In the

United States Court of Appeals
               For the Seventh Circuit

No. 06-3602

S HAWN H ALLINAN and W AYNE H AREJ,

                                                Plaintiffs-Appellants,
                                  v.


F RATERNAL O RDER OF P OLICE OF C HICAGO
L ODGE N O . 7 and F RATERNAL O RDER OF P OLICE
OF ILLINOIS,
                                     Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 06 C 2586—Joan Humphrey Lefkow, Judge.



       A RGUED A PRIL 30, 2007—D ECIDED JUNE 25, 2009




 Before R OVNER, W OOD , and SYKES, Circuit Judges.
  R OVNER, Circuit Judge. After being expelled from
their labor union, Chicago police officers Shawn
Hallinan and Wayne Haraj sued the union and its parent
organization for violations of their First and Fourteenth
Amendment rights. The district court found that the
plaintiffs had failed to plead the state action necessary
2                                           No. 06-3602

to maintain an action pursuant to § 1983 and, con-
sequently, the court granted the unions’ motion to dis-
miss. We affirm.


                           I.
  Plaintiffs Hallinan and Harej are long time City of
Chicago police officers and were members in good stand-
ing of the City’s police union, the Fraternal Order of
Police Chicago Lodge No. 7 (FOP Lodge 7 or Union) until
they were suspended in June 2005 and then expelled on
September 6 of that same year. FOP Lodge 7 is a labor
organization with the exclusive right to represent and
bargain on behalf of police officers employed by the
City. The Fraternal Order of Police of Illinois oversees
FOP Lodge 7.
  Both men were leaders of a group of Union members
opposed to the FOP Lodge 7 president, Mark Donohue,
and his political organization. During the March 2005
election cycle, Hallinan and Harej formed an opposition
slate of twenty candidates to oppose President Donohue
and the incumbent officers. During the course of the
campaign, the plaintiffs uncovered evidence that
Donahue had under-reported significantly his salary on
a report filed with the Attorney General. Harej reported
the discrepancy to the Attorney General’s office and the
FOP twice corrected the form. The under-reporting
issue became a major one in the campaign and Hallinan
and Harej discussed the error among Union members
and publically, including with the media.
No. 06-3602                                                   3

  Soon after the March 25 election, Donahue and his slate
members began proceedings to suspend and then expel
both Hallinan and Harej from membership in the Union.
On April 19, 2005, FOP Lodge 7 officers filed disciplinary
charges against the two men and on June 25, while the
charges were pending, suspended them. In July 2005, the
FOP Lodge 7 held hearings regarding the disciplinary
charges. Hallinan and Harej alleged in their complaint
that the Union hearing panel was comprised of their
political rivals. The panel recommended that the Union
expel both plaintiffs, and on September 6, 2005, the
FOP Lodge 7 board accepted the recommendation and
voted to expel the two men.
  The plaintiffs appealed the decision to the FOP Illinois.
FOP Illinois held a hearing on the appeal and considered
only whether the plaintiffs had received due process.
The hearing panel’s recommendation, which the FOP
Board accepted, was to deny the appeal and uphold
the plaintiffs’ expulsion.
  For unexplained reasons, Hallinan and Harej con-
tinued to pay full dues to the Union through an auto-
matic payroll deduction mechanism until just after
Hallinan and Harej filed a September 16, 2005 complaint
with the Illinois Labor Relations Board (ILRB).1 Because



1
  That complaint to the ILRB alleged that in expelling them as
members, the Union violated its duty of fair representation to
Hallinan and Harej. The Board dismissed the charges con-
cluding that under Illinois law the duty of fair representation
                                                  (continued...)
4                                                  No. 06-3602

of that ILRB complaint, FOP Lodge 7 became aware
that Hallinan and Harej, although expelled, were still
paying full Union dues. In response, the Union, over
the plaintiffs’ objections, informed the City that it
should make Hallinan and Harej fair-share pay-
ers—persons who make payments for activities essential
to collective bargaining but who are not union members
and do not pay membership dues. The City com-
plied—rendering Hallinan and Harej fair-share payers
and deducting the appropriate fair-share amount from
their paychecks to send to the Union. Hallinan has
offered and tendered payment of the amount of full
Union dues to the FOP Lodge 7, but the Union has
refused payment. FOP Lodge 7 currently receives
Hallinan’s and Harej’s fair-share payments and continues
to represent the two men in all matters concerning
their wages, hours, and working conditions as police
officers for the City of Chicago.
  On May 9, 2006, Hallinan and Harej filed a complaint
in the district court alleging First and Fourteenth Amend-


