Belgau v. Inslee

• Citation: 975 F.3d 940
• Decision Date: 16 September 2020
• Docket Number: No. 19-35137,19-35137
• Parties: Melissa BELGAU; Donna Bybee; Michael Stone; Richard Ostrander ; Miriam Torrespl; Katherine Newman; Gary Honc, Plaintiffs-Appellants, v. Jay Robert INSLEE, in His Official Capacity as Governor of the State of Washington; David Schumacher, in His Official Capacity as Director of the Washington Office of Financial Management; John Weisman, in His Official Capacity as Director of the Washington Department of Health ; Cheryl Strange, in Her Official Capacity as Director of the Washington Department of Social Health and Services; Roger Millar, in His Official Capacity as Director of the Washington Department of Transportation ; Joel Sacks, in His Official Capacity as Dir. of Washington Department of Labor and Industries; Washington Federation of State Employees, (AFSCME, Council 28), Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

975 F.3d 940

Melissa BELGAU; Donna Bybee; Michael Stone; Richard Ostrander ; Miriam Torrespl; Katherine Newman; Gary Honc, Plaintiffs-Appellants,

v.Jay Robert INSLEE, in His Official Capacity as Governor of the State of Washington; David Schumacher, in His Official Capacity as Director of the Washington Office of Financial Management; John Weisman, in His Official Capacity as Director of the Washington Department of Health ; Cheryl Strange, in Her Official Capacity as Director of the Washington Department of Social Health and Services; Roger Millar, in His Official Capacity as Director of the Washington Department of Transportation ; Joel Sacks, in His Official Capacity as Dir. of Washington Department of Labor and Industries; Washington Federation of State Employees, (AFSCME, Council 28), Defendants-Appellees.

No. 19-35137

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2019 Seattle, Washington

Filed September 16, 2020

James G. Abernathy (argued), Olympia, Washington, for Plaintiffs-Appellants.

Matthew J. Murray (argued), Scott A. Kronland, and P. Casey Pitts, Altshuler Berzon LLP, San Francisco, California; Edward E. Younglove III, Younglove & Coker PLLC, Olympia, Washington; for Defendant-Appellee Washington Federation of State Employees, (AFSCME, Council 28).

Alicia Orlena Young (argued), Senior Counsel; Kelly M. Woodward, Attorney; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Defendants-Appellees Jay Robert Inslee, David Schumacher, John Weisman, Cheryl Strange, Roger Millar, and Joel Sacks.

Before: M. Margaret McKeown and Morgan Christen, Circuit Judges, and M. Douglas Harpool,^* District Judge.

OPINION

McKEOWN, Circuit Judge:

The Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31 was a gamechanger in the world of unions and public employment. ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). In Janus the Court concluded that compelling nonmembers to subsidize union speech is offensive to the First Amendment. Public employers stopped automatically deducting representation fees from nonmembers.

But the world did not change for Belgau and others who affirmatively signed up to be union members. Janus repudiated agency fees imposed on nonmembers, not union dues collected from members, and left intact "labor-relations systems exactly as they are." Id. at 2485 n.27. Belgau and fellow union-member employees claim that, despite their agreement to the contrary, deduction of union dues violated the First Amendment. Their claim against the union fails under 42 U.S.C. § 1983 for lack of state action, a threshold requirement. Their First Amendment claim for prospective relief against Washington state also fails because Employees affirmatively consented to deduction of union dues. Neither state law nor the collective bargaining agreement compels involuntary dues deduction and neither violates the First Amendment. We affirm the district court's dismissal of the case.

BACKGROUND

The putative class action plaintiffs Melissa Belgau, Michael Stone, Richard Ostrander, Miriam Torres, Katherine Newman, Donna Bybee, and Gary Honc (collectively, "Employees") work for Washington state and belong to a bargaining unit that is exclusively represented by the Washington Federation of State Employees, AFSCME Council 28 ("WFSE"). See RCW 41.80.080(2) – (3). Washington employees are not required to join a union to get or keep their jobs, though around 35,000 of the 40,000 employees in the bargaining unit are WFSE members. See RCW 41.80.050.

Employees became union members within three months of starting work. They signed membership agreements authorizing their employer, Washington state, to deduct union dues from their bi-weekly paychecks and transmit them to WFSE.

