                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2004

White v. Local 13000
Precedential or Non-Precedential: Precedential

Docket No. 00-1816




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                   PRECEDENTIAL            Counsel for Appellant

    UNITED STATES COURT OF                 RICHARD H. MARKOW ITZ
           APPEALS                         NANCY A. WALKER
     FOR THE THIRD CIRCUIT                 MARKOWITZ & RICHMAN
                                           121 South Broad Street
                                           1100 North American Building
             No. 00-1816                   Philadelphia, PA 19107

                                           JAMES B. COPPESS
         COREY D. WHITE,                   815 Sixteenth Street, N.W.
                                           Washington, D.C. 20006
                               Appellant
                   v.                      Counsel for Appellees

 COMMUNICATIONS WORKERS OF
 AMERICA, AFL-CIO, LOCAL 13000
                                                  OPINION OF THE COURT

 ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE              ALITO, Circuit Judge:
     EASTERN DISTRICT OF
                                                  Corey D. White (“White”) appeals
        PENNSYLVANIA
                                           an order of the United States District Court
                                           for the Eastern District of Pennsylvania
     (Dist. Court No. 99-cv-04791)
                                           granting summary judgment in favor of the
  District Court Judge: Jan E. DuBois      Communications Workers of America and
                                           the Communications Workers of America
                                           Local 1300 (collectively the “CWA”). For
  Submitted Under Third Circuit LAR        the reasons stated below, we affirm.
               34.1(a)                                          I.
         September 15, 2003
                                                  White began employment with Bell
     Before: ALITO, AMBRO, and             Atlantic-Pennsylvania, Inc. (“Bell”) in
      CHERTOFF, Circuit Judges.            1986. The CWA and Bell are parties to a
                                           collective bargaining agreement (the
     (Opinion Filed: June 4, 2004)         “CBA”), two provisions of which are
                                           pertinent to the present appeal. 1 First, the
DOUGLAS E. GERSHUNY
26 So. Pennsylvania Avenue
P.O. Box 58                                   1
                                               Unfortunately, the CBA is not in the
Atlantic City, NJ 08404-0058               record, but the parties agree on the
CBA provides that the CWA is the                           In 1988, in order to comply with
exclusive representative of the employees          Beck, the CWA adopted a procedure (the
in White’s workplace in negotiations with          “Opt-Out Procedure”) under which
Bell management. Second, the CBA                   employees who work in agency shops and
contains an “agency shop” provision,2              are represented by the CWA may notify
which requires all employees in White’s            the CWA during May of a given year that
workplace, as a condition of continued             they intend to refrain from paying the
employment, to pay dues to the CWA,                portion of their compulsory dues that the
regardless of whether they choose to join          CWA does not mean to use for labor-
the union. Accordingly, despite the fact           management negotiations.         Employees
that White never became a member of the            availing themselves of the Opt-Out
CWA, he was required to pay union dues.            Procedure are not charged for this portion
                                                   of the union dues for the period beginning
       The Supreme Court has held that
                                                   in the July after notification and ending in
under Section 8(a)(3) of the NLRA, 29
                                                   the June of the following year.3 After a
U.S.C. § 158(a)(3), a plaintiff who works
                                                   year, the CWA resumes charging the full
in an agency shop may be required to pay
                                                   amount of dues unless employees again
only those fees “necessary to performing
                                                   opt out.       The CWA informs Bell
the duties of an exclusive representative of
                                                   employees of the Opt-Out Procedure by
the employees in dealing with the
                                                   placing a notice in its newsletter, the CWA
employer on labor-management issues.”
                                                   News. The CWA publishes ten issues of
Communications Workers of Am. v. Beck,
                                                   the CWA News per year and inserts the
487 U.S. 735, 762-63 (1988). Since
                                                   notice in one such issue.
White’s workplace was an agency shop, he
was entitled under Beck to refrain from                   At all relevant times, the CWA
paying the portion of his union dues that          relied on information supplied by Bell to
the CWA did not intend to use for                  determine the addresses of the Bell
negotiating with management.                       employees whom it represented, and the
                                                   CWA sent the CWA News to those
                                                   addresses. It is undisputed that, between
content of the relevant provisions.                1988 and 1997, Bell did not give the CWA
                                                   White’s correct address. Consequently,
   2
    See Kolinske v. Lubbers, 712 F.2d
471, 472 n.2 (D.C. Cir. 1983) (“A type of
                                                      3
union security clause, an agency shop                  For example, if a non-CWA member
clause requires all employees covered by           employed by a CWA agency shop
the collective bargaining agreement to             notifies the CWA in May of 2004 that he
pay dues or equivalent fees to the union,          does not wish to pay non-bargaining-
but does not require every employee to             related dues, he will not be charged for
join the union as a condition of retaining         such dues between July of 2004 and June
employment.”).                                     of 2005.

