Lead Opinion
Class and collective actions are designed to provide an efficient vehicle to resolve the claims of a large number of plaintiffs in one fell swoop. They can offer benefits to both sides in a case: plaintiffs are able to aggregate resources in order to litigate small claims, and defendants can achieve a global resolution of the dispute. But class actions are not always the best vehicle for delivering relief. This is why Federal Rule of Civil Procedure 23 establishes a number of criteria that parties (usually plaintiffs) must meet in order to maintain a class action, and why district courts have considerable discretion in determining whether and how to manage such actions.
The appellants in this case are home health care assistants who wanted the district court to certify a class of their fellow assistants for purposes of securing a class-wide refund of the fair-share fees they paid to a union for collective bargaining representation. For a number of reasons, the district court found that the class should not be certified. It awarded injunc-tive relief in favor of the plaintiffs, as well as individual damages, and this appeal followed. Because we find no abuse of discretion in the court’s refusal to certify the class, we affirm.
I
The State of Illinois, through its Department of Human Services Home Services Program, pays personal home health care assistants to deliver care to elderly and disabled persons in the state. Under Illinois law, the assistants are considered public employees for purposes of collective bargaining. See Illinois Public Labor Relations Act (IPLRA), 20 ILCS 2405/3(f). The same law authorizes the state to engage in collective bargaining with an exclusive representative of home care and health workers. See id. Since 2003, SEIU Healthcare Illinois & Indiana (the “Union”) has been the exclusive representative. The exclusive representative is required to represent all public employees, whether or not they are members of the Union. Under the terms of its collective bargaining agreement with the state, the Union was entitled to collect limited fees from workers who chose not to join the Union in order to help cover the cost of certain activities, principally the collective bargaining representation it furnished to everyone. These fees were known as “fair-share fees,” and until recently they were automatically deducted from the pay of assistants who were not Union members.
Some workers objected to this fair-share arrangement. In April 2010, they filed this suit, in which they contend that the involuntary deduction and collection of the fair-share fees violates their First Amendment rights and entitles them to relief pursuant to 42 U.S.C. § 1983. For convenience, we refer to them as the Objectors. The district court dismissed their claim and we affirmed, see Harris v. Quinn,
Once back in the district court, the Objectors amended their complaint to substitute new named plaintiffs for their proposed class and to reflect the fact that the Governor of Illinois is now Bruce V. Rauner. They then sought certification of a class of all non-union member assistants from whom fair-share fees were collected from April 2008 until June 30, 2014 (the date of the Supreme Court’s Harris decision), when the state stopped the fair-share deductions. The Objectors contend that their proposed class, which numbers around 80,-000 members, is entitled to a refund of the total of the fair-share fees paid by its members—approximately $32 million.
The Union opposed the motion for class certification; the Governor took no position on the class issue and is not participating in this appeal. The district court decided that class certification was inappropriate for several reasons: the class • definition was overly broad in light of evidence (detailed by the court) that a substantial number of class members did not object to the fee and could not have suffered an injury; the named plaintiffs were not adequate representatives; ■ individual questions regarding damages predominated, over common ones; the class faced serious manageability issues; and a class action was not a superior .method of resolving the issue. The parties .then stipulated to a judgment permanently enjoining the future collection of fair-share fees and. awarding money damages to the named plaintiffs. The district court entered final judgment, and this appeal followed.
II
The Objectors have placed most of their reliance on appeal on the argument that the' district court’s refusal to certify rested on an error of law: specifically, the proposition that deducting the fair-share fees could have caused a First Amendment injury to a worker only if she subjectively opposed the Union or the fee at the time it was paid. We review the district court’s denial of class certification for abuse of discretion. Kleen Prod. LLC v. Int’l Paper Co.,
In order to have a case in a federal court, a plaintiff must plead that she has been injured in a concrete and particularized way by á defendant’s actions. Lujan v. Defenders of Wildlife,
The' proposed class, however, presents interesting aspects of the nature of injury in First Amendment compelled subsidization cases. Whereas we understand that the named plaintiffs objected to the collection of the fair-share fees and to collective bargaining representation, we have no way of knowing whether :or how many of the remaining class members shared that opposition. Nothing in Harris said that people could not voluntarily join a union, or voluntarily pay a fair-share fee. Its focus was exclusively on compelled participation. See, e.g.,
The Objectors urge that the question whether any given worker in the proposed class was subjectively opposed to paying the fees is, extraneous to whether or not their First Amendment rights were violated. They characterize the injury as the denial of the choice to pay or not pay. In their view, it is enough that the money was taken without their affirmative consent and used for purposes of collective bargaining representation.
