Jody Lutter v. Jneso, an incorporated employees labor organization

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2205
____________
JODY LUTTER,
Appellant
v.
JNESO, an incorporated employees labor organization;
COUNTY OF ESSEX; PHIL MURPHY, in his official
capacity as Governor of New Jersey; GURBIR S. GREWAL,
in his official capacity as Attorney General of New Jersey;
JOEL M. WEISBLATT; PAUL BOUDREAU; PAULA B.
VOOS; JOHN BONANNI; DAVID JONES; PASQUALE V.
PAPERO, in their official capacities as members of the New
Jersey Public Employment Relations Commission
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-19-cv-13478)
District Judge: Honorable Renée M. Bumb
____________
Argued: May 25, 2022
Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges.

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(Filed: November 6, 2023)
____________
Patrick J. Wright [Argued]
MACKINAC CENTER LEGAL FOUNDATION
140 West Main Street
Midland, MI 48640
Matthew C. Moench
KING MOENCH & COLLINS
51 Gibraltar Drive
Suite 2F
Moore Plains, NJ 07950
Counsel for Appellant
Seth Ptasiewicz [Argued]
KROLL HEINEMAN PTASIEWICZ & PARSONS
91 Fieldcrest Avenue
Suite 35
Edison, NJ 08837
Counsel for Appellee JNESO
Alan Ruddy
OFFICE OF COUNTY COUNSEL
COUNTY OF ESSEX
465 Martin Luther King Boulevard
Hall of Records, Room 535
Newark, NJ 07102
Counsel for Appellee County of Essex

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Angela Cai [Argued]
Ryan J. Silver
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
25 Market Street
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625
Caroline G. Jones
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
DIVISION OF LAW
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees Governor Phil Murphy and
Attorney General Gurbir S. Grewal
Christine R. Lucarelli
PUBLIC EMPLOYMENT RELATIONS COMMISSION
495 West State Street
P.O. Box 429
Trenton, NJ 08625
Counsel for Appellees Joel M. Weisblatt, Paul
Boudreau, Paula B. Voos, John Bonanni, Pasquale V.
Papero, and David Jones
__________
OPINION OF THE COURT
__________
PHIPPS, Circuit Judge.
In late June 2018, the Supreme Court held that public-
sector unions could not charge fees from non-union employees
to fund collective bargaining efforts, as those unions were

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previously able to do in New Jersey. Shortly afterwards, a
nurse at a county hospital in New Jersey requested in writing
to resign from the public-sector union that represented her and
to have her employer cease deducting union dues from her
paycheck so that she would pay neither dues nor fees. But a
state statute established an annual ten-day period during which
public-sector employees could revoke a prior authorization for
payroll deductions of union dues. And that ten-day period for
the nurse expired in early June, before the Supreme Court’s
decision. On that basis, her request to cease payroll deductions
was denied, and the county deducted union dues from her
paycheck for the next ten months. Once her annual ten-day
revocation window reopened, the nurse resubmitted her
request, and the county ceased payroll deductions of union
dues.
Within a week of her second request, the nurse filed this
suit against the union, the county, and several state officials
under 42 U.S.C. § 1983. She claimed that delaying her ability
to stop paying union dues violated her First Amendment right
by compelling her to subsidize union speech. For relief, the
nurse requested damages from the union to compensate her for
the payroll deductions of her union dues. In addition to seeking
attorney’s fees and costs, she sought among other things, an
order enjoining future deductions of union dues from her
paycheck and a declaratory judgment that the state statute was
unconstitutional.
About nine months later, in March 2020, the union sent her
a check in the amount of the deducted union dues plus interest.
By then, the nurse was no longer a member of the union, and
she did not cash or deposit that check. But the union, along
with other defendants, used her receipt of that check along with
her resignation from the union as grounds for requesting
dismissal of the suit as moot – an outcome that would eliminate
their exposure to liability for attorney’s fees. The defendants
also argued for dismissal on other grounds, including the
nurse’s lack of Article III standing. The District Court granted

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those motions and dismissed the case through two separate
orders.
The nurse has now appealed, and on de novo review, the
check she received after her resignation from the union did not
moot her damages claims against the union. But the nurse – as
a non-union member no longer subject to payroll deductions of
union dues – lacks standing for her claims against the other
parties and for her additional requests for relief against the
union. Accordingly, we will affirm the District Court’s orders
in part, vacate them in part, and remand the damages claim
against the union to the District Court for resolution.
FACTUAL BACKGROUND (AS ALLEGED IN THE PLEADINGS)
On May 31, 2011, Jody Lutter began her employment with
Essex County, New Jersey, as a nurse at the Essex County
Hospital. She worked in a position within a bargaining unit
represented by JNESO, a labor union.
At that time, under Abood v. Detroit Board of Education,
431 U.S. 209 (1977), a public-sector union could charge fees
from non-union members whom the union represented in
collective bargaining without offending the First
Amendment’s prohibition on the compelled subsidization of
speech. Id. at 235–36. And under a New Jersey statute, public-
sector unions could deduct a “representation fee” from the
wages of non-union employees whom it represented. N.J. Stat.
Ann. §§ 34:13A-5.5 to -5.6 (West 2011). The money collected
by a representation fee, also referred to as an ‘agency fee,’
could not be used for political advocacy, see Abood, 431 U.S.
at 235–36, and the statute capped such fees at 85% of regular
union membership dues, fees, and assessments, N.J. Stat. Ann.
§ 34:13A-5.5(b). JNESO’s collective bargaining agreement
with Essex County authorized the collection of agency fees
from its non-union employees.
Thus, when Lutter began working for Essex County in
2011, she had to contribute to JNESO, and she had two options

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for doing so. She could join JNESO and pay full dues. Or she
could not join JNESO and pay a portion of those dues as an
agency fee. Lutter chose the former: she joined JNESO and
authorized payroll deductions of her union dues within a month
of her start date.
Six years later, in September 2017, the Supreme Court
granted a petition for certiorari to reconsider Abood and the
constitutionality of agency fees. See Janus v. Am. Fed’n,
582 U.S. 966 (2017) (mem.) (granting petition for certiorari).
That issue, if resolved against the rule of Abood, had the
potential to significantly decrease the revenues of public-sector
unions because employees, by resigning from the union, could
avoid paying not only union dues but also agency fees.
With the looming possibility that the Supreme Court in
Janus would overrule Abood and by so doing prompt a
membership exodus from public-sector unions, the New Jersey
Legislature enacted the Workplace Democracy Enhancement
Act (the ‘WDEA’). Under that statute, which became effective
on May 18, 2018, a union member could revoke an
authorization for payroll deductions only during the ten days
following the anniversary of that member’s employment start
date. See 2018 N.J. Sess. Law Serv. Ch. 15 (West) (codified
at N.J. Stat. Ann. § 52:14-15.9e (West Supp. 2021) (amended
2022)). If a union member provided notice to his or her
employer within that ten-day window, then the employer had
to notify the union within five days and cease payroll
deductions of union dues within thirty days of the employee’s
anniversary date. See id. By contrast, the version of the statute
in effect when Lutter joined JNESO allowed union members
to give a notice of revocation at any time, and that notice would
take effect the following January 1 or July 1, whichever came
sooner. See N.J. Stat. Ann. § 52:14-15.9e (West 2011)
(amended 2018, 2022).
A little over a month after the WDEA’s enactment, the
Supreme Court, on June 27, 2018, decided Janus. It