                                               2
White did not receive the CWA News until               NLRB, who affirmed the Director’s
1997. White began receiving the CWA                    decision for substantially the reasons set
News in 1997, he declined to read it                   forth in the Director’s letter. White
because, according to White, “on their                 requested that the General Counsel
face, the CWA News magazines look[ed]                  reconsider his decision, but the General
like union propaganda newspapers, and                  Counsel refused.
there [was] no hint that notice of anything
                                                               In September 1999, White filed a
pertinent to a non-union employee would
                                                       pro se complaint against the CWA in the
be contained therein.” App. II at 139.4 As
                                                       District Court. In his complaint, White
a result, the CWA charged White both the
                                                       claimed (1) that the defendants had
bargaining-related and non-bargaining-
                                                       breached their duty of fair representation
related portions of his dues between 1988
                                                       by failing to notify him of his Beck rights
and 1998.
                                                       and (2) that the Opt-Out Procedure
           White learned of his right to opt out       infringed his “First Amendment rights not
by word of mouth in August or September                to associate and . . . [his NLRA] Section 7
of 1998. In October of 1998, White filed               rights not to support non-collective
a complaint against the CWA with the                   bargaining activity.” Id. at 186.5 White
N a t i o n a l L abor R elations Boa rd               sought a refund of the non-bargaining-
(“NLRB”). White claimed that the CWA                   related dues that he paid between 1988 and
had violated the NLRA by “failing to                   1998, as well as an injunction prohibiting
adequately notify [him] of his Beck                    the use of the Opt-Out Procedure in the
rights.” Id. at 127. By letter, the Acting             future.
Regional Director of the NLRB
                                                             The defendants moved for summary
(“Director”) dismissed W hite’s complaint,
                                                       judgment, and the District Court granted
finding that “[t]he evidence does not
establish that the Unions violated Section
8(b)(1)(a) of the [NLRA] by failing to
                                                          5
notify [White] of [his] rights” under Beck.              The precise language of the First
Id. at 76. White appealed the Director’s               Amendment claim reads as follows:
decision to the General Counsel of the
                                                       Defendant infringes plaintiff’s First
                                                       Amendment rights not to associate and
   4
    Although White makes much of the                   plaintiff’s Section 7 rights not to support
CWA’s failure to send the CWA News to                  non-collective bargaining activity by
the correct address, this failure does not             mandating that plaintiff object to paying
appear to form the basis for his First                 full union dues annually, in the manner
Amendment claim. Instead, White                        designated by defendant, at the time
contends that requiring him to comply                  designated by defendant.
with the Opt-Out Procedure runs afoul of
the First Amendment.                                   App. II at 186.

