Stroeder v. Service Employees International Union, Local 503, Oregon Public Employees Union

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

COLLEEN STROEDER, No. 3:19-cv-01181-HZ

Plaintiff, OPINION & ORDER

v.

SERVICE EMPLOYEES INTERNATIONAL

UNION, LOCAL 503, OREGON PUBLIC

EMPLOYEES UNION; KATE BROWN, in

her official capacity as Governor of Oregon;

PAUL MATHER, in his Official capacity as

acting director of the Oregon Department of

Transportation; and KATY COBA, in her official

capacity as Director of the Oregon Department

of Administrative Services,

Defendants.

HERNÁNDEZ, District Judge:

Plaintiff brings this action under 42 U.S.C. § 1983 and 28 U.S.C. § 2201(a) against

Defendants Kate Brown, Paul Mather, and Katy Coba (“State Defendants”) and Service

Employees International Union, Local 503, Oregon Public Employees Union (SEIU). Plaintiff

alleges that Defendants violated her First Amendment rights to free speech and freedom of

association when they continued to deduct dues from her wages after she resigned her union

membership following the Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448

(2018). Before the Court is State Defendants’ motion to dismiss [24]. For the reasons that follow,

the motion is granted, and State Defendants are dismissed from this case.

BACKGROUND

Plaintiff Colleen Stroder began working for the Oregon Department of Transportation

(ODOT) in 2008. Compl. ¶ 5, ECF 1. When she started the job, she also joined the Service

Employees International Union Local 503, Oregon Public Employees Union (“SEIU”). Compl.

¶¶ 12–14. As part of joining the union, Plaintiff signed a union membership application card.

Compl. ¶ 14. On September 19, 2017, she renewed her membership and signed another union

membership application card. Compl. ¶ 17. This card included a “dues irrevocability provision”

that provided that Plaintiff could opt out of union dues only during a 15-day window each year.

Compl. ¶ 19, 27. Plaintiff remained a member of SEIU until August 28, 2018, when she resigned

her membership following the Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448

(2018). Compl. ¶ 18. However, under the terms of the agreement—specifically, the dues

irrevocability provision—SEIU informed Plaintiff that she could not end her dues deductions

until August 3, 2019. Compl. ¶¶ 18–25. On August 20, 2019, Defendants stopped deducting

union dues and fees from Plaintiff’s wages. Pye Decl. ¶¶ 4–5, ECF 25.

STANDARDS

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375, 377 (1994). A party may challenge a court’s subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) motion may attack the

substance of the complaint’s jurisdictional allegations even though the allegations are formally

sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979–80 (9th Cir. 2007) (court treats

motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion);

Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a

Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite

their formal sufficiency[.]”) (internal quotation omitted). Additionally, a court may consider

evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d

683, 685 (9th Cir. 2009); see also Dreier, 106 F.3d at 847 (a challenge to the court’s subject

matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly

before the court).

Mootness is a question of subject matter jurisdiction properly raised under Rule 12(b)(1).

White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

DISCUSSION

Plaintiff brings a single claim for injunctive and declaratory relief against State

Defendants. Plaintiff argues that Defendants violated Plaintiff’s First Amendment rights to free

speech and freedom of association “[b]y refusing to allow Plaintiff to withdraw from the Union

and end her dues deduction until a specified time.” Compl. ¶¶ 30–44. State Defendants move to

dismiss the claim against them as moot.1

“Article III of the Constitution limits federal courts to adjudicating actual, ongoing

controversies between litigants.” Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998).

Generally, an action is moot “when the issues presented are no longer ‘live’ or the parties lack a

1 State Defendants also argue that any claim for damages is barred by the Eleventh Amendment.

Plaintiff has, however, clarified that she does not seek damages against State Defendants. Pl.

Resp. 2.

legally cognizable interest in the outcome.” Lee v. Schmidt–Wenzel, 766 F.2d 1387, 1389 (9th

Cir. 1985) (internal quotations and citations omitted). “The basic question in determining

mootness is whether there is a present controversy as to which effective relief can be granted.”

Nw. Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988).

A federal court cannot issue a declaratory judgment if a claim has become moot. United

Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 89 (1947); Native Vill. of Noatak v. Blatchford, 38

F.3d 1505, 1514 (9th Cir. 1994) (overruled on other grounds). A request for declaratory relief

becomes moot when the facts alleged fail to show that there is a substantial controversy

“between parties having adverse legal interests, of sufficient immediacy and reality to warrant

the issuance of declaratory judgment.” Preiser v. Newkirk, 422 U.S. 395, 402 (1975); see also

Jones Intercable of San Diego v. City of Chula Vista, 80 F.3d 320, 328 (9th Cir. 1995) (case

moot when cable television licensee no longer could or wanted to operate cable system); Nome

Eskimo Cmty. v. Babbitt, 67 F.3d 813, 815 (9th Cir. 1995) (lease sale that was center of

controversy canceled for lack of bids with no immediate prospect of another similar lease sale

ended case, constitutionally and practically); Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188

(9th Cir. 2000) (after passage of statute prohibiting affirmative action, law school’s “abandoned

policy” of affirmative action made litigation moot). Similarly, “[c]laims for injunctive relief

become moot when the challenged activity ceases if subsequent events have made it clear that

the alleged violations could not reasonably be expected to recur.” Ruiz, 160 F.3d at 549

(quotation omitted); Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1009 (9th Cir.

