### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16-3487

T HERESA R IFFEY , et al ., Plaintiffs-Appellants ,

v.

B RUCE V. R AUNER , in his official capacity as Governor of the State of Illinois, and SEIU H EALTHCARE I LLINOIS & I NDIANA , Defendants-Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. On Remand from the Supreme Court of the United States. No. 10 C 2477 – Manish S. Shah , Judge

____________________

S UBMITTED J ULY 30, 2018

— D ECIDED D ATE D ECEMBER 6, 2018

____________________

Before W OOD , Chief Judge , and M ANION and H AMILTON , Circuit Judges

. W OOD , Chief Judge . When this case was last before our court, we upheld the district co urt’s decision declining to certify a class of home health care assistants (“the Assistants”) who were seeking a refund of the fair-share fees they had paid to a union for collective-bargaining representation. We agreed with the putative class that no one could be compelled to pay2 No. 16-3487

fair-share fees, pursuant to the Supreme Court’s decision in Harris v. Quinn , 134 S. Ct. 2618 (2014), and that any such objector would be entitled to have his or her payments refunded. The only question on the tabl e was whether, with that common issue resolved, the district court abused its discretion when it determined that for purposes of Federal Rule of CivilProcedure 23(b)(3), issues common to the class would not predominate over individual issues and a class action would not be a superior vehicle for resolving the claims. Any personwho wished to pursue an individual claim for a refund remained free to do so.Seeking review of our decision, the putative class representatives fi led a petition for a writ of certiorari in the Supreme Court. On June 28, 2018, the Court granted that petition and remanded the case to this court for further consideration in light of Janus v. State, County, an d Municipal Employees , 138 S. Ct. 2448 (2018). See 138 S. Ct. 2708 (2018) (remand order). In accordance with Circuit Rule 54, we invited and have received statements from the As sistants and from one of the appellees, SEIU Healthcare Illinois & Indiana, discussing the proper course for us now to take. Governor Rauner elected
not to fi le a statement.

We conclude that Janus does not require a di ff erent result on the narrow question presented in our appeal, namely,whether the class-action device is the proper one for the Assistants to use in seeking refunds of fair-share fees. We therefore once again a ffi rm the decision of the district court declining to certify the requested class.No. 16-3487 3

I A brief review of the history of this lengthy litigation will set the stage for our discussion of Janus . Around 2008, a majority of the Assistants in th e state’s Rehabilitation Programvoted to designate SEIU as their collective bargaining representative; those who did not wish to be Union members were entitled to pay a “fair share” or “agency” fee—that is, a reduced payment to the Union that represents only the costs of collective bargaining, grievance processing, and the like, and excludes political activities with which the person may notagree. In 2009, Governor Pat Quinn of Illinois issued an executive order directing the state to recognize an exclusive bargaining representative for assistants in the state’s Disabilities Program, if a majority of those assistants voted in favor of a union. A mail-ballot election ensued, in which a majority ofthe Disabilities assistants voting rejected representation by either SEIU Local 713 or by its rival, AFSCME Council 31. Harris v. Quinn , 656 F.3d 692, 695 (7th Cir. 2011). This action against the Governor and the Unions fo llowed: the Rehabilitation Assistants argued that the fair-s hare fees violated their First Amendment rights, and the Disab ilities Assistants (who werenot yet subject either to a union or fees) lodged a facial challenge against the law. The district court dismissed both groups’ claims: it held that the Rehabilitation Assistants had failed to state a claim on which relief could be granted, and that the Disabilities Assistants’ claims were not ripe. We affi rmed, clarifying that the dismi ssal of the Disabilities Assistants’ claims had to be without prejudice. Id. at 701.Our opinion, however, was not the last word on the matter. The Supreme Court granted certiorari and reversed with respect to the Rehabilitation Assistants’ claims. It held that the4 No. 16-3487

First Amendment does not permit a state “to compel personal care providers to subsidize speech on ma tt ers of public concern by a union that they do not wish to join or support.” Harris, 134 S. Ct. at 2623. The Harris decision sharply questioned the continuing vitality of the Supreme Court’s ruling in Abood v. Detroit Bd. of Educ. , 431 U.S. 209 (1977), but the Court did not feel compelled at that juncture formally to overrule Abood. Instead, it held that the Assist ants were not state workers at all and thus the state could not compel them to pay even a fair-share (or agency) fee. 134 S. Ct. at 2639–41, 2644. Upon receiving the Court’s mandate to this e ff ect, we remanded the case to the district court for fur ther proceedings in accordance with the Supreme Court’s decision. On remand, the Assistants amended their complaint to substitute new named plainti ff s for the class, and to substitute Governor Bruce V. Rauner for his predecessor, Governor Quinn. They sought certi fi cation of a class of “all non-union member assistants from whom fair-share fees were collected from April 2008 until June 30, 201 4 (the date of the Supreme Court’s Harris decision), when the state stopped the fair-share deductions.” Ri ff

