly."
567 U.S. 298, 311 (2012). Two years later in Harris v.
Qninn, the Supreme Court was asked to overrule
Abood but declined to do so even after including
notably pointed dicta about Abood in its opinion.
573 U.S. 616, 635 (2014) (stating that Abood
"seriously erred" in its treatment of prior cases
and "did not foresee the practical problems that would
face objecting nonmembers."). Twelve months later, the
Supreme Court again considered overruling Abood in
Friedrichs v. California Teachers Association, et
al, but split 4-4. 136 S.Ct. 1083 (2016) (per curiam)).
After over forty years of litigation, the fight to overrule
Abood finally reached its zenith in Janus,
which held that compulsory union payments, including agency
fees, cannot be collected from nonconsenting employees. 138
S, Ct. at 2486. Abood was thus overruled.
Defendants submitted declarations evincing immediate
compliance with Janus's holding and moved to
dismiss the claims against them with prejudice. Plaintiffs
failed to file a response and I granted State Defendants'
October 19, 2018, AFSCME filed a Motion for Judgment on the
Pleadings or, Motion for Summary Judgment. It argues
that it has fully complied with Janus, has no
intention of doing otherwise, and Plaintiffs' requested
prospective relief is therefore moot. It further argues that
it is entitled to a good faith defense against claims for
monetary liability. For the reasons discussed below,
AFSCME's motion is granted and this case is dismissed.
judgment is appropriate when there is no genuine dispute of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The moving party bears
the initial burden to show an absence of a dispute of
material fact. Rivera, v. Philip Morris, Inc., 395
F.3d 1142, 1146 (9th Cir. 2005). If the moving party meets
its burden, the burden shifts to the non-moving party to show
that there is a genuine dispute of material fact for trial.
Id. To meet its burden, "the non-moving party
must do more than show there is some metaphysical doubt as to
the material facts at issue." In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
court must draw all reasonable inferences in favor of the
non-moving party. Sluimer v. Verity, Inc., 606 F.3d
584, 587 (9th Cir. 2010). A "mere disagreement or the
bald assertion that a genuine issue of material fact
exists" is not sufficient to preclude the grant of
summary judgment. Harper v. Wallingford, 877 F.2d
728, 731 (9th Cir. 1989). When the non-moving party's
claims are factually implausible, that party must "come
forward with more persuasive evidence than otherwise would be
necessary." LVRC Holdings, LLC v. Brekka, 581
F.3d 1127, 1137 (9th Cir. 2009) (citation and internal
quotation marks omitted).
substantive law governing a claim or defense determines
whether a fact is material. Miller v. Glenn Miller Prod.,
Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the
resolution of a factual dispute would not affect the outcome
of the claim, the court may grant summary judgment.
argues that (i) Plaintiffs' claims for declaratory and
injunctive relief are moot because AFSCME stopped collecting
agency fees after Janus, and (ii) Plaintiffs'
claims for monetary relief-both compensatory damages and
restitution- must be dismissed because pre- Janus
agency fees were collected in good faith reliance on state
law and controlling Supreme Court precedent.
respect to mootness, Plaintiffs argue that the voluntary
cessation exception precludes dismissing the claims for
injunctive relief and that the request for declaratory relief
is not moot. With respect to good faith, they argue that
private parties have no good faith defense in § 1983
First Amendment cases, and even if they do, that AFSCME
cannot claim good faith. They also argue that allowing a good
faith defense would fly in the face of the Supreme
Court's retroactivity doctrine. I. Mootness AFSCME argues
that Plaintiffs' claims for injunctive and declaratory
relief are moot because AFSCME immediately ceased its
unconstitutional practices after Janus and has no
plan to reverse course. Plaintiffs argue that the voluntary
cessation exception to mootness precludes summary judgment.
III of the Constitution grants federal courts the authority
to decide cases and controversies. Already, LLC v. Nike,
Inc., 568 U.S. 85, 90 (2013). "A case becomes
moot-and therefore no longer a Case or Controversy for
purposes of Article III-when the issues presented are no
longer live or the parties lack a legally cognizable interest
in the outcome." Id. at 91 (citation and
internal quotation marks omitted). However, the
"voluntary cessation of allegedly illegal conduct does
not deprive the tribunal of power to hear and determine the
case" unless "interim relief or events have
completely and irrevocably eradicated the effects of the
alleged violation." Cnty. of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979) (citation and internal
quotation marks omitted). A party asserting mootness must
also persuade the court that the challenged conduct cannot
reasonably be expected to reoccur. Ada-rand Constructors,
Inc. v. Slater, 528 U.S. 216, 222 (2000).
Circuit precedent provides the contours of the voluntary
cessation inquiry. Fikre v. FBI,904 F.3d 1033, 1038
(9th Cir. 2018). First, the form of government action is
critical and can be dispositive. Id. "A
statutory change ... is usually enough to render a case moot,
even if the legislature possesses the power to reenact the
statute after the lawsuit is dismissed." Native
Vill. of Noatak v. Blatchford,38 F.3d 1505, 1510 (9th
Cir. 1994). As the Eight Circuit has observed, the rigors of
the legislative process "bespeak . . . finality and not
. . . opportunistic tentativeness." Libertarian
Party of Arkansas v. Martin,876 F.3d 948, 951 (8th Cir.
2017). On the other hand, "an ...