Warren v. Fraternal Order of Police Ohio Labor Council, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

KIMBERLEE WARREN, CASE NO. 1:21-cv-01655-PAB

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

FRATERNAL ORDER OF POLICE,

OHIO LABOR COUNCIL, INC., MEMORANDUM OPINION AND

ORDER

Defendant.

Currently pending is Defendant Fraternal Order of Police, Ohio Labor Council, Inc.’s (“the

FOP”) Motion to Dismiss Plaintiff’s Complaint (“Defendant’s Motion”). (Doc. No. 5.) Plaintiff

Kimberlee Warren filed an Opposition to Defendant’s Motion on October 8, 2021, to which

Defendant replied on October 19, 2021. (Doc. Nos. 6, 10.) For the following reasons, Defendant’s

Motion to Dismiss is denied.

I. Background

Warren has worked as a Cuyahoga County probation officer since 1990. (Doc. No. 1, ¶ 6.)

Warren has worked for the County in a bargaining unit represented exclusively by the FOP since

2013. (Id.) Warren has never been an FOP member, nor has she ever signed a dues deduction

authorization form consenting to the collection of union dues or fees from her wages. (Id. at ¶ 7.)

However, from 2017 through 2020, the FOP and the County were parties to a collective bargaining

agreement that required nonunion members, including Warren, to pay fees to the FOP. (Id. at ¶ 8-9.)

According to the CBA, “[a]ll bargaining unit employees, as a condition of employment, shall pay to

the Union, through payroll deduction, either union dues or a fair share fee as a contribution toward

the administration of” the CBA. (Id.; see also Collective Bargaining Agreement, Doc. No. 1-1,

PageID# 13.) The CBA further provides that “[t]he deduction of the fair share fee from any earnings

of the employee shall be automatic and does not require authorization for payroll deduction.” (Id.)

Thus, the County automatically deducted Warren’s fair share fees from her wages pursuant to the

CBA and transmitted those fees to the FOP. (Id.)

On June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018). (Id. at ¶ 10.) In Janus, the Supreme Court held that public employees who

are represented by a union but do not belong to that union cannot be required to pay fair share fees to

cover the union’s collective bargaining costs, and that the state and unions must obtain a nonmember

employee’s affirmative consent before deducting and collecting union dues. (Id.) Warren alleges

that the County continued to deduct, and the FOP continued to collect, fees from Warren’s wages

after June 27, 2018 without her affirmative consent, in contravention of Janus. (Id. at ¶ 11.)

According to Warren, in November 2020, she “discovered that she no longer was required to

pay union dues or fees to FOP as a condition of employment.” (Id. at ¶ 12.) On November 16, 2020,

Warren requested that the County stop deducting union fees from her wages and requested

reimbursement for the fees deducted from her wages after August 2018 through November 2020.

(Id.) On December 7, 2020, the FOP notified Warren that it would stop treating her as a union

member. (Id. at ¶ 15.) In December 2020, the County stopped deducting union fees from Warren’s

wages. (Id. at ¶ 16.) On or about December 7, 2020, the FOP notified Warren that it would stop

treating her as a union member. (Id. at ¶ 15.) On information and belief, the FOP and the County

stopped taking union dues or fees from Warren’s wages in December 2020. (Id. at ¶ 16.) On or about

February 8, 2021, the County again notified the FOP that union dues or fees had been taken from

Warren in error by the County and remitted to the FOP, and that she should be reimbursed for these

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monetary exactions. (Id. at ¶ 17.) On or about February 19, 2021, the FOP responded to the County’s

request and refused to reimburse Warren for the union dues or fees it had exacted. (Id. at ¶ 18.) On

May 24, 2021, Warren sent, by certified mail, a letter requesting that the FOP provide her with any

dues deduction authorization that she might have signed. (Id. at ¶ 19.) In response, on June 10, 2021,

the FOP sent a letter to Warren stating, in part, that:

Prior to May 2019, a fair share fee was deducted from your paycheck which did not

require a signed authorization. In May 2019, the Employer converted you to a

membership dues deduction. Despite the fact that the dues deductions were clearly

reflected on your check stubs, you did not request to stop membership dues until

December 2020.1

(Id. at ¶¶ 17-20.)

