PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________________
Nos. 21-3096, 21-3097, and 22-1108
___________________________
BRADLEY BARLOW,
Appellant in case no. 21-3096
v.
SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 668; MICHAEL NEWSOME, in his official capacity
as Secretary of the Pennsylvania Office of Administration;
BRIAN T. LYMAN, in his official capacities as Chief
Accounting Officer for the Commonwealth of Pennsylvania
and Deputy Secretary for the Office of Comptroller
Operations
FRANCES BIDDISCOMBE,
Appellant in case no. 21-3097
v.
SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 668; MICHAEL NEWSOME, in his official capacity
as Secretary of the Pennsylvania Office of Administration;
BRIAN T. LYMAN, in his official capacities as Chief
Accounting Officer for the Commonwealth of Pennsylvania
and Deputy Secretary for the Office of Comptroller
Operations
MIRIAM FULTZ; DARLEEN DALTO; LUCINDA
RADAKER; LACEY BAINBRIDGE; CAROL SHANER;
JASON KOHUTE; KURTIS COATES; LISA SOUTHERS;
BRITTANY ZAPPASODI; SCOTT CARTER; DEBRA
KERSTETTER; ASHLEY CLUCK; BLAINE CHAPMAN;
BARBARA RICHTER,
Appellants in case no. 22-1108
v.
AMERICAN FEDERATION OF STATE COUNTY
AND MUNICIPAL EMPLOYEES, Council 13;
GOVERNOR OF PENNSYLVANIA; MICHAEL
NEWSOME, in his official capacity as Secretary of the
Pennsylvania Office of Administration; BRIAN T. LYMAN,
in his official capacities as Chief Accounting Officer for the
Commonwealth of Pennsylvania and Deputy Secretary for the
Office of Comptroller Operations
___________________________
On Appeal from The United States District Court
for the Middle District of Pennsylvania
(D.C. Nos.: 1-20-cv-02459; 4-20-cv-02462; and
1-20-cv-02107)
District Judges: Honorable Yvette Kane; Honorable John E.
Jones, III
___________________________
2
Argued: September 20, 2023
Before: RESTREPO, MCKEE, and RENDELL, Circuit
Judges
(Filed: January 12, 2024)
Danielle R. Acker Susanj
Stephen B. Edwards [ARGUED]
Nathan J. McGrath
THE FAIRNESS CENTER
500 North Third Street, Suite 600B
Harrisburg, PA 17101
Counsel for Appellants
Ramya Ravindran [ARGUED]
BREDHOFF & KAISER, P.L.L.C.
805 15th Street, N.W., Suite 1000
Washington, DC 20005
Amy L. Rosenberger
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Counsel for Appellee AFSCME, Council 13
Scott A. Kronland [ARGUED]
Jeffrey B. Demain
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
3
Lauren M. Hoye
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Counsel for Appellee SEIU Local 668
Michelle Henry, Attorney General
Michael J. Scarinci, Deputy Attorney General [ARGUED]
J. Bart DeLone, Chief Deputy Attorney General, Appellate
Litigation Section
OFFICE OF THE PENNSYLVANIA ATTORNEY GENERAL
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellees Michael Newsome, Bryan T.
Lyman, and Thomas Wolf
________________________
OPINION OF THE COURT
________________________
RESTREPO, Circuit Judge.
Bradley Barlow and Frances Biddiscombe were
members of Service Employees International Union (SEIU)
Local 668, the bargaining unit representing employees of the
Pennsylvania Department of Human Services (DHS). They
each signed new union membership applications in June of
2018, voluntarily authorizing paycheck dues deductions. The
authorizations were valid from year to year and irrevocable,
regardless of membership status, unless the member provided
written notice of revocation within a specified annual window
of at least ten days and not more than thirty days before the end
4
of any yearly period. Barlow and Biddiscombe each submitted
letters of resignation from SEIU Local 668 in July of 2020,
after their annual revocation windows had passed. Pursuant to
the authorizations, SEIU Local 668 continued to deduct
membership dues until the annual revocation windows
reopened in May and June of 2021.
