JODEE WRIGHT, an individual, Plaintiff-Appellant, v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 503, a labor organization; KATY COBA, in her official capacity as Director of the Oregon Department of Administrative Services; DEPARTMENT OF ADMINISTRATIVE SERVICES, Defendants-Appellees.
No. 20-35878
United States Court of Appeals for the Ninth Circuit
Filed September 19, 2022
D.C. No. 6:20-cv-00520-MC. Appeal from the United States District Court for the District of Oregon, Michael J. McShane, District Judge, Presiding. Argued and Submitted February 8, 2022, Portland,
OPINION
Before: Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges, and John R. Tunheim,* District Judge.
Opinion by Judge Paez
SUMMARY**
Civil Rights
The panel affirmed the district court‘s dismissal of plaintiff‘s claims for prospective relief against all defendants for lack of jurisdiction and her claims for retrospective relief against Service Employеes International Union Local 503 (“SEIU“) for failure to allege state action under
Before her retirement, plaintiff was employed by the Oregon Health Authority, and SEIU was the exclusive representative for her bargaining unit. Plaintiff never joined SEIU, but the State deducted union dues from her salary and remitted the dues to SEIU. Plaintiff alleged that SEIU forged her signature on a union membership agreement. Plaintiff demanded that the State and SEIU stop the dues deductions and return the withheld payments. After she retired, plaintiff filed this action against State defendants and SEIU, alleging several constitutional claims under
The panel held that plaintiff lacked standing to pursue her claims for prospective relief, and plaintiff‘s
Because jurisdiction is a threshold issue, the panel first considered whether it could entertain plaintiff‘s claims for prospective declaratory and injunctive relief against all defendants. As to plaintiff‘s claims for prospective relief for violation of her First Amendment rights, the panel concluded that her fear of future harm was based on a series of interferences that were too speculative to establish а “case or controversy” for the prospective relief she sought. Because she retired before filing this lawsuit, plaintiff‘s sole basis for her impending injury was her fear that, should she return to work, SEIU would forge a new membership agreement. Plaintiff‘s theory of future injury was unavailing. Plaintiff‘s allegations of past injury were also insufficient to establish standing. Plaintiff‘s theory that potential future unauthorized dues deductions chilled her exercise of her First Amendment rights was also too speculative to establish standing. Similarly, as to plaintiff‘s claims for prospective relief for violation of her Fourteenth Amendment proсedural due process rights, the panel concluded that she lacked any concrete interest in her future wages or her right to be free from compelled union speech that were threatened by the alleged lack of procedural safeguards. The panel therefore affirmed the dismissal of these claims for lack of jurisdiction.
The panel next considered whether plaintiff‘s remaining claims against SEIU for retrospective relief—damages—were cognizable under
COUNSEL
Rebekah C. Millard (argued) and James G. Abernathy, Freedom Foundation, Olympia, Washington, for Plaintiffs-Appellants.
Scott A. Kronland (argued), Altshuler Berzon LLP, San Francisco, California; James S. Coon, Thomas Coon Newton & Frost, Portland, Oregon; for Defendant-Appellee Service Employees International Union Local 503.
Christopher A. Perdue (argued), Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Office of the Attorney General, Salem, Oregon; for Defendants-Appellees Katy Coba and Department of Administrative Services.
OPINION
PAEZ, Circuit Judge:
Before her retirement in February 2020, Jodee Wright (“Wright“) was employed by the Oregon Health Authority. The Service Employees International Union, Local 503 (“SEIU” or “Union“) was the exclusive representative for her designated bargaining unit. Although Wright never joined the Union, the State began deducting union dues from her salary and remitting the dues to SEIU. In this lawsuit, Wright alleges that the Union forged her signature on a union membership agreement that included a dues deduction authorization, and then requested that the State deduct dues from her salary and remit them to SEIU. Months later, and while still employed, Wright demanded that the State and Union stop the dues deductions and return the withheld payments.
After Wright retired, she filed this lawsuit against the Department of Administrative Services, Katy Coba, the Director of the Department of Administrative Services (collectively, “state Defendants“), and SEIU alleging several constitutional claims under
We affirm, but we conclude that Wright lacked standing to pursue her claims for prospective relief.1 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (holding that this court may affirm on the basis of any ground fairly supported by the record). We also agree, for reasоns similarly laid out in Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020), that Wright‘s
I.
