are also if i understand correctly from your briefing there seem to be three different sort of subgroups even with that we can count one and i wonder if we could address those and separately if that is if it is a fair wa because it seems to me there would be different issues regarding standing that perhaps you could you could assist us with on when each of those yes that's correct that missile spine is so mean for a refund on a class wide basis so her claim even though the court hasn't reached the class or occasion issues she's serving as a class representative on behalf of everyone who was forced to make compulsory payments to the union prior  janice but there are different types of repayments that were made for example some people unlike miss minor never joined the union at all and they were forced to pay agency fees to the union which is similar to union dues except are not members others like him is this line to join the union either reluctantly because they figured i have to pay union regardless i might as well join or in this despite his case she was misled by her employer in believing that union membership was mandatory so there are different types of class numbers but they've all suffered same article three injury and that they were forced to pay money to the union against their will and in our view we don't think that affects the article three standing injury because it seemed to be looking at the injury of the editor at a very abstract sort of level why and it were accurate to think about her proposed class representation is sort of three so classes i mean w because of the small difference between the membership dues and the fair share yes it's quite possible that sort of find some passes may be the appropriate response but it with respect your honor you believe that's an issue that should be resolved if and when this case regions the quester occasions then the district court threw us out for lack of article three standing and didn't even reach the merits and our contention on appeal today is simply that this case was entitle to proceed or it should not have been thrown out for lack fees were imposed on nonmembers others like miss miss fine it was forced to pay or lease the compulsory portion of her union dues so muslims find it although she joined the union she still was forced to head the portion of the dues that she would have had to pay even if she had stayed out so she's somebody situated even though there are different reasons and different ways by which the forced payments were collected but all the payments were so that's why we believe she is an appropriate choice one is don't join unions but page and choice two is join the union and pay for membership dues whatever choice you may she would have been forced to pay at least the amount of money that she would have had to pay an agency piece has since then now her choice the only free choice you had was to join the union and then pay the additional difference between for membership dues and the complete story agency be that she would have had to pay regardless so that's our claim of how she was forced to pay money so mr mitchell let's let's assume we need to set aside the class certification until after we get to stand let's say she has an injury and because she paid money out of pocket let's say that's were dressing up like to focus in on causation now the way the district court conceptualize this the cause the the cause of her injury was that h r officers miscommunicate i take it you are resisting that framing now that union whatever it was made her and the heading of count one in your complaint is unconstitutional agency shop but you haven't spelled bed up very clearly you know what do you mean by the whole agency shop being unconstitutional  given that you know that the president you know allowed setting up agency shots of how is it unconstitutional you suggest that even under a booed it might have been unconstitutional but i haven't seen you you assert that haven't seen other employees were forced to me against their will and we say unconstitutional agency shopping and because the holding of janice in our view is retroactive the supreme court has said repeatedly that its pronouncements and substance of constitutional law always have retroactive now again this doesn't mean necessarily that the union ultimately will be held liable the unions have asserted in these cases that they are entitled to a good face returns under section  three and this court recently environment against pennsylvania state education association the case that came out about a month ago indorsed the idea of a good thing defense reunions although the court split on the reasoning so it's quite possible ms this line of will lose on the merits of union against her will maybe that was constitutionally justified at the time maybe the union's entitle to the good faith of pants but she certainly has been injured by the fact that she was forced to remit that money and then the nd prong as you note in your really correct that is right how one is monetary believe for regenerates collections of either agency fees for nonmembers or the compulsory portion of uni views from those who join and again it's quite possible that means is foreclosed on the merits don but today we're only arguing whether misled fina has article three standing to even assert this quite so we're not in any way suggests newday that she ultimately should prevail but it's only our claim missile supply is seeking retrospectives relief from the money that was taken from her wages after she resigned so she resigns after janice an r august of two thousand and eighteen but money is continued to be diverting from her wages through october until her full membership says that right as her yes so if this is the full membership fee is that we're being taken out not simply fair share it is then where is the for the st amendment the failure to turn off their automatic deductions you know a month or two earlier than they should of because janice the separately holds at the end of the opinion that once an employee has resigned from the union the union is constitutionally  she wants nothing further to do you mean she is not seeking to retain her membership in any way shape or form she is seeking a remedy for compulsory union payments that she was forced to make prior jenna's and she's seeking a remedy for money that which he can fro that employees be informed of their constitutional rights whether they're members or not they have these in the plaintiff's view the right to know what their rights law before their wages are diverted to the union and reasons number one miss most minor has not received an offer of complete relief from her claims because she has not received either the attorney's fees or the class