Christopher Deering v. International Brotherhood of Electrical Workers

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2023
• Docket: 22-55458
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTOPHER DEERING, No. 22-55458

Plaintiff-Appellant, D.C. No. 2:21-cv-07447-DSF-AS v.

INTERNATIONAL BROTHERHOOD OF MEMORANDUM* ELECTRICAL WORKERS LOCAL 18, an employee organization; CITY OF LOS ANGELES, a public agency; ROB BONTA, in his official capacity as Attorney General of California; BRIAN D'ARCY, trustee of the Joint Safety and Training Institute; GUS CORONA, trustee of the Joint Safety and Training Institute; MARTIN MARRUFO, trustee of the Joint Safety and Training Institute; RAFAEL LOPEZ, trustee of the Joint Safety and Training Institute; MARTIN ADAMS, trustee of the Joint Safety and Training Institute; DAVID WRIGHT, trustee of the Joint Safety and Training Institute; RICHARD HARASICK, trustee of the Joint Safety and Training Institute,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted October 19, 2023** San Francisco, California

Before: W. FLETCHER, NGUYEN, and R. NELSON, Circuit Judges.

Christopher Deering voluntarily joined the International Brotherhood of

Electrical Workers Local 18 (IBEW 18), the exclusive bargaining representative for

Los Angeles Department of Water and Power employees, in 2005. After the

Supreme Court decided Janus v. American Federation of State, County, & Municipal

Employees, Council 31, 138 S. Ct. 2448 (2018), he resigned from IBEW 18 and

asked it to tell Los Angeles to stop deducting union dues from his paycheck.

Consistent with the Memorandum of Understanding (MOU) between IBEW 18 and

Los Angeles, union dues were deducted until the first paycheck after April 1st of the

next year. He is no longer being charged union dues. The City does, however,

continue to deduct fees from Deering to fund an organization called the Joint Safety

and Training Institute (JSTI), an independent body created by Los Angeles and

IBEW 18 jointly. Deering raises First and Fourteenth Amendment claims against

IBEW 18, Los Angeles, the California Attorney General, and the JSTI trustees. The

district court dismissed all claims. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 1. Sovereign immunity bars Deering’s damages claims against the Attorney

General. See Platt v. Moore, 15 F.4th 895, 910 (9th Cir. 2021). As to prospective

relief, the complaint alleges only “a generalized duty to enforce state law or general

supervisory power over the persons responsible for enforcing the challenged

provision,” which does not overcome Eleventh Amendment immunity. L.A. Cnty.

Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (citation omitted).

2. Deering lacks standing to sue the JSTI trustees. See Alaska Right to Life

Pol. Action Comm. v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007). Deering alleges

that JSTI received funds which Los Angeles deducted without his consent and uses

those funds for political speech. To the extent Deering may have been injured, that

injury was not caused by JSTI. The district court gave him the opportunity to amend

his complaint and state an injury against JSTI, but he did not do so.

3. Los Angeles is not liable for deducting union dues under Monell v.

Department of Social Services of New York, 436 U.S. 658 (1978). Monell liability

“is contingent on a violation of constitutional rights.” Scott v. Henrich, 39 F.3d 912,

916 (9th Cir. 1994). It will not attach to city policy if state law compels that policy.

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality

opinion).

The union deductions which extended into April 2021 did not violate

Deering’s First Amendment rights since he voluntarily joined the union. Belgau v.

3 Inslee, 975 F.3d 940, 950 (9th Cir. 2020). Before joining, he knew there was an

MOU under which he would either pay agency fees or join the union. And Deering

joined the union with constructive knowledge of the MOU, even if he did not read

it.

Further, Los Angeles was compelled to act by California law to rely on IBEW

18’s certification that the union dues were authorized. Cal. Gov’t Code § 1157.12(a).

And while nothing in California law compels the unauthorized JSTI fee claim, and

an amendment to the complaint could provide facts about the ways that JSTI is using

the money it receives from the City of Los Angeles sufficient to support Monell

liability against Los Angeles, the threadbare allegations against JSTI are insufficient.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4. IBEW 18 did not engage in state action. See Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982). Any harm from the union deductions is caused by the union

authorization form which Deering freely signed. On similar facts, we declined to

find state action under Lugar in Belgau, 975 F.3d at 946–47.

Nor is IBEW 18 a state actor under the “joint action” or “governmental nexus”

tests that guide our analysis under Lugar’s second prong. See Tsao v. Desert Palace,

Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). Los Angeles’s transmitting dues

payments to a union after an employee authorizes such deductions does not give rise

to a section 1983 claim against the union under the “joint action” test. See Belgau,

4 975 F.3d at 947–49. Similarly, Los Angeles’s “ministerial processing of payroll

deductions pursuant to [e]mployees’ authorizations” does not create a nexus between

Los Angeles and IBEW 18. Id. at 947–48 & n.2.

5. Deering’s due-process claims were not sufficiently developed in the

opening brief. Parties must make arguments “specifically and distinctly . . . in [their]

opening brief.” Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).

Though Deering mentions due-process concerns, he does not sufficiently present

them for the panel’s review. “Arguments made in passing and inadequately briefed

are waived.” Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009).

AFFIRMED.