Wright worked for the Oregon Health Authority, a state agency, whose employees were represented exclusively by SEIU. According to SEIU, Wright joined SEIU on October 5, 2017, by electronically signing an SEIU membership and dues authorization agreement (“membership agreement“). From October 2017 until her retirement in February 2020, at SEIU‘s request, the State deducted union dues from Wright‘s salary and remitted them to SEIU. On October 15, 2019, Wright sent a letter to SEIU resigning her union membership and terminating her dues deduction authorization. On November 5, 2019, SEIU responded and included a copy of Wright‘s purported membership agreement. Wright had “no memory of signing” the membership agreement and determined that her signature had been forged.2 When Wright retired in February 2020,
After retiring, Wright filed this lawsuit under
II.
Because jurisdiction is a threshold issue, we first consider whether we may entertain Wright‘s claims for prospective declaratory and injunctive relief against all Defendаnts. As to Wright‘s claims for prospective relief for violation of her First Amendment rights, we conclude that her fear of future harm is based on a series of inferences that are too speculative to establish a “case or controversy” for the prospective relief she seeks. Similarly, as to Wright‘s claims for prospective relief for violation of her Fourteenth Amendment procedural due process rights, we conclude that she lacks any concrete interest in future wages or her right to be free from compelled union speech that are threatened by the alleged lack of procedural safeguards. We therefore affirm the district court‘s dismissal of these claims for lack of jurisdiction.
A. First Amendment Claim
To establish Article III standing, a plaintiff must demonstrate that: (1) she suffered an “actual or imminent” injury as a result of the alleged illegal conduct; (2) there is a “causal connection between the injury and the conduct complained of“; and (3) the injury will “likely” be “redressed by a favorable decision” of the court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The plaintiff has the burden of establishing standing “for each claim [s]he seeks to press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (internal quotation marks omitted).
Because Wright‘s First Amendment claim for declaratory and injunctive relief was based on the threat of future injury, she has standing to sue only “if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.‘” In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). Wright cannot rely “on mere conjecture” about Defendants’ possible actions; she must present “concrete evidence to substantiate [her] fears.” Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 825 (9th Cir. 2020) (quoting Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 420 (2013)). Past wrongs are “insufficient by themselves to grant standing,” but are “evidence bearing on whether there is a real and immediate threat of repeated injury.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). When a plaintiff‘s standing is grounded entirely on the threat of repeated injury, a plaintiff must show “a sufficient likelihood that [s]he will again be wronged in a similar way.” Id. (quoting Lyons, 461 U.S. at 111).
In Clapper, the plaintiffs argued that they had standing based on their fear that in the future, government officials would seek to surveil their communications with foreign individuals, the Foreign Intelligence Surveillance Court (“FISC“) would grant such a request, and the government would then carry out the surveillance. 568 U.S. at 410-11. The Supreme Court rejected that argument, holding that the threatened future injury was too speculative to constitute injury for standing purposes. Id. at 410-14. The Court noted that the plaintiffs’ claimed injury rested on a “highly attenuated chain of possibilities” and held that such possibilities were not enough to establish а “certainly impending” injury. Id. The Court further rejected the plaintiffs’ alternative theory that they suffered ongoing injuries by resorting to preventative measures to protect their communications from surveillance. Id. at 415. The Court held that the plaintiffs could not “manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 416.
Similarly, we held in Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015), that a former security services contractor lacked standing to seek prospective relief based on his fear of future injury if he were to obtain future private security work in Iraq. Id. at 409-11. The contractor alleged that during the military occupation of Iraq, the U.S. government had a policy of granting blanket immunity from prosecution to security contractors, who, as a result of the policy, engaged in “lawless behavior” which invited retribution from Iraqi terrorist groups. Id. at 407. The contractor feared that if he were to return to Iraq to provide security services, the government would reinstate the blanket immunity policy or a similar one and he would be injured or kidnapped by Iraqi terrorists who sought retribution. Id. We rejected the contractor‘s theory, noting that for him to sustain future injury, he would need to be hired for private security work in Iraq, the government would need to reinstate the former immunity policy or a similar one, and the reinstated policy would cause him to suffer harm as he alleged. Id. at 409-10. This attenuated chain of events was not “certainly impending,” nor did it “present a substantial risk of its occurrence” sufficient for standing. Id. at 410.
