Union Station: Union dues lawsuit heads to Supreme Court

Ninth Circuit grants plaintiffs’ request to uphold district court dismissal of union dues lawsuit

On Aug. 16, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted two Alaska state employees’ request to uphold a district court’s dismissal of their lawsuit so they can appeal the case to the U.S. Supreme Court. The court proceedings had been on hold since September 2020, awaiting the resolution of Belgau v. Inslee, which the Supreme Court declined to hear on June 21, 2021.

Parties to the suit

The plaintiffs are Linda Creed, who works for the Alaska Department of Environmental Conservation, and Tyler Riberio, who works for the Alaska Department of Transportation. Attorneys from the Liberty Justice Center, which says it “fights for the constitutional rights of American families, workers, advocates and entrepreneurs,” represent the plaintiffs. The Alaska Policy Forum, which says its “mission is to empower and educate Alaskans and policymakers by promoting policies that grow freedom for all,” also assisted in the lawsuit.

The defendants are the Alaska State Employees Association (ASEA), an affiliate of the American Federation of State, County, and Municipal Employees, and former Alaska Commissioner of Administration Kelly Tshibaka in her official capacity. Attorneys from Altshuler Berzon LLP, Dillon & Findley, P.C., and Consovoy McCarthy PLLC represent the defendants.

About the case

The plaintiffs filed their complaint in the U.S. District Court for the District of Alaska on March 16, 2020. The plaintiffs wanted to cancel their union memberships and paycheck deductions following the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME. They alleged that the defendants’ continued deductions of union dues from their paychecks according to a timetable plaintiffs agreed to before the Janus ruling had violated their First Amendment rights. The plaintiffs’ attorneys said the authorizations “[could not] constitute affirmative consent by those employees to waive their First Amendment right to not pay union dues or fees … because the Supreme Court had not yet recognized that right.”

On July 14, 2020, Senior U.S. District Judge H. Russel Holland, who was appointed to the court by President Ronald Reagan (R), granted ASEA’s motion to dismiss. Holland wrote that the plaintiffs “voluntarily agreed to join the union and have dues deducted from their paychecks. Their union membership agreements were binding contracts that remain enforceable even after Janus. … Because of these binding contracts, plaintiffs have not stated a plausible violation of their First Amendment rights.”

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit on Aug. 25, 2020. On Sept. 11, 2020, the court granted ASEA’s motion to delay the proceedings until Belgau v. Inslee, which was then-pending in the Ninth Circuit, was resolved. On Sept. 16, 2020, a Ninth Circuit panel upheld the district court’s decision in Belgau v. Inslee, writing: “In the face of [plaintiffs’] voluntary agreement to pay union dues and in the absence of any legitimate claim of compulsion, the district court appropriately dismissed the First Amendment claim.” On June 21, 2021, the Supreme Court declined to hear an appeal in Belgau v. Inslee.

After the Supreme Court’s decision not to hear Belgau v. Inslee, Creed and Riberio filed a motion in the Ninth Circuit requesting summary affirmance—a decision without an opinion—on July 2, 2021. The plaintiffs’ motion stated:

The Court’s decision in Belgau that no First Amendment waiver is required before dues are deducted pursuant to an employee’s dues deduction authorization forecloses Plaintiffs’ claims for retrospective relief, while the parties agree that this Court lacks jurisdiction over Plaintiffs’ claims for prospective relief.
To be clear, Plaintiffs do not concede that Belgau is correctly decided. …
Plaintiffs, nonetheless, acknowledge that Belgau is currently controlling circuit precedent barring their claims for retrospective relief, and that their claims for prospective relief are now moot. They therefore move the Court to summarily affirm the District Court’s decision on the ground that their appeal is currently controlled by Belgau, so Plaintiffs may petition the United States Supreme Court for review.

On Aug. 16, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted the plaintiffs’ request, upholding the district court’s decision. The panel included Senior Judge Mary Schroeder, a Jimmy Carter (D) appointee, Senior Judge A. Wallace Tashima, a Bill Clinton (D) appointee, and Judge Andrew Hurwitz, a Barack Obama (D) appointee.

The plaintiffs plan to appeal the case to the Supreme Court.

The case name and number are Creed v. Alaska State Employees Association, 20-35743.

About the Ninth Circuit

The U.S. Court of Appeals for the Ninth Circuit hears appeals from the district courts within its jurisdiction, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The chief judge of the court is Sidney Thomas, a Clinton appointee. Of the court’s 29 active judges, Clinton nominated nine, George W. Bush (R) nominated three, Obama nominated seven, and Donald Trump (R) nominated 10.

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