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