                                                   3
the motion. The Court held that it lacked                  We note at the outset that the courts
jurisdiction over White’s Section 7 claim          of appeals are divided on the question
because the National Labor Relations               whether actions taken by a union pursuant
Board had exclusive jurisdiction over such         to an agency-shop provision in a collective
claims. As to White’s First Amendment              bargaining agreement constitute state
claim, the Court stated that the Opt-Out           action. Compare Price v. UAW, 795 F.2d
Procedure did not amount to state action           1128 (2d Cir. 1986) (no state action);
and was thus not subject to constitutional         Kolinske v. Lubbers, 712 F.2d 471 (D.C.
constraints. The Court relied on two               Cir. 1983) (same); with Beck v.
courts of appeals decisions holding that           Communications Workers of Am., 776
agency-shop clauses in collective                  F.2d 1187 (4th Cir. 1985) (state action);
bargaining agreements do not constitute            Linscott v. Millers Falls Co., 440 F.2d 14
state action, see Price v. UAW, 795 F.2d           (1st Cir. 1971) (same).6 The Supreme
1128 (2d Cir. 1986); Kolinske v. Lubbers,          Court has explicitly left this issue open.
712 F.2d 471 (D.C. Cir. 1983), as well as          See Communications Workers of Am. v.
Supreme Court decisions holding, in other          Beck, 487 U.S. 735, 761 (1988) (“We need
contexts, that “private union conduct does         not decide whether the exercise of rights
not amount to state action.” App. I at 9           permitted, though not compelled, by §
(citing United Steelworkers v. Sadlowski,          8(a)(3) [of the National Labor Relations
457 U.S. 102, 121 n.16 (1982) (union rule          Act] involves state action.”).           For
restricting campaign contributions to              essentially the reasons outlined by the
candidates for union office); United               District of Columbia and Second Circuits,
Steelworkers v. Weber, 443 U.S. 193, 200           we agree that state action is not present in
(1979) (affirmative action plan in                 these circumstances.        We add the
collective bargaining agreement). Finally,         following comments addressing the
the District Court held that the statute of        specific arguments that White has
limitations barred White’s duty-of-fair-           advanced.
representation claim.
                                                                        A.
        White filed a timely notice of
appeal, and we granted his request for
                                                      6
appointed counsel. On appeal, White                    Two other courts of appeals have
argues that the District Court erred in            reached First Amendment claims in
failing to reach the merits of his First           challenges to provisions of collective
Amendment claim because the CWA’s                  bargaining agreements governed by the
implementation of the Opt-Out Procedure            NLRA without discussing the question of
in fact constitutes state action. White does       state action. See Hammond v. United
not contest the denial of his NLRA and             Papermakers & Paperworkers Union,
duty-of-fair-representation claims.                462 F.2d 174, 175 (6th Cir. 1972); Seay
                                                   v. McDonnell Douglas Corp., 427 F.2d
                    II.
                                                   996, 1003-04 (9th Cir. 1970).

