Marsh v. AFSCME Local 3299 ( 2020 )

Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 1 of 24 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 TERRANCE MARSH, et al., No. 2:19-cv-02382-JAM-DB 8 Plaintiffs, 9 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING 10 AFSCME LOCAL 3299, et al., PLAINTIFFS’ MOTION TO STRIKE 11 Defendants. 12 13 Plaintiffs, ten University of California employees, bring 14 this action against Attorney General Xavier Becerra, UC President 15 Janet Napolitano, and AFSCME Local 3299 (“the Union”) under 16 Section 1983 of the Civil Rights Act. First Am. Compl. (“FAC”), 17 ECF No. 1. Plaintiffs allege Cal. Gov. Code §§ 1157.3(b) and 18 1157.12 (collectively, “the SB 866 statutes”) created a fee- 19 deduction scheme in which “employee organizations” such as the 20 Union exercise complete control over their member-resignation and 21 fee-deduction policies. FAC ¶ 1. Exercising this control, the 22 Union designed a “multi-step revocation process,” that made it 23 “effectively impossible” for Plaintiffs “to resign Union 24 membership or revoke Union dues and fee deductions.” Id. As a 25 result, Plaintiffs remained members of and contributors to the 26 Union long after they wished to resign. 27 Complying with the SB 866 statutes, UC continued to deduct 28 Union-related fees from its employees until the Union certified 1 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 2 of 24 1 Plaintiffs resignations and revocations. See Cal. Gov. 2 1157.12(a). Plaintiffs argue the SB 866 statutes, and 3 Defendants’ participation in the system these provisions create, 4 violate their constitutional rights. Specifically, Plaintiffs 5 argue Defendants violated their First Amendment right to resign 6 from a union, their First Amendment right to be free from 7 compelled speech, and their Fourteenth Amendment procedural due 8 process rights. FAC ¶¶ 157-172. They seek monetary, 9 declaratory, and injunctive relief for these alleged violations. 10 FAC at 24-25. 11 Becerra, Napolitano, and the Union each filed motions to 12 dismiss.1 Mot. to dismiss by Xavier Becerra (“Becerra Mot.”), 13 ECF No. 20; Mot. to dismiss by Janet Napolitano (“Napolitano 14 Mot.”), ECF No. 23; Mot. to Dismiss by AFSCME Local 3299 (“Union 15 Mot.”). Plaintiffs opposed these motions. Opp’n by Kiska Carter 16 et al. to Becerra and Napolitano Mots. (“Opp’n to State”), ECF 17 No. 36; Opp’n by Kiska Carter, et al. to Union Mot. (“Opp’n to 18 Union”), ECF No. 37. Each Defendant then filed a reply. Reply 19 by Janet Napolitano (“Napolitano Reply”), ECF No. 38; Reply by 20 Xavier Becerra (“Becerra Reply”), ECF No. 39; Reply by AFSCME 21 Local 3299 (“Union Reply”), ECF No. 40. 22 Following the parties’ motion-to-dismiss briefings, 23 Plaintiffs filed a motion to strike their previously-filed 24 opposition briefs and substitute them with briefs complying with 25 the Court’s page limits. Plfs.’ Mot. to Strike, ECF No. 41. 26 27 1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for June 16, 2020. 2 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 3 of 24 1 Becerra and the Union both oppose this motion. Union Opp’n to 2 Mot. to Strike (“Union Opp’n), ECF No. 42; Becerra Opp’n to Mot. 3 to Strike (“Becerra Opp’n”), ECF No. 43. 4 For the reasons discussed below, the Court denies 5 Plaintiffs’ motion to strike and grants Defendants’ motions to 6 dismiss. 7 8 I. FACTUAL ALLEGATIONS 9 The parties are familiar with the factual background of this 10 case—it is set forth extensively in the complaint, the parties’ 11 briefings, and the Court’s prior orders. The Court also 12 highlights material allegations throughout this decision. The 13 Court therefore does not need to restate those allegations here. 14 15 II. OPINION 16 A. Motion to Strike 17 In response to Defendants’ motions to dismiss, Plaintiffs 18 filed two opposition briefs—both in violation of the Court’s 19 standing order on page limits. See Opp’n to State (22 pages); 20 Opp’n to Union (24 pages); see also Order re Filing Requirements 21 at 1, ECF No. 3-2. The standing order limits memoranda of law 22 in opposition to motions to dismiss to fifteen pages “[u]nless 23 prior permission has been granted.” Order re Filing 24 Requirements at 1. 25 Plaintiffs later discovered their error. Two days after 26 Defendants’ motions to dismiss were fully briefed, Plaintiffs 27 filed a motion to strike their nonconforming opposition briefs 28 and substitute them with conforming briefs. ECF No. 41. 3 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 4 of 24 1 Plaintiffs’ counsel represents that because they “were working 2 remotely due to the coronavirus pandemic and related shelter-in- 3 place orders, [they] mistakenly conflated the Court’s 25-page 4 per brief limit . . . with the Court’s 15-page rule [for motions 5 to dismiss.]” Mot. to Strike at 1-2. 