United States District Court, S.D. Ohio, Eastern Division
Vascura Magistrate Judge
OPINION AND ORDER
C. SMITH, JUDGE
matter is before the Court upon Defendant's Motion to
Dismiss (the “Motion”) (Doc. 12). The motion is
fully briefed and ripe for disposition. For the following
reasons, the Motion is GRANTED.
Ogle has been employed by the Ohio Department of Taxation
since 2011. (Doc. 1, Compl. ¶ 13). Since the beginning
of his employment, Ogle has been subject to the exclusive
representation of the Ohio Civil Service Employees
Association, AFSCME, Local 11 (“OCSEA”) and the
terms of the collective bargaining agreements OCSEA enters
into with the State of Ohio. (Id. at ¶ 6). Ogle
is not, and never has been, a member of the OCSEA.
(Id. at ¶ 7). Ohio's Public Employees'
Collective Bargaining Act (the “Act”), Ohio
Revised Code § 4117, authorizes exclusive
representatives and public employers to enter into agency fee
provisions that require, as a condition of employment,
“that the employees in the unit who are not members of
the employee organization pay to the employee organization a
fair share fee.” Ohio Rev. Code § 4117.09(C).
(Id. at ¶ 8). The Act further provides that
“[t]he deduction of a fair share fee by the public
employer from the payroll check of the employee and its
payment to the employee organization is automatic and does
not require the written authorization of the employee.”
Id. OCSEA's collective bargaining agreements
with the State of Ohio for the term of July 1, 2015 to
February 28, 2018, which governs Ogle's employment,
contains a compulsory fee clause that dictates:
Any bargaining unit employee who has served an initial sixty
(60) days and who has not submitted a voluntary membership
dues deduction authorization form to the Employer shall,
tender to the Union a representation service fee beginning in
the pay period that includes the 61st day. The amount shall
not exceed the dues paid by similarly situated members of the
employee organization who are in the bargaining unit. The
Union shall continue to provide an internal rebate procedure
which provides for a rebate of expenditures in support of
partisan politics or ideological causes not germane to the
work of employee organizations in the realm of collective
bargaining. When an employee enters the bargaining unit for
any reason, the Employer shall notify the employee of this
Article and provide the employee the appropriate deduction
forms. Fair share fee deductions shall begin after sixty (60)
days of service. The Employer shall tender to the Union a
representation service fee beginning in the pay period that
includes the 61st day.
(Id. at ¶ 9). Ogle was compelled to pay fair
share fees to OCSEA pursuant this clause, which were
automatically deducted from his paycheck. (Id. at
¶ 10). OCSEA's collective bargaining agreements with
other public employers in Ohio also contain forced fee
clauses that compel nonmembers of the union to pay fees to
the union as a condition of their employment. (Id.
at ¶ 11). On June 27, 2018, the Supreme Court held
forced fee requirements to be unconstitutional under the
First Amendment and that unions could not constitutionally
collect union dues or fees from public employees without
their affirmative consent. (Id. at ¶ 12);
Janus v. AFSCME, Council 31, 138 S.Ct.
2448, 2486 (2018).
Janus, OSCEA ceased the collection of mandatory fair
share fees and has indicated that it has no intention to
re-instate the collection of such fees in the future. (Doc.
12-2, Ex. 1, Letter to David Blair at 1); (Doc. 12-2, Decl.
of Christopher Mabe at 3).
STANDARDS OF REVIEW
Rule of Civil Procedure 12(b)(1) provides for dismissal when
the court lacks subject matter jurisdiction. Without subject
matter jurisdiction, a federal court lacks authority to hear
a case. Thornton v. Sw. Detroit Hosp., 895 F.2d
1131, 1133 (6th Cir. 1990). Motions to dismiss for lack of
subject matter jurisdiction fall into two general categories:
facial attacks and factual attacks. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial
attack under Rule 12(b)(1) “questions merely the
sufficiency of the pleading, ” and the trial court
therefore takes the allegations of the complaint as true.