                                               4
       To establish that challenged                 to render the CWA’s implementation of
conduct was state action, a plaintiff must          the Opt-Out Procedure state action.7 We
demonstrate two things. First, the conduct          disagree.
at issue must either be mandated by the
                                                               Although White attempts to
state or must represent the exercise of a
                                                    analogize the conduct of the CWA to the
state-created right or privilege. Am.
                                                    conduct at issue in Edmonson – a civil
Manufacturers Mut. Ins. Co. v. Sullivan,
                                                    litigant’s exercise of peremptory
526 U.S. 40, 50 (1999). Second, the party
                                                    challenges – the analogy is flawed. In
who engaged in the challenged conduct
                                                    Edmonson, the Court held that a civil
must be a person or entity that can “‘fairly
                                                    litigant who exercises a peremptory
be said to be a state actor.’” Id. (quoting
                                                    challenge “relies on governmen tal
Lugar v. Edmonson Oil Co., 457 U.S. 922,
                                                    assistance and benefits” because “the
937 (1982)); see also Angelico v. Lehigh
                                                    peremptory challenge system, as well as
Valley Hosp., Inc., 184 F.3d 268, 277 (3d
                                                    the jury trial system of which it is a part,
Cir. 2000). Because we hold that White
                                                    simply could not exist” “without the overt,
has failed to make the second showing
                                                    s i g n if i c a nt p a r t i c i p a t i o n o f t h e
required to establish state action, we need
                                                    government.” 500 U.S. at 622. See also id.
not reach the question whether he has
                                                    at 622-24. Among other things, the Court
made the first.
                                                    noted that a litigant exercising a
        In determining whether a person or          peremptory challenge must call on the trial
entity can be fairly described as a state           judge, “who beyond all question is a state
actor, “it is relevant to examine the               actor,” to excuse the juror whom the
following: the extent to which the actor            litigant seeks to dismiss. Id. at 624.
relies on governmental assistance and
                                                           In the present case, White draws a
benefits; whether the actor is performing a
                                                    comparison between the exercise of a
traditional governmental function; and
                                                    peremptory challenge and the CWA’s Opt-
whether the injury [to the plaintiff] is
                                                    Out Procedure. Just as state participation
aggravated in a unique way by the
                                                    is needed to effectuate a peremptory
incidents of governmental authority.”
                                                    challenge, White maintains, the NLRA is
Edmonson v. Leesville Concrete, Inc., 500
                                                    needed to effectuate the Opt-Out
U.S. 614, 621-22 (1992) (citations
                                                    Procedure. In other words, he contends, if
omitted); see also Mark v. Borough of
Hatboro, 51 F.3d 1137, 1143 (3d Cir.
1995) (applying this test). White relies
                                                        7
solely on the first of these factors, arguing           Since we hold that White has not
that 29 U.S.C. § 158(a)(3)’s authorization          established the presence of the first
of agency-shop clauses in collective                Edmonson factor, we need not decide
bargaining agreements provides the CWA              whether White could have shown that the
with sufficient “governmental assistance”           CWA is a state actor based solely on that
                                                    factor.

                                                5
Section 158(a)(3) of the NLRA did not                          agency shop clauses or
permit agency-shop clauses, non-union                          mandatory          payroll
employees could not be forced to pay dues,                     deductions for union dues.
and thus there would be no need to devise                      Even though federal law
p r o c e d u r e s p e rm it t in g n on-u nio n              provides an encompassing
employees to decline to pay part of their                      umbrella of regulation, the
compulsory dues.                                               parties, like any two parties
                                                               to a private contract, were
       This argument, however, overlooks
                                                               still free to adopt or reject
a si g n ificant difference betwe en
                                                               an agency shop clause with
peremptory challenges and agency-shop
                                                               or without government
clauses. The right to exercise peremptory
                                                               appr oval.       Thu s, the
challenges is conferred by statute or rule,
                                                               authorization for agency
not by virtue of an agreement between the
                                                               shop clauses provided by
parties. See, e.g., 28 U .S.C. § 1870; Fed.
                                                               NLRA section 8(a)(3) does
R. Civ. Proc. 47(b); Fed. R. Crim. Proc.
                                                               not transform agency shop
24(b). Agency-shop clauses result from
                                                               clauses into a right or
agreements between employers and
                                                               privilege created by the state
unions. As the District of Columbia
                                                               or one for whom the state is
Circuit has observed:
                                                               responsible.
        While the NLRA provides a
                                                        Kolinske, 712 F.2d at 478. If the fact that
        framew ork to assis t
                                                        the government enforces privately
        employees to organize and
                                                        negotiated contracts rendered any act taken
        bargain collectively with
                                                        pursuant to a contract state action, the state
        their employers, the NLRA
                                                        action doctrine would have little meaning.8
        is neutral with respect to the
        content of p articular
        agreements. See NLRA §                             8
                                                             Shelley v. Kraemer, 334 U.S. 1
        8(d), 29 U.S.C. § 158(d);
                                                        (1948), did not endorse such an
        Local 24, International
                                                        argument. In that case, the Court held
        Brotherhood of Teamsters v.
                                                        that a state court’s enforcement of a
        Oliver, 358 U.S. 283, 294-
                                                        restrictive covenant in a deed to real
        95, 79 S. Ct. 297, 303-04, 3
                                                        property that barred African-Americans
        L.Ed.2d 312 (1959). The
                                                        from owning that property amounted to
        NLRA does not mandate the
                                                        state action. Shelley, 334 U.S. at 20.
        existence or content of, for
                                                        The Court distinguished the case before
        example, seniority clauses,
                                                        it, however, from situations in which
        w o r k r u l e s, s ta f f i n g
                                                        private actors engage in racial
        requirements, or union
                                                        discrimination but do not ask
        security provisions like
                                                        government officials to enforce their

