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Penning v. SEIU Local 1021

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Penning v. SEIU Local 1021
Case number: 0:20-cv-15226
Status: Closed
Important dates
Filed: June 21, 2019
District court decision:
Jan. 16, 2020
Appeals court decision:
Oct. 26, 2021
District court outcome
The district court ruled that public-sector unions cannot be required to refund agency fees paid prior to Janus v. AFSCME.
Appeals court outcome
A three-judge panel of the Ninth Circuit affirmed the district court's ruling.

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.

Penning v. SEIU Local 1021 was decided by the U.S. Court of Appeals for the Ninth Circuit on October 26, 2021. A three-judge panel affirmed the U.S. District Court for the Northern District of California's January 2020 dismissal of the case. Following the U.S. Supreme Court's 2018 ruling in Janus v. AFSCME, the plaintiff filed a class-action complaint seeking a refund of all agency fees collected prior to the ruling. In Janus, the Supreme Court held that public-sector unions cannot require non-members to pay fees to support unions' non-political activities.[1][2][3][4][5]

HIGHLIGHTS
  • The parties to the suit: The plaintiff was Stacy Penning, a San Francisco Public Utilities Commission employee. The defendants were the Service Employees International Union Local 1021 and the Service Employees International Union.
  • The issue: Can public-sector unions be held liable for refunding agency fees paid prior to the Supreme Court's ruling in Janus v. AFSCME, which held that such fees are unconstitutional?
  • The presiding judges: Judge Yvonne Gonzalez Rogers presided over the district court proceedings. A three-judge panel—U.S. Circuit Judges Bridget S. Bade and Patrick Bumatay, and U.S. District Judge William K. Sessions—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 Northern District of California's dismissal of the suit.

    • Procedural history

    The plaintiff was Stacy Penning, a San Francisco Public Utilities Commission employee. He was represented by counsel from Clark Hill. The defendants were the Service Employees International Union Local 1021 and the Service Employees International Union, represented by counsel from Weinberg, Roger & Rosenfeld and Altshuler Berzon LLP.[1][2]

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

    • June 21, 2019: The plaintiff, Stacy Penning, filed a class-action complaint on June 21, 2019, in the U.S. District Court for the Northern District of California.
    • September 9, 2019: The defendants responded to the plaintiff’s complaint with a motion to dismiss.
    • October 28, 2019: The plaintiff filed an opposition to the defendants’ motion to dismiss,
    • January 16, 2020: The district court granted the defendants’ motion to dismiss
    • February 13, 2020: An appeal was docketed with the U.S. Court of Appeals for the Ninth Circuit.
    • October 26, 2021: A three-judge panel of the Ninth Circuit affirmed the district court's ruling.

    For a list of available case documents, click here.

    Decision

    District court decision

    On January 16, 2020, Judge Yvonne Gonzalez Rogers issued an order granting the defendants’ motion to dismiss the plaintiff’s claim. Rogers wrote the following in the court's opinion:[4]

    “

    Plaintiff’s claims for prospective relief fail because they are moot. All fair-share fee deductions from plaintiff and the putative class members ceased when the United States Supreme Court issued its decision in Janus, i.e. nearly one year before plaintiff filed his complaint. Accordingly, there is no reasonable likelihood of such deductions recurring since Janus declared them unconstitutional. [...]

    With respect to the claims for repayment of fair-share fees previously deducted before Janus, the good faith doctrine precludes such relief under section 1983. [...]

    Finally, with respect to plaintiff’s claims for retrospective relief under state law, such claims are preempted by the Meyers-Milias-Brown Act, Cal. Gov’t Code §§ 3500-11, and barred by California Government Code § 1159. [...]

    Because the Court finds all of plaintiff’s claims must be dismissed as a matter of law and any amendment would be futile, no leave to amend is permitted.[6]

    		”

    Rogers was nominated to the court by President Barack Obama (D).

    Appellate court decision

    On October 26, 2021, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit—U.S. Circuit Judges Bridget S. Bade and Patrick Bumatay, and U.S. District Judge William K. Sessions—affirmed the district court's ruling. The panel said:[5]

    “

    The district court properly dismissed Penning’s First Amendment claim, as it is established law in this Circuit that a public sector union may “invoke an affirmative defense of good faith to retrospective monetary liability under section 1983” for agency fees it collected prior to the Supreme Court’s decision in Janus v. American Federation of State, County & Municipal Employees, Council 31 [...]

    Penning’s claim for prospective declaratory relief is moot. ... When the Supreme Court issued Janus, Penning’s union immediately stopped collecting agency fees from non-union members. Shortly thereafter, the California Attorney General issued an advisory opinion explaining that the state “may no longer automatically deduct a mandatory agency fee from the salary or wages of a non-member public employee who does not affirmatively choose to financially support the union.” Similarly, the state administrative agency that enforces public employment collective bargaining statutes stated that it “will no longer enforce existing statutory or regulatory provisions requiring non-members to pay an agency fee without having consented to such a fee.” Accordingly, it is clear that the conduct found unconstitutional in Janus has ceased and “could not reasonably be expected to recur.” [...]

    That the California statutes governing agency fees have not been repealed does not revive Penning’s claims. Unconstitutional statutes, without more, give no one a right to sue. [...]

    The district court also properly dismissed Penning’s state law claims. Collection of agency fees was permitted by the Meyers-Milias-Brown Act, California Government Code § 3508.5. Penning’s common law claims, asserting conversion and seeking restitution for such collection, are inconsistent with the statute. ... Furthermore, the common law claims are preempted.[6]

    		”

    Bade and Bumatay were nominated to the Ninth Circuit by President Donald Trump (R). Sessions was nominated to the U.S. District Court for the District of Vermont by President Bill Clinton (D) and sat on the Ninth Circuit panel by designation.

    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.[7]

    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.[7]

    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."[7]

    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

    Appeals court

    Trial court

    Footnotes

    1. ↑ 1.0 1.1 1.2 PacerMonitor, “Penning v. Service Employees International Union, Local 1021 et al,” accessed August 1, 2020
    2. ↑ 2.0 2.1 2.2 PacerMonitor, “Stacy Penning v. SEIU Local 1021, et al,” accessed August 1, 2020
    3. ↑ 3.0 3.1 PacerMonitor, "Plaintiff’s Class-Action Complaint," June 21, 2019
    4. ↑ 4.0 4.1 4.2 PacerMonitor, "Order Granting Motion to Dismiss; Granting Leave to File Statements of Recent Decision," January 16, 2020
    5. ↑ 5.0 5.1 5.2 PacerMonitor, "Memorandum," October 26, 2021
    6. ↑ 6.0 6.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    7. ↑ 7.0 7.1 7.2 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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