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OTTO v. PENNSYLVANIA STATE EDUC. ASSOCIATION-NEA

January 13, 1997

MARSHA OTTO, F. NAYLOR EMORY, DENNIS A. ERB, ROBERT K. GILBERT, JAMES W. LOSSEL, BARBARA J. McCALLEY and WESLEY S. SEMPLE, Plaintiffs
v.
PENNSYLVANIA STATE EDUCATION ASSOCIATION-NEA, NATIONAL EDUCATION ASSOCIATION, GROVE CITY AREA ASSOCIATION and SHALER AREA EDUCATION ASSOCIATION, Defendants



The opinion of the court was delivered by: CALDWELL

 This is an action under 42 U.S.C. § 1983, challenging certain procedures employed in the collection of "fair share" fees by the Defendants, the National Education Association ("NEA"), the Pennsylvania State Education Association ("PSEA"), and the Shaler Area Education Association ("SAEA"). Before us is a partial motion to dismiss under Fed. R. Civ. P. 12.

 I. Background

 Defendants are affiliated national, state and local teachers' unions. Plaintiffs are seven nonunion public school employees, who challenge certain aspects of Defendants' collection of fair share fees for the 1994-95 and 1995-96 academic years.

 The Pennsylvania Fair Share Act, 71 Pa. Stat. § 575 (1990), authorizes public employees' unions to collect fair share fees from nonmembers to help defray the cost of the union's exclusive bargaining representation of all employees.Id. § 575(b). Fair share fees are calculated as the dues paid by union members, less the amounts not employed by the union in its role as exclusive representative. Id. § 575(a). The fair share fee is thus a percentage of the full fee paid by union members.

 Because the mandatory collection of fair share fees from nonmembers represents some degree of impairment of the nonmembers First Amendment rights, the union must provide nonmembers with certain procedural safeguards. Chicago Teachers Union v. Hudson, 475 U.S. 292, 301-03, 106 S. Ct. 1066, 1073-74, 89 L. Ed. 2d 232, 243-45 (1986). The nonmember has a right to object to any portion of his or her fees being spent on political activities unrelated to the union's duties as exclusive bargaining representative. Id. at 301-02, 106 S. Ct. at 1073, 89 L. Ed. 2d at 244. The union must also provide some opportunity for a nonmember who objects to the calculation of the fee to have his or her objections resolved by "a reasonably prompt decision by an impartial decisionmaker." Id. at 307, 106 S. Ct. at 1076, 89 L. Ed. 2d at 247.

 Each year, Defendants each make a separate calculation of the percentage of their expenses which will be applied to collective bargaining representation. This percentage is then used to determine the fair share fee to be paid by nonmembers. NEA's and PSEA's calculations are verified by independent audit, but SAEA's calculations are not.

 Nonmembers receive a "Notice to Fair Share Feepayers" each year, detailing the fair share fees and the underlying calculations. (Complaint, ex. A). The Notice provides that nonmembers may challenge *fn1" the calculation of the fair share fee, by notifying PSEA in writing. Such disputes are resolved through binding arbitration. (Complaint, ex. A at 18).

 Plaintiffs received the Notice to Fair Share Feepayers for the years in question, and paid their fair share fees without invoking the challenge procedure.

 Defendants have moved to dismiss Plaintiffs' second and third claims, arguing that Plaintiffs' failure to make use of proscribed procedures to challenge the fair share fees at the time they are assessed leave Plaintiffs without standing to sue. The Magistrate Judge issued a Report and Recommendation, recommending that we deny Defendants' motion. All parties have filed objections to the Magistrate's Report.

 II. The Standing Requirement

 The judicial power of the federal courts is limited to the adjudication of "cases" and "controversies." U.S. Const. Art. III § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 2130, 2135-36, 119 L. Ed. 2d 351, 363-64 (1992); UPS Worldwide Forwarding, Inc. v. U.S. Postal Serv., 66 F.3d 621, 625 (3d Cir. 1995), cert. denied, U.S. , 116 S. Ct. 1261, 134 L. Ed. 2d 210 (1996). This limitation means that for a federal court to have jurisdiction to entertain ...


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