1
   (...continued)
covered only the conduct of a labor union in collective bargain-
ing and grievance handling and that the duty of fair representa-
tion did not extend to the right of union membership. The
appeal before us is not from the ruling of the ILRB. This appeal
arises from a separate suit, filed by plaintiffs in the district
court below alleging federal constitutional and state law
violations. We mention the proceedings before the ILRB only
because it was the complaint in those proceedings that alerted
the Union that the plaintiffs, although expelled, continued to
pay full Union member dues.
No. 06-3602                                                 5

ment violations pursuant to 42 U.S.C. § 1983 as well as
pending state law claims for breach of the Union con-
stitution and breach of the duty of fair representation.
The suit named as defendants both the FOP Lodge 7 and
the FOP Illinois. On August 24, 2006, the District Court
granted the defendants’ motion to dismiss, brought
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) ruling that the court lacked subject matter juris-
diction as the plaintiffs had failed to plead adequately
the state action necessary for maintaining an action pursu-
ant to § 1983. (R. 41 p.1). The court granted leave to
the plaintiffs to amend the complaint to add allegations
of illegal state action. When the plaintiffs declined to do
so, the district court entered a final order on Septem-
ber 19, 2006, dismissing the case with prejudice. We
review that decision de novo. Richards v. Kiernan, 

, 883 ( 7th Cir. 2006).


                             II.
  The plaintiffs in this case allege constitutional violations
redressable through 42 U.S.C. § 1983. The First and Four-
teenth Amendments to the Constitution protect citizens
from conduct by the government, but not from conduct
by private actors, no matter how egregious that conduct
might be. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 

, 191, 

, 461 (1988); Messman v. Helmke,

, 1044 (7th Cir. 1998). Unions are not state
actors; they are private actors. 

.
This does not end the matter, however, because the
conduct of private actors, in some cases, can constitute
state action. Consequently, the outcome of this case
6                                                 No. 06-3602

depends on whether the conduct of the Union can be
characterized as state or purely private action.
  In order to be characterized as state action, “the depriva-
tion [of constitutional rights] must be caused by the
exercise of some right or privilege created by the State or
by a rule of conduct imposed by the [S]tate or by a
person for whom the State is responsible . . . [and] the
party charged with the deprivation must be a person who
may fairly be said to be a [S]tate actor.” Lugar v. Edmondson
Oil Co., Inc., 

, 937, 

, 2753-54
(1982). The Supreme Court has identified numerous
situations when private conduct takes on the color of
law. See, e.g., 

102 S. Ct. at 2754-55; Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Assoc., 

,
295-96, 

, 930 (2001). Private action can
become state action when private actors conspire or are
jointly engaged with state actors to deprive a person of
constitutional rights, Dennis v. Sparks, 

, 27-28,

, 186 (1980); where the state compels the
discriminatory action, Adickes v. S.H. Kress & Co., 

, 152, 

, 1605 (1970); when the state
controls a nominally private entity, Pa. v. Bd. of Dirs. of
City Trusts, 

, 231, 

, 807 (1957);
when it is entwined with its management or control,
Evans v. Newton, 

, 299, 301, 

, 488,
489 (1966); when the state delegates a public function to
a private entity, Terry v. Adams, 

, 484, 

, 821 (1953); West v. Atkins, 

, 56-57, 

, 2259-60 (1988); Edmonson v. Leesville Concrete Co.,

, 628, 

, 2087 (1991), or when
there is such a close nexus between the state and the
challenged action that seemingly private behavior rea-
No. 06-3602                                                 7

sonably may be treated as that of the state itself. Jackson
v. Metro. Edison Co., 

