Gregory J. Hartnett; Elizabeth M. Galaska; Robert G. Brough, Jr.; John M. Cress v. Pennsylvania State Education Association

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-2391
_______________
GREGORY J. HARTNETT; ELIZABETH M. GALASKA;
ROBERT G. BROUGH, JR.; JOHN M. CRESS,
Appellants
v.
PENNSYLVANIA STATE EDUCATION ASSOCIATION;
HOMER-CENTER EDUCATION ASSOCIATION;
TWIN VALLEY EDUCATION ASSOCIATION;
ELLWOOD AREA EDUCATION ASSOCIATION;
HOMER-CENTER SCHOOL DISTRICT;
TWIN VALLEY SCHOOL DISTRICT;
ELLWOOD CITY AREA SCHOOL DISTRICT
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-17-cv-00100)
District Judge: Honorable Yvette Kane
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 27, 2020
Before: CHAGARES, RESTREPO, and BIBAS,
Circuit Judges

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(Filed: June 25, 2020)
_______________
Milton L. Chappell
National Right to Work Legal Defense Foundation
8001 Braddock Road, Suite 600
Springfield, VA 22151
David R. Osborne
Nathan J. McGrath
The Fairness Center
500 North Third Street, 2nd Floor
Harrisburg, PA 17101
Counsel for Appellants
Joseph F. Canamucio
Pennsylvania State Education Association
400 North Third Street, P.O. Box 2225
Harrisburg, PA 17101
Jason Walta
Office of General Counsel
National Education Association
1201 16th Street, NW, Room 820
Washington, DC 20036
Counsel for Appellees Pennsylvania State Education
Association, Homer-Center Education Association, Twin
Valley Education Association, and Ellwood Area
Education Association

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Joshua D. Shapiro
Nancy A. Walker
J. Bart DeLone
Office of the Attorney General of Pennsylvania
1600 Arch Street, Suite 300
Philadelphia, PA 19103
Counsel for Amici Governor of Pennsylvania and
Attorney General of Pennsylvania
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Just because a statute may be unconstitutional does not
mean that a federal court may declare it so. If there is no real
dispute over a statute’s scope or enforceability, we must dis-
miss any suit attacking it, no matter how obvious the result may
seem.
A group of public-school teachers challenged a Pennsylva-
nia statute that authorizes their local unions to deduct fees from
their paychecks even though they do not belong to the union.
After the Supreme Court invalidated another state’s similar
statute, the parties all agreed that Pennsylvania’s law was un-
enforceable too.
The District Court correctly held that this development
mooted this case. The parties no longer dispute whether the
statute is enforceable, and there is no reason to think that any-
one will try to collect agency fees from these teachers again. If

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a court is to formally declare the statute unconstitutional, that
will have to await a future case in which the parties earnestly
dispute its validity.
I. BACKGROUND
A. Legal background
Some public-sector employees join their local unions; oth-
ers choose not to. Even so, if a collective-bargaining agreement
contains an “agency-fee” provision, both union members and
nonmembers must pay a portion of union dues. See, e.g., Har-
ris v. Quinn, 573 U.S. 616, 624 (2014). A Pennsylvania statute
authorizes this practice as a “fair share fee” arrangement. 71
Pa. Stat. § 575(b). Nonmembers need not pay full union dues,
but only the amount spent on the union’s collective-bargaining
activities. Id. § 575(a). Thus, they do not have to subsidize lob-
bying or other political activity.
For four decades, this setup was permissible under the Su-
preme Court’s decision in Abood v. Detroit Board of Educa-
tion, 431 U.S. 209 (1977). In Abood, public-school teachers
successfully challenged a law that forced nonmembers to pay
full dues. Id. at 212–13, 235–36. The Supreme Court agreed
that the First Amendment protected them from having to sub-
sidize the union’s political activities “unrelated to its duties as
exclusive bargaining representative.” Id. at 234. But it held that
the government could still require nonmembers to subsidize
public-sector union expenses related to collective bargaining,
administering contracts, and handling grievances. Id. at 232.
Dissatisfied with Abood’s compromise, public-sector em-
ployees who chose not to join unions kept bringing First

