22-2743-cv

Wheatley v. New York State United Teachers, et al.

In the

United States Court of Appeals

For the Second Circuit ___________

August Term 2022

No. 22-2743-cv

ROBIN WHEATLEY,

Appellant,

v.

NEW YORK STATE UNITED TEACHERS, NEW HARTFORD EMPLOYEES UNION, NEW HARTFORD 

CENTRAL SCHOOL DISTRICT,

Appellees.

___________

ARGUED: JUNE 26, 2023

DECIDED: SEPTEMBER 5, 2023

___________

Before: LYNCH, LOHIER, and KAHN, Circuit Judges.

________________

A school bus driver filed an action under 42 U.S.C. § 1983 against two public-sector 

unions and her employer, the New Hartford Central School District, alleging that their 

continued deduction of union fees from her paycheck following her resignation from 

both unions violated her First and Fourteenth Amendment rights under Janus v. Am. Fed’n 

of State, Cnty., and Mun. Emps., Council 31, 138 S. Ct. 2448 (2018). She now appeals the 

dismissal of her claims by the United States District Court for the Northern District of 

New York (Scullin, J.). On appeal, Appellant argues that the district court erred by 

prematurely dismissing her claims against the unions for, among other things, failing to 

adequately plead state action. We disagree and conclude that, because Appellant 

voluntarily became a union member and affirmatively agreed to pay union dues through 

payroll deductions for a set period, the district court properly dismissed her claims.
2

We therefore AFFIRM the district court’s dismissal.

________________

DAVID R. DOREY (Nathan J. McGrath, Stephen B. Edwards, 

Logan Hetherington, on the brief), The Fairness Center, 

Harrisburg, PA, for Appellant.

SCOTT A. KRONLAND, Altshuler Berzon LLP, San 

Francisco, CA (Robert T. Reilly, Andrea Wanner, on the 

brief, NYSUT, Latham, NY), for Appellees New Hartford 

Employees Union and New York State United Teachers.

NICOLE MARLOW-JONES (Heather M. Cole, on the brief),

Ferrara Fiorenza PC, East Syracuse, NY, for Appellee New 

Hartford Central School District.

________________

MARIA ARAÚJO KAHN, Circuit Judge:

Appellant Robin Wheatley brings this action under 42 U.S.C. § 1983 against 

Appellees the New Hartford Employee’s Union (“NHEU”), the New York State United 

Teachers Union (“NYSUT,” collectively with NHEU, the “Unions”), and the New 

Hartford Central School District (the “District”). Appellant asserts that Appellees’

deduction of union dues from her paycheck after she resigned from the Unions in March 

2021 violated her First and Fourteenth Amendment rights under Janus v. Am. Fed’n of 

State, Cnty., and Mun. Emps., Council 31, 138 S. Ct. 2448 (2018).

The Supreme Court’s decision in Janus invalidated the collection of agency fees 

from non-union members but left intact “labor-relations systems exactly as they are.” Id. 

at 2478, 2485 n.27. Appellant’s claims against the Unions fail because, even assuming that 

there was state action taken by Appellees, the District’s withholding of union dues did 
3

not constitute a violation of her First and Fourteenth Amendment rights. We, therefore, 

affirm the district court’s dismissal of the case.

BACKGROUND

Appellant became a member of the Unions in 2005 when she began her 

employment with the District as a school bus driver. In 2018, Appellant signed a union 

membership and dues deduction authorization form (the “Membership Agreement”). In 

relevant part, the Membership Agreement contained the following language:

I understand that this authorization and assignment is not a condition of 

my employment and shall remain in effect, regardless of whether I am or 

remain a member of the union, for a period of one year from the date of 

this authorization and shall automatically renew from year to year unless 

I revoke this authorization by sending a written, signed notice of 

revocation via U.S. mail to the union between the window period of Aug. 

1-31 or another window period specified in a collective bargaining 

agreement.

