STACI TREES v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 503; OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES; and KATY COBA, in her official capacity as Director of the Oregon Department of Administrative Services
Case No. 6:21-cv-468-MK
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
Filed 11/09/21
Michael H. Simon, District Judge.
OPINION AND ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Scott A. Kronland, Stacey M. Leyton, and Zoe Palitz, ALTSHULER BERZON LLP, 177 Post Street, Suite 300, San Francisco, CA 94108; and James S. Coon, THOMAS, COON, NEWTON & FROST, 820 SW Second Avenue, Suite 200, Portland, OR 97204. Of Attorneys for Defendant Service Employees International Union Local 503.
Ellen F. Rosenblum, Attorney General; and Sadie Forzley, Assistant Attorney General, OREGON DEPARTMENT OF JUSTICE, 100 SW Market Street, Portland, OR 97201. Of Attorneys for Defendants Oregon Department of Administrative Services and Katy Coba.
In this lawsuit, a public employee is suing the union she joined in October 2009 and from which she resigned in December 2020, while remaining a state employee. The employee also is suing the Oregon Department of Administrative Services (DAS), the state agency that processes her paychecks and, through February 2021, deducted her union dues and remitted them to the union. The employee additionally is suing the Director of DAS in the Director‘s official capacity. Against all defendants, the employee asserts federal civil rights claims under
After the employee commenced this lawsuit, the union filed an unfair labor practices (ULP) complaint against the employee with the Oregon Employment Relations Board (ERB), a different state agency.1 In its ULP complaint, the union alleges that, by filing her state claims in this federal lawsuit, rather than with the ERB, the employee violated state law. An ERB Administrative Law Judge (ALJ) has begun, but not yet concluded, state proceedings. The key factual dispute in the ERB proceeding is whether the employee and the union entered into a valid agreement in March 2016. The employee wants that question to be decided in federal court, rather than by the ERB, to avoid the potential application of issue preclusion. Thus, the employee seeks a temporary restraining order (TRO) against the ERB and its ALJ—who are not parties in
STANDARDS
In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court‘s decision on whether to issue a preliminary injunction. See Stuhlbarg Int‘l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit‘s earlier rule that a mere “possibility” of irreparable harm, rather than its likelihood, was sometimes sufficient to justify a preliminary injunction).
The Supreme Court‘s decision in Winter, however, did not disturb the Ninth Circuit‘s alternative “serious questions” test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
BACKGROUND4
Plaintiff Staci Trees (Trees) is a public employee in Oregon. Since 2009, she has worked for the Oregon Department of Transportation (ODOT). Defendant Service Employees
In October 2009, Trees signed a union membership agreement that authorized the deduction of SEIU union dues from her wages. Compl., ¶¶ 12-13; see also Compl. Ex. A. On June 27, 2018, the U.S. Supreme Court issued its decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), holding that, when applied to public-sector workers, “fair share” agreements violate an employee‘s First Amendment rights to freedom of association and freedom of speech.5 Plaintiff states that in July 2018, she informed SEIU that she no longer wanted to be a union member and no longer wanted union dues deducted from her monthly paycheck. She contends that SEIU never responded to this alleged communication.
Plaintiff also alleges that in December 2020 she again informed SEIU that she no longer wanted to be a union member and no longer wanted union dues deducted from her pay. In response to this communication, SEIU told Plaintiff that she was contractually obligated to pay
Whether Plaintiff signed the March 2016 dues authorization presents a factual dispute, albeit one that the Court need not resolve at this time. SEIU contends that its records show that Plaintiff signed the disputed agreement membership application and dues authorization on March 22, 2016 “via iPad” during “a general membership drive that SEIU conducted in 2016,” when its “organizers visited bargaining unit workers’ homes to sign up new union members and to ask existing members to sign new union membership agreements reaffirming their union membership. According to SEIU 503‘s membership records, a union organizer visited Plaintiff‘s home on the evening of March 22, 2016, and Plaintiff signed a new membership and dues agreement on an iPad.” Decl. of Becky Johnson, ¶¶ 4-5 (ECF 29) (emphasis added). The Court does not make any findings at this time regarding the merits of this factual dispute because its resolution at this time does not affect the outcome of the pending motion.