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overturned Abood and held that the First Amendment prohibits
public-sector unions from collecting agency fees from
nonmembers without their clear and affirmative consent.
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31,
138 S. Ct. 2448, 2486 (2018).
By operation of the WDEA, however, Lutter could not
immediately avail herself of the flexibility that Janus afforded.
Instead, because her May 31 anniversary date had passed less
than a month beforehand, she would have to wait nearly a year
to be eligible to revoke her authorization for the payroll
deductions of her union dues. And even after that notice, those
union dues could still be deducted from her paycheck for thirty
days after her anniversary date.
Lutter attempted to avoid that expensive wait. In a letter
dated July 12, 2018, to Essex County, with a copy to JNESO,
she requested that the payroll deductions of her union dues
cease and she announced her resignation from JNESO. In an
email response, Essex County stated that Lutter could not
revoke her authorization for the payroll deductions of her union
dues for nearly a year – until June 2019, during the next ten-
day period permitted by the WDEA. True to its stated position,
Essex County deducted union dues from Lutter’s paycheck for
the next ten months.
On June 1, 2019, as soon as her ten-day revocation window
under the WDEA re-opened, Lutter sent a letter to Essex
County, with a copy to JNESO, indicating that she wanted the
payroll deductions of union dues to cease. Her next paycheck,
dated June 14, 2019, which covered the two-week pay period
beginning on May 25 and ending on June 7, did not have any
union dues deducted.
PROCEDURAL HISTORY
On June 6, 2019, within a week of sending her second letter,
Lutter filed this lawsuit under 42 U.S.C. § 1983 in District
Court. As revised by a pleading labeled as an ‘amended

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complaint,’ filed on February 28, 2020, Lutter sued JNESO
and Essex County along with several state officials in their
official capacities: the Governor, the Attorney General, and
members of the New Jersey Public Employment Relations
Commission. Her first count asserted that through their
compliance with the WDEA, those defendants violated her
First Amendment right against the compelled subsidization of
speech by preventing her from immediately resigning from
JNESO following Janus. In her second count, Lutter argued
that her prior authorization for payroll deductions lost its
consensual character after Janus held that agency fees are
illegal, and thus the post-Janus deductions of union dues from
her paycheck similarly transgressed the protections of the First
Amendment.
In her prayer, Lutter sought several forms of relief. She
requested compensatory damages from JNESO for the union
dues that were deducted from her paycheck for the ten months
after her attempted resignation on July 12, 2018.1 She also
sought an order enjoining JNESO from collecting further dues
from her and preventing the New Jersey officials from
enforcing the WDEA. In addition, she sought declaratory
judgments that (i) the WDEA is void and unenforceable and
(ii) members of public-sector unions have a constitutional right
1 In her second complaint, Lutter seeks a refund of union dues
deducted from her paychecks, and that request could be
interpreted as seeking compensatory damages or specific
performance. But Lutter does not seek the return of “specific
currency or coins,” Bowen v. Massachusetts, 487 U.S. 879, 919
n.3 (1988) (Scalia, J., dissenting), and in her briefing, Lutter
makes clear that she seeks compensatory damages and thus her
request is most reasonably construed as a request for damages.
See id. at 918–19 (“Almost invariably, however, suits seeking
(whether by judgment, injunction, or declaration) to compel
the defendant to pay a sum of money to the plaintiff are suits
for ‘money damages,’ as that phrase has traditionally been
applied . . . .”).

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to resign from the union and cease paying union dues at any
time. Lutter sought the ancillary relief of attorney’s fees and
costs, see 42 U.S.C. § 1988(b), and she included a request for
all other relief deemed just, proper, and equitable. As a case
implicating federal questions and her civil rights, Lutter’s
action was putatively within the District Court’s original
subject-matter jurisdiction. See 28 U.S.C. §§ 1331 (federal-
question jurisdiction), 1343 (jurisdiction over cases involving
the deprivation of the rights or privileges of United States
citizens).
Shortly after Lutter filed her second complaint, JNESO
attempted to refund the dues that she had requested. In
correspondence sent to Lutter’s counsel on March 12, 2020,
JNESO’s attorney enclosed a check in the amount of
$1,209.58. The accompanying letter explained that JNESO
was not “seeking any conditions or promises from Ms. Lutter,”
and that “[t]he check is sent to refund the dues that were
deducted from [her paychecks] after she declared her desire to
resign from membership in JNESO, along with an amount to
reflect accrued interest.” Letter from Seth Ptasiewicz, Counsel
for JNESO, Kroll, Heineman, Carton, to Matthew C. Moench,
Counsel for Jody Lutter, King, Moench, Hirniak & Mehta, LLP
(Mar. 12, 2020) (JA85). Lutter did not cash the check
promptly – or ever.
JNESO then relied on that correspondence and Lutter’s
resignation from the union in moving to dismiss Lutter’s
second complaint. Based on those developments, JNESO
asserted that Lutter’s claims for compensatory damages were
moot. Also, because Lutter was not a member of JNESO when
she filed her second complaint, JNESO argued that she lacked

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Article III standing for her requests for injunctive and
declaratory relief.2
In subsequent filings, the other defendants joined JNESO’s
mootness argument. Essex County gave notice that it agreed
with JNESO that the case was moot. In their separate motion
to dismiss, the members of the Public Employment Relations
Commission argued that Lutter’s case should be dismissed on
mootness grounds as well.3 Although they initially responded
to Lutter’s second complaint by filing an answer, the Governor
and Attorney General later filed a brief supporting JNESO’s
mootness and standing arguments.
Through two separate rulings, the District Court dismissed
all of Lutter’s claims. It concluded that by providing the check
to Lutter, JNESO mooted her damages claim. It also dismissed
her requests for injunctive relief because by the time of her
second complaint, she had resigned from the union. After
receiving supplemental briefing, the District Court further
dismissed Lutter’s requests for declaratory relief because, as a
non-union employee, she lacked Article III standing to litigate
whether the WDEA is unconstitutional and whether a member
of a public-sector union has a constitutional right to
immediately resign from the union. Lutter timely appealed,
2 In the alternative, JNESO argued that Lutter’s claims failed
to state a claim for relief because Janus did not invalidate
previous valid authorizations of payroll deductions of union
dues and because JNESO was not a state actor subject to suit
under § 1983.
3 The members of the Commission also argued for a lack of
subject-matter jurisdiction due to Eleventh Amendment
immunity. In addition, they moved in the alternative to dismiss
for failure to state a claim for relief on the grounds that Janus
applied only to non-union employees who paid agency fees and
that the Commission did not enforce or administer the WDEA.