J. App’x at 27. The Membership Agreement authorized the District to deduct union 

membership dues from Appellant’s wages and remit them to NHEU in accordance with 

the New York Public Employees Fair Employment Act, N.Y. Civ. Serv. Law §§ 200, et seq.

(the “Taylor Law”). Under the Taylor Law, such deduction authorizations remain in 

effect until they are revoked by the individual employee “in accordance with the terms 

of the signed authorization.” N.Y. Civ. Serv. Law § 208(1)(b)(i).

On March 22, 2021, Appellant resigned from the Unions by sending a signed letter 

via email and interoffice mail to NHEU’s President, Vincent Nesci, and the District’s 

payroll office. In response, Nesci informed Appellant that although she was no longer a 
4

member of the union, dues would continue to be deducted from her paychecks unless 

and until she sent a written and signed notice of revocation in the August “window 

period,” as described in the Membership Agreement. J. App’x at 11. The District

continued to deduct union dues from Appellant’s paychecks through at least May 28, 

2021, but ceased when Appellant sent the required notice of revocation in August. Id. As 

a nonmember of the Unions, Appellant did not receive member benefits “while her 

deductions were ongoing from the date of her resignation until the day they ceased.” Id.

Appellant commenced this action on September 10, 2021, asserting two claims for 

relief under 42 U.S.C. § 1983 against the Unions and the District.1 Count One alleged that 

post-resignation deductions to the Unions from Appellant’s wages violated her First 

Amendment rights to freedom of speech and association. Count Two alleged that postresignation deductions violated Appellant’s Fourteenth Amendment right to due 

process. Appellant sought, among other things, injunctive relief, declaratory relief, and

damages equal to the total amount of union dues deducted from her wages after her 

resignation in March 2021, plus interest.

The Unions and the District moved to dismiss Appellant’s claims pursuant to Fed. 

R. Civ. P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state 

1 In relevant part, 42 U.S.C. § 1983 states: “[e]very person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen 

of the United States or other person within the jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper proceeding for redress . . . .” (emphases added).
5

a claim, which the district court granted. See Wheatley v. New York State United Tchrs., 629 

F. Supp. 3d 18 (N.D.N.Y. 2022). The court held that it lacked subject matter jurisdiction 

over Appellant’s claims for prospective injunctive and declaratory relief because the 

District had ceased deducting dues from Appellant’s wages. See id. at 23–25.

The court also held that Appellant’s § 1983 claims against the Unions and the 

District failed to state viable claims for relief. Specifically, the court concluded that 

Appellant’s claims against the Unions failed because the Unions “are not state actors 

within the meaning of § 1983.” Id. at 27. With regard to the § 1983 claim against the 

District, the court concluded the District was not a state actor because “it was not a policy 

of [the] District, but rather state law, that required [the] District to deduct union 

membership dues from [Appellant’s] wages until [Appellant] revoked that authorization 

‘in accordance with the terms of the signed authorization.’” Id. at 32 (quoting N.Y. Civ. 

Serv. Law § 208(1)(b)). Moreover, in continuing to deduct dues until Appellant’s 

revocation during the window period, the court noted that the “District was merely 

honoring [Appellant’s] self-imposed, voluntary authorization that [the] District deduct 

union dues from her wages unless she revoked said authorization during the annual 

window period.” Id. at 33. In addition to the absence of state action, the court also held 

that Appellant’s claims failed because Appellant “ha[d] not plausibly alleged that 

[Appellees] violated her constitutional rights by abiding by the authorization that she 
6 

voluntarily provided to them in her Membership Agreement.” Id. at 26. This appeal 

followed.

On appeal, Appellant revives the arguments made before the district court—

namely, that, pursuant to § 1983, the post-resignation deductions from her wages by the 

District to the Unions violated the First and Fourteenth Amendments. Specifically, she 

argues the Unions and the District were state actors under § 1983 when they purportedly 

violated her constitutional rights.

