No. 17-35693
United States Court of Appeals for the Ninth Circuit
August 9, 2018
D.C. No. 2:17-cv-00382-RSL
FOR PUBLICATION
Plaintiffs-Appellants,
v.
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington
Robert S. Lasnik, Senior District Judge, Presiding
Argued and Submitted February 5, 2018
Seattle, Washington
Filed August 9, 2018
OPINION
Opinion by Judge Milan D. Smith, Jr.
SUMMARY**
Labor Law
The panel affirmed the district court‘s dismissal as unripe of an action brought by for-hire drivers, challenging a Seattle ordinance that establishes a multistep collective-bargaining process between “driver-coordinators,” such as Uber Technologies and Lyft, Inc., and for-hire drivers who contract with those companies.
The drivers contended that the ordinance was preempted by
The panel held that the drivers’ NLRA claims were constitutionally unripe because they did not allege an injury in fact that was concrete and particularized. The panel concluded that disclosure of the drivers’ personal information to a union was neither a concrete nor a particularized injury. Further, no contract governing the manner in which the drivers did business with Uber or Lyft was imminent, and the drivers did not show that they would be subject to a coercive union campaign in violation of
The panel held that the drivers’ First Amendment claim was unripe for the same reasons.
COUNSEL
William L. Messenger (argued) and Amanda K. Freeman, National Right to Work Legal Defense Foundation Inc., Springfield, Massachusetts; James G. Abernathy, Freedom Foundation, Olympia, Washington; for Plaintiffs-Appellants.
P. Casey Pitts (argued), Peder J. Thoreen, Stacey M. Leyton, and Stephen P. Berzon, Altshuler Berzon LLP, San Francisco, California; Josh Johnson, Sara O‘Connor-Kriss, Michael K. Ryan, and Gregory C. Narver, Assistant City Attorneys; Peter S. Holmes, City Attorney; Seattle City Attorney‘s Office, Seattle, Washington; for Defendants-Appellees.
Deborah J. La Fetra, Pacific Legal Foundation, Saсramento, California, for Amicus Curiae Pacific Legal Foundation.
Catherine L. Fisk, Berkeley, California; Charlotte Garden, Fred T. Korematsu Center for Law & Equality, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington, for Amici Curiae Labor Law Professors.
OPINION
M. SMITH, Circuit Judge:
In December 2015, the Seattle City Council passed Ordinance 124968, an Ordinance Relating to Taxicab, Transportation Network Company, and For-Hire Vehicle Drivers (Ordinance). Chamber of Commerce of the U.S. v. City of Seattle, 890 F.3d 769, 775 (9th Cir. 2018). The Ordinance establishes a multistep collective-bargaining process between “driver coordinators,” such as Uber Technologies (Uber) and Lyft, Inc. (Lyft), and for-hire drivers who contract with those companies. Id.
Plaintiffs-Appellants Dan Clark, Tami Dunlap, Ali Hassan, Jennifer Immel, Gary Kunze, Elisabeth Lowe, Dale Montz, Abdi Motan, Fredrick Rice, Michael Riebs, and Firew Teshome (collectively, the Drivers), are for-hire drivers who contract with Uber and Lyft. Together, the Drivers filed suit against Defendants-Appellees the City of Seattle, the Seattle Department of Finance and Administrative Services (the Department), and the Department‘s Director, Fred Podesta (collectively, the City), challenging the Ordinance on federal law grounds. On аppeal, the Drivers contend that the Ordinance is preempted by
The district court dismissed the Drivers’ action as unripe, without reaching the merits of the Drivers’ claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Ordinance1
The Ordinance establishes a complex collective-bargaining process between driver coordinators and for-hire drivers.2 Seattle, Wash., Ordinance 124968 § 1(I). The process begins with the election of a “qualified driver representative” (QDR). Seattle, Wash., Municipal Code §§ 6.310.110, 6.310.735(C). An entity seeking to represent for-hire drivers operating within Seattle first applies to the Director for designation as a QDR.
Within fourteen days of its designation as a QDR, the QDR notifies the driver coordinator of its intent to represent that driver coordinator‘s for-hire drivers.
The QDR contacts the qualifying drivers to solicit their interest in being represented by the QDR. Seattle, Wash., Municipal Code § 6.310.735(E). The QDR then submits to the Director signed statements of interest from qualifying drivers indicating that they wish to be represented by the QDR in negotiations with the driver coordinator.