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Amendment challenges. Eventually, they succeeded. In 2018,
the Supreme Court overruled Abood in Janus v. AFSCME,
Council 31, 138 S. Ct. 2448 (2018). In Janus, the Court held
that forcing nonmembers to pay agency fees violates the First
Amendment, even if those fees go toward collective bargain-
ing. Id. at 2486. It thus struck down an Illinois statute allowing
collection of agency fees. See id. at 2460–61. Though Janus
said nothing about Pennsylvania law, its holding was clear:
“States and public-sector unions may no longer extract agency
fees from nonconsenting employees.” Id. at 2486.
B. Procedural background
This action began in the runup to Janus. Appellants are four
public-school teachers who did not belong to a union but had
to pay agency fees under Pennsylvania law. They sued their
school districts, superintendents, and teachers’ unions, though
only the unions remain as appellees. The teachers sought a dec-
laration that the agency-fee provisions in their collective-bar-
gaining agreements, as well as the Pennsylvania statutes au-
thorizing them, were unconstitutional. They also sought an in-
junction requiring the unions to delete the agency-fee provi-
sions from the collective-bargaining agreements and banning
them from future agreements. Though the teachers had at first
sought nominal damages too, the defendants paid each teacher
$100 to satisfy those claims.
After the Supreme Court decided Janus, the unions did not
try to salvage their agency-fee setup. Indeed, the very day the
Supreme Court issued its decision, the Pennsylvania State Ed-
ucation Association notified public schools of the decision and
told them to stop deducting agency fees from teachers’

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paychecks. It also set up procedures to refund all agency fees
collected during or attributable to the period after Janus. And
at the state level, Pennsylvania’s Department of Labor and its
Office of Attorney General notified public-sector employers
that they could no longer collect agency fees.
The teachers moved for summary judgment based on Ja-
nus. In response, the unions argued that the change in the law
and their compliance with it had mooted the case. The District
Court agreed that the case had become moot and dismissed it.
Hartnett v. Pa. State Educ. Ass’n, 390 F. Supp. 3d 592, 602
(M.D. Pa. 2019). The teachers now appeal.
The District Court had jurisdiction under 28 U.S.C. § 1331.
Whether or not the case is moot, we have jurisdiction under
§ 1291. We review the District Court’s factual findings for
clear error and its legal conclusions de novo. Freedom from
Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832
F.3d 469, 475 n.4 (3d Cir. 2016).
II. T HIS C ASE IS M OOT
A. Mootness principles
1. Standing and mootness allocate different jurisdictional
burdens. Article III gives federal courts jurisdiction over
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1.
Thus, federal courts can entertain actions only if they present
live disputes, ones in which both sides have a personal stake.
Summers v. Earth Island Inst., 555 U.S. 488, 492–93 (2009).
At the start of litigation, the burden rests on the plaintiff, “as
the party invoking federal jurisdiction,” to show its standing to
sue. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). That

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requires showing injury in fact, causation, and redressability.
Id. But once the plaintiff shows standing at the outset, she need
not keep doing so throughout the lawsuit.
Instead, the burden shifts. If the defendant (or any party)
claims that some development has mooted the case, it bears
“[t]he ‘heavy burden of persua[ding]’ the court” that there is
no longer a live controversy. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)
(quoting United States v. Concentrated Phosphate Exp. Ass’n,
393 U.S. 199, 203 (1968)). In other words, mootness is not just
“the doctrine of standing set in a time frame.” Id. at 189–90
(quoting Arizonans for Official English v. Arizona, 520 U.S.
43, 68 n.22 (1997)). Standing and mootness are “two distinct
justiciability doctrines.” Freedom from Religion Found., 832
F.3d at 475–76. So sometimes a suit filed on Monday will be
able to proceed even if, because of a development on Tuesday,
the suit would have been dismissed for lack of standing if it
had been filed on Wednesday. The Tuesday development does
not necessarily moot the suit.
2. Voluntary cessation does not always trigger mootness.
One scenario in which we are reluctant to declare a case moot
is when the defendant argues mootness because of some action
it took unilaterally after the litigation began. This situation is
often called “[v]oluntary cessation,” and it “will moot a case
only if it is ‘absolutely clear that the allegedly wrongful behav-
ior could not reasonably be expected to recur.’ ” Fields v.
Speaker of the Pa. House of Representatives, 936 F.3d 142,
161 (3d Cir. 2019) (quoting Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007)). When a

