### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16

- 363 8
M ARK J ANUS and B R I AN T RYGG , Plaintiff s

- Appell ant s ,

v.
A MERICAN F EDERATION OF S TATE , C OUNTY AND M UNICIPAL E MPLOYEES , C OUNCIL 31 , et al

. , Defendant s

- Appell ees ,

a nd

L ISA M ADIGAN , Attorney General of the State of Illinois, Intervening Defendant

- Appellee.

____________________ Appeal from t he United States District Court for the Northern District of Illinois, Eastern Division

. No. 15 C 1235

— Robert W. Gettleman , Judg e

.

____________________
A RGUED M ARCH 1, 2017

— D ECIDED M ARCH 21, 2017

____________________

Before P OSNER , S YKES , and H AMILTON , Circuit Judges

. P OSNER , Circuit Judge

. In Abood v. Detroit Board of Educ ation , 431 U.S. 209 (1977), the Supreme Court upheld, aga inst a challenge based on the First Amendment, a Michigan law2 No. 16

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that a l lowed a public employer (in that case a municipal board of education) , whose employees (public

- school teac hers) were represented by a union , to require those of its e mployees who did not join the union nevertheless to pay fees
to it because they benefited from the union’s collective ba rgaining agreement with the employer

. T he fees could only be great enough to cover the cost of the union’s activities that benefited them ; they could not be expanded to e n able the union to use a portion of them “ for the expression of p olit i cal views, on behalf of political candidates, or toward the advancement of other ideological causes not ge r mane to [the union’s] duties as collective

- bargaining representati ve

. ” 431 U.S. at 235

– 36. For were that permitted, the workers who disagreed with the political views embraced by the u n ion would be unwilling contributors to expenditures for promo ting political views anathema to them, and the law requi r ing those contribut ions would thereby have infringe d their co nstit u tional right of free speech

. Illinois has a law, similar to the Michigan law, called the Illinois Public Relations Act, 5 ILCS 315 et seq. , under which

a u n ion representing public employees collect s dues from its members , but only “fair share ” fees (a proportionate share of the costs of collective bargaining and contract administr ation) from non

- member employees on whose behalf the u nion also negotiates. See 5 ILCS 315/6. But in 2015 the gove rnor of Illinois f iled suit in federal district court to halt the u nions’ collecting these fees , his ground being that the statute violates the First Amendment by co m pelling employees who disapprove of the union to contribute money to it.
The district court dismissed the go vernor’s complaint , however, on the ground that he had no standing to sue b e-No. 16

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cause he had nothing to gain from eliminating the compu lsory fees , as he is not subject to them. But two public e mployees

— Mark Janus and Brian Tr y gg

— had already moved
to intervene in the suit as plaintiffs seeking the overruling of Abood

. Of course, only the Supreme Court has the power, if it so chooses, to overrule Abood

. Janus and Trygg acknowledge that they therefore cannot prevail either in the district court or in our court

— tha t their case must travel through both lower courts

— district court and court of appeals

— before they can seek r e view by the Supreme Court

. While dismissing the governor’s complaint for lack of standing, the district court granted the employees’ motion to int ervene and declared that the complaint appended to their motion would be a valid substitute for Governor Rauner’s dismissed complaint. Technically, of course, there was not hing for Janus and Trygg to intervene in , given the dismissal of the gove r nor’s comp laint . But to reject intervention by Janus and Trygg on that ground would be a waste of time, for if forbidden to intervene the two of them would simply file their own complaint when Rauner ’s was di s missed . A s there would be no material difference between intervening in Rauner’s suit and bringing their own suit in the same court , the e f ficient approach was, as the district court ruled, to deem Rauner’s suit supe r seded by a motion to intervene that

was the equivalent of the filing of a new suit

. See Village of Oa k wood v. State Bank & Trust Co. , 481 F.3d 364, 367 (6th Cir. 2007).
But we need to distinguish between the two plaintiffs, Janus and Trygg , because while Janus has never before cha llenged the r e quirement that he pay the union “fair share” fees , Trygg has. First before the Illinois Labor Relations4 No. 16

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Board and then b e fore the Illinois Appellate Court, Trygg complained that the union bargaining on his behalf (the Teamsters Local No. 916 , one of the defendants in this case) was ignoring a provision of the Il linois law that allows a person who has religious objections to paying a fee to a u nion to i n stead pay the fee to a charity

. 5 ILCS 315

- 6(g)

. The Illinois court agreed , and on remand to the Board Trygg o btained the relief he sought: i n stead of paying the f air

- share fee to the union, he could pay the same amount to a charity of his choice . T he defendants ( the unions that bargain on b ehalf of Janus and Trygg, r e spectively

— AFSCME for Janus , the Teamsters for Trygg

— the Director of the Illinois D epartment of Cen tral Management Services, which is the state agency that has collective bargaining agreements with both unions ; and the Attorney General of Illinois interve n ing on the side of the defendants ) argue that Trygg’s claim in the present suit is precluded by his earlier litigation

. Claim preclusion is designed to prevent multiple la wsuits between the same parties where the facts and issues are the same in all of the suits , and 28 U.S.C. § 1738 requires fe deral court s to give the same preclusive effect to a state court judgment that it would be given by the courts of the state in question

. Kremer v. Chem i cal Construction Corp. , 456 U.S. 461, 466 (1982). Trygg’s First Amendment claim and his earlier Illinois statutory claim arise from the same fact: the exi s tence of an Illinois law requiring that he pay fees to the Teamsters, the union required to bargain on his behalf

. But the parties disagree as to whether Trygg could have raised his First Amen d ment claim in the earlier litigation. It’s true that the Illinois Labor Relations Board could not have entertained a constitutional cha l lenge to the statute , but Trygg could have included the claim in his appeal from the Board’s decision toNo. 16

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the court, because it presented an issue relevant to the lega l ity of the Board’s actio n. See Reich v. City of Fre e port , 527 F.2d 666, 67 1

– 7 2 (7th Cir. 1975) . He did not do so; and because he had a “full and fair opportunity” to do so , he is precluded by Ill i nois law from litigating the claim in the present suit. See Abner v. Illinois Depart ment of Tran s portation , 674 F.3d 716, 719 (7th Cir. 2012) . He missed his chance. Janus’s claim was also properly dismissed, though on a different ground: that he failed to state a valid claim b e cause , as we said earlier , neither the district court nor this court can overrule Abood , and it is Abood that stands in the way of his claim. The judgment of the district court dismissing the co mplaint is therefore
A FFIRMED

.