Jeremy Durst v. Oregon Education Association

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2021
• Docket: 20-35374
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEREMY DURST; et al., No. 20-35374

Plaintiffs-Appellants, D.C. No. 1:19-cv-00905-MC

v. MEMORANDUM* OREGON EDUCATION ASSOCIATION, a labor organization; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Jeremy Durst, Deanne Tanner, and Michael Garcie appeal from the district

court’s summary judgment in their 42 U.S.C. § 1983 action alleging First

Amendment claims arising out of union membership dues. We have jurisdiction

* 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). Plaintiffs’ request for oral argument, set forth in the opening brief, is denied. under 28 U.S.C. § 1291. We review de novo. JL Beverage Co., LLC v. Jim Beam

Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016) (decision on cross-motions for

summary judgment); Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003)

(mootness determinations). We may affirm on any ground supported by the

record. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir.

2004). We affirm.

The district court properly granted summary judgment on plaintiffs’ claims

for prospective relief because such claims are moot. See Bain v. Cal. Teachers

Ass’n, 891 F.3d 1206, 1211-15 (9th Cir. 2018) (finding plaintiffs’ claims for

prospective relief moot when they resigned their union membership and presented

no reasonable likelihood that they would rejoin the union in the future).

Summary judgment was proper on plaintiffs’ First Amendment claims

against Oregon Education Association, Southern Oregon Bargaining Council Eagle

Point Education Certified and Classified Employees, and Portland Association of

Teachers because the deduction of union membership dues arose from private

membership agreements between the parties, and “private dues agreements do not

trigger state action and independent constitutional scrutiny.” Belgau, v. Inslee, 975

F.3d 940, 946-49 (9th Cir. 2020), cert. denied, No. 20-1120, 2021 WL 2519114

(June 21, 2021) (discussing state action).

Summary judgment was proper on plaintiffs’ First Amendment claim against

2 20-35374 Eagle Point School District 9 and Portland Public Schools/Multnomah County

School District Number 1 because plaintiffs affirmatively consented to the

voluntary deduction of union dues, and the Supreme Court’s decision in Janus v.

American Federation of State, County & Municipal Employees, Council 31, 138 S.

Ct. 2448 (2018), did not extend a First Amendment right to avoid paying union

dues that were agreed upon under validly entered membership agreements. See

Belgau, 975 F.3d at 950-52.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 20-35374