Susan Fischer, Jeanette Speck on behalf of themselves and others similarly situated, v. Governor of New Jersey

New York, NY - Labor Relations lawyer represented New Jersey public school teachers refunds of union due.

NJEA represents more than 200,000 public sector educational institution

employees in New Jersey. Before Janus, these employees were required either to (1) join

NJEA and pay full union dues or (2) abstain from union membership but still pay a

compulsory agency fee equal to 85 percent of union dues. If an employee wished to

become an NJEA member, he had to sign NJEA's Active Membership Application,

which required the prospective member to elect whether to pay the dues in cash or

through automatic payroll deductions. If the member elected to pay through automatic

payroll deductions—as most members did—he had to agree that (1) he could revoke his

authorization for the payroll deduction only through written notice and (2) the revocation

would be effective only as of the January 1 or July 1 following the revocation notice,

whichever was earlier.

In May 2018, while Janus was pending before the Supreme Court but before it was

decided, New Jersey enacted the Workplace Democracy Enhancement Act ("WDEA”),

6

N.J. Stat. Ann. § 52:14-15.9e. See 2018 N.J. Sess. L. Serv., ch. 15 § 6 (May 18, 2018)

(amending N.J. Stat. Ann. § 52:14-15.9e). As relevant here, the WDEA contains two

components. First, it provides that "[e]mployees who have authorized the payroll

deduction of fees to employee organizations,” such as NJEA, "may revoke such

authorization by providing written notice to [their] public employer during the 10 days

following each anniversary date of their employment.” N.J. Stat. Ann. § 52:14-15.9e.

Second, it provides that "[a]n employee's notice of revocation of authorization for the

payroll deduction of employee organization fees shall be effective on the 30th day after

the anniversary date of [the employee's] employment.” Id. The WDEA does not specify

how its ten-day notice period and its thirty-day waiting period interact with the

revocation period set forth in NJEA's membership application (which, as discussed, sets

the earlier of January 1 and July 1 as the effective date for the revocation of payrolldeduction authorization).



On June 27, 2018, following passage of the WDEA, the Supreme Court decided

Janus. 138 S. Ct. at 2448. Janus struck down a state statute that had required publicsector employees either to join a union or, if they did not wish to join the union, to pay

the union an agency fee. Id. at 2486. The Court held that the statute violated the First

Amendment by compelling the nonmember employees to subsidize the union's speech

without their consent. Id. In the Court's view, "[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,” that is, unless the nonmember provides a "freely given” waiver of his First

7

Amendment rights. Id. Plaintiffs contend that Janus renders the WDEA and the

effective-date provisions of their membership agreements unconstitutional.

B

Plaintiffs in the Fischer action, Susan Fischer and Jeanette Speck ("Fischer

Plaintiffs”), joined NJEA on August 27, 1999 and August 30, 2001, respectively. Upon

joining, they signed their NJEA membership applications, electing to pay union dues

through automatic payroll deductions. As discussed above, by signing the applications,

the Fischer Plaintiffs agreed that they could revoke their authorization for automatic

payroll deductions only in writing and only with an effective date of the earlier of

January 1 or July 1 following their revocation notice. Following Janus, the Fischer

Plaintiffs resigned their union membership in written notices dated July 17 and 23, 2018,

that stated that they wished to terminate their membership "immediately” and that they

"no longer wish[ed] to pay dues or fees to the union.” Fischer App. 67-68, 83-84.

The Fischer Plaintiffs contend that their employer, the Township of Ocean Board

of Education ("TOBOE”), informed them that they could not yet terminate the deductions

of dues payments from their paychecks because the WDEA permitted them to give notice

of their termination only within a ten-day window following the anniversary date of their

employment. WDEA, N.J. Stat. Ann. § 52:14-15.9e. NJEA, however, accepted the

Fischer Plaintiffs' July 2018 resignation notices, consistent with NJEA's policy at that

time of "accept[ing] revocation requests at any time during the year” without "reject[ing]

or refus[ing] to honor those requests because they were not submitted during the 10 days

following the employee's anniversary date of hire.” Fischer App. 119 ¶ 16, 156 ¶ 10, 157

8

¶ 11. NJEA continued to withdraw dues from the Fischer Plaintiffs' paychecks until

September 30, 2018, or approximately thirty days following the anniversary dates of their

employment.

