Zak Shimose v. Ilwu, Local 142

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 2026
• Docket: 23-15612
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 14 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZAK SHIMOSE, No. 23-15612

Plaintiff-Appellant, D.C. No. 1:21-cv-00489-JAO-RT v.

INTERNATIONAL LONGSHORE AND MEMORANDUM* WAREHOUSE UNION, LOCAL 142; NATIONAL LABOR RELATIONS BOARD; UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Jill Otake, District Judge, Presiding

Submitted May 15, 2026** San Francisco, California

Before: O'SCANNLAIN, SILVERMAN, and N.R. SMITH, Circuit Judges.

Zak Shimose appeals pro se from the district court’s judgment dismissing his

action against the International Longshore and Warehouse Union, Local 142 and

* 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). the National Labor Relations Board alleging that the union violated its duty of fair

representation and the First Amendment and challenging the NLRB General

Counsel’s decision not to file a labor complaint against the union. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Beckington v. Am.

Airlines, Inc., 926 F.3d 595, 604 (9th Cir. 2019) (dismissal for failure to state a

claim); Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1062 (9th Cir. 2019)

(dismissal for lack of subject matter jurisdiction). We affirm.

The district court properly dismissed the claims alleging that the union

violated the duty of fair representation because the second amended complaint

failed to allege facts showing that the union’s conduct was arbitrary,

discriminatory, or in bad faith. See Vaca v. Sipes, 386 U.S. 171, 190 (1967) (setting

forth the standard).

The district court properly dismissed the First Amendment challenge to the

union’s collection of fees because Shimose failed to allege that the collection was

“fairly attributable to the state.” See Belgau v. Inslee, 975 F.3d 940, 946-47 (9th

Cir. 2020) (setting forth the standard and holding that a union, as a private party, is

not bound by the First Amendment unless it acts “in concert with the state” to

cause the deprivation of the constitutional right) (internal quotation marks

omitted).

The district court properly held that it lacked jurisdiction to consider the

2 challenge to the General Counsel’s decision not to issue a labor practices

complaint against the union. See NLRB v. United Food & Com. Workers Union,

Loc. 23, 484 U.S. 112, 122 (1987) (explaining that “the General Counsel’s

approval of a determination not to file an unfair labor practice complaint is not

subject to judicial review”). Shimose failed to sufficiently allege a due process

claim to create a possible exception to this jurisdictional rule. Cf. Int’l Ass’n of

Machinists & Aerospace Workers v. Lubbers, 681 F.2d 598, 604 (9th Cir. 1982)

(explaining that even if the appellant had a “private right” in prosecuting a labor

practices complaint, a written explanation of the General Counsel’s decision and

an opportunity for an administrative appeal protected due process rights).

The district court properly dismissed the claim alleging that the General

Counsel lacked the authority to act because the previous General Counsel had been

unlawfully discharged. See NLRB v. Aakash, Inc., 58 F.4th 1099, 1104 (9th Cir.

2023) (holding that “the President may remove the Board’s General Counsel at any

time for any reason”).

We decline to consider issues not specifically raised in district court. See

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

AFFIRMED.