But we cannot accept that characterization in the face of direct evidence from the supposedly injured class 'members that they did not feel injured at all, and- that they would have happily paid the fair-share fee without complaint. The premise of-the Objectors’ argument—that these funds were taken without.consent—stands on shaky ground. They presume that silence was equivalent to non-consent, while the Union argues that silence against-the backdrop of the ¿arlier legal regime in which there was no obligation to signify consent is at worst uninformative, and if anything suggests consent. -
We can assume that the taking of money without consent or legal justification is enough to give rise to some kind of a tort, but it is less clear that such a taking implicates the First Amendment. Compelled subsidization can violate the First Amendment because it impinges on First Amendment rights. See Knox v. Serv. Emps. Int’l Union, Local 1000,
The Objectors urge that even if some measure of subjective opposition is required to show a First Amendment injury, the choice not to join the Union ought to be sufficient to demonstrate that opposition and hence to show a First Amendment injury. But a chqice not to join the Union is not the relevant one for our purposes. This case has always been about the decision whether to support collective bargain-, ing representation and pay the fair-share fee, and the personal assistants were never asked to express a preferehce on that point. At most, we know that the proposed class members did not become full union members during the period when the fees were collected. We have no way of knowing which of three choices they might have made, had Harris been on the 'books during the entire time: join the Union; voluntarily pay fair-share fees; or pay nothing. The Objectors scoff at the idea that anything but “pay nothing” would be selected, but the district court had before it evidence that the majority of personal assistants in 2003 voted for union representation, that a majority ratified the collective bargaining agreement in 2008 and 2012, and that 65% of the proposed class members who are still personal assistants have since joined the union. It .was a reasonable inference .from those facts. that, a significant number of class members would indeed have chosen the first or second option, had they realized the need to do so.
The question whether it is permissible to take subjective factors into account in a First Amendment case has interesting implications in the class action context. In order to be ascertainable, a class must be defined baséd on objective criteria. Classes “defined by subjective criteria, such as by a person’s state of mind, fail the objectivity requirement.” Mullins v. Direct Digital, LLC,
■We need not-pursue this possibility further for present purposes, because the district court offered additional, independent, reasons for declining to certify the class. It' found that Rule 23’s requirements were not met because (1) the intra-class conflicts of interest rendered the named plaintiffs inadequate as class .representatives, and-(2) .common questions did not predominate so as .to make a class action superior to individual actions.
Looking first at adequacy of representation, we recall that this is one of the four essential criteria established by Rule 23(a) for all class actions: numerosity, adequacy of representation, commonality, and typicality. Wal-Mart Stores, Inc. v. Dukes,
We addressed intra-class conflicts of interest in a case involving people who declined to join a union nearly two decades ago in Gilpin v. American Federation of State, Cnty., & Mun. Employees, AFL-CIO,
Two distinct types of employee will decline to join the union representing their bargaining unit. The first is the employee who is hostile to unions on political or ideological grounds. The second is the employee who is happy to be represented by a union but won’t pay any more for that representation than he is forced to. The two types have potentially divergent aims. The first wants to weaken and if possible destroy the union; the second, a free rider, wants merely to shift as much of the cost of representation as possible to other workers, ie., union members.
Id. at 1313. In so doing, we noted that seeking a restitution remedy was suitable only for the type of plaintiff who is hostile to the unions, and that the windfall of restitution might embarrass or ruin the union—an outcome that the second type of employees would not want. Id.
In a more recent case, Schlaud v. Snyder,
The situations in both Gilpin and Schlaud may not be identical to the one before us. But, as the district court rightly noted, “in the end, both Schlaud and Gil-pin point out that a class representative who wants to undermine the union is not likely to be a suitable representative for a group that includes people who have no such hostility.” Riffey v. Rauner, No. 10 CV 02477,
According to the Objectors, there is no conflict of interest, and they are therefore adequate representatives because differ-enees in opinion about the Union have no bearing on the merits of the claim. For this, they cite Eighth Circuit precedent for the notion that “[t]he antagonism which will defeat the maintenance of a class action must relate to the subject matter in controversy, as when the representative’s claim conflicts with the economic interests of the class ..." Reynolds v. Nat’l Football League,
To this concern, the Objectors propose what they see as a simple solution: certify the class that they have proposed and allow members with competing interests (i.e., those who would have supported the Union willingly, or who have since become full Union members) to opt out of the action. The problem with this suggestion is that Rule 23(b)(3)’s opt-out provisions may operate as a safety valve only for an otherwise properly certified class. In other words, the opt-out procedures are no substitute for adherence to Rule 23; a class must meet Rule 23’s requirements before class members are allowed to opt out of the action. The plaintiffs’ suggestion attempts to foist the burden of fashioning an appropriate class on those who would be required to opt-out. This we eannot allow. It is worth noting, too, that the district court repeatedly invited the Objectors to suggest a more tailored class, but they let that opportunity pass. We therefore have no trouble finding that the district court did not abuse its discretion in finding that the proposed class representatives failed the adequacy requirement of Rule 23(a)(4).
Even if the Objectors had not run into problems with adequacy of representation under Rule 23(a), they would still not clear the class certification hurdles. Because they seek to certify a class for monetary damages, they need to show that the common questions predominate over questions affecting individual members, and that a class action is a superior method to adjudicate the controversy. Fed. R. Civ. P. 23(b)(3). The predominance requirement is met when common questions represent a significant aspect of a case and can be resolved for all members of the class in a single adjudication. Costello v. BeavEx, Inc.,
If, to make, a prima facie showing on a given question, the members of a proposed class will need to present evidence that varies from member to member, then it is an individual question. If the same evidence will suffice for each member to make a prima facie showing, then it becomes a common question.
