# Penning v. Service Employees International Union, Local 1021 > District Court, N.D. California · January 16, 2020 URL: https://www.frixlaw.com/law-library/cases/10062790 ## Case - **Court:** District Court, N.D. California - **Decided:** January 16, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10062790 ## How later opinions describe it (automated extraction) - noting that 19 plaintiffs do not contest the dismissal of their claims for declaratory and injunctive relief ## Opinion text 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 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., 10 Defendants. 11 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, 26 27 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 7 plaintiff’ s claims for retrospective relief pursuant to section 1983 fail as a matter of law. 8 Finally, with respect to plaintiff’s claims for retrospective relief under state law, such 9 claims are preempted by the Meyers-Milias-Brown Act, Cal. Gov’t Code §§ 3500-11, and barred 10 by California Government Code § 1159. See Babb, 378 F. Supp. 3d at 877, 878 (claims must be 11 dismissed based both on preemptive effect of state’s public employee collective-bargaining statute g 12 over state common law refund claims, and on Government Code § 1159 expressly barring such 13 = claims). Because the Court finds all of plaintiffs claims must be dismissed as a matter of law and 15 any amendment would be futile, no leave to amend is permitted. 16 This action is DISMISSED and the Clerk is directed to close the file. Vv This Order terminates Docket No. 22, 31, and 32. Z 18 IT Is SO ORDERED. 19 Dated: January 16, 2020 20 YVONNE GONZALEZ ROGERS 1 UNITED STATES DISTRICT COURT JUDGE 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10062790. Public record. Not legal advice.