Wright v. Serv. Emps. Int'l Union Local 503,

48 F.4th 1112

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, Ninth Circuit.

Argued and Submitted February 8, 2022 Portland, Oregon

Filed September 19, 2022

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.

Before: Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges, and John R. Tunheim,^* District Judge.

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 42 U.S.C. § 1983 against Defendants.

First, she alleged that by deducting dues without her consent, Defendants violated her First Amendment right to be free from compelled speech, as recognized by Janus v. American Federation of State, County, & Municipal Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). Second, she alleged that Defendants violated her right to procedural due process under the Fourteenth Amendment by deducting dues and remitting them to the Union without affording her certain procedural safeguards. Wright also alleged several state law claims against SEIU. She sought declaratory and injunctive relief and reimbursement of all the dues payments wrongfully withheld. The district court concluded that Wright's claims for prospective relief were moot because she was no longer employed by the State. The court dismissed these claims for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court dismissed the damages claims against SEIU under Rule 12(b)(6) because Wright failed to allege facts showing a plausible basis that SEIU was a state actor for purposes of § 1983.

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 reasons similarly laid out in Belgau v. Inslee , 975 F.3d 940 (9th Cir. 2020), that Wright's § 1983 claims fail for lack of state action.

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, the State ceased deducting and remitting union dues to SEIU.

After retiring, Wright filed this lawsuit under § 1983 against all Defendants, alleging the claims noted above. The district court dismissed Wright's claim for prospective relief against all Defendants as moot under Rule 12(b)(1). The court dismissed Wright's remaining damages claims against SEIU under Rule 12(b)(6) because she failed to allege a plausible basis for state action under § 1983. Wright timely appealed.³ Fed. R. App. P. 4(a)(1)(A).

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 Defendants. 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 128 S.Ct. 2759, 171 L.Ed.2d 737 (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, 134 S.Ct. 2334, 189 L.Ed.2d 246 (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, 133 S.Ct. 1138, 185 L.Ed.2d 264 (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, 103 S.Ct. 1660, 75 L.Ed.2d 675 (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, 103 S.Ct. 1660 ).

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, 133 S.Ct. 1138. 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, 133 S.Ct. 1138. 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 a "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, 133 S.Ct. 1138. 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, 133 S.Ct. 1138.

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...