Miriam Fultz and thirteen other members of the
American Federation of State, County, and Municipal
Employees (AFSCME), Council 13, also signed union
membership agreements in which they voluntarily authorized
the deduction of membership dues from their paychecks. Those
authorizations were irrevocable, regardless of union
membership status, unless the member provided written notice
of revocation during the fifteen days before the annual
anniversary date of the authorization. The fourteen members
each submitted letters of resignation from their union in 2020,
either before or after their respective annual revocation
windows were open. AFSCME, Council 13 notified each of
them that, pursuant to their agreements, membership dues
deductions would continue until a written request was
resubmitted during the next annual revocation window several
months to nearly a year later.
Despite having voluntarily joined their respective
unions and authorizing ongoing dues deductions—regardless
of membership status—in accordance with their membership
agreements, none of the resigned union members were content
to keep paying dues until their next annual revocation window
period rolled around. Unlike many annual magazine or
streaming app subscription fees, the former members’
authorized paycheck deductions could not be halted
immediately by arguing with a customer service rep or lodging
a credit card charge dispute. So, they sued.
5
Invoking the Supreme Court’s 2018 decision in Janus
v. American Federation of State, County, and Municipal
Employees, Council 31, Appellants alleged deprivation of their
First Amendment rights to be free from compelled speech in
the form of union dues deductions. 138 S. Ct. 2448 (2018). But
Janus demarcated the constitutional rights of nonmembers
employed in agency shop arrangements who never elected to
join a union, not members who voluntarily join a union and
later resign. Accordingly, the District Court properly
dismissed Appellants’ complaints. For the reasons that follow,
we will affirm.
I. BACKGROUND
Beginning in 1977 with Abood v. Detroit Board of
Education, 431 U.S. 209 (1977) and for forty-one years
thereafter, certain designated unions1 could charge dues in the
form of “agency shop” service fees to all employees in a
bargaining unit, even those who elected not to join the union.
Id. at 232, 235–36. Nonmember agency shop fees were
typically only a percentage of the full rate paid by members,
and the union was prohibited from paying for “political and
ideological projects” with dues paid by nonmembers. Janus,
138 S. Ct. at 2460–61 (explaining the difference between
“chargeable” and “nonchargeable” expenditures under Abood).
The theory was that because union representatives were
1
Abood involved unions that were designated as the
“exclusive representative” of all employees in a bargaining
unit, which means that “individual employees may not be
represented by any agent other than the designated union; nor
may individual employees negotiate directly with their
employer.” 431 U.S. at 224; Janus, 138 S. Ct. at 2460.
6
required by law to provide fair representation to all employees
in a bargaining unit, regardless of membership status,
employees who were not members benefitted from the
representation and could be required to pay dues. Id.; Abood,
431 U.S. at 224.
This changed in 2018, when the Supreme Court
overturned Abood in Janus, holding that public-sector unions
charging fees to nonmembers is a form of coerced speech that
violates the First Amendment. Janus, 138 S. Ct. at 2467 (“In
simple terms, the First Amendment does not permit the
government to compel a person to pay for another party’s
speech just because the government thinks that the speech
furthers the interests of the person who does not want to pay.”).
Though Janus spurred a sea change in public-sector union
administration, it included an important limitation: Janus was
focused on preventing forced speech by nonmembers who
never consented to join a union. Id. at 2464 (“Forcing free and
independent individuals to endorse ideas they find
objectionable is always demeaning, and for this reason, one of
our landmark free speech cases said that a law commanding
‘involuntary affirmation’ of objected-to beliefs would require
‘even more immediate and urgent grounds’ than a law
demanding silence.”) (quoting W. Va. Bd. of Ed. v. Barnette,
319 U.S. 624, 633 (1943) and citing Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988)).
Appellants in the consolidated cases before us claim
that—like charging union dues to nonmembers in Janus—their
unions’ continued collection of dues after Appellants had
resigned from union membership constitutes compelled speech
in violation of the First Amendment. The first two cases,
brought by Barlow and Biddiscombe, are functionally identical
and were consolidated in the court below. The Fultz case is a
7
putative class action involving fourteen named plaintiffs and
the same substantive claims as Barlow and Biddiscombe, with
an additional claim by a subclass of existing union members
that their membership agreements are unenforceable for lack
of consideration. Appellants collectively challenge the District
Court’s decisions to grant Appellees’ motions to dismiss under
Federal Rules of Civil Procedure 12(b)(6) and 12(c).
