20-1705
Pellegrino et al. v. N.Y. State United Teachers et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
1 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
2 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
3 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
4 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
5 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
6 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
7 THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
8 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
9 COUNSEL.
10 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
11 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th
12 day of April, two thousand twenty-one.
13
14 PRESENT:
15 RICHARD C. WESLEY,
16 SUSAN L. CARNEY,
17 WILLIAM J. NARDINI,
18 Circuit Judges.
19 _________________________________________
20
21 SCOTT PELLEGRINO, on behalf of himself and all others similarly
22 situated, CHRISTINE VANOSTRAND, on behalf of herself and all
23 others similarly situated,
24
25 Plaintiffs-Appellants,
26
27 v. No. 20-1705
28
29 NEW YORK STATE UNITED TEACHERS, UNITED TEACHERS OF
30 NORTHPORT, as representative of the class of all chapters and affiliates of
31 NEW YORK STATE UNITED TEACHERS,
32
33 Defendants-Appellees,
34
35 NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL
36 DISTRICT, as representative of the class of all school districts in the State of
37 New York, ANDREW CUOMO, in his official capacity as Governor of New
38 York, LETITIA A. JAMES, in her official capacity as Attorney General of
1 New York, JOHN WIRENIUS, in his official capacity as chair of the New
2 York Public Employment Relations Board, ROBERT HITE, in his official
3 capacity as member of the New York Public Employment Relations Board,
4
5 Defendants. *
6 _________________________________________
7
8 FOR PLAINTIFFS-APPELLANTS: Jonathan F. Mitchell, Mitchell Law PLLC,
9 Austin, TX.
10
11 Paul Niehaus, Kirsch & Niehaus, New York,
12 NY.
13
14 Talcott J. Franklin, Shannon W. Conway,
15 Talcott Franklin PC, Dallas, TX.
16
17 FOR DEFENDANTS-APPELLEES: Charles G. Moerdler, Alan M. Klinger, Dina
18 Kolker, Arthur J. Herskowitz, Stroock &
19 Stroock & Lavan LLP, New York, NY.
20
21 Robert T. Reilly, Esq., Michael J. Del Piano,
22 Esq., Edward J. Greene, Jr., Esq., Andrea A.
23 Wanner, Esq.
24
25 FOR DEFENDANT: David F. Kwee, Ingerman Smith, L.L.P.,
26 Hauppauge, NY, for Northport-East
27 Northport Union Free School District.
28
29 FOR AMICUS CURIAE: Letitia James, Barbara D. Underwood, Anisha
30 S. Dasgupta, Matthew W. Grieco, for State of
31 New York.
32
33 Appeal from a judgment of the United States District Court for the Eastern District of New
34 York (Garaufis, J.).
35 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
36 ADJUDGED, AND DECREED that the judgment entered on May 1, 2020, is AFFIRMED.
37 Plaintiffs-Appellants Scott Pellegrino and Christine VanOstrand, on behalf of themselves
38 and others similarly situated, appeal from the dismissal of their complaint seeking the return of fees
39 that they paid unwillingly to a New York state teachers’ union, before the Supreme Court invalidated
* The Clerk of Court is directed to amend the caption to conform to the above.
2
1 the collection of such fees from non-consenting employees in Janus v. Am. Fed’n of State, Cnty., &
2 Mun. Emps., Council 31, 138 S. Ct. 2448 (2018).
3 We review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil
4 Procedure 12(b)(6). Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). 1 “An affirmative defense
5 may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary
6 judgment procedure, if the defense appears on the face of the complaint.” Pani v. Empire Blue Cross
7 Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998).
8 On June 13, 2018, Plaintiffs filed the instant suit, claiming under 42 U.S.C. § 1983 that
9 Defendants’ collection of fees from non-member or objecting employees was unconstitutional. As
10 alleged, both Plaintiffs are teachers in New York state public schools. Pellegrino unwillingly
11 belonged to and paid membership dues to Defendant union, New York State United Teachers
12 (“NYSUT”), of which Defendant United Teachers of Northport (“UTN”) is a local affiliate
13 (collectively, the “Unions”). Although Pellegrino was opposed to many of NYSUT’s activities, he
14 was a paying member because he otherwise as a non-member would have been required to pay
15 agency fees that supported the union’s collective bargaining activities. VanOstrand was opposed to
16 the union, elected not to join, and paid agency fees.
