Christina Littler v. Ohio Ass'n of Pub. Sch. Emps.

                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 23a0275p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



                                                            ┐
 CHRISTINA LITTLER,
                                                            │
                                  Plaintiff-Appellant,      │
                                                             >        No. 22-4056
                                                            │
       v.                                                   │
                                                            │
 OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES,               │
                               Defendant-Appellee.          │
                                                            ┘

  Appeal from the United States District Court for the Southern District of Ohio at Columbus.
                No. 2:18-cv-01745—Sarah Daggett Morrison, District Judge.

                                  Argued: October 24, 2023

                           Decided and Filed: December 21, 2023

                Before: WHITE, NALBANDIAN, READLER, Circuit Judges.
                                 _________________

                                           COUNSEL

ARGUED: Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, for Appellant.
Jacob Karabell, BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for Appellee. ON
BRIEF: Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, for Appellant. Jacob
Karabell, Richard F. Griffin, Jr., BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for
Appellee. William L. Messenger, NATIONAL RIGHT TO WORK LEGAL DEFENSE
FOUNDATION, INC., Springfield, Virginia, for Amicus Curiae.
                                     _________________

                                            OPINION
                                     _________________

      HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Christina Littler appeals the
grant of summary judgment to Defendant-Appellee Ohio Association of Public School
Employees (OAPSE) in this 

 action alleging the wrongful deduction and
 No. 22-4056              Littler v. Ohio Ass’n of Pub. Sch. Emps.                         Page 2


retention of union dues. Because the district court did not err in concluding that OAPSE was not
a state actor under § 1983, we AFFIRM.

                                                I.

                                                A.

       Christina Littler became a bus driver for the South-Western City School District in 2011.
In 2015, she joined OAPSE, a public-sector union that represents over 30,000 employees in
Ohio. When Littler joined the union, she signed an OAPSE membership-application card that
authorized the school district to “deduct OAPSE State dues and Local dues as set forth herein . . .
from [her] salary or wages and remit the same to the OAPSE State Treasurer.” R.37-1, PID
1016; see Ohio Rev. Code § 4117.09(B)(2). The membership application also stated that “any
withdrawal of dues deduction authorization shall be in writing, executed and delivered during the
revocation period by written notice served upon the Chief Fiscal Officer of the Employer and the
OAPSE State Treasurer,” and that any withdrawal must happen “during a 10 day period from
August 22 through August 31.” R.37-1, PID 1016.

       Prior to the Supreme Court’s decision in Janus v. American Federation of State, Country,
& Municipal Employees, Council 31, 

 (2018), OAPSE collected membership dues
from union members and fair-share fees, i.e. reduced union fees, from bargaining-unit members
who did not join the union. Under this fair-share fees scheme, the school district would, without
any prior authorization from the affected employees, withhold fees from employees who did not
elect to join the union. In Janus, the Supreme Court held that imposition of mandatory fair-share
fees on non-union members by public-sector unions is unconstitutional. 

. In
response, OAPSE stopped collecting fair-share fees from non-members.

       Following the Janus decision, and during the 10-day withdrawal period in August 2018,
Littler sent an email to Gary Martin, the Director of Membership Services for OAPSE, and Hugh
Garside, the Treasurer and CFO for the South-Western City School District, stating that she was
withdrawing her union membership (and therefore her prior dues-deduction authorization too).
But her withdrawal hit a snag. For many years, OAPSE had interpreted the requirement in the
membership-application card that withdrawal requests be “in writing, executed and delivered” as
 No. 22-4056              Littler v. Ohio Ass’n of Pub. Sch. Emps.                        Page 3


requiring members to provide OAPSE with a hard copy of a signed document to effectuate their
withdrawal. In fall 2018, OAPSE decided that emails with an attachment containing an original
signature would satisfy the “in writing, executed and delivered” requirement. Littler’s August
2018 email did not include an original signature, so OAPSE deemed it ineffective. After her
August 2018 email, but still during the 10-day withdrawal period, an OAPSE representative left
voicemails for Littler to inform her that “her attempt to withdraw her dues-deduction
authorization was not effective because she had not sent a handwritten signature” with her email.
Appellee Br. 4.