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bringing her suit within this Court’s appellate jurisdiction. See
28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A).
During the pendency of this appeal, on January 18, 2022,
New Jersey enacted the Responsible Collective Negotiations
Act. That legislation eliminated the WDEA’s ten-day window
for a public-sector union member to revoke a prior
authorization for the payroll deductions of union dues. See
2021 N.J. Sess. Law Serv. Ch. 411, at 6 (West) (codified at N.J.
Stat. Ann. § 52:14-15.9e). Under that statutory revision, an
employee, like Lutter, who had authorized the payroll
deductions of union dues before the WDEA’s effective date,
could revoke that authorization “in accordance with the law in
effect at the time of [her] initial authorization of payroll
deduction[s]” or within the terms set forth by that
authorization. Id. If that law had been in place at the time of
the Janus decision, then Lutter could have revoked her
authorization for the payroll deductions of union dues at any
time.
DISCUSSION
On appeal, the lines of argument mirror those presented in
the District Court. Lutter asserts that her claims and requests
for damages, injunctions, and declaratory judgments are
justiciable. The defendants dispute Lutter’s standing to seek
injunctive and declaratory relief, and they argue that her claim
for damages has been mooted by JNESO’s presentment of the
check to Lutter’s counsel.4
4 In addition to the justiciability challenges, the defendants
argue that the District Court’s ruling can be affirmed on other
grounds. JNESO contends that Lutter fails to state a claim for
relief for two reasons: Janus did not invalidate her previous
authorization of the payroll deductions of union dues and
JNESO is not a state actor. The members of the Commission
argue that the dismissal of the claims against them may be

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A. Article III Standing
In partial effectuation of the Preamble, which announced
the intention to “establish Justice,” Article III of the
Constitution creates and defines the judicial power of the
United States. U.S. Const. pmbl.; id. art. III. One limitation
on that power is its applicability to only certain types of cases
and controversies. Article III identifies, by subject matter,
three categories of cases that are within the federal judicial
power, and it specifies, by the parties thereto, six categories of
controversies subject to the federal judicial power. Id. art. III,
§ 2. Beyond those limitations based on subject matter and
party, the terms ‘cases’ and ‘controversies’ themselves have
meaning. See Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)
(“The constitutional power of federal courts cannot be defined,
and indeed has no substance, without reference to the necessity
‘to adjudge the legal rights of litigants in actual
controversies.’” (quoting Liverpool S.S. Co. v. Comm’rs of
Emigration, 113 U.S. 33, 39 (1885))).5 They require genuine
upheld due to Eleventh Amendment immunity. The Governor
and the Attorney General point out that Lutter’s constitutional
challenges depend on the ten-day revocation window in the
WDEA, which has not been construed by any court, and they
advocate for certification of those issues related to the WDEA
to the New Jersey Supreme Court. See N.J. R. App. Prac.
2:12A-1 (“The Supreme Court may answer a question of law
certified to it by the United States Court of Appeals for the
Third Circuit, if the answer may be determinative of an issue
in litigation pending in the Third Circuit and there is no
controlling appellate decision, constitutional provision, or
statute in this State.”).
5 As originally understood, ‘cases’ was the broader term,
encompassing civil and criminal lawsuits, while
‘controversies’ referred only to civil suits. See Aetna Life Ins.
Co. of Hartford v. Haworth, 300 U.S. 227, 239 (1937) (“The

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adversity among at least two parties to the litigation,6 and they
prevent advisory opinions.7 If the judicial power were to
extend beyond cases and controversies, then federal courts
would exceed “the traditional role of Anglo-American courts,”
Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009), and
they could encroach on the powers of the other two Branches
– to say nothing of their potential to impermissibly interfere
with States and the people, see Clapper v. Amnesty Int’l, USA,
568 U.S. 398, 408 (2013); Allen v. Wright, 468 U.S. 737, 752
(1984).
The doctrine of Article III standing represents an additional
limitation on the federal judicial power derived from the case-
term ‘controversies,’ if distinguishable at all from ‘cases,’ is so
in that it is less comprehensive than the latter, and includes only
suits of a civil nature.” (quotation and citation omitted));
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793)
(opinion of Iredell, J., dissenting); see also Cass R. Sunstein,
What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and
Article III, 91 Mich. L. Rev. 163, 168 (1992) (“In the original
understanding, ‘cases’ included both civil and criminal
disputes, whereas ‘controversies’ were limited to civil
disputes.”).
6 See United States v. Johnson, 319 U.S. 302, 305 (1943)
(dismissing a case on jurisdictional grounds due to the absence
of a genuine adversary issue between the parties); see also GTE
v. Sylvania, Inc. v. Consumers Union of the U.S., Inc., 445 U.S.
375, 382–83 (1980).
7 See Flast v. Cohen, 392 U.S. 83, 96 (1968) (“[T]he oldest and
most consistent thread in the federal law of justiciability is that
the federal courts will not give advisory opinions.” (citing C.
Wright, Law of Federal Courts 34 (1963)); Muskrat v. United
States, 219 U.S. 346, 354 (1911) (describing the Supreme
Court’s refusal in 1793 to advise President George Washington
on issues of foreign affairs during the war between France and
England).

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or-controversy requirement. See Spokeo, Inc. v. Robins,
578 U.S. 330, 340 (2016) (recognizing that “the doctrine of
standing derives from the case-or-controversy requirement”);
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he
core component of standing is an essential and unchanging part
of the case-or-controversy requirement of Article III.”). At the
pleading stage, to have Article III standing, a litigant invoking
the power of a federal court must plausibly allege (i) an injury-
in-fact (ii) that is fairly traceable to the conduct of the party
sued, and (iii) that is judicially redressable. See Spokeo,
578 U.S. at 338; Lujan, 504 U.S. at 560–61; see also Lutz v.
Portfolio Recovery Assocs., LLC, 49 F.4th 323, 327–28 (3d
Cir. 2022) (summarizing the plausibility pleading standard).
Such a party must meet those requirements “for each claim that
[it] press[es] and for each form of relief that [it] seek[s].”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021)
(citing Davis v. Fed. Election Comm’n, 554 U.S. 724, 734
(2008)); Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)
(“[S]tanding is not dispensed in gross.”).
As far as timing, the general rule is that a plaintiff in federal
court must have Article III standing on the date the lawsuit was
commenced. See Davis, 554 U.S. at 734 (“[T]he standing
inquiry remains focused on whether the party invoking
jurisdiction had the requisite stake in the outcome when the suit
was filed.”). But under Rule 15, the complaint initiating the
lawsuit may later be amended and supplemented. See Fed. R.
Civ. P. 15(a), (d).8 An amendment revises the allegations,
8 Although parties and courts often refer to any revision to a
pleading as an ‘amendment,’ that is a potential misnomer
because the text of Rule 15 treats amendment and
supplementation differently. Compare Fed. R. Civ. P. 15(a),
with id. 15(d); see Wilcox v. Miller, 691 F.2d 739, 740 n.1 (5th
Cir. 1982) (recognizing that parties often confuse amendment
and supplementation); 6A Charles Alan Wright & Arthur
Miller, Federal Practice and Procedure § 1504 (3d ed. 2019)