C

Plaintiffs in the Smith action, Melissa Poulson, Michael Sandberg, Leonardo

Santiago, and Rachel Curcio ("Smith Plaintiffs”),

2 were also NJEA members.

3

Like the

Fischer Plaintiffs, the Smith Plaintiffs signed membership applications authorizing the

automatic deduction of union dues from their paychecks and agreed that the deductions

could be terminated only by written notice and only on the earlier of January 1 or July 1

following such notice.

Following Janus, Poulson, Sandberg, and Santiago each resigned their

memberships with NJEA and demanded NJEA halt the deduction of union dues.

Poulson was treated as having resigned from NJEA on July 24, 2018.4 Sandberg and

Santiago emailed notice of their resignations on June 28 and August 8, 2018,

respectively. Smith App. 40-42, 58 ¶ 39, 59-60 ¶ 44. Despite their resignations, NJEA

2 The Smith Plaintiffs concede that the claims brought by two nonmember

employees of New Jersey public schools, Ann Smith and Karl Hedenberg, are barred by

Diamond v. Pa. State Educ. Ass'n, 972 F.3d 262 (3d Cir. 2020), and we will therefore

affirm the dismissal of these claims.

3 Poulson, Sandberg, and Santiago began their employment with the public school

system on September 1, 2003, August 26, 2002, and September 1, 2000, respectively.

Curcio began her employment on September 6, 2017.

4 Poulson telephoned her resignation on June 28, 2018, however, NJEA did not

deem this notice of resignation effective because it was not in writing. Defendants

deemed Poulson's addition as a plaintiff in the Smith case on July 24, 2018 as

constituting "written notice of [Poulson's] resignation and revocation of dues

authorization.” Smith Governor's Br. at 10.

9

continued deducting dues from Poulson, Sandberg, and Santiago until September 30,

2018, which was approximately thirty days following the anniversary dates of their

employment.5

Curcio did not make any attempt to resign from the union and continues to

pay union dues.

The Fischer Plaintiffs and the Smith Plaintiffs sued the state governor and NJEA

on behalf of putative classes under 42 U.S.C. § 1983,6

alleging that Defendants violated

Janus by collecting union dues from them without their consent and after they indicated

that they wished to terminate all such payments and seeking: (1) a declaratory judgment

that the WDEA and Defendants' revocation practices are unconstitutional, (2) an

injunction prohibiting Defendants from enforcing that statute and those practices, and (3)

monetary damages for the dues that they paid after they submitted their resignation

notices.

D

Following targeted discovery, the parties cross-moved for summary judgment.

The District Court denied Plaintiffs' motions, granted Defendants' motions, and

5 Defendants concede that Sandberg's revocation notice and concurrent

termination of the withdrawal of union dues should have been effective on July 1, 2018.

They assert that dues were withdrawn from Sandberg's paycheck through September

2018 because of an administrative error. NJEA provided Sandberg with a refund for the

dues that he paid between July 2018 and September 2018 but Sandberg has refused to

accept it.

6 The Smith Plaintiffs do not challenge the dismissal of their claims against

Clearview Regional High School District Board of Education, Harrison Township Board

of Education, and Kingsway Regional School District Board of Education, and four

members of the New Jersey Public Employment Relations Commission, Joel M.

Weisblatt, Paul Boudreau, Paula B. Voos, John Bonanni, and David Jones.

10

dismissed the case. The Court held that Plaintiffs lacked Article III standing to challenge

the WDEA because (1) its ten-day notice requirement "was not enforced against

Plaintiffs as written,” Fischer App. 23, and (2) its thirty-day effective date permitted

Plaintiffs "to resign their union memberships earlier than they otherwise would have been

entitled to” under their membership agreements, Fischer App. 24, and so the statute did

not cause Plaintiffs any injury.7

The District Court also rejected Plaintiffs' argument that

Janus requires public-sector unions to obtain waivers of their First Amendment rights

before collecting dues from members. The Court held that "Plaintiffs have a right to

resign from the union and cease paying union dues, but Janus does not serve to invalidate

[their] previously signed” membership agreements or, concurrently, the restrictions in

those agreements relating to the effective date of a membership-resignation notice.

Fischer App. 21; see also id. at 22 ("Plaintiffs . . . may freely resign from the union, but

they must do so under the terms of the Union Dues Authorization Forms.”).

Plaintiffs appeal.

