The Next Battle After Janus: Seeking Retroactive Fees

Rebecca Friedrichs is back. But for the death of Justice Scalia, everyone would be talking about “Friedrichs” instead of Mark Janus. But earlier this month, Friedrichs, along with several other teachers, filed a class-action lawsuit against the California Teachers Association and the National Education Association seeking to recoup the agency fees taken from them prior to the Janus decision. The case is titled Scott Wilford et al v. National Education Association (C.D. Cal. 8:18-cv-01169-JVS-ADS). The primary cause of action is for violation of plaintiffs’ constitutional rights under 42 U.S.C. 1983.

I think the plaintiffs have a tough road ahead of them. After the Supreme Court’s decision in Harris v. Quinn—which held that agency fees may not be taken from IHSS workers—a similar lawsuit was brought against the State of Washington and SEIU. (Hoffman v. Inslee (W.D. Wash. Oct. 20, 2016) 2016 WL 6126016.) That lawsuit also involved a cause of action under §1983. In the Washington case, the court rejected plaintiffs’ claims on the ground that a private party sued under §1983 is not liable for money damages if that party was acting in good faith reliance on a facially valid state law. The decision was a district court decision so it’s not binding here. But Friedrichs and the other plaintiffs will have to deal with the same argument: that the public agencies and unions were relying on state law that was supported by the Abood decision which stood for 40 years.