Warren filed the instant Complaint on August 25, 2021. (Doc. No. 1.) Warren brings a single

claim under 42 U.S.C. § 1983 against the FOP. Warren alleges that the FOP violated her First

Amendment rights to free speech and association when it collected and retained union dues or fees

from Warren’s wages without her affirmative consent. (Id. at ¶¶ 25-26.) The FOP filed its Motion

to Dismiss on September 8, 2021. (Doc. No. 5.) Warren filed her Opposition on October 8, 2021, to

which the FOP replied on October 19, 2021. (Doc. Nos. 6, 10.) Thus, the FOP’s Motion is now ripe

for a decision.

1 It is unclear why the FOP believed that it did not need Warren’s affirmative authorization to deduct the fair share fee

for the time between when Janus was issued and May 2019. (Doc. No. 1, ¶ 20.) It is also unclear why the County

converted Warren to a “membership dues deduction” in May 2019. Warren alleges that she has never been a member of

the FOP, but the County’s conversion of Warren to a “membership dues deduction” suggests that Warren may have been

a member of the FOP at some point between May 2019 and November 2020. (Id.) However, neither party addresses

why the County converted Warren to a “membership dues deduction,” and, at any rate, Warren alleges that she never

joined the FOP, so the Court accepts her allegation as true.

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II. Standard of Review

The FOP moves to dismiss Warren’s Complaint for failure to state a claim under Fed. R. Civ.

P. 12(b)(6). Under Fed. R. Civ. P. 12(b)(6), the Court accepts the plaintiff’s factual allegations as

true and construes the Complaint in the light most favorable to the plaintiff. See Gunasekara v. Irwin,

551 F.3d 461, 466 (6th Cir. 2009). In order to survive a motion to dismiss under this Rule, “a

complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a

formulaic recitation of a cause of action’s elements,’ and (3) allegations that suggest a ‘right to relief

above a speculative level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.

2009) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007)).

The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief

above the speculative level—“does not ‘require heightened fact pleading of specifics, but only enough

facts to state a claim to relief that is plausible on its face.’” Bassett v. National Collegiate Athletic

Ass’n., 528 F.3d 426, 430 (6th Cir. 2008) (quoting in part Twombly, 550 U.S. at 555-56, 127 S.Ct.

1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Deciding whether a complaint

states a claim for relief that is plausible is a “context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id. at 679.

Consequently, examination of a complaint for a plausible claim for relief is undertaken in

conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires

only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific

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facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.’” Gunasekera, 551 F.3d at 466 (quoting in part Erickson v.

Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)) (quoting Twombly, 127 S.Ct.

at 1964). Nonetheless, while “Rule 8 marks a notable and generous departure from the hyper-

technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a

plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

III. Analysis

The FOP argues that Warren fails to set forth a cognizable claim under § 1983 because she

cannot establish that the FOP, a private entity, acted under color of state law. (Doc. No. 5, PageID#

55.) Specifically, the FOP argues that Warren cannot demonstrate under the symbiotic

relationship/nexus test that the state was “intimately involved in the [FOP’s] challenged private

conduct” such that the conduct could be fairly attributed to the state. (Id.) The FOP argues that it is

a private labor union and such organizations generally are not state actors for purposes of § 1983.

(Id. at PageID# 56.) The FOP further argues that Janus never held that unions were violating the

Constitution, only that the state statutes authorizing agency-shop arrangements were unconstitutional.

(Id. at PageID# 56-57.) Further, according to the FOP, it is irrelevant that the state withheld certain

fees from Warren’s wages pursuant to a contract with the FOP because the mere existence of a

contract between a public and a private entity does not transform the private entity into a state actor.

(Id. at PageID# 57.) While the FOP acknowledges that a private actor may act under color of state

law if it “is a willful participant in joint activity” with the state, the FOP asserts that Warren offers no

more than a conclusory allegation that the FOP and the state engaged in joint activity. (Id. at PageID#

58.) Finally, the FOP cites to a bevy of federal district and appellate cases from outside this Circuit

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to support its assertion that “unions receiving dues post-Janus are not state actors so there is no federal

claim under [§] 1983.” (Id.)