       Littler sent a follow-up email to Martin and Garside on August 28, 2018, stating that she
“do[es] not authorize any deductions from [her] pay for union fees.” R.52-4, PID 1915. But
when the 2018-2019 dues deduction period began in November 2018, the union-dues deductions
continued. Littler again emailed Garside, stating that she opted out of the union and asking why
dues were still being withheld. Garside explained to Littler that OAPSE was responsible for the
deduction list and that she would “need to discuss this with them.” Littler reached out to the
OAPSE accounting office to explain the situation but received no response. Littler alleges that
OAPSE and South-Western City School District deducted $31.64 from each of her November 5,
2018, November 20, 2018 and December 5, 2018 paychecks.

       In February 2019, OAPSE again changed its interpretation of the withdrawal policy.
Under the new policy, OAPSE accepted emails from union members seeking to withdraw even
without original signatures. It retroactively applied the new policy by honoring any emailed
withdrawals sent by members during the 2018 withdrawal period. That included Littler. OAPSE
notified Littler on February 19, 2019 that it was honoring her withdrawal and sent her a check for
the dues deducted since August 2018, plus interest.

                                               B.

       Littler filed this action alleging that OAPSE illegally deducted dues from her paycheck in
violation of Janus and the First Amendment and that she never freely gave consent to the union
to deduct dues. She asserts claims under 

 and several state laws and seeks a
declaration of rights under the Declaratory Judgment Act, 

. In July 2020, the
 No. 22-4056                   Littler v. Ohio Ass’n of Pub. Sch. Emps.                                     Page 4


district court granted summary judgment for OAPSE based on its conclusion that Littler had not
validly withdrawn from the union under the contract formed by the membership-application card
because she did not present evidence that she sent her withdrawal notice to the OAPSE State
Treasurer. Littler v. Ohio Ass’n of Pub. Sch. Emps., No. 2:18-CV-1745, 

, at
*4 (S.D. Ohio July 17, 2020), rev’d and remanded, No. 20-3795, 

 (6th Cir.
Mar. 28, 2022). But because the district court considered that issue sua sponte and Littler did not
have sufficient opportunity to present evidence or argument regarding the recipients of her
attempted withdrawal, we reversed the grant of summary judgment and remanded the case.
Littler v. Ohio Ass’n of Pub. Sch. Emps., 

, at *7. We instructed the district
court to “provide Littler the opportunity to present evidence and argument regarding the
requirement that she submit any withdrawal to the OAPSE treasurer.” 

 We separately
instructed the district court to reconsider addressing “OAPSE’s argument that it is not a state
actor subject to suit under 

 . . . given the importance of the issue to the viability
of this lawsuit.” 

         On remand, the district court assumed that Littler validly withdrew from the union,
addressed only the state-action issue, and held that Littler had failed to show that OAPSE was a
state actor. Littler v. Ohio Ass’n of Pub. Sch. Emps., No. 2:18-CV-1745, 

, at
*2–4 (S.D. Ohio Nov. 18, 2022). Accordingly, the district court granted OAPSE summary
judgment on Littler’s § 1983 claim, id. at *4, and declined to exercise supplemental jurisdiction
over Littler’s remaining state-law claims, id. at *5.1

                                                         II.

         The sole question on appeal is whether the district court erred in granting OAPSE
summary judgment on Littler’s 

 claim based on its conclusion that OAPSE was
not acting “under color” of state law when it continued to deduct union fees from Littler’s

         1
           Although the district court did not expressly rule on Littler’s request for declaratory relief under the
Declaratory Judgment Act, see 

 we see no problem under Federal Rule of Civil Procedure 54(b). Because her
substantive § 1983 claim failed, her request for declaratory relief to resolve her substantive rights also failed. See
Medtronic, Inc. v. Mirowski Fam. Ventures, LLC, 

 (2014) (noting that the operation of the
Declaratory Judgment Act is “only procedural, leaving substantive rights unchanged” (internal quotation marks and
citations omitted)); Davis v. United States, 

 (6th Cir. 2007) (“[Section] 2201 does not create an
independent cause of action.”).
 No. 22-4056                Littler v. Ohio Ass’n of Pub. Sch. Emps.                           Page 5


paycheck after Littler’s August 2018 email. We review a district court’s grant of summary
judgment de novo. Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 

 (6th
Cir. 2019). Summary judgment is appropriate when the non-moving party fails “to make a
sufficient showing on an essential element of her case with respect to which she has the burden
of proof.” Celotex Corp. v. Catrett, 

 (1986).