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claims, and prayers for relief in a complaint to reflect the state
of things as of the date the action was commenced. See Garrett
v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019) (explaining
that amendment allows the inclusion of “matters that were
overlooked or were unknown at the time the party interposed
the original complaint” (citation omitted)); 6 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1473 (3d ed. 2010) [hereinafter ‘Federal
Practice and Procedure’] (explaining that an amended
pleading should relate only “to matters that have taken place
prior to the date of the earlier pleading”). By contrast,
supplementation adds or alters allegations, claims, or prayers
for relief in the complaint based on events that occurred after
the initiation of the lawsuit. See Garrett, 938 F.3d at 82.9
Amended complaints and supplemental complaints differ
in their treatment of the date upon which a plaintiff must
establish Article III standing. An amended complaint – while
the operative pleading for purposes of evaluating the
sufficiency of the allegations, the viability of the claims, and
the requested relief10 – does not restart the date for assessing
(“Parties and courts occasionally confuse supplemental
pleadings with amended pleadings and mislabeling is
common.”).
9 See also T Mobile Ne. LLC v. City of Wilmington, 913 F.3d
311, 326 (3d Cir. 2019) (“Supplemental pleadings . . . are
limited to subsequent events related to the claim or defense
presented in the original pleading.” (quoting 3 James Wm.
Moore et al., Moore’s Federal Practice ¶ 15.30 (3d ed.
2018))); 6A Federal Practice and Procedure § 1504
(explaining that supplemental pleadings “deal with events
subsequent to the pleading to be altered and represent additions
to or continuations of the earlier pleadings”).
10 See Saint-Jean v. Palisades Interstate Park Comm’n,
49 F.4th 830, 835 (3d Cir. 2022) (recognizing that “an

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standing. See Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565
(1829) (Marshall, C.J.) (“Where there is no change of party, a
jurisdiction depending on the condition of the party is governed
by that condition, as it was at the commencement of the suit.”
(emphasis added)).11 Rather, an amended complaint provides
additional information that can be used to evaluate standing as
of the date that the lawsuit was filed. See Mollan v. Torrance,
22 U.S. (9 Wheat.) 537, 539 (1824) (Marshall, C.J.)
(explaining that subject-matter jurisdiction “depends upon the
state of things at the time of the action brought”).12 That is so
because an amended complaint revises the prior pleading only
to reflect a more accurate understanding of the state of things
when the action was filed – not to update the pleading with
later occurring facts. But, if a district court permits a
supplemental complaint,13 then for the claims and requested
amended complaint ‘supersedes the pleading it modifies’”
(quoting 6 Federal Practice and Procedure § 1476)).
11 See also Rockwell Int’l Corp. v. United States, 549 U.S. 457,
473 (2007) (“The state of things and the originally alleged state
of things are not synonymous; demonstration that the original
allegations were false will defeat jurisdiction. So also will the
withdrawal of those allegations, unless they are replaced by
others that establish jurisdiction.” (citations omitted)); Grupo
Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 574–75
(2004) (holding that a party’s post-filing change in citizenship
cannot cure a lack of diversity jurisdiction from the lawsuit’s
outset).
12 Cf. 28 U.S.C. § 1653 (“Defective allegations of jurisdiction
may be amended, upon terms, in the trial or appellate courts.”);
GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29,
36 (3d Cir. 2018) (remanding for the potential cure of a
jurisdictional defect through amendment).
13 The standards for amendment and supplementation are
similar, but they do not conform exactly as more lenience is
afforded to amendment. Compare Fed. R. Civ. P. 15(a)

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relief substantively affected by the alleged post-suit
developments,14 a plaintiff’s Article III standing is evaluated
as of the date of the supplemental pleading. See, e.g.,
Greenberg v. Lehocky, 81 F.4th 376, 384 n.4 (3d Cir. 2023)
(evaluating a plaintiff’s standing – and not mootness – based
on a later-filed complaint that challenged a revision to a rule
that occurred after the original complaint); Common
Cause/Ga. v. Billups, 554 F.3d 1340, 1347–52 (11th Cir. 2009)
(evaluating plaintiffs’ Article III standing based on a
subsequent complaint challenging a revised statute).15
Here, Lutter labeled her second complaint as an ‘amended
complaint,’ but that is not entirely precise: that pleading
amended and supplemented the original complaint. It added
the date that she submitted a dues deduction authorization card,
June 30, 2011. It also dropped another union as a party. Those
revisions reflect the state of things as of her original complaint,
and thus they are amendments. But Lutter’s second complaint
removed the original allegation that Lutter “is a member of the
JNESO.” Compare Compl. ¶ 19 (JA44), with Am. Compl.
¶¶ 21–25 (JA56–57). It also added factual allegations that
arose after the original complaint: that Lutter did not have any
(amendment “once as a matter of course” within a certain
period and afterwards leave to amend should be “freely give[n]
. . . when justice so requires”), with id. 15(d) (supplementation
“on just terms”). But cf. T Mobile Ne. LLC, 913 F.3d at 327–
29 (applying relation-back principles from amended pleadings
to supplemental pleadings).
14 See Mathews v. Diaz, 426 U.S. 67, 75 (1976) (recognizing
that a supplemental complaint supersedes the prior complaint
with respect to the allegations it supplements).
15 Supplementation may not affect every claim and every form
of requested relief. A supplemental pleading allows the
reassessment of a plaintiff’s Article III standing only for the
claims and relief substantively affected by the
supplementation.

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18
opportunity to cease paying dues for nearly a year and that such
dues were deducted from her paycheck during that time.
Because those alterations reflect post-filing developments,
they supplement the original complaint. Accordingly, Lutter’s
second complaint, although labeled as an ‘amended
complaint,’ is actually an amended and supplemental
complaint.
Critically for purposes of Article III standing, the
supplemental allegations substantively affect all of Lutter’s
claims and requested relief. She now proceeds as a non-
member of a union who seeks relief for the prior deduction of
union dues from her paycheck for nearly a year. Because the
supplemented allegations substantively affect the entirety of
her claims and relief sought, Lutter’s Article III standing
should be evaluated as of February 28, 2020, the date she filed
the second complaint.
Using that date to evaluate her standing, Lutter has failed
to plausibly allege standing except with respect to her claims
against JNESO for a refund of her union dues.16
1. Injury-in-Fact
Lutter’s claims satisfy the injury-in-fact requirement. An
injury-in-fact is “‘an invasion of a legally protected interest’
that is ‘concrete and particularized’ and ‘actual or imminent,
not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339
(citing Lujan, 504 U.S. at 560). Her operative complaint
16 By plausibly alleging standing for one claim, Lutter also has
standing for her requests for attorney’s fees and costs, which,
in this case, are dependent on the viability of her underlying
claims. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480
(1990) (recognizing that a request for attorney’s fees under
42 U.S.C. § 1988 is “insufficient to create an Article III case or
controversy where none exists on the merits of the underlying
claim” (citation omitted)).

