April Bain; Bhavini Bhakta; Clare Sobetski, Plaintiffs-Appellants,
California Teachers Association; National Education Association; California Federation of Teachers; American Federation of Teachers; United Teachers Los Angeles; United Teachers of Richmond CTA/NEA; Ramon Cortines, in his capacity as Superintendent of Los Angeles Unified School District; Bruce Harter, in his capacity as Superintendent of West Contra Costa Unified School District; David Vannasdall, in his capacity as Superintendent of Arcadia Unified School District, Defendants-Appellees.
and Submitted December 6, 2017 Pasadena, California
from the United States District Court for the Central
District of California Stephen V. Wilson, District Judge,
Presiding D.C. No. 2:15-cv-02465-SVW-AJW
S. Lipshutz (argued), Gibson Dunn & Crutcher LLP, San
Francisco, California; Theodore J. Boutrous Jr., Marcellus
McRae, and Samuel Eckman, Gibson Dunn & Crutcher LLP, Los
Angeles, California; Kyle Hawkins, Gibson Dunn & Crutcher
LLP, Dallas, Texas; Michael R. Huston, Gibson Dunn &
Crutcher LLP, Washington, D.C.; for Plaintiffs-Appellants.
A. Harrington (argued), Jason Walta, and Alice O'Brien,
National Education Association, Washington, D.C., for
Before: Paul J. Kelly, Jr., [*] Consuelo M. Callahan, and Carlos T.
Bea, Circuit Judges.
panel dismissed as moot an appeal by public school teacher
plaintiffs from the district court's dismissal of their
action alleging that their Unions' requirement that they
pay a fee to support the Unions' political and
ideological activities violated their constitutional right to
panel determined that a change in plaintiffs'
professional circumstances during the pendency of this appeal
fundamentally altered the posture of this case. Because
plaintiffs had disassociated from their respective Unions,
they could no longer benefit from the injunctive and
declaratory relief they sought, and therefore their appeal
was moot. The panel rejected plaintiffs' attempt to
transform their lawsuit from a request for prospective
equitable relief into a plea for money damages. The panel
noted that plaintiffs had consistently represented throughout
the litigation that they were seeking only declaratory and
panel further denied plaintiffs' motion to add an
organizational plaintiff, the Association of American
Educators, to their suit under Federal Rule of Civil
Procedure 21. The panel held that Rule 21 may not be used to
rehabilitate a court's jurisdiction where a case becomes
moot on appeal. The panel further held that even if mootness
were not an insurmountable barrier to considering a Rule 21
motion, the panel would still deny the motion because
Association failed to satisfy the criteria for Rule 21
joinder. The panel dismissed plaintiffs' appeal and
remanded to the district court with instructions to dismiss
the case without vacating its judgment.
CALLAHAN, Circuit Judge:
are public school teachers in California who were, at the
time they filed their lawsuit, members of the
Defendants-Appellees public sector teachers' Unions.
Plaintiffs claim that their Unions' requirement that they
pay a fee to support the Unions' political and
ideological activities violates their constitutional right to
free speech. While "[public sector] union[s] remain as
free as any other entity to participate in the electoral
process with all available funds other than  state-coerced
agency fees lacking affirmative permission, "
Davenport v. Washington Educ. Ass'n, 551 U.S.
177, 190 (2007), Plaintiffs reason that, as exclusive
bargaining representatives under California law, the Unions
are state actors and thus subject to the First
Amendment's proscriptions. And because the First
Amendment prohibits state actors from infringing
individuals' right to free speech, Plaintiffs argue that
their Unions' requirement that Union members pay a
political fee violates their and other members'
change in Plaintiffs' professional circumstances during
the pendency of this appeal fundamentally alters the posture
of this case. Plaintiffs have disassociated from their
respective Unions, meaning they can no longer benefit from
the injunctive and declaratory relief they seek. Their appeal
is therefore moot. Perhaps cognizant of the consequences of
their actions, Plaintiffs have filed a motion to add the
Association of American Educators ("AAE") to their
suit as an organizational Plaintiff under Federal Rule of
Civil Procedure 21. But because we hold that Rule 21 is an
improper vehicle to resuscitate a moot case, we deny the
motion and dismiss Plaintiffs' appeal as moot.
law accommodates agency shoparrangements between public sector
teachers' unions and public school employers. Cal.
Gov't Code §§ 3343.1; 3544- 3544.9. To
establish a union, public school teachers must first form a
bargaining unit. Id. § 3344. If a majority of
teachers in the unit elect to negotiate collectively with
their employer, then the union "may become the exclusive
representative for the employees of [that] unit for purposes
of meeting and negotiating." Id. §
3544(a), (b). Once a union gains status as the exclusive
bargaining representative, the public employer may bargain
with only that union. Id. § 3543.1(a).
many States, California allows public sector unions to charge
a "fair share service fee"-commonly known as an
"agency fee"-to those public employees who do not
join the exclusive bargaining representative. Id.
§§ 3543(a), 3546. Nonmembers pay less than their
union-member counterparts because California law permits a
union to charge nonmembers only "chargeable
fees"-i.e., fees related to a union's collective
bargaining activities. Id. § 3546(a). Union
members, by contrast, are subject to the internal rules of
the union, which, as is pertinent here, include paying
"non-chargeable fees"-e.g., fees that fund
members-only benefits and the union's political,
ideological, and other activities unrelated to collective
bargaining. See id. § 3543.1(d). Supreme Court
precedent and California law prohibit unions from charging
objecting nonmembers for the unions' First
Amendment-protected expressive political activities.
