James M. Sweeney v. Kwame Raoul, in his official capacity as Attorney General for the State of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3413
JAMES M. S WEENEY , et al.,
Plaintiffs-Appellants,
v.
K WAME R AOUL, in his official capacity as
Attorney General for the State of Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-1362 — Sharon Johnson Coleman, Judge.
____________________
A RGUED S EPTEMBER 29, 2020 — DECIDED M ARCH 8, 2021
____________________
Before R OVNER , S CUDDER , and S T. EVE, Circuit Judges.
SCUDDER , Circuit Judge. In its 2018 decision in Janus v.
AFSCME, the Supreme Court held that public unions cannot
require nonmembers to pay fees for the benefits of being rep-
resented by the union in collective bargaining and workplace
disputes. To hold otherwise, the Court concluded, would run
counter to the First Amendment’s prohibition on compelled
speech and association. Faced with this new economic reality,

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2 No. 19-3413
an Illinois union that represents municipal public works em-
ployees brought suit alleging that Janus itself effected a con-
stitutional violation in the other direction—forcing unions to
represent nonmembers for free in violation of the union’s own
First Amendment right to avoid compelled association and
speech. The district court rejected that position on the merits
and entered summary judgment against the union. We vacate
that judgment and remand with instructions to dismiss the
union’s complaint for lack of subject matter jurisdiction. The
union brought a claim that federal courts will have to answer
in time. But we cannot answer the question now, for the union
has not alleged any concrete and particular facts showing that
it faces the post-Janus freeriding predicament animating its
lawsuit. Our resolving the substantial legal question in the ab-
stract would offend the longstanding prohibition on federal
courts issuing advisory opinions.
I
A
The Illinois Public Labor Relations Act governs labor rela-
tions between public employees and employers across the
state. See 5 ILCS 315/1. A majority of employees in a bargain-
ing unit may vote to select a union as their exclusive repre-
sentative for collective bargaining and grievance proceeding
purposes. With that exclusivity comes the responsibility of the
union to fairly represent all bargaining unit employees, in-
cluding those who are not union members. See 5 ILCS
315/6(d).
For many years, Illinois law allowed public unions to re-
quire nonmembers to pay so-called “fair share” or “agency”
fees to compensate for the representative services the union

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No. 19-3413 3
provides. This payment obligation sparked objections from
nonmembers, and the issue made its way to the Supreme
Court. In 1977 the Court concluded that a similar fair-share-
fees law in Michigan did not violate nonmembers’ First
Amendment rights. See Abood v. Detroit Bd. of Educ., 431 U.S.
209. While acknowledging that mandatory fees forced those
not wishing to affiliate with a union to subsidize its opera-
tions, the Court considered this an appropriate middle
ground since the union, as exclusive representative, shoul-
dered the obligation of representing nonmembers’ interests
before the employer with the same fervor and diligence as it
owed dues-paying members. See id. at 221–22. This compro-
mise came to reflect the norm in over 20 states. Until 2018 and
Janus.
In Janus the Supreme Court overruled Abood and held that
unions compelling the payment of fair share fees from non-
members offended the First Amendment. Janus v. AFSCME,
138 S. Ct. 2448, 2460 (2018). This mandatory fee, the Supreme
Court reasoned, violated the “free speech rights of nonmem-
bers by compelling them to subsidize private speech on mat-
ters of substantial public concern.” Id. Janus, in short, left pub-
lic unions unable to collect fair share fees from nonmembers.
International Union of Operating Engineers Local 150 is
one such union. It represents around 3,300 municipal employ-
ees in 133 bargaining units across primarily northern Illinois
and northwest Indiana. James Sweeney serves as Local 150’s
president. The union employs nine staff members to represent
public employees in employment disputes. Doing so costs
about $5 million each year.
Local 150 says Janus has put the union between a rock and
a hard place. As the exclusive representative of a bargaining

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4 No. 19-3413
unit’s employees, it remains obligated to represent nonmem-
bers, yet it must now do so without any way of compelling
fair share fees from these employees. Many nonmembers, Lo-
cal 150 adds, have sent form letters reminding the union of its
fair representation obligation. Local 150 thus sees Janus as en-
abling a kind of freeriding sure to strain the union’s limited
resources.
B
Local 150 invoked 42 U.S.C. § 1983 and brought suit in the
district court in February 2018, alleging that the duty of fair
representation in Illinois law without the corresponding abil-
ity to collect fair share fees infringes the union’s First Amend-
ment rights of free speech and association. The lawsuit named
as defendants the Attorney General of Illinois and the Execu-
tive Director of the Illinois Labor Relations Board.
The defendants saw the lawsuit as premature—as Local
150 suing to resolve a legal question it believed was teed-up
by Janus, rather than in response to a nonmember who re-
fused to pay fair share fees but sought to force the union to
represent him in one form or another. The district court disa-
greed, concluding that, after Janus, Local 150 faced imminent
injury to its rights and obligations under Illinois law. An in-
jury of this sort, the district court reasoned, sufficed to create
a viable preenforcement challenge to the union’s duty of fair
representation.
About a year later, in November 2019, the district court
entered summary judgment for the defendants and dismissed
Local 150’s claims with prejudice. Janus, the district court con-
cluded, addressed compulsory fees from nonmembers rather
than the principles of fair and exclusive representation. From