The Director then makes a determination within thirty days of receiving the statements of interest.
If no QDR has successfully garnered the suрport of a majority of qualifying drivers, the Director will announce that no QDR has met the threshold for EDR certification.
After the Director certifies the EDR,
the driver coordinator and the EDR shall meet and negotiate in good faith certain subjects to be specified in rules or regulations promulgated by the Director, including, but not limited to, best practices regarding vehicle equipment standards; safe driving practices; the manner in which the driver coordinator will conduct criminal background checks of all prospective drivers; thе nature and amount of payments to be made by, or withheld from, the driver coordinator to or by the drivers; minimum hours of work, conditions of work, and applicable rules.
The agreement becomes final and binding on all parties only if the Director finds the agreement compliant.
If the driver coordinator and the EDR fail to reаch an agreement within 90 days of the EDR‘s certification, “either party must submit to interest arbitration upon the request of the other,” in accordance with the procedures and criteria specified in the Ordinance.
The Ordinance also specifies various amendment procedures that mаy be invoked after an agreement becomes final. The parties may propose amendments to an approved agreement, subject to the Director‘s review and approval.
B. The Drivers
The Drivers are for-hire drivers who contract with Uber. Two of the Drivers, Clark and Lowe, also contract with Lyft. All of the Drivers, with thе exception of Clark and Dunlap, are qualifying drivers under the terms of the Ordinance. The Drivers object to the Ordinance and the prospect of representation by Teamsters Local 117 (Local 117): They do not wish to become members of, or be represented by, Local 117, and they do not wish to be bound by any future agreement Local 117 may reach with Uber or Lyft.
C. Procedural History
Because the present case has proceeded in parallel with the Chamber of Commerce of the United States of America‘s (the Chamber) lawsuit challenging the same Ordinance, we briefly recоunt the procedural history of both cases.
After the Ordinance took effect on January 22, 2016, the Chamber filed suit on March 3, 2016, challenging the Ordinance as preempted by the Sherman Antitrust Act and the NLRA. The district court dismissed the Chamber‘s action as unripe, because no entity had as yet applied for certification as a QDR. See Chamber of Commerce of the U.S. v. City of Seattle, No. C16-0322RSL, 2016 WL 4595981, at *2, *4 (W.D. Wash. Aug. 9, 2016).
On March 3, 2017, the Director designated Local 117 as a QDR. On March 7, 2017, Local 117 notified Uber, Lyft, and ten other driver coordinators that it intended to seek EDR certification for those companies. Local 117 requested the contact informаtion of the driver coordinators’ qualifying drivers pursuant to the Ordinance‘s disclosure provisions. In response, the Chamber quickly filed suit again on March 9, 2017, seeking a declaration that the Ordinance is unenforceable, and a preliminary injunction enjoining the City from enforcing the Ordinance.
The Drivers filed the present action on the heels of the Chamber‘s refiling. On March 10, 2017, the Drivers filed a Complaint challenging the Ordinance primarily on federal labor law and First Amendment grounds. In their Complaint, the Drivers asserted five claims: (1) that the Ordinance is preempted by NLRA section 8(e); (2) that the Ordinance is рreempted by NLRA section 8(b)(4); (3) that the Ordinance is
On March 21, 2017, the City filed a motion to dismiss thе Chamber‘s case. On April 4, 2017, before ruling on the City‘s motion to dismiss the Chamber‘s case, the district court granted the Chamber‘s motion for a preliminary injunction. After the district court granted the Chamber‘s motion for a preliminary injunction, it denied as moot the Drivers’ motion for a preliminary injunction.
On April 13, 2017, the City moved to dismiss the Drivers’ Complaint.
On August 1, 2017, the district court granted the City‘s motion to dismiss the Chamber‘s case. The district court entered judgment on August 4, 2017. The Chamber timely appealed.
On August 24, 2017, the district court granted the City‘s motion to dismiss the Drivers’ case. The Drivers timely appealed.
On August 28, 2017, the Chamber filed an emergency motion for an injunction pending appeal in this court. On September 8, 2017, we granted the emergency motion and enjoined enforcement of the Ordinance pending the Chamber‘s appeal. After we granted the Chamber‘s motion for a preliminary injunction pending appeal, the Drivers withdrew their motion for a preliminary injunction.