DISCUSSION

Because Appellant challenges the district court’s dismissal of her claims for lack of 

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and for failure to state a claim 

under Fed. R. Civ. P. 12(b)(6), we review the district court’s factual findings for clear error 

and its legal conclusions de novo, accepting all factual allegations in it as true and drawing 

all reasonable inferences in Appellant’s favor. See Liranzo v. United States, 690 F.3d 78, 84 

(2d Cir. 2012) (Rule 12(b)(1)); Melendez v. Sirius XM Radio, Inc., 50 F.4th 294, 298 (2d Cir.

2022) (Rule 12(b)(6)).

“To state a claim for relief in an action brought under § 1983, [Appellant] must 

establish that [she was] deprived of a right secured by the Constitution or laws of the 

United States, and that the alleged deprivation was committed under color of state law.” 

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). We need not address the state 

action issue in this case because even assuming that there was state action taken by 
7

Appellees, Appellant’s arguments that she was deprived of certain constitutional rights 

fail. See Hotel Emps. & Rest. Emps. Union, Loc. 100 of New York & Vicinity, AFL CIO v. City 

of New York Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir. 2002) (“Because we also 

find no constitutional violation, we will assume, without deciding, that the parties’ 

License Agreement renders Lincoln Center, Inc. a state actor for purposes of eventscheduling in the Plaza.”); see also Jones v. Cnty. of Suffolk, 936 F.3d 108, 114 (2d Cir. 2019) 

(“We need not address [defendants] alternative arguments because we conclude that, 

even if the state action and seizure questions were to be decided in [plaintiff’s] favor, the 

special needs doctrine warrants the district court’s award of summary judgment to 

defendants.”).

I. APPELLANT’S FIRST AMENDMENT CLAIM

Appellant first argues that her First Amendment rights were violated when the 

District deducted union dues from her paychecks after her resignation from union 

membership. She relies on the Supreme Court’s decision in Janus, stating that public 

employees have a right to be free from compelled speech in the form of subsidizing a 

union’s political activity through compelled payroll deductions. She contends that

because Janus was decided two months after she signed the Membership Agreement, she 

was not able to fully understand the rights she would forgo by executing that agreement. 
8

For the reasons set forth below, we join the growing list of our sister circuits2 and 

conclude that Janus does not relieve Appellant of her contractual duties to pay union dues 

under the Membership Agreement.

Janus involved a situation where a non-union member was subject to “fair share” 

automatic wage deductions, which were used towards funding the union. Janus, 138 S. 

Ct. at 2461–62. Overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the 

Supreme Court found such deductions to be unconstitutional. Janus, 138 S. Ct. at 2486. 

Specifically, the Court was concerned with the dangers of compelled speech and

“[c]ompelling individuals to mouth support for views they find objectionable” by forcing 

them to subsidize that speech via compulsory union dues. Id. at 2463. The Court thus 

condemned the practice of automatically deducting agency fees from nonmembers who 

were “not required to consent before the fees are deducted.” Id. at 2460–61. The Court 

explicitly limited the reach of Janus by noting “[s]tates can keep their labor-relations 

systems exactly as they are—only they cannot force nonmembers to subsidize publicsector unions.” Id. at 2485 n.27.

2 See Fischer v. Governor of N.J., 842 F. App’x 741 (3d Cir. 2021) (summary order); Oliver v. 

Serv. Emps. Int’l Union Local 668, 830 F. App’x 76 (3d Cir. 2020) (summary order); Littler v. Ohio 

Ass’n of Pub. Sch. Emps., No. 20-3795, 2022 WL 898767, at *1 (6th Cir. Mar. 28, 2022); Ramon Baro v. 

Lake Cnty. Fed'n of Tchrs. Loc. 504, IFT-AFT/AFL-CIO, 57 F.4th 582 (7th Cir. 2023); Bennett v. 

