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Durst v. OEA

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Durst v. OEA
Case number: 21-609
Status: Closed
Important dates
Filed: June 11, 2019
District court decision:
March 31, 2020
Appeals court decision:
July 29, 2021
Supreme Court decision:
Jan. 10, 2022
District court outcome
Public-sector unions cannot be held liable for refunding union dues after union membership withdrawal if there is a pre-existing agreement for fees deduction throughout a given time period.
Appeals court outcome
The Ninth Circuit affirmed the district court's ruling.
Supreme Court outcome
Certiorari denied.

This case is one of over a hundred public-sector union lawsuits Ballotpedia tracked following the U.S. Supreme Court's 2018 decision in Janus v. AFSCME. These pages were updated through February 2023 and may not reflect subsequent case developments. For more information about Ballotpedia's coverage of public-sector union policy in the United States, click here. Contact our team to suggest an update.

Durst v. OEA was decided by the U.S. Court of Appeals for the Ninth Circuit on July 29, 2021. The Ninth Circuit affirmed the U.S. District Court for the District of Oregon's March 2020 dismissal of the case. The plaintiffs initially filed a claim that challenged the constitutionality of union fee deduction agreements, made prior to the U.S. Supreme Court's 2018 ruling in Janus v. AFSCME, allowing continued fee deductions throughout a given time, regardless of membership status. The plaintiffs requested an injunction against enforcement of the above agreements, nominal and compensatory damages in the amount of union fees deducted since each member attempted resignation plus interest, costs, and attorney’s fees.[1][2][3][4][5][6]

The plaintiffs, along with public-sector workers in three other lawsuits, filed a joint petition for a writ of certiorari to the Supreme Court, which was denied on January 10, 2022.[7]

HIGHLIGHTS
  • The parties to the suit: The plaintiffs were Jeremy Durst, Michael Garcie, and Deanne Tanner. The defendants were the Oregon Education Association, the Southern Oregon Bargaining Council Eagle Point Education Certified and Classified Employees, the Eagle Point School District 9, the Portland Association of Teachers, and the Portland Public Schools/Multnomah County School District Number 1.
  • The issue: In light of Janus v. AFSCME, can public-sector unions be held liable for refunding union dues after union membership withdrawal if there is a pre-existing agreement for fees deduction throughout a given time period, regardless of membership status?
  • The presiding judges: Judge Michael McShane presided over the district court proceedings. A three-judge panel—Senior Judge Mary Schroeder, Senior Judge Barry Silverman, and Judge Mary Murguia—presided over the case in the Ninth Circuit.
  • The outcome: The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Oregon's dismissal of the case. The Supreme Court denied review.

    • Procedural history

    The plaintiffs were Jeremy Durst, Michael Garcie, and Deanne Tanner. They were represented by attorneys from the Freedom Foundation. The defendants were the Oregon Education Association, the Southern Oregon Bargaining Council Eagle Point Education Certified and Classified Employees, the Eagle Point School District 9, Portland Association of Teachers, and the Portland Public Schools/Multnomah County School District Number 1. They were represented by attorneys from Swanson, Thomas, Coon & Newton and Altshuler Berzon LLP.[1][2]

    Below is a brief procedural history of the lawsuit:[1][2][3][4][5][6][7]

    • June 11, 2019: The plaintiffs in Durst v. OEA first filed their lawsuit on June 11, 2019, in the U.S. District Court for the District of Oregon. The plaintiffs initially filed a claim that challenged the constitutionality of union fee deduction agreements, made prior to Janus v. AFSCME, allowing continued fee deductions throughout a given time, regardless of membership status. The plaintiffs requested an injunction against enforcement of the above agreements, nominal and compensatory damages in the amount of union fees deducted since each member attempted resignation plus interest, costs, and attorney’s fees.
    • August 16, 2019: The defendants filed an answer to the plaintiffs’ complaint.
    • March 31, 2020: The district court issued an order in favor of the defendants, dismissing the plaintiffs’ claim.
    • April 30, 2020: An appeal was docketed with the U.S. Court of Appeals for the Ninth Circuit.
    • July 29, 2021: The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's ruling.
    • October 22, 2021: The plaintiffs, along with public-sector workers in three other lawsuits, filed a joint petition for a writ of certiorari to the U.S. Supreme Court.
    • January 10, 2022: The Supreme Court denied review of the case.

