Hcaoa v. Gavin Newsom

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2022
• Docket: 21-15617
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HOME CARE ASSOCIATION OF No. 21-15617 AMERICA; CALIFORNIA ASSOCIATION FOR HEALTH SERVICE AT HOME, D.C. No. 1:19-cv-00929-AWI-EPG Plaintiffs-Appellants,

v. MEMORANDUM*

ROB BONTA, in his official capacity as Attorney General for the State of California; KIMBERLEY JOHNSON, in her official capacity as Director of the California Department of Social Services,

Defendants-Appellees,

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 2015,

Intervenor-Defendant- Appellee,

and

GAVIN NEWSOM, in his official capacity as Governor of California,

Defendant.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Argued and Submitted January 12, 2022 Pasadena, California

Before: BOGGS,** OWENS, and FRIEDLAND, Circuit Judges.

California requires home-care aides to register with the state’s Department

of Social Services (“DSS”) and to renew their registrations biannually.1 See Cal.

Health & Safety Code §§ 1796.24, 31 (2016). In 2018, the state enacted a new

statute requiring DSS to provide the names and phone numbers of registered home-

care aides to labor organizations for the purpose of “employee organizing,

representation, and assistance activities.” AB 2455, 2017–2018 Reg. Sess. (Cal.

2018), § 2 (codified at Cal. Health & Safety Code § 1796.29(d)(1) (2019)). The

law applies to applicants for new registrations or renewals beginning on July 1,

2019. Id. It also creates a procedure for aides to opt out of this disclosure, and

orders DSS to give written notice and instructions on how to opt out. Id. (codified

at Cal. Health & Safety Code § 1796.29(d)(2), (e)).

Two associations representing home-care employers, Home Care

** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 We note at the outset that the name of the Director of DSS was mistakenly spelled “Kimberly Johnson” through much of the prior proceedings. The caption of this disposition corrects that spelling to “Kimberley Johnson.”

2 Association of America (“HCAOA”) and California Association for Health Service

at Home (“CAHSAH”), seek to enjoin the law.2 They argue that the National

Labor Relations Act, 29 U.S.C. §§ 151–169 (“NLRA”), preempts the statute under

doctrines stemming from San Diego Building Trades Council v. Garmon, 359 U.S.

236 (1959), and Lodge 76, International Ass’n of Machinists & Aerospace

Workers, AFL-CIO v. Wisconsin Employment Relations Commission, 427 U.S. 132

(1976) (“Machinists”). The district court granted summary judgment to the state

officials and intervenor-defendant Service Employees International Union Local

2015, finding that the associations had established standing to bring their

challenge, but that neither Garmon preemption nor Machinists preemption applied

to AB 2455. We have jurisdiction under 28 U.S.C. § 1291, and we review standing

and summary judgment analyses de novo. See La Asociacion de Trabajadores de

Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). We

vacate the district court’s order and remand with instructions to dismiss for lack of

jurisdiction.

1. A party asserting standing must satisfy three constitutional requirements.

First, it must have suffered an “injury in fact that is concrete, particularized, and

2 Appellants initially filed a complaint for declaratory and injunctive relief against Governor Gavin Newsom, then-Attorney General Xavier Becerra, and DSS Director Kimberley Johnson. Governor Newsom was dismissed as a defendant by stipulation of the parties, and Rob Bonta subsequently succeeded Mr. Becerra as Attorney General.

3 actual or imminent.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).

Second, the injury must be “fairly traceable” to a defendant’s action. Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Third, it

must be “likely, as opposed to merely speculative,” that a court’s decision will

redress the injury. Id. at 181.

The party seeking judicial relief bears the burden of establishing that it has

standing. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). That burden

increases as the litigation proceeds: While “general factual allegations of injury

resulting from the defendant’s conduct may suffice” to survive a motion to dismiss,

at the summary judgment stage the plaintiff “must ‘set forth’ by affidavit or other

evidence ‘specific facts,’ which for purposes of the summary judgment motion will

be taken to be true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citation

omitted); accord Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir.

2013). To sue on behalf of its members, an organization must make three

additional showings to have so-called associational standing: “(a) its members

would otherwise have standing to sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in

the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343

(1977).

4 Appellants posit two theories of standing. First, they contend that mandatory

disclosure of home-care aides’ contact information from DSS to labor

organizations will significantly increase the likelihood of unionization, thereby

harming the groups’ members. Second, they argue that they may litigate on behalf

of their members’ employees, whose privacy rights would be infringed by AB

2455.

2. Even if Appellants satisfy the germane-interest and individual-

participation requirements for their standing theory predicated on harm to

members, they have not shown that at least one member would have standing to

sue on its own.

