In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 19-3413 

JAMES M. SWEENEY, et al., 

Plaintiffs-Appellants, 

v.

KWAME RAOUL, in his official capacity as 

Attorney General for the State of Illinois, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-cv-1362 — Sharon Johnson Coleman, Judge. 

____________________ 

ARGUED SEPTEMBER 29, 2020 — DECIDED MARCH 8, 2021 

____________________ 

Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges. 

SCUDDER, Circuit Judge. In its 2018 decision in Janus v. 

AFSCME, the Supreme Court held that public unions cannot 

require nonmembers to pay fees for the benefits of being represented by the union in collective bargaining and workplace 

disputes. To hold otherwise, the Court concluded, would run 

counter to the First Amendment’s prohibition on compelled 

speech and association. Faced with this new economic reality, 
2 No. 19-3413 

an Illinois union that represents municipal public works employees brought suit alleging that Janus itself effected a constitutional violation in the other direction—forcing unions to 

represent nonmembers forfree in violation of the union’s own 

First Amendment right to avoid compelled association and 

speech. The district court rejected that position on the merits 

and entered summary judgment against the union. We vacate 

that judgment and remand with instructions to dismiss the 

union’s complaint for lack of subject matter jurisdiction. The 

union brought a claim that federal courts will have to answer 

in time. But we cannot answer the question now, for the union 

has not alleged any concrete and particular facts showing that 

it faces the post-Janus freeriding predicament animating its 

lawsuit. Our resolving the substantial legal question in the abstract would offend the longstanding prohibition on federal 

courts issuing advisory opinions. 

I 

A 

The Illinois Public Labor Relations Act governs labor relations between public employees and employers across the 

state. See 5 ILCS 315/1. A majority of employees in a bargaining unit may vote to select a union as their exclusive representative for collective bargaining and grievance proceeding 

purposes. With that exclusivity comes the responsibility of the 

union to fairly represent all bargaining unit employees, including those who are not union members. See 5 ILCS 

315/6(d). 

For many years, Illinois law allowed public unions to require nonmembers to pay so-called “fair share” or “agency” 

fees to compensate for the representative services the union 
No. 19-3413 3

provides. This payment obligation sparked objections from 

nonmembers, and the issue made its way to the Supreme 

Court. In 1977 the Court concluded that a similar fair-sharefees law in Michigan did not violate nonmembers’ First 

Amendment rights. See Abood v. Detroit Bd. of Educ., 431 U.S. 

209. While acknowledging that mandatory fees forced those 

not wishing to affiliate with a union to subsidize its operations, the Court considered this an appropriate middle 

ground since the union, as exclusive representative, shouldered the obligation of representing nonmembers’ interests 

before the employer with the same fervor and diligence as it 

owed dues-paying members. See id. at 221–22. This compromise came to reflect the norm in over 20 states. Until 2018 and 

Janus. 

In Janus the Supreme Court overruled Abood and held that 

unions compelling the payment of fair share fees from nonmembers offended the First Amendment. Janus v. AFSCME, 

138 S. Ct. 2448, 2460 (2018). This mandatory fee, the Supreme 

Court reasoned, violated the “free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Id. Janus, in short, left public unions unable to collect fair share fees from nonmembers. 

International Union of Operating Engineers Local 150 is 

one such union. It represents around 3,300 municipal employees in 133 bargaining units across primarily northern Illinois 

and northwest Indiana. James Sweeney serves as Local 150’s 

president. The union employs nine staff members to represent 

public employees in employment disputes. Doing so costs 

about $5 million each year. 

Local 150 says Janus has put the union between a rock and 

a hard place. As the exclusive representative of a bargaining 
4 No. 19-3413 

unit’s employees, it remains obligated to represent nonmembers, yet it must now do so without any way of compelling 

fair share fees from these employees. Many nonmembers, Local 150 adds, have sent form letters reminding the union of its 

fair representation obligation. Local 150 thus sees Janus as enabling a kind of freeriding sure to strain the union’s limited 

resources. 

B 

Local 150 invoked 42 U.S.C. § 1983 and brought suit in the 

district court in February 2018, alleging that the duty of fair 

representation in Illinois law without the corresponding ability to collect fair share fees infringes the union’s First Amendment rights of free speech and association. The lawsuit named 

as defendants the Attorney General of Illinois and the Executive Director of the Illinois Labor Relations Board. 

