Hcaoa v. Gavin Newsom ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        FEB 14 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    HOME CARE ASSOCIATION OF          No. 21-15617
    AMERICA; CALIFORNIA ASSOCIATION
    FOR HEALTH SERVICE AT HOME,       D.C. No.
    1:19-cv-00929-AWI-EPG
    Plaintiffs-Appellants,
    v.                                             MEMORANDUM*
    ROB BONTA, in his official capacity as
    Attorney General for the State of California;
    KIMBERLEY JOHNSON, in her official
    capacity as Director of the California
    Department of Social Services,
    Defendants-Appellees,
    SERVICE EMPLOYEES
    INTERNATIONAL UNION LOCAL 2015,
    Intervenor-Defendant-
    Appellee,
    and
    GAVIN NEWSOM, in his official capacity
    as Governor of California,
    Defendant.
    Appeal from the United States District Court
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    for the Eastern District of California
    Anthony W. Ishii, District Judge, Presiding
    Argued and Submitted January 12, 2022
    Pasadena, California
    Before: BOGGS,** OWENS, and FRIEDLAND, Circuit Judges.
    California requires home-care aides to register with the state’s Department
    of Social Services (“DSS”) and to renew their registrations biannually.1 See 
    Cal. Health & Safety Code §§ 1796.24
    , 31 (2016). In 2018, the state enacted a new
    statute requiring DSS to provide the names and phone numbers of registered home-
    care aides to labor organizations for the purpose of “employee organizing,
    representation, and assistance activities.” AB 2455, 2017–2018 Reg. Sess. (Cal.
    2018), § 2 (codified at 
    Cal. Health & Safety Code § 1796.29
    (d)(1) (2019)). The
    law applies to applicants for new registrations or renewals beginning on July 1,
    2019. 
    Id.
     It also creates a procedure for aides to opt out of this disclosure, and
    orders DSS to give written notice and instructions on how to opt out. 
    Id.
     (codified
    at 
    Cal. Health & Safety Code § 1796.29
    (d)(2), (e)).
    Two associations representing home-care employers, Home Care
    **
    The Honorable Danny J. Boggs, United States Circuit Judge for the
    U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    1
    We note at the outset that the name of the Director of DSS was mistakenly
    spelled “Kimberly Johnson” through much of the prior proceedings. The caption of
    this disposition corrects that spelling to “Kimberley Johnson.”
    2
    Association of America (“HCAOA”) and California Association for Health Service
    at Home (“CAHSAH”), seek to enjoin the law.2 They argue that the National
    Labor Relations Act, 
    29 U.S.C. §§ 151
    –169 (“NLRA”), preempts the statute under
    doctrines stemming from San Diego Building Trades Council v. Garmon, 
    359 U.S. 236
     (1959), and Lodge 76, International Ass’n of Machinists & Aerospace
    Workers, AFL-CIO v. Wisconsin Employment Relations Commission, 
    427 U.S. 132
    (1976) (“Machinists”). The district court granted summary judgment to the state
    officials and intervenor-defendant Service Employees International Union Local
    2015, finding that the associations had established standing to bring their
    challenge, but that neither Garmon preemption nor Machinists preemption applied
    to AB 2455. We have jurisdiction under 
    28 U.S.C. § 1291
    , and we review standing
    and summary judgment analyses de novo. See La Asociacion de Trabajadores de
    Lake Forest v. City of Lake Forest, 
    624 F.3d 1083
    , 1087 (9th Cir. 2010). We
    vacate the district court’s order and remand with instructions to dismiss for lack of
    jurisdiction.
    1. A party asserting standing must satisfy three constitutional requirements.
    First, it must have suffered an “injury in fact that is concrete, particularized, and
    2
    Appellants initially filed a complaint for declaratory and injunctive relief against
    Governor Gavin Newsom, then-Attorney General Xavier Becerra, and DSS
    Director Kimberley Johnson. Governor Newsom was dismissed as a defendant by
    stipulation of the parties, and Rob Bonta subsequently succeeded Mr. Becerra as
    Attorney General.
    3
    actual or imminent.” TransUnion LLC v. Ramirez, 
    141 S. Ct. 2190
    , 2203 (2021).
    Second, the injury must be “fairly traceable” to a defendant’s action. Friends of the
    Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 
    528 U.S. 167
    , 180 (2000). Third, it
    must be “likely, as opposed to merely speculative,” that a court’s decision will
    redress the injury. 
    Id. at 181
    .
    The party seeking judicial relief bears the burden of establishing that it has
    standing. FW/PBS, Inc. v. City of Dallas, 
    493 U.S. 215
    , 231 (1990). That burden
    increases as the litigation proceeds: While “general factual allegations of injury
    resulting from the defendant’s conduct may suffice” to survive a motion to dismiss,
    at the summary judgment stage the plaintiff “must ‘set forth’ by affidavit or other
    evidence ‘specific facts,’ which for purposes of the summary judgment motion will
    be taken to be true.” Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 561 (1992) (citation
    omitted); accord Wash. Env’t Council v. Bellon, 
    732 F.3d 1131
    , 1139 (9th Cir.
    2013). To sue on behalf of its members, an organization must make three
    additional showings to have so-called associational standing: “(a) its members
    would otherwise have standing to sue in their own right; (b) the interests it seeks to
    protect are germane to the organization’s purpose; and (c) neither the claim
    asserted nor the relief requested requires the participation of individual members in
    the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 
    432 U.S. 333
    , 343
    (1977).
    4
    Appellants posit two theories of standing. First, they contend that mandatory
    disclosure of home-care aides’ contact information from DSS to labor
    organizations will significantly increase the likelihood of unionization, thereby
    harming the groups’ members. Second, they argue that they may litigate on behalf
    of their members’ employees, whose privacy rights would be infringed by AB
    2455.
