Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 1 of 24
4 UNITED STATES DISTRICT COURT
5 EASTERN DISTRICT OF CALIFORNIA
7 TERRANCE MARSH, et al., No. 2:19-cv-02382-JAM-DB 8 Plaintiffs, 9 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING 10 AFSCME LOCAL 3299, et al., PLAINTIFFS’ MOTION TO STRIKE 11 Defendants. 12
13 Plaintiffs, ten University of California employees, bring
14 this action against Attorney General Xavier Becerra, UC President
15 Janet Napolitano, and AFSCME Local 3299 (“the Union”) under
16 Section 1983 of the Civil Rights Act. First Am. Compl. (“FAC”),
17 ECF No. 1. Plaintiffs allege Cal. Gov. Code §§ 1157.3(b) and
18 1157.12 (collectively, “the SB 866 statutes”) created a fee-
19 deduction scheme in which “employee organizations” such as the
20 Union exercise complete control over their member-resignation and
21 fee-deduction policies. FAC ¶ 1. Exercising this control, the
22 Union designed a “multi-step revocation process,” that made it
23 “effectively impossible” for Plaintiffs “to resign Union
24 membership or revoke Union dues and fee deductions.” Id. As a
25 result, Plaintiffs remained members of and contributors to the
26 Union long after they wished to resign.
27 Complying with the SB 866 statutes, UC continued to deduct
28 Union-related fees from its employees until the Union certified 1 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 2 of 24
1 Plaintiffs resignations and revocations. See Cal. Gov.
2 1157.12(a). Plaintiffs argue the SB 866 statutes, and
3 Defendants’ participation in the system these provisions create,
4 violate their constitutional rights. Specifically, Plaintiffs
5 argue Defendants violated their First Amendment right to resign
6 from a union, their First Amendment right to be free from
7 compelled speech, and their Fourteenth Amendment procedural due
8 process rights. FAC ¶¶ 157-172. They seek monetary,
9 declaratory, and injunctive relief for these alleged violations.
10 FAC at 24-25.
11 Becerra, Napolitano, and the Union each filed motions to
12 dismiss.1 Mot. to dismiss by Xavier Becerra (“Becerra Mot.”),
13 ECF No. 20; Mot. to dismiss by Janet Napolitano (“Napolitano
14 Mot.”), ECF No. 23; Mot. to Dismiss by AFSCME Local 3299 (“Union
15 Mot.”). Plaintiffs opposed these motions. Opp’n by Kiska Carter
16 et al. to Becerra and Napolitano Mots. (“Opp’n to State”), ECF
17 No. 36; Opp’n by Kiska Carter, et al. to Union Mot. (“Opp’n to
18 Union”), ECF No. 37. Each Defendant then filed a reply. Reply
19 by Janet Napolitano (“Napolitano Reply”), ECF No. 38; Reply by
20 Xavier Becerra (“Becerra Reply”), ECF No. 39; Reply by AFSCME 21 Local 3299 (“Union Reply”), ECF No. 40.
22 Following the parties’ motion-to-dismiss briefings,
23 Plaintiffs filed a motion to strike their previously-filed
24 opposition briefs and substitute them with briefs complying with
25 the Court’s page limits. Plfs.’ Mot. to Strike, ECF No. 41.
26 27 1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for June 16, 2020. 2 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 3 of 24
1 Becerra and the Union both oppose this motion. Union Opp’n to
2 Mot. to Strike (“Union Opp’n), ECF No. 42; Becerra Opp’n to Mot.
3 to Strike (“Becerra Opp’n”), ECF No. 43.
4 For the reasons discussed below, the Court denies
5 Plaintiffs’ motion to strike and grants Defendants’ motions to
6 dismiss.
8 I. FACTUAL ALLEGATIONS
9 The parties are familiar with the factual background of this
10 case—it is set forth extensively in the complaint, the parties’
11 briefings, and the Court’s prior orders. The Court also
12 highlights material allegations throughout this decision. The
13 Court therefore does not need to restate those allegations here.
15 II. OPINION
16 A. Motion to Strike
17 In response to Defendants’ motions to dismiss, Plaintiffs
18 filed two opposition briefs—both in violation of the Court’s
19 standing order on page limits. See Opp’n to State (22 pages);
20 Opp’n to Union (24 pages); see also Order re Filing Requirements 21 at 1, ECF No. 3-2. The standing order limits memoranda of law
22 in opposition to motions to dismiss to fifteen pages “[u]nless
23 prior permission has been granted.” Order re Filing
24 Requirements at 1.
25 Plaintiffs later discovered their error. Two days after
26 Defendants’ motions to dismiss were fully briefed, Plaintiffs 27 filed a motion to strike their nonconforming opposition briefs
28 and substitute them with conforming briefs. ECF No. 41. 3 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 4 of 24
1 Plaintiffs’ counsel represents that because they “were working
2 remotely due to the coronavirus pandemic and related shelter-in-
3 place orders, [they] mistakenly conflated the Court’s 25-page
4 per brief limit . . . with the Court’s 15-page rule [for motions
5 to dismiss.]” Mot. to Strike at 1-2.