6 The Court finds Plaintiffs did not make a showing of good 7 cause in support of their motion to strike. As the Union 8 argues, Plaintiffs’ counsel fail to explain the relationship 9 between teleworking and their failure to comply with the Court’s 10 page limits. Union Opp’n at 3. Whether at home or in the 11 office, counsel would have had to access the Court’s docket 12 online. The Court appreciates the disruptive effect COVID-19 13 has had, and continues to have, on people’s personal and 14 professional lives. But Plaintiffs’ counsel does not argue 15 their inadvertence flowed from any specific disruption. Rather, 16 they rely on a vague reference to the coronavirus pandemic to 17 excuse their error. The Court does not find this generalized 18 explanation rises to the level of “good cause”—particularly 19 given Defendants filed their motions to dismiss by February 12. 20 Plaintiffs’ counsel had from mid-February to early June to 21 acquaint themselves with the Court’s rules and file conforming 22 opposition briefs. 23 That being said, the Court recognizes one of Plaintiffs’ 24 opposition briefs responded to Becerra’s and Napolitano’s 25 separately-filed motions. Mot. to Strike at 2. Had Plaintiffs 26 opposed Becerra’s and Napolitano’s motions with separate briefs, 27 they could have availed themselves of two 15-page page limits: 28 30 pages total. Rather, Plaintiffs responded to both motions 4 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 5 of 24 1 with one 22-page brief, honoring the spirit—albeit not the text— 2 of the Court’s standing order. Exercising its “considerable 3 latitude [to] manag[e ] parties’ motion practice,” the Court 4 declines to sanction Plaintiffs for this technical violation. 5 See Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 6 2002). 7 The Court does not, however, find Plaintiffs’ nonconforming 8 opposition to the Union’s motion calls for similar leniency. 9 Even if the Court excuses the 12 pages’ worth of arguments 10 incorporated by reference, see Opp’n to Union at 6, Plaintiffs’ 11 opposition brief exceeds the Court’s page limit by nine pages. A 12 violation of the Court’s standing order requires the offending 13 counsel (not the client) to pay $50.00 per page over the page 14 limit to the Clerk of Court. Order re Filing Requirements at 1. 15 Moreover, the Court does not consider arguments made past the 16 page limit. Id. Plaintiffs’ counsel must therefore send a check 17 payable to the Clerk for the Eastern District of California for 18 $450.00 no later than seven days from the date of this Order. 19 B. Motions to Dismiss 20 Under Federal Rule of Civil Procedure 12(b)(1), a court 21 must dismiss all claims over which it lacks subject-matter 22 jurisdiction. At the pleading stage, courts take all the 23 allegations in the complaint as true, then ask whether 24 plaintiffs adequately alleged subject-matter jurisdiction. 25 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121— 26 22 (9th Cir. 2010). 27 Becerra maintains the Court lacks jurisdiction over 28 Plaintiffs’ First and Fourteenth Amendment challenges to the SB 5 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 6 of 24 1 866 statutes. Becerra 5-8. He argues all ten plaintiffs lack 2 standing to seek prospective relief on these claims. Id. at 5- 3 7. He also argues Plaintiffs’ requests for prospective relief 4 are moot in several respects. Id. at 7-8. The Union joins 5 these arguments in part. See Union Mot. at 7-8. As a 6 prerequisite to exercising jurisdiction, the Court must 7 independently satisfy itself that each plaintiff has standing, 8 Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139-40 (9th Cir. 9 2013), and that no claim is moot, Demery v. Arpaio, 378 F.3d 10 1020, 1025 (9th Cir. 2004). 11 1. Standing 12 Under Article III of the U.S. Constitution, judicial power 13 is limited to “Cases” and “Controversies.” U.S. CONST., art. 14 III. The requirement that plaintiffs have standing to sue is 15 “rooted in the traditional understanding” of the case-or- 16 controversy requirement. Spokeo, Inc. v. Robins, 136 S. Ct. 17 1540, 1548 (2016). To satisfy the “irreducible constitutional 18 minimum of standing” plaintiffs must demonstrate: (1) they 19 suffered an “injury in fact” that is “concrete and 20 particularized” and “actual or imminent”; (2) a causal 21 connection between their injury and the defendant’s conduct; and 22 (3) a likelihood that a favorable decision would redress their 23 injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 24 (1992). These elements “are not mere pleading requirements[,] 25 but rather an indispensable part of the plaintiff’s case.” Id. 26 a) Claims for Damages 27 Plaintiffs seek damages from the Union for its alleged 28 violation of their First and Fourteenth Amendment rights. FAC 6 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 7 of 24 1 at 25, ¶¶ vii, viii. Plaintiffs allege the Union restricted 2 their ability to resign, directed UC to deduct membership dues 3 and non-member fees from Plaintiffs’ paychecks without their 4 consent, and failed to provide procedural safeguards against 5 compelled speech. See FAC. Independent of whether these 6 allegations give rise to cognizable legal theories, the Court 7 finds Plaintiffs allege injuries that are sufficiently “actual” 8 and “concrete” to confer standing. See Jacobs v. Clark County 9 School Dist., 526 F.3d 419, 426-27 (9th Cir. 2008) (finding 10 plaintiff suffered injury in fact when he was deprived of right 11 to be free from compelled speech); San Diego County Gun Rights 12 Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996) (“Economic 13 injury is clearly a sufficient basis for standing.”). 