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Date: 12-07-2018

Case Style:

Theresa Riffey v. Bruce V. Rauner

Case Number: 16-3487

Judge: Wood

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Amanda Kae Freeman and Michael Austin Haugh, William L Messenger, Anastas Shkurti

Defendant's Attorney: Margaret Ann Angelucci, Melissa J. Auerbach, Robert E. Bloch, Gary Steven Caplan, Joel Abbott D'Alba, Kristin Garcia, Kristin M. Garcia, Josiah A. Groff, Scott A Kronland, Jessica Megan Scheller, John M West, Ronald M. Willis


When this case was last before our
court, we upheld the district court’s decision declining to certify
a class of home health care assistants (“the Assistants”)
who were seeking a refund of the fair-share fees they had paid
to a union for collective-bargaining representation. We agreed
with the putative class that no one could be compelled to pay
2 No. 16-3487
fair-share fees, pursuant to the Supreme Court’s decision in
Harris v. Quinn, 134 S. Ct. 2618 (2014), and that any such objector
would be entitled to have his or her payments refunded.
The only question on the table was whether, with that common
issue resolved, the district court abused its discretion
when it determined that for purposes of Federal Rule of Civil
Procedure 23(b)(3), issues common to the class would not predominate
over individual issues and a class action would not
be a superior vehicle for resolving the claims. Any person
who wished to pursue an individual claim for a refund remained
free to do so.
Seeking review of our decision, the putative class representatives
filed a petition for a writ of certiorari in the Supreme
Court. On June 28, 2018, the Court granted that petition
and remanded the case to this court for further consideration
in light of Janus v. State, County, and Municipal Employees,
138 S. Ct. 2448 (2018). See 138 S. Ct. 2708 (2018) (remand order).
In accordance with Circuit Rule 54, we invited and have
received statements from the Assistants and from one of the
appellees, SEIU Healthcare Illinois & Indiana, discussing the
proper course for us now to take. Governor Rauner elected
not to file a statement.
We conclude that Janus does not require a different result
on the narrow question presented in our appeal, namely,
whether the class-action device is the proper one for the Assistants
to use in seeking refunds of fair-share fees. We therefore
once again affirm the decision of the district court declining
to certify the requested class.
No. 16-3487 3
A brief review of the history of this lengthy litigation will
set the stage for our discussion of Janus. Around 2008, a majority
of the Assistants in the state’s Rehabilitation Program
voted to designate SEIU as their collective bargaining representative;
those who did not wish to be Union members were
entitled to pay a “fair share” or “agency” fee—that is, a reduced
payment to the Union that represents only the costs of
collective bargaining, grievance processing, and the like, and
excludes political activities with which the person may not
agree. In 2009, Governor Pat Quinn of Illinois issued an executive
order directing the state to recognize an exclusive bargaining
representative for assistants in the state’s Disabilities
Program, if a majority of those assistants voted in favor of a
union. A mail-ballot election ensued, in which a majority of
the Disabilities assistants voting rejected representation by either
SEIU Local 713 or by its rival, AFSCME Council 31. Harris
v. Quinn, 656 F.3d 692, 695 (7th Cir. 2011). This action against
the Governor and the Unions followed: the Rehabilitation Assistants
argued that the fair-share fees violated their First
Amendment rights, and the Disabilities Assistants (who were
not yet subject either to a union or fees) lodged a facial challenge
against the law. The district court dismissed both
groups’ claims: it held that the Rehabilitation Assistants had
failed to state a claim on which relief could be granted, and
that the Disabilities Assistants’ claims were not ripe. We affirmed,
clarifying that the dismissal of the Disabilities Assistants’
claims had to be without prejudice. Id. at 701.
Our opinion, however, was not the last word on the matter.
The Supreme Court granted certiorari and reversed with
respect to the Rehabilitation Assistants’ claims. It held that the
4 No. 16-3487
First Amendment does not permit a state “to compel personal
care providers to subsidize speech on matters of public concern
by a union that they do not wish to join or support.” Harris,
134 S. Ct. at 2623. The Harris decision sharply questioned
the continuing vitality of the Supreme Court’s ruling in Abood
v. Detroit Bd. of Educ., 431 U.S. 209 (1977), but the Court did
not feel compelled at that juncture formally to overrule Abood.
Instead, it held that the Assistants were not state workers at
all and thus the state could not compel them to pay even a
fair-share (or agency) fee. 134 S. Ct. at 2639–41, 2644. Upon
receiving the Court’s mandate to this effect, we remanded the
case to the district court for further proceedings in accordance
with the Supreme Court’s decision.
On remand, the Assistants amended their complaint to
substitute new named plaintiffs for the class, and to substitute
Governor Bruce V. Rauner for his predecessor, Governor
Quinn. They sought certification of a class of “all non-union
member assistants from whom fair-share fees were collected
from April 2008 until June 30, 2014 (the date of the Supreme
Court’s Harris decision), when the state stopped the fair-share
deductions.” Riffey v. Rauner, 873 F.3d 558, 561 (7th Cir. 2017).
The proposed class included some 80,000 members; the class
representatives asserted that the total amount that needed to
be refunded was approximately $32 million. Id.
As we explained in our 2017 opinion, the district court denied
certification for several reasons:
[T]he class definition was overly broad in light
of evidence (detailed by the court) that a substantial
number of class members did not object
to the fee and could not have suffered an injury;
