Marcus Todd v. American Federation of State, County and Municipal Employees, Council 5

United States Court of Appeals
For the Eighth Circuit
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No. 21-3749
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Marcus Todd,
lllllllllllllllllllllPlaintiff - Appellant,
v.
American Federation of State, County and Municipal Employees, Council 5,
lllllllllllllllllllllDefendant - Appellee.
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Freedom Foundation,
lllllllllllllllllllllAmicus on Behalf of Appellant(s).
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Appeal from United States District Court
for the District of Minnesota
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Submitted: September 26, 2024
Filed: January 15, 2025
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Before COLLOTON, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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COLLOTON, Chief Judge.
Marcus Todd is a state employee in Minnesota who alleges that a union
violated his rights under the First and Fourteenth Amendments by participating in the
deduction of union dues from his paycheck. The district court* granted the union’s
motion to dismiss the complaint, and we affirm.
I.
Appellant Todd is an employee of the Minnesota Department of Human
Services. When he began working for the Department in 2014, Todd joined the
American Federation of State, County, and Municipal Employees. By signing a union
membership card, Todd authorized his employer to deduct union dues from his
paycheck.
In June 2018, a revised union membership and dues-deduction authorization
card was completed electronically with Todd’s name, contact information, and
electronic signature. The Union continued deducting dues from Todd’s paycheck
based on the 2018 card. Todd alleges that he never signed the 2018 membership card,
and asserts that the union forged his signature.
Shortly thereafter, the Supreme Court decided Janus v. American Federation
of State, County, and Municipal Employees, Council 31, 585 U.S. 878 (2018). The
Court held that the First Amendment forbids a State to deduct a percentage of full
union dues, generally called an “agency fee,” from nonconsenting public-sector
employees who do not join the union. Id. at 929-30. Janus overruled Abood v.
*The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
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Detroit Board of Education, 431 U.S. 209 (1977), which held that the deduction of
agency fees was constitutional.
In July 2020, Todd sent the union a letter purporting to resign his membership
and demanding that the union discontinue deducting dues from his paycheck. The
union responded that according to his union membership agreement, Todd could
resign only during a designated annual opt-out period. On that basis, the union
continued to deduct union dues until May 2021, when it notified the Department to
discontinue the deductions.
Todd sued the union under 42 U.S.C. § 1983, seeking an award of damages
“for union dues unlawfully deducted” from his paychecks “without clear and
compelling evidence of [his] freely given waiver of First Amendment rights.” He
also sought injunctive and declaratory relief. Todd sought broadly to recover all
membership dues deducted before the decision in Janus—despite signing an
authorization card in 2014—on the ground that he “never freely waived his First
Amendment rights.” He also alleged that the union violated his free speech rights
under Janus in 2020 by refusing to terminate his union membership outside of the
designated annual opt-out period.
Todd raised two more claims based on his allegation that the union forged an
authorization card in 2018. He alleged that the union violated his rights under the
First Amendment by causing a deduction in dues based on that authorization
card—both before and after his attempt to resign from the union in July 2020. Todd
also asserted tort claims under Minnesota law.
The district court dismissed the federal claims for failure to state a claim. The
court reasoned that Todd voluntarily agreed to the deduction of dues before Janus,
and that Todd agreed contractually to the opt-out period that limited his ability to
terminate his union dues immediately. As to the claims alleging a forged
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authorization card, the court concluded that the union did not act under color of state
law and thus could not be liable under § 1983. The court ruled that Todd’s claims for
prospective relief were moot because Todd had resigned from the union, and there
was no reasonable expectation that he would be subjected to a dues deduction in the
future. The court declined to exercise supplemental jurisdiction over Todd’s claims
under state law.
Todd acknowledges on appeal that his claims for prospective relief are moot,
but he challenges the district court’s dismissal of his claims for retrospective relief.
We review the district court’s decision de novo.
II.
Section 1983 provides a cause of action against a defendant whose actions
were taken “under color of state law” and deprived another of a federal right. Lugar
v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). The First and Fourteenth
Amendments secure the right to be free from compelled subsidization of private
speech, Janus, 585 U.S. at 893-94, but they prohibit only state action that abridges
that right. See Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808-09
(2019). A private entity is considered a state actor in only “limited circumstances,”
id., where the disputed acts have their “source in state authority.” Lugar, 457 U.S.
at 939.
Recent decisions of this court directly resolve two of Todd’s claims on appeal.
In Hoekman v. Education Minnesota, 41 F.4th 969 (8th Cir. 2022), we held that union
members who objected to the deduction of union dues failed to allege state action that
would support a claim under the First Amendment. Because the union collected dues
based on a private agreement, not pursuant to any state statute, the union members
could not show that the union violated their constitutional rights. Id. at 978. Todd’s
claim against the union for all dues deducted before Janus likewise fails for lack of
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state action. Even if state action were present, we also held in Burns v. School
Service Employees Union Local 284, 75 F.4th 857 (8th Cir. 2023), that a deduction
of union dues under a valid contract between the union and a member does not violate
the First Amendment. Id. at 860. Hoekman further held that a union’s refusal to
grant a member’s request for immediate resignation was attributable to private
agreements and private judgments rather than state action. 41 F.4th at 978. Todd’s
analogous claim fails for the same reason.
Todd suggests that his remaining claims differ from those at issue in Hoekman
because he alleged that the union forged his signature on an authorization card in
2018. The allegation of forgery does not establish the existence of state action that
was otherwise absent. Minnesota law prohibits forging a union membership card,
Minn. Stat. § 609.63, subdiv. 1(3), and allows state employers to deduct union dues
only with a member’s signed authorization. Minn. Stat. § 179A.06, subdiv. 6. The
union’s alleged “private misuse of a state statute” to collect dues from Todd after
forging his signature “does not describe conduct that can be attributed to the State.”
Lugar, 457 U.S. at 941. The union’s allegedly “fraudulent act is by its nature
antithetical to any ‘right or privilege created by the State’ because it is an express
violation of existing state law.” Wright v. Serv. Emps. Int'l Union Loc. 503, 48 F.4th
1112, 1123 (9th Cir. 2022) (quoting Lugar, 457 U.S. at 937). There is thus no state
action where the union “allegedly acted unlawfully.” Roudybush v. Zabel, 813 F.2d
173, 177 (8th Cir. 1987).
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For these reasons, the judgment of the district court is affirmed.
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