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No. 19-3413 5
there the district court emphasized that the Supreme Court
had made expressly plain that “states can keep their labor-re-
lations system exactly as they are—only they cannot force
nonmembers to subsidize public-sector unions.” Janus, 138 S.
Ct. at 2485 n.27. Because Janus in no way altered the system of
exclusive and fair representation outlined in Illinois law, the
district court determined that it remained bound by other Su-
preme Court precedent rejecting a union’s First Amendment
challenge to a state law mandating exclusive representation.
See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271
(1984). Because Janus, by its own terms, purports to affect only
the constitutionality of fair share fees and because Knight re-
mains good law, the district court entered summary judgment
for the defendants.
Local 150 now appeals.
II
Local 150’s lawsuit presents a question courts are certain
to confront in Janus’s wake—whether a public union, no
longer allowed to charge nonmembers fair share fees, must
nonetheless represent those nonmembers in employment dis-
putes. Indeed, Local 150 so anticipated the question that it
brought its claims while Janus was pending, apparently pre-
dicting that a Supreme Court decision in favor of objecting
nonmember employees would ripen the follow-up question.
But Local 150’s asking the question does not mean a fed-
eral court owes the union an answer—at least not now. The
reason comes from Article III’s Case or Controversy require-
ment. Distilled to its essence, this requirement limits federal
courts to resolving concrete disputes between adverse parties.
See Valley Forge Christian Coll. v. Americans United for

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6 No. 19-3413
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). Put
another way, Article III prevents federal courts from answer-
ing legal questions, however important, before those ques-
tions have ripened into actual controversies between someone
who has experienced (or imminently faces) an injury and an-
other whose action or inaction caused (or risks causing) that
injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
These limitations, requirements, and prohibitions are embod-
ied in the so-called justiciability doctrines—standing, moot-
ness, ripeness, and the prohibitions on providing advisory
opinions and answering political questions. See 13 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3529 (3d ed. 2020).
A
Local 150’s claims fail on straightforward applications of
standing and ripeness.
To establish “the irreducible constitutional minimum of
standing,” the plaintiff must have suffered an injury in fact
traceable to the defendant and capable of being redressed
through a favorable judicial ruling. Lujan, 504 U.S. at 560–61.
The alleged injury must be “concrete and particularized” as
well as “actual or imminent, not conjectural or hypothetical”
to establish standing. Id. at 560. A “particularized” injury is
one that “affect[s] the plaintiff in a personal and individual
way.” Id. at 560 n.1. Concreteness requires the injury to exist
and be “real,” not “abstract.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016).
Because it would be both foolhardy and unfair to always
force a plaintiff to break a law to challenge its legitimacy, the
Supreme Court has outlined circumstances in which a party

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No. 19-3413 7
may advance a preenforcement challenge before suffering an
injury—so long as the threatened enforcement is “sufficiently
imminent.” See Susan B. Anthony List v. Driehaus, 573 U.S. 149,
159 (2007). Meeting this standard requires allegations of both
“an intention to engage in a course of conduct arguably af-
fected with a constitutional interest, but proscribed by a stat-
ute,” and “a credible threat of prosecution thereunder.” Bab-
bitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979);
see also Holder v. Humanitarian Law Project, 561 U.S. 1, 15–16
(2010) (explaining that a history of enforcement, threat of fu-
ture enforcement, and intention to commit similar conduct in
future created an imminent-enough injury to bring preen-
forcement challenge).
We can restate many of these same precepts in terms of
ripeness. Much like standing, ripeness gives effect to Article
III’s Case or Controversy requirement by “prevent[ing] the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.” Abbott
Labs. v. Gardner, 387 U.S. 136, 148 (1967). Plain and simple,
ripeness is “peculiarly a question of timing.” Blanchette v.
Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974). In evaluating
ripeness, we consider “both the fitness of the issues for judi-
cial decision and the hardship to the parties of withholding
court consideration.” Abbott Labs., 387 U.S. at 149.
B
Local 150 did not present a Case or Controversy to the dis-
trict court. For starters, Local 150 alleged no concrete or par-
ticularized injury. The union asked an important question—
whether the duty of fair representation imposed by Illinois
law violates Local 150’s associational and free speech rights—
without pointing to an actual or imminent injury to that