In her Opposition, Warren argues that the FOP’s motion should be dismissed because the FOP

acted under color of state law when it jointly participated with the state to seize agency fees from

Warren’s wages without her consent post-Janus. (Doc. No. 6, PageID# 64.) Warren argues that

Janus itself made clear that “[s]tates and public-sector unions may no longer extract agency fees from

nonconsenting employees.” (Id. at PageID# 65.) Warren argues that the FOP and the County entered

into a collective bargaining agreement in which they jointly agreed that the County would deduct,

and the FOP would receive, agency fees from nonconsenting employees like Warren. (Id.) Warren

argues this arrangement is exactly the type of state action that Janus held was unconstitutional. (Id.)

According to Warren, the FOP’s joint participation with the County in deducting fees and/or dues

from Warren’s wages pursuant to the CBA renders the FOP a state actor under § 1983. (Id. at

PageID# 67.) Warren further argues that, after the Supreme Court remanded Janus (“Janus II”), the

Seventh Circuit concluded that a union acts under color of state law “when it acts in concert with a

governmental entity to deduct and collect union payments from dissenting, nonunion employees.”

(Id. at PageID# 66, citing Janus v. AFSCME Council 31, 942 F.3d 352, 361 (7th Cir. 2019). Warren

urges this Court to apply Janus II’s reasoning here. (Id.) Warren further argues that the FOP’s cited

post-Janus cases are inapposite because those cases involved union members who attempted to

renege on private contracts with the unions in which the members agreed to pay dues to the union,

whereas in the instant case, Warren never signed any FOP membership agreement or consented to

dues deductions. (Id. at PageID# 69-70.)

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To maintain a claim under 42 U.S.C. § 1983, Warren must establish that she was deprived of

a right secured by the Constitution or the laws of the United States, and that the deprivation was

caused by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988);

Simescu v. Emmet Cty. Dep’t of Soc. Services, 942 F.2d 372, 374 (6th Cir. 1991). Section 1983 “is

not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights

elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). The first step in any such

claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S.

386, 394 (1989); Baker, 443 U.S. at 140. Here, there is no dispute that Warren alleges that her First

Amendment rights to free speech and association were infringed upon by the FOP. As such, the only

remaining question is whether the FOP, a private labor union, acted under color of state law when it

retained union fees from Warren’s wages that the County collected without her consent post-Janus.

A court decides whether a defendant acted under color of state law by using a two-part test

established in Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982). First, the court asks, “whether

the claimed deprivation has resulted from the exercise of a right or privilege having its source in state

authority.” Id. Second, the court asks whether defendants “may be appropriately characterized as

‘state actors.’” Id. State action occurs when both questions are answered in the affirmative. Id. at

937-39. The parties’ dispute centers on the second part of this test, whether the FOP’s conduct may

be fairly attributed to the state.

The Sixth Circuit has recognized up to four tests to determine whether a private party’s

“challenged conduct is attributable to the state: (1) the public function test; (2) the state compulsion

test; (3) the symbiotic relationship or nexus test; and (4) the entwinement test.” Marie v. Am. Red

Cross, 771 F.3d 344, 362 (6th Cir. 2014) (noting that precedent often enumerates three tests, but more

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recent Sixth Circuit cases include separate discussions on the entwinement test), citing Vistein v. Am.

Registry of Radiologic Technologists, 342 Fed. Appx. 113, 127 (6th Cir. 2009) (citing Wolotsky v.

Huhn, 960 F.2d 1331, 1335 (6th Cir.1992); Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531

U.S. 288, 298, (2001)).

According to the Sixth Circuit, under the nexus test,

“[T]he action of a private party constitutes state action when there is a sufficiently

close nexus between the state and the challenged action of the regulated entity so that

the action of the latter may be fairly treated as that of the state itself.” Wolotsky, 960

F.2d at 1335. The cases establish no clear standard for identifying a “sufficiently close

nexus.” Rather, the Supreme Court reminds us that “readily applicable formulae may

not be fashioned” for finding state action in civil rights cases; such a finding “can be

determined only in the framework of the peculiar facts or circumstances present.”

Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, 81 S.Ct. 856, 6 L.Ed.2d

45 (1961); see also Lugar, 457 U.S. 922, 939, 102 S.Ct. 2744 (calling the state action

determination a “necessarily fact-bound inquiry”).

Lansing v. City of Memphis, 202 F.3d 821, 830 (6th Cir. 2000).

Ultimately, while the Sixth Circuit has developed multiple tests for assessing whether a

private entity is a state actor, “the Supreme Court has made clear that all of our various ‘criteria’ boil

down to a core question: whether there is such a ‘close nexus between the State and the challenged

action that seemingly private behavior may be fairly treated as that of the State itself.’” Brent v.

Wayne Cnty. Dep’t of Human Servs., 901 F.3d 656, 676 (6th Cir. 2018) (quoting Brentwood Acad.,

531 U.S. at 295, internal quotation omitted).

Labor unions are generally considered private parties, not government actors. Moore v. Int’l

Bhd. of Elec. Workers Local 8, 76 Fed. App’x 82, 83 (6th Cir. 2003) (affirming district court’s

dismissal of § 1983 claim against union because the union was not a state actor); Messman v. Helmke,

133 F.3d 1042, 1044 (7th Cir. 1998) (“In general, a union is not a state actor.”); Parker v. Nat’l Assoc.

of Letter Carriers, AFL-CIO, No. 19-12915, 2020 WL 3121175, at *7 (E.D. Mich. June 12, 2020)

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(noting that it is a “well-established general rule that a labor union . . . is generally considered a

private party”). Moreover, union actions taken pursuant to a union’s own internal governing rules

are not state actions. Messman, 133 F.3d at 1044.

However, in a few, limited instances, courts have determined that some actions undertaken

by unions have been done under the color of state law. In Hudson v. Chicago Teachers Union Local

No. 1, a group of nonunion employees challenged the constitutionality of a union’s procedure for

determining the proportionate fair share fees that nonunion employees must pay to support the union’s

collective bargaining efforts. Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187 (7th

Cir. 1984), aff’d, 475 U.S. 292 (1986). The nonunion employees brought their challenge against the

union pursuant to § 1983. Id. at 1190. The Seventh Circuit held that “when a public employer assists

a union in coercing public employees to finance political activities, that is state action; and when a

private entity such as a union acts in concert with a public agency to deprive people of their federal

constitutional rights, it is liable under section 1983 along with the agency.” Id. at 1191. Thus, the

Seventh Circuit concluded that the nonunion employees could proceed under § 1983 against the

union, a private entity, as it had deprived the nonunion employees of certain constitutional rights,

under the color of state law, without due process of law. Id.

Relatedly, in Bain v. California Teachers Association, a district court considered a § 1983

challenge brought against private unions by dues-paying union members, who alleged that they were

“effectively compelled” to relinquish their First Amendment rights not to speak because they were

unable to enjoy certain members-only benefits without also paying non-chargeable union dues, i.e.,

dues that funded the unions’ political activities/advocacy rather than the expenses associated with

collective bargaining. Bain v. California Teachers Assoc., No. 2:15-cv-02465-SVW-AJW, 2016 WL

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6804921, at *1 (C.D. Cal. May 2, 2016). The court rejected the union members’ argument that the

unions were state actors because the unions were parties to collective bargaining agreements with the

state. Id. at *7. The court concluded that “[t]he government’s ministerial obligation to deduct dues

for members and agency fees for nonmembers under a collective bargaining agreement does not

transform decisions about membership requirements into state actions.” Id. However, the court also

observed that ““[t]here is, of course, state action with respect to the directly compelled ‘chargeable’

fees.” Id. at n.14 (citing Hudson, 743 F.2d at 1190-91). Thus, Bain recognized a clear distinction

between internal union decisions, actions that are not attributable to the state, and unions’ collection

of compelled chargeable fees (i.e., fair share fees), action that is attributable to the state. Id.

