Cook v. Brown

• Decision Date: 28 February 2019
• Docket Number: Case No. 6:18-cv-01085-AA
• Citation: 364 F.Supp.3d 1184
• Parties: Che' S. COOK, et al., Plaintiffs, v. Kate BROWN, et al., Defendants.
• Court: U.S. District Court — District of Oregon

364 F.Supp.3d 1184

Che' S. COOK, et al., Plaintiffs,

v.Kate BROWN, et al., Defendants.

Case No. 6:18-cv-01085-AA

United States District Court, D. Oregon, EUGENE DIVISION.

Signed February 28, 2019

Jill Gibson, Gibson Law Firm, Portland, OR, Milton L. Chappell, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, Christi C. Goeller, James G. Abernathy, Rebekah C. Millard, Olympia, WA, for Plaintiffs

Carla Scott, Scott J. Kaplan, Oregon Department of Justice, Margaret S. Olney, Bennett, Hartman, Morris & Kaplan, LLP, Portland, OR, Matthew J. Murray, Scott A. Kronland, Altshuler Berzon LLP, San Francisco, CA, Jennifer K Chapman, Salem, OR, for Defendants

OPINION & ORDER

Ann Aiken, United States District JudgeChe' S. Cook, Clifford H. Elliott, J. Scott English, Bethany Harrington, William Lehner, Carmen Lewis, and Trudy Metzger (collectively, "Plaintiffs")¹ 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.

BACKGROUND

Plaintiffs are public employees who were exclusively represented by AFSCME. 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 bargaining representation.

Plaintiffs 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.

While this case was pending, the Supreme Court handed down its decision in Janus v. AFSCME on June 27, 2018. ––– U.S. ––––, 138 S.Ct. 2448, 201 L.Ed.2d 924 (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, 97 S.Ct. 1782, 52 L.Ed.2d 261 (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, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012). Two years later in Harris v. Quinn , 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, 134 S.Ct. 2618, 189 L.Ed.2d 620 (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. ––– U.S. ––––, 136 S. Ct. 1083, 194 L.Ed.2d 255 (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. Id.

State 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' motion.

On 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.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.² 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).

The 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).

The 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. Id.

DISCUSSION

AFSCME 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- Janusagency fees were collected in good faith reliance on state law and controlling Supreme Court precedent.

With 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.

Article III of the Constitution grants federal courts the authority to decide cases and controversies. Already, LLC v. Nike, Inc. , 568 U.S. 85, 90, 133 S.Ct. 721, 184 L.Ed.2d 553 (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, 133 S.Ct. 721 (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, 99 S.Ct. 1379, 59 L.Ed.2d 642 (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. Adarand Constructors, Inc. v. Slater , 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000).

Ninth 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 executive action that is not governed by any clear or codified procedures cannot moot a claim." McCormack v. Herzog , 788 F.3d 1017, 1025 (9th Cir. 2015).

A. Injunctive Relief

Plaintiffs' request for injunctive relief is moot. By all indications, AFSCME has stopped collecting agency fees from non-members: it submitted sworn declarations and supporting exhibits evincing full compliance with Janus .

For example, Jeneane Ramseier is the Fiscal Director for AFSCME and submitted a sworn declaration stating "AFSCME Council 75 has not retained any fair-share fees deducted from any...