II8

A

We first address Plaintiffs' standing to challenge the WDEA. Because we have

jurisdiction to decide only "Cases” and "Controversies,” U.S. Const., Art. III, § 2, we

7 The District Court stated in dicta that if Plaintiffs had standing to challenge the

WDEA, the statute's ten-day notice provision would likely be unconstitutional.

8 Apart from the standing issues discussed herein, the District Court had subject

matter jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28

U.S.C. § 1291.

11

may only decide cases brought by plaintiffs with standing, Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 157 (2014). "To establish Article III standing, a plaintiff must

show (1) an 'injury in fact,' (2) a sufficient 'causal connection between the injury and the

conduct complained of,' and (3) a 'likel[ihood]' that the injury 'will be redressed by a

favorable decision.'” Id. at 157-58 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560-61 (1992)).

Plaintiffs bear the burden to prove each element of Article III standing. Driehaus,

573 U.S. at 158. Additionally, Plaintiffs "'must demonstrate standing for each claim

[they] seek[] to press' and 'for each form of relief' that is sought.” Davis, 554 U.S. at

734 (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). Because

Plaintiffs have brought class actions, the standing requirements "must be satisfied by at

least one named plaintiff.” McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir.

2012). Where, as here, we review motions for summary judgment, the Plaintiffs may not

"rest on . . . 'mere allegations,' but must 'set forth' by affidavit or other evidence

'specific facts'” establishing standing. Clapper, 568 U.S. at 412 (omission in original)

(quoting Lujan, 504 U.S. at 561).

"We exercise plenary review over a district court's grant of summary judgment,”

Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 218 (3d Cir. 2015), including any

"legal questions about a party's standing to sue and the constitutionality of federal laws,”

Free Speech Coal., Inc. v. Att'y Gen., 974 F.3d 408, 419 (3d Cir. 2020). In reviewing

motions for summary judgment, we apply the same standard as the District Court,

viewing all facts and drawing all reasonable inferences in the non-movant's favor. Hugh

v. Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005). Summary judgment

is appropriate when "there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

12

We will examine Plaintiffs' standing to challenge the WDEA in two parts: first,

their standing to challenge the provision relating to the ten-day notice period and, second,

their standing to challenge the provision relating to the thirty-day waiting period.9



1

Plaintiffs lack standing to challenge the WDEA's ten-day notice period. The

WDEA permits public employees to revoke their authorization for the payroll deduction

of their union dues during an annual ten-day period following the anniversary dates of

their employment. See N.J. Stat. Ann. § 52:14-15.9e ("Employees who have authorized

the payroll deduction of fees to employee organizations may revoke such authorization

by providing written notice to their public employer during the 10 days following each

anniversary date of their employment.”).

9

In this section, we address whether the Fischer Plaintiffs as well as Plaintiffs

Poulson, Sandberg, and Santiago have standing to challenge the WDEA. We examine

Curcio's standing separately because it fails for reasons different from those of the other

Plaintiffs. Curcio remains an NJEA member and has not tried to resign from the union or

revoke her authorization for the automatic deduction of dues from her paycheck.

Because the WDEA sets forth a procedure only for those resigning from NJEA and

terminating payroll deductions, see N.J. Stat. Ann. § 52:14-15.9e, she cannot show that

the statute caused her any financial injury. Moreover, she has expressed ambivalence

about whether she will resign her membership in the future, and thus cannot establish an

imminent threat that the WDEA will be enforced against her as Article III requires.

Curcio asserts that the uncertainty about whether the WDEA will be enforced by

its terms constitutes an "informational injury,” but this argument fails. Courts have

limited the "informational injury” doctrine to information that is required by law to be

disclosed. See, e.g., F.E.C. v. Akins, 524 U.S. 11 (1998); Carello v. Aurora Policemen

Credit Union, 930 F.3d 830, 835 (7th Cir. 2019); Nader v. F.E.C., 725 F.3d 226, 229

(D.C. Cir. 2013). We need not define the precise contours of the "informational injury”

doctrine here; it suffices to say that Curcio's claim does not qualify because the

challenged statute does not require the disclosure of information.

13

The anniversary dates of the employment of Plaintiffs Poulson, Sandberg, and

Santiago were in late August and early September, placing their ten-day notice periods in

early to late September. However, NJEA permitted these Plaintiffs to terminate their

union affiliation based on notices that they submitted in June and July 2018—long before

their statutory ten-day periods. Thus, the ten-day period had no impact on Plaintiffs. Put

differently, to the extent that these Plaintiffs have suffered any financial injury, the tenday notice provision of the WDEA was not the cause of it. They therefore lack standing

to recover damages as part of their statutory challenge.