one review that she has requested the union has attempted to refund only a portion of what was visible spine has demanded in her complaint about that cannot move a claim for relief under campbell one of the really interesting wrinkles in this case is whether the action this had not been certified as a class action and you need to have standing as as of the time it's going to become a class sections so why is campbell inwald even employee the employer the employer the library was the employer correct yes that's correct so the union and similar tell is true the union never misled it was the employer that miss letters across yes that's right we've never accused the union of different or more specific about causation for example if that or traceability if that were an issue where we would i think if it's in if you were to affirm the district court's holding my traceable then we believe we should have the are and that allegation has to be accepted as true with the state so if that's not enough to alleged race ability i suppose we can go back again and plead with even more emphasis and even more detail that we you you mentioned by the way earlier that you thought at the end of janet's there was a holding regarding what happens after you resign ob looking at the end of janice i don't see a reference specifically to the end it just refers to get the doc from nonmembers but i'm not sure they're no longer a member as if someone some it's a letter of the union and says i'm resigning my membership or not a member and more but whether that's what takes one minute or a couple of weeks or months to process i'm not sure janice results  fire janice was forced to pay money to against her wishes because her only choices were either to join and pay money or stay out of paying money either way she had to pay money and that's what you seeking a refund for it is not unconstitutional to have a union member join pay dues what's unconstitutional is to force an employee who doesn't want to pay the union to pay me and they have to have a choice that's what janice holds and if they stay out of the union after johnny paycheck  janet's nothing wrong with the clip but if someone joins voluntarily how can someone have a generous claim i mean i think what you're saying is that this is a simple but for inquiry that if the person had refused he would have had to pay anyway therefore it's about for cause but if the person shows voluntarily to deal with then how is it the union's responsibility because in a different hypothetical sit of affairs it would have compelled under the law problem at all mr aspire to not voluntarily join because she was affirmatively misled by her employer into believing that union membership was mandatory now again that's not only union the employer did that but it just feeds any claim that evidence to show that a person would have joined the union happily in and non agency shot right to work environment they have no damages from anybody because the agency shot didn't cause them to pay money they would have joined in paid union it your theory is the whole agency shop is unconstitutional and there's a place in the complaint that says even under a buddha you think it was on constitutional at least the union has an obligation to to show certain things to make it constitutional can you explain what you mean by that if we said if we just set aside what jenna says and imagine that under a good faith the pence or something that the abboud law controls how could it be unconstitutional to the agency fee requirement she didn't pay agency fees she didn't know agency fees existed if agency fees had been zero it wouldn't have mattered to the plaintiffs therefore h not asserting and count one in her opposition to the union's motion to dismiss e c f seventy nine the plaintiff was absolutely clear that count one was brought on misrepresentation that caused her allegedly to be a union member she's also said in her reply brief here in an oral argument that she doesn't have the facts to hold the library responsible on a moon l theory for the alleged misrepresentation so she was absolutely clear before the district court that count one was about agency fees and she didn't have an injury that was fairly traceable to agency fees because agency fees were not of but for cause of her injury if if i wanted to challenge the level of fees that my state bar charges for inactive members but it turns out that i was an active member and i didn't even know there was such a thing as an active status i wouldn't have standing to challenge  because she had an injury in fact caused by something else doesn't give her standing to bring suit to challenge agency fees which is what she made absolutely clear she was  here but that one way or the other whether it was the incentive to join the union it was that decision  of the difference calculating that it would make more sense to at least have the benefits that went along with membership that oh those come back at their root to the unconstitutional  fair share fee in the picture what why isn't that characterization and enough to have it injury here that's fairly traceable to the problematic conduct  where she could represent that overreaching class first time a complaint refers to i'm sorry the nd amended complaint refers to three groups of people he people who didn't pay agency fees they certainly suffered an injury traceable to the agency fees that wasn't the plaintiffs people who allegedly joined the union because they knew about the agency fee requirements and in light of the fact that they're worried since he's they thought well may as well become union members or perhaps they have an injury fairly traceable to the agency fee requirement but then there's the rd group which consists of missile spina who became union members because someone told them union membership was mandatory that has nothing to do with the agency fee requirement which is a requirement imposed on nonmembers if there were no agency fees she would a suffered exactly the same injury there isn't a but for causal connection between agency feeds and her being the union member on the allegations of the complaints and just because you suffer one injury doesn't give you standing to sue for others is applies retroactively maybe if it's not spelled out now maybe they could amend their complaint to show how that caused the library employee to misinform her and through some causal chain therefore she wound up paying fees that she wouldn't have otherwise why isn't that enough or at least enough that we should give her a chance to a meant well the complaint does not allege that the fact that there are agency fees for  nonmembers caused a library employee to think that membership was mandatory ever is not alleged not argued to the