We further rejected the contractor‘s alternative theory of injury that he was deterred from seeking future employment because of the uncertainty of the government‘s policy. Id. at 410. Comparing his deterrence theory to an analogous theory rejected in Clapper, we noted that the contractоr‘s “chilling effect” argument was based on the same series of events as his initial theory and therefore was “too speculative to confer standing.” Id.; cf. Index Newspapers LLC, 977 F.3d at 826-27 (holding that repeated police assaults sufficiently chilled investigative reporters’ exercise of their First Amendment rights to constitute injury for standing purposes).
As in Clapper and Munns, Wright‘s fear of future unauthorized dues deduction is too speculative to confer standing for her First Amendment claim. Because she retired before filing this lawsuit, the sole basis for her impending injury is her fear that, should she return to work, SEIU will forge a new membership agreement. Wright‘s theory of future injury is unavailing. Although Wright doеs not
Wright‘s allegations of past injury alone are also insufficient to establish standing. We have held that past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects. Index Newspapers, LLC, 977 F.3d at 825 (citing Lyons, 461 U.S. at 102). Wright does not allege any continuing “adverse effects” from the past unauthorized dues deductions, so they cannot provide her with standing to seek prospеctive relief.4 Id.; see also Lyons, 461 U.S. at 108-09.
Wright‘s theory that potential future unauthorized dues deductions chill her exercise of her First Amendment rights is also too speculative to establish standing. Wright argues that because SEIU insists that her membership agreement was not forged and that Oregon‘s statutory dues deduction scheme complies with due process, she remains under continued threat that if she were to return to public employment, SEIU would again forge a membership agreement with her name. Wright‘s fear of the potential chilling effect of her First Amendment rights fails for the same reason as her fear of future unauthorized dues deduction does not support standing: her reliance on a series of inferences unsupported by the record. While a plaintiff‘s
alleged chilling of her First Amendment rights “can constitute a cognizable injury,” such an effect cannot be “based on a fear of future injury that itself [is] too speculative to confer standing.” Index Newspapers LLC, 977 F.3d at 826 (alteration in original). Like the analogous deterrence theories in Clapper and Munns, Wright‘s fear of potential chilling relies on the same series of inferences as her theory of injury, and it is therefore too speculative to constitute injury-in-fact. Clapper, 568 U.S. at 415-16; Munns, 782 F.3d at 410.
B. Fourteenth Amendment Procedural Due Process Claim
Wright similarly lacks standing to assert her Fourteenth Amendmеnt procedural due process claim seeking prospective relief. When a plaintiff alleges a procedural violation of her rights, she is excused from the “normal standards for redressability and immediacy.” Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001) (quoting Lujan, 504 U.S. at 572 n.7). In this situation, she need only show “that [she] was accorded a procedural right to protect [her] interests and that [she] has concrete interests that are threatened.” City of Las Vegas v. FAA, 570 F.3d 1109, 1114 (9th Cir. 2009). We have recognized that employees have a concrete interest in receiving their salaries without unauthorized deductions. Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017). Wright is retired and thus no longer receives wages from the State, however. Accordingly, she no longer has a concrete interest in her future wages or in freedom from compelled speech that would be threatened by the alleged lack of procedural safeguards. See Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994). Indeed, the threat of future unauthorized dues deductions from her wages is entirely “imaginary.” Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 446 (9th Cir. 1994). Wright therefore lacks standing to assert her procedural due process claim.
III.
We next consider whether Wright‘s remaining claims against SEIU for retrospective relief, i.e., damages, are cognizable under
Our resolution of this issue is guided by our recent decision in Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020), which dealt with an analogous Washington state statutory scheme authorizing union dues deductions. We briefly describe the two statutory schemes to give context to our discussion. Washington and Oregon do not require state employees to join a union. Compare
To maintain a claim under
Under the state policy requirement, we consider “whether the claimed constitutional deprivation resulted from ‘the exercise of some right or privilege created by the State or by a rule of conduct imposed by the [S]tate or by a person
Next, under the state actor requirement, we generally utilize one of four tests outlined by the Supreme Court to examine “whether the party charged with the deprivation could be described in all fairness as a state actor.” Ohno, 723 F.3d at 994 (citing Lugar, 457 U.S. at 937); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (outlining the four tests).5 Those tests include the public function test, the joint action test, the state compulsion test, and the governmental nexus test. Tsao, 698 F.3d at 1140. Any of the four tests are sufficient to satisfy the state actor requirement. Id. at 1139-40. We discuss only whether SEIU meets the requirements of the joint action and public function tests, as Wright and Defendants focus their arguments оn those two tests.6 SEIU satisfies neither prong of the state action inquiry.