According to DAS, it receives a membership file from SEIU on a monthly basis, which includes SEIU‘s instructions on adding, maintaining, or ending dues deductions for represented employees. After each monthly file is received, DAS distributes the file to state agencies for processing. The agencies then withhold union dues for employees based on that information. Decl. of Nettie Pye, ¶ 3 (ECF 27).
On March 29, 2021, Plaintiff filed this lawsuit against SEIU, DAS, and Coba. Against all Defendants, Plaintiff, under
On June 8, 2021, SEIU filed with the ERB a ULP complaint against Plaintiff. Decl. of Shirin Khosravi, ¶ 2 (ECF 30). In that complaint, SEIU alleges that a union organizer visited Plaintiff‘s home on the evening of March 22, 2016, and after Plaintiff spoke with the organizer, Plaintiff signed a new membership agreement with her handwritten signature captured electronically via iPad. SEIU further alleges in its labor complaint that the 2016 membership agreement signed by Plaintiff provides authorization of dues deductions that may only be revoked after the first year “not less than thirty (30) and not more than forty-five (45) days prior
On June 28, 2021, DAS and Coba (collectively, the State Defendants) filed a motion to dismiss Plaintiff‘s federal lawsuit (ECF 26), and SEIU filed a motion to stay all claims in this action against SEIU, pending a final decision by the ERB in the SEIU‘s ULP proceeding against Plaintiff. ECF 28. United States Magistrate Judge Mustafa T. Kasubhai has scheduled oral argument on these two motions for December 2, 2021. ECF 41.
On October 6, 2021, Plaintiff filed a motion with the ALJ in the ERB proceeding to dismiss SEIU‘s complaint for lack of jurisdiction, which the ALJ denied on October 25, 2021. Decl. of Rebekah Millard, ¶¶ 4-5 (ECF 48-1); see also ECF 48-5 (letter ruling from ALJ). Plaintiff then filed a “motion to transmit legal question” to the full ERB and to stay the proceeding pending before the ALJ until after the full ERB‘s decision. The ERB denied that motion on November 1, 2021. Decl. of Rebekah Millard, ¶¶ 6-7 (ECF 48-1); see also ECF 48-6 (letter ruling from ERB).
DISCUSSION
In Plaintiff‘s motion for TRO, she argues that SEIU is seeking from ERB a factual determination that the signature SEIU alleges Plaintiff provided in March 2016 is “authentic and valid.” ECF 48, at 5. Plaintiff adds that SEIU “then plans to argue in this Court that the ERB‘s factual determination has preclusive effect in litigation of Ms. Trees’ federal constitutional claims.” Id. (emphasis in original). Plaintiff also argues that the “Court should enjoin the ERB from holding its hearing on Ms. Trees’ constitutional and § 1983 claims until the question of jurisdiction is decided.” Id., at 7. Defendants respond, however, that Plaintiff‘s constitutional and § 1983 claims are not pending before the ERB. Plaintiff admits the same. See Decl. of Rebekah Millard ¶ 8 (ECF 48-1) (“Further, during the pre-hearing conferences with the ALJ, the ALJ
Plaintiff focuses her motion for TRO exclusively on her federal civil rights claims under § 1983, and not on her state claims. See ECF 48, at 6-8. Plaintiff quotes the Supreme Court in arguing that § 1983 guarantees “a federal forum for claims of unconstitutional treatment at the hands of state officials.” Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2167 (2019) (quoting Heck v. Humphrey, 512 U.S. 477, 480 (1994)). Plaintiff adds that through § 1983, Congress guaranteed a federal judicial forum to adjudicate civil rights deprivations perpetrated by state actors. See Heck, 512 U.S. at 480.
