Scott Wilford v. National Education Association

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2022
• Docket: 19-55712
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JAN 26 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SCOTT WILFORD; et al., No. 19-55712

Plaintiffs-Appellants, D.C. No. 8:18-cv-01169-JLS-DFM

v. MEMORANDUM* NATIONAL EDUCATION ASSOCIATION OF THE UNITED STATES; et al.,

Defendants-Appellees,

and

ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Submitted January 19, 2022**

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

Scott Wilford, Bonnie Hayhurst, Rebecca Friedrichs, Michael Monge,

Harlan Elrich, Jelena Figueroa, and Gene Gray appeal from the district court’s

judgment dismissing their 42 U.S.C. § 1983 putative class action alleging First

Amendment and state law claims arising out of compulsory agency fees. 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’ claim for retrospective

monetary relief because a public sector union can, as a matter of law, “invoke an

affirmative defense of good faith to retrospective monetary liability under section

1983 for the agency fees it collected” prior to the Supreme Court’s decision in

Janus v. American Federation of State, County & Municipal Employees, Council

31, 138 S. Ct. 2448, 2486 (2018). Danielson v. Inslee, 945 F.3d 1096, 1097-99,

1102-03 (9th Cir. 2019), cert. denied, 141 S. Ct. 1265 (2021) (explaining that

plaintiffs’ claim for monetary relief was for damages and not restitution, but

“[e]ven accepting Plaintiffs’ restitutionary premise, the equities do not weigh in

favor of requiring a refund of all agency fees collected pre-Janus”).

The district court properly dismissed as moot plaintiffs’ claims for

prospective relief because defendants stopped deducting and receiving agency fees

2 19-55712 after the Supreme Court’s decision in Janus disallowed the deduction or receipt of

agency fees in their collective bargaining agreements, stopped enforcing statutes

permitting the deduction of agency fees, and demonstrated that they are unlikely to

rescind the policy changes. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 189-90 (2000) (explaining voluntary cessation and

mootness); cf. Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th

Cir. 2000) (en banc) (explaining that the mere existence of a proscriptive statute

does not create a constitutionally sufficient direct injury).

The district court properly dismissed plaintiffs’ state law claims because

plaintiffs failed to allege facts sufficient to state a plausible claim. See Cal. Gov’t

Code § 3515.7 (permitting collection of agency fees); City of San Jose v.

Operating Eng’rs Local Union No. 3, 232 P.3d 701, 705-07 (Cal. 2010)

(explaining that California’s Public Employment Relations Board has exclusive

jurisdiction over activities arguably protected or prohibited by the state’s relevant

labor law, including unfair practices); El Rancho Unified Sch. Dist. v. Nat’l Educ.

Ass’n, 663 P.2d 893, 901-02 (Cal. 1983) (setting forth California’s preemption

doctrine).

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 19-55712