Post-Janus, a few courts, under limited circumstances, found that unions acted under color of

state law when they accepted agency/fair share fees collected by the state from nonunion members’

wages. After the Supreme Court remanded Janus, the Seventh Circuit in Janus II concluded that the

union was a proper defendant under § 1983 because it acted under color of state law when it collected

fair share fees withheld from nonmembers’ wages:

A “procedural scheme created by ... statute obviously is the product of state action”

and “properly may be addressed in a section 1983 action.” Id. at 941, 102 S.Ct. 2744.

“[W]hen private parties make use of state procedures with the overt, significant

assistance of state officials, state action may be found.” Tulsa Prof’l Collection Servs.,

Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); see also Apostol

v. Landau, 957 F.2d 339, 343 (7th Cir. 1992). Here, AFSCME was a joint participant

with the state in the agency-fee arrangement. CMS deducted fair-share fees from the

employees’ paychecks and transferred that money to the union, which then spent it on

authorized labor-management activities pursuant to the collective bargaining

`agreement. This is sufficient for the union’s conduct to amount to state action. We

therefore conclude that AFSCME is a proper defendant under section 1983.

Janus II, 942 F.3d at 361.

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Likewise, in Wenzig v. Service Employees Int’l Union Local 668, the district court concluded

that the union was a state actor. Wenzig v. Service Employees Int’l Union Local 668, 426 F. Supp.

3d 88, 93 n.5 (M.D. Pa. 2019), aff’d, 972 F.3d 262. In Wenzig, the plaintiffs were public employees

represented by a union for purposes of collective bargaining but were not union members and did not

pay union dues. Id. at 90. Instead, as nonmembers, the plaintiffs paid only fair share fees to the

union. Id. After the Supreme Court issued its decision in Janus, the Wenzig plaintiffs brought a §

1983 claim against the union, arguing that the union violated their First Amendment rights by

requiring fair share fees and seeking repayment of all fair share fees paid to the union prior to Janus.

Id. at 91-92. According to the court, though the union did not argue “that it was not acting ‘under

color of state law’, since plaintiffs are proceeding under § 1983, SEIU must be considered a state

actor.” Id. at 93 n.5. The court relied on Janus II to conclude that the union was a state actor because

it was a joint participant with the state in the agency-fee arrangement. Id.

The Court concludes that Warren has sufficiently alleged that the FOP’s actions can be

attributed to the state and, therefore, the FOP acted under color of state law. According to Warren’s

Complaint, the County and the FOP acted in tandem under their pre-Janus agency-shop arrangement

for more than two years after Janus invalidated such arrangements. (Doc. No. 1, ¶¶ 8-12.) In other

words, the FOP and the County allegedly engaged in up to 28 unconstitutional seizures of Warren’s

pay. The Court concludes that this demonstrates a sufficiently close nexus between the FOP and the

County such that the FOP’s seizures can be fairly attributed to the state itself. The FOP was only

able to effectuate these alleged repeated seizures of Warren’s wages because the County continued

to adhere to an unconstitutional agency-shop arrangement. Thus, for two years, the FOP allegedly

acted in concert with the County to deprive Warren of her First Amendment right to be free from

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compelled speech. See Hudson, 743 F.2d at 1190-91. The Court is persuaded that, in this particular

context, Warren has alleged a sufficiently close nexus between the FOP and the County and,

therefore, adequately alleged that the FOP acted under color of state law. Id.; see also Janus II, 942

F.3d at 361; Wenzig, 426 F. Supp. 3d at 93 n.5.

The Court does not find that the FOP is a state actor based solely on the existence of its CBA

with the County. (Doc. No. 5, PageID# 57.) Rather, the Court concludes that the FOP acted under

color of state law because, between July 2018 and November 2020, the County repeatedly withheld,

and the FOP repeatedly collected, portions of Warren’s wages without her consent, despite clear

Supreme Court authority that such automatic deductions were unconstitutional. See Janus, 138 S.

