United States District Court, S.D. New York
DAVID SEIDEMANN and BRUCE MARTIN, individually and on behalf of all others similarly situated, Plaintiffs,
PROFESSIONAL STAFF CONGRESS LOCAL 2334; FACULTY ASSOCIATION OF SUFFOLK COUNTY COMMUNITY COLLEGE; UNITED UNIVERSITY PROFESSIONS, FARMINGDALE STATE COLLEGE CHAPTER; NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES; AMERICAN FEDERATION OF TEACHERS; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS COLLECTIVE BARGAINING CONGRESS; and NEW YORK STATE UNITED TEACHERS, Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge
David Seidemann and Bruce Martin bring this putative class
action against Defendants Professional Staff Congress Local
2334 (“PSC”), American Federation of Teachers
(“AFT”), American Federation of Labor and
Congress of Industrial Organizations (“AFL-CIO”),
American Association of University Professors Collective
Bargaining Congress (“AAUPCBC”), New York State
United Teachers (“NYSUT”), National Education
Association of the United States (“NEA”), Faculty
Association of Suffolk County Community College
(“FASCCC”), and United University Professions,
Farmingdale State College Chapter (“UUP”). Prior
to the Supreme Court's decision in Janus v.
American Federation of State, County, and Municipal
Employees, Council 31, 138 S.Ct. 2448 (2018), Plaintiffs
were required to pay agency shop fees to the unions that
represented their respective places of employment, in
compliance with New York Civil Service Law § 208 and as
authorized by Abood v. Detroit Board of Education,
431 U.S. 209 (1977). Plaintiffs now allege that they are
entitled to the return of all agency shop fees previously
paid, raising constitutional claims under 42 U.S.C. §
1983 and common-law claims for conversion and unjust
enrichment. Additionally, Plaintiffs seek a declaratory
judgment stating that both compulsory agency shop fees and
New York State laws that authorize them are unconstitutional,
as well as an injunction against the collection of those
fees. Defendants move to dismiss Plaintiffs' suit in its
entirety under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). For the reasons set forth in the remainder of this
Opinion, Defendants' motion to dismiss is granted.
stating the facts of this case, it is necessary to understand
the legal backdrop to Plaintiffs' claims. In 1977, the
Supreme Court addressed whether unions could compel
non-members that they nevertheless represented to pay service
fees pursuant to an “agency shop” clause; such
fees are known colloquially as agency shop fees. See
Abood v. Detroit Bd. of Ed., 431 U.S. 209, 212 (1977).
In a unanimous opinion, the Supreme Court held that such fees
were constitutional insofar as they were spent in advancement
of the union's duties as collective-bargaining
representative, but that they could not be spent on political
or ideological causes over the objection of the represented
employee. See id. at 235-36. This remained the law
of the land for decades, albeit with sporadic warnings in
dicta about its potential infirmity, see,
e.g., Harris v. Quinn, 573 U.S. 616, 635-38
(2014), and states such as New York enacted statutes in
reliance on Abood's holding, see N.Y.
Civ. Serv. L. § 208(3) (McKinney 2019). In June 27,
2018, however, the Court expressly overruled Abood
and declared all agency shop fees in the public employment
setting to be Civ. 5082 (AJN), 2014 WL 4804479, at *1
(S.D.N.Y. Sept. 25, 2014) (“[T]he Court does not rely
on factual assertions made for the first time in
Plaintiff's opposition brief … as it is axiomatic
that the Complaint cannot be amended by briefs in opposition
to a motion to dismiss.” (internal citations and
quotation marks omitted)), aff'd, 614 Fed.Appx.
32 (2d Cir. 2015) (summary order). The Court also draws
jurisdictional facts from the exhibits attached to the
Declaration of Deborah E. Bell in Support of Defendants'
Motion to Dismiss the Amended Complaint, referred to as the
“Bell Decl.” (Dkt. #89); the Declaration of Tina
M. George in Support of Defendants' Motion to Dismiss the
Amended Complaint, referred to as the “George
Decl.” (Dkt. #90); and the Declaration of Peter N.