14 Moreover, Plaintiffs allege these injuries are “fairly 15 traceable” to the Union’s conduct. Specifically, Plaintiffs 16 contend the Union’s enforcement of its resignation and fee- 17 deduction policies directly impeded Plaintiffs’ ability to 18 (1) resign from the Union, and (2) cancel union-related 19 deductions. See FAC ¶¶ 33-156. These barriers are inextricably 20 bound up with Plaintiffs’ claimed injuries. 21 Finally, if Plaintiffs prevail, the Court could redress 22 this injury with an award of damages. Jacobs, 526 F.3d at 426- 23 27; San Diego County Gun Rights Committee, 98 F.3d at 1130-31. 24 Plaintiffs therefore satisfy the redressability requirement. 25 The Court finds all ten Plaintiffs have standing to bring 26 their damages claims against the Union. 27 b) Claims for Prospective Relief 28 Plaintiffs also seek declaratory and injunctive relief 7 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 8 of 24 1 against Becerra, Napolitano, and the Union. FAC at 24-25. As 2 Becerra argues, Plaintiffs face a more exacting injury-in-fact 3 requirement when requesting prospective relief. Becerra Mot. at 4 6. “In the particular context of injunctive and declaratory 5 relief, a plaintiff must show that he has suffered or is 6 threatened with a concrete and particularized legal harm . . . 7 coupled with a sufficient likelihood that he will again be 8 wronged in a similar way.” Cantanella v. State of California, 9 304 F.3d 843, 852 (9th Cir. 2002). Plaintiffs seek prospective 10 relief on each of their alleged injuries. 11 i. Right to Resign 12 Each plaintiff lacks standing to seek prospective relief 13 against any Defendant on their right-to-resign claim. 14 Plaintiffs argue Defendants’ “deliberate obfuscation” of the 15 union-resignation process satisfies the injury-in-fact 16 requirement. FAC ¶ 3. But, even assuming the truth of this 17 injury, Plaintiffs are unlikely to “again be wronged in a 18 similar way.” See Cantanella, 304 F.3d at 852. The complaint 19 contains admissions from eight of the ten plaintiffs that they 20 no longer belong to the Union. FAC ¶¶ 41 (Marsh admission), 81 21 (Van Antwerp admission), 91 (Macomber admission), 103 (Jordan 22 admission), 117 (Davidson admission), 128 (Grosse admission), 23 140 (Dioso admission), 153 (Carter admission). And Mendoza does 24 not allege one way or the other whether he is still a member of 25 the Union and whether Defendants are likely to prevent him from 26 resigning in the future. 27 As of January 24, 2020, only Edde lacked clarity on whether 28 she still belonged to the Union. See FAC ¶ 58 (“To date, the 8 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 9 of 24 1 Union has not confirmed whether she is still a union member.”). 2 That ambiguity has since been resolved: she isn’t. See Ex. 7 to 3 Union Mot., ECF No. 30-7; see also Safe Air for Everyone v. 4 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In resolving a 5 factual attack on jurisdiction, the district court may review 6 evidence beyond the complaint without converting the motion to 7 dismiss into a motion for summary judgment.”). 8 Plaintiffs do not allege they intend to re-join the Union. 9 Nor is the Court persuaded by Plaintiffs’ arguments that the 10 Union might, at any time, reinstitute their memberships without 11 consent. Opp’n to State at 18. This suggestion is wholly 12 speculative—even taking as true Mendoza’s allegation that the 13 Union forged his 2017 membership form. See FAC ¶¶ 74-75. 14 Plaintiffs’ belief that Defendants will force Union membership 15 on unwilling participants via forgery or other unsavory means is 16 just that: a belief. Standing to bring claims for prospective 17 relief requires more than speculative allegations of future 18 injury. Mayfield v. U.S., 599 F.3d 964, 970 (9th Cir. 2010) 19 (Neither “speculation [n]or subjective apprehension about future 20 harm support[s] standing.”). Absent a likely-recurring injury, 21 Plaintiffs lack standing to seek prospective relief on a right- 22 to-resign claim against Becerra, Napolitano, or the Union. The 23 Court dismisses these claims without prejudice. Fleck and 24 Assocs., Incl v. Phoenix, City of, an Arizona Mun. Corp., 471 25 F.3d 1100, 1106-07 (9th Cir. 2006) (dismissing claims without 26 prejudice for lack of standing). 27 ii. Compelled Speech 28 Plaintiffs also argue they were injured when Defendants 9 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 10 of 24 1 required them to pay membership dues and non-member service fees 2 to the Union absent clear and convincing evidence of a First 3 Amendment waiver. FAC ¶ 3. But Marsh, Edde, Davidson, and 4 Mendoza concede UC is no longer deducting Union-related fees 5 from their paychecks. See Opp’n to State at 18 (“Marsh, 6 Mendoza, Edde, and Davidson’s dues deductions have ceased.”). 