Summary
In Aliser v. SEIU Cal., 419 F.Supp.3d 1161 (N.D. Cal. 2019), a county was held not liable by successfully asserting a Monell related defense.
Summary of this case from Campos v. Fresno Deputy Sheriff's Ass'nOpinion
Case No. 19-cv-00426-VC
2019-12-10
Ruth ALISER, et al., Plaintiffs, v. SEIU CALIFORNIA, et al., Defendants.
Bradley A. Benbrook, Stephen Duvernay, Benbrook Law Group, Sacramento, CA, Jonathan Franklin Mitchell, Mitchell Law PLLC, Austin, TX, Talcott Jay Franklin, Talcott Franklin P.C., Dallas, TX, for Plaintiffs. Jeffrey B. Demain, Patrick Casey Pitts, Rebecca C. Lee, Scott A. Kronland, Stacey M. Leyton, Zoe Louise Palitz, Altshuler Berzon LLP, San Francisco, CA, Caren P. Sencer, Kerianne Ruth Steele, Eric Jason Wiesner, Weinberg, Roger & Rosenfeld A Professional Corporation, Alameda, CA, William Ross Warne, Annie Smith Amaral, Downey Brand LLP, Anthony Paul O'Brien, Office of the Attorney General Government Law Section, Sacramento, CA, for Defendants.
Bradley A. Benbrook, Stephen Duvernay, Benbrook Law Group, Sacramento, CA, Jonathan Franklin Mitchell, Mitchell Law PLLC, Austin, TX, Talcott Jay Franklin, Talcott Franklin P.C., Dallas, TX, for Plaintiffs.
Jeffrey B. Demain, Patrick Casey Pitts, Rebecca C. Lee, Scott A. Kronland, Stacey M. Leyton, Zoe Louise Palitz, Altshuler Berzon LLP, San Francisco, CA, Caren P. Sencer, Kerianne Ruth Steele, Eric Jason Wiesner, Weinberg, Roger & Rosenfeld A Professional Corporation, Alameda, CA, William Ross Warne, Annie Smith Amaral, Downey Brand LLP, Anthony Paul O'Brien, Office of the Attorney General Government Law Section, Sacramento, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
Re: Dkt. Nos. 107, 108, 109, 110, 111, 114, 118
VINCE CHHABRIA, United States District Judge
This lawsuit is one of many that have been filed in the wake of Janus v. American Federation of State, County, & Municipal Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). It is brought by 20 named plaintiffs who seek to represent multiple classes. It asserts ten "counts," and names 16 defendants. But many of the ten "counts" jumble together multiple disparate allegations or legal arguments, specifying neither the claim being asserted nor the particular defendant (or defendants) against whom the claim is made. Several of the counts are written in a largely incomprehensible fashion. It's obvious that many of the plaintiffs have been improperly joined in the same lawsuit, making it even more difficult to sift through the allegations. And in many respects the complaint fails to put the defendants on notice of the conduct for which they must defend themselves.
Despite all this, the defendants have made their best efforts to decipher the allegations in the complaint, and they have filed motions to dismiss. The motions are granted in part and denied in part.
1. Count 1 seeks a refund of payments made to public-sector unions prior to the Supreme Court's decision in Janus. Contrary to the characterization in the SEIU defendants' motion to dismiss, this count seeks reimbursement of payments by both plaintiffs who paid fair-share fees and plaintiffs who joined unions and paid membership dues. As to both groups of plaintiffs, these claims are dismissed with prejudice as against all defendants. The section 1983 claims by plaintiffs who paid only fair-share fees are dismissed because Janus does not entitle them to a refund of fair-share fees for the reasons stated in the following cases: Janus v. American Federation of State, County, and Municipal Employees, Council 31 , 942 F.3d 352, 367 (7th Cir. 2019) ; Carey v. Inslee , 364 F. Supp. 3d 1220, 1233 (W.D. Wash. 2019) ; Danielson v. American Federation of State, County, and Municipal Employees, Council 28 , 340 F. Supp. 3d 1083, 1087 (W.D. Wash. 2018) ; Cook v. Brown , 364 F. Supp. 3d 1184, 1192-93 (D. Or. 2019) ; Hough v. SEIU Local 521 , 2019 WL 1785414, at *1 (N.D. Cal. Apr. 16, 2019) (Chhabria, J.). The claims by plaintiffs who paid membership dues and seek reimbursement equal to the amount of fair-share fees are dismissed for the reasons explained in the following cases: Bermudez v. SEIU Local 521 , 2019 WL 1615414 (N.D. Cal. Apr. 16, 2019) (Chhabria, J.); Crockett v. NEA-Alaska , 367 F. Supp. 3d 996, 1008 (D. Alaska 2019) ; Babb , 378 F. Supp. 3d at 876-77.