6 The Court finds Plaintiffs did not make a showing of good
7 cause in support of their motion to strike. As the Union
8 argues, Plaintiffs’ counsel fail to explain the relationship
9 between teleworking and their failure to comply with the Court’s
10 page limits. Union Opp’n at 3. Whether at home or in the
11 office, counsel would have had to access the Court’s docket
12 online. The Court appreciates the disruptive effect COVID-19
13 has had, and continues to have, on people’s personal and
14 professional lives. But Plaintiffs’ counsel does not argue
15 their inadvertence flowed from any specific disruption. Rather,
16 they rely on a vague reference to the coronavirus pandemic to
17 excuse their error. The Court does not find this generalized
18 explanation rises to the level of “good cause”—particularly
19 given Defendants filed their motions to dismiss by February 12.
20 Plaintiffs’ counsel had from mid-February to early June to 21 acquaint themselves with the Court’s rules and file conforming
22 opposition briefs.
23 That being said, the Court recognizes one of Plaintiffs’
24 opposition briefs responded to Becerra’s and Napolitano’s
25 separately-filed motions. Mot. to Strike at 2. Had Plaintiffs
26 opposed Becerra’s and Napolitano’s motions with separate briefs, 27 they could have availed themselves of two 15-page page limits:
28 30 pages total. Rather, Plaintiffs responded to both motions 4 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 5 of 24
1 with one 22-page brief, honoring the spirit—albeit not the text—
2 of the Court’s standing order. Exercising its “considerable
3 latitude [to] manag[e ] parties’ motion practice,” the Court
4 declines to sanction Plaintiffs for this technical violation.
5 See Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir.
6 2002).
7 The Court does not, however, find Plaintiffs’ nonconforming
8 opposition to the Union’s motion calls for similar leniency.
9 Even if the Court excuses the 12 pages’ worth of arguments
10 incorporated by reference, see Opp’n to Union at 6, Plaintiffs’
11 opposition brief exceeds the Court’s page limit by nine pages. A
12 violation of the Court’s standing order requires the offending
13 counsel (not the client) to pay $50.00 per page over the page
14 limit to the Clerk of Court. Order re Filing Requirements at 1.
15 Moreover, the Court does not consider arguments made past the
16 page limit. Id. Plaintiffs’ counsel must therefore send a check
17 payable to the Clerk for the Eastern District of California for
18 $450.00 no later than seven days from the date of this Order.
19 B. Motions to Dismiss
20 Under Federal Rule of Civil Procedure 12(b)(1), a court 21 must dismiss all claims over which it lacks subject-matter
22 jurisdiction. At the pleading stage, courts take all the
23 allegations in the complaint as true, then ask whether
24 plaintiffs adequately alleged subject-matter jurisdiction.
25 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121—
26 22 (9th Cir. 2010). 27 Becerra maintains the Court lacks jurisdiction over
28 Plaintiffs’ First and Fourteenth Amendment challenges to the SB 5 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 6 of 24
1 866 statutes. Becerra 5-8. He argues all ten plaintiffs lack
2 standing to seek prospective relief on these claims. Id. at 5-
3 7. He also argues Plaintiffs’ requests for prospective relief
4 are moot in several respects. Id. at 7-8. The Union joins
5 these arguments in part. See Union Mot. at 7-8. As a
6 prerequisite to exercising jurisdiction, the Court must
7 independently satisfy itself that each plaintiff has standing,
8 Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139-40 (9th Cir.
9 2013), and that no claim is moot, Demery v. Arpaio, 378 F.3d
10 1020, 1025 (9th Cir. 2004).
11 1. Standing
12 Under Article III of the U.S. Constitution, judicial power
13 is limited to “Cases” and “Controversies.” U.S. CONST., art.
14 III. The requirement that plaintiffs have standing to sue is
15 “rooted in the traditional understanding” of the case-or-
16 controversy requirement. Spokeo, Inc. v. Robins, 136 S. Ct.
17 1540, 1548 (2016). To satisfy the “irreducible constitutional
18 minimum of standing” plaintiffs must demonstrate: (1) they
19 suffered an “injury in fact” that is “concrete and
20 particularized” and “actual or imminent”; (2) a causal 21 connection between their injury and the defendant’s conduct; and
22 (3) a likelihood that a favorable decision would redress their
23 injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
24 (1992). These elements “are not mere pleading requirements[,]
25 but rather an indispensable part of the plaintiff’s case.” Id.
26 a) Claims for Damages 27 Plaintiffs seek damages from the Union for its alleged
28 violation of their First and Fourteenth Amendment rights. FAC 6 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 7 of 24
1 at 25, ¶¶ vii, viii. Plaintiffs allege the Union restricted
2 their ability to resign, directed UC to deduct membership dues
3 and non-member fees from Plaintiffs’ paychecks without their
4 consent, and failed to provide procedural safeguards against
5 compelled speech. See FAC. Independent of whether these
6 allegations give rise to cognizable legal theories, the Court
7 finds Plaintiffs allege injuries that are sufficiently “actual”
8 and “concrete” to confer standing. See Jacobs v. Clark County
9 School Dist., 526 F.3d 419, 426-27 (9th Cir. 2008) (finding
10 plaintiff suffered injury in fact when he was deprived of right
11 to be free from compelled speech); San Diego County Gun Rights
12 Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996) (“Economic
13 injury is clearly a sufficient basis for standing.”).