A. Barlow and Biddiscombe
Pursuant to the Pennsylvania Public Employe (sic)
Relations Act (PERA), 43 P.S. §§ 1101.101–2301, SEIU Local
668 and the Commonwealth maintain a collective bargaining
agreement that controls the terms and conditions of
Pennsylvania DHS workers’ employment and designates SEIU
Local 668 as the exclusive representative of all employees in
the bargaining unit. The agreement also provides for the
Commonwealth to deduct union membership dues from the
employee’s pay and remit those dues to the union. See 43 P.S.
§ 1101.606 (providing for exclusive representation); §
1101.705 (authorizing membership dues deductions).
Bradley Barlow started working for the DHS in
September 2017 and joined SEIU Local 668 sometime
thereafter. He signed a new membership application on June
25, 2018, two days before the Supreme Court’s decision in
Janus. In doing so, he agreed that:
This voluntary authorization and assignment of
dues deduction shall be irrevocable, regardless of
whether I am or remain a member of the Union,
for a period of one year from the date of
execution and for year to year thereafter as long
as my employment continues, unless I give the
Employer and the Union written notice of
8
revocation not less than ten (10) days and not
more than thirty (30) days before the end of any
yearly period . . . .
J.A. 381.
After the Janus decision, Barlow resigned from SEIU
Local 668 on July 14, 2020, a month after his annual
resignation window period had closed. Consistent with the
authorization, SEIU Local 668 continued to deduct dues from
Barlow’s paycheck for eleven months thereafter. Barlow
alleges that during this time he was not provided any
information about how his dues were spent, nor with a
procedure for objecting thereto.
Frances Biddiscombe joined the DHS and SEIU Local
668 in 2014. On June 7, 2018, several weeks before Janus,
Biddiscombe signed a membership application that was
identical to Barlow’s. She resigned from SEIU Local 668 on or
about July 9, 2020, six weeks after her annual resignation
window closed. And pursuant to the membership agreement,
SEIU Local 668 continued to deduct union dues from
Biddiscombe’s paycheck until May 2021.
Barlow’s and Biddiscombe’s respective lawsuits
involved the same claims against the same defendants. They
sued SEIU Local 668, as well as two government officials—
Michael Newsome and Bryan T. Lyman2—in federal court for
2
Defendant-Appellee Newsome is the Secretary of the
Office of Administration for Pennsylvania, and “negotiated,
entered into, and is the signatory to, on behalf of the
Commonwealth,” the collective bargaining agreement
9
violation of their rights to freedom of association and to be free
from compelled speech under the First Amendment under
Janus. They also claimed that failure to provide them with
procedures for notification and objection to how their post-
resignation dues were being spent violated their Fourteenth
Amendment due process rights. They sought damages in the
amount of post-resignation dues collected, and injunctive and
declaratory relief.
The District Court consolidated the similar matters for
briefing on Appellees’ motions to dismiss under Fed. R. Civ.
P. 12(b)(6) and 12(c).3 The Court dismissed in full, finding no
First Amendment claim because “Plaintiff[s] voluntarily
consented to join the union and pay dues,” and “Janus ‘protects
nonmembers from being compelled to support the [u]nion,’ but
it does not ‘render [a union member’s] knowing and voluntary
choice to join [the union] nonconsensual.’” Barlow v. SEIU
Local, 668, 566 F. Supp. 3d 289, 298 (M.D. Pa. 2021) (quoting
Oliver v. SEIU Local 668, 830 Fed. App’x 76, 79 (3d Cir. 2020));
Biddiscombe v. SEIU, Local 668, 566 F. Supp. 3d 269, 281
(M.D. Pa. 2021) (quoting Oliver, 830 Fed. App’x at 79).
governing the terms and conditions of employment for
Plaintiff-Appellants and is responsible for human relations for
Commonwealth Employees. J.A. 123. Defendant-Appellee
Lyman is the Chief Accounting Officer and Deputy Secretary
for the Office of Comptroller, and “oversees the payroll system
for the Commonwealth, which includes processing union dues
and other payroll deductions. Id.