The plaintiffs disclaim seeking a refund of preJanus fair share fees under any state law cause of action, and admit in any case that such claims would be barred by Section 1159 of the California Government Code. See Dkt. 121 at 6-7; Babb v. California Teachers Association , 378 F. Supp. 3d 857, 879 (C.D. Cal. 2019) (Staton, J.).
These plaintiffs similarly disclaim seeking a refund of any preJanus membership dues under any state law cause of action.
2. Count 2 alleges that certain union defendants did not promptly accept certain plaintiffs' resignations from union membership. The SEIU defendants do not move to dismiss these claims, but the California State Employees Association (CSEA) and California State Retirees (CSR) do. The complaint alleges that CSEA and CSR "violated Mariam Noujaim's constitutional rights by failing to promptly accept her resignations from membership, and by forcing her to take the needlessly burdensome step of submitting her resignation by mail or fax." ¶ 282. This claim fails because neither Janus nor any other case creates a right to resign from union membership in any manner that one pleases. Cf. Babb , 378 F. Supp. 3d at 886 ("Janus does not hold that employees have the right to resign from a union however they want, regardless of state laws that provide clear, common sense procedures for doing so."). This is so at the very least where the union's rules (or contract provisions) governing resignation are reasonable, and the alleged rules here – requiring resignations to be communicated by mail or fax – are reasonable. Cf. id. ("Submitting a writing to the Union Defendants to halt payroll deductions is not a burdensome requirement."). The claims against CSEA and CSR under Count 2 are dismissed with prejudice.
3. Count 3 raises a panoply of jumbled claims and legal theories. Several of the claims seem redundant with those raised elsewhere in the complaint. Compare, e.g. , Count 1 ¶ 260 ("The plaintiffs who chose to join the union did not ‘consent’ to the payment of full membership dues ....") and Count 6 ¶ 310 ("[N]one of the plaintiffs in this case has ever provided legally valid consent to union membership ....") with Count 3 ¶ 287 ("[A]ny public employee that signed a pre-Janus union-membership contract was unconstitutionally coerced and did not provide legally valid consent."); compare, e.g. , Count 2 ¶ 268 ("Public employees have a constitutional right to terminate their union membership at any time ....) with Count 3 ¶ 286 ("A public employee has the constitutional right to revoke his or her union membership ... at any time ...."). Count 3 is not comprehensible enough to adjudicate, as the confused briefing on these motions to dismiss amply demonstrates. It is therefore dismissed. Leave to amend is granted, but only to the extent that Count 3 truly raises legal claims that are distinct from those asserted in, for example, Counts 1, 2, and 6.
4. In Count 4, six plaintiffs assert claims against their public employers under section 1983 for continuing to deduct union dues from their paychecks after the plaintiffs had communicated to their employers their desire to resign from union membership. As the plaintiffs acknowledge, the employers were acting pursuant to California Government Code section 1157.12(b), which requires public employers to direct all employee requests for changes in dues deductions to the unions, and to rely on the unions for information regarding which employees should have dues deducted from their paychecks.