17 Shortly after the complaint was filed, the Supreme Court decided in Janus that collection of
18 public-sector union fees to which employees are opposed violates their First Amendment rights:
19 “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s
20 wages, nor may any other attempt be made to collect such a payment, unless the employee
21 affirmatively consents to pay.” 138 S. Ct. at 2486. Defendants promptly ceased collecting agency
22 fees, including from VanOstrand, and Pellegrino resigned his union membership. Plaintiffs
23 correspondingly dismissed their claims for declaratory and injunctive relief against all Defendants,
24 maintaining only their claims—now the subject of this appeal—against the Unions for return of
25 their pre-Janus union fee payments. 2
1 Unless otherwise noted, in quotations from caselaw, this Order omits all alterations, brackets,
citations, emphases, and internal quotation marks.
2
Although Defendant Northport-East Northport Union Free School District filed a brief in
opposition to the appeal, Plaintiffs voluntarily dismissed all claims against this defendant below.
Plaintiffs further confirm in their briefing that they are “not pursuing claims against the school
district on this appeal or any further in this litigation.” Reply Br. at 1 n.1.
3
1 We agree with the District Court that the Unions’ affirmative defense of good faith, as
2 established in Wholean v. CSEA SEIU Loc. 2001, 955 F.3d 332 (2d Cir. 2020), forecloses these
3 remaining claims. We held in Wholean that parties that “collected fair-share [i.e., agency] fees in
4 reliance on directly controlling Supreme Court precedent and then-valid state statutes . . . are entitled
5 to a ‘good-faith’ defense as a matter of law,” regardless of whether the holding in Janus is
6 “retroactive.” 955 F.3d at 336. Plaintiffs concede that the circumstances presented here are
7 “indistinguishable” from those in Wholean. Br. at 1. The complaint pleads on its face that the Unions
8 collected fees in reliance on New York state statutes that authorized the practice. Those statutes
9 were constitutionally valid at the time, under Abood v. Detroit Board of Education, 431 U.S. 209 (1977),
10 until Janus overturned Abood. In Wholean, under circumstances that are nearly identical to those
11 presented here, we dismissed the claims seeking return of pre-Janus union fees.
12 Plaintiffs contend that we should not treat Wholean as binding because they raise new
13 arguments not considered by the panel in Wholean, namely: (i) that the good-faith defense does not
14 apply to their claim, which they argue is one for equitable restitution, and (ii) that a union must
15 prove entitlement to the defense by showing its compliance with law existing at the time the fees
16 were collected, a matter that Plaintiffs argue cannot be resolved on this motion to dismiss. But
17 Plaintiffs have not cited any authority that permits us to disregard binding, on-point precedent
18 simply because an earlier panel may not have considered additional arguments in support of the
19 same legal contention. 3 Rather, the cases to which Plaintiffs cite, in arguing that we may disregard
20 Wholean, express only the commonplace principle that precedent is not binding when it is not “on
21 point,” Appellant Br. at 2-3, or does not resolve the question at issue in the instant case. See, e.g.,
22 Direct Marketing Ass’n v. Brohl, 135 S. Ct. 1124, 1131 n.1 (2015) (finding earlier case was not on point
23 and thus not binding because it “cannot fairly be read as resolving, or even considering, the question
24 presented in this case”); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (finding
25 that earlier decided “case is not a binding precedent on this point”). Wholean set out a general rule for
3
Plaintiffs seek the same relief that the Wholean plaintiffs sought – that is, the return of fees that
they paid to public-sector unions, with that relief variously characterized as money damages, a
refund, or restitution. Our Court in Wholean held that such relief is not legally available, and this case
falls within the ratio decidendi of Wholean. See Ramos v. Louisiana, 140 S. Ct. 1390, 1404 n.54 (2020)
(considering the question of what is precedent).
4
1 applying the good-faith affirmative defense in the context of Janus: so long as a union is alleged to
2 have collected funds in reliance on then-effective law, it has no obligation to repay those funds when
3 the law is later overturned. See 955 F.3d at 336. That rule controls here.
4 * * *
5 For the foregoing reasons, the District Court’s judgment is AFFIRMED.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk of Court
5