3
At the time, there was a third case involving another
plaintiff with similar claims pending before the same District
Court Judge, which is not at issue here.
10
The Court similarly rejected Appellants’ due process
claims because “Janus did not confer any new rights upon
public employees who had voluntarily joined a union and
agreed to pay dues; . . . render preexisting union membership
agreements constitutionally infirm;” or give “rise to an
obligation on the part of Local 668 to provide Plaintiff[s] with
notice of [their] constitutional rights after [they] resigned from
membership.” Barlow, 566 F. Supp. 3d at 302; Biddiscombe,
566 F. Supp. 3d at 285. Additionally, the District Court found
that Barlow’s and Biddiscombe’s requests for prospective
relief were moot because the union was no longer collecting
dues from them. Barlow, 566 F. Supp. 3d at 296; Biddiscombe,
566 F. Supp. 3d at 279.
B. The Fultz Appellants
Miriam Fultz and the thirteen other named appellants in
this putative class action are “public employees” of the
Commonwealth of Pennsylvania. See 43 P.S. §§ 1101.301(2);
1101.301(15). Eight of the fourteen, including Fultz herself,
joined AFSCME, Council 134 prior to the Janus decision in
June 2018, while the other six joined after Janus. Each party
signed a membership card consenting to “voluntarily authorize
and direct my Employer to deduct from my pay each pay
period, regardless of whether I am or remain a member of the
Union, the amount of dues certified by the Union.” J.A. 8. They
also agreed that:
This voluntary authorization and assignment
shall be irrevocable, regardless of whether I am
4
AFSCME, Council 13 is an “Employe organization”
and a “Representative” as those terms are defined by PERA,
43 P.S. §§ 1101.301(3); 1101.301(4).
11
or remain a member of the Union, for a period of
one year from the date of execution of this
authorization or until the termination date of the
collective bargaining agreement (if there is one)
between my Employer and the Union, whichever
occurs sooner, and for the years to come, unless
I give my Employer and the Union written notice
of revocation during the fifteen (15) days before
the annual anniversary date of this authorization
or, for public sector contracts, during the fifteen
(15) days before the date of termination of the
appropriate collective bargaining agreement
between the Employer and the Union, whichever
occurs sooner.
J.A. 9. The fourteen resigned from AFSCME, Council 13 on
various dates between May 8, 2020 and December 23, 2020.
They allege that AFSCME, Council 13 notified them that dues
would nevertheless continue to be deducted from their
paychecks “indefinitely,” or at least until the 15-day “escape
window.” J.A. 131.
On November 12, 2020, the Fultz Appellants sued
AFSCME, Council 13, former Pennsylvania Governor Thomas
Wolf, Michael Newsome, and Brian T. Lyman. The District
Court stayed proceedings pending resolution of Fischer v.
Governor of N.J., 842 F. App’x 741 (3d Cir. 2021). After that
decision, which non-precedentially rejected very similar
claims, Appellants filed an Amended Complaint on March 1,
2021, alleging First Amendment and Fourteenth Amendment
procedural due process violations similar to Barlow’s and
Biddiscombe’s.
12
The Fultz suit includes three proposed subclasses: (1)
persons who were already members of Council 13 when they
signed the relevant membership applications pre-Janus; (2)
persons who signed first-time applications before Janus; and
(3) persons who signed first-time applications after Janus.
Defendants filed motions to dismiss under Rule 12(b)(6) for
failure to state a claim, and in the alternative, for summary
judgment. In response, Appellants in the subclass of those who
were already members of Council 13 when they signed the
relevant membership applications alleged for the first time that
their applications were unenforceable for lack of consideration,
because they were already receiving the benefits of
membership when they agreed to pay dues for another year.