, 351, 

,
453 (1974).
  Over time, Supreme Court and Seventh Circuit
precedent have revealed that these cases do not so much
enunciate a test or series of factors, but rather demonstrate
examples of outcomes in a fact-based assessment. Brent-

, 121 S. Ct. at 930; Tarpley v. Keistler,

, 792 (7th Cir. 1999) (“All of the tests, despite
their different names, operate in the same fashion: [ ] by
sifting through the facts and weighing circumstances.”).
    What is fairly attributable is a matter of normative
    judgment, and the criteria lack rigid simplicity. . . .
    [N]o one fact can function as a necessary condition
    across the board for finding state action; nor is any
    set of circumstances absolutely sufficient, for there
    may be some countervailing reason against attributing
    activity to the government.
Brentwood 

, 121 S. Ct. at 930
(internal citation omitted).
  Hallinan and Harej begin their argument by pointing out,
correctly, that the existence of an exclusive union agency
agreement with a government employer implicates the
state action doctrine. Chicago Teachers Union Local No. 1 v.
Hudson, 

, 301, 

(1986). Under
the exclusive agency arrangement, a single labor organiza-
tion has sole authority to bargain with a particular em-
ployer over wages, hours, and working conditions of
employees. For employees, the unified bargaining agent
8                                              No. 06-3602

provides strength in numbers and economies of scale.
See Tavernor v. Ill. Fed’n of Teachers, 

, 844
(7th Cir. 2000). For employers it protects them from
conflicting demands of different groups of workers.
Imagine the difficulties that would ensue if union A
bargained for and received a different salary and set of
benefits for its members than did union B. Giving ex-
clusive bargaining rights to one particular union meets
the needs of the union, the members it represents, and the
employer. See Abood v. Detroit Bd. of Educ., 

,
221-22, 

, 1792 (1977) (outlining the problems
with multiple representatives including inter-union
rivalries, dissension in the work force, the undermining
of the advantages of collectivization etc.). Consequently,
the National Labor Relations Act (29 U.S.C. §§ 151-169)
is premised on such a system of exclusive representation.
  With all if its benefits, however, the exclusive agency
agreement does come at a cost. When a government
employer requires its employees to associate with a
particular private organization, it infringes on its em-
ployees’ First Amendment associational rights and on
liberty rights protected by the Fourteenth Amendment.
See 

; 

, 106
S. Ct. at 1073. The Supreme Court long ago resolved this
problem by requiring employers to allow employees to
opt out of union membership. 

,
97 S. Ct. at 1792. To prevent free riders from securing
the benefits of collective bargaining without contributing
to its cost, however, an employer may have a collective
bargaining agreement with a union that requires em-
ployees who opt out of membership to contribute their
No. 06-3602                                                   9

fair share of the costs of collective bargaining. Id.;

.
  As the plaintiffs rightly point out, this forced association,
even in the fair-share payer scenario, still imposes in
some way on associational rights. See 

, 106 S. Ct. at 1073; 

, 97 S. Ct. at
1793; Hudson v. Chicago Teachers Union Local No. 1, 

, 1193 (7th Cir. 1984), aff’d, 

, 

(1986). It is possible, for example, that the union’s
leadership, in its negotiations over wages and benefits,
strongly favors employer-sponsored retirement plans, but
a particular fair-share payer believes in higher salaries
without government sponsored retirement plans. Or
perhaps the union is negotiating for a health plan that
includes coverage for fertility treatment to which the
employee is morally opposed. The fair-share payer may
have no choice but to support financially this bargaining
activity (or, of course, wage the difficult battle for union
de-certification). The imposition on associational rights,
however, is lawful in that it goes no further than neces-
sary to prevent the free-rider problem and ensure the
smooth operation of the exclusive agency shop. 

