Federal Appellate Court Rules That Non-Union Members Are Not Entitled to Recover Fair-Share Fees Collected Prior to the Supreme Court’s Janus Opinion

On November 5, 2019, the Seventh Circuit Court of Appeals (which covers Illinois) issued opinions in two cases, Janus v. AFSCME, Council 31 et al. (Janus III), and Mooney v. Illinois Education Association (Mooney), deciding that non-union members are not entitled to a return of the fair share fees they paid prior to the Supreme Court’s 2018 opinion in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) (Janus II). As we previously reported, in July of 2018, in the Janus II case, the U.S. Supreme Court ruled that state and public-sector compulsory fair-share arrangements violated employees’ First Amendment rights.

In the Seventh Circuit in Janus III, Plaintiff Mark Janus argued that the Supreme Court’s Janus II ruling should be retroactive, meaning that, under the federal “Section 1983” law, he should be paid back all the fair-share fees he had previously paid. The Seventh Circuit ruled that under specific circumstances, a private party that acts pursuant to the current law may utilize a good faith defense to defend against Section 1983 claims. The court reasoned that the defendants acted pursuant to and reasonably relied on state and federal law when it collected fair share fees from Janus previously and that this good faith defense prevents Janus from receiving the monetary damages he sought.  Notably, the court did not fully address Janus’s retroactivity argument, instead assuming “for the sake of argument” that Janus II applied to Janus because his case was “in the pipeline at the time of the [Supreme] Court’s decision.” Thus, it remains unclear whether Janus II can be applied retroactively.

Similar to Janus III, the plaintiff in Mooney sought to recover all fair share fees she and other members of a class action paid prior to the Supreme Court’s ruling in Janus II. However, the class attempted to distinguish their claims from those in Janus III by alleging that they were entitled to restitution rather than monetary damages. The Seventh Circuit ultimately found that the class’s claim was for monetary damages and used the same reasoning as Janus III to deny the claim.

These decisions are significant for Illinois schools districts as they continue to navigate the relationships between the union, its members, and non-members.

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