Janus v. AFSCME has opened the door for nonmember employees to sue unions for collecting fair share fees, and employees are taking action. As readers of this blog know, Janus holds that requiring employees to pay a fee to a union without the employee’s affirmative consent is a violation of the First Amendment. As discussed in our previous blog post, Nathaniel Ogle sued last year, on behalf of himself and others, to enjoin OCSEA from “requiring the payment of fair share fees as a condition of employment” and to collect damages for fair share fees collected before Janus was decided. OCSEA has responded by filing a Motion to Dismiss.
The Motion argues that Ogle cannot demonstrate an actual or imminent injury in fact, and therefore lacks standing to sue, because OCSEA “promptly complied” with Janus and did not receive any fair share fees from any employee “attributable to the time after Janus was decided.” According to OCSEA, Ogle cannot sue based on a now defunct law absent a “credible threat of enforcement.” OCSEA has responded to Ogle’s demand for the return of his fair share fees by raising “the good-faith defense to liability for damages available to private parties sued under 42 U.S.C. § 1983.” Here, OCSEA argues that it can presume statutes on the book are valid, even where nonbinding dicta critical of the statute’s constitutionality exist, without fear of being liable for damages. For those interested in reading more, Defendant’s Motion to Dismiss is here.
Plaintiff refutes OCSEA’s standing and good faith defense arguments in its Opposition to Defendant’s Motion to Dismiss. Here, Ogle argues that he has standing to sue so long as Ohio Rev. Code § 4117.09(C), the Ohio statute that allowed for the collection of “fair share fees” from nonmember employees, remains on the books. Plaintiff also claims that “OCSEA cannot invoke a good faith defense,” as no such defense exists for deprivation of First Amendment Rights under § 1983. For those interested in reading more, Plaintiff’s Opposition to Defendant’s Motion to Dismiss is here.