Abood v. Detroit Bd. of Ed., 431 U.S. 209, 234-36
(1977); Cumero v. Pub. Emp't Relations Bd., 49
Cal.3d 575, 594 (1989).
with their own internal policies, the Unions in the instant
matter provide certain members-only benefits. For example,
Union members enjoy the privilege of voting on collective
bargaining agreements ("CBA") and sitting on school
district committees. In addition, the Unions provide
employment-related benefits such as disability insurance,
free legal representation, life insurance, death and
dismemberment benefits, and disaster relief. Nonmembers are
not entitled to these benefits, nor are they charged for
them. Cumero, 49 Cal.3d at 587-88 (under California
law, nonmembers "should not be required to support
activities which are beyond the Association's
representational obligations" (emphasis in
original)). And while the Unions could negotiate for
state-offered insurance benefits in the collective bargaining
process-e.g., California's State Disability Insurance and
Paid Family Leave ("SDI") program-they have opted
not to do so and instead offer alternative insurance to their
April Bain, Clare Sobetski, and Bhavini Bhakta were public
school teachers in California who elected to join the Unions.
They are no longer Union members, however, because they have
left their teaching positions. Bain's Union membership
ended in June 2017 and Sobetski's ended in August 2017.
For her part, Bhakta's Union membership ended in August
2016 when she was promoted to Assistant Principal at Arcadia
High School, a position that makes her ineligible for Union
filed their operative Second Amended Complaint
("SAC") in October 2015 in the Central District of
California as a 42 U.S.C. § 1983 civil rights action.
Both in the district court and on appeal, Plaintiffs claim
violations of their right to free speech under the First
Amendment and Article I, § 2(a) of the California
Constitution. Plaintiffs argue that the Unions and state
School Boards work together to force teachers to either
finance the Unions' political activities and thereby
surrender their free speech rights, or forgo the benefits of
union membership and keep their constitutional rights intact.
Plaintiffs assert that because membership benefits are so
enticing, most teachers will acquiesce, join the Unions, and
pay the non-chargeable- i.e., political-fee.
seek declaratory relief in the form of (1) a declaration that
California's agency shop laws, collective bargaining
laws, and the CBAs entered into the by the Unions violate
their constitutional rights; (2) a declaration that those
laws and CBAs coerce teachers into funding the Unions'
political activities in violation of their constitutional
rights; and (3) a declaration that those laws and CBAs
violate Plaintiffs' constitutional rights by forcing
school superintendents to deduct from teachers' paychecks
dues that support the Unions' non-chargeable activities.
Plaintiffs also seek an injunction (1) barring the Unions
from denying Union membership or any of its privileges based
on a teacher's refusal to pay the non-chargeable fee; and
(2) barring school superintendents from deducting the
non-chargeable fee from Union members' paychecks.
Finally, Plaintiffs seek "such additional or different
relief as [the district court] deems just and proper,
including an award of reasonable attorneys' fees and the
costs of this action."
Unions filed a motion to dismiss the SAC under Federal Rule
of Civil Procedure 12(b)(6), which the district court granted
with prejudice. The court rejected Plaintiffs' argument
that the Unions' internal membership rules requiring
their members to pay the non-chargeable fee constitute state
action. The court found unpersuasive Plaintiffs' theory
that "the choice [teachers] face between the benefits of
union membership and the lack of benefits of nonmember status
'is a product of state action because the coercion that
California teachers experience could not exist without the
State.'" To the contrary, the court found that
because the Unions could decide, without any intervention by
the State, not to require their members to pay non-chargeable
fees, Plaintiffs challenged only a private decision
by the Unions.
district court also rejected Plaintiffs' argument that
the CBAs negotiated by the State and the Unions are infused
with state action through state legislation authorizing
agency shops. The court noted that the "agency shop
arrangement established by the State does not compel
employees to finance union activities unrelated to collective
bargaining unless they choose to join a union."
(emphasis added). Citing the Fourth Circuit's decision in
Kidwell v. Transportation Communications International
Union, 946 F.2d 283 (4th Cir. 1991), the court reasoned
that the State's recognition of the Unions as collective
bargaining representatives did not transform the Unions'
"internal policies and practices" into state
action. Accordingly, because Plaintiffs failed to show that
the Unions qua "state actors" had infringed their
constitutional rights, the district court found no actionable
claim for relief and dismissed the case. Plaintiffs timely
review a district court's grant of a Rule 12(b)(6) motion
to dismiss for failure to state a claim de novo. Edwards
v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir.
2004). "A motion under Rule 12(b)(6) should be granted
only if 'it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief, ' construing the complaint in the
light most favorable to the plaintiff." Id.
(internal citation omitted) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). "To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). "Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice." Id.
first decide whether Plaintiffs' appeal is moot in light
of their disassociation from the Unions. "[A]n actual
controversy must be extant at all stages of review, not
merely at the time the complaint is filed."
Arizonans for Official English v. Arizona, 520 U.S.
43, 67 (1997) (internal quotation marks and citation
omitted). Thus, a plaintiff must satisfy the irreducible
constitutional minimum of Article III standing at each stage
of the litigation, including on appeal. Standing requires a
showing that a plaintiff has suffered an (1)injury-in-fact
that is actual or imminent and concrete and particularized,
rather than speculative or hypothetical; (2)which is ...