ey v. Rauner, 873 F.3d 558, 561 (7th Cir. 2017). The proposed class included some 80,000 members; the class representatives asserted that the total amount that needed to be refunded was approximately $32 million. Id.As we explained in our 2017 opinion, the district court denied certi fi cation for several reasons: [T]he class de fi nition 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 su ff ered an injury; the named plainti ff s were not adequateNo. 16-3487 5

representatives; individual questions regarding damages predominated over common ones; the class faced serious manageability issues; and aclass action was not a superior method of resolving the issue.
Id. Although there once had been a class-wide question whether the fair-share fees were compatible with the First Amendment, that question had been resolved de fi nitively by the Supreme Court’s Harris decision. Left with only the more individualized issues, all three members of the panel agreed that the proposed class failed to meet the requirements underRule 23(b)(3) that issues common to the class would predominate and that a class action be a superior mechanism for resolving the dispute. Id. at 565–66 (majority); id. at 566–67 (concurrence). That was the posture of the case at the time the Assistants fi led their petition for certiorari . The Supreme Court held the Ri

ff

ey petition in abeyance while it decided Janus , and then, as we noted earlier, it returned Ri ff

ey to this court for further consideration in light of Janus

. II Janus was an individual action brought by Mark Janus, an employee of the Illinois Department of Healthcare and Family Services. Unlike the assistants in the Harris litigation, Janus was indisputably a state employee. The people in his unit were represented by the American Federation of State, County, and Municipal Employees (AFSCME) Council 31, but Janus elected not to join the Un ion because he disagreed with its positions on a variety of public policy ma tt ers. Although he was required to pay only a fair-share fee, he objected to6 No. 16-3487

that as a ma tt er of principle. His fees amounted to about $535 a year. Two important facts distinguish Janus from Harris : fi rst, in Janus there was no way to avoid confronting the continuing validity of Abood , because Janus was a state employee; and second, Janus did not seek to represent a class. With respect to the fi rst point, the Court concluded that the time had come to overrule Abood . 138 S. Ct. at 2460. The entire majority opinion is devoted to the explanation for the decision that “publicsector agency-shop agreemen ts violate the First Amendment.” Id. at 2478. In light of that ruling, the Court said, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” Id. at 2486.The Court recognized that its holding would have a signi fi cant impact on public-sector unions over the short run. Id.at 2485–86. And that is undoubtedly true. But the parties involved in Harris —who are identical to the group that Ri ff ey seeks to represent—had already persuaded the Court to outlaw their agency fees. Janus simply did not a ff ect whatever remaining claims the putative class members in this litigation might have. The Court’s language in Harris is unambiguous: “The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or su pport the union.” 134 S. Ct. at 2644. We followed that rule to the le tt er in our decision on remand from Harris , where we wrote that “the Supreme Court has resolved the overarching common issue in this case: whether the First Amendment proh ibits the fair-share fee deductions in the absence of a ffi rmative consent (yes).” 873 F.3d at 566.No. 16-3487 7

The Court’s resolution of th e agency-fee issue meant that only one further point needed to be resolved on the Harris remand: whether the remaining issues concerning refunds of agency fees that were paid by nonconsenting employees could be resolved in a class action. If this was to be a class atall, we recognized, it was one for money damages for each individual class member, and it would accordingly have to satisfy the requirements of Rule 23(b)(3). See Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 360–67 (2011). (Any proposed class would also have to satisfy th e requirements of Rule 23(a), which we discussed in our earlier Ri ff

ey opinion. We have no need to reach the Rule 23(a) factors, however, if Rule 23(b)(3)’s criteria are not met.) Although Rule 23(b)(3)’s language is familiar, we set it forth here for convenience: (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satis fi ed and if:

*** (3) the court fi nds that the questions of law or fact common to class members predominate over any questions a ff ecting only individual members, and that a class action is superior to other available methods for fairly and e ffi ciently adjudicating the controversy. The ma tt ers pertinent to these fi ndings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions;8 No. 16-3487

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely di ffi culties in managing a class action.

F ED

. R. C IV

. P. 23(b)(3).

The decision whether to certify a class is one that depends on a careful assessment of the facts, of potential di ff erences among class members, of manage ment challenges, and of the overall importance of the common issues of law or fact to the ultimate outcome. As we noted in Arreola v. Godinez , 546 F.3d788 (7th Cir. 2008), “Rule 23 gives the district courts broad discretion to determine whether certi fi cation of a class-actionlawsuit is appropriate,” and thus “this court reviews such decisions deferentially.” Id. at 794 (internal quotation marks omi tt ed). We see nothing approach ing an abuse of discretion in the district court’s decisi ons here that whatever common questions remain among the proposed class members do not predominate, and that “a class acti on is [not] superior to other available methods for fairly and e ffi ciently adjudicating the controversy.” F ED