On May 11, 2018, we reversed in part, affirmed in part, and remanded the Chamber‘s case for further proceedings. Chamber of Commerce of the U.S., 890 F.3d at 776.
STANDARD OF REVIEW
We review de novo a district court‘s order dismissing a case for lack of subject matter jurisdiction. Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144, 1151 (9th Cir. 2017). We have a “continuing, independent obligation” to ensure that we have subjeсt matter jurisdiction over a case. Mashiri v. Dep‘t of Educ., 724 F.3d 1028, 1031 (9th Cir. 2013).
ANALYSIS
I. The Drivers’ NLRA Preemption Claims Are Unripe.
“For a case to be ripe, it must present issues that are ‘definite and concrete, not hypothetical or abstract.‘” Id. (quoting Thomas, 220 F.3d at 1139). Because “[s]orting out where standing ends and ripeness begins is not an easy task,” Thomas, 220 F.3d at 1138, “[c]onstitutional ripеness is often treated under the rubric of standing because ‘ripeness coincides squarely with standing‘s injury in fact prong,‘” Bishop Paiute Tribe, 863 F.3d at 1153 (quoting Thomas, 220 F.3d at 1138). Given that “the focus of our ripeness inquiry is primarily temporal in scope, ripeness can be characterized as standing on a timeline.” Thomas, 220 F.3d at 1138.
We thus turn to the well-established requirements for an injury in fact: A “plaintiff must have suffered an ‘injury in fact‘—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.“‘” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). “[T]he injury-in-fact requirement requires a plaintiff to allege an injury that is both ‘concrete and particularized.‘” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.‘” Id. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). For an injury to be concrete, it must “‘actually exist[]‘; in other words, it is ‘real, and not abstract.‘” Bassett v. ABM Parking Servs., Inc., 883 F.3d 776, 779 (9th Cir. 2018) (quoting Spokeo, 136 S. Ct. at 1548). “Intangible harms and a ‘risk of real harm’
The Drivers have not satisfied any of these requirements. The Drivers offer three reasons for why their NLRA preemption claims are constitutionally ripe. We reject each of them.
First, the Drivers argue that the Ordinance “will infringe on their privacy rights, as several Drivers’ personal information will be disclosed to the Teamsters under the Ordinance‘s disclosure provisions.” The Drivers assert that harm is imminent, because the injunction pending in the Chamber of Commerce case is the sole bulwark halting the disclosure of their information to Local 117. The Drivers’ argument is flawed. Even assuming arguendo that the disclosure is imminent, the disclosure of the Drivers’ personal information is neither a concrete nor a particularized injury.
To start, the Drivers do not identify the legal wellspring of their claimed privacy rights. Nor do they show how the disclosure of the information presents a “risk of real harm” to each Driver “personal[ly] and individual[ly].” Spokeo, 136 S. Ct. at 1548-49 (quoting Lujan, 504 U.S. at 560 n.1); see also Or. Prescription Drug Monitoring Program v. DEA, 860 F.3d 1228, 1233 (9th Cir. 2017) (“[S]tanding is not dispensed in gross,” but instead “requires careful judicial examination of a сomplaint‘s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” (first quoting Davis v. FEC, 554 U.S. 724, 734 (2008); then quoting Allen v. Wright, 468 U.S. 737, 752 (1984), abrogated on other grounds by Lexmark Int‘l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014))). Indeed, the Drivers’ own conduct belies their assertion of injury: In order to operate in the City of Seattle, all for-hire drivers must obtain business licenses and disclose much of the same information in a public and searchable municipal database online as must be disclosed pursuant to the Ordinance. See Seattle, Wash., Municipal Code §§ 6.208.010, 6.310.130(F).5 Moreover, even if the Drivers could identify a basis for their claimed privacy rights, “a bаre procedural violation, divorced from any concrete harm,” does not “satisfy the injury-in-fact requirement of
Second, the Drivers argue that “certification of an exclusive driver representative will result in a contract governing the manner in which [they] can do business with Uber and/or Lyft.” In оther words, the Drivers assert that they are poised to suffer a violation of NLRA section 8(e). Such an injury is neither actual nor imminent. Section 8(e), by its plain language, requires a “contract or agreement“:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business
with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void . . . .