    For a list of available case documents, click here.

    Decision

    District court ruling

    On March 31, 2020, Judge Michael McShane issued an order in favor of the defendants, dismissing the plaintiffs’ claim. McShane wrote the following in the court's opinion:[4]

    “

    The authorization agreements explicitly confirmed that Plaintiffs would pay dues for the entire academic year (and could only opt-out of paying future dues during a specified one-month time period). Id. at Ex. 3; Ex. 10; Ex. 14. None of the Plaintiffs here were required to join the union as a condition of employment. Id. at ¶ 4. By joining the union, Plaintiffs received “membership rights and access to members-only benefits not available to non-members.” Id. at 7.

    This Court joins every other court to consider the issue in concluding that Janus is inapplicable to situations where an employee chooses to join a union, authorizes dues deductions over an entire academic year, receives union benefits not available to nonmembers, and then later attempts to cancel deductions outside of the opt-out period they earlier agreed to. [...]

    Requiring Plaintiffs to honor the earlier, voluntary opt-out agreement did not violate Plaintiffs’ First Amendment rights merely because Plaintiffs later chose to revoke their memberships outside of the previously agreed upon opt-out period. See N.L.R.B. v. U.S. Postal Serv., 827 F.2d 548, 554 (9th Cir. 1987) (upholding similar opt-out agreement after member revoked membership and noting “A party’s duty to perform even a wholly executory contract is not excused merely because he decides that he no longer wants the consideration for which he has bargained.”). Because Plaintiffs voluntarily agreed to the deductions, the deductions did not violate Plaintiffs’ First Amendment rights. Plaintiffs’ claim for nominal damages, therefore, fails on the merits. [8]

    		”
    —Judge McShane

    McShane was appointed by President Barack Obama (D).

    Appellate court ruling

    On July 29, 2021, a three-judge panel—Senior Judge Mary Schroeder, Senior Judge Barry Silverman, and Judge Mary Murguia—affirmed the district court's dismissal of the case. The court's memorandum said:[5]

    “

    The district court properly granted summary judgment on plaintiffs’ claims for prospective relief because such claims are moot. See Bain v. Cal. Teachers Ass’n ... (finding plaintiffs’ claims for prospective relief moot when they resigned their union membership and presented no reasonable likelihood that they would rejoin the union in the future).

    Summary judgment was proper on plaintiffs’ First Amendment claims against Oregon Education Association, Southern Oregon Bargaining Council Eagle Point Education Certified and Classified Employees, and Portland Association of Teachers because the deduction of union membership dues arose from private membership agreements between the parties, and “private dues agreements do not trigger state action and independent constitutional scrutiny.” Belgau, v. Inslee ... (discussing state action).

    Summary judgment was proper on plaintiffs’ First Amendment claim against Eagle Point School District 9 and Portland Public Schools/Multnomah County School District Number 1 because plaintiffs affirmatively consented to the voluntary deduction of union dues, and the Supreme Court’s decision in Janus v. American Federation of State, County & Municipal Employees, Council 31 ... did not extend a First Amendment right to avoid paying union dues that were agreed upon under validly entered membership agreements. See Belgau.[8]

    		”

    President Jimmy Carter (D) nominated Schroeder to the court, President Bill Clinton (D) nominated Silverman, and President Barack Obama (D) nominated Murguia.

    Supreme Court petition

    On October 22, 2021, the plaintiffs, along with public-sector workers in three other lawsuits, filed a joint petition for a writ of certiorari to the U.S. Supreme Court. The petition stated:[9]

    “

    Petitioners are public employees in the States of California and Oregon who exercised their FirstAmendment rights to resign their union memberships, revoke their authorizations for their public employers to withhold further union payments from their wages after they became nonmembers, and object to subsidizing union speech. The respondent government employers and unions ignored petitioners’ revocations and continued seizing payments for union speech from these objecting nonmembers until an escape period (contained in their dues deduction authorizations) for stopping union deductions occurred.