Id. at 815 (quoting Blades v. Monsanto Co.,
The district court reasoned that the main issue remaining—compensatory damages—could not be resolved in a- single adjudication, and that the individual questions for the over 80,000 potential class members would predominate over- other questions. It acknowledged that this might not be the issue “if a class were certified solely to adjudicate the affirmative defense of good faith before determining liability,” but the Objectors did not request such a limited class nor did they brief that possibility. Riffey,
As the district court noted, the Supreme Court has resolved the overarching common issue in this case: whether the First Amendment prohibits the fair-share fee deductions in the absence of affirmative consent (yes). The issue that remains— compensatory damages—requires a showing of actual injury caused by the constitutional deprivation. Memphis Cmty. Sch. Dist. v. Stachura,
We agree with the district court that the question whether damages are owed for many, if not most, of the proposed class members "can be resolved only after a highly individualized' inquiry. It would require exploration of not only each person’s support (or lack thereof) for the Union, but also to what - extent the- non-supporters were actually injured. The Union would be entitled to litigate- individual defenses against each member. This suggests not only that individual questions predominate at this stage of the litigation, but also that it would be difficult to manage the litigation as a class. The plaintiffs offered no plan to make class-wide determinations about support for the collective bargaining representation. The district court was well within the bounds of its discretion to reject class treatment on these bases as well.
Our review of both the facts and the legal arguments the - Objectors have presented leaves us satisfied that the district court’s decision not to certify their proposed class'was a sound one. We therefore Affiem the judgment.
Concurrence Opinion
concurring in the judgment.
The Supreme Court’s decisions in Knox v. Service Employees International Union, Local 1000,
■Nevertheless, I concur in the court’s judgment. The district court’s mistakes led to its erroneous conclusions that the proposed class failed to satisfy two of the. four prerequisites for certification under Rule 23(a). However, the district court also concluded under Rule 23(b)(3) that: (1) issues common to class members would not predominate over individual issues; and (2) a class action would not be superior to individual actions. These findings were probably not an abuse of discretion. Therefore, I would affirm the denial of certification on those grounds alone.
The district court first reasoned that because each proposed class member would have to prove that he or she opposed the fair-share fees in order to recover, the proposed class could not meet Rule 23(a)’s commonality requirement. Riffey v. Rauner, No. 10-CV-02477,
The Supreme Court’s Knox decision should have settled this question. There, two groups of employees filed a class-action suit against SEIU, alleging that the union unconstitutionally required them to contribute money to SEIU’s political activism. Knox,
As the Knox Court rhetorically asked, “isn’t it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues?” Id. Of course, the answer is yes, both for the plaintiffs in Knox and the home care providers in this case. It is not controversial to say that most people would prefer not to pay an assessment that isn’t required. And even if that weren’t so obvious, “[cjourts ‘do not presume acquiescence in the loss of fundamental rights.’” Id. (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
The. court’s citations to compelled-speech cases like West Virginia State Board of Education v. Barnette,
Fortunately, we don’t have to deal with that problem in this case because the proposed class members all have tangible monetary injuries. And as the Supreme Court explained, those injuries derive from the exaction of “funds from nonmembers without their affirmative consent.” Knox,
Next, the district court concluded (and the court apparently agrees) that the representative plaintiffs can’t adequately represent the class as required by Rule 23(a)(4) because class members may have differing views about SEIU. The district court reasoned that “a class representative who wants to undermine the union is not likely to be a suitable representative for a group that includes people who have no such hostility.” Riffey,
Moreover, the assumed disagreements between proposed class members have nothing to do with the injury each suffered and the compensation sought. Instead, as the Eighth Circuit explained, “the antagonism which will defeat maintenance of a class action must relate to the subject matter in controversy.” Reynolds v. Nat’l Football League,
However, while I disagree with the district court’s conclusions on the issues of commonality and adequacy of representation, I would still affirm its decision not to certify the class. That is because the proposed class still must satisfy Rule 23(b)(3)’s requirement that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Yet as the district court noted, now that the “central First Amendment question” in this ease was resolved in Harris, “plaintiffs’ pursuit of class-wide refunds is the most significant issue remaining in the case.” Riffey,
On superiority, the district court was mostly correct that “there is no longer any reason to concentrate each proposed class member’s claim for damages into a single forum, because, armed with Harris, any individual who did not want to join or support the union can pursue individual relief (with the potential benefit of 42 U.S.C. § 1988 fee-shifting).” Riffey,
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’.” Comcast Corp. v. Behrend,
Notes
. Of course, as 1 explained above, any nonmember who had his or her fees seized without affirmative consent can recover. Therefore, the class of people who may seek relief should not be limited to those "who did not want to join or support the union.”