    2. Even if Appellants satisfy the germane-interest and individual-
    participation requirements for their standing theory predicated on harm to
    members, they have not shown that at least one member would have standing to
    sue on its own.
    Appellants offer only vague allegations in support of individual members’
    standing. They rely on two declarations signed by their own executives to support
    standing, yet these statements do not show that specific members have suffered or
    will suffer a particular injury. Both declarations discuss generalized concerns about
    AB 2455, alleging that it violates employees’ privacy interests, subjects them to
    unwanted labor-organizing communications, and harms employers’ ability to
    protect employee privacy rights, recruit or retain employees, and deal with unions
    on an equal footing.
    But generalized assertions such as these do not meet the burden to
    demonstrate associational standing at summary judgment. Rather, an association
    5
    must “make specific allegations establishing that at least one identified member
    had suffered or would suffer harm.” Summers v. Earth Island Inst., 
    555 U.S. 488
    ,
    498 (2009). In Summers, the Supreme Court rejected the view that organizational
    plaintiffs established standing merely because they asserted that they had
    thousands of members and that there was a high probability that at least some of
    those members would visit areas affected by a challenged government action. 
    Id. at 499
    . Absent affidavits indicating a “factual showing of perceptible harm,” the
    Court reasoned, the organizations had not demonstrated an imminent injury. 
    Id.
     at
    499–500 (quoting Defs. of Wildlife, 
    504 U.S. at 566
    ).
    Following that guidance, we have considered and rejected an association’s
    attempt to demonstrate standing at summary judgment by relying on an affidavit
    that did not specify which, if any, of its members would suffer injury from the
    challenged conduct. See Associated Gen. Contractors of Am., San Diego Chapter,
    Inc. v. Cal. Dep’t of Transp., 
    713 F.3d 1187
    , 1194–95 (9th Cir. 2013). In contrast,
    an association can satisfy standing by presenting declarations from specific
    members attesting to injuries that they had suffered or would experience. See
    Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal., 
    159 F.3d 1178
    , 1181 (9th Cir. 1998).
    Here, HCAOA and CAHSAH have not provided specific facts that an
    identifiable member satisfies the requirements for standing at summary judgment.
    6
    HCAOA and CAHSAH have not alleged that, collectively, their members include
    all employers of home care aides in California whose employees’ personal
    information is subject to disclosure under AB 2455. Accordingly, even if we
    assume that the legislature was correct that AB 2455 would increase unionization
    of home care aides and thereby would cause cognizable injury to some employers
    in the state, we could not assume that the affected employers would necessarily be
    among HCAOA’s and CAHSAH’s members. We thus have no evidence in the
    record of injury to an identifiable member of either HCAOA or CAHSAH. And we
    cannot rely on speculation as to whether a member would hypothetically be able to
    make that showing. See Summers, 
    555 U.S. at 499
    .
    3. Appellants’ contention that they have third-party standing to challenge
    AB 2455 on behalf of members’ employees, because AB 2455 intrudes on
    employees’ privacy rights, turns largely on whether individual members have
    standing to vindicate an injury to their employees. See Hunt, 
    432 U.S. at 343
    .
    A litigant has standing to sue on behalf of third parties only when it satisfies
    three requirements: “The litigant must have suffered an ‘injury in fact,’ thus giving
    him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute;
    the litigant must have a close relation to the third party; and there must exist some
    hindrance to the third party’s ability to protect his or her own interest.” Powers v.
    Ohio, 
    499 U.S. 400
    , 411 (1991) (citations omitted).
    7
    As previously explained, Appellants have not demonstrated that any
    employer member has suffered, or will suffer, an injury in fact, and that alone
    precludes third-party standing. See 
    id.
    Additionally, Appellants cannot satisfy the close-relationship element. The
    relationship between a litigant and a third party must be one in which the third
    party’s “enjoyment of the right is inextricably bound up with the activity the
    litigant wishes to pursue.” Viceroy Gold Corp. v. Aubry, 
    75 F.3d 482
    , 488 (9th Cir.
    1996) (quoting Singleton v. Wulff, 
    428 U.S. 106
    , 114 (1976)). This correspondence
    between an employer and employees existed in Viceroy Gold Corp. because
    nonunionized employees sought to change their working schedules in a way that
    would violate state law, and the employer sought to change the schedules in the
    same manner. See 
    id.
     at 488–89. There is no such evidence of consistent alignment
    of interests in this case: Appellants’ employer members do not want labor
    organizations to have employees’ contact information, and some employees may
    agree, but other employees may want their information to be shared, and still
    others may not care at all.
    Finally, home-care employees face no barrier to bringing a claim
    themselves. To bar a third party from bringing a claim, a hindrance must present a
    “genuine obstacle” beyond a “lack [of] a sufficient individual economic stake in
    the outcome” or “motivation.” Id. at 489 (citation omitted). Despite Appellants’
    8
    contention, home-care aides would not sacrifice any privacy rights by participating
    in litigation because their names were already published prior to AB 2455. See 
    Cal. Health & Safety Code § 1796.29
    (a)(1). And to the extent that employees are
    concerned about the additional disclosure of their phone numbers to labor
    organizations, they can opt out and receive instructions about how to do so. See 
    id.
    § 1796.29(d)(2), (e).
    Appellants do not demonstrate associational standing either on behalf of
    their members or on behalf of their members’ employees. We therefore have no
    jurisdiction to consider their Garmon preemption and Machinists preemption
    claims.
    VACATED and REMANDED with instructions to dismiss.
    9