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plaintiff seeks declaratory relief, a defendant arguing mootness
must show that there is no reasonable likelihood that a declar-
atory judgment would affect the parties’ future conduct. See,
e.g., Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam);
United States v. Gov’t of the V.I., 363 F.3d 276, 285 (3d Cir.
2004).
Voluntary cessation cases highlight the important differ-
ence between standing (at the start of a suit) and mootness
(mid-suit). The shift in the burden of proof from plaintiff to
defendant matters. It means that sometimes, “the prospect that
a defendant will engage in (or resume) harmful conduct may
be too speculative to support standing, but not too speculative
to overcome mootness.” Friends of the Earth, 528 U.S. at 190.
While the case law speaks largely of voluntary cessation,
these principles apply even when the defendant’s cessation is
not entirely voluntary. Take Doe v. City of Albuquerque, 667
F.3d 1111 (10th Cir. 2012). The City of Albuquerque had for-
bidden sex offenders to use public libraries. Id. at 1116. An
affected sex offender sued and won an injunction, so the City
started letting sex offenders use its libraries. Id. at 1117 & n.5.
But that did not moot the case. Though the City had complied
for the time being, it “forcefully maintained the constitutional-
ity of the enjoined [policy]” and planned to reinstate it in the
future. Id. at 1117 n.5; see also DeJohn v. Temple Univ., 537
F.3d 301, 310 (3d Cir. 2008). Yet if the City’s attitude had been
different, the answer to the mootness question could well have
differed too. See DeJohn, 537 F.3d at 310. What was important
was whether the City could reasonably be expected to engage
in the challenged behavior again. Friends of the Earth, 528

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U.S. at 189. That is always the key question, no matter why the
defendant ceased its behavior.
To be sure, the defendant’s reason for changing its behavior
is often probative of whether it is likely to change its behavior
again. We will understandably be skeptical of a claim of moot-
ness when a defendant yields in the face of a court order and
assures us that the case is moot because the injury will not re-
cur, yet maintains that its conduct was lawful all along. See
Knox v. SEIU, Local 1000, 567 U.S. 298, 307 (2012); see also
13C Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure § 3533.5, at 248 (3d
ed. 2008). On the other hand, if the defendant ceases because
of a new statute or a ruling in a completely different case, its
argument for mootness is much stronger. See, e.g., Lighthouse
Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,
260 (3d Cir. 2007); Khodara Envtl., Inc. ex rel. Eagle Envtl.,
L.P. v. Beckman, 237 F.3d 186, 193 (3d Cir. 2001) (Alito, J.).
In short, the touchstone of the voluntary-cessation doctrine
is not how willingly the defendant changed course. Rather, the
focus is on whether the defendant made that change unilater-
ally and so may “return to [its] old ways” later on. Friends of
the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Alad-
din’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982)). Perhaps it
would be more accurate to call it the volitional-cessation doc-
trine.
Though voluntary or volitional cessation is often described
as an exception to mootness, that is not quite right. The burden
always lies on the party claiming mootness, whether the case
involves voluntary cessation or not. See Friends of the Earth,

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528 U.S. at 189. Voluntary cessation is just a recurring situa-
tion in which courts are particularly skeptical of mootness ar-
guments. That is why, in voluntary-cessation cases, defend-
ants’ burden of showing mootness is heavy. Id.
B. This case is moot because there is no reasonable
likelihood that the unions will seek to collect agency
fees in the future
The facts here present an especially strong case of mootness
by voluntary cessation. Until Janus, the unions had every rea-
son to believe, under Abood, that they could collect agency fees
from nonmembers. Once the Supreme Court changed course in
Janus, the unions immediately stopped collecting agency fees.
And since Janus, they have conceded that Pennsylvania’s
agency-fee arrangement violates the First Amendment and
have forsworn collecting fees from nonmembers. So we see no
reasonable likelihood that the unions will try to collect agency
fees from the teachers ever again. Cf. Knox, 567 U.S. at 307–
08 (finding a similar challenge not moot because the defendant
union insisted that agency fees were constitutional). Thus, the
unions have borne their “formidable burden of showing that it
is absolutely clear [that] the allegedly wrongful behavior could
not reasonably be expected to recur.” Friends of the Earth, 528
U.S. at 190.
In response, the teachers cite other unions’ collective-bar-
gaining agreements that have, even after Janus, included
agency-fee language. We are unmoved. For one, the mootness
inquiry focuses on the parties before us. A court can enter a
declaratory judgment “if, and only if, it affects the behavior of
the defendant toward the plaintiff.” Rhodes, 488 U.S. at 4 (per