        To succeed on a claim under § 1983, Littler must prove that she was deprived of a right
“secured by the Constitution or laws of the United States” and that such deprivation was “caused
by a person acting under color of state law.” Tahfs v. Proctor, 

 (6th Cir. 2003)
(quoting Ellison v. Garbarino, 

 (6th Cir. 1995)). To show that a private
defendant, like OAPSE, was acting under color of state law, Littler must show that the private
actor’s conduct causing the deprivation was “fairly attributable to the State.”               Lugar v.
Edmondson Oil Co., 

 (1982). Conduct causing a deprivation is only fairly
attributable to the state if (1) it is “caused by the exercise of some right or privilege created by
the State or by a rule of conduct imposed by the state or by a person for whom the State is
responsible” and (2) “the party charged with deprivation must be a person who may fairly be said
to be a state actor.” 

        Littler’s claim fails on the first prong: she cannot show that the alleged deprivation was
caused by any governmental policy or decision. The crux of her argument that OAPSE’s actions
are fairly attributable to the state is that the school district itself withheld Littler’s wages, and it
did so at OAPSE’s request pursuant to their collective bargaining agreement (CBA). Notably,
Littler does not challenge the validity of the CBA or any state law providing for such
agreements. She argues instead that OAPSE improperly instructed the school district to withhold
her wages after she withdrew her union membership.              Such conduct does not invoke the
authority of a state statute or rule. Instead, it is inconsistent with the CBA, and violates Littler’s
agreement with OAPSE.

        In Lugar v. Edmonson Oil Co., Inc., the Supreme Court rejected the conclusion that a
private party who misuses a state procedure is acting according to “a rule of conduct imposed by
the state.” 

. Lugar was a challenge to Virginia’s prejudgment-attachment
procedure. Lugar’s supplier, Edmonson Oil Co., Inc., sued Lugar over debts Lugar owed to
 No. 22-4056                Littler v. Ohio Ass’n of Pub. Sch. Emps.                           Page 6


Edmonson and separately sought prejudgment attachment of Lugar’s property.                 

.
Pursuant to the prejudgment-attachment scheme established by state law, a state-court clerk
issued a writ of attachment that was executed by the county sheriff. 

 Lugar challenged that
prejudgment attachment raising two due process violations and a pendant state-law claim. Count
One challenged the state statute itself as procedurally defective under the Fourteenth
Amendment, and the Court found that claim adequately alleged that Edmonson was a state actor.

 at 940–42. Count Two alleged Edmondson deprived Lugar of property without due process
through actions that were “unlawful under state law.” 

. On that count, the Lugar Court
held that Edmonson’s invocation of the “statute without the grounds to do so could in no way be
attributed to a state rule or a state decision,” so the requisite state action was absent. 

 Lugar
teaches that when a party acts “contrary to the relevant policy articulated by the State,” such
conduct “c[an]not be ascribed to any governmental decision.” Id.; see also Revis v. Meldrum,

 (6th Cir. 2007) (finding no state action for claim that “private-party
defendants applied for . . . writs maliciously or without cause” because “invocation of
presumptively valid state procedures . . . amounts, at most, to the sort of statutory misuse or
abuse that Lugar specifically instructs does not give rise to state action”).

        Littler’s § 1983 claim falls within Lugar’s discussion of statutory misuse. Littler alleges
that OAPSE improperly instructed the state to withhold union dues after she withdrew her union
membership. The deprivation was caused by a private actor—OAPSE—acting contrary to any
rule of conduct imposed by the state, and thus cannot be attributed to the state.