7 They are therefore unlikely to suffer a comparable injury again 8 in the future. See Cantanella, 304 F.3d at 852. As already 9 discussed, the allegations in the complaint do not support 10 Plaintiffs’ argument that the Defendants are likely to 11 reinstitute deductions against Marsh, Mendoza, Edde, or Davidson 12 without consent. Absent, a likely-recurring injury, these 13 Plaintiffs lack standing to seek prospective relief against 14 Defendants on their compelled speech claim. The Court dismisses 15 this claim without prejudice 16 The six remaining plaintiffs—Macomber, Jordan, Van Antwerp, 17 Grosse, Dioso, and Carter—allege UC still deducts a non-member 18 service fee from their paychecks. FAC ¶¶ 81, 84, 91, 96, 103, 19 112, 128, 132, 140, 145, 153, 156. Because the fee “renews each 20 year on the anniversary date of the employee’s union 21 membership,” FAC ¶ 28, there is a “sufficient likelihood” that 22 they will suffer this alleged harm again in the future. Contra 23 Lyons, 461 U.S. at 107-08. Macomber, Jordan, Van Antwerp, 24 Grosse, Dioso, and Carter therefore alleged an injury in fact. 25 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter 26 likewise allege Napolitano and the Union caused this injury. 27 The Union tells UC who is responsible for dues and non-member 28 fees. FAC ¶ 23. UC then withdraws the deductions from the 10 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 11 of 24 1 designated employees’ paychecks and remits it to the Union. FAC 2 ¶ 1. The Court could redress this injury by issuing the 3 permanent injunction Plaintiffs request. See FAC at 24, ¶ vi. 4 These Plaintiffs therefore have standing to seek prospective 5 relief from Napolitano and the Union on their compelled speech 6 claim. 7 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter do 8 not, however, adequately allege their compelled speech injuries 9 are fairly traceable to Becerra by way of the SB 866 statutes. 10 SB 866 amended the California Government Code to include section 11 1157.12 and subdivision (b) of section 1157.3. Section 1157.12 12 sets forth procedures for public employers to adjust or stop 13 payroll deductions for union membership. Cal. Gov. Code 14 § 1157.12. It requires public employers to rely solely on 15 certifications by “employee organizations” to determine which 16 employees have authorized payroll deductions. See Cal. Gov. 17 Code § 1157.12(a). Employees cannot change or cancel those 18 authorizations directly through their public employer; rather, 19 public employers must “[d]irect employee requests to cancel or 20 change deductions for employee organizations to the employee 21 organization” itself. See Cal. Gov. Code § 1157.12(b). The 22 revocability of an employee’s prior authorization is then 23 “determined by the terms of the authorization.” See Cal. Gov. 24 Code § 1157.3(b). 25 As they apply here, the SB 866 statutes give the Union sole 26 authority to tell UC when UC employees are responsible for 27 Union-related fees. See Cal. Gov. Code §§ 1157.3(b), 1157.12. 28 Plaintiffs contend the state’s requirement that UC defer to the 11 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 12 of 24 1 Union’s resignation and fee-revocation policies caused 2 Plaintiffs’ compelled-speech injury. Opp’n to State at 17. The 3 Court disagrees. The causal connection between Plaintiffs’ 4 injuries and California’s broad grant of authority is too 5 tenuous to confer standing on Plaintiffs’ compelled-speech 6 claims. Plaintiffs do not allege the SB 866 provisions require 7 or encourage the Union’s specific fee-deduction policies. Nor 8 do they allege these provisions compelled Plaintiffs to join the 9 Union or authorize Union-related payroll deductions in the first 10 place. See Becerra Mot. at 10. Plaintiffs entered into a 11 private agreement with the Union and UC—those agreements would 12 exist even if sections 1157.3 and 1157.12 did not. The Court 13 therefore finds Macomber, Jordan, Van Antwerp, Grosse, Dioso, 14 and Carter’s non-member service fee payments are not fairly 15 traceable to Becerra viz. the SB 866 statutes. Absent an 16 adequate causal connection, these plaintiffs lack standing to 17 seek prospective relief on their compelled speech claim against 18 Becerra. The Court dismisses this claim without prejudice. 19 iii. Due Process 20 Finally, Plaintiffs seek prospective relief against 21 Becerra, Napolitano and the Union for their procedural due 22 process claim. FAC ¶¶ 163-64. Plaintiffs allege they only 23 signed the Union’s membership forms because (1) they believed 24 Union membership was a mandatory condition of their employment, 25 (2) a colleague told them to, and/or (3) they did not know they 26 had a First Amendment right not to join the Union. FAC ¶¶ 30- 27 31, 50-51, 61-62, 77-78, 87-88, 98, 100, 114-15, 124-25, 134-35, 28 147-48. One plaintiff contends he never signed a membership 12 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 13 of 24 1 form at all. FAC ¶¶ 74-75. 2 Plaintiffs argue Defendants had a constitutional obligation 3 to ensure the Union did not treat these compelled membership 4 agreements as knowing, intelligent, and voluntary waivers of 5 Plaintiffs’ First Amendment Rights. FAC ¶¶ 2-3, 163-64. 