Regardless of whether it violates the Constitution for public employers to rely on unions for information regarding dues deductions, the plaintiffs have not adequately alleged that the three county defendants (Riverside, Monterey, and Alameda) are liable for this conduct under Monell v. Department of Social Services of the City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). For municipal liability to attach under Monell , the constitutional violation must be caused by an official policy of the municipality. Sandoval v. County of Sonoma , 912 F.3d 509, 517 (9th Cir. 2018). Here, however, the plaintiffs have not plausibly alleged any county policy of relying on unions for dues deduction information – rather, it appears that the counties were simply complying with state law. See California Government Code § 1157.12. The state statute uses mandatory language, and the plaintiffs have not suggested that the counties had discretion under state law to act contrary to the statute's instructions. See id. ("Public employers ... shall ... [d]irect employee requests to cancel or change deductions for employee organizations to the employee organization, rather than to the public employer. The public employer shall rely on information provided by the employee organization regarding whether deductions for an employee organization were properly canceled or changed ...." (emphasis added)). When a municipality exercises no discretion and merely complies with a mandatory state law, the constitutional violation was not caused by an official policy of the municipality. See Vives v. City of New York , 524 F.3d 346, 353 (2d Cir. 2008) ; see also Evers v. County of Custer , 745 F.2d 1196, 1203 (9th Cir. 1984) ; Sandoval , 912 F.3d at 518 (citing Evers ). This requirement bars the plaintiffs' claims against the counties for both prospective and retrospective relief. See Los Angeles v. Humphries , 562 U.S. 29, 37, 131 S.Ct. 447, 178 L.Ed.2d 460 (2010).
The plaintiffs argue that Monell liability can be based on the counties' policies of "establish[ing] and enforc[ing] an agency shop," Dkt. 124 at 4. But that is wrong. The general decision to contract with unions using an agency shop arrangement did not "cause" the specific allegedly unconstitutional conduct that forms the basis of this claim. See Villegas v. Gilroy Garlic Festival Association , 541 F.3d 950, 957 (9th Cir. 2008) ("[T]here must be a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.") (quoting City of Canton v. Harris , 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). Count 4 is therefore dismissed with prejudice as to the counties.
Count 4 also alleges a claim against the California State University Board of Trustees. To the extent the plaintiffs seek prospective relief for this claim, it is moot for the reasons set forth in the next section regarding Count 5, and it is dismissed without leave to amend. To the extent it seeks retrospective relief, the California Attorney General states in his motion to dismiss that the Board of Trustees serves only an "administrative function[ ] in the processing of payroll deductions" and therefore "do[es] not take any position on the merits of these claims" and "will abide by the Court's orders." Dkt. 107-1 at 10. This is not helpful, and it does not provide a basis for dismissing Count 4's claim for retrospective relief against the Board of Trustees. Accordingly, this aspect of Count 4 survives (for now).
5. Count 5 seeks declaratory and injunctive relief against enforcement of California Government Code 1157.12(b), which requires public employers to direct employee requests for cancellations of union dues deductions to the employees' unions, and requires the employers to rely on information provided by the unions regarding these deductions. The plaintiffs' claim for prospective declaratory and injunctive relief is moot because none of the plaintiffs is still a union member, and none continues to have any deductions made from his or her paychecks. The plaintiffs therefore lack any "legally cognizable interest" in a determination of section 1157.12(b)'s constitutionality, and the dispute "is no longer embedded in any actual controversy about the plaintiffs' particular legal rights." See Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013).
The plaintiffs insist that this claim falls within the "voluntary cessation" exception to mootness. But for the allegedly wrongful conduct to recur with respect to the plaintiffs, they would need to become union members again, which is "a remote possibility." Babb , 378 F. Supp. 3d at 886. Nor is it reasonable to expect that the employers will resume making deductions (or that the unions will arbitrarily ask them to) in the absence of any consent by the plaintiffs. Count 5 is dismissed without leave to amend.
6. Like Count 3, Count 6 presents a confusing slew of legal theories, many of which appear redundant with other claims in the complaint. This count appears to assert claims against the unions for failing to inform the plaintiffs of their right to decline union membership under Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) ; failing to inform them of their right to avoid both dues and fees under Harris v. Quinn , 573 U.S. 616, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014) ; failing to inform them about a union's duty of fair representation; failing to inform them that some union dues go to fund political causes; "failing to secure legally valid consent to union membership" from the plaintiffs or from "any other public employee in California" prior to Janus through "unconstitutional coerc[ion]"; and failing to correct the alleged pre-Janus errors by seeking post-Janus consent. Because it is impossible to assess these allegations in their current form, this count is dismissed with leave to amend to the extent it raises claims that are both consistent with Rule 11 and truly distinct from the other counts of the complaint.
