Linda Bowman v. Jay Inslee ( 2019 )

FILED
UNITED STATES COURT OF APPEALS
JAN 09 2019
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BECKY FISK, No. 17-35957
Plaintiff, D.C. No. 3:16-cv-05889-RBL
Western District of Washington,
and Tacoma
LINDA BOWMAN; et al.,
ORDER
Plaintiffs-Appellants,
v.
JAY INSLEE, Governor; et al.,
Defendants-Appellees.
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
An amended memorandum disposition is simultaneously filed with this
order to delete the sentence that reads “Resolving this revised claim would require
determining whether Appellants’ initial agreement with SEIU qualified as a
knowing, voluntary, and intelligent waiver.” The footnote that appeared at the end
of this sentence is also deleted. With the filing of the amended memorandum
disposition, SEIU’s petition for panel rehearing is DENIED as moot.
FILED
NOT FOR PUBLICATION
JAN 09 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BECKY FISK, No. 17-35957
Plaintiff, D.C. No. 3:16-cv-05889-RBL
and
AMENDED MEMORANDUM*
LINDA BOWMAN; et al.,
Plaintiffs-Appellants,
v.
JAY INSLEE, Governor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 3, 2018
Seattle, Washington
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellants Linda Bowman, Nathaniel Israel, and Susan Nott appeal the
district court’s order granting summary judgment to the State of Washington and
the Service Employees International Union 775 (or “SEIU”). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Because the parties are familiar with the facts, we provide only a brief
overview here. Appellants are former SEIU members. When they enrolled in the
union, they signed membership cards that authorized SEIU to deduct union dues
for at least a full year and provided the Appellants could opt out of dues payments
only during a 15-day window each year (the “dues irrevocability provision”). Each
of the Appellants resigned from the union before their dues authorizations elapsed,
and the union continued to deduct dues from their paychecks until the full year had
passed or the appropriate 15-day window arrived. Appellants brought a putative
class action alleging violations of their First and Fourteenth Amendment rights
because they were unable to immediately cease dues contributions when they
resigned.
1. Appellants’ non-damages claims are not moot. Although no class has
been certified and SEIU and the State have stopped deducting dues from
Appellants, Appellants’ non-damages claims are the sort of inherently transitory
claims for which continued litigation is permissible. See Gerstein v. Pugh, 420
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U.S. 103, 111 n.11 (1975) (deciding case not moot because the plaintiff’s claim
would not last “long enough for a district judge to certify the class”); see also
County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). Indeed, claims
regarding the dues irrevocability provision would last for at most a year, and we
have previously explained that even three years is “too short to allow for full
judicial review.” Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011,
1019 (9th Cir. 2010). Accordingly, Appellants’ non-damages claims are not moot
simply because the union is no longer deducting fees from Appellants.
2. Appellees’ deduction of union dues in accordance with the membership
cards’ dues irrevocability provision does not violate Appellants’ First Amendment
rights. Although Appellants resigned their membership in the union and objected
to providing continued financial support, the First Amendment does not preclude
the enforcement of “legal obligations” that are bargained-for and “self-imposed”
under state contract law. Cohen v. Cowles Media Co., 501 U.S. 663, 668-71
(1991). The provisions authorizing the withholding of dues and making that
authorization irrevocable for certain periods were in clear, readable type on a
simple one-page form, well within the ken of unrepresented or lay parties.
Moreover, temporarily irrevocable payment authorizations are common and
enforceable in many consumer contracts—e.g., gym memberships or cell phone
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contracts—and we conclude that under state contract law those provisions should
be similarly enforceable here.
Appellants’ complaint expressly challenges only the dues irrevocability
provision and the continued deduction of dues after Appellants resigned. In the
wake of Janus v. American Federation of State, County, and Municipal Employees,
Council 31, 138 S. Ct. 2448 (2018), Appellants now wish to argue that their
consent to the deduction of dues was impermissible from the outset and violated
their First Amendment rights.
Importantly however, this claim is not properly before us and so we need not
address the adequacy of Appellants’ putative waivers. As Appellants’ counsel
himself acknowledged at oral argument, this broader claim is a departure from the
actual allegations of the complaint, which was never amended. Nowhere in the
complaint do Appellants allege that they did not initially consent to the dues
deductions, nor did they object to any fees deducted prior to their resignations or
seek recovery of pre-resignation dues deductions. Appellants are necessarily
bound by the allegations and claims in their complaint. See Ecological Rights
Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 510-11 (9th Cir. 2013) (declining to
consider a new argument that would effectively qualify as an attempt to amend the
operative complaint on appeal). Because Appellants’ complaint impliedly
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concedes that they initially agreed to pay union dues and only objects to later
attempts to escape the terms of that membership card agreement, we need not
inquire into whether Appellants’ initial decision to enter into the agreement
constituted an adequate waiver.
Accordingly, we affirm the district court’s order granting summary
judgment to Washington state and SEIU.
AFFIRMED.
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