6 Instead, Defendants created a deduction scheme where (1) unions 7 exercise complete control over union-related payroll deductions, 8 and (2) neither the state nor public employers corroborate 9 public employees’ consent to these deductions. Id.; see also 10 Opp’n to State at 17-18. This procedural deficiency, Plaintiffs 11 argue, amounts to an injury in fact. 12 But as discussed above, only Macomber, Jordan, Van Antwerp, 13 Grosse, Dioso, and Carter are likely to continue paying Union- 14 related fees as a result of this uninformed decision. FAC 15 ¶¶ 81, 84, 91, 96, 103, 112, 128, 132, 140, 145, 153, 156. 16 These are the only plaintiffs who are likely to suffer future 17 harm from Defendants’ alleged due process violation. 18 Accordingly, only Macomber, Jordan, Van Antwerp, Grosse, Dioso, 19 and Carter alleged an injury in fact sufficient to confer 20 standing on this claim. 21 These plaintiffs allege their procedural injury is fairly 22 traceable to Becerra and the Union. Cal. Gov. Code § 1157.3 23 requires public employers to “honor employee authorizations” for 24 union-related payroll deductions. Section 1157.12 then requires 25 public employers to exclusively rely upon employee 26 organizations’ representations about whether an employee has 27 authorized a payroll deduction. Cal. Gov. Code § 1157.12(a). 28 The organization need not present any proof of that 13 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 14 of 24 1 authorization unless a dispute arises. Id. The Court finds the 2 causal connection between the scheme SB 866 creates and 3 Plaintiffs’ due process injuries are sufficiently direct to 4 confer standing. As is the causal link between the Union’s 5 alleged conduct in procuring employee authorizations and 6 Plaintiffs alleged injuries. See FAC ¶¶ 30-31, 50-51, 61-62, 7 77-78, 87-88, 98, 100, 114-15, 124-25, 134-35, 147-48. With a 8 favorable decision, the Court could redress Macomber, Jordan, 9 Van Antwerp, Grosse, Dioso, and Carter’s claims for prospective 10 relief against Becerra and the Union. See FAC at 24 (i) (citing 11 28 U.S.C. §§ 2201, 2202). These plaintiffs have standing to 12 seek prospective relief on their due process claims against the 13 Union and Becerra. 14 Plaintiffs’ due process injuries are not, however, fairly 15 traceable to Napolitano. California law does not allow public 16 employers to create procedural safeguards for public employees 17 in this context. Rather, it requires “public employers other 18 than the State” to rely exclusively on an employee 19 organization’s “certification” that one of its members has 20 authorized a payroll deduction. Cal. Gov. Code § 1157.12(a). 21 Without a sufficient causal connection between Napolitano’s 22 conduct and Plaintiffs’ alleged injury, Macomber, Jordan, Van 23 Antwerp, Grosse, Dioso, and Carter lack standing to seek 24 prospective relief from Napolitano on their due process claim. 25 The Court dismisses this claim without prejudice. 26 iv. Summary–Standing for Prospective Relief 27 To summarize, no plaintiff has standing to seek prospective 28 relief on their right-to-resign claim; the Court dismisses this 14 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 15 of 24 1 claim without prejudice. Macomber, Jordan, Van Antwerp, Grosse, 2 Dioso, and Carter are the only plaintiffs who have standing to 3 seek prospective relief on the compelled speech and due process 4 claims. They have standing to bring their compelled speech 5 claim against the Union and Napolitano, and they have standing 6 to bring their due process claim against the Union and Becerra. 7 The Court dismisses all remaining claims for prospective relief 8 without prejudice. 9 2. Mootness 10 Article III of the Constitution also proscribes federal 11 courts from adjudicating moot claims. U.S. CONST., art. III; 12 Preiser v. Newkirk, 422 U.S. 395, 401 (1975). To pose a “live 13 case or controversy,” claims must be “definite and concrete”; 14 they must “touch[] the legal relations of parties having adverse 15 legal interests.” DeFunis v. Odegaard, 416 U.S. 312, 317 16 (1974). If a case does not present questions “affect[ing] the 17 rights of litigants in the case before [the court],” it is not a 18 case the court can decide. See Preiser, 422 U.S. at 401. 19 Plaintiffs’ request for prospective relief on their right- 20 to-resign claim is moot for the same reason each plaintiff lacks 21 standing to bring this claim. All ten plaintiffs have 22 successfully resigned from the Union. See FAC ¶¶ 41, 81, 91, 23 103, 117, 128, 140, 153; Hughes Decl., ¶ 11, ECF No 30-4; 24 Schuler Decl. ¶ 8; Exh. 7, ECF No. 30-7. No plaintiff alleges 25 they intend to rejoin. See Babb v. Cal. Teachers Assocs., 378 26 F.Supp.3d 857, 885-86 (C.D. Cal. 2019). 27 Marsh, Edde, Davidson, and Mendoza’s claims for prospective 28 relief on their due process and compelled speech claims are also 15 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 16 of 24 1 moot. They concede UC is no longer deducting Union dues or non- 2 member fees from their paychecks. See Opp’n to State at 18. 3 The Court cannot grant these plaintiffs prospective relief for 4 fees they are no longer paying. See Babb, 378 F.Supp.3d at 870- 5 71. Contrary to Plaintiffs’ arguments, the complaint does not 6 sufficiently allege Marsh, Edde, Davidson, and Mendoza’s claims 7 fall into the “capable of repetition, yet evading review” 8 exception to the mootness doctrine. See Few v. United Teachers 9 Los Angeles, No. 2:18-cv-09531-JLS-DFM, 2020 WL 633598, at *4-6 10 (C.D. Cal. Feb. 10, 2020). 