                                                    6
         White objects to this reasoning on          the utility terminated the plaintiff’s
the ground that federal labor law gives              service. Jackson, 419 U.S. at 346. The
unions greater bargaining power than they            plaintiff sued the utility, claiming that the
would have otherwise possessed. But for              utility had terminated her power without
the additional leverage that the NLRA                affording her notice and a hearing and had
affords unions, the argument runs, unions            thus violated the Due Process Clause. The
would never be able to extract concessions           plaintiff contended that the defendant’s
like agency-shop clauses from employers              monopoly in the market for electrical
at the bargaining table. See Brief for               power rendered the defendant a state actor.
A p p e l l a n t a t 1 9 ( c it i n g A m .         The Court rejected this argument, stating
Communications Ass’n. v. Douds, 339                  that the defendant’s state-crea ted
U.S. 382, 401 (1940) (“[W]hen authority              monopoly was “not determinative in
derives in part from Government’s thumb              considering whether [the defendant’s]
on the scales, the exercise of that power by         termination of service to [the plaintiff] was
private persons becomes closely akin, in             ‘state action.’” Id. at 351-52; see also
some respects, to its exercise by                    Crissman v. Dover Downs Entm’t., 289
Government itself.”)). However, as the               F.3d 231, 247 (3d Cir. 2002) (en banc)
CWA points out, the Supreme Court’s                  (holding that even though a state racing
decision in Jackson v. Metro. Edison Co.,            regulation commission had granted a
419 U.S. 345 (1974), forecloses the                  racetrack a “six-month monopoly” in the
argument that a private party negotiating a          market for harness racing, the acts of the
contract must be viewed as a state actor if          entity operating the racetrack were not
the state has furnished the party with more          attributable to the state).
bargaining power than it would have
                                                             The state’s grant of a monopoly to
otherwise possessed.
                                                     the utility surely increased the utility’s
        In Jackson, a Pennsylvania                   power to bargain with its customers
regulatory agency granted a utility a                concerning the terms on which the utility
monopoly over the sale of electrical power           would supply power – including,
in the plaintiff’s area. Acting pursuant to          presumably, the process due customers
a state regulation that permitted utilities to       suspected of failing to pay their bills.
“discontinue service to any customer on              Nonetheless, the Court held that the
reasonable notice of nonpayment of bills,”           utility’s termination of the plaintiff’s
                                                     service was not state action. Similarly, in
                                                     this case, it could be plausibly argued that
decisions to do so against others. Id. at            “the NLRA grants unions something of an
19 (“These are not cases . . . in which the          exclusive franchise through majority
States have merely abstained from                    representation.” Kolinske, 712 F.2d at
action, leaving private individuals free to          478. It may well be that the CWA would
impose such discriminations as they see              not have been able to induce Bell to
fit.”).

