Cummings v. Connell
| Decision Date | 29 August 2003 |
| Docket Number | No. CIV.S-99-2176 WBS/DAD.,CIV.S-99-2176 WBS/DAD. |
| Citation | 281 F.Supp.2d 1187 |
| Parties | Christine A. CUMMINGS, et al., Plaintiffs, v. Kathleen CONNELL, Controller, State of California, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Steven R Burlingham, Gary Till and Burlingham, Sacramento, CA, W. James Young, Pro Hac Vice, National Right to Work Legal Defense Foundation Inc., Springfield, VA, Dylan Bradley Carp, Kirkpatrick and Lockhart, LLP, San Francisco, CA, for Plaintiffs.
Warren Curtis Stracener, California Department of Personnel Administration, Legal Division, Sacramento, CA, Christopher C. Foley, Attorney General's Office of California Dept. of Justice, Los Angeles, CA, Leslie R. Lopez, Attorney General's Office for California, Sacramento, CA, for Kathleen Connell.
Warren Curtis Stracener, California Department of Personnel Administration, Legal Division, Sacramento, CA, for Marty Morgenstern.
Warren Curtis Stracener, California Department of Personnel Administration, Legal Division, Sacramento, CA, Harry J. Gibbons, Jr., Anne Maria Giese, California State Employees Association, Sacramento, CA, Jeffrey Brian Demain, Altshuler, Berzon, Nussbaum, Rubin and Demain, San Francisco, CA, for California State Employees Association, Local 1000 and Local 1000 Service Employees International Union AFL-CIO-CLC.
This 42 U.S.C. § 1983 action arises from the failure of defendant California State Employees Association ("CSEA") to provide non-union members with sufficient notice of "fair share" fees pursuant to Chicago Teachers Union v. Hudson, 475 U.S. 292, 310, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). On May 2, 2001, this court granted plaintiffs' motion for summary judgment in part and awarded partial restitution of withdrawn fees to all nonmembers. On appeal, the Ninth Circuit "affirmed in part, reversed in part and remanded." Cummings v. Connell, 316 F.3d 886 (9th Cir. 2003). Plaintiffs now bring this motion for summary judgment and/or amendment of judgment on remand.
CSEA is the exclusive representative for nine bargaining units of California state employees. In March 1999, CSEA entered into collective bargaining agreements that permitted the state to deduct and forward to CSEA "fair share" fees for nonmember employees in CSEA-represented bargaining units. The "fair share" fee purportedly represented the nonmembers' share of the cost of collective bargaining. These "fair share" fee deductions commenced in April 1999.
In April 1999, June 1999,1 and twice in January 2000, CSEA sent notices to nonmembers explaining the "fair share" fee deductions. This court found that those notices did not comply with the Hudson requirements2 for providing fee payers sufficient information to object to and challenge CSEA's fee calculations. See Cummings v. Connell, 177 F.Supp.2d 1060, 1066-68 (E.D.Cal.2001). In May 2000, CSEA finally issued a Hudson-compliant notice and renewed the opportunity for nonmembers to object and to receive their money back with interest.
On May 2, 2001, this court granted plaintiffs' motion for summary judgment in part and awarded restitution of the nonchargeable portion of the withdrawn fees to all nonmembers, including those who did not object pursuant to the May 2000 notice. On appeal, the Ninth Circuit found that "the district court went too far in ordering partial restitution to all class members" because "the nonmembers all eventually received notices with sufficient information under Hudson and a renewed opportunity to object and receive their money back with interest." Cummings, 316 F.3d at 894-95. The Ninth Circuit stated further: "We fail to see how plaintiffs suffered any compensable harm (aside from nominal damages) from the initial defective notice." Id. at 895.