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19
sufficiently alleges the invasion of her First Amendment right
against the compelled subsidization of speech. Lutter did not
wish to financially support JNESO’s speech, but as directed by
the WDEA, union dues were deducted from her paycheck for
ten months after she requested that they cease.17 The invasion
of that interest is actual since the funds were taken out of her
paycheck against her wishes and used by JNESO. See Tyler v.
Hennepin County, 598 U.S. 631, 636 (2023) (recognizing a
claim that one party kept money that it was not entitled to was
“a classic pocketbook injury sufficient [for] standing”);
Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 293 (3d
Cir. 2005) (“Monetary harm is a classic form of injury-in-fact.”
(citation omitted)); see also Edmonson v. Lincoln Nat’l Life
Ins. Co., 725 F.3d 406, 417 (3d Cir. 2013) (holding that an
injury-in-fact exists by virtue of a defendant’s “use of assets
that belonged to” the plaintiff). Lutter’s injury is particularized
because the deduction of those union dues from her paycheck
affected her “in a personal and individual way.” Spokeo,
578 U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1). And the
deduction of union dues is concrete because it was “real, and
not abstract.” Id. at 340 (quotation marks and citation omitted).
17 Because Lutter ties the deductions of her union dues to the
WDEA, the nature of her injury-in-fact differs from the
plaintiff in LaSpina v. SEIU Pennsylvania State Council,
985 F.3d 278 (3d Cir. 2021). There, a member of a public-
sector union in Pennsylvania sued the union for continuing to
collect dues for two months after she submitted a resignation,
but unlike Lutter, the former union member did not allege that
the union’s delay was pursuant to the express direction from a
state statute, such as the WDEA. See id. at 287 (“The
deduction of membership dues without authorization in this
context may be an injury. It is just not a constitutional one.”);
cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 933 (1982)
(“[P]rivate use of the challenged state procedures with the help
of state officials constitutes state action for purposes of the
Fourteenth Amendment.”).

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20
For completeness, and relevant for evaluating fairly
traceable causation and redressability, which both depend on
the nature of the injury-in-fact, see TransUnion LLC,
141 S. Ct. at 2203, Lutter does not plausibly allege an
imminent injury-in-fact. At the time of her second complaint,
Lutter was no longer a member of JNESO, so neither her
inability to immediately resign from a union nor the deduction
of future JNESO union dues from her paycheck was “certainly
impending” or subject to a “substantial risk” of reoccurring.
Clapper, 568 U.S. at 409, 414 n.5 (quoting Lujan, 504 U.S. at
565 n.2); see also Whitmore v. Arkansas, 495 U.S. 149, 158
(1990) (“A threatened injury must be certainly impending to
constitute [an] injury in fact.” (quotations and citation
omitted)). Thus, Lutter alleges standing only for an actual
injury-in-fact.
2. Fairly Traceable Causation
Lutter’s operative complaint plausibly alleges a fairly
traceable causal connection between her injury-in-fact and two
of the defendants, but not the others. Fair traceability requires
a causal connection between the injury-in-fact and a
defendant’s conduct; the injury cannot result from “the
independent action of some third party not before the court.”
Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rts.
Org., 426 U.S. 26, 41–42 (1976)). Here, Lutter’s operative
complaint alleges that JNESO and Essex County were
responsible for the deductions of union dues from her
paycheck, so her injury-in-fact is fairly traceable to their
actions.
By contrast, Lutter’s claims against the other defendants –
all of whom are New Jersey officials sued in their official
capacities – fail to allege fairly traceable causation. Because
the WDEA prolonged the deductions of union dues from her
paycheck, she sues the Governor, the Attorney General, and
the Members of the Public Employment Relations Commission
for declaratory and injunctive relief. Although Lutter alleges a
causal nexus to the WDEA, she does not identify any action

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21
taken by these state officials to enforce that statute; she alleges
that only Essex County and JNESO were responsible for the
dues deductions. See Lugar v. Edmondson Oil Co., 457 U.S.
922, 941 (1982) (“While private misuse of a state statute does
not describe conduct that can be attributed to the State, the
procedural scheme created by the statute obviously is the
product of state action.”). And without identifying a fairly
traceable nexus between her injury-in-fact and conduct by the
New Jersey officials, Lutter’s allegations fail the second prong
of Article III standing with respect to them.18
3. Redressability
The redressability requirement ensures that the asserted
injury-in-fact is capable of resolution in a manner consistent
with the traditional understanding of the judicial process. See
United States v. Texas, 143 S. Ct. 1964, 1970 (2023); Raines v.
Byrd, 521 U.S. 811, 819 (1997). For requested relief to satisfy
this requirement, it “must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’” Lujan, 504 U.S. at 561 (quoting Simon, 426 U.S.
at 38, 43). With respect to claims for legal or equitable relief,
a favorable opinion need not relieve every injury; the judgment
need only relieve “a discrete injury.” Larson v. Valente,
456 U.S. 228, 243 n.15 (1982). However, for a declaratory
judgment to provide redress, it must “completely resolve[] a
concrete controversy susceptible to conclusive judicial
determination.” Calderon v. Ashmus, 523 U.S. 740, 749
(1998); see also Coffman v. Breeze Corps., 323 U.S. 316, 323–
24 (1945) (holding that a plaintiff lacked standing for a
18 It is permissible to challenge the constitutionality of a state
statute without suing state officials in their official capacities:
both a federal statute and a federal rule of civil procedure
expressly contemplate such a situation. See 28 U.S.C.
§ 2403(b); Fed. R. Civ. P. 5.1(a).