14 Moreover, Plaintiffs allege these injuries are “fairly
15 traceable” to the Union’s conduct. Specifically, Plaintiffs
16 contend the Union’s enforcement of its resignation and fee-
17 deduction policies directly impeded Plaintiffs’ ability to
18 (1) resign from the Union, and (2) cancel union-related
19 deductions. See FAC ¶¶ 33-156. These barriers are inextricably
20 bound up with Plaintiffs’ claimed injuries. 21 Finally, if Plaintiffs prevail, the Court could redress
22 this injury with an award of damages. Jacobs, 526 F.3d at 426-
23 27; San Diego County Gun Rights Committee, 98 F.3d at 1130-31.
24 Plaintiffs therefore satisfy the redressability requirement.
25 The Court finds all ten Plaintiffs have standing to bring
26 their damages claims against the Union. 27 b) Claims for Prospective Relief
28 Plaintiffs also seek declaratory and injunctive relief 7 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 8 of 24
1 against Becerra, Napolitano, and the Union. FAC at 24-25. As
2 Becerra argues, Plaintiffs face a more exacting injury-in-fact
3 requirement when requesting prospective relief. Becerra Mot. at
4 6. “In the particular context of injunctive and declaratory
5 relief, a plaintiff must show that he has suffered or is
6 threatened with a concrete and particularized legal harm . . .
7 coupled with a sufficient likelihood that he will again be
8 wronged in a similar way.” Cantanella v. State of California,
9 304 F.3d 843, 852 (9th Cir. 2002). Plaintiffs seek prospective
10 relief on each of their alleged injuries.
11 i. Right to Resign
12 Each plaintiff lacks standing to seek prospective relief
13 against any Defendant on their right-to-resign claim.
14 Plaintiffs argue Defendants’ “deliberate obfuscation” of the
15 union-resignation process satisfies the injury-in-fact
16 requirement. FAC ¶ 3. But, even assuming the truth of this
17 injury, Plaintiffs are unlikely to “again be wronged in a
18 similar way.” See Cantanella, 304 F.3d at 852. The complaint
19 contains admissions from eight of the ten plaintiffs that they
20 no longer belong to the Union. FAC ¶¶ 41 (Marsh admission), 81 21 (Van Antwerp admission), 91 (Macomber admission), 103 (Jordan
22 admission), 117 (Davidson admission), 128 (Grosse admission),
23 140 (Dioso admission), 153 (Carter admission). And Mendoza does
24 not allege one way or the other whether he is still a member of
25 the Union and whether Defendants are likely to prevent him from
26 resigning in the future. 27 As of January 24, 2020, only Edde lacked clarity on whether
28 she still belonged to the Union. See FAC ¶ 58 (“To date, the 8 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 9 of 24
1 Union has not confirmed whether she is still a union member.”).
2 That ambiguity has since been resolved: she isn’t. See Ex. 7 to
3 Union Mot., ECF No. 30-7; see also Safe Air for Everyone v.
4 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In resolving a
5 factual attack on jurisdiction, the district court may review
6 evidence beyond the complaint without converting the motion to
7 dismiss into a motion for summary judgment.”).
8 Plaintiffs do not allege they intend to re-join the Union.
9 Nor is the Court persuaded by Plaintiffs’ arguments that the
10 Union might, at any time, reinstitute their memberships without
11 consent. Opp’n to State at 18. This suggestion is wholly
12 speculative—even taking as true Mendoza’s allegation that the
13 Union forged his 2017 membership form. See FAC ¶¶ 74-75.
14 Plaintiffs’ belief that Defendants will force Union membership
15 on unwilling participants via forgery or other unsavory means is
16 just that: a belief. Standing to bring claims for prospective
17 relief requires more than speculative allegations of future
18 injury. Mayfield v. U.S., 599 F.3d 964, 970 (9th Cir. 2010)
19 (Neither “speculation [n]or subjective apprehension about future
20 harm support[s] standing.”). Absent a likely-recurring injury, 21 Plaintiffs lack standing to seek prospective relief on a right-
22 to-resign claim against Becerra, Napolitano, or the Union. The
23 Court dismisses these claims without prejudice. Fleck and
24 Assocs., Incl v. Phoenix, City of, an Arizona Mun. Corp., 471
25 F.3d 1100, 1106-07 (9th Cir. 2006) (dismissing claims without
26 prejudice for lack of standing). 27 ii. Compelled Speech
28 Plaintiffs also argue they were injured when Defendants 9 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 10 of 24
