# Wright v. Service Employees International Union Local 503

> District Court, D. Oregon · September 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10392446

## Case

- **Court:** District Court, D. Oregon
- **Decided:** September 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Jodee Wright, an individual;
Case No. 6:20-cv-00520-MC
Plaintiff,
v. OPINION AND ORDER

Service Employees International Union
Local 503, a labor organization; Oregon
Department of Administrative Services; and
Katy Coba, in her official capacity as Director
of the Oregon Department of Administrative
Services;

Defendants.
_____________________________________
MCSHANE, District Judge:
Plaintiff Jodee Wright worked for the Oregon Health Authority. She brings this action
against the Service Employees International Union Local 503 (“SEIU 503”), as well as the
Oregon Department of Administrative Services and its administrator.(the “State”). Ms. Wright
claims her First and Fourteenth Amendment rights were violated when the defendants garnished
union dues from her paychecks without her authorization. SEIU 503 moves to dismiss, arguing
that Wright’s claims (1) are moot and (2) fail on the merits as the garnishments did not violate
the First or Fourteenth Amendments.1 Because Wright’s claim for prospective relief is moot and
her § 1983 claims for retrospective and declaratory relief fail on the merits, SEIU 503’s Motion
to Dismiss (ECF No. 14) is GRANTED in part.

1 The State joined SEIU’s motion to dismiss. As Wright’s § 1983 claims clearly fail because there was no state
action, the Court does not address SEIU 503’s alternative arguments regarding the alleged First and Fourteenth
Amendment violations or the State Defendants’ alternative argument regarding sovereign immunity.
BACKGROUND2
Wright is a former employee of the Oregon Health Authority. During her employment,
the Oregon Department of Administrative Services paid Wright’s wages. The State deducted
union dues from Wright’s paychecks pursuant to a collective bargaining agreement between the
department and SEIU 503. Wright alleges that she never joined the union or authorized the

deductions. Rather, Wright alleges that SEIU 503 forged her signature on a union membership
dues authorization form, thereby wrongfully authorizing the department to withhold union dues
from her paychecks for a period of years. Wright objected to the deductions—and her union
membership—but was forced to continue paying dues per the terms of the membership
agreement. Wright is now retired.
As noted, Wright brings two civil rights claims pursuant to 42 U.S.C. § 1983 against
SEIU 503 and the State. Wright’s first claim alleges that by deducting union dues without her
authorization, Defendants violated her First Amendment rights “(a) not to associate with a
mandatory representative; (b) not to support, financially or otherwise, petitioning and speech;

and (c) against compelled speech.” Compl. 6, ECF No. 1. Wright’s second claim alleges that the
deductions also violated her Fourteenth Amendment right to procedural due process. Wright also
brings two state law claims, one for common law fraud against SEIU 503 and one for wage theft
under Or. Rev. Stat. Ann. § 652.615 against the State.
STANDARDS
District courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 552 (2005). It is presumed that a district court lacks jurisdiction and “the
burden of establishing the contrary rests upon the party asserting jurisdiction.” Vacek v. United

2 As noted below, at the motion to dismiss stage, the Court construes the allegations in the light most favorable to
Wright.
States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). A defendant may move to dismiss
under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction when the allegations in the
complaint are insufficient to establish federal jurisdiction. Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). Additionally, when a factual dispute exists, the defendant may
introduce evidence outside the pleadings in support of a 12(b)(1) motion to dismiss. Id. at 1039.

When the defendant introduces extrinsic evidence in support of its motion, the burden shifts to
the plaintiff to show that federal subject matter jurisdiction is met. Leite v. Crane Co., 749 F.3d
1117, 1121 (9th Cir. 2014).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient facts to “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations
allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.

While considering a motion to dismiss, the court must accept all allegations of material
fact as true and construe those facts in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). But the court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555. If the complaint is dismissed, leave to amend should be granted unless “the pleading could
not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
/ / / /
/ / / /
DISCUSSION

I. Mootness
Plaintiff seeks to “permanently enjoin Defendants . . . from . . . deduct[ing] union dues or
fees from Plaintiff’s wages without her consent.” Compl. 10. As Wright is retired and the union

is no longer deducting dues from her paychecks, her claim for prospective relief is moot.
“Where the activities sought to be enjoined have already occurred, and the appellate
courts cannot undo what has already been done, the action is moot.” Ctr. for Biological Diversity
v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007) (quoting Friends of the Earth, Inc. v. Bergland, 576
F.2d 1377, 79 (9th Cir. 1978)). One exception to the mootness doctrine is when the issue is
“capable of repetition, yet evading review.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789,
798 (9th Cir. 1999) (quoting Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123
(9th Cir. 1997)). This exception to the mootness doctrine applies only in cases where “(1) ‘the
duration of the challenged action is too short to be fully litigated before it ceases,’ and (2) ‘there