                                                 7
include an agency-shop provision in the            Hanson, 351 U.S. at 232. Since state law
collective bargaining agreement between            could not supersede union-shop clauses
Bell and the CWA absent the CW A’s                 governed by the RLA, the Court
“exclusive franchise.” However, under              concluded, such clauses bore “the
Jackson, the CWA’s statutorily enhanced            imprimatur of federal law,” and their
bargaining power is insufficient to warrant        implementation constituted state action.
a finding of state action. See also Price v.       Id.
UAW, 795 F.2d at 1133 (“[T]he naked fact
                                                            The Hanson Court further observed
that a [union] . . . is accorded monopoly
                                                   that the NLRA, unlike the RLA, does not
status is insufficient alone to denominate
                                                   make similar provisions in collective
that entity’s action as government
                                                   ba rg a i n i n g a gr e e m e nts supe r s e de
action.”).
                                                   conflicting state law. See Hanson, 351
                    B.                             U.S. at 232 (“The parallel provision in §
                                                   14 (b) of the Taft-Hartley Act . . . makes
        White points to a pair of Railway
                                                   [a] union shop agreement give way before
Labor Act (“RLA”) cases to support the
                                                   a state law prohibiting it.”); see also 29
proposition that the CWA Opt-Out
                                                   U.S.C. § 164(b) (“Nothing in this Act . . .
Procedure amounts to state action. See
                                                   shall be construed as authorizing the
Railway Employees’ Dept. v. Hanson, 351
                                                   execution or application of agreements
U.S. 225 (1956); Shea v. Int’l. Ass’n. of
                                                   requiring membership in a labor
Machinists & Aero. Workers, 154 F.3d
                                                   organization as a condition of employment
508 (5th Cir. 1998) (relying on Hanson).
                                                   in any State or Territory in which such
In Hanson, the plaintiffs’ employer, a
                                                   execution or application is prohibited by
railroad, and the defendant railway
                                                   State or Territorial law.”). Thus, the
employees’ union entered into a collective
                                                   rationale for finding that an act done
bargaining agreement providing that union
                                                   pursuant to a collective bargaining
membership was a condition of continued
                                                   agreement governed by the RLA is state
employment by the railroad. The plaintiffs
                                                   action is not applicable to an act
sued the union, claiming that the “union-
                                                   authorized by an agreement controlled by
shop” provision of the collective
                                                   the NLRA. See Price, 795 F.2d at 1131
bargaining agreement violated the
                                                   (“As [the RLA] offered a means to
plaintiffs’ First Amendment rights. The
                                                   override the law of 17 states at the time, .
Supreme Court found that the union’s
                                                   . . the Hanson Court found government
implementation of the union-shop
                                                   action.”); Kolinske, 712 F.2d at 476 (“In
provision amounted to state action. The
                                                   Hanson it was the preemption of a contrary
Court based this conclusion on the fact that
                                                   state law by federal law that was central to
the RLA, which governs collective
                                                   the Court’s finding of state action.”).
bargaining by railway employees, permits
t h e u se of u nion-s h o p c l a u s e s                The RLA does not apply to the
“notwithstanding any law ‘of any state.’”          collective bargaining agreement at issue