11 Becerra contends Plaintiffs’ non-member status also moots 12 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter’s 13 claims for prospective relief on their due process and compelled 14 speech claims, as “the SB 866 statutes only govern the 15 administration of dues deductions for existing members” of 16 employee organizations. Becerra Mot. at 8 (emphasis in 17 original). This argument lacks support. The cases Becerra 18 cites, Hernandez v. AFSCME Cal., 386 F.Supp.3d 1300, 1306-08 19 (E.D. Cal. 2019), appeal docketed, No. 20-15076 (9th Cir. Jan 20 16, 2020) and Babb v. Cal. Teachers Ass’n, 378 F. Supp. 3d 857, 21 886 (C.D. Cal. 2019), appeal docketed, No. 19-55692 (9th Cir. 22 June 18, 2019) did not adopt or endorse this reading of the SB 23 866 statutes. Nor does the text of Cal. Gov. Code §§ 1157.3 and 24 1157.3 indicate the statutes’ purview is as limited as Becerra 25 suggests. Macomber, Jordan, Van Antwerp, Grosse, Dioso, and 26 Carter continue to pay non-member fees as a result of 27 Defendants’ alleged compelled speech and due process violations— 28 notwithstanding their successful resignations. See FAC ¶¶ 81, 16 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 17 of 24 1 84, 91, 96, 103, 112, 128, 132, 140, 145, 153, 156. The Court 2 finds these claims are not moot. 3 3. Agency Jurisdiction 4 Napolitano and the Union argue Plaintiffs’ claims fall 5 within PERB’s exclusive jurisdiction because their “allegations 6 of improper Union conduct arise out of, and would form the basis 7 for, unfair practice allegations . . . under the Higher 8 Education Employer-Employee Relations Act (“HEERA”).” 9 Napolitano Mot. at 6; Union Mot. at 1. PERB possesses 10 “exclusive jurisdiction” over matters covered by HEERA. Cal. 11 Gov. Code § 3563.2. This jurisdiction extends to “[t]he initial 12 determination as to whether the charges of unfair practices are 13 justified, and, if so, what remedy is necessary to effectuate 14 the purposes of [the Act].” Id. PERB’s preemptive reach not 15 only covers activities that are “protected or prohibited” by 16 HEERA; it also encompasses conduct that HEERA “arguably” 17 protects or prohibits. Cf. Gabriele v. Service Employees Int’l 18 Union, Local 1000, -- F. Supp. 3d --, 2:19-cv-00292-WBS-KJN, 19 2020 WL 3163072, at *4-5 (E.D. Cal. June 12, 2020) (citing El 20 Rancho Unified School Dist. V. National Educ. Assn., 33 Cal.3d 21 946, 952-53 (1983)). 22 Parties cannot evade PERB’s jurisdiction with artful 23 pleading or by arguing the conduct challenged does not 24 constitute an “unfair [labor] practice.” Id. at *5 (“PERB 25 instead has jurisdiction to adjudicate both unfair practices and 26 whether conduct is protected or prohibited by the act.”). As 27 this district recently explained: 28 [W]hat matters is whether the underlying conduct on 17 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 18 of 24 1 which the suit is based -- however described in the complaint -- may fall within PERB's exclusive 2 jurisdiction. (citation omitted); cf. Link, 142 Cal. App. 3d at 769, 191 Cal.Rptr. 264 (finding that claims 3 fall under PERB's exclusive jurisdiction where plaintiffs alleged only constitutional challenges). 4 The preemption question therefore turns on whether plaintiffs' claims arise from conduct that is 5 protected, prohibited, or arguably protected or prohibited under the [Act], regardless of the legal 6 labels assign[ed] to the[] claims. 7 Id. 8 Following this Court’s justiciability analysis, a handful 9 of claims remain: Plaintiffs’ three claims for damages against 10 the Union; Macomber, Jordan, Van Antwerp, Grosse, Dioso, and 11 Carter’s request for prospective relief against Becerra and the 12 Union on their due process claim; and Macomber, Jordan, Van 13 Antwerp, Grosse, Dioso, and Carter’s request for prospective 14 relief against Napolitano and the Union on their compelled 15 speech clam. The Court finds HEERA arguably prohibits the 16 conduct underlying the Union’s right-to-resign claim for damages 17 against the Union. Under Cal. Gov. Code § 3571.1(b), “it [is] 18 unlawful for an employee organization to . . . interfere with, 19 restrain, or coerce employees because of their exercise of 20 rights guaranteed by this chapter.” Plaintiffs’ right-to-resign 21 claim contends the Union’s policies and conduct served as a 22 restraint on their ability to resign from the organization. See 23 FAC. The right to accept or refuse union membership is one 24 HEERA confers. Cal. Gov. Code § 3565. Because the conduct 25 underlying Plaintiffs’ right-to-resign claim against the Union 26 is arguably conduct HEERA prohibits, PERB has exclusive 27 jurisdiction over that claim. That Plaintiffs’ statutory right 28 18 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 19 of 24 1 may overlap with a right conferred by the U.S. Constitution does 2 not change this result. Cf. Link, 142 Cal. App. 3d at 769. The 3 Court dismisses this right-to-resign claim for damages with 4 prejudice. 