PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________________________

Nos. 21-3096, 21-3097, and 22-1108

___________________________

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 
2

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

___________________________

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

___________________________
3

Argued: September 20, 2023

Before: RESTREPO, MCKEE, and RENDELL, Circuit 

Judges

(Filed: January 12, 2024)

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 15th Street, N.W., Suite 1000

Washington, DC 20005

Amy L. Rosenberger

WILLIG, WILLIAMS & DAVIDSON

1845 Walnut Street, 24th 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
4

Lauren M. Hoye

WILLIG, WILLIAMS & DAVIDSON

1845 Walnut Street, 24th 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

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellees Michael Newsome, Bryan T. 

Lyman, and Thomas Wolf

________________________

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 
5

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. 
6

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. 138 S. Ct. 2448 (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 (1977) and for forty-one years 

thereafter, certain designated unions1could 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. 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 

1 Abood involved unions that were designated as the 

“exclusive representative” of all employees in a bargaining 

unit, which means that “individual employees may not be 

represented by any agent other than the designated union; nor 

may individual employees negotiate directly with their 

employer.” 431 U.S. at 224; Janus, 138 S. Ct. at 2460. 
7

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.

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 (1943) and citing Riley v. Nat’l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 796–97 (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 
8

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 long 

as my employment continues, unless I give the 

Employer and the Union written notice of 
9

revocation not less than ten (10) days and not 

more than thirty (30) days before the end of any 

yearly period . . . .

J.A. 381.

After the Janus decision, Barlow resigned from SEIU 

Local 668 on July 14, 2020, a month after his annual 

resignation window period had closed. Consistent with the 

authorization, SEIU Local 668 continued to deduct dues from 

Barlow’s paycheck for eleven months thereafter. Barlow 

alleges that during this time he was not provided any 

information about how his dues were spent, nor with a 

procedure for objecting thereto.

Frances Biddiscombe joined the DHS and SEIU Local 

668 in 2014. On June 7, 2018, several weeks before Janus,

Biddiscombe signed a membership application that was 

identical to Barlow’s. She resigned from SEIU Local 668 on or 

about July 9, 2020, six weeks after her annual resignation 

window closed. And pursuant to the membership agreement, 

SEIU Local 668 continued to deduct union dues from 

Biddiscombe’s paycheck until May 2021.

Barlow’s and Biddiscombe’s respective lawsuits 

involved the same claims against the same defendants. They 

sued SEIU Local 668, as well as two government officials—

Michael Newsome and Bryan T. Lyman2—in federal court for 

2 Defendant-Appellee Newsome is the Secretary of the 

Office of Administration for Pennsylvania, and “negotiated, 

entered into, and is the signatory to, on behalf of the 

Commonwealth,” the collective bargaining agreement 
10

violation of their rights to freedom of association and to be free 

from compelled speech under the First Amendment under 

Janus. They also claimed that failure to provide them with 

procedures for notification and objection to how their postresignation dues were being spent violated their Fourteenth 

Amendment due process rights. They sought damages in the 

amount of post-resignation dues collected, and injunctive and 

declaratory relief.

The District Court consolidated the similar matters for 

briefing on Appellees’ motions to dismiss under Fed. R. Civ.

P. 12(b)(6) and 12(c).3 The Court dismissed in full, finding no 

First Amendment claim because “Plaintiff[s] voluntarily 

consented to join the union and pay dues,” and “Janus‘protects 

nonmembers from being compelled to support the [u]nion,’ but 

it does not ‘render [a union member’s] knowing and voluntary 

choice to join [the union] nonconsensual.’” Barlow v. SEIU 

Local, 668, 566 F. Supp. 3d 289, 298 (M.D. Pa. 2021) (quoting 

Oliver v. SEIU Local 668, 830 Fed. App’x 76, 79 (3d Cir. 2020)); 

Biddiscombe v. SEIU, Local 668, 566 F. Supp. 3d 269, 281 

(M.D. Pa. 2021) (quoting Oliver, 830 Fed. App’x at 79).

governing the terms and conditions of employment for 

Plaintiff-Appellants and is responsible for human relations for 

Commonwealth Employees. J.A. 123. Defendant-Appellee 

Lyman is the Chief Accounting Officer and Deputy Secretary 

for the Office of Comptroller, and “oversees the payroll system 

for the Commonwealth, which includes processing union dues 

and other payroll deductions. Id.