1 required them to pay membership dues and non-member service fees
2 to the Union absent clear and convincing evidence of a First
3 Amendment waiver. FAC ¶ 3. But Marsh, Edde, Davidson, and
4 Mendoza concede UC is no longer deducting Union-related fees
5 from their paychecks. See Opp’n to State at 18 (“Marsh,
6 Mendoza, Edde, and Davidson’s dues deductions have ceased.”).
7 They are therefore unlikely to suffer a comparable injury again
8 in the future. See Cantanella, 304 F.3d at 852. As already
9 discussed, the allegations in the complaint do not support
10 Plaintiffs’ argument that the Defendants are likely to
11 reinstitute deductions against Marsh, Mendoza, Edde, or Davidson
12 without consent. Absent, a likely-recurring injury, these
13 Plaintiffs lack standing to seek prospective relief against
14 Defendants on their compelled speech claim. The Court dismisses
15 this claim without prejudice
16 The six remaining plaintiffs—Macomber, Jordan, Van Antwerp,
17 Grosse, Dioso, and Carter—allege UC still deducts a non-member
18 service fee from their paychecks. FAC ¶¶ 81, 84, 91, 96, 103,
19 112, 128, 132, 140, 145, 153, 156. Because the fee “renews each
20 year on the anniversary date of the employee’s union 21 membership,” FAC ¶ 28, there is a “sufficient likelihood” that
22 they will suffer this alleged harm again in the future. Contra
23 Lyons, 461 U.S. at 107-08. Macomber, Jordan, Van Antwerp,
24 Grosse, Dioso, and Carter therefore alleged an injury in fact.
25 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter
26 likewise allege Napolitano and the Union caused this injury. 27 The Union tells UC who is responsible for dues and non-member
28 fees. FAC ¶ 23. UC then withdraws the deductions from the 10 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 11 of 24
1 designated employees’ paychecks and remits it to the Union. FAC
2 ¶ 1. The Court could redress this injury by issuing the
3 permanent injunction Plaintiffs request. See FAC at 24, ¶ vi.
4 These Plaintiffs therefore have standing to seek prospective
5 relief from Napolitano and the Union on their compelled speech
6 claim.
7 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter do
8 not, however, adequately allege their compelled speech injuries
9 are fairly traceable to Becerra by way of the SB 866 statutes.
10 SB 866 amended the California Government Code to include section
11 1157.12 and subdivision (b) of section 1157.3. Section 1157.12
12 sets forth procedures for public employers to adjust or stop
13 payroll deductions for union membership. Cal. Gov. Code
14 § 1157.12. It requires public employers to rely solely on
15 certifications by “employee organizations” to determine which
16 employees have authorized payroll deductions. See Cal. Gov.
17 Code § 1157.12(a). Employees cannot change or cancel those
18 authorizations directly through their public employer; rather,
19 public employers must “[d]irect employee requests to cancel or
20 change deductions for employee organizations to the employee 21 organization” itself. See Cal. Gov. Code § 1157.12(b). The
22 revocability of an employee’s prior authorization is then
23 “determined by the terms of the authorization.” See Cal. Gov.
24 Code § 1157.3(b).
25 As they apply here, the SB 866 statutes give the Union sole
26 authority to tell UC when UC employees are responsible for 27 Union-related fees. See Cal. Gov. Code §§ 1157.3(b), 1157.12.
28 Plaintiffs contend the state’s requirement that UC defer to the 11 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 12 of 24
1 Union’s resignation and fee-revocation policies caused
2 Plaintiffs’ compelled-speech injury. Opp’n to State at 17. The
3 Court disagrees. The causal connection between Plaintiffs’
4 injuries and California’s broad grant of authority is too
5 tenuous to confer standing on Plaintiffs’ compelled-speech
6 claims. Plaintiffs do not allege the SB 866 provisions require
7 or encourage the Union’s specific fee-deduction policies. Nor
8 do they allege these provisions compelled Plaintiffs to join the
9 Union or authorize Union-related payroll deductions in the first
10 place. See Becerra Mot. at 10. Plaintiffs entered into a
11 private agreement with the Union and UC—those agreements would
12 exist even if sections 1157.3 and 1157.12 did not. The Court
13 therefore finds Macomber, Jordan, Van Antwerp, Grosse, Dioso,
14 and Carter’s non-member service fee payments are not fairly
15 traceable to Becerra viz. the SB 866 statutes. Absent an
16 adequate causal connection, these plaintiffs lack standing to
17 seek prospective relief on their compelled speech claim against
18 Becerra. The Court dismisses this claim without prejudice.
19 iii. Due Process
20 Finally, Plaintiffs seek prospective relief against 21 Becerra, Napolitano and the Union for their procedural due
22 process claim. FAC ¶¶ 163-64. Plaintiffs allege they only
23 signed the Union’s membership forms because (1) they believed
24 Union membership was a mandatory condition of their employment,
25 (2) a colleague told them to, and/or (3) they did not know they
26 had a First Amendment right not to join the Union. FAC ¶¶ 30- 27 31, 50-51, 61-62, 77-78, 87-88, 98, 100, 114-15, 124-25, 134-35,
28 147-48. One plaintiff contends he never signed a membership 12 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 13 of 24
1 form at all. FAC ¶¶ 74-75.
