NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL CRAINE, No. 23-55206
Plaintiff-Appellant, D.C. No. 2:22-cv-03310-DSF-SK v.
AMERICAN FEDERATION OF STATE, MEMORANDUM* COUNTY, AND MUNICIPAL EMPLOYEES COUNCIL 36, LOCAL 119, an employee organization; COUNTY OF LOS ANGELES, a public agency; ROB BONTA, in his official capacity as Attorney General of California,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
CAMILLE BOURQUE, individual; PETER No. 23-55369 MOREJON, individual, D.C. No. Plaintiffs-Appellants, 2:21-cv-04006-JAK-PVC
v.
ENGINEERS AND ARCHITECTS ASSOCIATION, a labor organization; CITY
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. OF LOS ANGELES; ROB BONTA, in his official capacity as Attorney General of California,
Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding
Argued and Submitted March 8, 2024 Pasadena, California
Before: CLIFTON, H.A. THOMAS, and DESAI, Circuit Judges.
Plaintiff Michael Craine is an employee of the County of Los Angeles. He
alleges that he had dues deducted from his wages without his authorization and
sent to the American Federation of State, County, and Municipal Employees
Council 36, Local 119 (“AFSCME”), the exclusive bargaining representative for
his unit. Plaintiffs Camille Bourque and Peter Morejon are employees of the City
of Los Angeles. They allege that they had dues deducted from their wages without
their authorization and sent to the Engineers and Architects Association (“EAA”),
the exclusive bargaining representative for their units; indeed, Bourque alleges that
she never joined EAA. Plaintiffs raise First and Fourteenth Amendment claims
against the unions, their respective municipal employers, and California Attorney
General Rob Bonta. The district court granted Defendants’ motions to dismiss. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
2 dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure
to state a claim under Rule 12(b)(6). Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44
F.4th 867, 878 (9th Cir. 2022). We affirm.
1. The district court properly dismissed Morejon’s claims for prospective
relief for a lack of standing. Morejon was removed from EAA’s member list and
all deductions from his wages ceased before he filed his complaint. Allegations of
past injury alone, with only a highly speculative potential for future unauthorized
dues deductions, are insufficient to establish standing. Wright v. Serv. Emps. Int’l
Union Loc. 503, 48 F.4th 1112, 1118–21 (9th Cir. 2022), cert. denied, 143 S. Ct.
749 (2023).
2. The district court properly dismissed Plaintiffs’ claims for prospective
relief as moot. The unions have refunded the money at issue and added Plaintiffs’
names to a list they sent to the municipalities containing the names of members
who have cancelled their dues authorization. When a defendant voluntarily ceases
allegedly unlawful conduct, that defendant “bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000). Here, Defendants have carried their burden.
Plaintiffs are unlikely to authorize such deductions, and the deductions are
therefore unlikely ever to resume.
3 3. The district court properly dismissed Plaintiffs’ claims against the
Attorney General because they are barred by Eleventh Amendment sovereign
immunity.1 We have recognized that, “‘absent waiver by the State or valid
congressional override,’ state sovereign immunity protects state officer defendants
sued in federal court in their official capacities from liability in damages, including
nominal damages.” Platt v. Moore, 15 F.4th 895, 910 (9th Cir. 2021) (quoting
Kentucky v. Graham, 473 U.S. 159, 166–69 (1985)). Plaintiffs have not shown
waiver by the State or a valid congressional override.
Plaintiffs’ argument that the Ex parte Young doctrine applies is unavailing.
Plaintiffs’ complaints include no allegations against the Attorney General beyond
stating that he is “sued in his official capacity as the representative of the State of
California charged with the enforcement of state laws . . . .” But this “generalized
duty to enforce state law or general supervisory power over the persons responsible
for enforcing the challenged provision” is not enough to subject the Attorney
General to suit. L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). And
Plaintiffs identify no ongoing violation of federal law, as the unions have
1 Appellants filed motions for judicial notice of the Attorney General’s motion for intervention in a pending case before the U.S. District Court for the Central District of California. The district court case is not relevant, however, as it involves a different state law. As such, the Motion for Judicial Notice, Dkt. No. 46, Case No. 23-55206, and the Motion for Judicial Notice, Dkt. No. 39, Case No. 23-55369, are DENIED.