7. Count 7 alleges that SEIU Local 1000 violated plaintiff Peter Finn's First Amendment rights by requiring him to annually renew his status as a "non-germane objector" (an employee who pays reduced fair share fees to avoid funding a union's nonrepresentational activities). The Ninth Circuit upheld a requirement that employees opt in to such a status in Mitchell v. Los Angeles Unified School District , 963 F.2d 258, 263 (9th Cir. 1992). Notably, as the union defendants here point out, the complaint in Mitchell alleged more specifically that the requirements of annual renewal were unconstitutional. Dkt. 109-5 at 10. Indeed, the Ninth Circuit in Friedrichs v. California Teachers Association affirmed, as clearly controlled by Abood and Mitchell , a judgment against plaintiffs who raised similar claims, including claims regarding an annual renewal requirement. 2014 WL 10076847 (9th Cir. 2014), affirmed by an equally divided Court , ––– U.S. ––––, 136 S.Ct. 1083, 194 L.Ed.2d 255 (2016) ; Dkt. 109-5 at 35. Furthermore, then-applicable state regulations seem to have contemplated that unions would require annual renewal. See 8 Cal. Code Reg. § 32992(a) (repealed 2019) ("The exclusive representative will provide annual written notice to each nonmember [including] ... procedures for (A) objecting to the agency fee ...."). Given that the Ninth Circuit repeatedly rejected challenges to procedures that appear nearly identical in relevant respects to the procedure SEIU Local 1000 used here, and given that procedure's consistency with state regulations, the union is entitled to a good-faith defense to section 1983 liability (assuming there was a constitutional violation at all). See Clement v. City of Glendale , 518 F.3d 1090, 1097 (9th Cir. 2008).
The SEIU defendants' request for judicial notice, Dkt. 109-6, is granted. All other requests for judicial notice are denied as moot.
The union argues that Finn's state law claims are preempted by the Dills Act, and Finn doesn't dispute this argument. Finn also asserts that the California State Controller violated his constitutional rights, but he doesn't appear to seek any remedy against the Controller. Count 7 is dismissed with prejudice.
8. Count 8 is asserted against SEIU Local 2015, and the union does not move to dismiss this Count.
9. Under Count 9, plaintiffs Teresa Boyle and Erin Thompson allege that California's alleged practice of deducting union dues from paychecks of home healthcare workers violates the Medicaid Act. The plaintiffs seek various forms of relief, including an order holding unlawful and enjoining the enforcement of 42 C.F.R. § 447.10(g)(4), the now-withdrawn regulatory provision under the Medicaid Act that permitted such deductions; an injunction prohibiting the State Controller from diverting to unions any payments owed to providers; an order requiring the unions to refund to the state any payments received in alleged violation of 42 U.S.C. § 1396a(a)(32) ; an order requiring the state to restore this money to Medicaid providers; and an order requiring the Secretary of Health and Human Services to notify California and other states with similar practices that he will terminate all federal Medicaid funding to those states unless they change their practices.
To the extent the plaintiffs seek prospective relief, these claims are moot. As stated in the First Amended Complaint, both Boyle and Thompson resigned from their union, and since the filing of the Complaint the union has accepted their resignations. ¶¶ 212, 218, 236, 239. These plaintiffs are no longer union members, and dues are no longer being deducted from their paychecks. Thus these plaintiffs no longer have any cognizable legal interest in the outcome of claims regarding future deductions from the paychecks of union members. And for the reasons discussed above under Count 5, the allegedly wrongful behavior cannot reasonably be expected to recur with respect to the named plaintiffs. See Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013). Furthermore, these claims are moot on the facts here notwithstanding that the plaintiffs seek class-wide relief. The claims are no longer justiciable not because the defendants have sought to "pick off" the named plaintiffs' claims, but because the named plaintiffs themselves chose to resign from the union, and the union accepted their resignations. See Pitts v. Terrible Herbst, Inc. , 653 F.3d 1081, 1091 (9th Cir. 2011) ; Slayman v. FedEx Ground Package System, Inc. , 765 F.3d 1033, 1047-48 (9th Cir. 2014). Campbell-Ewald Co. v. Gomez , ––– U.S. ––––, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), which held that an unaccepted settlement offer does not moot a case, and on which the plaintiffs rely, does not support a different conclusion. The plaintiffs' claims under Ex parte Young , California Code of Civil Procedure section 1085(a), and the Administrative Procedure Act are moot.