    [...]

    "In some ways, escape-period requirements are worse than the agency fee law Janus held unconstitutional. Illinois’s law required government employers to deduct from nonconsenting employees’ wages reduced union fees that excluded monies used for some political purposes. 138 S. Ct. at 2486. California’s and Oregon’s post-Janus revocation law requires that governments deduct full union dues, including monies used for partisan political purposes, from employees who resign and object to these seizures outside an annual revocation period. Cal. Educ. Code § 45060; Or. Rev. Stat. 243.806 (App.40-41, 78-82). For employees who do not want to support union expressive activities, escape-period restrictions can be more harmful to their speech rights than the “agency shop” requirement Janus struck down.[8]

    		”

    The Supreme Court denied the petition on January 10, 2022.[7]

    Legal context

    Janus v. AFSCME (2018)

    See also: Janus v. AFSCME

    On June 27, 2018, the Supreme Court of the United States issued a 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), ruling that public-sector unions cannot compel non-member employees to pay fees to cover the costs of non-political union activities.[10]

    This decision overturned precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the high 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.[10]

    Justice Samuel Alito authored the opinion for the court majority in Janus, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. Alito wrote, "Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled."[10]

    Related litigation

    To view a complete list of the public-sector labor lawsuits Ballotpedia tracked between 2019 and 2023, click here.

    Number of federal lawsuits by circuit

    Between 2019 and 2023, Ballotpedia tracked 191 federal lawsuits related to public-sector labor laws. The chart below depicts the number of suits per federal judicial circuit (i.e., the jurisdictions in which the suits originated).

    Public-sector labor lawsuits on Ballotpedia

    See also: Public-sector union policy in the United States, 2018-2023

    Click show to view a list of cases with links to our in-depth coverage.