Wayside Church v. Van Buren Cty., 847 F.3d 812, 816
(6th Cir. 2017) (quoting Ohio Nat'l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990)). To
survive a facial attack, the complaint must contain a short
and plain statement of the grounds for jurisdiction. Rote
v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir.
factual attack is a challenge to the factual existence of
subject matter jurisdiction. No. presumptive truthfulness
applies to the factual allegations. Glob. Tech., Inc. v.
Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806,
810 (6th Cir. 2015). When examining a factual attack under
Rule 12(b)(1), “the court can actually weigh evidence
to confirm the existence of the factual predicates for
subject-matter jurisdiction.” Glob. Tech., Inc. v.
Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806,
810 (6th Cir. 2015) (quoting Carrier Corp. v. Outokumpu
Oyj, 673 F.3d 430, 440 (6th Cir. 2012)). The plaintiff
has the burden of establishing jurisdiction in order to
survive the motion to dismiss. DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Moir v.
Greater Cleveland Regional Transit Auth., 895 F.2d 266,
269 (6th Cir. 1990).
also brings their motion pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, alleging that Plaintiff has
failed to state a claim upon which relief can be granted.
the Federal Rules, any pleading that states a claim for
relief must contain a “short and plain statement of the
claim” showing that the pleader is entitled to such
relief. Fed.R.Civ.P. 8(a)(2). To meet this standard, a party
must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a
plaintiff sets forth “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
12(b)(6) allows parties to challenge the sufficiency of a
complaint under the foregoing standards. In considering
whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint
in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Ohio Police & Fire
Pension Fund v. Standard & Poor's Fin. Servs.
LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, “the tenet that a court must accept a
complaint's allegations as true is inapplicable to
threadbare recitals of a cause of action's elements,
supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to
afford plaintiff every inference, the pleading must still
contain facts sufficient to “provide a plausible basis
for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct”
will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of
Mich., Inc., 491 Fed.Appx. 628, 632 (6th Cir. 2012);
Iqbal, 556 U.S. at 679.
Complaint, Ogle prays for prospective relief in the form of
an injunction preventing OCSEA from collecting mandatory fair
share fees and a declaration that the Act is
unconstitutional. (Doc. 1, Compl. ¶¶ 26(b)-(d)).
Ogle also prays for retroactive damages in the form of a
refund of the fees collected by OCSEA before Janus
was decided. (Id. at ¶ 26(e)). Ogle
additionally prays for nominal damages. (Id. at
Motion, OCSEA challenges Ogle's subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of standing with regards to the requests
for prospective relief. (Doc. 12, Def.'s Mot. at 5).
OCSEA challenges Ogle's claims for damages pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. (Id. at
10). This Court will address each of these arguments in turn.
Plaintiff Lacks Standing to Seek Prospective Relief
argues that Ogle lacks standing for prospective relief
because OCSEA no longer collects mandatory fair share fees
and therefore it is not likely that OCSEA will harm him in
the future. Ogle counters that, because the Act is still in
effect, he has standing. This Court agrees with OCSEA.
jurisdiction of the federal courts is limited. Article III
§ 2 of the United States Constitution grants the federal
courts jurisdiction only over specified “cases”
or “controversies.” Absent a live “case or
controversy, ” a federal court has no subject matter
jurisdiction and the case must be dismissed. This “case
or controversy” requirement gives rise to the concept
of standing. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60 (1992).
order to establish constitutional standing, a plaintiff must
demonstrate the following: (a) that it has suffered an
“injury in fact, ” a harm that is “concrete
and particularized” and “actual or imminent, not
conjectural or hypothetical;” (b) a causal connection
between the injury and the challenged conduct; and (c) that a
favorable court decision is likely to redress or remedy the
injury. Lujan, 504 U.S. at 560-61; Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 102-103,
118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “This triad of
injury in fact, causation, and redressability constitutes the
core of ...