is a reasonable expectation that plaintiffs will be subjected to the same action again.’” Id.
(emphasis added) (quoting Am. Rivers, 126 F.3d at 1123).
Wright argues the exception applies because she is “in no way prohibited from seeking
government employment in the future [and] may again be subjected to [the same injuries]” if the
Defendants’ policies remain the same. Pl.’s Resp. in Opp. to Defs.’ Mot. to Dismiss 24, ECF No.
23. Wright’s argument is unpersuasive. Wright is retired. She is no longer a member of the union
and is therefore no longer subject to dues deductions. Her employer cannot be enjoined from
deducting union dues because Wright is no longer employed. Put simply, there is no reasonable
expectation that she will be subject to any involuntary deductions going forward. The capable of
repetition yet evading review exception does not apply. Wright’s claim for prospective relief is
moot.
II. Failure to State a Claim
Wright’s § 1983 claims for damages and declaratory relief are not moot. “A live claim for
nominal damages will prevent dismissal for mootness.” Bernhardt v. City of Los Angeles, 279

F.3d 862, 872 (9th Cir. 2002). This is true even where related claims for injunctive relief have
been rendered moot. Lokey v. Richardson, 600 F.2d 1265, 1266 (9th Cir. 1979) (claim for
nominal damages prevented dismissal even though claim for injunctive relief was moot). This is
because nominal damages, while symbolic in nature, serve the important purpose of vindicating
an individual’s rights even when no actual damages are available. See Bayer v. Neiman Marcus
Grp., Inc., 861 F.3d 853, 872 (9th Cir. 2017). Though not moot, Wright’s federal claims for
relief fail on the merits.
As noted, Wright brings two § 1983 claims against Defendants. Both claims are
meritless. To state a claim under § 1983, “a plaintiff must show ‘(1) that the conduct complained

of was committed by a person acting under color of state law; and (2) that the conduct deprived
the plaintiff of a constitutional right.’” Yates v. Wash. Fed’n of State Emps., 3:20-cv-05082-RBL,
2020 WL 3118496, at *3 (W.D. Wash. June 12, 2020) (quoting Peschel v. City of Missoula, 686
F.Supp.2d 1092, 1099 (D. Mont. 2009)). Whether a union is “acting under color of state law” in
the context of unauthorized union dues deductions has been examined by several recent court
decisions. Schiewe v. Serv. Emps. Int’l Union Local 503, 3:20-cv-00519-JR, 2020 WL 4251801,
at *5 (D. Or. July 23, 2020) (citing Belgau v. Inslee, 359 F.Supp.3d 1000, 1012–15 (W.D. Wash.
2019); Oliver v. Serv. Emps. Int’l Union Local 668, 415 F.Supp.3d 602, 608–12 (E.D. Pa. 2019);
Quirarte v. United Domestic Workers AFSCME Local 3930, 438 F.Supp.3d 1108, 1117–18 (S.D.
Ca. 2020); Molina v. Penn. Soc. Serv. Union, 1:19-CV-00019, 2020 WL 2306650, at *9–10
(M.D. Pa. May 8, 2020); Quezambra v. United Domestic Workers of Am. AFSCME Local 3930,
8:19-cv-00927-JLS-JEM *4–6 (C.D. Cal. June 3, 2020); Yates, 2020 WL 3118496, at *2–4).
Each held that because the union did not act under color of state law, the plaintiff failed to state a
claim under § 1983. Id. Additionally, after the parties submitted briefs, the Ninth Circuit

considered, and rejected, arguments from a similarly situated plaintiff who, like Wright, argued
the garnishments constituted state action under § 1983. Belgau v. Inslee, ___F.3d___, 2020 WL
5541390, at *4-6 (9th Cir. Sept. 16, 2020) (noting that “[a]t best, Washington’s role in the
allegedly unconstitutional conduct was ministerial processing of payroll deductions pursuant to”
authorization from the union employees, which was not enough to constitute state action under §
1983). Because no mandate has yet to issue, the Belgau opinion is not final. Beardslee v. Brown,
393 F.3d 899, 901 (9th Cir. 2004). Although the Belgau opinion is not yet binding, its detailed
analysis, like the analysis of the district cases cited above, is persuasive.
“[T]o state a § 1983 claim against a private entity like [a union,]the plaintiff must

establish that it engaged in ‘state action’ for which the government can fairly be blamed.” Yates,
2020 WL 3118496, at *3 (quoting Ohno v. Yasuma, 723 F.3d 984, 994 (9th Cir. 2013)). “State
action may be found if, though only if, there is such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as that of the State
itself.” Id. (quoting Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir. 2008)).
Courts determine whether the government can fairly be blamed for a private entity’s conduct by
employing a two-part test devised by the Supreme Court in Lugar v. Edmondson Oil Co., 457
U.S. 922, 936–37 (1982). Yates, 2020 WL 3118496, at *3. “The first prong asks whether the
claimed constitutional deprivation resulted from ‘the exercise of some right or privilege created
by the State or by a rule of conduct imposed by the State or by a person for whom the State is
responsible.’” Id. (quoting Ohno, 723 F.3d at 994). “The second prong determines whether the
party charged with the deprivation could be described in all fairness as a state actor.” Id. (quoting
Ohno, 723 F.3d at 994). For there to be state action under §1983, both prongs must be satisfied.
Id. Wright satisfies neither.

