First Circuit: New Hampshire workers not entitled to refunds for previously paid union fees

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On Nov. 30, a three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that public-sector unions are not liable for refunding fees paid by non-members before Janus v. AFSCME.

Parties to the lawsuit  

The plaintiffs are Patrick Doughty and Randy Severance, New Hampshire state workers. Attorneys from the National Right to Work Legal Defense Foundation represent the plaintiffs. The defendant is the State Employee's Association of New Hampshire (SEA). 

What's at issue, and how the lower court ruled

On Jan. 14, 2019, Doughty and Severance filed a class-action lawsuit against SEA in the U.S. District Court for the District of New Hampshire. Doughty and Severance alleged that SEA had violated their First and Fourteenth Amendment rights "not to associate with or financially support a labor organization and its affiliates as a condition of employment, without their affirmative consent and knowing waiver of their First Amendment rights." They asked that the court order SEA to refund all agency fees that they and others (i.e., non-member employees) had paid before Janus v. AFSCME. 

The plaintiffs cited 42 U.S.C. § 1983, a federal statute establishing that any person who, "under color of any statute, ordinance, regulation, custom, or usage, of any state or territory," deprives a U.S. citizen of his or her constitutional rights can be held liable in a court of law. 

SEA moved to dismiss the suit.  On June 6, 2019, Judge Paul Barbadoro, a George H.W. Bush (R) appointee, granted SEA's motion to dismiss, ruling that SEA had deducted the disputed fees in good faith under the then-controlling precedent established by Abood v. Detroit Board of Education. 

About Janus and Abood: On June 27, 2018, the U.S. Supreme Court  issued its 5-4 decision in Janus v. AFSCME, ruling that public-sector unions cannot compel the non-member employees they represent to pay fees to cover the costs of non-political union activities. This decision overturned the precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the U.S. Supreme Court held that it was not a violation of employees' free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees

How the First Circuit ruled

On Nov. 30, the three-judge panel unanimously upheld the lower court's decision. Writing for the court, Judge David Barron, a Barack Obama (D) appointee, said: 

[A]lthough Doughty and Severance assert that their claim for damages seeks to vindicate their First Amendment right against compelled speech and association and that this right provides protection from harm that the common law itself did not, they ignore the unusual nature of their attempt to secure relief for the violation of that constitutional right. They thus develop  no argument -- nor does any occur to us -- why close attention to the values and purposes of the First Amendment right against compelled speech and association supports the conclusion that the Congress that enacted § 1983 must have meant to create a claim for damages for its retroactive violation when the violation results in payments made pursuant to a lawful-when-invoked, state-backed process.

Judges Jeffrey R. Howard and O. Rogeriee Thompson, George W. Bush (R) and Obama (D) appointees, respectively, joined Barron's opinion.

What comes next?

Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said his group would appeal the decision to the U.S. Supreme Court.  

The case  name and number are Doughty v. State Employees' Association of New Hampshire (19-1636).