4 processed their membership resignations and refunded all money at issue. See
Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (noting
that courts determine whether Ex parte Young overcomes an Eleventh Amendment
bar to suit by conducting a “straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized
as prospective” (alteration in original) (quoting Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring))).
4. The district court properly dismissed Plaintiffs’ claims against the unions
for lack of state action. Actions by a private actor may be subject to Section 1983
liability if the plaintiff can show that the conduct was “fairly attributable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). To establish fair
attribution, two criteria must be met: (1) “the deprivation must be caused by the
exercise of some right or privilege created by the State or by a rule of conduct
imposed the [S]tate or by a person for whom the State is responsible,” and (2) “the
party charged with the deprivation must be a person who may fairly be said to be a
state actor.” Id.
First, Plaintiffs’ allegations that the unions failed to timely process their
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL CRAINE, No. 23-55206
Plaintiff-Appellant, D.C. No. 2:22-cv-03310-DSF-SK v.
AMERICAN FEDERATION OF STATE, MEMORANDUM* COUNTY, AND MUNICIPAL EMPLOYEES COUNCIL 36, LOCAL 119, an employee organization; COUNTY OF LOS ANGELES, a public agency; ROB BONTA, in his official capacity as Attorney General of California,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
CAMILLE BOURQUE, individual; PETER No. 23-55369 MOREJON, individual, D.C. No. Plaintiffs-Appellants, 2:21-cv-04006-JAK-PVC
v.
ENGINEERS AND ARCHITECTS ASSOCIATION, a labor organization; CITY
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. OF LOS ANGELES; ROB BONTA, in his official capacity as Attorney General of California,
Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding
Argued and Submitted March 8, 2024 Pasadena, California
Before: CLIFTON, H.A. THOMAS, and DESAI, Circuit Judges.
Plaintiff Michael Craine is an employee of the County of Los Angeles. He
alleges that he had dues deducted from his wages without his authorization and
sent to the American Federation of State, County, and Municipal Employees
Council 36, Local 119 (“AFSCME”), the exclusive bargaining representative for
his unit. Plaintiffs Camille Bourque and Peter Morejon are employees of the City
of Los Angeles. They allege that they had dues deducted from their wages without
their authorization and sent to the Engineers and Architects Association (“EAA”),
the exclusive bargaining representative for their units; indeed, Bourque alleges that
she never joined EAA. Plaintiffs raise First and Fourteenth Amendment claims
against the unions, their respective municipal employers, and California Attorney
General Rob Bonta. The district court granted Defendants’ motions to dismiss. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
2 dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure
to state a claim under Rule 12(b)(6). Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44
F.4th 867, 878 (9th Cir. 2022). We affirm.
1. The district court properly dismissed Morejon’s claims for prospective
relief for a lack of standing. Morejon was removed from EAA’s member list and
all deductions from his wages ceased before he filed his complaint. Allegations of
past injury alone, with only a highly speculative potential for future unauthorized
dues deductions, are insufficient to establish standing. Wright v. Serv. Emps. Int’l
Union Loc. 503, 48 F.4th 1112, 1118–21 (9th Cir. 2022), cert. denied, 143 S. Ct.
749 (2023).
2. The district court properly dismissed Plaintiffs’ claims for prospective
relief as moot. The unions have refunded the money at issue and added Plaintiffs’
names to a list they sent to the municipalities containing the names of members
who have cancelled their dues authorization. When a defendant voluntarily ceases
allegedly unlawful conduct, that defendant “bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000). Here, Defendants have carried their burden.
Plaintiffs are unlikely to authorize such deductions, and the deductions are
therefore unlikely ever to resume.
3 3. The district court properly dismissed Plaintiffs’ claims against the
Attorney General because they are barred by Eleventh Amendment sovereign
immunity.1 We have recognized that, “‘absent waiver by the State or valid
congressional override,’ state sovereign immunity protects state officer defendants
sued in federal court in their official capacities from liability in damages, including
nominal damages.” Platt v. Moore, 15 F.4th 895, 910 (9th Cir. 2021) (quoting
Kentucky v. Graham, 473 U.S. 159, 166–69 (1985)). Plaintiffs have not shown
waiver by the State or a valid congressional override.
Plaintiffs’ argument that the Ex parte Young doctrine applies is unavailing.
