Trees v. Service Employees International Union Local 503

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STACI TREES, Case No. 6:21-cv-468-MK

Plaintiff, OPINION AND ORDER DENYING

MOTION FOR TEMPORARY

v. RESTRAINING ORDER

SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL 503;

OREGON DEPARTMENT OF

ADMINISTRATIVE SERVICES; and

KATY COBA, in her official capacity as

Director of the Oregon Department of

Administrative Services,

Defendants.

Rebekah C. Millard, James G. Abernathy, and Shella Alcabes, FREEDOM FOUNDATION,

PO Box 552, Olympia, WA 98507. Of Attorneys for Plaintiff Staci Trees.

Scott A. Kronland, Stacey M. Leyton, and Zoe Palitz, ALTSHULER BERZON LLP, 177 Post Street,

Suite 300, San Francisco, CA 94108; and James S. Coon, THOMAS, COON, NEWTON & FROST,

820 SW Second Avenue, Suite 200, Portland, OR 97204. Of Attorneys for Defendant Service

Employees International Union Local 503.

Ellen F. Rosenblum, Attorney General; and Sadie Forzley, Assistant Attorney General,

OREGON DEPARTMENT OF JUSTICE, 100 SW Market Street, Portland, OR 97201. Of Attorneys for

Defendants Oregon Department of Administrative Services and Katy Coba.

Michael H. Simon, District Judge.

In this lawsuit, a public employee is suing the union she joined in October 2009 and from

which she resigned in December 2020, while remaining a state employee. The employee also is

suing the Oregon Department of Administrative Services (DAS), the state agency that processes

her paychecks and, through February 2021, deducted her union dues and remitted them to the

union. The employee additionally is suing the Director of DAS in the Director’s official capacity.

Against all defendants, the employee asserts federal civil rights claims under 42 U.S.C. § 1983.

Against the union, the employee also asserts a federal racketeering claim and state claims of

fraud and racketeering. The key factual dispute is the employee’s allegation that the union

“forged” her signature in 2016 on a new union membership agreement solicited by a union

organizer during a campaign asking members to reaffirm their union membership. The union

denies any forgery.

After the employee commenced this lawsuit, the union filed an unfair labor practices

(ULP) complaint against the employee with the Oregon Employment Relations Board (ERB), a

different state agency.1 In its ULP complaint, the union alleges that, by filing her state claims in

this federal lawsuit, rather than with the ERB, the employee violated state law. An ERB

Administrative Law Judge (ALJ) has begun, but not yet concluded, state proceedings. The key

factual dispute in the ERB proceeding is whether the employee and the union entered into a valid

agreement in March 2016. The employee wants that question to be decided in federal court,

rather than by the ERB, to avoid the potential application of issue preclusion. Thus, the employee

seeks a temporary restraining order (TRO) against the ERB and its ALJ—who are not parties in

1 The ERB has jurisdiction over ULP complaints involving public employers, public

employees, or labor organizations that represent public employees. See Or. Rev. Stat. (ORS)

§ 243.672.

this lawsuit. The employee requests that this Court enjoin the ERB from conducting any further

activities in connection with the union’s ULP complaint “until this Court shall have the

opportunity to determine the appropriate forum for proceeding with this dispute.” ECF 48, at 2.

For the reasons explained below, the Court denies Plaintiff’s motion for TRO.

STANDARDS

In deciding whether to grant a motion for TRO, courts look to substantially the same

factors that apply to a court’s decision on whether to issue a preliminary injunction. See

Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A

preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he

or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the

absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an

injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that a mere

“possibility” of irreparable harm, rather than its likelihood, was sometimes sufficient to justify a

preliminary injunction).

The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s

alternative “serious questions” test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32

(9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance

that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other

two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be

granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going

to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is

in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).

In addition, a TRO is necessarily of a shorter and more limited duration than a

preliminary injunction.2 Thus, the application of the relevant factors may differ, depending on

whether the court is considering a TRO or a preliminary injunction.3 Indeed, the two factors most

likely to be affected by whether the motion at issue is for a TRO or a preliminary injunction are

the balancing of the equities among the parties and the public interest. Finally, “[d]ue to the

urgency of obtaining a preliminary injunction at a point when there has been limited factual

development, the rules of evidence do not apply strictly to preliminary injunction proceedings.”

Herb Reed Enters., LLC v. Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013); see

also Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009).

BACKGROUND4

Plaintiff Staci Trees (Trees) is a public employee in Oregon. Since 2009, she has worked

for the Oregon Department of Transportation (ODOT). Defendant Service Employees

2 The duration of a TRO issued without notice may not exceed 14 days but may be

extended by a court once for an additional 14 days for good cause, provided that the reasons for

the extension are entered in the record. Fed. R. Civ. P. 65(b)(2). When a TRO is issued with

notice and after a hearing, however, the 14-day limit for a TRO issued without notice does not

apply. See Pac. Kidney & Hypertension, LLC v. Kassakian, 156 F. Supp. 3d 1219, 1222 n.1 (D.