5 Moreover, the Court finds Plaintiffs’ compelled-speech 6 claim, both for damages against the Union and for prospective 7 relief against the Union and Napolitano, fall within PERB’s 8 exclusive jurisdiction. Plaintiffs’ compelled speech claim sets 9 itself out as a right that naturally flows from Janus, 138 S. 10 Ct. at 2486. In its farthest-reaching form, Janus proscribed 11 state and public-sector unions from “extract[ing] agency fees 12 from nonconsenting employees.” Id. Notably, in the context of 13 Janus, “nonconsenting employees” referred to individuals who 14 were required to pay union fees even though they specifically 15 refused union membership. Macomber, Jordan, Van Antwerp, 16 Grosse, Dioso, and Carter, argue they, too, are “nonconsenting 17 employees” because their decision to join the Union was not 18 knowing, intelligent, and voluntary. FAC ¶¶ 2-3, 163-64. 19 Rather, they consented to Union membership because UC and the 20 Union either led them to believe union membership was required 21 or simply failed to inform them that union membership was 22 optional. FAC ¶¶ 77-78, 87-88, 99-100, 124, 134-35, 148. 23 Viewed in its simplest form, Plaintiffs’ compelled-speech 24 claim, must like their right-to-resign claim, alleges 25 interference with their “right to refuse to join employee 26 organizations or to participate in the activities of those 27 organizations.” Cal. Gov. Code § 3565. Sections 3571 28 (“Unlawful employer practices”) and 3571.1 (“Unlawful employee 19 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 20 of 24 1 organization practices”) arguably proscribe this type of 2 obstruction. Cal. Gov. Code §§ 3571(a), 3571.1(a). Because the 3 conduct underlying Plaintiffs’ compelled-speech claim against 4 the Union and Napolitano is arguably conduct HEERA prohibits, 5 PERB has exclusive jurisdiction over this claim as well. The 6 Court dismisses this compelled speech claim with prejudice. 7 The Court does not, however, find the conduct underlying 8 Plaintiffs’ procedural due process claim against the Union and 9 Becerra is conduct HEERA arguably prohibits or protects. The 10 Court retains jurisdiction over this claim. 11 4. Failure to State a Claim 12 Having resolved Defendants’ jurisdictional challenges, the 13 Court turns to the question of whether Plaintiffs have stated a 14 claim for which relief can be granted. Fed. R. Civ. Proc. 15 12(b)(6). Plaintiffs’ procedural due process claim2 is all that 16 remains. The “standard [procedural due process] analysis . . . 17 proceeds in two steps.” Swarthout v. Cooke, 526 U.S. 216, 219 18 (2011). A court must “first ask whether there exists a liberty 19 or property interest of which a person has been deprived.” Id. 20 If so, the court then asks “whether the procedures [protecting 21 that right] were constitutionally deficient.” Id. (citing 22 Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 23 (1989). 24 Plaintiffs argue they have a “property interest in their 25 salary and a constitutional interest against compelled speech.” 26 2 To clarify, this claim consists of all Plaintiffs’ request for 27 damages against the Union, along with Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter’s request for prospective 28 relief against the Union and Becerra. 20 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 21 of 24 1 Opp’n to State at 21. As a preliminary matter, the Court agrees 2 with Becerra that Plaintiffs did not assert their “property 3 interest” theory of liability in their complaint. See Becerra 4 Reply at 4 (citing Opp’n to State at 2). “Plaintiffs’ failure to 5 articulate these alleged interests in their Complaint dooms, on 6 its own, their assertion of a due process violation on this 7 basis.” Id.; see also Provencio v. Vazquez, 258 F.R.D. 626, 639 8 (E.D. Cal. 2009). 9 The Court also finds the “liberty interest” theory of due 10 process liability largely comes up short. With this theory, 11 Plaintiffs purport to rely upon the liberty interest Janus 12 created. 138 S. Ct. at 2460. But Janus only discussed the rights 13 of public employees who refused union membership from the get-go; 14 that is, public employees who never signed union membership 15 agreements. Id. Janus did not, as Plaintiffs suggest, provide a 16 basis for invalidating union membership agreements for employees 17 who, post-Janus, come to regret their membership decision. See 18 Cooley v. Cal. Statewide Law Enforcement Assn., 385 F.Supp.3d 19 1077, 1079-80 (E.D. Cal. 2019). Nor does the First Amendment, 20 more broadly, “confer . . . a constitutional right to disregard 21 promises that would otherwise be enforced under state law.” 22 Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991). Save for 23 Mendoza, FAC ¶¶ 74-75, Plaintiffs’ Union membership, membership 24 dues, and nonmember services fees flowed from the express terms 25 of contracts Plaintiffs entered into. See FAC ¶¶ 30, 50, 87, 26 114, 122, 134, 147. Consequently, only Mendoza adequately 27 alleges the deprivation of a liberty interest comparable to the 28 one Janus recognized. 