        The Ninth Circuit recently reached the same conclusion in Wright v. Service Employees
International Union Local 503, 

 (9th Cir. 2022), cert. denied, 

(2023). There, Wright alleged, in part, that the union forged her dues authorization and that her
state employer withheld union dues as a result. 

 at 1116–17. The Ninth Circuit recognized
that “this fraudulent act is by its nature antithetical to any ‘right or privilege created by the State’
because it is an express violation of existing state law.” 

 at 1123 (citing Lugar, 

). It therefore affirmed the dismissal of Wright’s claims because she had “fail[ed] to identify
any ‘state policy’ that would make [the union] a state actor under § 1983.” Id.
 No. 22-4056                    Littler v. Ohio Ass’n of Pub. Sch. Emps.                                     Page 7


         Similarly, the Eight Circuit in Hoekman v. Education Minnesota found no state action
based on a claim that the plaintiff’s union continued to collect dues “after he asked to exit the
dues-paying arrangement.” 

 (8th Cir. 2022). That “alleged failure to process
his request . . . lack[ed] a ‘source in state authority.’” 

 (quoting Lugar, 978 U.S. at 939).
Instead, “the decision was made by the union officials alone,” and the state could not be
“responsible for the decision of union officials to reject [his] resignation request.” Id.

         Littler’s arguments to the contrary are unavailing. She first argues that the state-imposed
“rule of conduct” comes from the terms of the CBA and the school district’s compliance with the
union’s request to withhold dues from her paycheck. Appellant Br. 17. To be sure, a challenge
to OAPSE’s failure to process Littler’s withdrawal—as with a challenge to the constitutionality
of the CBA or the Ohio Collective Bargaining Act—alleges a harm for which the CBA and the
school district’s action are but-for causes. But this court must focus its state-action analysis on
the “specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,

 (1999) (quoting Blum v. Yaretsky, 

 (1982)). Had Littler
challenged the constitutionality of a statute pursuant to which the state withheld dues, the
“specific conduct” challenged would be the state’s withholdings, which would be state action
taken pursuant to the challenged law. See, e.g., Janus v. Am. Fed’n of State, Cnty. & Mun.
Emps., Council 31; AFL-CIO (Janus II), 

 (7th Cir. 2019) (finding state action
when plaintiffs challenged the constitutionality of a statutory scheme under which the state
withheld fair-share fees). But here, the challenged conduct is OAPSE’s failure to process
Littler’s withdrawal pursuant to the membership application and remove her name from the
deduction list.2 That failure is not governed by a state-imposed rule of conduct but rather by a
private individual or organization’s policy.

         Finally, Littler argues in reply that “the Supreme Court has repudiated the idea that

 imposes liability only for conduct authorized by state law,” citing Monroe v.
Pape, 

 (1961). Reply Br. at 6. But the Supreme Court has expressly distinguished

         2
           This distinguishes the present case from cases like Janus and Janus II that found state action in challenges
to fair-share fee statutes. See Wright, 48 F.4th at 1122 n.7 (distinguishing Janus by noting that it “do[es] not
concern a private actor’s alleged violation of state law”). Here, the asserted authority for the deductions was a
contract between Littler and OAPSE, not a fair-share statute.
 No. 22-4056               Littler v. Ohio Ass’n of Pub. Sch. Emps.                      Page 8


§ 1983 cases against state actors—as was the case in Monroe v. Pape—and those brought against
private actors, as here.   And in those private-actor cases, it is clear that claims based on
“statutory misuse or abuse” are barred by Lugar. Revis, 

.

        Because we conclude that the deprivation Littler challenges here was not “caused by the
exercise of some right or privilege created by the State or by a rule of conduct imposed by the
state or by a person for whom the State is responsible,” Lugar, 

, but rather by
OAPSE’s alleged breach of the CBA and membership-application card, and thus the challenged
conduct cannot be fairly attributable to the state, we need not reach the second prong of Lugar’s
state action test.

                                               III.

        For the reasons set out above, we AFFIRM the district court’s judgment.