Penning v. Service Employees International Union, Local 1021

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3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

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6 STACY PENNING, CASE NO. 19-cv-03624-YGR

7 Plaintiff, ORDER GRANTING MOTION TO DISMISS;

GRANTING LEAVE TO FILE STATEMENTS

8 vs. OF RECENT DECISION

9 SERVICE EMPLOYEES INTERNATIONAL Re: Dkt. No. 22, 31, 32

UNION, LOCAL 1021, ET AL.,

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Defendants.

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12 Presently pending before the Court is the motion of defendants Service Employees

13 International Union, Local 1021, and Service Employees International Union to dismiss plaintiff

14 Stacey Penning’s complaint. (Dkt. No. 22.) Having considered the papers and underlying

15 evidence filed in support of and in opposition to the motion, the arguments of the parties on

16 December 10, 2019, and the recently issued authorities,1 and for the reasons set forth herein, the

17 Court GRANTS the motion to dismiss WITHOUT LEAVE TO AMEND.

18 Plaintiff alleges, on behalf of himself and a putative class of non-members of the union

19 defendants, claims for: (1) violation of 42 U.S.C. section 1983; (2) the federal Declaratory

20 Judgment Act, 28 U.S.C. § 2201; (3) state law conversion, and (4) a state law common count for

21 restitution of money had and received. Plaintiff alleges that his employer, the San Francisco

22 Public Utilities Commission, withheld fair-share fees from his wages and forwarded them to Local

23 1021, the exclusive collective bargaining representative for public sector employees in his unit, to

24 pay for Local 1021’s collective bargaining activities. Plaintiff contends that the compulsory

25 collection of fair-share fees violates his constitutional rights under Janus v. AFSCME Council 31,

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1 138 S.Ct. 2448 (2018) (“Janus”) and seeks declaratory and injunctive relief against compulsory

2 fair-share fees, retrospective refunds of fees previously collected.

3 Defendants move under Fed. R. Civ. Proc. (“FRCP”) 12(b)(1) to dismiss plaintiff’s claims

4 on three separate grounds. First, they move to dismiss claims for declaratory and injunctive relief

5 on the ground that this Court lacks subject-matter jurisdiction over those claims. Next, they move

6 to dismiss plaintiff’s claim for retrospective monetary relief under Section 1983 pursuant to the

7 “good faith” defense. Finally, defendants move to dismiss plaintiff’s state law claims on the

8 grounds that those claims are preempted by the Meyers-Milias-Brown Act and barred by

9 California Government Code §1159.

10 Plaintiff’s claims for prospective relief fail because they are moot. All fair-share fee

11 deductions from plaintiff and the putative class members ceased when the United States Supreme

12 Court issued its decision in Janus, i.e. nearly one year before plaintiff filed his complaint.

13 Accordingly, there is no reasonable likelihood of such deductions recurring since Janus declared

14 them unconstitutional. “[E]very other district court to consider this issue has found claims for

15 prospective relief moot after Janus.” Babb v. Cal. Teachers Ass’n, 378 F. Supp. 3d 857, 871

16 (C.D. Cal. 2019) (citing cases), appeal pending, No. 19-55692 (9th Cir.); Danielson v. AFSCME

17 Council 28, 340 F. Supp. 3d 1083, 1084 (W.D. Wash. 2018), affirmed Danielson v. Inslee, No. 18-

18 36087, 945 F.3d 1096, __, 2019 WL 7182203 at *2 n.2 (9th Cir. Dec. 26, 2019) (noting that

19 plaintiffs do not contest the dismissal of their claims for declaratory and injunctive relief). This

20 Court agrees that the claims for prospective relief are moot.

21 With respect to the claims for repayment of fair-share fees previously deducted before

22 Janus, the good faith doctrine precludes such relief under section 1983. As the Ninth Circuit

23 recently held last month, affirming dismissal of a similar post-Janus action:

24 a union defendant can invoke an affirmative defense of good faith to retrospective

monetary liability under section 1983 for the agency fees it collected pre-Janus,

25 where its conduct was directly authorized under both state law and decades of

Supreme Court jurisprudence. The Union was not required to forecast changing

26 winds at the Supreme Court and anticipatorily presume the overturning of Abood.

Instead, we permit private parties to rely on judicial pronouncements of what the

27 law is, without exposing themselves to potential liability for doing so.

The ability of the public to rely on the courts’ pronouncements of law is integral

1 to the functioning of our judicial system. After all, “‘[i]t is emphatically the

province and duty of the judicial department to say what the law is.” Marbury v.

2 Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). If private parties could

no longer rely on the pronouncements of even the nation’s highest court to steer

3 clear of liability, it could have a destabilizing impact on the judicial system.

4 Because the Union’s action was sanctioned not only by state law, but also by

directly on-point Supreme Court precedent, we hold that the good faith defense

5 shields the Union from retrospective monetary liability as a matter of law. In so

6 ruling, we join a growing consensus of courts across the nation

Danielson, 945 F.3d 1096, ___, 2019 WL 7182203, at *3, 7. Consequently, the Court finds that

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plaintiff’ s claims for retrospective relief pursuant to section 1983 fail as a matter of law.

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Finally, with respect to plaintiff’s claims for retrospective relief under state law, such

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claims are preempted by the Meyers-Milias-Brown Act, Cal. Gov’t Code §§ 3500-11, and barred

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by California Government Code § 1159. See Babb, 378 F. Supp. 3d at 877, 878 (claims must be

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dismissed based both on preemptive effect of state’s public employee collective-bargaining statute

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over state common law refund claims, and on Government Code § 1159 expressly barring such

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= claims).

Because the Court finds all of plaintiffs claims must be dismissed as a matter of law and

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any amendment would be futile, no leave to amend is permitted.

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This action is DISMISSED and the Clerk is directed to close the file.

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This Order terminates Docket No. 22, 31, and 32.

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IT Is SO ORDERED.

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Dated: January 16, 2020

20 YVONNE GONZALEZ ROGERS

1 UNITED STATES DISTRICT COURT JUDGE

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