    v • e
    Public-sector labor lawsuits
    Federal lawsuits

    Adams v. Teamsters Union Local 429 • Akers v. Maryland State Education Association • Aliser v. SEIU California • Allen v. Ohio Civil Service Employees Association • Allen v. Santa Clara County Correctional • Anderson v. SEIU Local 503 • Babb v. California Teachers Association • Baisley v. International Association of Machinists and Aerospace Workers • Belgau v. Inslee • Bennett v. AFSCME • Bermudez v. SEIU Local 521 • Bierman v. Dayton • Boudreaux v. Louisiana State Bar • Boyle v. SEIU California • Brice v. California Faculty Association • California v. Azar • Campos v. Fresno Deputy Sheriff’s Association • Carey v. Inslee • Casanova v. IAM Local 701 • Chandavong et al. v. Fresno Deputy Sheriff's Association et al. • Cook v. Brown • Cooley v. California Statewide Law Enforcement Association • Crowe v. Oregon State Bar • Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados • Danielson v. Inslee • Diamond v. Pennsylvania State Education Association • Doughty v. State Employees Association of New Hampshire, SEIU, Local 1984 • Durst v. OEA • Few v. United Teachers Los Angeles • File v. Hickey • Fischer v. Murphy • Fisk v. Inslee • Fizer v. Ohio Association of Public School Employees • Fleck v. Wetch • Grega v. Council of New Jersey State College Locals • Grossman v. Hawaii Government Employees Association • Gruber v. Oregon State Bar • Guppy v. City of Los Angeles • Halloran v. AFSCME Council 5 • Hamidi v. SEIU • Hannay v. Kent State • Hartnett v. Penn. State Education Association • Hendrickson v. AFSCME Council 18 • Hernandez v. AFSCME California • Hoekman v. Education Minnesota • Hough v. SEIU Local 521 • Imhoff v. California Teachers Association • Jackson v. Napolitano • James v. SEIU Local 688 • Janus v. AFSCME • Jarchow v. Wisconsin • Kabler v. United Food and Commercial Workers Union, Local 1776 Keystone State • Wenzig v. SEIU Local 668 • Kopie v. International Federation of Professional and Technical Employees • Kurk v. Los Rios Classified Employees Association • Lamberty et al. v. Connecticut State Police Union et al. • LaSpina v. SEIU Pennsylvania State Council • Lee v. Ohio Education Association • Leitch v. AFSCME • Littler v. Ohio Association of Public School Employees • Loescher v. Teamsters Local 320 • Lutter v. JNESO • Mandel v. SEIU Local 73 • Marsh v. AFSCME Local 3299 • Martin v. California Teachers Association • Masuo v. AFSCME AFL-CIO • Matthews v. United Teachers of Los Angeles • Mattos v. AFSCME Council 3 • Mayer v. Wallingford-Swathmore School District • McCain v. Ventura County Federation of College Teachers, AFT Local 1828 • McCollum v. NEA-Alaska • McCutcheon v. CWA Local 7076 • McDonald v. Firth • Mendez v. CTA • Miller v. Inslee • Misja v. PSEA • Molina v. SEIU Local 668 • Mooney v. Illinois Education Association • Nearman v. SEIU Local 503 • Neely v. AFSCME Council 13 • Nguyen v. Admin. and Residual Employees Union • Nichols v. Home Care Providers Union • O'Callaghan v. Drake • Ochoa v. Public Consulting Group • Ocol v. Chicago Teachers Union • Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11 • Oliver v. SEIU Local 668 • Pellegrino v. New York State United Teachers • Penning v. SEIU Local 1021 • Polk v. Yee • Popp v. ALPAI • Piekarski v. AFSCME Council 5 • Quirarte v. UDW AFSCME Local 3930 • Reisman v. Associated Faculties of the University of Maine • Rizzo-Rupon v. International Association of Machinists and Aerospace Workers, District Lodge 141 • Routh v. Inslee • Schaszberger v. AFSCME Council 13 • Schell v. Oklahoma Supreme Court Justices • Schumaker v. Inslee • Seager v. UTLA • Seidemann v. Professional Staff Congress • Smith v. AFSCME Council No. 8 • Smith v. New Jersey Education Association • Smith v. Bieker • Solomon v. AFSCME District Council 37 • Stroeder v. Service Employees International Union, Local 503 • Sweeney v. Raoul • Sweet v. California Association of Psychiatric Technicians • Taylor v. Heath • Thompson v. AFSCME Council 89, Local 4013 • Thompson v. Marietta Education Association • Thulen v. AFSCME • Uradnik v. Inter Faculty Org. • Utke v. University of Connecticut American Association of University Professors • Weyandt v. PSCOA • Wholean v. CSEA SEIU Local 2001 • Wilford v. National Education Association • Williams v. PSEA • Wolf v. University Professional & Technical Employees • Yates v. Hillsboro Unified School District • Yohn v. California Teachers Association

    See also

    External links

    Case documents

    Supreme Court

    Appellate court

    Trial court

    Footnotes

    1. ↑ 1.0 1.1 1.2 PacerMonitor, “Durst et al v. Oregon Education Association et al,” accessed May 15, 2020
    2. ↑ 2.0 2.1 2.2 PacerMonitor, “Jeremy Durst, et al v. Oregon Education Association, et al,” accessed May 15, 2020
    3. ↑ 3.0 3.1 Freedom Foundation, “Durst v. OEA: Complaint,” June 11, 2019
    4. ↑ 4.0 4.1 4.2 PacerMonitor, “Durst v. OEA: Opinion and Order,” March 31, 2020
    5. ↑ 5.0 5.1 5.2 PacerMonitor, "Memorandum," July 29, 2021
    6. ↑ 6.0 6.1 Supreme Court of the United States, "No. 21-609," accessed October 27, 2021
    7. ↑ 7.0 7.1 7.2 Supreme Court of the United States, "Order List: 595 U.S.," January 10, 2022
    8. ↑ 8.0 8.1 8.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    9. ↑ Supreme Court of the United States, "Joint petition for writ of certiorari," October 22, 2021
    10. ↑ 10.0 10.1 10.2 Supreme Court of the United States, Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., June 27, 2018
    v • e
    Public-sector union policy in the United States
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