AFSCME Council 31, 991 F.3d 724 (7th Cir. 2021); Burns v. Sch. Serv. Emps. Union Loc. 284, No. 21-

3052, 2023 WL 4834588 (8th Cir. July 28, 2023); Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020); 

Hendrickson v. AFSCME Council 18, 992 F.3d 950 (10th Cir. 2021); see also Kumpf v. New York State 

United Tchrs., 2022 WL 17155847 (N.D.N.Y. Nov. 22, 2022).
9

Appellant’s signing of the Membership Agreement constitutes an affirmative 

consent to pay dues. Accordingly, the facts of this case place it outside the scope of Janus. 

As the Ninth Circuit noted in Belgau v. Inslee, a case factually similar to the one at hand, 

“Janus [does not] recognize members’ right to pay nothing to the union . . . Janus does not 

extend a First Amendment right to avoid paying union dues.” 975 F.3d 940, 951 (9th Cir. 

2020). The Seventh Circuit, in another factually similar case, held that “Janus said nothing 

about union members who . . . freely chose to join a union and voluntarily authorized the 

deduction of union dues, and who thus consented to subsidizing a union.” Bennett v. 

Council 31 of the Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO, 991 F.3d 724, 732 (7th 

Cir. 2021).

The dangers of compelled speech that were the concern of the Court in Janus are 

not at issue here. New York’s Taylor Law guarantees public employees the right to choose 

whether to join the union as members, N.Y. Civ. Serv. Law § 202, and prohibits any union 

or public employer from “interfer[ing] with, restrain[ing] or coerc[ing] public employees 

in the exercise of their rights,” id. at § 209-a. It is undisputed that Appellant voluntarily 

joined the Unions and authorized dues deductions from her wages when she signed the 

Membership Agreement in 2018, which began with the statement “YES! I request and 

accept membership in [the NHEU and] . . . NYSUT.” J. App’x at 27. Having the choice 

to voluntarily join and resign from a union is the opposite of compelled speech. See 

Belgau, 975 F.3d at 951.
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Further, 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). Appellant’s promise to join the Unions and pay dues unless and until 

revocation during the “window period” was made in the context of a contractual 

relationship between the Unions and Appellant.3 Appellant does not dispute that when 

she sent the required letter to the Unions during the August window period, the District 

stopped deducting membership dues from her wages.

II. APPELLANT’S FOURTEENTH AMENDMENT CLAIM

Appellant’s Fourteenth Amendment claim that the deduction of union dues from 

her paychecks was a violation of procedural due process also fails. To state a claim under 

§ 1983 for a violation of procedural due process, a plaintiff must: (1) identify a liberty or 

3 To the extent that Appellant argues that her resignation from the Unions makes her a

nonmember who falls within the scope of Janus, she is incorrect. Unlike nonmembers, as the term 

was used in Janus, who never agreed to join a union to begin with, Appellant affirmatively entered 

a voluntary contractual agreement that requires her to pay dues for a full year even if she resigns 

her membership during the course of that year. See Bennett, 991 F.3d at 733 (“Having consented 

to pay dues to the union, regardless of the status of her membership, [the plaintiff] does not fall 

within the sweep of Janus’s waiver requirement.”). Appellant is required to pay dues because of 

the Membership Agreement she signed, which in effect provides that by joining the Unions, she 

agrees to be liable for a whole year’s dues, payable in installments, and that she can terminate her 

liability by advising the union of her resignation at the end of the year, during a reasonable 

window for revoking the contract’s automatic renewal. Nothing about that arrangement, which 

is clearly spelled out in the Membership Agreement to which Appellant voluntarily consented, 

violates the First Amendment. See Fischer, 842 F. App’x at 744 (rejecting argument that the optout periods in state statutes and union membership agreements were unconstitutional); see also 

Hendrickson, 992 F.3d at 964 (rejecting argument that “Janus should retroactively invalidate the 

membership opt-out window because limiting [a plaintiff’s] ability to terminate his dues 

payments to two weeks a year violates the First Amendment right of association”).
11

property interest, (2) show that the state has deprived the plaintiff of that interest, and (3) 

show that the deprivation was affected without due process. Local 342, Long Island Pub. 

