Pablo Labarrere v. Upte-Cwa 9119

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2022
• Docket: 20-56173
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JAN 27 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PABLO LABARRERE; SAM DOROUDI, No. 20-56173

Plaintiffs-Appellants, D.C. No. 3:20-cv-00444-CAB- WVG v.

UNIVERSITY PROFESSIONAL AND MEMORANDUM* TECHNICAL EMPLOYEES (UPTE) CWA 9119; MICHAEL V. DRAKE, M.D., in his official capacity as President of the University of California,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted January 19, 2022**

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Pablo Labarrere and Sam Doroudi appeal from the district court’s judgment

dismissing their 42 U.S.C. § 1983 action alleging First Amendment claims arising

* 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). Appellants’ request for oral argument, set forth in the opening brief, is denied. out of union membership dues. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a dismissal for failure to state a claim and for lack of subject matter

jurisdiction. Serra v. Lappin, 600 F.3d 1191, 1195-96 (9th Cir. 2010). We affirm.

The district court properly dismissed plaintiffs’ claims against University

Professional and Technical Employees (“UPTE”) CWA 9119 because plaintiffs

failed to allege facts sufficient to show state action. See Belgau v. Inslee, 975 F.3d

940, 946-49 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021) (“[P]rivate dues

agreements do not trigger state action and independent constitutional scrutiny.”);

Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139-40 (9th Cir. 2012) (discussing

tests for determining whether a private party’s actions amount to state action).

The district court properly dismissed plaintiffs’ claims against defendant

Drake in his official capacity because plaintiffs failed to allege facts sufficient to

show that they did not affirmatively consent to the voluntary deduction of union

dues. See Belgau, 975 F.3d at 950-52 (explaining that 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).

To the extent plaintiffs allege that UPTE misinformed them about their legal

obligations to join the union or pay membership dues, their claims are outside the

scope of this appeal.

2 20-56173 We do not consider matters not specifically and distinctly raised and argued

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

Appellants’ motion for leave to file a substitute reply brief (Docket Entry

No. 34) is granted. The Clerk will file the substitute reply brief submitted at

Docket Entry No. 35.

AFFIRMED.

3 20-56173