Seidemann v. Professional Staff Congress Local 2334

          OPINION AND ORDER

          KATHERINE POLK FAILLA, District Judge

         Plaintiffs 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.

         BACKGROUND^[1]

         A. Legal Background

         Before 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).

         B. Factual Background

         At all 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).

         Martin, 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.

         C. Procedural Background

         Seidemann 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. #60, 62).

         Seidemann 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).

         DISCUSSION^[2]

         A. Applicable Law

         1. Motions to Dismiss Under Fed.R.Civ.P. 12(b)(1)

         Defendants 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).

         Rule 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)).

         The 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 omitted).

         “Alternatively, 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.

         2. Motions to Dismiss Under Fed.R.Civ.P. 12(b)(6)

         Defendants 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)).

         “Where 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 suffice.” Id.

         B. Analysis

         Defendants 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.

         1. The Court Lacks Subject Matter Jurisdiction over Plaintiffs' Claims for a Declaratory Judgment and Injunctive Relief^[3]

         Federal 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.

         Starting 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))).

         This 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.^[4]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 ...