The District Court rejected the Fultz Appellants’ First
Amendment claims for largely the same reasons as in Barlow
and Biddiscombe, and rejected their due process claim as
duplicative of the First Amendment claim. Finally, it rejected
the subclass’s contract claim because it was not raised in the
pleadings.
II. DISCUSSION 5
The District Court dismissed the Fultz Appellants’
claims for failure to state a claim under Rule 12(b)(6), and
5
The District Court had subject-matter jurisdiction
over each of the three now-consolidated cases pursuant to 28
U.S.C. §§ 1331, 1343(a)(3). We have jurisdiction under 28
U.S.C. § 1291. In Barlow and Biddiscombe (Nos. 21-3096 and
21-3097), the District Court dismissed the Complaints with
prejudice, resulting in “final decisions” within the purview of
28 U.S.C. § 1291. Manze v. State Farm Ins. Co., 817 F.2d
13
Barlow’s and Biddiscombe’s under Rules 12(b) and 12(c). We
review the District Court’s dismissal of Appellants’
constitutional and contract-based claims de novo.6 Oneida
Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416
n.3 (3d Cir. 1988) (explaining that “[r]eview of the legal
component for either [a Rule 12(b)(6) or 12(c)] motion[] is
identical,” and that decisions under both are evaluated by a
reviewing court de novo).
A. First Amendment Claims
Janus established a new constitutional right for
nonmembers to be free from compulsory paycheck deductions
in support of a union they never consented to join. But this right
does not extend as far as Appellants urge us to hold. The Court
in Janus recognized that “[n]either an agency fee nor any other
payment to the union may be deducted from a nonmember’s
wages, nor may any other attempt be made to collect such a
payment, unless the employee affirmatively consents to pay.”
138 S. Ct. at 2486. “By agreeing to pay, nonmembers are
waiving their First Amendment rights, and such waiver cannot
be presumed.” Id. (citations omitted).
1062, 1064 (3d Cir. 1987). In Fultz (No. 22-1108), final
judgment was entered when the parties stipulated to dismissal
of the one due process claim remaining after the District Court
partially granted Appellees’ motions to dismiss.
6
On appeal, Biddiscombe and Barlow do not challenge
the dismissal of their claims for prospective relief, which were
their only claims against Commonwealth defendants Michael
Newsome and Bryan T. Lyman. As such, only the Fultz
Appellants’ claims against the Commonwealth stand.
14
This language, Appellants argue, entitles them to
proceed to discovery to determine whether their agreements to
pay constituted waivers that were “freely given and shown by
‘clear and compelling’ evidence.” Id. (quotation and citation
omitted). But this reading ignores the reality that Appellants
were union members who affirmatively consented to have dues
deducted from their paychecks for a time certain thereafter,
regardless of membership status, and whose status converted
to nonmember only after they resigned from their respective
unions, not “before any money [was] taken from them[.]” Id.
(emphasis added).
We clarified the limited scope of Janus’s use of the term
“union nonmember” in LaSpina v. SEIU Pa. State Council, 985
F.3d 278, 288 (3d Cir. 2021). LaSpina involved a claim by a
union member who sought return of dues voluntarily paid pre-
Janus,7 as well as a refund of dues deducted after she resigned
from her union. We held that the latter was not a constitutional
violation under Janus, noting that while, technically, plaintiff
was indeed a union “nonmember” after she resigned, that is not
how Janus used the term when it stated that unions could not
collect payment “from a nonmember.” Id. at 287–88 (citing
Janus, 138 S. Ct. at 2486) (“In the topic sentence of the
7
In LaSpina, we rejected Appellant’s claim on standing
grounds for lack of causation. 985 F.3d at 286 (“[U]nlike the
plaintiff in Janus, LaSpina joined the Union and paid
membership dues. . . . [H]ad it not been for the Union
‘compelling [nonmembers] to subsidize private speech on
matters of substantial public concern,’ LaSpina still would
have had to pay as a component of her union membership dues
an amount equal to the amount charged to nonmembers as a
fair-share fee.”) (emphasis omitted) (internal citation omitted).