Poulson, Sandberg, and Santiago also lack standing to seek injunctive relief

against enforcement of the ten-day notice requirement because, at the time that their

complaint was filed, there was no imminent and certain risk that the ten-day requirement

would be enforced against them. To establish an injury-in-fact based on the future

enforcement of a statute, a plaintiff must show that "there exists a credible threat of

prosecution” under that statute. Driehaus, 573 U.S. at 159. Poulson, Sandberg, and

Santiago offer no evidence of a risk that the ten-day requirement would be enforced

against them other than the unremarkable fact that the statute was in effect on the date

that they filed their complaint. The mere presence of a statute on the law books, standing

alone, is insufficient to show a "credible threat” that the statute will be enforced against a

particular plaintiff. Id. Plaintiffs must do more to establish standing based on a threat of

future enforcement. See, e.g., Driehaus, 573 U.S. at 160, 163-64 (plaintiffs established

credible threat of future enforcement proceeding based on the statute's "history of past

enforcement,” the fact that "any person” can commence such a proceeding, and the fact

14

that such proceedings "are not a rare occurrence”). Poulson, Sandberg, and Santiago's

failure to offer any evidence establishing a credible threat of enforcement is fatal to their

challenge to the ten-day notice provision.10

The Fischer Plaintiffs also lack standing to challenge the ten-day notice period.

Although nonparty TOBOE informed the Fischer Plaintiffs that they could revoke their

dues authorizations only during the ten-day window set forth in the WDEA, NJEA offers

undisputed evidence that it accepted and processed the Fischer Plaintiffs' July 2018

revocation notices—even though those notices were submitted earlier than the ten-day

notice period—consistent with union policy. The Fischer Plaintiffs have offered no

evidence that NJEA or the Governor were responsible for TOBOE's communications or

that Defendants otherwise intended or threatened to enforce the ten-day notice

requirement against them. See Lujan, 504 U.S. at 561 (requiring plaintiffs at the

summary judgment stage to come forward with evidence of "specific facts” establishing

standing). Thus, the Fischer Plaintiffs have not shown that Defendants enforced (or

threatened to enforce) the ten-day notice requirement against them. Accordingly, the

Fischer Plaintiffs lack standing to challenge this portion of the WDEA. Cf. Matter of

Christopher Columbus, LLC, 872 F.3d 130, 132 n.3 (3d Cir. 2017) (relying on "the

undisputed facts drawn from the summary judgment record” to determine whether

subject matter jurisdiction exists).

10 Because Poulson, Sandberg, and Santiago lack standing to challenge the ten-day

notice period, we need not address whether their claims are moot. Already, LLC v. Nike,

Inc., 568 U.S. 85, 91-92 (2013) (distinguishing between standing and mootness); Hartnett

v. Pa. State Educ. Ass'n, 963 F.3d 301, 305-06 (3d Cir. 2020) (same).

15

2

Plaintiffs also lack standing to challenge the WDEA's requirement that an

employee wait until "the 30th day after [his] anniversary date of employment” before his

dues-authorization revocation will be effective. N.J. Stat. Ann. § 52:14-15.9e.

As to the Fischer Plaintiffs and two of the Smith Plaintiffs, Poulson and Santiago,

it is undisputed that the thirty-day waiting-period requirement was enforced against these

Plaintiffs: they all notified NJEA in July or August 2018 that they wished to terminate all

dues payments to the union, but the union continued to deduct dues from their paychecks

until September 30, 2018, which was approximately thirty days after the anniversary

dates of their employment. Critically, however, these Plaintiffs still would not have been

permitted to terminate their union dues on an immediate basis had the WDEA not been

enacted. Rather, absent the statute, they would have been bound by the effective dates set

forth in their membership agreements (i.e., the earlier of January 1 or July 1 following

their termination notices). Because these Plaintiffs all submitted written notice of their

intent to terminate after July 1, 2018, the earliest their membership agreements would

have permitted them to stop paying dues absent the WDEA would have been January 1,

2019. The WDEA, in contrast, allowed these Plaintiffs to terminate the payment of union

dues on September 30, 2018—three months earlier than what would have been possible

under their membership agreements standing alone. Effectively, the statute's thirty-day

provision saved the Plaintiffs from paying three months of unwanted union dues.