Plaintiffs’ complaints include no allegations against the Attorney General beyond
stating that he is “sued in his official capacity as the representative of the State of
California charged with the enforcement of state laws . . . .” But this “generalized
duty to enforce state law or general supervisory power over the persons responsible
for enforcing the challenged provision” is not enough to subject the Attorney
General to suit. L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). And
Plaintiffs identify no ongoing violation of federal law, as the unions have
1 Appellants filed motions for judicial notice of the Attorney General’s motion for intervention in a pending case before the U.S. District Court for the Central District of California. The district court case is not relevant, however, as it involves a different state law. As such, the Motion for Judicial Notice, Dkt. No. 46, Case No. 23-55206, and the Motion for Judicial Notice, Dkt. No. 39, Case No. 23-55369, are DENIED.
4 processed their membership resignations and refunded all money at issue. See
Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (noting
that courts determine whether Ex parte Young overcomes an Eleventh Amendment
bar to suit by conducting a “straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized
as prospective” (alteration in original) (quoting Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring))).
4. The district court properly dismissed Plaintiffs’ claims against the unions
for lack of state action. Actions by a private actor may be subject to Section 1983
liability if the plaintiff can show that the conduct was “fairly attributable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). To establish fair
attribution, two criteria must be met: (1) “the deprivation must be caused by the
exercise of some right or privilege created by the State or by a rule of conduct
imposed the [S]tate or by a person for whom the State is responsible,” and (2) “the
party charged with the deprivation must be a person who may fairly be said to be a
state actor.” Id.
First, Plaintiffs’ allegations that the unions failed to timely process their
resignations and notify their municipal employers amount to a “private misuse of a
state statute” that is “contrary to the relevant policy articulated by the State.”
Wright, 48 F.4th at 1123 (quoting Lugar, 457 U.S. at 940–41). As such, Plaintiffs
5 cannot satisfy the first Lugar prong.
Second, we reject Plaintiffs’ argument that the unions are state actors under
the “joint action” or “governmental nexus” tests. See Tsao v. Desert Palace, Inc.,
698 F.3d 1128, 1140 (9th Cir. 2012). We have held that the mere fact that a state
transmits dues payments to a union does not give rise to a Section 1983 claim
against a union under these tests. Belgau v. Inslee, 975 F.3d 940, 947–49 (9th Cir.
2020), cert. denied, 141 S. Ct. 2795 (2021); see also Wright, 48 F.4th at 1122 n.6
(noting that the joint action test “largely subsume[s]” the governmental nexus test
(quoting Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 996 n.13 (9th Cir. 2013))).
And a state employer’s “ministerial processing of payroll deductions” does not
create a sufficient nexus between the state and a union to subject the union to
Section 1983 liability. Belgau, 975 F.3d at 948; see also Wright, 48 F.4th at 1123–
24. Accordingly, Plaintiffs cannot satisfy the second Lugar prong.
5. The district court properly dismissed Plaintiffs’ claims against the
municipalities for failure to establish Monell liability. See Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 694 (1978). Plaintiffs do not allege that
the municipalities intended to withhold unauthorized dues. See Ochoa v. Pub.
Consulting Grp., Inc., 48 F.4th 1102, 1110 (9th Cir. 2022), cert. denied, 143 S. Ct.
783 (2023). Nor have Plaintiffs alleged that the municipalities were “even aware
that the deductions were unauthorized.” Id. We have noted that “Janus imposes no
6 affirmative duty on government entities to ensure that membership agreements and
dues deductions are genuine,” and “does not require that [a state] ensure the
accuracy of [a union’s] certification of those employees who have authorized dues
deductions.” Wright, 48 F.4th at 1125 (citing Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31, 585 U.S. 878, 929–30 (2018)).
Plaintiffs also cannot point to any deliberate choice the municipalities made,
as the municipalities had to comply with California state law requiring them to
deduct dues in reliance on the unions’ representations. See Connick v. Thompson,
563 U.S. 51, 60 (2011) (“[U]nder § 1983, local governments are responsible only
for ‘their own illegal acts.’” (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479
(1986))); Castro v. County of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (en
banc) (“The custom or policy must be a ‘deliberate choice to follow a course of
action . . . made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in
question.’” (quoting Pembaur, 475 U.S. at 483)).
AFFIRMED.