2 Plaintiffs argue Defendants had a constitutional obligation
3 to ensure the Union did not treat these compelled membership
4 agreements as knowing, intelligent, and voluntary waivers of
5 Plaintiffs’ First Amendment Rights. FAC ¶¶ 2-3, 163-64.
6 Instead, Defendants created a deduction scheme where (1) unions
7 exercise complete control over union-related payroll deductions,
8 and (2) neither the state nor public employers corroborate
9 public employees’ consent to these deductions. Id.; see also
10 Opp’n to State at 17-18. This procedural deficiency, Plaintiffs
11 argue, amounts to an injury in fact.
12 But as discussed above, only Macomber, Jordan, Van Antwerp,
13 Grosse, Dioso, and Carter are likely to continue paying Union-
14 related fees as a result of this uninformed decision. FAC
15 ¶¶ 81, 84, 91, 96, 103, 112, 128, 132, 140, 145, 153, 156.
16 These are the only plaintiffs who are likely to suffer future
17 harm from Defendants’ alleged due process violation.
18 Accordingly, only Macomber, Jordan, Van Antwerp, Grosse, Dioso,
19 and Carter alleged an injury in fact sufficient to confer
20 standing on this claim. 21 These plaintiffs allege their procedural injury is fairly
22 traceable to Becerra and the Union. Cal. Gov. Code § 1157.3
23 requires public employers to “honor employee authorizations” for
24 union-related payroll deductions. Section 1157.12 then requires
25 public employers to exclusively rely upon employee
26 organizations’ representations about whether an employee has 27 authorized a payroll deduction. Cal. Gov. Code § 1157.12(a).
28 The organization need not present any proof of that 13 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 14 of 24
1 authorization unless a dispute arises. Id. The Court finds the
2 causal connection between the scheme SB 866 creates and
3 Plaintiffs’ due process injuries are sufficiently direct to
4 confer standing. As is the causal link between the Union’s
5 alleged conduct in procuring employee authorizations and
6 Plaintiffs alleged injuries. See FAC ¶¶ 30-31, 50-51, 61-62,
7 77-78, 87-88, 98, 100, 114-15, 124-25, 134-35, 147-48. With a
8 favorable decision, the Court could redress Macomber, Jordan,
9 Van Antwerp, Grosse, Dioso, and Carter’s claims for prospective
10 relief against Becerra and the Union. See FAC at 24 (i) (citing
11 28 U.S.C. §§ 2201, 2202). These plaintiffs have standing to
12 seek prospective relief on their due process claims against the
13 Union and Becerra.
14 Plaintiffs’ due process injuries are not, however, fairly
15 traceable to Napolitano. California law does not allow public
16 employers to create procedural safeguards for public employees
17 in this context. Rather, it requires “public employers other
18 than the State” to rely exclusively on an employee
19 organization’s “certification” that one of its members has
20 authorized a payroll deduction. Cal. Gov. Code § 1157.12(a). 21 Without a sufficient causal connection between Napolitano’s
22 conduct and Plaintiffs’ alleged injury, Macomber, Jordan, Van
23 Antwerp, Grosse, Dioso, and Carter lack standing to seek
24 prospective relief from Napolitano on their due process claim.
25 The Court dismisses this claim without prejudice.
26 iv. Summary–Standing for Prospective Relief 27 To summarize, no plaintiff has standing to seek prospective
28 relief on their right-to-resign claim; the Court dismisses this 14 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 15 of 24
1 claim without prejudice. Macomber, Jordan, Van Antwerp, Grosse,
2 Dioso, and Carter are the only plaintiffs who have standing to
3 seek prospective relief on the compelled speech and due process
4 claims. They have standing to bring their compelled speech
5 claim against the Union and Napolitano, and they have standing
6 to bring their due process claim against the Union and Becerra.
7 The Court dismisses all remaining claims for prospective relief
8 without prejudice.
9 2. Mootness
10 Article III of the Constitution also proscribes federal
11 courts from adjudicating moot claims. U.S. CONST., art. III;
12 Preiser v. Newkirk, 422 U.S. 395, 401 (1975). To pose a “live
13 case or controversy,” claims must be “definite and concrete”;
14 they must “touch[] the legal relations of parties having adverse
15 legal interests.” DeFunis v. Odegaard, 416 U.S. 312, 317
16 (1974). If a case does not present questions “affect[ing] the
17 rights of litigants in the case before [the court],” it is not a
18 case the court can decide. See Preiser, 422 U.S. at 401.
19 Plaintiffs’ request for prospective relief on their right-
20 to-resign claim is moot for the same reason each plaintiff lacks 21 standing to bring this claim. All ten plaintiffs have
22 successfully resigned from the Union. See FAC ¶¶ 41, 81, 91,
23 103, 117, 128, 140, 153; Hughes Decl., ¶ 11, ECF No 30-4;
24 Schuler Decl. ¶ 8; Exh. 7, ECF No. 30-7. No plaintiff alleges
25 they intend to rejoin. See Babb v. Cal. Teachers Assocs., 378
26 F.Supp.3d 857, 885-86 (C.D. Cal. 2019). 27 Marsh, Edde, Davidson, and Mendoza’s claims for prospective
28 relief on their due process and compelled speech claims are also 15 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 16 of 24
1 moot. They concede UC is no longer deducting Union dues or non-
2 member fees from their paychecks. See Opp’n to State at 18.