The defendants saw the lawsuit as premature—as Local 

150 suing to resolve a legal question it believed was teed-up 

by Janus, rather than in response to a nonmember who refused to pay fair share fees but sought to force the union to 

represent him in one form or another. The district court disagreed, concluding that, after Janus, Local 150 faced imminent 

injury to its rights and obligations under Illinois law. An injury of this sort, the district court reasoned, sufficed to create 

a viable preenforcement challenge to the union’s duty of fair 

representation. 

About a year later, in November 2019, the district court 

entered summary judgment for the defendants and dismissed 

Local 150’s claims with prejudice. Janus, the district court concluded, addressed compulsory fees from nonmembers rather 

than the principles of fair and exclusive representation. From 
No. 19-3413 5

there the district court emphasized that the Supreme Court 

had made expressly plain that “states can keep their labor-relations system exactly as they are—only they cannot force 

nonmembers to subsidize public-sector unions.” Janus, 138 S. 

Ct. at 2485 n.27. Because Janus in no way altered the system of 

exclusive and fair representation outlined in Illinois law, the 

district court determined that it remained bound by other Supreme Court precedent rejecting a union’s First Amendment 

challenge to a state law mandating exclusive representation. 

See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 

(1984). Because Janus, by its own terms, purports to affect only 

the constitutionality of fair share fees and because Knight remains good law, the district court entered summary judgment 

for the defendants. 

Local 150 now appeals. 

II

Local 150’s lawsuit presents a question courts are certain 

to confront in Janus’s wake—whether a public union, no 

longer allowed to charge nonmembers fair share fees, must 

nonetheless represent those nonmembers in employment disputes. Indeed, Local 150 so anticipated the question that it 

brought its claims while Janus was pending, apparently predicting that a Supreme Court decision in favor of objecting 

nonmember employees would ripen the follow-up question. 

But Local 150’s asking the question does not mean a federal court owes the union an answer—at least not now. The 

reason comes from Article III’s Case or Controversy requirement. Distilled to its essence, this requirement limits federal 

courts to resolving concrete disputes between adverse parties. 

See Valley Forge Christian Coll. v. Americans United for 
6 No. 19-3413 

Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). Put 

another way, Article III prevents federal courts from answering legal questions, however important, before those questions have ripened into actual controversies between someone 

who has experienced (or imminently faces) an injury and another whose action or inaction caused (or risks causing) that 

injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). 

These limitations, requirements, and prohibitions are embodied in the so-called justiciability doctrines—standing, mootness, ripeness, and the prohibitions on providing advisory 

opinions and answering political questions. See 13 Charles 

Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 3529 (3d ed. 2020). 

A 

Local 150’s claims fail on straightforward applications of 

standing and ripeness. 

To establish “the irreducible constitutional minimum of 

standing,” the plaintiff must have suffered an injury in fact 

traceable to the defendant and capable of being redressed 

through a favorable judicial ruling. Lujan, 504 U.S. at 560–61. 

The alleged injury must be “concrete and particularized” as 

well as “actual or imminent, not conjectural or hypothetical” 

to establish standing. Id. at 560. A “particularized” injury is 

one that “affect[s] the plaintiff in a personal and individual 

way.” Id. at 560 n.1. Concreteness requires the injury to exist 

and be “real,” not “abstract.” Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1548 (2016). 

Because it would be both foolhardy and unfair to always 

force a plaintiff to break a law to challenge its legitimacy, the 

Supreme Court has outlined circumstances in which a party 
No. 19-3413 7

may advance a preenforcement challenge before suffering an 

injury—so long as the threatened enforcement is “sufficiently 

imminent.” See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 

159 (2007). Meeting this standard requires allegations of both 

“an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and “a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); 

see also Holder v. Humanitarian Law Project, 561 U.S. 1, 15–16 

(2010) (explaining that a history of enforcement, threat of future enforcement, and intention to commit similar conduct in 

future created an imminent-enough injury to bring preenforcement challenge). 

We can restate many of these same precepts in terms of 

ripeness. Much like standing, ripeness gives effect to Article 

III’s Case or Controversy requirement by “prevent[ing] the 

courts, through avoidance of premature adjudication, from 

entangling themselves in abstract disagreements.” Abbott 

Labs. v. Gardner, 387 U.S. 136, 148 (1967). Plain and simple, 

ripeness is “peculiarly a question of timing.” Blanchette v. 

Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974). In evaluating 

ripeness, we consider “both the fitness of the issues for judicial decision and the hardship to the parties of withholding 

court consideration.” Abbott Labs., 387 U.S. at 149. 