Ct. at 2460; see also, e.g., Tulsa Prof. Collection Servs., Inc. v. Pope, 485 U.S. 478, 486 (1988)

(“[W]hen private parties make use of state procedures with the overt, significant assistance of state

officials, state action may be found.”); Lugar, 457 U.S. 922 (1982). It is not simply that the FOP and

the County had a contract that renders the FOP a state actor here, but that the FOP repeatedly made

use of the County’s automatic withholding procedures to seize portions of Warren’s wages for more

than two years after such arrangements were determined to be unconstitutional, as though Janus had

never been decided in the first place. Moreover, as discussed above, the Janus II and Wenzig courts

each concluded that unions act under color of state law when they collect agency fees automatically

deducted by public employers from public employees’ pay. Thus, the Court is persuaded that, at this

early stage in the proceedings, Warren has alleged that the FOP acted under color of state law.

The Court also disagrees with the FOP’s suggestion that it cannot be a state actor because

while “Ohio law once authorized government employers to require payment of fair-share fees if

employees unionized and negotiated to have payment of fees become a condition of employment . . .

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Janus invalidated these laws and agreements.” (Doc. No. 5, PageID# 56.) The Court agrees with the

FOP’s assertion that Janus invalidated Ohio’s agency-shop statutory scheme. Indeed, with this

acknowledgment, the FOP knew or should have known that it should not be taking nonmember

agency fees post-Janus because Janus invalidated such agency-shop arrangements as of June 27,

2018. Yet, the FOP utilized the County to continue to seize part of Warren’s wages without

authorization and outside any statutory framework, and the FOP continued to accept these “union

dues or fees” without Warren’s affirmative consent, for more than two years.2 (Doc. No. 1, ¶¶ 8-

12.) That the FOP worked in concert with the County to accept this financial benefit for over two

years is particularly problematic, because such agency fees impermissibly compelled Warren’s

speech and, therefore, were inconsistent with the First Amendment. See Janus, 138 S. Ct. 2460.

Thus, as alleged, the FOP acted in concert with the County to deprive Warren of her First Amendment

rights and is liable under § 1983. See Hudson, 743 F.3d at 1191.

The Court is also not persuaded by the FOP’s assertion that unions are generally not treated

as state actors under § 1983. (Doc. No. 5, PageID# 56.) Although rare, some cases, including

Hudson, Janus II, and Wenzig demonstrate that under certain limited circumstances, private unions

may be treated as state actors and subject to suit under § 1983. See supra. Indeed, the situation

described in Warren’s Complaint is nearly identical to those described in Janus II and Wenzig.

2 Neither party cited, and the Court could not find, any cases in which a state and union proceeded to withhold and collect

nonmember agency fees for so long post-Janus. Many Janus-related cases note that unions “immediately ceased

collecting such fees” after the Supreme Court issued Janus. See, e.g., Lee v. Ohio Educ. Assoc., 366 F. Supp. 3d 980,

982 (N.D. Ohio 2019), aff’d 951 F.3d 386 (6th Cir. 2020); Wenzig, 426 F. Supp. 3d at 92 (“[A]fter the Janus decision

SEIU stopped receiving fair-share fees from non-members, including plaintiffs.”). The Court located one case in which

a union continued to receive post-Janus agency fees from a nonunion member, Campos v. Fresno Deputy Sheriff’s Assoc.

In Campos, the public employer mistakenly withheld, and the union accepted, agency fees from a nonunion member’s

wages until July 30, 2018. Campos v. Fresno Deputy Sheriff’s Assoc., 441 F. Supp. 3d 945, 954 (E.D. Cal. 2020). The

Campos court dismissed the nonunion member’s § 1983 claim against the union as moot because the union refunded the

plaintiff for his one month of post-Janus fees, plus interest. Id.

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The sole argument the FOP offers as to why the Court should disregard Janus II’s conclusion

that the union acted under color of state law is its assertion in a footnote in its Reply that this

conclusion was mere “dicta.” (Doc. No. 10, PageID# 85.) The Court disagrees that the Seventh’s

Circuit’s conclusion was dicta. In Janus II, the Seventh Circuit explicitly concluded that the union’s

conduct in accepting fair share fees from nonmembers amounted to state action and, therefore, was a

proper defendant under section 1983. Janus II, 942 F.3d at 361. Thus, by its own language, the