3 The Court cannot grant these plaintiffs prospective relief for
4 fees they are no longer paying. See Babb, 378 F.Supp.3d at 870-
5 71. Contrary to Plaintiffs’ arguments, the complaint does not
6 sufficiently allege Marsh, Edde, Davidson, and Mendoza’s claims
7 fall into the “capable of repetition, yet evading review”
8 exception to the mootness doctrine. See Few v. United Teachers
9 Los Angeles, No. 2:18-cv-09531-JLS-DFM, 2020 WL 633598, at *4-6
10 (C.D. Cal. Feb. 10, 2020).
11 Becerra contends Plaintiffs’ non-member status also moots
12 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter’s
13 claims for prospective relief on their due process and compelled
14 speech claims, as “the SB 866 statutes only govern the
15 administration of dues deductions for existing members” of
16 employee organizations. Becerra Mot. at 8 (emphasis in
17 original). This argument lacks support. The cases Becerra
18 cites, Hernandez v. AFSCME Cal., 386 F.Supp.3d 1300, 1306-08
19 (E.D. Cal. 2019), appeal docketed, No. 20-15076 (9th Cir. Jan
20 16, 2020) and Babb v. Cal. Teachers Ass’n, 378 F. Supp. 3d 857, 21 886 (C.D. Cal. 2019), appeal docketed, No. 19-55692 (9th Cir.
22 June 18, 2019) did not adopt or endorse this reading of the SB
23 866 statutes. Nor does the text of Cal. Gov. Code §§ 1157.3 and
24 1157.3 indicate the statutes’ purview is as limited as Becerra
25 suggests. Macomber, Jordan, Van Antwerp, Grosse, Dioso, and
26 Carter continue to pay non-member fees as a result of 27 Defendants’ alleged compelled speech and due process violations—
28 notwithstanding their successful resignations. See FAC ¶¶ 81, 16 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 17 of 24
1 84, 91, 96, 103, 112, 128, 132, 140, 145, 153, 156. The Court
2 finds these claims are not moot.
3 3. Agency Jurisdiction
4 Napolitano and the Union argue Plaintiffs’ claims fall
5 within PERB’s exclusive jurisdiction because their “allegations
6 of improper Union conduct arise out of, and would form the basis
7 for, unfair practice allegations . . . under the Higher
8 Education Employer-Employee Relations Act (“HEERA”).”
9 Napolitano Mot. at 6; Union Mot. at 1. PERB possesses
10 “exclusive jurisdiction” over matters covered by HEERA. Cal.
11 Gov. Code § 3563.2. This jurisdiction extends to “[t]he initial
12 determination as to whether the charges of unfair practices are
13 justified, and, if so, what remedy is necessary to effectuate
14 the purposes of [the Act].” Id. PERB’s preemptive reach not
15 only covers activities that are “protected or prohibited” by
16 HEERA; it also encompasses conduct that HEERA “arguably”
17 protects or prohibits. Cf. Gabriele v. Service Employees Int’l
18 Union, Local 1000, -- F. Supp. 3d --, 2:19-cv-00292-WBS-KJN,
19 2020 WL 3163072, at *4-5 (E.D. Cal. June 12, 2020) (citing El
20 Rancho Unified School Dist. V. National Educ. Assn., 33 Cal.3d 21 946, 952-53 (1983)).
22 Parties cannot evade PERB’s jurisdiction with artful
23 pleading or by arguing the conduct challenged does not
24 constitute an “unfair [labor] practice.” Id. at *5 (“PERB
25 instead has jurisdiction to adjudicate both unfair practices and
26 whether conduct is protected or prohibited by the act.”). As 27 this district recently explained:
28 [W]hat matters is whether the underlying conduct on 17 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 18 of 24
1 which the suit is based -- however described in the complaint -- may fall within PERB's exclusive 2 jurisdiction. (citation omitted); cf. Link, 142 Cal. App. 3d at 769, 191 Cal.Rptr. 264 (finding that claims 3 fall under PERB's exclusive jurisdiction where plaintiffs alleged only constitutional challenges). 4 The preemption question therefore turns on whether plaintiffs' claims arise from conduct that is 5 protected, prohibited, or arguably protected or prohibited under the [Act], regardless of the legal 6 labels assign[ed] to the[] claims.