district court below district court was told we're not blaming the union for the mis representation nor request to a man's so that's contrary to the facts that were alleged in the complaint and contrary to what the district judge was told but this is a civil rights lawsuit d we give leave to amend liberally you don't even always need to request it specifically if we find these allegations insufficient and accept that portion of your argument isn't the proper course to say the district court if we think it may be misunderstood some of the details of the standing bring in the complaint brought it based on the unconstitutional agency shop told the district court that she was not holding the union responsible for the misrepresentations did not allege that somehow the fact that there is an agency shop which has to do with what nonmembers a somehow cost someone to think membership was mandatory and if that had been the allegation then there would have been no proximate cause which is required for  plaintiff asked for leave to plead and would be meritless and under those circumstances especially where that isn't even an argument made on a pale that amendment should have been granted we do think it would be an appropriate to require the union to keep spending the members money so litigate this case if i could move to claim to claim to was just an relief that would benefit her that she didn't already have going forward the district court found that fit to dock sions had stopped and there was no likelihood that the pla herself was going to have money to doctored again and going backward the district court found that the plaintiff had received of full refund sorry wasn't that the same argument campbell you hear the plaintiff was not empty handed she had full hands she had all of the money in her hands outs that time she didn't argue to the district court that it wasn't enough money she didn't argue that she wanted some type of emotional distress damages for the delay in payment she didn't see punitive damages she didn't see any merits really that she didn't already have she she alleged three things i mean she argued that was one she wants a green leaf or other people but she didn't have standing to seek relief for other people because it wasn't a class claim she said she wanted attorney fees and costs but those are ancillary to the they don't keep a claim alive and rd she said i didn't cash the check or i'm what she said is i'm refusing to cash the check and she had to check him her hand whether she cashed it or she frayne to put it  why would there be a legal difference in terms of when one type of document for the other she in fact has not posit well and offer  requires some reset perkel commitment this was simply the processing of her resignation and requests to stop the doctrine she asked to stop deductions the deduction stopped there is a bit of lag as there sometimes is between when payroll caught up and she received a complete refund it wasn't an offer she didn't have to agree that it was complete relief it didn't say pay didn't fall on it it wasn't conditional on anything it was just payments and and she had it in her she had it in her hat so it wasn't a mere offer it was actual payment and it wasn't done to pick off class action this wasn't a class action claim and the evidence shows the union processed her drop request on before even being served with the lawsuit didn't even know about the lawsuit so it's not the campbell he will situation and if the district court had not dismissed the claim there would have been everyone paid fair share fees and then for a little more money you could be a union member it was the opposite union members paid dues and the law at the time permitted charging nonmembers which she was not for fair share fees for their costs of collective bargaining representation so she joined the union she paid dues she had membership rights and benefits and the turn she resigned her membership dues to duction stop and she got a refund and at least test account to which was just an individual claim there if there is nothing more to be done with respect to count two claims three which was the of their janice rights but that wasn't relief that would retracts any injury to the plaintiff before she filed the lawsuit she knew her janice writes she'd already resigned from the union sent a letter requesting that her deductions be terminated and her letter discussed janice fiat's me and said under janice i have a right to pay nothing to the union so the relief that is being requested on count three which was purely perspective wasn't relief that point at standing herself to seek it cos she knew her janice writes she'd already resigned and trond can see getting new con that is correct there has been no motion for class or protection and there are doctrines about when even though an individual claim is removed you can still pursue a motion for class but she could still move for certification which is a very different argument and i would urge the court to look at the c f seventy nine which was the plaintiff's opposition in the district court to motion to dismiss where the plaintiff very clearly described exactly what she was arguing and exactly what she was seeking because this is a somewhat idiosyncratic case and the plaintiffs did suffer an injury damages if she had disputed that the sixty seven dollars was enough then the claim would likely not have been moved but she didn't raise any of those arguments or dispute so there was just nothing when the presence of that in the background would motivate someone like mr steiner to join the union why isn't that enough after her to  represent the class it because she didn't know about the agency fee requirement on the allegations of the complaint therefore it couldn't have motivated her to do anything her complaint is very clear that if she had known about the agency the requirement she would have chosen to be an agency fee payer so it's impossible that there was a causal connection between the agency fee requirement and her own decision to join the union because she didn't know about what happened when we say it's impossible i mean you know if the especially if they had amended there could be some way in which the agency fee requirement in d chain of causation up that missler spine and knew about the agency of your requirement which she didn't but that the because there was an agency fee requirement for nonmembers a library employee thought membership was also need to be based on some allegation in the complaint there is just no allegation that the library employ even knew about the agency fee requirement if the library employees did then the librar known that there was a category of nonmembers who paid agencies not union dues and wouldn't