Seventh Circuit did not apparently view this conclusion as dicta only. Additionally, the court’s

conclusion that the union acted under color of state law was pivotal to the central issue in Janus II:

whether a private union could assert a good-faith defense under § 1983 to liability for agency fee

payments collected pre-Janus. Id. at 364. Although “a private party acting under color of state law

does not enjoy qualified immunity from suit, it is entitled to raise a good-faith defense to liability

under section 1983.” Id. at 362 (emphasis added). The court concluded that the union could assert a

good-faith defense to the plaintiff’s § 1983 lawsuit. Id. at 366. It stands to reason that if the union

had not acted under color of state law, it would not have been entitled to assert § 1983’s good-faith

defense, a defense reserved only for private parties acting under color of state law. Id. at 364.

Even if this conclusion was dicta, as the FOP argues, the Court may still consider it persuasive.

See Obiter Dictum, Black’s Law Dictionary (11th ed. 2019) (defining obiter dictum as “[a] judicial

comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the

case and therefore not precedential (although it may be considered persuasive)”). Janus II’s

conclusion that the union acted under color of state law when it accepted agency fees withheld by the

state from a nonmember’s wages is persuasive because the instant case arises from a similar situation,

namely that a union made use of state procedures with the overt assistance of a state agency to

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withhold fair share fees, without employees’ consent, and transfer those funds to the union. Janus II,

942 F.3d at 361.

The Court also concludes that the FOP’s cited cases are inapposite. (See Doc. No. 5, PageID#

58-61.) The FOP’s cited cases all address a different factual scenario than the instant case. Broadly,

the FOP’s cites cases in which union members attempted to withdraw their union memberships and

recoup union dues, not agency fees, after Janus. See, e.g., Belgau v. Inslee, 975 F.3d 940 (9th Cir.

2020); Kurk v. Los Rios Classified Emp. Ass’n, 540 F. Supp. 3d 973 (E.D. Cal. 2021). Indeed, in

Belgau, the Ninth Circuit distinguished Janus, where nonunion members’ speech was compelled

through mandatory agency/fair share fees, from the case before it, where union members agreed via

a private contract with their unions to pay union dues for a set period:

Janus does not address this financial burden of union membership. The Court

explicitly cabined the reach of Janus by explaining that the “[s]tates can keep their

labor-relations systems exactly as they are—only they cannot force nonmembers to

subsidize public-sector unions.” 138 S. Ct. at 2485 n.27. Nor did Janus recognize

members’ right to pay nothing to the union. The Court “was not concerned in the

abstract with the deduction of money from employees’ paychecks pursuant to an

employment contract” nor did it give “an unqualified constitutional right to accept the

benefits of union representation without paying.” Janus II, 942 F.3d at 357-58. We

join the swelling chorus of courts recognizing that Janus does not extend a First

Amendment right to avoid paying union dues.

Belgau, 975 F.3d at 950-51. Further, the Belgau court noted that its conclusion that the union was

not a state actor when it collected union dues “[did] not implicate the Seventh Circuit’s analysis on

the collection of agency fees.” Id. at 948 (emphasis added) (citing Janus II, 942 F.3d at 361). Thus,

Belgau and its progeny explicitly addressed a different factual scenario than in the instant case and

are not relevant to determining whether the FOP acted under color of state law when it allegedly

continued to seize Warren’s wages. Unlike the plaintiffs in Belgau and the FOP’s other cited cases,

Warren alleges that she was never a union member, never signed a private union membership

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contract, and never affirmatively consented to pay any agency fees or dues post-Janus, yet, for more

than two years, the FOP repeatedly utilized the County’s withholdings system to seize agency fees

from Warren after the Supreme Court issued Janus. (See Doc. No. 1, ¶¶ 14-20.) Thus, under these

specific and unusual circumstances, the Court concludes that the FOP acted under color of state law

when it repeatedly seized Warren’s wages, without her consent, post-Janus.

Accordingly, the Court concludes that, at this juncture, Warren has sufficiently pleaded that

the FOP acted under color of state law when it continued to collect agency fees from Warren’s wages

post-Janus.

IV. Conclusion

For the reasons set forth above, the FOP’s Motion to Dismiss is denied.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: March 23, 2022 U. S. DISTRICT JUDGE

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