3 At the time, there was a third case involving another 

plaintiff with similar claims pending before the same District 

Court Judge, which is not at issue here.
11

The Court similarly rejected Appellants’ due process 

claims because “Janus did not confer any new rights upon 

public employees who had voluntarily joined a union and 

agreed to pay dues; . . . render preexisting union membership 

agreements constitutionally infirm;” or give “rise to an 

obligation on the part of Local 668 to provide Plaintiff[s] with 

notice of [their] constitutional rights after [they] resigned from 

membership.” Barlow, 566 F. Supp. 3d at 302; Biddiscombe, 

566 F. Supp. 3d at 285. Additionally, the District Court found 

that Barlow’s and Biddiscombe’s requests for prospective 

relief were moot because the union was no longer collecting 

dues from them. Barlow, 566 F. Supp. 3d at 296; Biddiscombe, 

566 F. Supp. 3d at 279.

B. The Fultz Appellants

Miriam Fultz and the thirteen other named appellants in 

this putative class action are “public employees” of the 

Commonwealth of Pennsylvania. See 43 P.S. §§ 1101.301(2); 

1101.301(15). Eight of the fourteen, including Fultz herself, 

joined AFSCME, Council 134 prior to the Janus decision in 

June 2018, while the other six joined after Janus. Each party

signed a membership card consenting to “voluntarily authorize 

and direct my Employer to deduct from my pay each pay 

period, regardless of whether I am or remain a member of the 

Union, the amount of dues certified by the Union.” J.A. 8. They 

also agreed that:

This voluntary authorization and assignment 

shall be irrevocable, regardless of whether I am 

4 AFSCME, Council 13 is an “Employe organization” 

and a “Representative” as those terms are defined by PERA, 

43 P.S. §§ 1101.301(3); 1101.301(4).
12

or remain a member of the Union, for a period of 

one year from the date of execution of this 

authorization or until the termination date of the 

collective bargaining agreement (if there is one) 

between my Employer and the Union, whichever

occurs sooner, and for the years to come, unless 

I give my Employer and the Union written notice 

of revocation during the fifteen (15) days before 

the annual anniversary date of this authorization 

or, for public sector contracts, during the fifteen 

(15) days before the date of termination of the 

appropriate collective bargaining agreement

between the Employer and the Union, whichever 

occurs sooner.

J.A. 9. The fourteen resigned from AFSCME, Council 13 on 

various dates between May 8, 2020 and December 23, 2020. 

They allege that AFSCME, Council 13 notified them that dues 

would nevertheless continue to be deducted from their 

paychecks “indefinitely,” or at least until the 15-day “escape 

window.” J.A. 131. 

On November 12, 2020, the Fultz Appellants sued 

AFSCME, Council 13, former Pennsylvania Governor Thomas 

Wolf, Michael Newsome, and Brian T. Lyman. The District 

Court stayed proceedings pending resolution of Fischer v. 

Governor of N.J., 842 F. App’x 741 (3d Cir. 2021). After that 

decision, which non-precedentially rejected very similar 

claims, Appellants filed an Amended Complaint on March 1, 

2021, alleging First Amendment and Fourteenth Amendment 

procedural due process violations similar to Barlow’s and 

Biddiscombe’s.
13

The Fultz suit includes three proposed subclasses: (1)

persons who were already members of Council 13 when they 

signed the relevant membership applications pre-Janus; (2) 

persons who signed first-time applications before Janus; and

(3) persons who signed first-time applications after Janus. 

Defendants filed motions to dismiss under Rule 12(b)(6) for

failure to state a claim, and in the alternative, for summary 

judgment. In response, Appellants in the subclass of those who 

were already members of Council 13 when they signed the 

relevant membership applications alleged for the first time that 

their applications were unenforceable for lack of consideration, 

because they were already receiving the benefits of 

membership when they agreed to pay dues for another year.