DiGregorio in Support of Defendants' Motion to Dismiss
the Amended Complaint, referred to as the “DiGregorio
Decl.” (Dkt. #91). Defendants are permitted to present
extrinsic evidence showing lack of subject matter
jurisdiction on a motion brought under Federal Rule of Civil
Procedure 12(b)(1). See Carter v. HealthPort
Technologies, LLC, 822 F.3d 47, 57 (2d Cir. 2016). For
ease of reference, the Court refers to the parties'
briefing as follows: Defendants' opening brief as
“Def. Br.” (Dkt. #83); Plaintiffs' opposition
brief as “Pl. Opp.” (Dkt. #92); and
Defendants' reply brief as “Def. Reply” (Dkt.
#94). violative of the First Amendment. See Janus v. Am.
Fed'n of State, Cty., & Mun. Emps., Council 31,
138 S.Ct. 2448, 2459-60 (2018).
relevant times, Plaintiffs were college professors at public
educational institutions in New York. (Am. Compl.
¶¶ 1-2). David Seidemann was a professor at the
City University of New York (“CUNY”)
(id. at ¶ 1), while Bruce Martin was a
professor at both Suffolk County Community College
(“SCCC”) and Farmingdale State College
(“FSC”) (id. at ¶ 2). Both
plaintiffs thus qualified as “public employees”
for purposes of N.Y. Civ. Serv. Law § 208. As a faculty
member at CUNY, Seidemann was represented by Defendant PSC
and thus was required to pay agency shop fees to PSC,
portions of which were then forwarded to Defendants AFT,
AFL-CIO, AAUPCBC, and NYSUT. (Id. at ¶¶ 1,
3). Of note, however, Seidemann was never a member of PSC and
never affirmatively consented to pay agency shop fees.
(Id. at ¶ 1).
for his part, was represented by Defendant FASCCC in his
capacity as a professor at SCCC and by Defendant UUP in his
capacity as a professor at FSC, and thus was required to pay
agency shop fees to both organizations. (Am. Compl.
¶¶ 2, 4-5). Portions of these agency shop fees were
then forwarded to Defendants AFT, AFL-CIO, NEA, and NYSUT.
(Id. at ¶¶ 4-5). Like Seidemann, Martin
was never a member of either FASCCC or UPP, and never
affirmatively consented to pay agency shop fees.
(Id. at ¶ 2). All agency shop fees were paid
via a direct deduction from Plaintiffs' paychecks, as
authorized by N.Y. Civ. Serv. Law § 208(3).
(Id. at ¶ 13). Neither Seidemann nor Martin
alleges that he has been required to pay agency shop fees
since the Supreme Court's decision in Janus.
filed his initial complaint in this action on October 24,
2018, several months after Janus was issued;
initially, he named AAUPCBC, AFL-CIO, AFT, NYSUT, and PSC as
Defendants. (Dkt. #1). On January 11, 2019, Defendants asked
the Court for leave to file a motion to dismiss (Dkt. #46),
to which Seidemann responded on January 16, 2019 (Dkt. #47).
The parties appeared before the Court for a pre-motion
conference on January 31, 2019, during which time the Court
set a briefing schedule for the proposed motion to dismiss.
(Minute Entry of January 31, 2019). The Court then adjourned
that schedule after granting Seidemann's request of March
20, 2019, to file an amended class action complaint. (Dkt.
filed an Amended Complaint, joined by Martin, on April 12,
2019, in which the pair added FASCCC, NEA, and UUP as
Defendants. (Dkt. #65). Defendants filed their motion to
dismiss, along with an accompanying memorandum and numerous
declarations, on May 24, 2019. (Dkt. #82). Plaintiffs filed a
brief in opposition, along with a declaration, on June 21,
2019. (Dkt. #93). Defendants filed their reply brief on July
12, 2019. (Dkt. #94).