As for retrospective relief, the plaintiffs now disclaim seeking such relief against the State Controller. Dkt. 122 at 7-8. And with respect to the union defendant, the relevant provision of the Medicaid Act doesn't give the plaintiffs a federal right to sue under section 1983. 42 U.S.C. § 1396a(a) lists contents that a state Medicaid plan must contain. The Secretary of Health and Human Services is authorized to determine whether states are complying with the requirements of section 1396a, and to withhold Medicaid funding from noncompliant states. § 1396c. One of the requirements imposed on state plans (section 32) is that a plan, subject to certain exceptions, must "provide that no payment under the plan for any care or service provided to an individual shall be made to anyone other than such individual or the person or institution providing such care or service, under an assignment or power of attorney or otherwise." § 1396a(a)(32). Section 32 does not create an individually enforceable right. See Transitional Services of New York for Long Island, Inc. v. New York State Office of Mental Health , 91 F. Supp. 3d 438, 445 (E.D.N.Y. 2015). The provision is embedded in a list of requirements for what state plans must contain, and these requirements are enforceable by the Secretary. The provision, on its face, restricts the entities to whom a payment can be made under the plan; it does not create an entitlement to payment. See Gonzaga v. Doe , 536 U.S. 273, 290, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) ("[I]f Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms."). Unlike section 23, the subject of Planned Parenthood Arizona Inc. v. Betlach , section 32 does not contain language that "unambiguously confers ... a right." See Betlach , 727 F.3d 960, 966 (9th Cir. 2013) (" ‘[A ]ny individual eligible for medical assistance ... may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.’ " (quoting § 1396a(a)(23) ); cf. Ball v. Rodgers , 492 F.3d 1094, 1107 (9th Cir. 2007) ("[N]either provision uses the word ‘individuals’ simply in passing. Instead, both are constructed in such a way as to stress that these ‘individuals’ have two explicitly identified rights."). Lastly, the defendants point to significant evidence in the legislative history of section 32 that the provision was designed not to protect the individual rights of providers, but to prevent fraud against the government, and the plaintiffs don't appear to dispute this history. See Danvers Pathology Associates v. Atkins , 757 F.2d 427, 430 (1st Cir. 1985) (Breyer, J.); see also Ball , 492 F.3d at 1112-13 (looking to legislative history); Blessing v. Freestone , 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) ("Congress must have intended that the provision in question benefit the plaintiff.").
Count 9 is dismissed without leave to amend as to prospective relief, and with prejudice as to retrospective relief as against all defendants.
10. In Count 10, plaintiff Noujaim alleges that CSEA and CSR deducted membership dues from her pension without her consent. CSEA and CSR argue that this claim is moot, but the allegations and record at this stage are too murky to determine whether this claim has been fully mooted, and whether any exception to the mootness doctrine applies. See Campbell-Ewald Co. , 136 S. Ct. at 671 n.5 ; Pitts , 653 F.3d at 1091. And on the merits, the claim can't be dismissed at this stage. The complaint recounts that Noujaim "protested that she had never agreed to join California State Retirees—and she had not authorized California State Retirees or any of its affiliates to tap her pension for membership dues." ¶ 248. Read in the light most favorable to Noujaim, this paragraph constitutes an allegation that Noujaim in fact never authorized such dues. CSEA and CSR have submitted evidence purporting to show that Noujaim authorized CSEA to deduct dues in 2003. Dkt. 114-2. This may suggest that Noujaim's allegations are not brought in good faith, but it's not appropriate to consider this evidence on a motion to dismiss. If Noujaim never consented to dues deductions at any point in time (which must be assumed at this stage), then she would likely have a claim for conversion or a similar tort under California law. Thus, this claim can proceed, assuming there is a factual basis for continuing to assert it consistent with Rule 11.
The motion to dismiss Count 10 is denied. The request to dismiss this count as moot is without prejudice to renewing the request after the factual record has been developed.
11. As the plaintiffs appear to concede that they assert no claims against SEIU International and SEIU California, those defendants are dismissed.
12. Any amended complaint must be filed within 21 days of this ruling, with a response to the amended complaint due 21 days after that (or 21 days after expiration of the deadline to file an amended complaint). A further case management conference is scheduled for February 12, 2020 at 10:00 a.m. A joint case management statement is due seven days prior.