That the WDEA's thirty-day provision conferred a benefit on the Fischer

Plaintiffs, Poulson, and Santiago renders them unable to establish the causation element

16

of Article III standing. The causation element "requires, at a minimum, that the

defendant's purported misconduct was a 'but for' cause of the plaintiff's injury.”

Finkelman v. Nat'l Football League, 810 F.3d 187, 198 (3d Cir. 2016); see also Mielo v.

Steak 'n Shake Operations, Inc., 897 F.3d 467, 481 (3d Cir. 2018); Env't Texas Citizen

Lobby, Inc. v. ExxonMobil Corp., 968 F.3d 357, 377 (5th Cir. 2020) (Oldham, J.,

concurring) (collecting cases), as revised (Aug. 3, 2020). Here, we cannot say that "but

for” the Defendants' alleged misconduct (their enforcement of the WDEA's thirty-day

provision) these Plaintiffs would not have suffered the injury of which they complain (the

payment of union dues following their attempt to terminate their affiliation with NJEA).

To the contrary, absent enforcement of the WDEA's thirty-day provision, these Plaintiffs

would have sustained a greater injury because they would have had to wait three months

longer before the withdrawal of union dues would have stopped. Under these

circumstances, the Fischer Plaintiffs, Poulson, and Santiago cannot establish that the

WDEA's thirty-day provision is the cause of their injuries.

For similar reasons, the Fischer Plaintiffs, Poulson, and Santiago cannot establish

redressability. This element requires us to ask whether a plaintiff's injury would be

redressed by a favorable court action. See Driehaus, 573 U.S. at 158; Toll Bros., Inc. v.

Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009). The remedy sought here, a

declaration that the WDEA's thirty-day waiting period is unconstitutional and an

injunction against Defendants enforcing it, would not redress these Plaintiffs' injuries.

As discussed, invalidation of the statute would leave these Plaintiffs bound by the

effective date in their respective membership agreements, each of which requires them to

17

pay union dues for a longer period than required under the WDEA. Because a favorable

judicial decision would not reduce Plaintiffs' injuries, these Plaintiffs cannot establish

redressability. See 15 Moore's Federal Practice: Civil §101.42 (2020) ("[T]he

redressability element [of Article III standing] is not satisfied if a favorable result would

eliminate one of multiple causes of an injury without actually decreasing the injury at

all.”).11 We hold, therefore, that the Fischer Plaintiffs, Poulson, and Santiago lack

standing to challenge the thirty-day waiting period in the WDEA.12

11 By way of analogy, other courts have held that redressability is not satisfied

when a plaintiff challenges a statute whose prohibitions are embodied in another law that

would remain in effect even if the plaintiff received the relief he sought. See Kaspersky

Lab, Inc. v. United States Dep't of Homeland Sec., 909 F.3d 446, 465 (D.C. Cir. 2018)

(holding that plaintiffs failed to establish standing to challenge an agency directive where

a separate federal statute "prohibit[ed] all the same conduct as the [d]irective”; "even if

. . . the Court were to order the rescission of the [directive], [the plaintiff's] harms would

not be redressed”); Delta Constr. Co. v. E.P.A., 783 F.3d 1291, 1296-97 (D.C. Cir. 2015)

(holding that plaintiffs failed to establish causation and redressability where they

challenged an agency's regulation but another agency had a "substantially identical”

regulation in effect; "[b]ecause a separate action—[the non-challenged regulations]—

independently causes the same alleged harm as the challenged action, the [plaintiffs] are

unable to establish the 'necessary causal connection' between the [challenged

regulations] and their purported injury”); White v. United States, 601 F.3d 545, 552 (6th

Cir. 2010) (holding that plaintiffs lacked standing to challenge a federal statute

prohibiting conduct that was also "banned to a greater or lesser degree” in the laws of "all

fifty states and the District of Columbia”; the plaintiffs' injuries would not be "redressed

by the relief [they] seek, since the states' prohibitions . . . would remain in place

notwithstanding any action [the Court] might take in regard to the [federal statute]”).

Both here and in these cases, a favorable decision would eliminate only one cause of the

Plaintiffs' injuries, while leaving in place another, independent cause of the same

injuries.

