BOSTON (CN) — Although the First Circuit is the latest to join the chorus of courts that have barred public employees from clawing back old union dues, it appears that cases raising the issue are unlikely to go away soon.
The Supreme Court opened the floodgates to such litigation with its 2018 ruling that found compulsory dues-paying rules for public sector unions violated employees’ First Amendment rights. The holding reversed a contrary decision from 1977, but the court didn’t say whether employees could get a retroactive refund for dues paid prior to 2018.
If they could do so, “a lot of unions could owe millions of dollars and be bankrupted and put out of business,” said Ann Hodges, a professor emerita at the University of Richmond School of Law who has written about the issue.
To date only two federal judges have approved retroactivity, but at least 20 U.S. District Courts have thrown out such claims, leading to unsuccessful appeals at the Second, Third, Sixth, Seventh and Ninth Circuits.
The First Circuit joined this legion on Monday, but Hodges said the cases will likely continue to be filed because conservative foundations such as the National Right to Work Legal Defense Foundation are well-funded and see a collateral benefit to bringing the cases.
“As long as unions have to spend their resources to fight these cases, that’s money that they can’t use to represent workers or for political activity,” the law professor noted in an interview Tuesday.
“So the First Circuit ruling is one more nail in the coffin, but it’s unlikely to be the last nail.”
The National Right to Work Legal Defense Foundation will appeal the First Circuit decision to the Supreme Court, said its vice president, Patrick Semmens. Four other petitions before the high court are already pending, he added.
In the First Circuit case, lead plaintiffs Patrick Doughty and Randy Severance filed suit just a few months after the Supreme Court’s decision in Janus v. AFSCME. The two New Hampshire workers sued under an 1871 civil rights law that allows private organizations to be held liable for violating someone’s constitutional rights.
The question was whether the union could defend itself by arguing that it relied in good faith on existing law at the time.
There’s no good-faith exception written into the 1871 law, argued attorney Frank Garrison of the National Right to Work Legal Defense Foundation. “If Congress wants it, it should create it,” he told the court at oral argument.
But U.S. Circuit Judge David Barron, an Obama appointee, wrote for a unanimous panel that the 1871 law created a cause of action that was similar to common-law torts and most analogous tort claims would have provided a good-faith defense.
Beyond the legal principles, however, Barron seemed to think the idea of retroactivity was simply unfair. He quoted at length the lower-court judge in this case, Paul Barbadoro, who had a strong opinion on the matter.
"How in any version of the world,” Barbadoro asked, would it be right to require unions to pay damages for "behavior was entirely constitutional at the time they engaged in it"?
"One of the reasons that judges express their views in written opinions is so that people can rely on" them, Barbadoro continued, and it would be "arrogant in the extreme" and “incomprehensible” to allow organizations to be sued in cases where all of a sudden "judges flip 180 degrees on the law."
Even Charles Baird, a California State University economist who has written a number of articles in support of the Janus decision, said he agrees that applying it retroactively “seems unreasonable.”
Although Hodges expects more suits on the issue, she said that after the First Circuit ruling the foundations are running out of circuits. The Fifth and 11th Circuits won’t rule on the issue because all the states in those circuits are right-to-work states, she noted.
Typically, the Supreme Court wouldn’t address the question without a circuit split, she said, although she added that that wouldn’t stop the justices if they felt strongly enough about it. “There obviously wasn’t a circuit split before Janus,” she observed.
The legal issue applies only to public-sector workers, since employees of private companies are not covered in the same way by the First Amendment.
The First Circuit decision was joined by U.S. Circuit Chief Judge Jeffrey Howard, a George W. Bush appointee, and U.S. Circuit Judge O. Rogeriee Thompson, who was appointed by President Obama.
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