First, “private misuse of a state statute does not describe conduct that can be attributed to
the State.” Lugar, 457 U.S. at 941. Where, as here, the gravamen of a § 1983 claim is a private
party’s wrongful conduct, Lugar’s first prong is not satisfied. Id.; Yates, 2020 WL 3118496, at
*3; Schiewe, 2020 WL 4251801, at *5. Wright concedes the illegality of forgery under Oregon
law but argues that Lugar’s first prong is satisfied nonetheless because SEIU 503 acted pursuant
to Oregon’s statutory dues deduction procedure when deducting dues from her wages. Pl.’s Resp.
13. Wright’s argument is unpersuasive.
Oregon law mandates that union membership be voluntary. Schiewe, 2020 WL 4251801,
*1. The “right or privilege created by the State”—i.e., the right to deduct union dues from

authorized members—clearly extends only insofar as those memberships were voluntarily
entered into with membership agreements validly and authentically signed. Lugar, 457 U.S. at
939; see Yates, 2020 WL 3118496, at *4. In other words, “[i]f [SEIU 503] forged [Wright’s]
signature, it acted ‘contrary to the relevant policy articulated by the State.’” Yates, 2020 WL
3118496, at *4. (quoting Collins v. Womancare, 878 F.2d 1145, 1152(9th Cir. 1989). As there is
no allegation that the State is responsible for SEIU 503’s alleged forgery, the forgery is not
attributable to the State and Wright fails to satisfy Lugar’s first prong. Lugar, 457 U.S. at 941.
Wright also fails to satisfy Lugar’s second prong. Courts determine whether a private
entity is a state actor for purposes of a § 1983 claim by employing four tests: (1) the public
function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental
nexus test. Belgau, 359 F.Supp.3d at 1013 (citing Ohno, 723 F.3d at 995). Every court to
consider the issue has held that nothing in the Constitution bars a state’s deduction of union dues
pursuant to a valid agreement. Schiewe, 2020 WL 4251801, at *5 (listing cases). And in
addressing virtually identical claims involving an alleged forged dues agreement, the Schiewe

court held that “the state’s statutory obligation to deduct fees based on union authorization (even
if fraudulently obtained) does not transform the private conduct of the union into state action
under any conceivable test.” Schiewe, 2020 WL 4251801, at *5 (emphasis added). Like the
plaintiff in Schiewe, Wright “has not presented any compelling reason why the Court should
ignore this growing case law and instead rule in her favor.” Id. Rather, she relies on arguments
“expressly rejected in the aforementioned decisions.” Id. This Court joins those decisions in
holding that where “the dispute surrounds whether the agreement the plaintiff signed is valid, the
allegedly wrongful conduct stems from the union’s authorization of dues, an exclusively private
act.” Id. (emphasis added). As SEIU 503 is not a state actor under the facts alleged by Wright,

her § 1983 claims fail on the merits. Because no amended pleading can transform the private
conduct into state action, the § 1983 claims are dismissed with prejudice.
III. Supplemental Jurisdiction
If the Court dismisses the claims over which it had original jurisdiction, it may decline to
exercise supplemental jurisdiction over the remaining claims. 28 U.S.C. § 1367(c)(3). In
considering whether to exercise supplemental jurisdiction, courts consider factors such as
judicial economy, convenience, fairness, and comity. Sanford v. MemberWorks, Inc., 625 F.3d
550, 561 (9th Cir. 2010).
Like Schiewe, this case “has not proceeded beyond the pleadings stage and few judicial
resources have been used, especially if the remaining claims are dismissed.” 2020 WL 4251801,
at *6. Additionally, “dismissal also promotes comity by allowing the Oregon courts to interpret
matters of state law.” Id. Having balanced these factors, the Court declines to exercise
supplemental jurisdiction in this case. Oregon courts should hear Wright’s claims brought under

Oregon law. Wright’s state law claims are dismissed without prejudice.
CONCLUSION
SEIU 503’s Motion to Dismiss (ECF No. 14) is GRANTED in part.
IT IS SO ORDERED.
DATED this 28th day of September, 2020.

______/s Michael McShane_______
Michael J. McShane
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392446. Public record. Not legal advice.