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22
requested declaratory judgment on potential defenses to a
claim that could be later adjudicated).
Applying these principles, Lutter’s claim for compensatory
damages against JNESO is redressable. Damages, which
operate as a “substitute for a suffered loss,” are a recognized
form of judicial redress for past injuries. Bowen v.
Massachusetts, 487 U.S. 879, 895 (1988) (citing D. Dobbs,
Handbook on the Law of Remedies 135 (1973)); see also
Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021)
(holding that even nominal damages provide redress for a past
injury-in-fact).
The other forms of relief that Lutter requests will not
redress her injury-in-fact. She seeks a preventive injunction
against JNESO and Essex County to enjoin the further
collection of union dues from her paycheck. See Dobbs &
Roberts, Law of Remedies: Damages, Equity, Restitution
§ 2.9(1) (3d ed. 2018) (“A preventive injunction attempts to
prevent the loss of an entitlement in the future”). But by the
time of her operative complaint, Lutter was not a member of
JNESO, and Essex County was not deducting union dues from
her paycheck. Because those deductions had already occurred
and were not likely to reoccur – at least without Lutter’s
consent – a preventive injunction was unlikely to remedy the
compelled past deductions of union dues from her paycheck.
Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)
(“Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.”
(quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974))).
Lutter’s requests for declaratory judgments also fail the
redressability requirement. She seeks declarations that the
WDEA is unconstitutional and that she has a constitutional
right to immediately resign from public-sector unions. But for
a declaratory judgment to redress an injury-in-fact, as opposed
to serving as an advisory opinion, it must provide something

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23
other than the “emotional satisfaction” of a favorable ruling.
Ashcroft v. Mattis, 431 U.S. 171, 172 (1977); see also
Diamond v. Charles, 476 U.S. 54, 62 (1986) (“The presence of
a disagreement, however sharp and acrimonious it may be, is
insufficient by itself to meet [Article] III’s requirements.”).
Instead, to redress an injury-in-fact, a declaratory judgment
must provide conclusive resolution of a concrete controversy
related to a prospective course of action by one of the adverse
parties. See Calderon, 523 U.S. at 749 (holding that a
declaratory judgment was not justiciable because it “would not
completely resolve [all] challenges but would simply carve out
one issue in the dispute for separate adjudication”); Aetna Life
Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240–41 (1937)
(holding that a request for a declaratory judgment regarding an
insured’s disability was justiciable). Yet Lutter does not
identify any prospective course of action of her own or by
JNESO or Essex County for which she needs legal resolution
through declaratory judgments. See Hendrickson v. AFSCME
Council 18, 992 F.3d 950, 958 (10th Cir. 2021) (holding that a
former-union-member plaintiff lacks standing for “a
declaration [of the] constitutionality of the Union’s opt-out
window as applied to him”). If anything, Lutter’s operative
complaint, by alleging that she has resigned her JNESO
membership and that the payroll deductions of union dues had
ceased, confirms that resolution of either the constitutionality
of the WDEA or her putative constitutional right to
immediately resign from a public-sector union would have
nothing more than an abstract value to her.
In short, based on her supplemental allegations, Lutter’s
operative complaint plausibly alleges Article III standing for
only her damages claim against JNESO (as well as for her
ancillary request for attorney’s fees and costs from JNESO).
B. Article III Mootness
Like standing, Article III mootness derives from the case-
or-controversy requirement. See Liner v. Jafco, Inc., 375 U.S.
301, 306 n.3 (1964) (“Our lack of jurisdiction to review moot

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24
cases derives from the requirement of Article III of the
Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy.”); cf. The
Mootness Doctrine in the Supreme Court, 88 Harv. L. Rev.
373, 374 (1974) (recognizing that initially courts grounded
mootness “in the common law doctrine that courts lack power
to decide abstract questions in cases where no dispute exists”).
Accordingly, much of the mootness analysis parallels the
tripartite standing test in that a prerequisite for mootness is the
loss of standing during the pendency of the litigation. See
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“[T]hroughout the
litigation, the plaintiff ‘must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to
be redressed by a favorable judicial decision.’” (quoting Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990))); Arizonans
for Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997) (“To qualify
as a case fit for federal-court adjudication, ‘an actual
controversy must be extant at all stages of review, not merely
at the time the complaint is filed.’” (quoting Preiser v.
Newkirk, 422 U.S. 395, 401 (1975))). And just as the party
seeking to establish standing bears the burden of proof, the
party seeking to demonstrate the loss of standing during the
pendency of the litigation bears the burdens of production and
persuasion. See Hartnett v. Pa. State Educ. Ass’n, 963 F.3d
301, 305–06 (3d Cir. 2020). Also, mootness, like standing,
may be raised at any time, but unlike standing, mootness
depends on the state of things after the lawsuit commenced.
See Church of Scientology of Cal. v. United States, 506 U.S. 9,
12 (1992) (permitting a mootness challenge based on events
that occurred while the case was on appeal); The Mootness
Doctrine in the Supreme Court, 88 Harv. L. Rev. at 377–78
(“In mootness inquiries . . . the range of factual questions
which must be considered is greater than in other justiciability
cases.”).
Despite its similarities to standing, mootness is not merely
the post-suit absence of standing. See Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190

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25
(2000) (“Careful reflection on the long-recognized exceptions
to mootness, however, reveals that the description of mootness
as ‘standing set in a time frame’ is not comprehensive.”);
Hartnett, 963 F.3d at 306. The other case-or-controversy
considerations – the genuine-adversity requirement and the
prohibition on advisory opinions – also influence the mootness
analysis. For instance, if a defendant ceases conduct that
resulted in an actual or imminent injury-in-fact, the parties may
remain genuine adversaries if the defendant, upon dismissal of
the case, were “free to return to his old ways.” United States
v. W. T. Grant Co., 345 U.S. 629, 632 (1953).19 Thus, a
defendant’s voluntary cessation of the complained-of conduct
does not moot claims for prospective relief unless that
defendant meets the “heavy” burden of establishing that “there
is no reasonable expectation that the wrong will be repeated,”
id. at 633 (quotation omitted), and “interim relief or events
have completely and irrevocably eradicated the effects of the
alleged violation,” County of Los Angeles v. Davis, 440 U.S.
625, 631 (1979) (citations omitted).20 Similarly, if during the
litigation, a plaintiff can no longer satisfy the elements of
19 See also Knox v. Serv. Emps. Int’l Union, Loc. 1000,
567 U.S. 298, 307 (2012) (“The voluntary cessation of
challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resumption
of the challenged conduct as soon as the case is dismissed.”);
cf. City News & Novelty, Inc. v. City of Waukesha, 531 U.S.
278, 284 n.1 (2001) (refraining from applying the voluntary
cessation doctrine when it was the plaintiff, “not its adversary,
whose conduct sap[ped] the controversy of vitality” (emphasis
added)).
20 See also Friends of the Earth, 528 U.S. at 189 (“The ‘heavy
burden of persua[ding]’ the court that the challenged conduct
cannot reasonably be expected to start up again lies with the
party asserting mootness.” (alteration in original) (quoting
United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S.
199, 203 (1968))); Hartnett, 963 F.3d at 305–06.