7 Id. 8 Following this Court’s justiciability analysis, a handful 9 of claims remain: Plaintiffs’ three claims for damages against 10 the Union; Macomber, Jordan, Van Antwerp, Grosse, Dioso, and 11 Carter’s request for prospective relief against Becerra and the 12 Union on their due process claim; and Macomber, Jordan, Van 13 Antwerp, Grosse, Dioso, and Carter’s request for prospective 14 relief against Napolitano and the Union on their compelled 15 speech clam. The Court finds HEERA arguably prohibits the 16 conduct underlying the Union’s right-to-resign claim for damages 17 against the Union. Under Cal. Gov. Code § 3571.1(b), “it [is] 18 unlawful for an employee organization to . . . interfere with, 19 restrain, or coerce employees because of their exercise of 20 rights guaranteed by this chapter.” Plaintiffs’ right-to-resign 21 claim contends the Union’s policies and conduct served as a 22 restraint on their ability to resign from the organization. See 23 FAC. The right to accept or refuse union membership is one 24 HEERA confers. Cal. Gov. Code § 3565. Because the conduct 25 underlying Plaintiffs’ right-to-resign claim against the Union 26 is arguably conduct HEERA prohibits, PERB has exclusive 27 jurisdiction over that claim. That Plaintiffs’ statutory right 28 18 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 19 of 24
1 may overlap with a right conferred by the U.S. Constitution does
2 not change this result. Cf. Link, 142 Cal. App. 3d at 769. The
3 Court dismisses this right-to-resign claim for damages with
4 prejudice.
5 Moreover, the Court finds Plaintiffs’ compelled-speech
6 claim, both for damages against the Union and for prospective
7 relief against the Union and Napolitano, fall within PERB’s
8 exclusive jurisdiction. Plaintiffs’ compelled speech claim sets
9 itself out as a right that naturally flows from Janus, 138 S.
10 Ct. at 2486. In its farthest-reaching form, Janus proscribed
11 state and public-sector unions from “extract[ing] agency fees
12 from nonconsenting employees.” Id. Notably, in the context of
13 Janus, “nonconsenting employees” referred to individuals who
14 were required to pay union fees even though they specifically
15 refused union membership. Macomber, Jordan, Van Antwerp,
16 Grosse, Dioso, and Carter, argue they, too, are “nonconsenting
17 employees” because their decision to join the Union was not
18 knowing, intelligent, and voluntary. FAC ¶¶ 2-3, 163-64.
19 Rather, they consented to Union membership because UC and the
20 Union either led them to believe union membership was required 21 or simply failed to inform them that union membership was
22 optional. FAC ¶¶ 77-78, 87-88, 99-100, 124, 134-35, 148.
23 Viewed in its simplest form, Plaintiffs’ compelled-speech
24 claim, must like their right-to-resign claim, alleges
25 interference with their “right to refuse to join employee
26 organizations or to participate in the activities of those 27 organizations.” Cal. Gov. Code § 3565. Sections 3571
28 (“Unlawful employer practices”) and 3571.1 (“Unlawful employee 19 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 20 of 24
1 organization practices”) arguably proscribe this type of
2 obstruction. Cal. Gov. Code §§ 3571(a), 3571.1(a). Because the
3 conduct underlying Plaintiffs’ compelled-speech claim against
4 the Union and Napolitano is arguably conduct HEERA prohibits,
5 PERB has exclusive jurisdiction over this claim as well. The
6 Court dismisses this compelled speech claim with prejudice.
7 The Court does not, however, find the conduct underlying
8 Plaintiffs’ procedural due process claim against the Union and
9 Becerra is conduct HEERA arguably prohibits or protects. The
10 Court retains jurisdiction over this claim.
11 4. Failure to State a Claim
12 Having resolved Defendants’ jurisdictional challenges, the
13 Court turns to the question of whether Plaintiffs have stated a
14 claim for which relief can be granted. Fed. R. Civ. Proc.
15 12(b)(6). Plaintiffs’ procedural due process claim2 is all that
16 remains. The “standard [procedural due process] analysis . . .
17 proceeds in two steps.” Swarthout v. Cooke, 526 U.S. 216, 219
18 (2011). A court must “first ask whether there exists a liberty
19 or property interest of which a person has been deprived.” Id.
20 If so, the court then asks “whether the procedures [protecting 21 that right] were constitutionally deficient.” Id. (citing
22 Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460
23 (1989).
24 Plaintiffs argue they have a “property interest in their
25 salary and a constitutional interest against compelled speech.”
26 2 To clarify, this claim consists of all Plaintiffs’ request for 27 damages against the Union, along with Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter’s request for prospective 28 relief against the Union and Becerra. 20 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 21 of 24
1 Opp’n to State at 21. As a preliminary matter, the Court agrees
2 with Becerra that Plaintiffs did not assert their “property
3 interest” theory of liability in their complaint. See Becerra
4 Reply at 4 (citing Opp’n to State at 2). “Plaintiffs’ failure to
5 articulate these alleged interests in their Complaint dooms, on
6 its own, their assertion of a due process violation on this
7 basis.” Id.; see also Provencio v. Vazquez, 258 F.R.D. 626, 639
8 (E.D. Cal. 2009).