15
paragraph that includes that holding, the Court [in Janus] made
clear it was primarily demarcating the constitutional rights of
nonmembers currently or previously employed in agency shop
arrangements.”).8
The First Amendment does not provide a right to
disregard promises that would otherwise be enforced under
state law. Cohen v. Cowles Media Co., 501 U.S. 663, 672
(1991). Based on this premise, the Ninth Circuit in Belgau v.
Inslee, 975 F.3d 940, 951–52 (9th Cir. 2020), explicitly
rejected a reading of Janus that would extend generally to
union member claims. Because the Belgau plaintiffs
experienced no compulsion like that addressed by the Supreme
Court in Janus, for example, through “forc[ing] Employees to
sign the membership cards or retain membership status to get
or keep their public-sector jobs[,]” id. at 950, and because
“Janus does not address the financial burden of union
membership[,]” id. at 951, the Ninth Circuit joined the
“swelling chorus of courts recognizing that Janus does not
extend a First Amendment right to avoid paying union dues[,]”
id., when those duties arise out of a contractual commitment.
See id. at 951 n.5 (collecting cases).
After Belgau, other Courts of Appeals including the
Seventh, Eighth, and Tenth followed suit, universally rejecting
pre-Janus claims like the claims before us for the same reason.
See Hendrickson v. AFSCME, Council 18, 992 F.3d 950, 961
8
Plaintiff also claimed that the union should be
required to obtain a full constitutional waiver before extracting
any further dues from her or any other employees. We did not
address that claim because it was moot, as her claim was styled
as seeking prospective relief and she was no longer a union
member subject to any dues. Id. at 289.
16
(10th Cir. 2021); Bennett v. AFSCME, Council 31, 991 F.3d
724, 731 (7th Cir. 2021); Burns v. Sch. Serv. Emps. Union Loc.
284, 75 F.4th 857, 861 (8th Cir. 2023). Thus far, only the
Seventh Circuit has specifically addressed a post-Janus claim
like those of the Fultz subclass, where a plaintiff had signed a
membership agreement after the June 2018 Janus decision and
then subsequently resigned from the union. 9 See Ramon Baro
v. Lake Cnty. Fed’n of Teachers Local 504, 57 F.4th 582, 586
(7th Cir. 2023). The Court held that “the timing makes no
difference. What matters is the nature of each person’s decision
to sign a private contract.” Id. We agree.
Although Appellants urge us to depart from the
reasoning of our sister circuits, we choose, instead, to rely on
the principle adopted by the Supreme Court in Cohen that state
contract law, not the First Amendment, governs their claims.
See Belgau, 975 F.3d at 950. In Cohen, the Court refused to
find a specific First Amendment right for the press to be free
from generally applicable laws, like those sounding in contract,
even where it might interfere with a journalist’s reporting. 501
U.S. at 669–70.
The Cohen majority highlighted that the law at issue did
not “single out the press” or target particular published content.
Id. at 670. Rather, “[state] law simply requires those making
promises to keep them.” Id. at 671. The parties themselves, as
in this case, “determine the scope of their legal obligations,”
not the state. Id. Given the exceptional importance of the press
within our First Amendment jurisprudence, the Supreme
9
One of the appellants in Burns also raised a post-Janus
claim, but the Court did not specifically address it in rejecting
all claims. 75 F.4th at 859.
17
Court’s decision to uphold the principles of contract law over
the First Amendment in that context only enhances Cohen’s
applicability in other contexts, such as this one.
In sum, Janus says nothing regarding a consenting
employee’s ability to contract to support a union for a time
certain in exchange for the benefits of union membership. We
reject the notion that Appellants never consented to dues
collection because their membership agreements did not
constitute a valid waiver of their constitutional rights.