. As the Abood court put it,
    To be required to help finance the union as a collec-
    tive-bargaining agent might well be thought, there-
    fore, to interfere in some way with an employee’s
    freedom to associate for the advancement of ideas, or
    to refrain from doing so, as he sees fit. But the judg-
    ment [of our precedent] is that such interference as
    exists is constitutionally justified by the legislative
    assessment of the important contribution of the union
10                                               No. 06-3602

     shop to the system of labor relations established
     by Congress.
Abood, 

, 

(1977).
  To sum up, the plaintiffs are certainly correct that
when a government employer forces its employees to
join a union it is imposing on associational rights. The
plaintiffs argue that this is the mirror image of such a
forced association case—“a reverse fair-share case” as they
put it. But the reverse case of an employer forcing an em-
ployee to join a union is the case where the employer
prohibits its employees from associating with a union.
Clearly this too would constitute a violation of First
Amendment associational rights, but it is not what hap-
pened here. Here, it was the Union, rather than the em-
ployer, that barred the plaintiffs from membership. And
union actions taken pursuant to the organization’s own
internal governing rules and regulations are not state
actions. Messman v. Helmke, 

, 1044 (7th Cir.
1998); see also Leahy v. Bd. of Trs. of Cmty. Coll. Dist. No.
508, 

, 921-22 (7th Cir. 1990). Thus the
simplistic “reverse fair share” moniker turns out to be
inapt and we are thrust back to the initial question of
whether something about this Union’s relationship
with the City turned what is generally private conduct
into state action. That is, was the Union, for example,
acting in concert or collusion with the City; was it acting
with powers delegated to it by the City or state law; or
somehow inextricably entwined with the City? In this
case we conclude that it was not.
  Hallinan and Harej appear to argue that because state
action is present when a state employer forces employees
No. 06-3602                                                11

to associate with a union, every action the union takes
becomes action taken under color of law. “[G]overnmental
regulation or participation in some of the affairs of un-
ions,” however, “does not consequently make every
union activity so imbued with governmental action that
it can be subjected to constitutional restraints.” Driscoll v.
Int’l Union of Operating Eng’rs, Local 139, 

, 690
(7th Cir. 1973). If it did, state action could be assumed
in every case involving a collective bargaining agree-
ment between a union and a public entity, but our court
and others have found otherwise. See, e.g., 

state action in internal union rule requiring all candidates
for union office to execute a non-communist affidavit);

(finding that plaintiff failed to
adequately allege state action in portion of suit against
union representing employees of city employer); see also
Jackson v. Temple Univ., 

, 933 (3d Cir. 1983)
(plaintiff failed to satisfy state action requirement for
claim against union representing employees of public
employer). Rather, “the very activity of a private entity
which a plaintiff challenges must be supported by state
action.” 

. Membership regulations
and disciplinary procedures are quintessentially internal
affairs. See 

. In this case, no
matter how they dress it, the plaintiffs are challenging
only the Union’s internal act of expelling them from
membership in the organization. Even taking the facts
of the complaint in the light most favorable to Hallinan
and Harej, there is no evidence that the City exercised
such coercive power, provided such significant encour-
agement, or was sufficiently entangled in any ways that
the choice to expel the plaintiffs must, in law, be deemed
12                                              No. 06-3602

