FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 26, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ BRETT HENDRICKSON, Plaintiff - Appellant, v. No. 20-2018 AFSCME COUNCIL 18; MICHELLE LUJAN GRISHAM, in her official capacity as Governor of New Mexico; HECTOR BALDERAS, in his official capacity as Attorney General of New Mexico, Defendants - Appellees. ------------------------------ NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Amicus Curiae. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CV-01119-RB-LF) _________________________________ Brian K. Kelsey (Reilly Stephens, with him on the briefs), Liberty Justice Center, Chicago, Illinois, for the Plaintiff - Appellant. Eileen B. Goldsmith, Altshuler Berzon LLP, San Francisco, California (Scott A. Kronland, and Stefanie L. Wilson, Altshuler Berzon LLP, San Francisco, California; Shane C. Youtz, and Stephen Curtice, Youtz & Valdez, P.C., with her on the brief), Albuquerque, New Mexico, for the Defendant - Appellee AFSCME Council 18. Lawrence M. Marcus (Alfred A. Park, with him on the brief), Park & Associates, L.L.C., Albuquerque, New Mexico, for the Defendants – Appellees Michelle Lujan Grisham and Hector Balderas. Raymond J. LaJeunesse, Jr., National Right to Work Legal Defense Foundation, Inc., Springfield, Virginia, filed an amicus brief in support of Defendants – Appellees. _________________________________ Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH, Circuit Judge. _________________________________ MATHESON, Circuit Judge. _________________________________ Brett Hendrickson worked for the New Mexico Human Services Department (“HSD”) and was a dues-paying member of the American Federation of State County and Municipal Employees Council 18 (“AFSCME” or “Union”). He resigned his membership in 2018 after the Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018). In Janus, the Court said the First Amendment right against compelled speech protects non-members of public sector unions from having to pay “agency” or “fair share” fees—fees that compensate the union for collective bargaining but not for partisan activity. Mr. Hendrickson contends that, under Janus, the Union cannot (1) retain dues that had been deducted from his paycheck, or (2) serve as his exclusive bargaining representative. The district court dismissed these claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm these dismissals but remand for amendment of the judgment. 2 I. BACKGROUND A. Factual Background1 Mr. Hendrickson signed membership agreements that permitted union dues to be deducted from his paycheck. After Janus, he terminated his membership. His dues deductions stopped shortly thereafter. Union Membership and Dues-Deduction Authorizations This timeline lists Mr. Hendrickson’s actions regarding union membership and dues-deduction authorizations: 2001 - Began working for the HSD. HSD employees are part of the bargaining unit represented by the Union. 2004 - Signed an agreement to join the Union and authorized the deduction of union dues from his paycheck. 2006 - Took a position outside the bargaining unit. As a result, his union membership and dues payments ended. 2007 - Returned to the bargaining …
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