B 

Local 150 did not present a Case or Controversy to the district court. For starters, Local 150 alleged no concrete or particularized injury. The union asked an important question—

whether the duty of fair representation imposed by Illinois 

law violates Local 150’s associational and free speech rights—

without pointing to an actual or imminent injury to that 
8 No. 19-3413 

purported legal interest. It is not enough to say that after Janus

several employees left the union or that nonmembers reacted 

to the decision by no longer paying fair share fees. The union 

needs to go a step further and identify a nonmember who has 

demanded representation in a grievance proceeding. That Local 150 sees such demands around the corner falls short of 

showing an imminent injury. To conclude otherwise would 

be tantamount to saying that Janus itself created a follow-on 

Case or Controversy for all public unions with nonmembers 

who decline to pay fair share fees. 

Local 150’s standing shortcoming does not end there. Even 

if we accepted the union’s allegations as sufficient to demonstrate a cognizable injury, the alleged injury is not traceable to 

the defendants. Recall who Local 150 named as defendants—

the Illinois Attorney General and the Executive Director of the 

Illinois Labor Relations Board. Illinois law empowers the Attorney General to prosecute violations of Board orders and to 

seek injunctive relief on behalf of parties complaining of violations of the Public Labor Relations Act. But Local 150 has 

not alleged that the Attorney General has threatened or 

brought any post-Janus enforcement proceedings against any 

union, let alone Local 150 itself, for any alleged violation of 

the duty to fairly represent nonmembers. 

Local 150’s real gripe is with Janus and what the union 

fears the Supreme Court’s decision portends. For obvious reasons, Local 150 did not sue the Supreme Court. But the Board 

and the Attorney General are no more appropriate defendants 

at this juncture: neither party has taken any action risking or 

imposing any injury on Local 150. 

Nor is this a circumstance in which Local 150 has brought 

a permissible preenforcement challenge to its post-Janus fair 
No. 19-3413 9

representation obligation. The Supreme Court has recognized 

scenarios in which a plaintiff may bring suit prior to suffering 

an injury. Those circumstances require allegations of a threat 

of enforcement that is both credible and imminent, where the 

plaintiff makes clear its intention to continue its possibly unlawful conduct. See Driehaus, 573 U.S. 149. Local 150’s claims, 

however, display none of these characteristics. The union 

does not suggest an “intention to engage in a course of conduct arguably affected with a constitutional interest” and proscribed by the statute. Babbitt, 442 U.S. at 298. Quite the opposite: Local 150 pledges to fulfill its duty of fair representation 

to nonmembers. Remember, too, the union does not allege 

that either the Attorney General or the Board has taken even 

a single step along the path to enforcement. 

Nothing changes if we assess Local 150’s complaint 

through the lens of ripeness. The union’s complaint is premature. Indeed, Janus had not even been decided when Local 150 

first filed this lawsuit. Local 150 pulled the litigation trigger 

anticipating Janus’s outcome and worried about its potential 

impact, but it did so without a nonmember demanding fair 

representation or any other action by the union. 

III

At the end of the day, we are left with a request for an advisory opinion. While we understand Local 150’s desire for 

additional legal certainty after Janus, federal courts do not 

deal in advice. This principle has been well established since 

the early days of the Republic. See Correspondence of the Justices, reprinted in 3 Correspondence and Public Papers of John Jay,

1782-1793, at 486–89 (Henry P. Johnston ed., 1891) (declining 

to opine on a list of hypothetical questions posed by President

Washington’s administration about neutrality in a war 
10 No. 19-3413 

between England and France). Article III of the Constitution 

limits us to the resolution of Cases and Controversies. 

The wrong reaction to today’s decision is to think Local 

150 has advanced a losing position. Not so. The question at 

the heart of Local 150’s lawsuit is important to public unions 

and remains unsettled. It just needs to await resolution within 

the confines of a concrete and particularized dispute between 

a public union and nonmember demanding fair representation. 

The benefits of awaiting a concrete and particularized dispute—a Case or Controversy—are plain. Doing so will give 

all involved an opportunity to fully probe the extent of a public union’s obligation to fairly represent a nonmember who 

pays nothing for services rendered. Indeed, the union’s proposed solution proves the point. After explaining the predicament the union sees as created by Janus, Local 150 emphasizes an alternative prescription mentioned by the Supreme 

Court itself—that unions be able to charge nonmembers the 

costs of representation in grievance proceedings. See Janus, 

138 S. Ct. at 2468–69 (“Individual nonmembers could be required to pay for that service or could be denied union representation altogether.”). That alternative cannot be explored—

legally, practically, or otherwise—in the abstract. Facts will 

matter and allow the parties and courts alike to consider 

where the next line should be drawn in an area of law still 

being written. 

We VACATE the district court’s judgment and REMAND 

with instructions to dismiss for lack of subject matter jurisdiction.