1978).

A claim is does not become moot, however, when it is “capable of repetition yet evading

review.” See Honig v. Doe, 484 U.S. 305, 318–20 (1988); Roe v. Wade, 410 U.S. 113, 125

(1973); Am. Rivers v. National Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997); Doe

v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999). “The capable of repetition, yet

evading review exception to mootness applies only where (1) the duration of the challenged

action is too short to allow full litigation before it ceases, and (2) there is a reasonable

expectation that the plaintiffs will be subjected to it again.” Johnson v. Rancho Santiago

Community College Dist., 623 F.3d 1011 (9th Cir. 2010) (quotation omitted). This rule applies

only in “exceptional circumstances,” GTE California, Inc. v. F.C.C., 39 F.3d 940, 945 (9th Cir.

1994), and provides “only minimal protection to individual plaintiffs,” Doe v. Att’y General of

the United States, 941 F.2d 780, 784 (9th Cir. 1991).

Plaintiff acknowledges that Defendants have stopped deducting dues from Plaintiff’s

wages. Plaintiff argues, however, that her claims are “capable of repetition yet evading review.”

Plaintiff relies in part on Fisk v. Inslee, 759 F. App’x 632 (9th Cir. 2019). In Fisk, the Ninth

Circuit issued an unpublished opinion rejecting defendants’ argument that non-damages claims

were moot after the defendant union stopped deducting dues from the plaintiffs’ wages:

Appellants’ non-damages claims are not moot. Although no class has been certified and

SEIU and the State have stopped deducting dues from Appellants, Appellants’ non-

damages claims are the sort of inherently transitory claims for which continued litigation

is permissible. See Gerstein v. Pugh, 420 U.S. 103, 111 n.11, 95 S.Ct. 854, 43 L.Ed.2d 54

(1975) (deciding case not moot because the plaintiff’s claim would not last “long enough

for a district judge to certify the class”); see also County of Riverside v. McLaughlin, 500

U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Indeed, claims regarding the dues

irrevocability provision would last for at most a year, and we have previously explained

that even three years is “too short to allow for full judicial review.” Johnson v. Rancho

Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1019 (9th Cir. 2010). Accordingly,

Appellants’ non-damages claims are not moot simply because the union is no longer

deducting fees from Appellants.

759 F. App’x at 633.

While the facts here are very similar to Fisk, they differ in one significant respect: Fisk

involved a putative class action, where prospective class members presumably remained subject

to the challenged conduct. Thus, while Fisk addressed the first prong of the “capable of

repetition, yet evading review” exception (whether the duration of the challenged action is too

short to allow full litigation), the court did not address the second prong (whether there is a

reasonable expectation that the plaintiffs will be subjected to the challenged action again).

Here, there is no putative class action. Even if Plaintiff has satisfied the first prong of the

exception—and this is the sort of inherently transitory claim for which continued litigation is

permissible—the Court must still determine whether there is a reasonable expectation that

Plaintiff will be subjected to the challenged action again. See Unabom Trial Media Coal. v. U.S.

Dist. Court for the E. Dist. of California, 183 F.3d 949, 950 (9th Cir. 1999) (exception applies

“only when both factors are simultaneously present”).

The Court cannot find a reasonable expectation that Plaintiff will be subjected to the

challenged action again. Plaintiff is not seeking to recover damages from State Defendants.

Plaintiff is no longer a union member, her dues authorization is no longer in effect, and dues are

no longer being deducted from her paychecks. In fact, Plaintiff would “have to rejoin [her] union

for [her] claim to be live,” and, “given [her] representations in this lawsuit, [this] seems a remote

possibility.” Babb v. Cal. Teachers Ass’n., 378 F. Supp. 3d 857, 886 (C.D. Cal. 2019); see also

Smith v. Bieker, 18-cv-05472-VC, 2019 WL 2476679, *1 (N.D. Cal. June 13, 2019) (finding

similar claims moot). Plaintiff has identified no facts to suggest otherwise. Thus, the claim

against State Defendants must be dismissed as moot.

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CONCLUSION

For the reasons set forth above, the Court grants State Defendants’ Motion to Dismiss

[24].

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Dated this b day of Ry □ , 2019.

MARCO A. HERNANDEZ

United States District Judge

OPINION & ORDER - 7