Patricia Grossman v. Hawaii Government Employees' A

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2021
• Docket: 20-15356
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUL 29 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRICIA GROSSMAN, No. 20-15356

Plaintiff-Appellant, D.C. No. 1:18-cv-00493-DKW-RT

v. MEMORANDUM* HAWAII GOVERNMENT EMPLOYEES’ ASSOCIATION, AFSCME LOCAL 152,AFL-CIO; et al.,

Defendants-Appellees,

and

RUSSELL A. SUZUKI, in his official capacity as Attorney General of Hawaii,

Defendant.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Submitted July 19, 2021**

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

* 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). Patricia Grossman appeals from the district court’s summary judgment in

her 42 U.S.C. § 1983 action alleging a First Amendment claim arising out of union

membership dues. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a decision on cross motions for summary judgment. JL Beverage Co., LLC v.

Jim Beam Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016). 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 Grossman’s claim

seeking prospective relief because such claim is 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).

The district court properly dismissed Grossman’s First Amendment claim

challenging the exclusive bargaining representation arrangement for Hawaii public

employees because Grossman failed to allege a plausible claim. See Mentele v.

Inslee, 916 F.3d 783, 790-91 (9th Cir. 2019) (holding that exclusive bargaining

arrangement is constitutionally permissible); Bain, 891 F.3d at 1211 (setting forth

standard of review for motion to dismiss).

The parties agree that this court’s intervening decision in Belgau v. Inslee,

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

2 20-15356 21, 2021), controls the outcome of Grossman’s First Amendment claim arising

from the collection of union dues under her membership agreement. We affirm the

district court’s summary judgment because Grossman affirmatively and voluntarily

consented to the deduction of union dues. See Belgau, 975 F.3d at 950-52

(concluding that 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 union membership agreements).

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).

AFFIRMED.

3 20-15356