The District Court rejected the Fultz Appellants’ First 

Amendment claims for largely the same reasons as in Barlow

and Biddiscombe, and rejected their due process claim as 

duplicative of the First Amendment claim. Finally, it rejected 

the subclass’s contract claim because it was not raised in the 

pleadings.

II. DISCUSSION 5

The District Court dismissed the Fultz Appellants’

claims for failure to state a claim under Rule 12(b)(6), and 

5 The District Court had subject-matter jurisdiction 

over each of the three now-consolidated cases pursuant to 28 

U.S.C. §§ 1331, 1343(a)(3). We have jurisdiction under 28 

U.S.C. § 1291. In Barlow and Biddiscombe (Nos. 21-3096 and 

21-3097), the District Court dismissed the Complaints with 

prejudice, resulting in “final decisions” within the purview of 

28 U.S.C. § 1291. Manze v. State Farm Ins. Co., 817 F.2d 
14

Barlow’s and Biddiscombe’s under Rules 12(b) and 12(c). We 

review the District Court’s dismissal of Appellants’ 

constitutional and contract-based claims de novo.6 Oneida 

Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416

n.3 (3d Cir. 1988) (explaining that “[r]eview of the legal 

component for either [a Rule 12(b)(6) or 12(c)] motion[] is 

identical,” and that decisions under both are evaluated by a 

reviewing court de novo).

A. First Amendment Claims

Janus established a new constitutional right for 

nonmembers to be free from compulsory paycheck deductions 

in support of a union they never consented to join. But this right 

does not extend as far as Appellants urge us to hold. The Court 

in Janus recognized that “[n]either an agency fee nor any other 

payment to the union may be deducted from a nonmember’s 

wages, nor may any other attempt be made to collect such a 

payment, unless the employee affirmatively consents to pay.” 

138 S. Ct. at 2486. “By agreeing to pay, nonmembers are 

waiving their First Amendment rights, and such waiver cannot 

be presumed.” Id. (citations omitted).

1062, 1064 (3d Cir. 1987). In Fultz (No. 22-1108), final 

judgment was entered when the parties stipulated to dismissal 

of the one due process claim remaining after the District Court

partially granted Appellees’ motions to dismiss.

6 On appeal, Biddiscombe and Barlow do not challenge 

the dismissal of their claims for prospective relief, which were 

their only claims against Commonwealth defendants Michael 

Newsome and Bryan T. Lyman. As such, only the Fultz

Appellants’ claims against the Commonwealth stand. 
15

This language, Appellants argue, entitles them to 

proceed to discovery to determine whether their agreements to 

pay constituted waivers that were “freely given and shown by 

‘clear and compelling’ evidence.” Id. (quotation and citation

omitted). But this reading ignores the reality that Appellants

were union members who affirmatively consented to have dues 

deducted from their paychecks for a time certain thereafter, 

regardless of membership status, and whose status converted 

to nonmember only after they resigned from their respective 

unions, not “before any money [was] taken from them[.]” Id.

(emphasis added).

We clarified the limited scope of Janus’s use of the term 

“union nonmember” in LaSpina v. SEIU Pa. State Council, 985 

F.3d 278, 288 (3d Cir. 2021). LaSpina involved a claim by a 

union member who sought return of dues voluntarily paid preJanus,

7

as well as a refund of dues deducted after she resigned 

from her union. We held that the latter was not a constitutional 

violation under Janus, noting that while, technically, plaintiff 

was indeed a union “nonmember” after she resigned, that is not 

how Janus used the term when it stated that unions could not 

collect payment “from a nonmember.” Id. at 287–88 (citing 

Janus, 138 S. Ct. at 2486) (“In the topic sentence of the 

7

In LaSpina, we rejected Appellant’s claim on standing 

grounds for lack of causation. 985 F.3d at 286 (“[U]nlike the 

plaintiff in Janus, LaSpina joined the Union and paid 

membership dues. . . . [H]ad it not been for the Union 

‘compelling [nonmembers] to subsidize private speech on 

matters of substantial public concern,’ LaSpina still would 

have had to pay as a component of her union membership dues 

an amount equal to the amount charged to nonmembers as a 

fair-share fee.”) (emphasis omitted) (internal citation omitted). 
16

paragraph that includes that holding, the Court [in Janus] made 

clear it was primarily demarcating the constitutional rights of 

nonmembers currently or previously employed in agency shop 

arrangements.”).8

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). Based on this premise, the Ninth Circuit in Belgau v. 