the named plaintiffs were not adequate
No. 16-3487 5
representatives; individual questions regarding
damages predominated over common ones; the
class faced serious manageability issues; and a
class action was not a superior method of resolving
the issue.
Id. Although there once had been a class-wide question
whether the fair-share fees were compatible with the First
Amendment, that question had been resolved definitively by
the Supreme Court’s Harris decision. Left with only the more
individualized issues, all three members of the panel agreed
that the proposed class failed to meet the requirements under
Rule 23(b)(3) that issues common to the class would predominate
and that a class action be a superior mechanism for resolving
the dispute. Id. at 565–66 (majority); id. at 566–67 (concurrence).
That was the posture of the case at the time the Assistants
filed their petition for certiorari. The Supreme Court held the
Riffey petition in abeyance while it decided Janus, and then, as
we noted earlier, it returned Riffey to this court for further consideration
in light of Janus.
Janus was an individual action brought by Mark Janus, an
employee of the Illinois Department of Healthcare and Family
Services. Unlike the assistants in the Harris litigation, Janus
was indisputably a state employee. The people in his unit
were represented by the American Federation of State,
County, and Municipal Employees (AFSCME) Council 31, but
Janus elected not to join the Union because he disagreed with
its positions on a variety of public policy matters. Although
he was required to pay only a fair-share fee, he objected to
6 No. 16-3487
that as a matter of principle. His fees amounted to about $535
a year.
Two important facts distinguish Janus from Harris: first, in
Janus there was no way to avoid confronting the continuing
validity of Abood, because Janus was a state employee; and
second, Janus did not seek to represent a class. With respect
to the first point, the Court concluded that the time had come
to overrule Abood. 138 S. Ct. at 2460. The entire majority opinion
is devoted to the explanation for the decision that “publicsector
agency-shop agreements violate the First Amendment.”
Id. at 2478. In light of that ruling, the Court said,
“States and public-sector unions may no longer extract
agency fees from nonconsenting employees.” Id. at 2486.
The Court recognized that its holding would have a significant
impact on public-sector unions over the short run. Id.
at 2485–86. And that is undoubtedly true. But the parties involved
in Harris—who are identical to the group that Riffey
seeks to represent—had already persuaded the Court to outlaw
their agency fees. Janus simply did not affect whatever remaining
claims the putative class members in this litigation
might have. The Court’s language in Harris is unambiguous:
“The First Amendment prohibits the collection of an agency
fee from personal assistants in the Rehabilitation Program
who do not want to join or support the union.” 134 S. Ct. at
2644. We followed that rule to the letter in our decision on remand
from Harris, where we wrote that “the Supreme Court
has resolved the overarching common issue in this case:
whether the First Amendment prohibits the fair-share fee deductions
in the absence of affirmative consent (yes).” 873 F.3d
at 566.
No. 16-3487 7
The Court’s resolution of the agency-fee issue meant that
only one further point needed to be resolved on the Harris remand:
whether the remaining issues concerning refunds of
agency fees that were paid by nonconsenting employees
could be resolved in a class action. If this was to be a class at
all, we recognized, it was one for money damages for each individual
class member, and it would accordingly have to satisfy
the requirements of Rule 23(b)(3). See Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 360–67 (2011). (Any proposed class
would also have to satisfy the requirements of Rule 23(a),
which we discussed in our earlier Riffey opinion. We have no
need to reach the Rule 23(a) factors, however, if Rule 23(b)(3)’s
criteria are not met.)
Although Rule 23(b)(3)’s language is familiar, we set it
forth here for convenience:
(b) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if:
(3) the court finds that the questions of law or
fact common to class members predominate over
any questions affecting only individual members,
and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings
(A) the class members’ interests in individually
controlling the prosecution or defense of
separate actions;
8 No. 16-3487
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
(C) the desirability or undesirability of concentrating
the litigation of the claims in the particular
forum; and
(D) the likely difficulties in managing a class
FED. R. CIV. P. 23(b)(3).
The decision whether to certify a class is one that depends
on a careful assessment of the facts, of potential differences
among class members, of management challenges, and of the
overall importance of the common issues of law or fact to the
ultimate outcome. As we noted in Arreola v. Godinez, 546 F.3d
788 (7th Cir. 2008), “Rule 23 gives the district courts broad discretion
to determine whether certification of a class-action
lawsuit is appropriate,” and thus “this court reviews such decisions
deferentially.” Id. at 794 (internal quotation marks
omitted). We see nothing approaching an abuse of discretion
in the district court’s decisions here that whatever common
questions remain among the proposed class members do not
predominate, and that “a class action is [not] superior to other
available methods for fairly and efficiently adjudicating the
controversy.” FED. R. CIV. P. 23(b)(3).
We set forth many of the district court’s reasons for coming
to this conclusion in our 2017 decision in this case. We reproduce
that analysis for ease of reference:
We agree with the district court that the question
whether damages are owed for many, if not
most, of the proposed class members can be
No. 16-3487 9
resolved only after a highly individualized inquiry.