. R. C IV

. P. 23(b)(3).We set forth many of the district court’s reasons for coming to this conclusion in our 2017decision in this case. We reproduce that analysis for ease of reference:We agree with the district court that the question whether damages are owed for many, if not most, of the proposed class members can beNo. 16-3487 9

resolved only after a highly individualized inquiry. It would require exploration of not only each person’s support (or lack thereof) for theUnion, but also to what extent the non-supporters were actually injured. The Union would be entitled to litigate indi vidual defenses against each member. This suggest s not only that individual questions predominate at this stage of the litigation, but also that it would be di ffi cult to manage the litigation as a class. The plainti ff s

o ff ered 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. 873 F.3d at 566. And this is not all that supports the districtcourt’s determination. The Union presented evidence of disharmony within the class: some of the Assistants supported the Union and have no desire to collect a refund, while others are eager to get their money back; and once they no longer had the intermediate option of paying an agency fee, some moved in one direction to join the Union, while others moved in the opposite direction and severed all ties with the Union. The court also noted that the an swer to the central question that remains—how much money each individual class member is entitled to recoup—is particularly ill-suited for class treatment, because it depends on a myriad of factors particular to each individual worker. Last, the district court made it clear that it was not averse to considering a more targeted cl ass. It denied the Assistants’ class certi fi cation motion without prejudice to a revised class10 No. 16-3487

de fi nition. It also left the door open to a po tential class for injunctive relief, even though such relief is hard to envision after the two de fi nitive Supreme Court decisions. And the named plainti ff s stipulated to a fi nal judgment that granted them allthe individual monetary relief they were seeking and permanently enjoined the state and the Union from applying any fair-share or agency-fee requir ement to personal assistants. The la tt er is precisely the relief that Janus contemplated. Despite this apparent success, the Assistants spurned the opportunity to suggest a narrowe r class in favor of a “go-forbroke” strategy. In doing so, however, they overlooked the substantial deference we give to the district court’s decisions about predominance and manageability. The judge here came to a defensible—indeed, sensib le—decision on these points. Nothing in Janus speaks to the suitability of class treatment of these issues under the unusual circumstances of this case, which already had been decided under Harris , which for these parties established a rule practically identical to that in Janus

. III We therefore conclude, as we did before, that the districtcourt acted well within its authority when it declined to certify a class action for the clea n-up proceedings that are necessary in the wake of Harris and Janus . Individual assistants who wish to pursue refunds are free to seek to do so; we make nocomment on such cases or the defenses the Union may endeavor to raise in them. The deci sion of the district court is AFFIRMED.No. 16-3487 11

M ANION , Circuit Judge , concurring in the judgment. I write separately to emphasize that a union’s expropriation of fees from a non-member without his or her consent amounts to a First Amendment injury on that basis alone, regardless of whether the employee subjectively opposed the fees. As the court rightly states, Janus v. State, County, and Municipal Employees , 138 S. Ct. 2448 (2018), does not a ff ect the narrow grounds on which I agreed with the court’s previous judgment a ffi rming the district court’s denial of class certi fi

cation. Those grounds were that the plainti ff s failed to show common issues would predomin ate over individual questions, or that a class action wo uld be superior to individual litigation. Ri ff

ey v. Rauner, 873 F.3d 558, 569 (7th Cir. 2017) (Manion, J., concurring), vacated and remanded for further consideration , 138 S. Ct. 2708 (2018); Fed. R. Civ. P. 23(b)(3).Nevertheless, I continue to disagree with two of the district court’s other bases for denying certi fi cation. First, the district court concluded that not all the potential class members

su ff ered a First Amendment injury when their money was seized without their a ffi rmative consent, because some might not have been opposed to the fair-share fees. But silence, in this context, is not golden. The in jury occurs in extracting fees without fi rst obtaining a ffi rmative consent. C.f. Janus , 138 S. Ct. at 2486 (holding that waiver of the First Amendment rights at stake when a state or union extracts agency fees from nonmember employees “cannot be presumed,” and such waiver is not e ff ective “[u]nless employees clearly and a ffi rmatively
consent before any money is taken from them”) (emphasis added). Thus, this injury is su ff ered regardless of whether the non-member employee opposed supporting the union12 No. 16-3487

through fair-share fees, so long as he or she had no opportunity to express consent to such fees.Second, the district court concluded that the named plainti ff s were not adequate representatives because there existsdisharmony within the proposed class due to potentially differing views in support of or opposition to the union. Any such disharmony, however, does not defeat the maintenance of a class because it does not a ff ect the ma tt er in controversy: the extraction of fair-share fees without a ffi rmative consent. A potential plainti ff ’s support of, indi ff erence to, or hostility toward the union has no bearing on his or her entitlement to a refund of money taken without a ffi rmative consent. For these reasons and the reasons stated in my originalconcurrence, I believe the district court was incorrect in reaching its conclusions on these two issues. See Ri ff

ey , 873 F.3d at 566–70 (Manion, J., concurring).