Cox v. Association of Oregon Corrections Employees, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2025
• Docket: 24-2763
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TRACY COX; MARK COX; YVONNE No. 24-2763 WILLIAMS; DAVID DAVIES, D.C. No. 6:22-cv-00906-AA Plaintiffs - Appellants,

v. MEMORANDUM*

ASSOCIATION OF OREGON CORRECTIONS EMPLOYEES, INC.; OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES; KATY COBA, in her official capacity as Director of the Oregon Department of Administrative Services; OREGON DEPARTMENT OF CORRECTIONS; COLETTE S. PETERS, AKA C. Peters, in her official capacity as the Director of Oregon Department of Corrections,

Defendants - Appellees.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted April 1, 2025**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Portland, Oregon

Before: BYBEE, LEE, and FORREST, Circuit Judges.

Four former and current public employees appeal the dismissal of their 42

U.S.C. § 1983 action against Oregon and their former union over the union’s

resignation policy. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The plaintiffs resigned from their union, the Association of Oregon

Corrections Employees (AOCE). When they informed AOCE of their wish to

resign, AOCE required, or attempted to require, them to sign a cancellation form.

The cancellation form indicated that AOCE may charge them a representation fee.

AOCE also allegedly informed them that they would be required to pay a $500

initiation fee if they wished to rejoin the union.

1. The district court correctly dismissed the plaintiffs’ first three counts

for lack of standing. We review a district court’s determination of jurisdictional

matters de novo. See Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021). The

“irreducible minimum of standing” requires that a plaintiff show (1) an “injury in

fact” that is “concrete and particularized” and “actual or imminent”; (2) there is “a

causal connection between the injury and the conduct complained of”; and (3) the

injury will likely “be redressed by a favorable decision” of the court. Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and citations

omitted).

2 24-2763 Here, the plaintiffs have not suffered an injury in fact. The plaintiffs allege in

their first three counts that AOCE’s cancellation form, the $500 rejoin fee, and

AOCE’s charging non-members for union representation violated their First

Amendment rights to free speech and association by attempting to curb their

withdrawal from the union. But they all resigned from the union. Because they do

not allege that they intend to rejoin the union or seek representation, any harm from

having to pay a fee to the union is too speculative to confer standing. See Wright v.

Serv. Emps. Int'l Union Loc. 503, 48 F.4th 1112, 1118–21 (9th Cir. 2022). Their

risk of future injury “rests on a ‘highly attenuated chain’ of inferences” that they will

rejoin AOCE or seek legal representation from AOCE and that AOCE will impose

the rejoin fee or charge for representation. Id. at 1120 (citation omitted). The threat

to their First Amendment rights is too speculative to satisfy Article III standing.

2. Tracy Cox, one of the four plaintiffs, brought two additional counts

against the state and AOCE related to unauthorized union dues deductions taken

from her paycheck after she attempted to resign from the union. The district court

properly dismissed both counts for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6). We review a dismissal for failure to state a claim de novo.

Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001).

The district court properly dismissed both counts against AOCE for lack of

state action. To subject a private actor to § 1983 liability, the plaintiff must show

3 24-2763 that the conduct was “fairly attributable to the State.” Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937 (1982). Lugar establishes two criteria that must be met for fair

attribution: (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 by 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. In

Wright, our court held that Oregon’s statutory scheme “does not create a ‘right or

privilege’ in [the union] to direct the State’s deductions of union dues.” Wright, 48

F.4th at 1122 (quoting Lugar, 457 U.S. at 937). Here, the alleged source of

constitutional harm is not a state statute or policy but a private agreement between

the union and the employees. And any failure to stop dues after a valid revocation

would be a violation of Oregon law, not a product of that law. See id. at 1123. Tracy

Cox thus fails to show AOCE’s conduct was fairly attributable to the state.

The district court also correctly dismissed the constitutional claims against the

state. Tracy Cox argued that Oregon took an active role in her First Amendment

injuries and “facilitated the [union’s] unconstitutional conduct.” But the record

belies this assertion. The state merely followed AOCE’s directives on union

membership and the resignation process.1 Tracy Cox’s Fourteenth Amendment due

1 Under Oregon law, the state cannot interfere with AOCE’s internal procedures. See Or. Rev. Stat. § 243.672(1)(b).

4 24-2763 process claim fails as well. The state does not violate a plaintiff’s due process rights

by relying on a union’s membership list for dues deduction authorization. See Ochoa

v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1110–11 (9th Cir. 2022). And even if

the state had violated Tracy Cox’s due process rights, we have held that a post-

deprivation remedy can satisfy a procedural due process violation. See Miranda v.

City of Casa Grande, 15 F.4th 1219, 1226–27 (9th Cir. 2021). Here, the state

provides adequate recourse for employees who experience unlawful deductions by

carving out an alternative forum for employees to bring such disputes. Or. Rev. Stat.

§ 243.806(10) (making public employer liable for unlawful dues deductions and

requiring the dispute be resolved through an unfair labor practice proceeding). Tracy

Cox thus failed to state a First or Fourteenth Amendment claim against Oregon.

AFFIRMED.

5 24-2763