In its written response to Plaintiff‘s motion, SEIU offers four arguments, only two of which the Court will address.10 First, SEIU argues that the Court lacks authority to enjoin the ERB or its ALJ, who are not parties to this lawsuit. Second, SEIU argues that Plaintiff has not
A. Whether the Court Has Authority to Enjoin the Pending ERB Proceeding
Plaintiff asks the Court to enjoin the ERB, a nonparty state agency, from completing its pending state administrative proceeding. “It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U.S. 32, 40 (1940). This principle applies to injunctions as well. In 1897, the Supreme Court invalidated an injunction “because it enjoins persons not parties to the suit,” explaining that “we do not think it comports with well-settled principles of equity procedure to include them in an injunction in a suit in which they were not heard or represented, or to subject them to penalties for contempt in disregarding such an injunction.” Scott v. Donald, 165 U.S. 107, 117 (1897).
This principle is codified in
This [rule] is derived from the common law doctrine that a decree of injunction not only binds the parties defendant but also those
identified with them in interest, in “privity” with them, represented by them or subject to their control. In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.
Regal Knitwear Co. v. Nat‘l Lab. Rels. Bd., 324 U.S. 9, 14 (1945); see also Chase Nat‘l Bank v. City of Norwalk, Ohio, 291 U.S. 431, 436-37 (1934) (stating that “persons not technically agents or employees may be specifically enjoined from knowingly aiding a defendant in performing a prohibited act if their relation is that of associate or confederate. Since such persons are legally identified with the defendant and privy to his contempt, the provision merely makes explicit as to them that which the law already implies“). Thus, as Judge Learned Hand explained in discussing the equitable doctrine that preceded the Federal Rules of Civil Procedure:
[T]he only occasion when a person not a party may be punished, is when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has power to forbid, an act of a party. This means that the respondent must either abet the defendant, or must be legally identified with him.
Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir. 1930) (emphasis added).
The narrow circumstances identified in
Plaintiff also argues that SEIU is pursuing ERB proceedings as a “usurpation” of this Court‘s jurisdiction over Plaintiff‘s claims. This appears to be an invocation of another narrow
Plaintiff‘s motion did not identify any specific legal basis for a federal court‘s authority to issue an injunction against a nonparty state agency other than § 1983 and the Court‘s “inherent authority.” ECF 48, at 7. Plaintiff states that “the Supreme Court long ago recognized that federal injunctive relief against a state proceeding can be essential to prevent irreparable loss of a person‘s constitutional rights.” ECF 48, at 8.12 Shortly before the hearing, Plaintiff filed a reply,
Plaintiff cites Bell v. Hood, 327 U.S. 678, 684 (1946), for the proposition that “it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do.” Id. Plaintiff also cites Justice Rehnquist‘s dissenting opinion in Carlson v. Green, 446 U.S. 14, 42 (1980), for the statement that “[t]he broad power of federal courts to grant equitable relief for constitutional violations has long been established.”
In Bell, the plaintiffs sued agents of the Federal Bureau of Investigation, seeking money damages for alleged illegal arrest, false imprisonment, and illegal searches and seizures of property, all in violation of the plaintiffs’ rights under the Fourth and Fifth Amendments. The
The Supreme Court explained that subject matter jurisdiction is not defeated “by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.” Bell, 327 U.S. at 682. The Court added:
The issue of law is whether federal courts can grant money recovery for damages said to have been suffered as a result of federal officers violating the Fourth and Fifth Amendments. That question has never been specifically decided by this Court. That the issue thus raised has sufficient merit to warrant exercise of federal jurisdiction for purposes of adjudicating it can be seen from the cases where this Court has sustained the jurisdiction of the district courts in suits brought to recover damages for depriving a citizen of the right to vote in violation of the Constitution. And it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do. Moreover, where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.
