Barlow v. Serv. Emps. Int'l Union Local 668

90 F.4th 607

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

No. 21-3096

No. 21-3097

No. 22-1108

United States Court of Appeals, Third Circuit

Argued: September 20, 2023

Filed: January 12, 2024

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

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 15^th Street, N.W., Suite 1000, Washington, DC 20005, Amy L. Rosenberger, Willig, Williams & Davidson, 1845 Walnut Street, 24^th 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, Lauren M. Hoye, Willig, Williams & Davidson, 1845 Walnut Street, 24^th 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, 15^th Floor, Strawberry Square, Harrisburg, PA 17120, Counsel for Appellees Michael Newsome, Bryan T. Lyman, and Thomas Wolf

Before: RESTREPO, MCKEE, and RENDELL, Circuit Judges

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 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.

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. — U.S. —, 138 S. Ct. 2448, 201 L.Ed.2d 924 (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, 97 S.Ct. 1782, 52 L.Ed.2d 261 (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, 97 S.Ct. 1782. 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 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, 97 S.Ct. 1782.

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, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) and citing Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (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 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

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