have thought that union membership is mandatory so it's completely inconsistent with what's actually alleged in the complaint and again missler spina didn't ask for a leave to amend to allege any such facts about what may have motivated felt library employee based on a complete misunderstanding of the actual policy at the time she would have chosen that option but no point in the union is the spineless employer disclose of the satyam is available and quote and the more allegations that go on similar banks she has specifically alleged that she would not have joined the union or paid the anything if the agency shop arrangements had not existed if this is been a right to work environment business fine it alleges in the complaint that she went out of joint and she went and paid those allegations must be accepted as true at this stage of the litigation we're not seeking to hold the union liable for the fact that was the spine to join the union we've made that clear throughout this litigation we've made this clear throughout around argument today we're not seeking to recover money from the union over ms the spine is decision to join because she was misled by the library employee who incorrectly told her the union membership was mandatory  of the claim but to the extent that it is this false representation that led her remission that that led her to join the union in the injury is having done that and  therefore losing out on the full amount of jews whatever other cleaning you make room on that basis as to the class claims it sounds like she's seeking to represent a class on the ground that she did not suffer injury that ship would have suffered such a not being union dues how is their standing in that because the injury your honor is the compulsory payment she was forced to make not the fact that she join she's not seeking to recover the full amount of union dues but is the compulsory payment of the union dues if the if i'm understanding you correctly is the compulsory payment of the portion of the union dues that she would have had to pay a wrong congress of whether she joined the union or not so miss the spinal was confronted with two choices join the union and pay full membership dues or stay out of the union and pay for share fees no matter which choice she made she would have had to pay at the very least the amount of money equal to the fair share it's that every employee would have had to pay that you agreed earlier that you weren't separating out the fair share fee how how can we see that fair share fee portion that would have been paid by nonmembers as supporting standing for someone who paid membership dues where you are not seeking to add to to separate out any fair share component of this membership dues the injury of that latter category seems to be the joining of the union and paying the full membership dues injury is that she was forced to pay money to the union whether she joined or not that's the injury we're watching on count one the fact that she chose the joint we're not seeking any damages from the union over her decision to join were seeking damages over the fact that the union forced her to pay money regardless and were seeking to recover only the compulsory portion but she would have been forced the issues with ms bonds and the misleading email are irrelevant to the claims for relief that we're seeking against the union we're not seeking recovery for that incremental difference that she paid on account of the fact that she was misled we've made clear unions not liable for that and we've forced to pay money to be hit and it's traceable to the union because the union negotiated the agency shop that established this compulsory payment regime that's the traceable component of the article three dollars standing inquiry and it has nothing to do with the misleading emails that ms the spine received from the library employee who told her that she had to join it it seems in every be another way of looking at this is what why aren't you  is forcing them to join the union resulting in membership dues being paid as a whole in the other is forcing them to to pay fair share  different injuries that have resulted you are nobody was forced to join the employees or forced the painting everyone had to pay the amount of money equal t who would not have joined the union rights were are the vast majority of employees who were union members would have happily joined the union even in a right to work environment and we've seen this in the wake of janice most employees are staying in the environment rather than agency shop and again they need there may be some differences between these asses of people that precludes classification and there may be differences that require certification of discrete some classes within this group rather than having this being certified as the one overarching class for purpose of the of this appeal the question is only whether ms the spinal has alleged injury in fact it is fairly traceable to the unions behavior and that will be regressed probably for the jews requested she's clearly satisfied those three components at the police stage because she's a woman just as sorry yes i understand your position i understand your adversary's position the union shop leading to her feeling forced to join the union is that something you can allege ken prove wish to prove or is this all riding on the idea that whether she chose or not no matter what the library employee said she would have had to pay regardless yeah it would be the latter just need as we would not in any way intend to allege that she were forced into doing it that's not  question and you don't want to amend to say that or anything like that this is all going to ride on whether she was forced to pay fees because of the fall back that she couldn't have opted out she was forced to pay no matter what she did that's not mine that's our client we are not suggesting she was forced she obviously was forced to join she had a choice she was misled by the library employee but again that's not new in what we would have manned if we were given the opportunity to just provide it in more in the district court as i understand it's a tenuous contest the only question traceable the injury came from the forced payments not membership but the forced payments and it's traceable clearly traceable union because the union was the entity that negotiated the existence of this agency shop along with muslims and boy and again that's all we need to show in article three case or controversy because mr spawn is seeking to recover the money that she was forced to pay against her will not the portion that he paid voluntarily by joining the union but the portion that he paid against her will the every employee whether they joined the union were not