Weekly Case Digests December 9, 2019 December 13, 2019.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Stacey Mooney v. Illinois Education Associations

Case No.: 19-1774

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges

Focus: Damages

Stacey Mooney is a public-school teacher in Eureka (Illinois) Community School District #140. She is not a member of respondent Illinois Education Association ("IEA"), the union that serves as the exclusive representative of her employee unit in collective bargaining with the school district. From the time she started as a public employee until June 2018, the District deducted from her paycheck and sent to the union a fair-share fee that contributed to the costs incurred by the union in its labor-management activities. Both the Illinois Public Relations Act, 5 ILCS 315/6, and existing Supreme Court precedent, Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), authorized this fee arrangement.

The characterization of Mooney's claim presents a legal question on which our consideration is de novo. That said, we agree with the district court's analysis, which finds ample support in the law. Indeed, many years ago we held that a claim for a refund of an agency-fee overcharge under the Abood regime was a legal rather than an equitable claim. Gilpin v. Am. Fed'n of State, Cnty., & Mun. Employees, AFL-CIO, 875 F.2d 1310, 1314 (7th Cir. 1989) (citing Dobbs, Handbook on the Law of Remedies 224 (1973) ("The damages recovery is to compensate the plaintiff, and it pays him, theoretically, for his losses. The restitution claim, on the other hand, is not aimed at compensating the plaintiff, but at forcing the defendant to disgorge benefits that it would be unjust for him to keep.")). But see Laramie v. Cnty. of Santa Clara, 784 F. Supp. 1492, 150102 (N.D. Cal. 1992) (labeling a refund of nonchargeable fees under the Abood regime as restitution).

Mooney is bringing just such a claimthat is, one against the union's treasury generally, not one against an identifiable fund or asset. She attempts to escape this conclusion with the argument that the entire treasury is an identifiable fund against which she can pursue an equitable lien, but that proves too much. Every defendant will always have a "fund" consisting of all of its assets, but that is not what the Supreme Court was talking about in Great-West Life and Montanile. It is not enough that Mooney's fees once contributed to IEA's overall assets. According to Montanile, she must point to an identifiable fund and show that her fees specifically are still in the union's possession. 136 S. Ct. at 65759. This she has not done. Her claim is against the general assets of the union, held in its treasury, and can only be characterized as legal.

In substance, then, Mooney's claim is one for damages. For the reasons we set forth in more detail in Janus v. AFSCME, No. 19-1553, decided today, we AFFIRM the district court's judgment.

Affirmed

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: Mark Janus v. American Federation of State, County and Municipal Employees, Council 31; AFL-CIO, et al.

Case No.: 19-1553

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

Focus: Unions Fair Share Fees

For 41 years, explicit Supreme Court precedent authorized state-government entities and unions to enter into agreements under which the unions could receive fair-share fees from nonmembers to cover the costs incurred when the union negotiated or acted on their behalf over terms of employment. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). To protect nonmembers' First Amendment rights, fair-share fees could not support any of the union's political or ideological activities. Relying on Abood, more than 20 states created statutory schemes that allowed the collection of fair-share fees, and public-sector employers and unions in those jurisdictions entered into collective bargaining agreements pursuant to these laws.

In 2018, the Supreme Court reversed its prior position and held that compulsory fair-share or agency fee arrangements impermissibly infringe on employees' First Amendment rights. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2461 (2018). The question before us now is whether Mark Janus, an employee who paid fair-share fees under protest, is entitled to a refund of some or all of that money. We hold that he is not, and so we affirm the judgment of the district court.

Affirmed

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: Amanda Maxwell Burger v. County of Macon, et al.

Case No.: 18-3430

Officials: EASTERBROOK, KANNE, and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation Local-government Policy Illegal Acts

Under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), local governments may be liable for violating individuals' rights guaranteed by federal law. But local governments are responsible only for "their own illegal acts"; they are not responsible for others' acts falling outside an official local-government policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

After Amanda Burger was fired from her job at the State's Attorney's Office in Macon County, Illinois, she sued the county for allegedly firing her in violation of her federal constitutional rights. The district court dismissed the case, concluding that Burger failed to state a federal claim against the county. Because the alleged illegal conduct was directed by an officer of the State of Illinois, and not Macon County, we affirm.

Affirmed

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: Ruben Lopez Ramos v. William P. Barr

Case No.: 19-1728

Officials: RIPPLE, ROVNER, and BRENNAN, Circuit Judges.

Focus: Immigration Removal Order Due Process Violation

Ruben Lopez Ramos brings this petition to review the removal decision of the Board of Immigration Appeals ("BIA"). He claims that the statutory scheme set forth in the since-amended 8 U.S.C. 1401 (1968) (amended 1986) and 143132 (1968) (amended 2000) violates the Equal Protection guarantee of the Fifth Amendment's Due Process Clause because those provisions prevent him from deriving citizenship through his United States citizen mother. The Immigration Judge ("IJ"), noting that the immigration court lacks jurisdiction over constitutional questions, limited her analysis to the provisions of the Immigration and Nationality Act ("INA") and denied Mr. Lopez's motion to terminate removal proceedings. The BIA affirmed without opinion the decision of the IJ. Mr. Lopez timely seeks review of the removal decision here. Because the statutory scheme has a rational basis, there is no equal protection violation. Consequently, we deny the petition for review.

Petition denied

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: Edith McCurry v. Kenco Logistics Services, LLC, et al.

Case No.: 18-3206

Officials: SYKES, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Title VII Violation Retaliation Claim

Edith McCurry worked at an Illinois warehouse owned by Mars, Inc., the well-known candy maker, and operated by Kenco Logistics Services, a third-party management firm. In March 2015 Kenco lost its contract with Mars and laid off its employees at the warehouse, including McCurry. More than a year later, she filed two rambling pro se complaints accusing Kenco, Mars, and several of her supervisors of discriminating against her based on her race, sex, age, and disability. She also alleged that Kenco and Mars conspired to violate her civil rights.

The district court consolidated the suits and dismissed some of the claims. The defendants then moved for summary judgment on the rest. McCurry's response violated the local summary-judgment rule, so the judge accepted the defendants' factual submissions as admitted and entered judgment in their favor. McCurry retained counsel and appealed.

We affirm. McCurry doesn't challenge the judge's decision to enforce the local summary-judgment rule. As a result, and unsurprisingly, the uncontested record contains no evidence to support a viable discrimination or conspiracy claim. Indeed, the appeal is utterly frivolous and McCurry's monstrosity of an appellate brief is incoherent, so we also order her lawyer, Jordan T. Hoffman, to show cause why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure.

Affirmed

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: Kevin Clanton v. United States of America

Case No.: 18-3060

Officials: RIPPLE, ROVNER, and BARRETT, Circuit Judges.

Focus: Damages Comparative Negligence

For four years, nurse practitioner Denise Jordan treated Kevin Clanton's severe hypertension. Jordan, an employee of the U.S. Public Health Service, failed to properly educate Clanton about his disease or to monitor its advancement. Clanton's hypertension eventually developed into Stage V kidney disease requiring dialysis...