to be that of the City. See Blum v. Yaretsky, 

,
1004, 

, 2786 (1982).
   The complaint in this case alleges that Union members
filed disciplinary charges against Hallinan and Harej, that
the Union suspended them before a hearing, that the
Union conducted the hearings with biased panel mem-
bers, and that the Union board ultimately voted to expel
the plaintiffs. Hallinan and Harej further alleged that the
Illinois FOP denied their appeal and upheld their expul-
sion. The complaint does not allege that the City was in
any way involved with the suspension or expulsion or
hearing. Nor does it allege a conspiracy, compulsion, or
delegation of duties. Indeed, the complaint alleges that
the Union expelled the plaintiffs from their Union mem-
bership pursuant to the FOP Lodge 7’s constitution and
bylaws and not because of any provision in the
collective bargaining agreement or any other agreement
with the City. Regarding the City, the complaint merely
alleges that the City requires the plaintiffs to support
the Union and that the City assisted the Union by
refusing to deduct the full amount of membership dues
as the plaintiffs desire. (R. at 1, ¶¶ 10, 12, 54, 56).
  The City’s deduction of fair-share dues came about as
a result of, and was not the cause of, the plaintiffs’ expul-
sion. In fact, had the City done nothing at all and simply
continued to deduct full membership dues and forward
them to the Union, the plaintiffs would be in the exact
same position as they are in now. The City could not
compel the Union to accept the expelled members
and the Union merely would be obliged to refund immedi-
ately any amount of over-payment. In response to the
No. 06-3602                                              13

Union’s expulsion, the City simply reacted by taking the
required administrative steps to fulfill its ministerial
obligations to deduct $X in dues for members and $Y in
fees for fair-share payers. The City’s deductions had
no effect on whether the plaintiffs were expelled and will
have no effect on whether the Union allows them to re-join.
Decisions about membership are between the Union and
its police officer members. In this way, this case resembles
the integral facts of Blum, 

, 

(1982). In Blum, private nursing homes independently
determined that some of their residents did not require
the level of care that they were receiving and con-
sequently transferred those patients to a lower level of
care. 

The homes then notified the city officials
who were responsible for administering the Medicaid
program and ultimately the city adjusted the payments
to the homes according to the level of care provided and
the city’s statutory obligations. 

Court
concluded, “[t]hat the State responds to such actions by
adjusting benefits does not render it responsible for
those actions. The decisions about which respondents
complain are made by physicians and nursing home
administrators, all of whom are concededly private par-
ties.” 

(emphasis in original).
  Hallinan and Harej admit that the City has not
directly expelled the plaintiffs nor prevented their mem-
bership, but rather, they argue that the state action
comes in the form of “non-obvious” involvement of the
City. The non-obvious involvement stems largely from
the language of the Collective Bargaining Agreement
14                                                No. 06-3602

between the City and the FOP Lodge 7 which, in Section
3.1 states,
     A. Each officer who on the effective date of this
        Agreement is a member of the Lodge, and each
        officer who becomes a member after that date,
        shall, as a condition of employment, maintain
        their membership in good standing in the Lodge
        during the term of this Agreement.
     B. Any present officer who is not a member of the
        Lodge shall, as a condition of employment, be
        required to pay fair share (not to exceed the
        amount of Lodge dues) of the cost of the collective
        bargaining process and contract administration.
        All officers hired on or after the effective date of
        this Agreement and who have not made applica-
        tion for membership shall, on or after the
        thirtieth day following completion of their proba-
        tionary period, also be required to pay a fair
        share of the cost of the collective bargaining pro-
        cess and contract administration.
(R. at 28, Ex. C, p.2).
   Hallinan and Harej interpret this language to mean
that although new hires have the choice of becoming
full members or simply fair-share payers, officers who
were members on the effective date of the collective
bargaining agreement can never subsequently opt-out
and become fair-share payers. Consequently, the plain-
tiffs argue, any officer who is expelled from the Union
can be (and theoretically must be) terminated by the
City. This is neither a fair reading of the collective bargain-
No. 06-3602                                               15

ing agreement nor constitutionally workable under the
First Amendment. It could not be more clear that all
persons “who object to nonrepresentational activities of
the union have the right to pay fees that exclude con-
tributions to those activities,” and become fair-share
payers. 