Appellants implore us to follow the reasoning of constitutional
waiver cases such as D. H. Overmyer Co. v. Frick Co., 405
U.S. 174 (1972), Fuentes v. Shevin, 407 U.S. 67 (1972), and
their progeny. But these cases are inapposite and every court
to weigh in on this argument has held that no such waiver is
necessary because there is no constitutional right at issue here.
We join our sister circuits in holding that the First Amendment
does not extend a right which overrides Appellants’ contractual
obligations to pay dues until an agreed upon date, regardless of
a subsequent choice to relinquish union membership.
B. Due Process Claims
Appellants argue that even if they must pay post-
resignation dues, they are still entitled to procedures for notice
and the ability to object to how those dues are spent by the
unions under Chicago Teachers Union, Local No. 1 v. Hudson,
475 U.S. 292 (1986). Failure to provide such protections, they
claim, is a violation of their due process rights. These claims
fail on similar grounds as their First Amendment claims.
Prior to Janus, when public-sector unions were still
permitted to charge fees to union nonmembers under Abood,
the Supreme Court developed a system of procedures
governing that collection. Hudson, 475 U.S. at 302–03
18
(“[A]lthough the government interest in labor peace is strong
enough to support an ‘agency shop’ notwithstanding its limited
infringement on nonunion employees’ constitutional rights, the
fact that those rights are protected by the First Amendment
requires that the procedure be carefully tailored to minimize
the infringement.”).
Before any fee deductions were made, unions were
required to provide nonmembers with: (1) a detailed
accounting of how their dues would be spent that distinguishes
union expenses relating to collective bargaining (chargeable
expenditures) and contract administration from political
activity (nonchargeable expenditures); (2) an opportunity to
object to this accounting before any dues are deducted from
their paychecks; and (3) a procedure for review of the unions’
response to any objections by an impartial third-party
decisionmaker. Id. at 304–09. Like Janus, Hudson was
premised on a desire to avoid subjecting nonconsenting
individuals from subsidizing a political agenda with which
they disagreed. Id. at 303.
Appellants argue, without reference to any authority,
that once they resigned from their respective unions, they
became nonmembers entitled to Hudson procedures. Given
that Janus was limited to the constitutional rights of
nonconsenting nonmembers, it is illogical that such rights
would flow from Janus for those who consented to pay dues
through a certain date. See LaSpina, 985 F.3d at 288
(underscoring that reference to rights of “nonmembers” in
Janus should be understood as those previously subject to
agency shop agreements, not formerly consenting members
who have simply resigned from the union). We agree with the
court below, that Hudson is inapplicable given Appellants’
failure to allege any First Amendment violations.
19
C. Contract Defenses
In opposition to Appellees’ motion to dismiss, a
subclass of Fultz Appellants argued that their membership
agreements were invalid for lack of consideration because they
were already union members at the time of execution.
Alternatively, they argued that the agreements lacked plain
terms, or that the union materially breached by failing to
perform. The District Court rejected the first two arguments
because they were not raised in the pleadings but found that the
third failed to state a claim because it was not plausible in light
of the explicit member agreement language authorizing post-
resignation dues deductions. Fultz v. AFSCME, Council 13,
549 F. Supp. 3d 379, 388–89 (M.D. Pa. 2021).
We will affirm on the same basis, but we note that
amendment would be futile. Appellants have not alleged that
the terms of their original membership agreements entitled
them to membership in perpetuity; such agreements are
terminable at will. See Trainer v. Laird, 183 A. 40, 40–41 (Pa.
1936). Membership is a state of being, the continuation of
which would certainly provide adequate consideration
supporting any new or additional terms. Further, any such state
law claim would nevertheless lie outside the jurisdiction of the
federal courts, as the Pennsylvania Labor Relations Board has
exclusive jurisdiction over matters stemming from allegations
of unfair labor practices pursuant to PERA. 43 P.S. §§
1101.1201(b)(1), 1101.1301; see also Hollinger v. Dep’t of
Pub. Welfare, 365 A.2d 1245, 1249–50 (Pa. 1976).
III. CONCLUSION
For the foregoing reasons, we affirm the District Court’s
orders on all counts.
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