In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1774 

STACEY MOONEY, 

Plaintiff-Appellant, 

v.

ILLINOIS EDUCATION ASSOCIATION, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Central District of Illinois. 

No. 1:18-cv-1439-JBM — Joe Billy McDade, Judge. 

____________________ 

ARGUED SEPTEMBER 20, 2019 — DECIDED NOVEMBER 5, 2019 

____________________ 

Before WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges. 

WOOD, Chief Judge. 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 
2 No. 19-1774 

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. 

That state of affairs came to an end when, in Janus v. 

AFSCME, Council 31, 138 S. Ct. 2448 (2018), the Supreme 

Court overruled Abood and announced that compulsory fairshare fee arrangements violate the First Amendment rights of 

persons who would prefer not to associate with the union that 

represents their employee unit. 138 S. Ct. at 2460. Following 

Janus, state employers in Illinois immediately ceased deducting fair-share fees from the paychecks of nonmembers of public sector unions. 

Mooney filed suit in the Central District of Illinois on behalf of herself and a putative class of similarly situated persons, seeking restitution pursuant to 42 U.S.C. § 1983 for the 

fees that had been deducted from her pay prior to Janus. The 

district court entered judgment for IEA on April 23, 2019, dismissing Mooney’s claims with prejudice. In so doing, it joined 

the consensus across the country concluding that unions that 

collected fair-share fees prior to Janus, in accordance with 

state law and Abood, are entitled to assert a good-faith defense 

to section 1983 liability. 

We heard oral argument on Mooney’s case on September 

20, 2019, in conjunction with Janus v. AFSCME, No. 19-1553. 

We now affirm the judgment of the district court, largely for 

the reasons set forth in our opinion of today’s date in Janus v. 

AFSCME, No. 19-1553. 
No. 19-1774 3

We write briefly here to address one difference between 

the claim brought by Mooney and that brought by Mark Janus. On remand from the Supreme Court, Mr. Janus sought 

damages pursuant to 42 U.S.C. § 1983 in the amount of the 

fair-share fees he had paid prior to Janus. Mooney, in contrast, 

insists that she is not seeking damages, but instead that she is 

entitled to the equitable remedy of restitution under the same 

statute. From the point of view of the union, the two requests 

are identical: each one seeks a refund of the fees that the plaintiff paid under the ancien régime. Mooney, however, believes 

that there is something special about restitution that is outcome-determinative. Perhaps that is true in some situations, 

but as we now explain, in substance Mooney is also seeking 

damages, and so her claim must fail. 

Section 1983 allows for remedies either at law or in equity. 

42 U.S.C. § 1983 (“... [covered persons] shall be liable to the 

party injured in an action at law, suit in equity, or other 

proper proceeding for redress...”). The district court has discretion to tailor an appropriate remedy for the constitutional 

violation. See Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is also 

well settled that where legal rights have been invaded, and a 

federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make 

good the wrong done.”); Lieberman v. Univ. of Chicago, 660 F.2d 

1185, 1193 (7th Cir. 1981) (“[F]ederal courts have the role of 

providing broad and flexible remedies for violations of federal statutory and constitutional rights.”). 

Mooney would like us to regard her requested relief as 

restitutionary in nature. She believes that even if she concedes 

that a good-faith defense protects the union against a damages award, an equitable demand for restitution cannot be 
4 No. 19-1774 

defeated on good-faith grounds. She argues that there is nothing unfair about requiring the union to return monies that, 

according to Janus, should never have been deducted from 

her paychecks in the first place. In fact, she concludes, the union would receive a windfall based on its violations of her 

constitutional rights if no restitution were ordered. 

IEA responds that Mooney is simply playing with labels, 

and that calling her claim equitable, or one for restitution, 

does not make it so. In substance, IEA says, Mooney’s suit is 

exactly the same as Mr. Janus’s: one for damages flowing from 

a First Amendment violation. The gravamen of Mooney’s 

complaint is that her First Amendment rights were violated 

by the fair-share requirement because she was compelled to 

furnish financial support to union activities with which she 

disagreed. 

As have all other district courts that have faced this question, the court here agreed with IEA’s position. It concluded 

that “Plaintiff’s claim lies in law rather than equity, and there 

is consequently no reason to consider whether the good-faith 

defense applies where the claim is for equitable restitution.” 

See also, e.g., Carey v. Inslee, 364 F. Supp. 3d 1220 (W.D. Wash. 

2019), appeal pending, No. 19-35290 (9th Cir.); Crockett v. 

NEA-Alaska, 367 F. Supp. 3d 996 (D. Alaska 2019), appeal 

pending, No. 19-35299 (9th Cir.); Babb v. California Teachers 

Ass’n, 378 F. Supp. 3d 857 (C.D. Cal. 2019); Allen v. Santa Clara 

Cnty. Correctional Peace Officers Ass’n, 2019 WL 4302744 (E.D. 

Cal. Sept. 11, 2019). 

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 
No. 19-1774 5

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, 1501–02 (N.D. Cal. 1992) (labeling a refund of nonchargeable fees under the Abood regime as restitution). 

Furthermore, as the Supreme Court explained in Montanile v. Bd. of Trustees of Nat. Elevator Indust. Health Benefit 

Plan, 136 S. Ct. 651 (2016), “restitution in equity typically involved enforcement of a ‘constructive trust or an equitable 

lien, where money or property identified as belonging in 

good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession.’” Id. 

at 657 (citing Great-West Life & Annuity Ins. Co. v. Knudson, 534 

U.S. 204, 217 (2002)). Where a plaintiff seeks “recovery from 

the beneficiaries’ assets generally” because her specific property has dissipated or is otherwise no longer traceable, the 

claim “is a legal remedy, not an equitable one.” Id. at 658 (emphasis in original) (internal quotation marks omitted). 

Mooney is bringing just such a claim—that 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” 
6 No. 19-1774 

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 657–59. 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. 
No. 19-1774 7 

MANION, Circuit Judge, concurring. I concur with the 

court’s ultimate conclusion. I write separately here for the 

same reason I write separately in Janus v. AFSCME, Council 

31, No. 19-1553, also decided today. Janus II recognized 

Abood gave unions a windfall for 41 years. But Janus II also 

implied unions need not disgorge this windfall.