Id. at 684 (footnotes omitted).14 Thus, Bell provides, in dicta, broad and sweeping language but not in the context of whether, and if so under what circumstances, a federal court may enjoin an
SEIU states that a potential basis for the Court‘s authority to enjoin the ERB might be the All Writs Act,
Plaintiff argues that the administrative hearing before the ERB is a “usurpation of this Court‘s jurisdiction.” ECF 48, at 4. SEIU responds that this is merely a “run-of-the-mill situation in which there are parallel proceedings on related issues.” ECF 51, at 11. SEIU states:
It is well-settled that parallel proceedings in different forums (except in rem proceedings) do not by themselves compromise a federal court‘s jurisdiction. The Supreme Court has “never viewed
parallel in personam actions as interfering with the jurisdiction of either court . . . .” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 642 (1977) (plurality opinion). That principle has been settled for a century.
ECF 51, at 11.17 As SEIU adds, this principle continues to apply today. See Sandpiper Vill. Condo. Ass‘n., Inc. v. Louisiana-Pac. Corp., 428 F.3d 831, 844 (9th Cir. 2005). Thus, the All Writs Act does not authorize an injunction to block the ERB‘s proceedings because those proceedings do not in any way impair this Court‘s jurisdiction. Indeed, the ERB will not even adjudicate any of Plaintiff‘s federal claims. It will decide only separate ULP claims under Oregon law, although it also will likely make factual findings that might have preclusive effect in this federal lawsuit.
At oral argument, Plaintiff‘s counsel emphasized Plaintiff‘s “greatest” concern—that a factual finding made during the ERB hearing on the question of the alleged consent on the March 2016 agreement could be preclusive in this federal case. But “the necessary-in-aid-of-jurisdiction principle does not authorize interference with parallel in personam state actions merely because the state courts might reach a conclusion before the district court does.” Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1101 (9th Cir. 2008). Nor does this possibility show a likelihood of irreparable injury. The Court turns to that issue next.
Contrary to Plaintiff‘s assertions, she is not being denied access to a federal forum for her § 1983 civil rights claims or her federal racketeering (RICO) claim. Plaintiff filed her § 1983 and federal RICO claims in this Court, and this Court will adjudicate them. Further, Plaintiff and SEIU both agree that ERB has no jurisdiction to adjudicate Plaintiff‘s federal claims, and the ERB is not doing so.
As noted, however, the ERB has identified as one of its issues the factual question of whether SEIU and Plaintiff entered into a valid membership agreement in 2016. Plaintiff expresses concern that such a factual determination may be found against Plaintiff and might have preclusive effect in this federal lawsuit. Plaintiff states that a factual determination on that issue by the ERB should not be given preclusive effect. Plaintiff argues that
whether an administrative decision has a preclusive effect depends on: (1) whether the administrative forum maintains procedures that are “sufficiently formal and comprehensive“; (2) whether the proceedings are “trustworthy“; (3) whether the application of issue preclusion would “facilitate prompt, orderly and fair problem resolution“; and (4) whether the “same quality of proceedings and the opportunity to litigate is present in both proceedings.” . . . Thus, the administrative decision sought here cannot have a preclusive effect because a ULP proceeding does not guarantee procedures that are “sufficiently formal and comprehensive” to make them comparably trustworthy when compared to a Federal Court proceeding. Further, application of issue preclusion would not “facilitate prompt, orderly and fair problem resolution” because the “same quality of proceedings and the opportunity to litigate is [not] present in both proceedings.”
ECF 48, at 10 (citations omitted). The Court expresses no opinion on this question at this time. Issue preclusion (or “collateral estoppel,” as it previously was known) is a complex doctrine, and questions of issue preclusion are best resolved after thorough and nuanced briefing and argument.
