Pennsylvania's federal courts have been bustling with litigation filed against public-sector unions in the wake of the U.S. Supreme Court's June 27, 2018, decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018).

Prior to Janus, Pennsylvania, like many other states, permitted public-sector employers and unions to negotiate collective-bargaining provisions requiring nonunion members to pay their "fair share" of the cost of representing them to the union, in lieu of the full membership dues paid by union members. Part of the reason for this was because nonmembers would otherwise receive the benefit of union advocacy without paying for it. This is so, because a duly-elected public-sector bargaining representative must advocate for and represent all bargaining-unit employees, not just union members.

As is well known by now, the Supreme Court in Janus overturned a more than 40-year precedent, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that the collection of fair-share fees did not violate the First Amendment rights of nonmember, public employees so long as certain safeguards were observed and the fees assessed represented the cost of collective bargaining, not political spending by the union. Janus rendered the collection of fair-share fees from nonmembers unlawful.

Approximately 16 lawsuits have been filed thus far in federal courts in the U.S. Court of Appeals for the Third Circuit implicating the Janus decision (both in anticipation of and post-Janus). Organizations such as the self-styled Liberty Justice Center are actively searching for plaintiffs across Pennsylvania. Just recently, many public-sector workers in Pennsylvania received letters from the Liberty Justice Center purporting to advise them of their rights post-Janus and solicit plaintiffs for additional lawsuits. The Liberty Justice Center, the Fairness Center, the National Right to Work Legal Defense Foundation, former Texas Solicitor General Jonathan Mitchell, and similar groups are responsible for the majority of these lawsuits in Pennsylvania and across the nation.

Armed with only the knowledge of the sheer quantity of litigation at issue, one might assume Pennsylvania's public-sector labor unions need to get their acts together post-Janus. In fact, these cases are being driven by ideologically motivated organizations seeking to expand the reach of Janus in public-sector labor law, not merely enforce its edict that mandatory fair share fees are no longer constitutional after more than four decades of being so. And, contrary to what one might assume given the avalanche of litigation filed, attempts by these organizations to expand the Janus decision have been resoundingly unsuccessful thus far.

Post-Janus litigation generally falls into one of two categories of cases: those filed on behalf of nonmember, public employees who paid fair share fees pre-Janus; and, those filed on behalf of public employees who were union members pre-Janus. Such lawsuits encompass Section 1983 claims—the mechanism by which plaintiffs allege violations of their First and Fourteenth Amendment rights in this context, as well as related state law causes of action. These cases generally seek both legal and equitable relief in the form of monetary repayment for dues and fair share fees paid, as well as declarations and injunctive relief related to the constitutionality of relevant collective-bargaining agreement provisions and state law provisions.

For example, in Kioussis v. SEIU Local 668 (filed Aug. 7), pending before the U.S. District Court for the Middle District of Pennsylvania, the plaintiffs are seeking the return of fair-share fees paid by nonmembers prior to the Supreme Court's decision in Janus—at a time when collection of the fees was indisputably legal.

In similar cases, plaintiffs have also sought prospective, equitable relief as well, in the form of declaratory judgments on fair-share provisions in collective-bargaining agreements and in Pennsylvania law, as well as injunctive relief seeking to have such provisions stricken or changed. Both Hartnett v. PSEA (M.D. Pa. May 17, 2019) (appeal pending) and Diamond v. PSEA (W.D. Pa. 2019) (appeal pending) were also cases filed on behalf of employees who paid fair-share fees prior to the Supreme Court's ruling in Janus. In both, the courts dismissed claims for prospective, equitable relief as either moot and/or for lack of standing on the part of the plaintiffs. In relevant part, the courts declined to hear the merits of the cases since there was no live controversy for the courts to dispose of where there was no reason to suppose unions would (and where they had not) sought to continue collecting fair-share fees in defiance of Janus.

Significantly, in Diamond, the court also dismissed the plaintiffs' claim for repayment of fair-share fees paid pre-Janus based on the fact that the union collected such fees at a time when it was legal to do so. Thus, the union was entitled to a "good faith defense" to Section 1983 claims. In so finding, the Diamond court joined a plethora of other federal courts around the country who have unanimously dismissed the claims of both nonmembers who paid fair-share fees and the claims of former union members for dues paid prior to the Janus decision, many upon the same basis as the Diamond court.

The legal claims filed in cases on behalf of current or former union members involve many overlapping issues, but generally allege Section 1983 claims challenging the union's enforcement of dues authorization cards signed by the plaintiffs. Such claims include so-called "unconstitutional choice" claims which argue that the union member only signed a union card because they would otherwise have had to pay fair-share fees pre-Janus, as well as challenges to maintenance of membership provisions in collective-bargaining agreements and state law.

Recently, two such cases were disposed of by the Middle District and the Eastern District, in LaSpina v. SEIU Pennsylvania State Council and Mayer v. Wallingsford-Swarthmore School District, respectively. LaSpina was brought by a former union member who sought the return of dues paid pre- and post-Janus, prospective equitable relief, and who purported to bring claims on behalf of nonmembers who paid fair share fees prior to Janus as well. The court found that, as a former union member, the plaintiff lacked standing to bring claims on behalf of former fair-share fee payors, and that her claims for prospective relief were moot. More significantly, however, LaSpina also became the second Pennsylvania court to rule that, even if the plaintiff had standing, the good faith defense would apply in such cases to bar recovery of pre-Janus fees paid to the union.

Thus far, the Third Circuit has not heard a post-Janus case although several federal court decisions in Pennsylvania are pending appeal. Relevant to claims for pre-Janus fees paid by public employees, the Third Circuit recognized a good faith defense to Section 1983 claims for private entities in Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3rd Cir. 1994).

Indeed, the only federal appellate court to hear a post-Janus case thus far has been the Ninth Circuit. In Fisk v. Inslee, 759 Fed. Appx. 632 (2018), the Ninth Circuit affirmed the lower court's decision in favor of the union and the state of Washington, finding that the equitable relief claims brought by former union members were moot and, significantly, with respect to the plaintiffs' monetary claims, that the union's "deduction of union dues in accordance with the membership cards' dues irrevocability provision does not violate the appellants' First Amendment rights." This was because "the First Amendment does not preclude the enforcement of 'legal obligations' that are bargained-for and 'self-imposed' under state contract law." The Ninth Circuit likened the revocability limitations in these agreements as "common and enforceable in many consumer contracts—e.g., gym memberships or cell phone contracts …"

While there is no Third Circuit precedent on this precise issue yet, any decision by the Third Circuit on appeal will likewise have to view these cases through a post-Janus lens. In the post-Janus world of public-sector labor relations, neither the public employer nor the union can require nonunion members to pay their fair share. Instead, public-sector unions now rely upon private agreements with employees for their receipt of dues. The Third Circuit may find that the Ninth Circuit's treatment of these private agreements as no different than gym memberships or cell phone contracts is on point with respect to claims challenging the enforcement of union membership cards. With respect to pre-Janus claims for fees or dues paid to a union, the Third Circuit may also follow its own precedent and find that public-sector unions are entitled to a good faith defense since fair-share fees were indisputably legal at the time. If so, it is likely the unions' winning streak will continue.

Jessica Caggiano, an attorney at Willig, Williams & Davidson, concentrates her practice on labor law, advocating for union and worker rights at a time when these rights have never been more important. Her work includes handling labor arbitrations, contract bargaining and litigation for public and private sector unions.