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curiam). And the mere presence of language in contracts
causes no harm. The teachers neither show nor even allege that
any public-sector union in Pennsylvania has tried to enforce
those provisions since Janus.
C. Decisions allowing other constitutional challenges
to go forward are irrelevant
In trying to salvage this litigation, the teachers cite other
constitutional challenges that have proceeded even after a land-
mark Supreme Court decision changed the lay of the land.
They take this as evidence that a challenge to a state’s statute
necessarily survives the invalidation of another state’s equiva-
lent. But our mootness inquiry is not guided by broad rules like
this one; it depends on the particular facts of each case. And
the cases they invoke are inapposite.
For instance, the teachers note that even after the Supreme
Court decided Citizens United, lower courts kept striking down
campaign-finance statutes whose unconstitutionality had be-
come clear. See Citizens United v. FEC, 558 U.S. 310, 365–66
(2010). But that was a complex decision striking down a spe-
cific set of federal campaign-finance laws. So it is no surprise
that there were still open questions about how it applied to
many federal, state, and local campaign-finance rules. Indeed,
it does not appear that the litigants even suggested mootness in
the post-Citizens United cases cited by the teachers.
Here, however, no one questions whether public-sector un-
ions can still collect agency fees from nonmembers. It is sim-
ple: agency-fee arrangements were allowed by Abood, then
banned by Janus. Neither party has advanced any reason why

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the Pennsylvania law might escape Janus’s broad holding that
“public-sector agency-shop arrangements violate the First
Amendment” and thus that “States and public-sector unions
may no longer extract agency fees from nonconsenting em-
ployees.” 138 S. Ct. at 2478, 2486.
The teachers also cite challenges to laws related to same-
sex marriage after Obergefell v. Hodges, 135 S. Ct. 2584
(2015). But the main case they cite went beyond Obergefell,
addressing not just whether same-sex couples could marry but
whether states had to afford them all the incidental benefits of
marriage. See Waters v. Ricketts, 798 F.3d 682, 685–86 (8th
Cir. 2015) (per curiam). That case noted that Obergefell had
not spoken to the validity of all marriage-benefits laws. Id. By
contrast, Janus declared unequivocally that collecting agency
fees from nonmembers is unconstitutional, and we see no lin-
gering subsidiary questions. See 138 S. Ct. at 2478, 2486. At
the very least, none are presented here.
D. Because this case no longer presents a live
controversy, the District Court was correct to
dismiss it
Finally, the teachers argue that dismissal for mootness was
not the right disposition. According to them, once the parties
agreed that the challenged statutes were unconstitutional and
that there were no more factual disputes, the District Court
should have declared the Pennsylvania statute unconstitu-
tional.
Not so. The lack of any disagreement between the parties
over the facts or the law, and the lack of any continuing injury

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to the teachers, is precisely what makes the case moot. And
once that happens, any declaratory judgment would be an ad-
visory opinion.
The teachers thus err in insisting that the case remains alive
because a court could still grant them “effectual relief.” Appel-
lants’ Br. 14 (quoting Knox, 567 U.S. at 307). A live contro-
versy requires not only the possibility of awarding relief, but
also a real dispute between the parties about the facts or the
law. There is no such dispute here.
We understand that the teachers might rest more easily if a
court declared 71 Pa. Stat. § 575(b) unconstitutional. But the
federal courts are not “roving commissions” charged with
scrubbing invalid laws from the statute books. Broadrick v. Ok-
lahoma, 413 U.S. 610, 610–11 (1973). Instead, we will await a
case where the parties earnestly dispute the validity or enforce-
ability of Pennsylvania’s agency-fee statute. Because this is not
that case, there was nothing for the District Court to do other
than dismiss it as moot. It correctly did so.
* * * * *
It may seem odd that unconstitutional laws remain on the
books. But until a party faces a real threat of enforcement, a
statute is mere words on a page, and federal courts cannot opine
on its validity.
At the start of this suit, the teachers faced ongoing harm
from the unions’ collection of agency fees. That got them
through the courthouse doors. But once the Supreme Court
made clear that public-sector agency fees are unconstitutional,
the unions emphatically disclaimed any intent to enforce the

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challenged statute. Because the teachers have nothing to fear,
we will affirm.

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