It would require exploration of not only
each person’s support (or lack thereof) for the
Union, but also to what extent the non-supporters
were actually injured. The Union would be
entitled to litigate individual defenses against
each member. This suggests not only that individual
questions predominate at this stage of
the litigation, but also that it would be difficult
to manage the litigation as a class. The plaintiffs
offered no plan to make class-wide determinations
about support for the collective bargaining
representation. The district court was well
within the bounds of its discretion to reject class
treatment on these bases as well.
873 F.3d at 566. And this is not all that supports the district
court’s determination. The Union presented evidence of disharmony
within the class: some of the Assistants supported
the Union and have no desire to collect a refund, while others
are eager to get their money back; and once they no longer
had the intermediate option of paying an agency fee, some
moved in one direction to join the Union, while others moved
in the opposite direction and severed all ties with the Union.
The court also noted that the answer to the central question
that remains—how much money each individual class member
is entitled to recoup—is particularly ill-suited for class
treatment, because it depends on a myriad of factors particular
to each individual worker.
Last, the district court made it clear that it was not averse
to considering a more targeted class. It denied the Assistants’
class certification motion without prejudice to a revised class
10 No. 16-3487
definition. It also left the door open to a potential class for injunctive
relief, even though such relief is hard to envision after
the two definitive Supreme Court decisions. And the named
plaintiffs stipulated to a final judgment that granted them all
the individual monetary relief they were seeking and permanently
enjoined the state and the Union from applying any
fair-share or agency-fee requirement to personal assistants.
The latter is precisely the relief that Janus contemplated.
Despite this apparent success, the Assistants spurned the
opportunity to suggest a narrower class in favor of a “go-forbroke”
strategy. In doing so, however, they overlooked the
substantial deference we give to the district court’s decisions
about predominance and manageability. The judge here came
to a defensible—indeed, sensible—decision on these points.
Nothing in Janus speaks to the suitability of class treatment of
these issues under the unusual circumstances of this case,
which already had been decided under Harris, which for these
parties established a rule practically identical to that in Janus.
We therefore conclude, as we did before, that the district
court acted well within its authority when it declined to certify
a class action for the clean-up proceedings that are necessary
in the wake of Harris and Janus. Individual assistants who
wish to pursue refunds are free to seek to do so; we make no
comment on such cases or the defenses the Union may endeavor
to raise in them. The decision of the district court is
No. 16-3487 11
MANION, Circuit Judge, concurring in the judgment. I write
separately to emphasize that a union’s expropriation of fees
from a non-member without his or her consent amounts to a
First Amendment injury on that basis alone, regardless of
whether the employee subjectively opposed the fees.
As the court rightly states, Janus v. State, County, and Municipal
Employees, 138 S. Ct. 2448 (2018), does not affect the narrow
grounds on which I agreed with the court’s previous
judgment affirming the district court’s denial of class certification.
Those grounds were that the plaintiffs failed to show
common issues would predominate over individual questions,
or that a class action would be superior to individual
litigation. Riffey v. Rauner, 873 F.3d 558, 569 (7th Cir. 2017)
(Manion, J., concurring), vacated and remanded for further consideration,
138 S. Ct. 2708 (2018); Fed. R. Civ. P. 23(b)(3).
Nevertheless, I continue to disagree with two of the district
court’s other bases for denying certification. First, the district
court concluded that not all the potential class members
suffered a First Amendment injury when their money was
seized without their affirmative consent, because some might
not have been opposed to the fair-share fees. But silence, in
this context, is not golden. The injury occurs in extracting fees
without first obtaining affirmative consent. C.f. Janus, 138 S.
Ct. at 2486 (holding that waiver of the First Amendment rights
at stake when a state or union extracts agency fees from nonmember
employees “cannot be presumed,” and such waiver
is not effective “[u]nless employees clearly and affirmatively
consent before any money is taken from them”) (emphasis
added). Thus, this injury is suffered regardless of whether the
non-member employee opposed supporting the union
12 No. 16-3487
through fair-share fees, so long as he or she had no opportunity
to express consent to such fees.
Second, the district court concluded that the named plaintiffs
were not adequate representatives because there exists
disharmony within the proposed class due to potentially differing
views in support of or opposition to the union. Any
such disharmony, however, does not defeat the maintenance
of a class because it does not affect the matter in controversy:
the extraction of fair-share fees without affirmative consent. A
potential plaintiff’s support of, indifference to, or hostility toward
the union has no bearing on his or her entitlement to a
refund of money taken without affirmative consent.
For these reasons and the reasons stated in my original
concurrence, I believe the district court was incorrect in reaching
its conclusions on these two issues. See Riffey, 873 F.3d at
566–70 (Manion, J., concurring).

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: The right to work movement is a right to make workers poorer.

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