Wright‘s alleged constitutional deprivation did not result from “the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.” Ohno, 723 F.3d at 994 (quoting Lugar, 457 U.S. at 937). To explain, we begin our state action analysis by identifying “the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (citation omitted). Although Wright makes repeated references to the “forgery of [her] authorization agreement,” she frames her threatened injury as “the deduction of [her] money without her consent” pursuant to state law. As Wright acknоwledges, it is the State, not SEIU, which deducts union dues from employees’ wages. Nonetheless, Wright argues
that the Oregon statutory scheme grants to SEIU a “special privilege created by law,” which allows it to dictate from which employees the State should deduct union dues.7 Wright ignores that Oregon law requires employees to authorize union dues deductions.
In her claims against SEIU, Wright challenges SEIU‘s transmission of her forged dues authorization, not the State‘s withholding of union dues.8 Because SEIU only transmits a
list of employees who have authorized dues deductions to the State, Wright can only challenge SEIU‘s forgery of her dues authorization agreement.
SEIU further cannot fairly be “described . . . as a state actor” under the joint action or public function tests. Ohno, 723 F.3d at 994 (citing Lugar, 457 U.S. at 937); Tsao, 698 F.3d at 1140.
“A joint action between a state and a private party may be found in two scenarios: the government either (1) ‘affirms, authorizes, encourages, or facilitates unconstitutional conduct through its involvement with a private party,’ or (2) ‘otherwise has so far insinuated itself into a position of interdependence with the non-governmental party,’ thаt it is ‘recognized as a joint participant in the challenged activity.‘”
Belgau, 975 F.3d at 947 (quoting Ohno, 723 F.3d at 996). The joint action test is not satisfied here because Oregon did
whether the Union‘s transmission of Wright‘s name as a member of the union is state action.
not “affirm[], authorize[], encourage[], or facilitate[] unconstitutional conduct” by processing dues deductions. Id. (quoting Ohno, 723 F.3d at 996). In Belgau, we described the state‘s role in processing dues deductions as the “ministerial processing of payroll deductions pursuant to Employees’ authorizations.” Id. at 948. That characterization of Washington‘s actions in Belgau applies with equal force to Oregon‘s actions in this case. As we explained in Belgau, “providing a ‘machinery’ for implementing the private agreement by performing an administrative task does not render [the State] and [SEIU] joint actors.” Id. (citation omitted). Indeed, Oregon law, like Washington law, mandates that the State accept SEIU‘s dues deductions certifications and remit the payments to the union. Compare
Wright argues that Belgau is factually distinguishable because the plaintiffs in Belgau voluntarily agreed to join the union,
The joint action test is further not satisfied because the State did not “so far insinuated itself into a position of interdependence with” SEIU such that SEIU can be “recognized as a joint participant” in dues deductions. Ohno, 723 F.3d at 996 (citation omitted). The state Defendants and SEIU did not have a “symbiotic relationship” of mutual benefit with one another or a “substantial degree of cooperative action“; rather, they had a contractual relationship. Belgau, 975 F.3d at 948 (citation omitted). The State received no direct benefits when it served as a passthrough for union dues deductions.9 See id.;
Under the public function test, Wright‘s claims similarly fail. “Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.” Kirtley v. Rainey, 326 F.3d 1088, 1093 (9th Cir. 2003) (citation omitted). Wright argues that the State delegated to SEIU the authority under
union membership and dues deduction. Wright‘s argument founders given the nature of the State‘s role in the process and the task itself. As in Belgau, Oregon‘s obligation under
Wright argues that Janus created a constitutional “duty” for the State to ensure that the employees listed in
At bottom, in light of Belgau and the state action analysis, SEIU does not qualify as a state actor. Therefore, Wright‘s claim for retrospective relief against SEIU fails for lack of state action.
IV.
We affirm the district court‘s dismissal of Wright‘s claims for prospective relief against all Defеndants for lack of jurisdiction and her claims for retrospective relief against SEIU for failure to allege state action under
AFFIRMED.