12 Our concurring colleague finds flaws in our standing analysis, but we think the

analysis comports with the precedent. First, we know that the standing and merits

analysis are different. Second, we recognize that "but for” causation is just one means of

satisfying standing's causation requirement. Third, our views likely diverge from his

because we conducted the analysis mindful that we are obligated to examine standing

both on a claim-by-claim basis and based upon the relief sought. See Davis, 554 U.S. at

18

Plaintiff Sandberg also lacks standing to challenge the WDEA's thirty-day waiting

period. Sandberg notified NJEA on June 28, 2018 that he wished to revoke his dues

authorization. Under his membership agreement—which allowed employees to terminate

the withdrawal of dues from their paychecks on the earlier of July 1 or January 1

following notice of termination—Sandberg should have been permitted to terminate the

withdrawal of dues from his paycheck on July 1, 2018. Due to an administrative error,

however, NJEA continued withdrawing dues from Sandberg's paycheck through

September 30, 2018. Sandberg's injury, therefore, was caused by an inadvertent

processing error, not the WDEA's thirty-day waiting period. Because Sandberg cannot

satisfy the causation element, he, like his co-Plaintiffs, lacks standing to challenge this

provision of the WDEA.13



For these reasons, we will affirm the District Court's holding that Plaintiffs lack

Article III standing to challenge the WDEA.14



734. The concurrence appears to examine the injury-in-fact component based only on the

claim and does not consider whether Plaintiffs have standing to seek the particular relief

that they want. As we explain, Plaintiffs' purported injury would continue even if the

WDEA were voided. Thus, their request for a declaration that the WDEA is

unconstitutional would not redress their alleged injury because their membership

agreements would still require them to make the payments that they contend are unlawful

under Janus.

13 Because Sandberg lacks standing to pursue his claim, we need not address

whether NJEA's offer to refund him the dues that were erroneously withdrawn from his

paycheck between July and September 2018 mooted his claim.

14 Given that Plaintiffs lacked standing to bring this claim, the District Court

lacked jurisdiction to opine that it would find that the ten-day provision in the WDEA

unconstitutional if Plaintiffs had standing to challenge it. See Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 101-02 (1998) ("For a court to pronounce upon the meaning or

the constitutionality of a state or federal law when it has no jurisdiction to do so is, by

very definition, for a court to act ultra vires.”).

19

B

Plaintiffs contend that Janus provides them a right to terminate their payments to

NJEA at any time, notwithstanding the membership agreements that they signed, which

obligated them to continue paying dues until a specific date (the earlier of January 1 or

July 1 following notice of resignation).

15

Plaintiffs effectively read Janus as abrogating

the commitments set forth in those agreements. We disagree.

Changes in decisional law, even constitutional law, do not relieve parties from

their pre-existing contractual obligations. See, e.g., Cohen v. Cowles Media Co., 501

U.S. 663, 669-70 (1991); Ehrheart v. Verizon Wireless, 609 F.3d 590, 595-96 (3d Cir.

2010) (class action settlement agreement); McKeever v. Warden SCI-Graterford, 486

F.3d 81, 85 (3d Cir. 2007) (plea agreement); United States v. Lockett, 406 F.3d 207, 212-

13 (3d Cir. 2005) (plea agreement); Coltec Indus. v. Hobgood, 280 F.3d 262, 265, 278

(3d Cir. 2002) (settlement agreement).

16

Put succinctly, "a party cannot avoid its

independent contractual obligations simply because a change in the law confers upon it a

benefit” after the agreement is signed. Ehrheart, 609 F.3d at 596. Rather,

[b]y binding oneself [to an agreement,] one assumes the risk of future

changes in circumstances in light of which one's bargain may prove to have

been a bad one. That is the risk inherent in all contracts; they limit the

15 Defendants do not dispute that Plaintiffs have standing to pursue their

challenges to the membership agreements.

16 See also, e.g., Kia Motors Am., Inc. v. Glassman Oldsmobile Saab Hyundai,

Inc., 706 F.3d 733, 738 (6th Cir. 2013) ("[I]t is a generally accepted rule of construction

that 'changes in the law subsequent to the execution of a contract are not deemed to

become part of [the] agreement unless its language clearly indicates such to have been

[the] intention of [the] parties.'” (quoting 11 Richard A. Lord, Williston on Contracts

§ 30:23 (4th ed. 1990))).

20

parties' ability to take advantage of what may happen over the period in

which the contract is in effect.

McKeever, 486 F.3d at 89 (quoting United States v. Bownes, 405 F.3d 634, 636 (7th Cir.