21 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 22 of 24 1 But identifying a protected liberty interest is only one of 2 two requirements. To state a procedural due process claim, a 3 plaintiff must also allege how the procedures safeguarding that 4 interest were constitutionally deficient. See Kentucky Dept. of 5 Corrections, 490 U.S. at 460. This, Mendoza failed to do. 6 Mendoza did not allege what procedures were constitutionally 7 required, or how the Union3 or Becerra, through SB 866, fell 8 short of those requirements. Moreover, the defense of this claim 9 Plaintiffs included in their opposition brief fell outside the 10 page limit. The Court did not consider these arguments. 11 The Court finds Plaintiffs failed to state a due process 12 claim for either damages or prospective relief. The Court 13 therefore dismisses this claim without prejudice. 14 15 III. ORDER 16 For the reasons set forth above, the Court DENIES 17 Plaintiffs’ motion to strike and GRANTS Defendants’ motions to 18 dismiss. Plaintiffs lack standing to seek prospective relief on 19 their right-to-resign claims against all three Defendants. These 20 claims are also moot. Accordingly, the Court DISMISSES these 21 claims WITHOUT PREJUDICE. 22 Moreover, Marsh, Mendoza, Edde, or Davidson lack standing to 23 seek prospective relief on their compelled-speech and due process 24 claims against all three Defendants. These claims are also moot. 25 The Court therefore DISMISSES them WITHOUT PREJUDICE. 26 3Because Plaintiffs failed to allege the Union maintains 27 constitutionally-deficient procedures, the Court declines to resolve the question of whether the Union’s failure to enact 28 sufficient procedural safeguards amounts to “state action.” 22 Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 23 of 24 1 Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter 2 lack standing to seek prospective relief on their due process 3 claim against Napolitano and lack standing to seek prospective 4 relief on their compelled speech claim against the Union. The 5 Court DISMISSES these claims WITHOUT PREJUDICE. 6 The California Public Employment Relations Board has 7 exclusive jurisdiction over: (1) Plaintiffs’ right-to-resign and 8 compelled speech claims for damages against the Union; and 9 (2) Macomber, Jordan, Van Antwerp, Grosse, Dioso, and Carter’s 10 request for prospective relief on their compelled speech claims 11 against the Union and Napolitano. The Court DISMISSES these 12 claims WITH PREJUDICE. 13 Finally, Plaintiffs fail to state a procedural due process 14 claim. The Court DISMISSES Plaintiffs’ due process claim for 15 damages against the Union WITHOUT PREJUDICE. The Court also 16 DISMISSES Macomber, Jordan, Van Antwerp, Grosse, Dioso, and 17 Carter’s request for prospective relief against the Union and 18 Becerra WITHOUT PREJUDICE. Attached hereto is an exhibit 19 summarizing the Court’s decision. 20 If Plaintiffs elect to amend their complaint with respect to 21 these claims, they shall file an Amended Complaint within twenty 22 (20) days of this Order. Defendants’ responsive pleading is due 23 twenty (20) days thereafter. 24 IT IS SO ORDERED. 25 Dated: July 27, 2020 26 27 28 23 2:19-cv-02382 Marsh, et al. v. Becerra, et al. Case 2:19-cv-02382-JAM-DB Document 46 Filed 07/28/20 Page 24 of 24 Prospective Relief Money Damages Becerra Napolitano Union Union Marsh Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Edde Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Mendoza Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Van Antwerp Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Macomber Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Right to Resign Jordan Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Davidson Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Grosse Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Dioso Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Carter Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Marsh Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Edde Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Mendoza Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Van Antwerp Standing PERB Jurisdiction* PERB Jurisdiction** PERB Jurisdiction* Macomber Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Compelled Speech Jordan Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Davidson Standing, Mootness Standing, Mootness Standing, Mootness PERB Jurisdiction* Grosse Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Dioso Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Carter Standing PERB Jurisdiction* PERB Jurisdiction* PERB Jurisdiction* Marsh Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Edde Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Mendoza Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Van Antwerp Failure to state a claim Standing Failure to state a claim Failure to state a claim Procedural Due Macomber Failure to state a claim Standing Failure to state a claim Failure to state a claim Process Jordan Failure to state a claim Standing Failure to state a claim Failure to state a claim Davidson Standing, Mootness Standing, Mootness Standing, Mootness Failure to state a claim Grosse Failure to state a claim Standing Failure to state a claim Failure to state a claim Dioso Failure to state a claim Standing Failure to state a claim Failure to state a claim Carter Failure to state a claim Standing Failure to state a claim Failure to state a claim * -- The Court dismissed the claim with prejudice.