Inslee, 975 F.3d 940, 951–52 (9th Cir. 2020), explicitly 

rejected a reading of Janus that would extend generally to 

union member claims. Because the Belgau plaintiffs 

experienced no compulsion like that addressed by the Supreme 

Court in Janus, for example, through “forc[ing] Employees to 

sign the membership cards or retain membership status to get 

or keep their public-sector jobs[,]” id. at 950, and because 

“Janus does not address the financial burden of union 

membership[,]” id. at 951, the Ninth Circuit joined the 

“swelling chorus of courts recognizing that Janus does not 

extend a First Amendment right to avoid paying union dues[,]”

id., when those duties arise out of a contractual commitment. 

See id. at 951 n.5 (collecting cases).

After Belgau, other Courts of Appeals including the 

Seventh, Eighth, and Tenth followed suit, universally rejecting 

pre-Janus claims like the claims before us for the same reason. 

See Hendrickson v. AFSCME, Council 18, 992 F.3d 950, 961

8

 Plaintiff also claimed that the union should be 

required to obtain a full constitutional waiver before extracting 

any further dues from her or any other employees. We did not 

address that claim because it was moot, as her claim was styled 

as seeking prospective relief and she was no longer a union 

member subject to any dues. Id. at 289. 
17

(10th Cir. 2021); Bennett v. AFSCME, Council 31, 991 F.3d 

724, 731 (7th Cir. 2021); Burns v. Sch. Serv. Emps. Union Loc. 

284, 75 F.4th 857, 861 (8th Cir. 2023). Thus far, only the 

Seventh Circuit has specifically addressed a post-Janus claim 

like those of the Fultz subclass, where a plaintiff had signed a 

membership agreement after the June 2018 Janus decision and 

then subsequently resigned from the union. 9 See Ramon Baro 

v. Lake Cnty. Fed’n of Teachers Local 504, 57 F.4th 582, 586

(7th Cir. 2023). The Court held that “the timing makes no 

difference. What matters is the nature of each person’s decision 

to sign a private contract.” Id. We agree.

Although Appellants urge us to depart from the 

reasoning of our sister circuits, we choose, instead, to rely on 

the principle adopted by the Supreme Court in Cohen that state 

contract law, not the First Amendment, governs their claims. 

See Belgau, 975 F.3d at 950. In Cohen, the Court refused to 

find a specific First Amendment right for the press to be free 

from generally applicable laws, like those sounding in contract, 

even where it might interfere with a journalist’s reporting. 501 

U.S. at 669–70. 

The Cohen majority highlighted that the law at issue did 

not “single out the press” or target particular published content. 

Id. at 670. Rather, “[state] law simply requires those making 

promises to keep them.” Id. at 671. The parties themselves, as 

in this case, “determine the scope of their legal obligations,” 

not the state. Id. Given the exceptional importance of the press 

within our First Amendment jurisprudence, the Supreme 

9 One of the appellants in Burns also raised a post-Janus

claim, but the Court did not specifically address it in rejecting 

all claims. 75 F.4th at 859.
18

Court’s decision to uphold the principles of contract law over 

the First Amendment in that context only enhances Cohen’s 

applicability in other contexts, such as this one. 

In sum, Janus says nothing regarding a consenting 

employee’s ability to contract to support a union for a time 

certain in exchange for the benefits of union membership. We 

reject the notion that Appellants never consented to dues 

collection because their membership agreements did not 

constitute a valid waiver of their constitutional rights. 

Appellants implore us to follow the reasoning of constitutional 

waiver cases such as D. H. Overmyer Co. v. Frick Co., 405 

U.S. 174 (1972), Fuentes v. Shevin, 407 U.S. 67 (1972), and 

their progeny. But these cases are inapposite and every court 

to weigh in on this argument has held that no such waiver is 

necessary because there is no constitutional right at issue here. 