Motions to Dismiss Under Fed.R.Civ.P. 12(b)(1)
challenge Plaintiffs' request for an injunction and a
declaratory judgment as non-justiciable for reasons of
mootness. (See Def. Br. 1). The Court analyzes these
claims for equitable relief under the rubric of Rule
12(b)(1). See Platinum-Montaur Life Scis. LLC v. Navidea
Biopharmaceuticals, Inc., No. 17 Civ. 9591 (VEC), 2018
WL 5650006, at *2 (S.D.N.Y. Oct. 31, 2018) (citing All.
For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436
F.3d 82, 89 n.6 (2d Cir. 2006)) (“As the Second Circuit
has explained … standing challenges are jurisdictional
questions that are properly resolved under Rule
12(b)(1).”), vacated and remanded on other
grounds, 943 F.3d 613 (2d Cir. 2019).
12(b)(1) permits a party to move to dismiss a complaint for
“lack of subject-matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). “A case is properly dismissed
for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional
power to adjudicate it.” Lyons v. Litton Loan
Servicing LP, 158 F.Supp.3d 211, 218 (S.D.N.Y. 2016)
(quoting Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000)).
Second Circuit has drawn a distinction between two types of
Rule 12(b)(1) motions: (i) facial motions and (ii) fact-based
motions. See Carter v. HealthPort Technologies, LLC,
822 F.3d 47, 56-57 (2d Cir. 2016); see also Katz v. Donna
Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017). A
facial Rule 12(b)(1) motion is one “based solely on the
allegations of the complaint or the complaint and exhibits
attached to it.” Carter, 822 F.3d at 56. A
plaintiff opposing such a motion bears “no evidentiary
burden.” Id. Instead, to resolve a facial Rule
12(b)(1) motion, a district court must “determine
whether [the complaint and its exhibits] allege[ ] facts
that” establish subject matter jurisdiction.
Id. (quoting Amidax Trading Grp. v. S.W.I.F.T.
SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam)).
And to make that determination, a court must accept the
complaint's allegations as true “and draw[ ] all
reasonable inferences in favor of the plaintiff.”
Id. at 57 (internal quotation marks and citation
a defendant is permitted to make a fact-based Rule 12(b)(1)
motion, proffering evidence beyond the complaint and its
exhibits.” Carter, 822 F.3d at 57. “In
opposition to such a motion, [plaintiffs] must come forward
with evidence of their own to controvert that presented by
the defendant, or may instead rely on the allegations in
the[ir p]leading if the evidence proffered by the defendant
is immaterial because it does not contradict plausible
allegations that are themselves sufficient to show
standing.” Katz, 872 F.3d at 119 (internal
citations and quotations omitted). If a defendant supports
his fact-based Rule 12(b)(1) motion with “material and
controverted” “extrinsic evidence, ” a
“district court will need to make findings of fact in
aid of its decision as to subject matter jurisdiction.”
Carter, 822 F.3d at 57.
Motions to Dismiss Under Fed.R.Civ.P. 12(b)(6)
seek to dismiss the remainder of the Amended Complaint
pursuant to Rule 12(b)(6). When considering a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), a
court must “draw all reasonable inferences in
Plaintiff's favor, assume all well-pleaded factual
allegations to be true, and determine whether they plausibly
give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)
(internal quotation marks omitted); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plaintiff is entitled
to relief if he alleges “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (“While Twombly does not require
heightened fact pleading of specifics, it does require enough
facts to nudge plaintiff's claims across the line from
conceivable to plausible.” (internal quotation marks
omitted) (citing Twombly, 550 U.S. at 570)).
a complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 557). Moreover,
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
advance three principal arguments for dismissal: (i)
Plaintiffs' claims for prospective relief are moot due to
Defendants' undisputed compliance with Janus
since June 27, 2018; (ii) Plaintiffs' claims for a refund
under 42 U.S.C. § 1983 fail as a matter of law because
Defendants can rely on the good-faith defense; and (iii)
Plaintiffs' common-law claims also fail as a matter of
law on various grounds. (See Def. Br. 1-3). The
Court will address each argument in turn.