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26
standing, a court ruling may not be an advisory opinion if the
plaintiff establishes that the defendant’s conduct was capable
of repetition yet evading review. See County of Butler v.
Governor of Pa., 8 F.4th 226, 231 (3d Cir. 2021) (“A plaintiff
bears the burden to show that the ‘capable of repetition yet
evading review’ exception applies.” (citations omitted)); N.J.
Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d
Cir. 1985). In sum, the absence of Article III standing is a
necessary condition for mootness, but due to the voluntary-
cessation and capable-of-repetition-yet-evading-review
exceptions, it is not always a sufficient condition.
In challenging mootness, JNESO bears the burden of
establishing that Lutter lost Article III standing after the filing
of her supplemental complaint on February 28, 2020. As far
as its burden of production, JNESO relies on correspondence
from its counsel to Lutter’s attorney dated March 12, 2020.
Enclosed therein was a check, which JNESO’s counsel
described in the cover letter as being in the amount of the union
dues collected from Lutter “after she declared her desire to
resign from membership in JNESO,” plus interest. Letter from
Ptasiewicz (JA85). There is, however, no evidence that Lutter
ever cashed or deposited the check. Also, during the pendency
of this appeal, New Jersey enacted the Responsible Collective
Negotiations Act, which eliminated the ten-day window
provided by the WDEA for public-sector employees to revoke
their authorizations for payroll deductions of union dues. See
2021 N.J. Sess. Law Serv. Ch. 411 (West) (codified at N.J.
Stat. Ann. § 52:14-15.9e). On that record, JNESO must – as a
prerequisite to establishing mootness – demonstrate that
Lutter’s Article III standing was extinguished.
For the first and second elements of standing, those
intervening events do not undo Lutter’s injury-in-fact or its fair
traceability to JNESO. Lutter’s alleged injury-in-fact was the
invasion of her First Amendment right protecting her from the
compelled subsidization of speech through the operation of the
WDEA, which, at the time, governed the deduction of union

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27
dues from her paycheck. See Janus, 138 S. Ct. at 2464 (“When
speech is compelled, . . . additional damage is done. In that
situation, individuals are coerced into betraying their
convictions.”). But neither JNESO’s check for Lutter’s dues
plus interest nor the repeal of the WDEA’s ten-day window
changed Lutter’s allegations that she had subsidized JNESO’s
speech against her will. See id. (“Because the compelled
subsidization of private speech seriously impinges on First
Amendment rights, it cannot be casually allowed.”). So her
injury-in-fact persists, and it remains fairly traceable to
JNESO, which received union dues from Lutter’s paycheck
after she requested that the deductions cease and that she resign
from the union. Cf. Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 81 (2013) (Kagan, J., dissenting) (explaining that
after an unaccepted offer of judgment, the plaintiff’s “stake in
the lawsuit . . . remained what it had always been”); see also
Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 162 (2016)
(adopting Justice Kagan’s analysis in her Genesis Healthcare
dissent).
Like the other two elements, the third, redressability, is
“rooted in the traditional understanding of a case or
controversy.” Spokeo, 578 U.S. at 338; see also Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 103 (1998); Raines,
521 U.S. at 818–19. Relevant here, the mechanism of contract
has been traditionally understood to limit the scope of judicial
redress. It is firmly entrenched in American jurisprudence that
parties can contractually agree not to resolve disputes in court
but proceed instead through arbitration. See Bel-Ray Co. v.
Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999)
(“Arbitration is strictly a matter of contract.”); see also United
Steelworkers of Am. v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 582 (1960) (“[A]rbitration is a matter of contract
and a party cannot be required to submit to arbitration any
dispute which he has not agreed so to submit.”). Once in court,
parties may still alter their rights relative to one another by
agreeing to resolve pending claims. Yet, from the founding, it
has been understood that “courts ‘render a judgment or decree

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28
upon the rights of the litigant[s].’” Texas, 143 S. Ct. at 1980
(Gorsuch, J., concurring) (alterations in original) (quoting
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 718
(1838)). So when parties alter their rights relative to one
another through a settlement agreement, they typically
eliminate the necessity of judicial redress with respect to the
settled matters. See Alvarez v. Smith, 558 U.S. 87, 94 (2009)
(recognizing that “where mootness results from settlement
rather than happenstance, the losing party has voluntarily
forfeited his legal remedy” (quotations and citations omitted)).
But cf. Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d
218, 224 (3d Cir. 2000) (holding that a case subject to a “high-
low settlement agreement” was not moot). And by settling a
dispute, the parties dramatically diminish the likelihood that a
favorable decision would redress the injury-in-fact.21
But here there was no settlement contract to alter the
parties’ rights relative to each other and affect the scope of
traditionally permissible judicial relief. JNESO’s
correspondence is not a valid settlement offer. In its cover
letter, JNESO sought no promise or performance in return for
the check. See Restatement (Second) of Contracts § 24 (Am.
L. Inst. 1981) (“An offer is the manifestation of willingness to
enter into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will
conclude it.”); id. § 3 (“A bargain is an agreement to exchange
21 The mootness-by-reason-of-settlement principle makes
unnecessary consideration of the voluntary-cessation and the
capable-of-repetition-yet-evading-review exceptions. See U.S.
Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 29
(1994) (recognizing “mootness by reason of settlement” and
discussing its consequences on a judgment under review);
United Airlines, Inc. v. McDonald, 432 U.S. 385, 400 (1977)
(Powell, J., dissenting) (“The settlement of an individual claim
typically moots any issues associated with it.”); Lusardi v.
Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992) (“Settlement of
a plaintiff’s claims moots an action”).

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29
promises or to exchange a promise for a performance or to
exchange performances.” (emphasis added)). To the contrary,
JNESO disavowed “seeking any conditions or promises from
Ms. Lutter.” Letter from Ptasiewicz (JA85). Similarly, neither
the cover letter nor the check contained conspicuous language
that the check was tendered in full satisfaction of Lutter’s
claims – as required by New Jersey’s Uniform Commercial
Code for a check to function as a settlement offer. See N.J.
Stat. Ann. § 12A:3-311(b) (West 2018) (allowing discharge of
a claim “if the person against whom the claim is asserted
proves that the instrument or an accompanying written
communication contained a conspicuous statement to the effect
that the instrument was tendered as full satisfaction of the
claim”). Even if the check did suffice for a settlement offer,
Lutter did not accept it because under New Jersey’s Uniform
Commercial Code, to accept such an offer, the recipient has to
“obtain[] payment of the instrument,” and there is no evidence
that Lutter ever did so. Id. § 12A:3-311(a); see also Hoekman
v. Educ. Minn., 41 F.4th 969, 977 (8th Cir. 2022) (“[A]n
uncashed check is not materially different from an unaccepted
offer of settlement.”). Yet, an unaccepted settlement offer –
even one that purports to satisfy a claim in full – does not moot
a case. See Campbell-Ewald, 577 U.S. at 162–63; id. at 174
(Thomas, J., concurring in the judgment) (“[S]tate and federal
courts have not considered a mere offer, without more,
sufficient to moot [a] case.”); Knox v. Serv. Emps. Int’l Union,
Loc. 1000, 567 U.S. 298, 307 (2012) (holding that a post-
certiorari offer to class members to fully refund the collection
of disputed union dues did not moot the case); LaSpina v. SEIU
Pa. State Council, 985 F.3d 278, 288 n.2 (3d Cir. 2021)
(suggesting in dicta that a former union member’s “refusal to
cash the check may be sufficient to defeat mootness”).22 Thus,
22 See also Genesis Healthcare, 569 U.S. at 81 (Kagan, J.,
dissenting) (recognizing that an unaccepted offer of judgment
does not limit “the court’s capacity to grant . . . relief”); Gates
v. Towery, 430 F.3d 429, 432 (7th Cir. 2005) (“A defendant