; see also 

, 106 S. Ct. at 1069; 

, 97 S. Ct.
at 1799. It would be an odd reading of the contract
indeed to allow only new hires and not long-standing
employees to opt out of membership. Such a reading
would mean that an employee who had been a member
could never opt out of membership even if the Union
began to pursue a political and ideological agenda with
which the member disagreed. Suppose, for example, that
the Union began to contribute to pro-choice causes to
which the member was religiously opposed. Under the
Union’s reading, that member would be forced to
maintain her association with a group to which she was
ideologically opposed or lose her job. Such a forced
association would undoubtedly violate the First Amend-
ment as described in Abood. Not only would it be
a stretch to read this first sentence of Section 3.2 as ap-
plying only to new hires, we need not. The language of
that sentence contains no such restriction. Rather, that
first sentence in subsection B is clear that “[a]ny present
officer who is not a member of the Lodge shall, as a
condition of employment, be required to pay fair share
(not to exceed the amount of Lodge dues) of the cost of
the collective bargaining process and contract admin-
istration.” In other words any officer who is not a
member—either by choice or due to expulsion—can and
16                                             No. 06-3602

must become a fair-share payer, just as Hallinan and
Harej have. “Terms that are lawful as written may not be
given an illegal spin as part of an effort to curtail the
obligation they create.” Cent. States, S.E. and S.W. Areas
Pension Fund v. Joe McClelland, Inc., 

, 1258
(7th Cir. 1994).
  The City cannot terminate the officers for non-compli-
ance with Section 3.1; as fair-share payers, they have
complied. The Union, therefore, does not have the
power to have the officers terminated from their em-
ployment, as the plaintiffs allege. The decision to expel
any member is regulated only by internal union regula-
tions which are neither influenced nor compelled by the
City or any other government agency. There is no en-
tanglement, coercion, control, delegation, encouragement
or any other indicia of state action. A state “normally can
be held responsible for a private decision only when it
has exercised coercive power or has provided such sig-
nificant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the [govern-
ment].” 

, 102 S. Ct. at 2786. The
state does not govern the union’s internal affairs.
  What appears to be driving this appeal is the need to
correct an injustice inflicted upon Hallinan and Harej. If
their allegations are accurate—and for purposes of the
motion to dismiss we accept all factual allegations in the
complaint and draw all reasonable inferences from
those facts in the plaintiffs favor (Richards v. Kiernan,

, 882 (7th Cir. 2006))—Hallinan and Harej
were expelled from the Union simply for challenging
No. 06-3602                                               17

incumbent officers and exposing wrongdoing. It goes
without saying that unions should tolerate and indeed
encourage dissension among their ranks and encourage
whistle-blowing of nefarious and questionable practices
by union leadership. The Constitution, however, does not
require private organizations to provide free speech or
due process rights to its members in matters concerning
their purely private and internal affairs. “The federal
judiciary will not engraft a remedy on a statute, no
matter how salutary, that Congress did not intend to
provide.” California v. Sierra Club, 

, 297, 

, 1781 (1981). Here, the Constitution requires
state action which the plaintiffs have failed to effec-
tively plead.
  Federal Rule of Civil Procedure 12(b)(1) allows a party
to move to dismiss a claim for lack of subject matter
jurisdiction. A motion under Rule 12(b)(6) challenges
the sufficiency of the complaint to state a claim upon
which relief may be granted. Although the district court
ultimately concluded that it lacked subject matter juris-
diction because the plaintiffs had failed to plead the
state action necessary for maintaining an action pursu-
ant to § 1983—a conclusion that invokes Fed. R. Civ. P.
12(b)(1)—the court should have instead dismissed pursu-
ant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
Because the plaintiff properly pleaded a colorable claim
arising under a law of the United States, the district court
had subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331. Arbaugh v. Y & H Corp., 

, 511, 

, 1244 (2006). Proof of state action, in contrast, is an
element of the claim. See id.; Lugar v. Edmondson Oil Co.,
18                                                No. 06-3602

Inc., 

, 930, 

, 2750 (1982) (describ-
ing the state action requirement as an element of a § 1983
claim). Indeed, the defendant’s motion to dismiss
properly moved the court to dismiss for failure to state
a claim under Rule 12(b)(6), alleging that the plaintiffs
had failed to plead state action. Defendants moved to
dismiss for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) solely on the pendant state law claim.
  The plaintiffs failed to plead adequately state action
and thus the district court’s grant of the defendants’
motion to dismiss is A FFIRMED.




                            6-25-09