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8 No. 19-3413
purported legal interest. It is not enough to say that after Janus
several employees left the union or that nonmembers reacted
to the decision by no longer paying fair share fees. The union
needs to go a step further and identify a nonmember who has
demanded representation in a grievance proceeding. That Lo-
cal 150 sees such demands around the corner falls short of
showing an imminent injury. To conclude otherwise would
be tantamount to saying that Janus itself created a follow-on
Case or Controversy for all public unions with nonmembers
who decline to pay fair share fees.
Local 150’s standing shortcoming does not end there. Even
if we accepted the union’s allegations as sufficient to demon-
strate a cognizable injury, the alleged injury is not traceable to
the defendants. Recall who Local 150 named as defendants—
the Illinois Attorney General and the Executive Director of the
Illinois Labor Relations Board. Illinois law empowers the At-
torney General to prosecute violations of Board orders and to
seek injunctive relief on behalf of parties complaining of vio-
lations of the Public Labor Relations Act. But Local 150 has
not alleged that the Attorney General has threatened or
brought any post-Janus enforcement proceedings against any
union, let alone Local 150 itself, for any alleged violation of
the duty to fairly represent nonmembers.
Local 150’s real gripe is with Janus and what the union
fears the Supreme Court’s decision portends. For obvious rea-
sons, Local 150 did not sue the Supreme Court. But the Board
and the Attorney General are no more appropriate defendants
at this juncture: neither party has taken any action risking or
imposing any injury on Local 150.
Nor is this a circumstance in which Local 150 has brought
a permissible preenforcement challenge to its post-Janus fair

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No. 19-3413 9
representation obligation. The Supreme Court has recognized
scenarios in which a plaintiff may bring suit prior to suffering
an injury. Those circumstances require allegations of a threat
of enforcement that is both credible and imminent, where the
plaintiff makes clear its intention to continue its possibly un-
lawful conduct. See Driehaus, 573 U.S. 149. Local 150’s claims,
however, display none of these characteristics. The union
does not suggest an “intention to engage in a course of con-
duct arguably affected with a constitutional interest” and pro-
scribed by the statute. Babbitt, 442 U.S. at 298. Quite the oppo-
site: Local 150 pledges to fulfill its duty of fair representation
to nonmembers. Remember, too, the union does not allege
that either the Attorney General or the Board has taken even
a single step along the path to enforcement.
Nothing changes if we assess Local 150’s complaint
through the lens of ripeness. The union’s complaint is prema-
ture. Indeed, Janus had not even been decided when Local 150
first filed this lawsuit. Local 150 pulled the litigation trigger
anticipating Janus’s outcome and worried about its potential
impact, but it did so without a nonmember demanding fair
representation or any other action by the union.
III
At the end of the day, we are left with a request for an ad-
visory opinion. While we understand Local 150’s desire for
additional legal certainty after Janus, federal courts do not
deal in advice. This principle has been well established since
the early days of the Republic. See Correspondence of the Jus-
tices, reprinted in 3 Correspondence and Public Papers of John Jay,
1782-1793, at 486–89 (Henry P. Johnston ed., 1891) (declining
to opine on a list of hypothetical questions posed by President
Washington’s administration about neutrality in a war

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10 No. 19-3413
between England and France). Article III of the Constitution
limits us to the resolution of Cases and Controversies.
The wrong reaction to today’s decision is to think Local
150 has advanced a losing position. Not so. The question at
the heart of Local 150’s lawsuit is important to public unions
and remains unsettled. It just needs to await resolution within
the confines of a concrete and particularized dispute between
a public union and nonmember demanding fair representa-
tion.
The benefits of awaiting a concrete and particularized dis-
pute—a Case or Controversy—are plain. Doing so will give
all involved an opportunity to fully probe the extent of a pub-
lic union’s obligation to fairly represent a nonmember who
pays nothing for services rendered. Indeed, the union’s pro-
posed solution proves the point. After explaining the predic-
ament the union sees as created by Janus, Local 150 empha-
sizes an alternative prescription mentioned by the Supreme
Court itself—that unions be able to charge nonmembers the
costs of representation in grievance proceedings. See Janus,
138 S. Ct. at 2468–69 (“Individual nonmembers could be re-
quired to pay for that service or could be denied union repre-
sentation altogether.”). That alternative cannot be explored—
legally, practically, or otherwise—in the abstract. Facts will
matter and allow the parties and courts alike to consider
where the next line should be drawn in an area of law still
being written.
We VACATE the district court’s judgment and REMAND
with instructions to dismiss for lack of subject matter jurisdic-
tion.

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