9 The Court also finds the “liberty interest” theory of due
10 process liability largely comes up short. With this theory,
11 Plaintiffs purport to rely upon the liberty interest Janus
12 created. 138 S. Ct. at 2460. But Janus only discussed the rights
13 of public employees who refused union membership from the get-go;
14 that is, public employees who never signed union membership
15 agreements. Id. Janus did not, as Plaintiffs suggest, provide a
16 basis for invalidating union membership agreements for employees
17 who, post-Janus, come to regret their membership decision. See
18 Cooley v. Cal. Statewide Law Enforcement Assn., 385 F.Supp.3d
19 1077, 1079-80 (E.D. Cal. 2019). Nor does the First Amendment,
20 more broadly, “confer . . . a constitutional right to disregard 21 promises that would otherwise be enforced under state law.”
22 Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991). Save for
23 Mendoza, FAC ¶¶ 74-75, Plaintiffs’ Union membership, membership
24 dues, and nonmember services fees flowed from the express terms
25 of contracts Plaintiffs entered into. See FAC ¶¶ 30, 50, 87,
26 114, 122, 134, 147. Consequently, only Mendoza adequately 27 alleges the deprivation of a liberty interest comparable to the
28 one Janus recognized. 21 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 22 of 24
1 But identifying a protected liberty interest is only one of
2 two requirements. To state a procedural due process claim, a
3 plaintiff must also allege how the procedures safeguarding that
4 interest were constitutionally deficient. See Kentucky Dept. of
5 Corrections, 490 U.S. at 460. This, Mendoza failed to do.
6 Mendoza did not allege what procedures were constitutionally
7 required, or how the Union3 or Becerra, through SB 866, fell
8 short of those requirements. Moreover, the defense of this claim
9 Plaintiffs included in their opposition brief fell outside the
10 page limit. The Court did not consider these arguments.
11 The Court finds Plaintiffs failed to state a due process
12 claim for either damages or prospective relief. The Court
13 therefore dismisses this claim without prejudice.
15 III. ORDER
16 For the reasons set forth above, the Court DENIES
17 Plaintiffs’ motion to strike and GRANTS Defendants’ motions to
18 dismiss. Plaintiffs lack standing to seek prospective relief on
19 their right-to-resign claims against all three Defendants. These
20 claims are also moot. Accordingly, the Court DISMISSES these 21 claims WITHOUT PREJUDICE.
22 Moreover, Marsh, Mendoza, Edde, or Davidson lack standing to
23 seek prospective relief on their compelled-speech and due process
24 claims against all three Defendants. These claims are also moot.
25 The Court therefore DISMISSES them WITHOUT PREJUDICE.
26 3Because Plaintiffs failed to allege the Union maintains 27 constitutionally-deficient procedures, the Court declines to resolve the question of whether the Union’s failure to enact 28 sufficient procedural safeguards amounts to “state action.” 22 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 23 of 24
1 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter
2 lack standing to seek prospective relief on their due process
3 claim against Napolitano and lack standing to seek prospective
4 relief on their compelled speech claim against the Union. The
5 Court DISMISSES these claims WITHOUT PREJUDICE.
6 The California Public Employment Relations Board has
7 exclusive jurisdiction over: (1) Plaintiffs’ right-to-resign and
8 compelled speech claims for damages against the Union; and
9 (2) Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter’s
10 request for prospective relief on their compelled speech claims
11 against the Union and Napolitano. The Court DISMISSES these
12 claims WITH PREJUDICE.
13 Finally, Plaintiffs fail to state a procedural due process
14 claim. The Court DISMISSES Plaintiffs’ due process claim for
15 damages against the Union WITHOUT PREJUDICE. The Court also
16 DISMISSES Macomber, Jordan, Van Antwerp, Grosse, Dioso, and
17 Carter’s request for prospective relief against the Union and
18 Becerra WITHOUT PREJUDICE. Attached hereto is an exhibit
19 summarizing the Court’s decision.
20 If Plaintiffs elect to amend their complaint with respect to 21 these claims, they shall file an Amended Complaint within twenty
22 (20) days of this Order. Defendants’ responsive pleading is due
23 twenty (20) days thereafter.
24 IT IS SO ORDERED.
25 Dated: July 27, 2020
26 27
28 23 2:19-cv-02382 Marsh, et al. v. Becerra, et al. Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 24 of 24
Prospective Relief Money Damages Becerra Napolitano Union Union Marsh Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Edde Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Mendoza Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Van Antwerp Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Macomber Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Right to Resign Jordan Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Davidson Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Grosse Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Dioso Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Carter Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Marsh Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Edde Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Mendoza Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Van Antwerp Standing PERB Jurisdiction* PERB Jurisdiction** PERB Jurisdiction* Macomber Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Compelled Speech Jordan Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Davidson Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Grosse Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Dioso Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Carter Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Marsh Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Edde Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Mendoza Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Van Antwerp Failure to state a claim Standing Failure to state a claim Failure to state a claim Procedural Due Macomber Failure to state a claim Standing Failure to state a claim Failure to state a claim Process Jordan Failure to state a claim Standing Failure to state a claim Failure to state a claim Davidson Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Grosse Failure to state a claim Standing Failure to state a claim Failure to state a claim Dioso Failure to state a claim Standing Failure to state a claim Failure to state a claim Carter Failure to state a claim Standing Failure to state a claim Failure to state a claim
* -- The Court dismissed the claim with prejudice.