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30
JNESO’s correspondence to Lutter, inclusive of the check for
union dues plus interest, does not, by itself, moot her case.
Still, a settlement agreement is not necessary to moot a
case. See Campbell-Ewald, 577 U.S. at 180 (Roberts, C.J.,
dissenting) (“Article III does not require the parties to
affirmatively agree on a settlement before a case becomes
moot.”). The unilateral action of one party may eliminate a
plaintiff’s Article III standing, but that commonly occurs when
some unilateral action abates the asserted injury-in-fact,
especially for injuries that are ongoing or imminent. See Burke
v. Barnes, 479 U.S. 361, 364 n* (1987) (concluding that the
expiration of a statute extinguished any “judicially cognizable
injury”); cf. Lewis, 494 U.S. at 481 (permitting “suits for
prospective relief to go forward despite abatement of the
underlying injury only in the ‘exceptional situations’” of an
injury capable of repetition yet evading review (quoting Lyons,
461 U.S. at 109)); DeFunis v. Odegaard, 416 U.S. 312, 318
(1974) (recognizing the usual applicability of voluntary
cessation concerns in response to a defendant’s “unilateral
change” that eliminates the claimed injury).
But this case involves an actual injury-in-fact inflicted in
the past that remains. So to show that Lutter’s claim is
presently non-redressable, JNESO must demonstrate that even
without a settlement agreement to alter the rights of the parties,
a damages award would be unlikely to redress Lutter’s injury.
JNESO identifies one case fitting that description: California
v. San Pablo & Tulare R.R. Co., 149 U.S. 308 (1893). There,
a railroad that owed delinquent taxes to California deposited
the amount of money owed in taxes plus interest, penalties, and
costs, into a bank. Under a state statute, those actions
“extinguished” the railroad’s obligation for the payment of
money. Id. at 314. Because a state statute allowed the
cannot simply assume that its legal position is sound and have
the case dismissed because it has tendered everything it admits
is due.”).

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31
unilateral action by one party to alter the parties’ rights relative
to each other and affect the scope of traditionally permissible
judicial relief, the Supreme Court held that the case was moot.
Id. But here, there is no applicable law that, when coupled with
JNESO’s post-filing actions, would alter the rights of the
parties relative to one another.
Altogether, in the absence of a settlement agreement or
some other alteration of the litigants’ relative rights, JNESO
has not demonstrated that the traditional damages remedy
would not likely provide some redress to Lutter. See
13C Federal Practice and Procedure § 3533.3 (“The
availability of damages or other monetary relief almost always
avoids mootness.”). And without proof that Lutter lost
Article III standing during the litigation, this case is not moot.
See Wheeling-Pittsburgh Steel Corp. v. United Steelworkers of
Am., AFL-CIO-CLC, 791 F.2d 1074, 1080 (3d Cir. 1986)
(recognizing that one party’s “motivating interest in securing a
precedent does not render the case nonjusticiable as long as
there are, in fact, stakes at issue”).23
This holding – that the post-suit provision of a check for the
amount owed for the underlying claims plus interest does not
moot Lutter’s claims – aligns well with the fee-shifting
consequences of dismissals on mootness grounds. Even when
a statute authorizes the recovery of attorney’s fees, a plaintiff
cannot recover fees for a mooted claim because such a
disposition lacks the “judicial imprimatur” of a change in the
legal relationship of the parties. Buckhannon Bd. & Care
Home, Inc. v. W.V. Dep’t of Health & Hum. Res., 532 U.S. 598,
605 (2001) (emphasis removed); see also Lewis, 494 U.S. at
480. Under that rule, a dismissal on mootness grounds is an
attractive disposition for a defendant who is subject to liability
23 Because the voluntary-cessation and capable-of-repetition-
yet-evading-review exceptions apply only when a plaintiff has
lost Article III standing during the course of the litigation, it is
not necessary to address their applicability here.

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for attorney’s fees but who does not wish to contest liability for
the underlying claims. In contrast to the other options
commonly available to such a defendant for resolving the case
expeditiously – settling it,24 defaulting,25 or making an offer of
judgment26 – which require an accounting for fee liability at
some point, a dismissal on mootness grounds does not. So if a
check in the amount owed for the underlying claims (but not
fees and costs) sufficed for mootness, then defendants could
avoid fee liability in an unprecedented manner. By avoiding
that outcome, today’s holding does not open a loophole for
defendants to avoid fee exposure. See N.Y. State Rifle & Pistol
Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1538 (2020)
(Alito, J., dissenting) (“But where a live controversy remains,
a defendant who would otherwise be liable for attorney’s fees
should not be able to wiggle out on the basis of a spurious claim
of mootness.”).27
24 See Buckhannon, 532 U.S. at 609 (“If a case is not found to
be moot, and the plaintiff later procures an enforceable
judgment, the court may of course award attorney’s fees.
Given this possibility, a defendant has a strong incentive to
enter a settlement agreement, where it can negotiate attorney’s
fees and costs.”).
25 See Fed. R. Civ. P. 55.
26 See Fed. R. Civ. P. 68(a), (d); see also 42 U.S.C. § 1988(b)
(defining attorney’s fees as part of “costs”); Marek v. Chesney,
473 U.S. 1, 46 (1985) (Brennan, J., dissenting, app.)
(recognizing 42 U.S.C. § 1988 as a statute in which attorney’s
fees were referred to as ‘costs’).
27 Because it dismissed Lutter’s complaint on standing and
mootness grounds, the District Court did not consider JNESO’s
two additional challenges to the legal sufficiency of the
operative complaint. But with the partial vacating of the
District Court’s order to allow Lutter’s damages claim against
JNESO, those two issues – whether Janus invalidated

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CONCLUSION
For the foregoing reasons, the orders of the District Court
will be affirmed in part and vacated in part, and this case will
be remanded for resolution of Lutter’s claims for damages (and
potentially attorney’s fees and costs) against JNESO.
previous, valid authorizations of payroll deductions of union
dues and whether JNESO was a state actor subject to suit under
§ 1983 – are properly addressed in the first instance by the
District Court on remand. Also, because Lutter lacks standing
to pursue claims against the official-capacity defendants, it is
not necessary to resolve their arguments in favor of Eleventh
Amendment immunity and certification to the New Jersey
Supreme Court.

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