Appellants offer only vague allegations in support of individual members’

standing. They rely on two declarations signed by their own executives to support

standing, yet these statements do not show that specific members have suffered or

will suffer a particular injury. Both declarations discuss generalized concerns about

AB 2455, alleging that it violates employees’ privacy interests, subjects them to

unwanted labor-organizing communications, and harms employers’ ability to

protect employee privacy rights, recruit or retain employees, and deal with unions

on an equal footing.

But generalized assertions such as these do not meet the burden to

demonstrate associational standing at summary judgment. Rather, an association

5 must “make specific allegations establishing that at least one identified member

had suffered or would suffer harm.” Summers v. Earth Island Inst., 555 U.S. 488,

498 (2009). In Summers, the Supreme Court rejected the view that organizational

plaintiffs established standing merely because they asserted that they had

thousands of members and that there was a high probability that at least some of

those members would visit areas affected by a challenged government action. Id. at

499. Absent affidavits indicating a “factual showing of perceptible harm,” the

Court reasoned, the organizations had not demonstrated an imminent injury. Id. at

499–500 (quoting Defs. of Wildlife, 504 U.S. at 566).

Following that guidance, we have considered and rejected an association’s

attempt to demonstrate standing at summary judgment by relying on an affidavit

that did not specify which, if any, of its members would suffer injury from the

challenged conduct. See Associated Gen. Contractors of Am., San Diego Chapter,

Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194–95 (9th Cir. 2013). In contrast,

an association can satisfy standing by presenting declarations from specific

members attesting to injuries that they had suffered or would experience. See

Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal., 159 F.3d

1178, 1181 (9th Cir. 1998).

Here, HCAOA and CAHSAH have not provided specific facts that an

identifiable member satisfies the requirements for standing at summary judgment.

6 HCAOA and CAHSAH have not alleged that, collectively, their members include

all employers of home care aides in California whose employees’ personal

information is subject to disclosure under AB 2455. Accordingly, even if we

assume that the legislature was correct that AB 2455 would increase unionization

of home care aides and thereby would cause cognizable injury to some employers

in the state, we could not assume that the affected employers would necessarily be

among HCAOA’s and CAHSAH’s members. We thus have no evidence in the

record of injury to an identifiable member of either HCAOA or CAHSAH. And we

cannot rely on speculation as to whether a member would hypothetically be able to

make that showing. See Summers, 555 U.S. at 499.

3. Appellants’ contention that they have third-party standing to challenge

AB 2455 on behalf of members’ employees, because AB 2455 intrudes on

employees’ privacy rights, turns largely on whether individual members have

standing to vindicate an injury to their employees. See Hunt, 432 U.S. at 343.

A litigant has standing to sue on behalf of third parties only when it satisfies

three requirements: “The litigant must have suffered an ‘injury in fact,’ thus giving

him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute;

the litigant must have a close relation to the third party; and there must exist some

hindrance to the third party’s ability to protect his or her own interest.” Powers v.

Ohio, 499 U.S. 400, 411 (1991) (citations omitted).

7 As previously explained, Appellants have not demonstrated that any

employer member has suffered, or will suffer, an injury in fact, and that alone

precludes third-party standing. See id.

Additionally, Appellants cannot satisfy the close-relationship element. The

relationship between a litigant and a third party must be one in which the third

party’s “enjoyment of the right is inextricably bound up with the activity the

litigant wishes to pursue.” Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 488 (9th Cir.

1996) (quoting Singleton v. Wulff, 428 U.S. 106, 114 (1976)). This correspondence

between an employer and employees existed in Viceroy Gold Corp. because

nonunionized employees sought to change their working schedules in a way that

would violate state law, and the employer sought to change the schedules in the

same manner. See id. at 488–89. There is no such evidence of consistent alignment

of interests in this case: Appellants’ employer members do not want labor

organizations to have employees’ contact information, and some employees may

agree, but other employees may want their information to be shared, and still

others may not care at all.

Finally, home-care employees face no barrier to bringing a claim

themselves. To bar a third party from bringing a claim, a hindrance must present a

“genuine obstacle” beyond a “lack [of] a sufficient individual economic stake in

the outcome” or “motivation.” Id. at 489 (citation omitted). Despite Appellants’

8 contention, home-care aides would not sacrifice any privacy rights by participating

in litigation because their names were already published prior to AB 2455. See Cal.

Health & Safety Code § 1796.29(a)(1). And to the extent that employees are

concerned about the additional disclosure of their phone numbers to labor

organizations, they can opt out and receive instructions about how to do so. See id.

§ 1796.29(d)(2), (e).

Appellants do not demonstrate associational standing either on behalf of

their members or on behalf of their members’ employees. We therefore have no

jurisdiction to consider their Garmon preemption and Machinists preemption

claims.

VACATED and REMANDED with instructions to dismiss.