This case is now before the court on plaintiffs' motion for summary judgment and/or amendment of judgment seeking nominal damages. Specifically, plaintiffs seek "payment of $1.00 for each illegal fee seizure suffered by each Plaintiff and class member, and $1.00 for each constitutionally-inadequate notice received by each Plaintiff and class member, or nominal damages of up to $17.00 per Plaintiff and class member." (Reply at 15).
The court must grant summary judgment to a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party adverse to a motion for summary judgment may not simply deny generally the pleadings of the movant; the adverse party must designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).3
At the outset, CSEA argues that the court is precluded from awarding nominal damages to plaintiffs on remand because: (1) plaintiffs waived nominal damages by not specifically requesting them in their appellate briefs to the Ninth Circuit; and (2) this court has no power to grant "any other or further relief" than what the Ninth Circuit has mandated. In re Beverly Hills Bancorp, 752 F.2d 1334, 1337 (9th Cir.1984).
First, the court is aware of no authority for the proposition that the failure to seek nominal damages on appeal constitutes a waiver where, as here, plaintiff's entitlement to nominal damages arose only by virtue of the appellate court's reversal of compensatory damages.4 Here, it is undisputed that plaintiffs properly requested nominal damages in their complaint, (Cmpl. ¶ 1,3), as well as in their original summary judgment papers. In granting summary judgment in favor of plaintiffs, this court did not award nominal damages because it found compensatory damages appropriate instead. See Schneider v. County of San Diego, 285 F.3d 784, 795 (9th Cir.2002) (); see also Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d 888, 889 (D.C.Cir.1952) (). The issue on review before the Ninth Circuit, therefore, was plaintiffs' entitlement to compensatory damages, and the issue of nominal damages did not arise until after the compensatory damages award was vacated. Plaintiffs did not waive their nominal damages claim by failing to request a form of relief to which they were not entitled at the commencement of the appeal because their entitlement to compensatory damages was still in place.
Second, the Ninth Circuit's opinion did not preclude this court from awarding nominal damages. CSEA argues that: (1) the Ninth Circuit's observation about plaintiffs' nominal injury does not constitute a direction to award nominal damages; (2) the Ninth Circuit opinion contains no specific direction to award nominal damages on remand5; and (3) such an award by this court would constitute relief "other or further" than what was mandated by the appellate court. However, on remand, the trial court retains the power to decide issues left undecided by the appellate court. See Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438 (9th Cir.1982) (); see also Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (); cf. United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995) () (citing United States v. Caterino, 29 F.3d 1390, 1395-96 (9th Cir.1994)).
Here, the Ninth Circuit opinion contains no specific mandate about the remedies to be awarded on remand—only the statement that plaintiffs suffered nominal but not compensable injuries. Even if CSEA is correct that the Ninth Circuit was silent as to whether nominal damages should be awarded to plaintiffs, this court remains free to award nominal damages as long it does so in a manner consistent with the appellate court's findings. A decision by this court to award nominal damages to plaintiffs, far from being relief "further or other than" the Ninth Circuit mandate, would be perfectly consistent with the Ninth Circuit's determination that plaintiffs suffered nominal injuries.
Accordingly, this court is not precluded from considering plaintiffs' request for nominal damages by either waiver or Ninth Circuit mandate.
Typically, a plaintiff who proves a violation of his or her constitutional rights is "legally entitled to judgment with a mandatory nominal damages award of $1.00 as a symbolic vindication of [his or] her constitutional right." Floyd v. Laws, 929 F.2d 1390, 1403 (9th Cir.1991); see also Schneider, 285 F.3d at 794 ().
In light of the Ninth Circuit opinion, the issue of whether plaintiffs suffered an injury entitling them to nominal damages is not a matter of dispute. However, the parties are in dispute as to: (1) which plaintiffs should receive nominal damages and (2) the amount of nominal damages each plaintiff should receive.
Plaintiffs argue that each member of the plaintiff class has been subjected to a constitutional violation and should therefore receive individual vindication. CSEA, on the other side, argues that where, as here, the plaintiff class is large, awarding even $1.00 to each class member...
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