The End of the Line for Janus Challenges?

February 12, 2021Alerts

Following the U.S. Supreme Court’s 2018 landmark ruling in Janus v. American Federation of State, County and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), which made it illegal for public sector labor unions to collect representation fees from non-union members, there have been a series of lawsuits from individuals attempting to seek refunds for fees previously paid to these unions. On January 25, 2021, the Supreme Court put up a significant roadblock in that effort by declining to hear six cases from government workers who sought to recover fees they paid to public-sector unions prior to the Janus decision.

The Court’s decision in Janus was a watershed departure in the law governing public sector labor unions because the justices held that the collection of representation fees from non-union public employees violates employees’ free speech rights by “compelling them to subsidize private speech on matters of substantial public concern.” Janus, 138 S. Ct. at 2460. This decision overruled the Court’s prior decision in Abood v. Detoit Bd. of Educ., 431 U.S. 209 (1977), in which the Court had allowed for public-sector unions to collect these fees. Notably, although the Court rejected its decision in Abood and made it illegal for public sector unions to continue collecting fees from non-union members, the Court was silent as to whether public sector unions could keep the fees they had previously collected from non-union members. Across the country, various non-union member public employees have attempted to push the bounds of Janus on this issue arguing that under Janus, they are entitled to reimbursement for past fees collected by the unions.

On January 25, the Court declined to review a series of petitions for certiorari in six separate cases involving state workers in Illinois, Ohio and Washington whose respective circuit courts of appeal had denied their requests for reimbursement. Perhaps the most significant of these involved a challenge from Mark Janus, the former Illinois government employee, whose original lawsuit resulted in the Janus decision, and who sought to extend the original ruling further by requesting reimbursement for all of the union dues he had paid before the Supreme Court’s decision in 2018. The Seventh Circuit Court of Appeals had determined that the union’s good-faith defense that it had followed Abood until the Supreme Court ruled otherwise in Janus shielded the union from liability.

Stemming the Tide

The Supreme Court’s rejection of the these individuals’ petitions for certiorari suggests that the Court is unwilling to extend the Janus decision further giving it retroactive application. It also suggests that, at least for the time being, the Court may be uninterested in addressing Janus-derived lawsuits, which could stem the tide of lawsuits in the lower courts. This is good news for public sector unions that have been combatting such lawsuits since the Court’s decision in 2018.

For instance, in our neighborhood, on February 10, 2021, the Third Circuit Court of Appeals upheld a decision from the U.S. District Judge Reneé M. Bumb of the District of New Jersey, dismissing a lawsuit brought by two former county employees who challenged the constitutionality of a New Jersey statute that gives public employees a 10-day window to revoke their union dues authorizations. The employees had alleged that the New Jersey statute conflicted with the Court’s decision in Janus. But Judge Bumb dismissed the suit, determining that the former employees did not have standing to pursue monetary damages because they had not alleged a past injury arising from enforcement of New Jersey’s statute. The Third Circuit agreed with that decision. Whereas before January 25, the employees might have filed a petition for certification to the Supreme Court challenging the Third Circuit’s ruling, it is likely that they might think twice now that the Supreme Court has denied a series of other petitions for certification stemming from its Janus decision.

Indeed, if the Supreme Court is in fact uninterested in addressing other Janus challenges, the Janus-inspired lawsuits against public sector unions might soon dry up, freeing up the unions to spend more time and money on other matters.