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Non-Union Workers Can’t Get Fair-Share Fee Refund After Janus

Nov. 5, 2019, 10:38 PM

Government employees can’t recover the union fees they paid before the U.S. Supreme Court ruled that the fees are unconstitutional, the Seventh Circuit ruled in a pair of cases Nov. 5.

In its 2018 Janus v. AFSCME decision, the Supreme Court overturned its earlier ruling that let public-sector unions collect agency fees from non-members to help cover the cost of collective bargaining.

Plaintiff Mark Janus sought a refund of the fees he paid under protest.

But the appeals court found he isn’t entitled to a refund.

The Supreme Court didn’t specify whether it intended for its decision to have retroactive effect, the Seventh Circuit said.

AFSCME had a legal right to charge fair-share fees collected from nonmembers until Janus, the court said.

“Mr. Janus has received all that he is entitled to: declaratory and injunctive relief, and a future free of any association with a public union,” it said.

In another decision issued the same day, the Seventh Circuit rejected Stacey Mooney’s argument that she’s entitled to a refund as restitution for the fees she paid before Janus.

“In substance Mooney is also seeking damages, and so her claim must fail,” the court said.

Chief Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit wrote the opinions. Judge Ilana D. Rovner joined the opinions.

Judge Daniel A. Manion wrote separate concurrences in both cases to argue the Supreme Court recognized that unions received a huge windfall for 41 years by collecting service fees but it implied unions need not disgorge this windfall.

National Right to Work Legal Defense Foundation and Liberty Justice Center represented Janus. Mitchell Law PLLC represented Mooney.

Bredhoff & Kaiser PLLC represented the unions.

The cases are Janus v. AFSCME, 7th Cir., No. 19‐1553, 11/5/19 and Mooney v. Ill. Educ. Ass’n, 7th Cir., No. 19-1774, 11/5/19.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com