                                               8
here, as the RLA governs only collective           relevant provision of the RLA, unlike the
bargaining involving “railroad[s] subject          NLRA, preempts state law. The First
to the jurisdiction of the Surface                 Circuit reasoned that, “[i]f federal support
Transportation Board, . . . any company            attaches to the union shop if and when two
which is directly or indirectly owned or           parties agree to it, it is the same support,
controlled by or under common control              once it attaches, even though the consent
with any carrier by railroad,” 45 U.S.C. §         of a third party, the state, is a pre-
151(a), and “common carrier[s] by air,” 45         condition.” Linscott, 440 F.2d at 16; see
U.S.C. § 181; see also Capraro v. United           also id. at 16 n.2 (stating that 29 U.S.C. §
Parcel Serv. Co., 993 F.2d 328, 331 n.4            158(a)’s “recognition of the union shop . .
(3d Cir. 2001). Accordingly, the ground            . constitutes governmental endorsement in
on which the Court found state action in           an area in which Congress makes the
Hanson is absent.                                  rules”). In essence, the court concluded
                                                   that Congress’s express authorization of
       The same reasoning applies to
                                                   agency-shop clauses makes actions taken
Shea, in which the Fifth Circuit found that
                                                   pursuant to such clauses state action.
a procedure by which n on-u nion
employees in agency shops could decline                     In Am. Mfrs. Mut. Ins. Co. v.
to pay non-bargaining-related dues                 Sullivan, supra, however, the Supreme
amounted to state action because “the              Court rejected the argument that a
RLA expressly states that it supersedes            legislature’s express permission of a
state law, and hence federal law is the            practice is sufficient to make the act of
authority through which private rights are         engaging in that practice state action. The
lost.” Shea, 154 F.3d at 513 n.2. Since the        Pennsylvania law at issue in Sullivan
NLRA, rather than the RLA, applies to the          permitted an insurer providing workers’
collective bargaining agreement between            compensation insurance to a private
Bell and the CWA, Hanson and Shea are              employer to withhold payments of medical
inapposite.                                        expenses to an employee of the insured,
                                                   pending the completion of a “utilization
                    C.
                                                   review” assessing the reasonableness of
       We have carefully considered the            the employee’s claim.            To obtain
court of appeals’ decisions holding that           permission to withhold benefits during
state action is present when a union takes         utilization review, an insurer was required
action pursuant to an agency-shop                  to file a form with a state agency “detailing
provision in a collective bargaining               the employee’s injury, and the medical
agreement governed by the NLRA, but we             treatment to be reviewed.” Sullivan, 526
find those decisions unconvincing. In              U.S. at 45. The plaintiffs claimed that the
Linscott v. Millers Falls Co., 440 F.2d 14         defendant insurers’ act of withholding
(1st Cir. 1971), the First Circuit relied on       payment of their medical expenses
Hanson and did not find it critical that the       pending utilization review violated their


                                               9
constitutional right to due process. The            232). Thus, the court relied on Congress’s
plaintiffs predicated their argument for            authorization of agency-shop clauses in
state action on the state legislature’s             Section 158(a)(3). As noted above, this
express permission to engage in the                 fact is insufficient to establish the presence
utilization review procedure.                       of state action, under Sullivan. For these
                                                    reasons, we are not convinced by the court
       The Supreme Court rejected this
                                                    of appeals’ decisions finding state action
argument. The Court did “not doubt that
                                                    to be present in circumstances similar to
the State’s decision to provide insurers the
                                                    those present here.
option of deferring payment for
unnecessary and unreasonable treatment                                   III.
pending review can in some sense be seen
                                                           For the reasons set out above and in
as encouraging them to do just that.” Id. at
                                                    Price and Kolinske, we hold that the
53. However, the Court viewed “this kind
                                                    CWA’s implementation of the Opt-Out
of subtle encouragement” as “no more
                                                    Procedure did not constitute state action.
significant than that which inheres in the
                                                    Accordingly, we affirm the District
State’s creation or modification of any
                                                    Court’s judgment.
legal remedy.” Id. The First Circuit’s
holding in Linscott that Congress’s
authorization of agency-shop clauses
renders actions taken pursuant to such
provisions state action cannot be squared
with Sullivan’s rejection of the notion that
the express legislative authorization of an
act makes that act state action.
       A similar analysis applies to the
Fourth Circuit’s decision in Beck v.
Communications Workers of Am., 776
F.2d 1187 (4th Cir. 1985), in which the
Court held that a union’s act of charging
dues to nonmembers pursuant to an
agency-shop clause constituted state
action. The court approvingly quoted
Hanson’s statement that “[t]he enactment
of the federal statute authorizing union
shop agreements is the governmental
action on which the Constitution operates,
though it takes a private agreement to
invoke the federal sanction.” Beck, 776
F.2d at 1207 (quoting Hanson, 351 U.S. at

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