Plaintiff further contends that giving preclusive effect to an adverse factual finding from the ERB is inconsistent with rights under § 1983. SEIU disagrees, citing Allen v. McCurry, 449 U.S. 90, 98 (1980) (“[T]he legislative history of § 1983 does not . . . suggest that Congress intended to repeal or restrict the traditional doctrines of preclusion.“). SEIU adds that the Ninth Circuit has held that “the rules of claim and issue preclusion apply equally to § 1983 actions in federal courts.” White v. City of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012). SEIU also quotes the Ninth Circuit as stating that “as a matter of federal common law, federal courts give preclusive effect to the findings of state administrative tribunals in subsequent actions under § 1983.” Miller v. County of Santa Cruz, 39 F.3d 1030, 1033 (9th Cir. 1994); see also Wehrli v. County of Orange, 175 F.3d 692, 694 (9th Cir. 1999); Ellrich v. Remas, 839 F.2d 630, 635 (9th Cir. 1988).
In either event, Plaintiff would not suffer an irreparable injury of the sort required for a TRO. If preclusion is not appropriate, Plaintiff has merely expended time and money litigating parallel proceedings temporally before the federal court could render its decision, which is not irreparable harm. See Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974) (“Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury.“); Graphic Commc‘ns Union, Chicago Paper Handlers’ & Electrotypers’ Loc. No. 2 v. Chicago Trib. Co., 779 F.2d 13, 15 (7th Cir. 1985) (“[T]he fact that an order to arbitrate imposes a cost, the cost of the arbitration, whether it is an opportunity cost of time or an out-of-pocket expense for lawyers or witness fees or whatever, or both types of costs, does not show irreparable harm.“); Cal. Specialty Insulation, Inc. v. Allied World Surplus Lines Ins., 2021 WL 3033401, at *4 (C.D. Cal. July 19, 2021) (“Allied World argues that it will suffer irreparable harm absent a stay because an intervening state court judgment could render its appeal meaningless. Allied World also contends the costs associated with litigating in state court and litigating the appeal to the Ninth Circuit would constitute irreparable harm. . . . As an initial matter, nearly all courts have concluded that incurring litigation expenses does not amount to an irreparable harm.” (simplified)); Dunson v. Cordis Corp., 2016 WL 10679457, at *3 (N.D. Cal.
If preclusion is appropriate, Plaintiff would not have suffered irreparable harm from litigating in a parallel forum and having certain facts adjudicated that properly are considered determined in this case through issue preclusion. And it will be this federal Court that determines whether the ERB‘s factual findings have preclusive effect. All of this is sufficient to defeat the irreparable injury requirement for Plaintiff‘s requested TRO. As another district court concluded in a somewhat analogous situation:
Turning to the traditional test for issuing a temporary restraining order, the Court finds that Plaintiffs have not made a showing of irreparable harm if the state court proceeds with its fairness hearing on the proposed class action settlement. . . . [A]ny res judicata effect of the state court settlement on the issues in this federal litigation will be determined in the future motion proceeding, thereby giving Plaintiffs another fair opportunity to argue their position.
San Diego Police Officers’ Ass‘n v. Aguirre, 2006 WL 8442795, at *2 (S.D. Cal. Sept. 22, 2006).
CONCLUSION
The Court DENIES Plaintiffs’ Motion for Temporary Restraining Order. ECF 48.
IT IS SO ORDERED.
DATED this 9th day of November, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
Notes
Thus, if the ERB were violating Plaintiff‘s federal civil rights by holding its ULP proceeding, then the authority of § 1983 itself, which authorizes injunctive relief, might provide a basis for the TRO that Plaintiff seeks. Plaintiff, however, does not contend that the ERB‘s proceeding violates Plaintiff‘s civil rights. She argues only that a factual finding that the ERB might issue in its proceeding would, if given preclusive effect here, disadvantage Plaintiff‘s prosecution of her federal claims in this Court. That is a far cry from the facts in Mitchum.