We join our sister circuits in holding that the First Amendment 

does not extend a right which overrides Appellants’ contractual 

obligations to pay dues until an agreed upon date, regardless of 

a subsequent choice to relinquish union membership. 

B. Due Process Claims

Appellants argue that even if they must pay postresignation dues, they are still entitled to procedures for notice 

and the ability to object to how those dues are spent by the 

unions under Chicago Teachers Union, Local No. 1 v. Hudson, 

475 U.S. 292 (1986). Failure to provide such protections, they 

claim, is a violation of their due process rights. These claims 

fail on similar grounds as their First Amendment claims.

Prior to Janus, when public-sector unions were still 

permitted to charge fees to union nonmembers under Abood, 

the Supreme Court developed a system of procedures 

governing that collection. Hudson, 475 U.S. at 302–03
19

(“[A]lthough the government interest in labor peace is strong 

enough to support an ‘agency shop’ notwithstanding its limited 

infringement on nonunion employees’ constitutional rights, the 

fact that those rights are protected by the First Amendment 

requires that the procedure be carefully tailored to minimize 

the infringement.”). 

Before any fee deductions were made, unions were 

required to provide nonmembers with: (1) a detailed 

accounting of how their dues would be spent that distinguishes 

union expenses relating to collective bargaining (chargeable 

expenditures) and contract administration from political 

activity (nonchargeable expenditures); (2) an opportunity to 

object to this accounting before any dues are deducted from 

their paychecks; and (3) a procedure for review of the unions’

response to any objections by an impartial third-party

decisionmaker. Id. at 304–09. Like Janus, Hudson was 

premised on a desire to avoid subjecting nonconsenting 

individuals from subsidizing a political agenda with which

they disagreed. Id. at 303.

Appellants argue, without reference to any authority,

that once they resigned from their respective unions, they 

became nonmembers entitled to Hudson procedures. Given 

that Janus was limited to the constitutional rights of 

nonconsenting nonmembers, it is illogical that such rights

would flow from Janus for those who consented to pay dues 

through a certain date. See LaSpina, 985 F.3d at 288

(underscoring that reference to rights of “nonmembers” in 

Janus should be understood as those previously subject to 

agency shop agreements, not formerly consenting members 

who have simply resigned from the union). We agree with the 

court below, that Hudson is inapplicable given Appellants’ 

failure to allege any First Amendment violations.
20

C. Contract Defenses

In opposition to Appellees’ motion to dismiss, a 

subclass of Fultz Appellants argued that their membership 

agreements were invalid for lack of consideration because they 

were already union members at the time of execution. 

Alternatively, they argued that the agreements lacked plain 

terms, or that the union materially breached by failing to

perform. The District Court rejected the first two arguments

because they were not raised in the pleadings but found that the 

third failed to state a claim because it was not plausible in light 

of the explicit member agreement language authorizing postresignation dues deductions. Fultz v. AFSCME, Council 13, 

549 F. Supp. 3d 379, 388–89 (M.D. Pa. 2021).

We will affirm on the same basis, but we note that 

amendment would be futile. Appellants have not alleged that 

the terms of their original membership agreements entitled 

them to membership in perpetuity; such agreements are 

terminable at will. See Trainer v. Laird, 183 A. 40, 40–41 (Pa. 

1936). Membership is a state of being, the continuation of 

which would certainly provide adequate consideration 

supporting any new or additional terms. Further, any such state 

law claim would nevertheless lie outside the jurisdiction of the 

federal courts, as the Pennsylvania Labor Relations Board has 

exclusive jurisdiction over matters stemming from allegations 

of unfair labor practices pursuant to PERA. 43 P.S. §§ 

1101.1201(b)(1), 1101.1301; see also Hollinger v. Dep’t of 

Pub. Welfare, 365 A.2d 1245, 1249–50 (Pa. 1976).

III. CONCLUSION

For the foregoing reasons, we affirm the District Court’s 

orders on all counts.