Third, the Drivers argue that “the Ordinance‘s certification process will violate the Drivers’ federal right under Section 8(b)(4) not to be subject to union campaigns prohibited by that statute.” NLRA section 8(b)(4) provides, in relevant part:
It shall be an unfair labor practice for a labor organization or its agents . . .
. . .
(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(A) forcing or requiring any employer or self-employed person to join аny labor or employer organization or to enter into any agreement which is prohibited by subsection (e);
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees . . . .
However, the plain language of the statute makes clear that not just any conduct will trigger section 8(b)(4)‘s proscription: The conduct must be “threaten[ing], coerc[ive], or restrain[ing].”
The Drivers anticipate that they will be subject to a “coercive campaign” by Local 117. Tellingly, however, they do not provide any facts about the foreseen campaign, much less offer any facts showing that such a campaign would be coercive within meaning of section 8(b)(4). Whether Local 117 will engage in conduct that is “sufficiently intimidat[ing],” Overstreet, 409 F.3d at 1213 (alteration in original) (quoting DeBartolo, 485 U.S. at 580), is wholly speculative.
Troublingly, Clark and Dunlap admit in the Complaint that they are not even “qualifying drivers” within meaning of the Ordinance. Thus, Clark and Dunlap will not be subject to the Ordinance‘s provisions regarding disclosure of qualifying driver information. Nor will they play any role in the EDR certification process. Any injury Clark and Dunlap claim they will suffer is removed even further than the other Drivers’ asserted injuries. Clark and Dunlap‘s claims are therefore unripe for these additional reasons.
Finally, the Drivers cite to authorities that do not support their position. The Drivers cite to Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979), for the proposition that the Drivers need not “await the consummation of threatened injury to obtain preventive relief.” Id. at 298 (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)). However, the Drivers ignore the language surrounding the quoted sentence, which makes clear that an injury that is “certаinly impending . . . is enough,” id. (emphasis added) (quoting Pennsylvania, 262 U.S. at 593), and that “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute‘s operation or enforcement,” id. (emphasis added) (citing O‘Shea v. Littleton, 414 U.S. 488, 494 (1974)). As discussed above, the Drivers’ theories of injury do not meet these criteria.
The Drivers’ citation to American Trucking Ass‘ns, Inc. v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009), is similarly unavailing, as the plaintiffs in that case faced certain, “imminent harm.” Id. at 1057-59 (concluding irreparable harm was likely, where plaintiff motor carriers were subject to an immediate “Hobson‘s choice” of either signing agreements, which would cause them to “incur large costs” and “disrupt and change the whole nature of [their] business[es],” or refusing to sign the agreements, which would entail “a loss of customer goodwill,” at minimum, or an entire loss of business). Here, while the Drivers point to the Ordinance‘s civil penalty provisions for driver coordinators who fail to comply with the Ordinance‘s disclosure and negotiation provisions, see Seattle, Wash., Municipal Code § 6.310.735(D), (H)(1), (M)(1)(b), such injuries, even if they materialized, would not be particularized to the Drivers. The Drivers cannot claim for themselves any imminent injuries that Uber and Lyft are poised to incur.
The Drivers’ reliance on case law from the context of pre-enforcement
Thus, we conclude that the Drivers have not satisfied the constitutional component of ripeness, and their NLRA preemption claims are unripe.6
II. The Drivers’ First Amendment Claim Is Unripe.
The Drivers’ First Amendment claim is unripe for the same reasons. The Drivers assert that the Ordinance violates their First Amendment rights “because it calls for transferring [the] Drivers’ speech rights to an unwanted representative.” They predict, “If the Ordinance‘s organizing process is permitted to proceed, [the] Drivers could be collectivized at any time.” These arguments belie the speculative nature of the Drivers’ asserted injuries in fact.
The Drivers’ actual injuries hinge on a prospective chain of events that have not yet occurred, and may never occur. First, Local 117 must bе elected the EDR for Uber or Lyft. Second, Local 117 must then participate in collective bargaining negotiations with Uber or Lyft. However, no entity—union or otherwise—has achieved EDR certification, much less impinged on the Drivers’ freedom of speech by representing them at the negotiating table. Accordingly, at this time, the Drivers’ First Amendment claim is unripe.
CONCLUSION
“If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in
AFFIRMED.