Serv. Emps., UMD, ILA, AFL-CIO v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 

1994). “Even if there is state action, the ultimate inquiry in a Fourteenth Amendment case 

is, of course, whether that action constitutes a denial or deprivation by the State of rights 

that the Amendment protects.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 n.4 (1978) 

(internal quotation marks omitted). Appellant argues that “Defendants acted in concert, 

by and through their agents and officials, to deduct and to accept union dues or fees from 

[her] wages without providing her any meaningful notice or opportunity to object to the 

ongoing deductions, the process by which the money was deducted, or the ways in which 

her money [was] used.” J. App’x at 8. She claims that this was in violation of Teachers

Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 304–09 (1986) (“Hudson”), which 

held that the First Amendment entitled non-union public employees in an agency shop 

to procedures designed to prevent their money from supporting union political activity, 

including a detailed accounting of how the union intends to spend dues.

Appellant’s reliance on Hudson is misplaced. The premise of Hudson is that, under 

the legal regime established by Abood—which permitted agency fees to be collected from 

non-union public employees—there needs to be a procedure by which a dissenting 

employee can challenge the calculation of agency fees. See Hudson, 475 U.S. at 304–09. 

Post-Janus, however, public employers are not required to apply Hudson procedures 
12

because they are prohibited from imposing agency fees on non-union employees in the 

first place. Additionally, the holding of Hudson is inapplicable to union members. In 

Hudson, the complainants were employees who chose not to join the union but were

nonetheless required to pay agency fees. Id. at 297. The case, therefore, has no application 

to employees like Appellant, who voluntarily signed a union membership agreement and 

contractually agreed to pay the full dues. Our resolution of the First Amendment 

argument thus dooms Appellant’s Fourteenth Amendment claim because the latter 

suffers from the same fatal flaw as the former—namely, that Appellant voluntarily joined 

the Unions. See Kumpf v. New York State United Tchrs., No. 22-CV-402, 2022 WL 17155847, 

at *14 (N.D.N.Y. Nov. 22, 2022) (“Because Plaintiff has failed to allege any First 

Amendment violations and fails to allege that her agreement to pay union dues and to 

continue paying union dues until the August 1–31 revocation period, even as a 

[nonmember], Hudson’s procedures are inapplicable to Plaintiff.”). Appellant proffers no

factual or legal basis to support a conclusion that the operation of such a private 

agreement offends principles of due process.

Because Appellant was contractually obligated to pay union dues pursuant to the 

Membership Agreement that she voluntarily signed, and the District’s withholding of 

union dues did not constitute a violation of her First Amendment rights, Appellant’s 

Fourteenth Amendment claim fails. See Wagner v. Univ. of Wash., No. 20-35808, 2022 WL 

1658245, at *1 (9th Cir. May 25, 2022) (concluding that a plaintiff “was not deprived of a 
13

constitutionally protected property interest when the University deducted and remitted 

her voluntarily authorized dues”). Where, as here, “no protected liberty interest is being 

impaired, no due process is required.” Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 

1998); see also Hernandez v. Coughlin, 18 F.3d 133, 138 (2d Cir. 1994) (“Because we find that 

no state-created liberty interest has been interfered with, we need not consider what 

process is due under the Fourteenth Amendment.”); Barnard v. Chamberlain, 897 F.2d 1059, 

1066 (10th Cir. 1990) (“Our finding that appellees did not violate appellant’s first 

amendment rights similarly defeats his claim that he was deprived of a liberty interest 

without due process of law.”).

CONCLUSION

We have considered the Appellant’s remaining arguments and find them to 

be without merit. For the reasons set forth above, we AFFIRM the judgment of the 

district court.