2005)).17



In the First Amendment context, this principle applies because the state common

law of contracts is a "law of general applicability” that does not run afoul of First

Amendment principles. Cohen, 501 U.S. at 670. Put simply, the First Amendment does

not provide a right to "disregard promises that would otherwise be enforced under state

law.” Id. at 672. Following these principles, a "swelling chorus of courts” has

17 In an attempt to distinguish cases holding that intervening changes in the law do

not abrogate pre-existing contractual obligations, Plaintiffs argue that their membership

agreements with NJEA were not valid and enforceable contracts.

Plaintiffs are incorrect. First, the membership forms make clear that they are

agreements between two parties, the member and the union. The forms are titled "NJEANEA Active Membership Application,” Smith App. 35, and set forth annual dues that are

to be paid by the member to the union. As Plaintiffs conceded to the District Court, a

contract need not contain signatures to be enforceable. See Dkt. 179 at 15 (stating that

Defendants "correctly note[] that signatures are not necessary to form a contract”).

Second, the membership agreements are supported by consideration. See Seaview

Orthopaedics ex rel. Fleming v. Nat'l Healthcare Resources, Inc., 841 A.2d 917, 921

(N.J. Super. Ct. App. Div. 2004). NJEA members receive numerous benefits unavailable

to nonmembers in exchange for their payment of dues under the union's membership

agreements, such as free legal assistance, the right to vote in union elections and hold

positions within the union, and numerous forms of insurance coverage, retirement

programs, and member discounts. Plaintiffs lost access to these benefits once they

resigned their union memberships.

Third, numerous jurisdictions have concluded that union membership agreements

are enforceable contracts, and Plaintiffs provide no authority to the contrary. See, e.g.,

Int'l Ass'n of Machinists v. Gonzales, 356 U.S. 617, 618 (1958); Fisk v. Inslee, 759 F.

App'x 632 (9th Cir. 2019); Int'l Ass'n of Machinists Dist. Ten and Local Lodge 873 v.

Allen, 904 F.3d 490 (7th Cir. 2018); Shea v. McCarthy, 953 F.2d 29, 30 (2d Cir. 1992);

N.L.R.B. v. U.S. Postal Serv., 827 F.2d 548, 554 (9th Cir. 1987); N.L.R.B v. U.S. Postal

Serv., 833 F.2d 1195, 1196 (6th Cir. 1987). For these reasons, Plaintiffs' membership

applications are valid and enforceable contracts.

21

recognized that "Janus does not extend a First Amendment right to avoid paying union

dues” when those dues arise out of a contractual commitment that was signed before

Janus was decided. Belgau v. Inslee, No. 19-35137, __ F.3d __, 2020 WL 5541390, at *2

(9th Cir. Sept. 16, 2020) (collecting cases).

These principles apply to Plaintiffs' claims. Plaintiffs chose to enter into

membership agreements with NJEA, rather than abstain from membership and, instead,

pay nonmember agency fees. They did so in exchange for valuable consideration. By

signing the agreements, Plaintiffs assumed the risk that subsequent changes in the law

could alter the cost-benefit balance of their bargain. Because Janus does not abrogate or

supersede Plaintiffs' contractual obligations, which arise out of longstanding, commonlaw principles of "general applicability,” Cohen, 501 U.S. at 670; see also Belgau, 2020

WL 5541390, at *2, Janus does not give Plaintiffs the right to terminate their

commitments to pay union dues unless and until those commitments expire under the

plain terms of their membership agreements.18

18 Because enforcement of Plaintiffs' membership agreements does not violate the

First Amendment given that those agreements are enforceable under laws of general

applicability, see Cohen, 501 U.S. at 670; Belgau, 2020 WL 5541390, at *2, we reject

Plaintiffs' argument that Defendants were required to obtain an affirmative First

Amendment waiver from Plaintiffs before deducting union dues from their paychecks.

Janus held that such waivers are required only if a union fee would, absent the waiver,

constitute compelled speech and thereby violate the First Amendment. 138 S. Ct. at

2486. Given that no First Amendment violation exists here, no waiver is needed. See

Belgau, 2020 WL 5541390, at *2 (holding that Janus "discussed constitutional waiver

[only] because it concluded that nonmembers' First Amendment right had been

infringed” and that the Court "in no way created a new First Amendment waiver

requirement for union members before dues are deducted pursuant to a voluntary

agreement” (emphasis in original)).

22

Therefore, the District Court correctly concluded that Plaintiffs' challenge to their

membership agreements fails.

For the foregoing reasons, we will affirm the orders of the District Court.