The Court Lacks Subject Matter Jurisdiction over
Plaintiffs' Claims for a Declaratory Judgment and
courts are courts of limited jurisdiction, “and lack
the power to disregard such limits as have been imposed by
the Constitution or Congress.” Platinum-Montaur
Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., 943
F.3d 613, 616 (2d Cir. 2019). Article III of the Constitution
“limits the jurisdiction of federal courts to
‘Cases' and ‘Controversies, '”
thereby “restrict[ing] the authority of federal courts
to resolving ‘the legal rights of litigants in actual
controversies.'” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 71 (2013) (internal quotation
marks omitted) (quoting Valley Forge Christian College v.
Americans for Separation of Church and State, Inc., 454
U.S. 471 (1982)). The “Case” and
“Controversy” requirement places the burden on
“those who invoke the power of a federal court to
demonstrate standing - a ‘personal injury fairly
traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested
relief.'” Already, LLC v. Nike, Inc., 568
U.S. 85, 90 (2013). A case ceases being a “Case”
or “Controversy” - or, in other words, becomes
moot - “when the issues presented are no longer
‘live' or the parties lack a legally cognizable
interest in the outcome.” Id. at 91. This is
the case “[n]o matter how vehemently the parties
continue to dispute the lawfulness of the conduct that
precipitated the lawsuit.” Id.
with Plaintiffs' pleadings, the Court observes that at no
point do Plaintiffs allege that Defendants have failed to
comply with the Supreme Court's decision in
Janus or that Plaintiffs have paid agency shop fees
following that decision. (See Am. Compl.
¶¶ 1-2 (stating only that Plaintiffs were required
to pay agency shop fees “prior to
Janus”)). Indeed, the only allegation of
continuing harm is a conclusory claim that Defendants
“continue to violate Plaintiffs' First Amendment
rights to free speech and association.” (Id.
at ¶ 33). Thus, given the absence of any plausible
allegation of present or future harm, Plaintiffs lack
standing on the face of the Amended Complaint alone. See
O'Neill v. Standard Homeopathic Co., 346 F.Supp.3d
511, 526 (S.D.N.Y. 2018) (noting that “Plaintiffs lack
standing to pursue injunctive relief where they are unable to
establish a ‘real or immediate threat' of
injury” (quoting Nicosia v. Amazon.com, Inc.,
834 F.3d 220, 239 (2d Cir. 2016))).
finding is only buttressed by Defendants' additional
evidence - which, as noted, the Court may properly consider
on a Rule 12(b)(1) motion. See Carter, 822 F.3d at
57. Specifically, Defendants have presented uncontroverted
evidence that all relevant entities - the Defendant Unions,
the Plaintiffs' employers, and the New York State
Comptroller's Office - immediately complied with
Janus by ceasing the deduction of agency shop fees
from Plaintiffs' paychecks and reimbursing to Plaintiffs
any fees that might have been deducted after June 27, 2018.
(See Bell Decl. ¶¶ 13-14, 16-17, 20- 21,
24; George Decl. ¶¶ 15-16, 18-19, 22; DiGregorio
Decl. ¶¶ 18-21, 24-25). Moreover, Defendants PSC,
FASCCC, and UUP have affirmed their conviction that compelled
agency shop fees in the public sector are no longer
constitutional in the wake of Janus (see
Bell Decl. ¶ 27; George Decl. ¶ 27; DiGregorio
Decl. ¶ 22), and that they have no intention of, and in
most cases are incapable of, resuming the deduction of agency
shop fees from Plaintiffs' paychecks (see Bell
Decl. ¶¶ 30-31; George Decl. ¶¶ 22, 29;
DiGregorio Decl. ¶ 23; see also Bell Decl., Ex.
3 (providing Payroll Bulletin No. 1660 from the New York
State Comptroller's Office, which notifies of the
cessation of all compelled agency shop fees in light of
Janus)). On this record, the Court cannot discern a
basis for Plaintiffs to assert Article III injury at the time
they filed this suit, or, in the alternative, why their
claims for prospective relief are not now moot.See Berman v.
N.Y. State Pub. Emp. Fed'n, No. 16 Civ. 204 (DLI)
(RLM), 2019 WL 1472582, at *3 (E.D.N.Y. Mar. 31, 2019)
(finding that claims based on pre-J ...