At the time Employees signed the membership cards, union dues were between 1.37% and 1.5% of base wages. They had the option of declining union membership and paying fair-share representation (or agency) fees, which were approximately 65–79% of union dues. Agency fees covered the cost incurred by the union in representing the interests of all employees—members and nonmembers alike—in the bargaining unit over the terms of employment. See Abood v. Detroit Bd. of Educ. , 431 U.S. 209, 232, 235, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), overruled by Janus , 138 S. Ct. 2448. The monies could not be used for First Amendment activities that were "not germane to [the union's] duties as collective-bargaining representative." Id. at 235, 97 S.Ct. 1782.

Joining the union conferred rights and benefits. Employees could vote on the ratification of collective bargaining agreements, vote or run in WFSE officer elections, serve on bargaining committees, and otherwise participate in WFSE's internal affairs. Employees also enjoyed members-only benefits, including discounts on goods and services, access to scholarship programs, and the ability to apply for disaster/hardship relief grants.

Based on the authorization in the membership agreements, Washington deducted union dues from Employees' paychecks. Article 40 of the 2017–2019 collective bargaining agreement ("CBA") between Washington and WFSE required Washington to deduct "the membership dues from the salary of employees who request such deduction ... on a Union payroll deduction authorization card," and to "honor the terms and conditions" of these membership cards. Washington law also directed Washington to collect the dues on behalf of WFSE from union members who authorized the deduction. See RCW 41.80.100(3)(a).¹

In 2017, WFSE circulated a revised membership agreement. The revised card, a single-page document, headlined: "Yes!" the signatory "want[s] to be a union member." A series of voluntary authorizations followed. The signatory "voluntarily authorize[ed]" and "direct[ed]" Washington to deduct union dues and remit them to WFSE. The signatory agreed that the "voluntary authorization" will be "irrevocable for a period of one year." The signatory reiterated and confirmed these voluntary authorizations above the signature line. Employees were not required to sign the revised cards to keep their jobs or remain as WFSE members. Employees signed the revised cards.

After the Supreme Court decided Janus in June 2018, Washington and WFSE promptly amended the operative 2017–2019 CBA. These July 2018 and August 2018 Memos of Understanding removed Washington's authority to deduct an "agency shop fee, non-association fee, or representation fee" from nonmember paychecks. However, the updated provision did not change Washington's obligation to collect "membership dues" from those who authorized the deduction and to "honor the terms and conditions of each employee's signed membership cards."

After the Janus decision, Employees notified WFSE that they no longer wanted to be union members or pay dues. Per this request, WFSE terminated Employees' union memberships. However, pursuant to the terms of the revised membership agreements, Washington continued to deduct union dues from Employees' wages until the irrevocable one-year terms expired. The dues were last collected from Employees when the one-year terms expired in April 2019.

In August 2018, Employees filed a putative class action against the state defendants—Washington State Governor Jay Inslee, and state agency directors and secretaries David Schumacher, John Weisman, Cheryl Strange, Roger Millar, and Joel Sacks (collectively, "Washington")—and WFSE alleging that the dues deductions violated their First Amendment rights and unjustly enriched WFSE. Employees sought injunctive relief against Washington from continued payroll deduction of union dues, and compensatory damages and other relief against WFSE for union dues paid thus far. The district court granted summary judgment for Washington and WFSE and dismissed the case.

ANALYSIS

I. THE § 1983 CLAIM AGAINST THE UNION FAILS FOR LACK OF STATE ACTION

The gist of Employees' claim against the union is that it acted in concert with the state by authorizing deductions without proper consent in violation of the First Amendment. The fallacy of this approach is that it assumes state action sufficient to invoke a constitutional analysis. To establish a claim under 42 U.S.C. § 1983, Employees must show that WFSE deprived them of a right secured by the Constitution and acted "under color of state law." Collins v. Womancare , 878 F.2d 1145, 1147 (9th Cir. 1989). The Supreme Court has long held that "merely private conduct, however discriminatory or wrongful," falls outside the purview of the Fourteenth Amendment. Blum v. Yaretsky , 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (citation omitted).

The state action inquiry boils down to this: is the challenged conduct that caused the alleged constitutional deprivation "fairly attributable" to the state? Naoko Ohno v. Yuko Yasuma , 723 F.3d 984, 993 (9th Cir. 2013) ; see Blum , 457 U.S. at 1004, 102 S.Ct. 2777 ("constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains"); Flagg Bros., Inc. v. Brooks , 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (the challenged unconstitutional conduct must be "properly attributable to the State"). The answer here is simple: no.

We employ a two-prong inquiry to analyze whether Washington's "involvement in private action is itself sufficient in character and impact that the government fairly can be viewed as responsible for the harm of which plaintiff complains." Ohno , 723 F.3d at 994 ; see Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (two-prong test). The first prong—"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 state or by a person for whom the State is responsible’ "—is not met...