Or. 2016). Nevertheless, absent consent of the parties, “[a] court may not extend a ‘TRO’

indefinitely, even upon notice and a hearing.” Id. Accordingly, unless the parties agree

otherwise, a court should schedule a preliminary injunction hearing to occur not later than 28

days after the date that the court first issues a TRO.

3 A preliminary injunction also is of limited duration because it may not extend beyond

the life of the lawsuit. That is the role of a permanent injunction, which a court may enter as part

of a final judgment, when appropriate. A preliminary injunction, however, may last for months,

if not years, while the lawsuit progresses toward its conclusion. See Pac. Kidney, 156 F. Supp. 3d

at 1222 n.2.

4 For purposes of the pending motion for TRO, the Court finds the facts stated below by a

preponderance of the evidence. The Court bases these findings primarily on the following

declarations: Decl. of Stacey M. Leyton (ECF 52); Decl. of Rebekah Millard (ECF 48-1); Decl.

of Zoe Palitz (ECF 46); Decl. of Shirin Khosravi (ECF 30); Decl. of Becky Johnson (ECF 29);

International Union Local 503 (SEIU) is the exclusive representative of Plaintiff’s bargaining

unit. Defendant DAS is the state agency that processes and pays wages to state employees.

Defendant Katy Coba (Coba) is the Director of DAS. SEIU and DAS are parties to a collective

bargaining agreement, under which DAS deducts SEIU membership dues from the wages of

union members and then remits those dues to SEIU. On a monthly basis, SEIU sends DAS a

membership file that contains instructions for adding, maintaining, or ending dues deductions for

represented employees, and DAS follows these instructions.

In October 2009, Trees signed a union membership agreement that authorized the

deduction of SEIU union dues from her wages. Compl., ¶¶ 12-13; see also Compl. Ex. A. On

June 27, 2018, the U.S. Supreme Court issued its decision in Janus v. American Federation of

State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), holding that, when

applied to public-sector workers, “fair share” agreements violate an employee’s First

Amendment rights to freedom of association and freedom of speech.5 Plaintiff states that in

July 2018, she informed SEIU that she no longer wanted to be a union member and no longer

wanted union dues deducted from her monthly paycheck. She contends that SEIU never

responded to this alleged communication.

Plaintiff also alleges that in December 2020 she again informed SEIU that she no longer

wanted to be a union member and no longer wanted union dues deducted from her pay. In

response to this communication, SEIU told Plaintiff that she was contractually obligated to pay

and Decl. of Nettie Pye (ECF 27). The Court also considers the background facts stated in

Plaintiff’s Complaint (ECF 1) that do not appear to be contested by any Defendant.

5 A “fair share” agreement is an agreement between a public employer and a union under

which the public entity can “require public employees to pay a fair share of the cost that a union

incurs when negotiating on their behalf over terms of employment” but no part of which may “go

to any of the union’s political or ideological activities.” Janus, 138 S. Ct. at 2487.

union dues through the end of the current annual period, which was February 28, 2021. SEIU

stated that this requirement was contained in a union membership agreement that Plaintiff signed

on an iPad in March 2016. Compl., Ex. C. Plaintiff contends that she did not complete or sign

the 2016 agreement.6 Compl., ¶¶ 27-29.

Whether Plaintiff signed the March 2016 dues authorization presents a factual dispute,

albeit one that the Court need not resolve at this time. SEIU contends that its records show that

Plaintiff signed the disputed agreement membership application and dues authorization on

March 22, 2016 “via iPad” during “a general membership drive that SEIU conducted in 2016,”

when its “organizers visited bargaining unit workers’ homes to sign up new union members and

to ask existing members to sign new union membership agreements reaffirming their union

membership. According to SEIU 503’s membership records, a union organizer visited Plaintiff’s

home on the evening of March 22, 2016, and Plaintiff signed a new membership and dues

agreement on an iPad.” Decl. of Becky Johnson, ¶¶ 4-5 (ECF 29) (emphasis added). The Court

does not make any findings at this time regarding the merits of this factual dispute because its

resolution at this time does not affect the outcome of the pending motion.

According to DAS, it receives a membership file from SEIU on a monthly basis, which

includes SEIU’s instructions on adding, maintaining, or ending dues deductions for represented

employees. After each monthly file is received, DAS distributes the file to state agencies for

processing. The agencies then withhold union dues for employees based on that information.

Decl. of Nettie Pye, ¶ 3 (ECF 27).

6 The original agreement signed by Plaintiff in 2009, which Plaintiff admits signing, did

not contain any similar timing requirements for discontinuing Plaintiff’s dues.

ODOT deducted union dues from Plaintiff’s monthly paychecks from November 1, 2009

through February 28, 2021. Id. ¶ 4. SEIU instructed DAS, through the membership file, to cease

deducting union dues from Plaintiff’s paychecks effective March 1, 2021 because she was no

longer a union member. Union dues are not currently being deducted from Plaintiff’s paychecks,

and union dues will not be deducted again from Plaintiff’s paychecks in connection with her

employment with ODOT unless she rejoins SEIU and expressly authorizes dues withholding to

resume. Id. ¶ 5.

On March 29, 2021, Plaintiff filed this lawsuit against SEIU, DAS, and Coba. Against all

Defendants, Plaintiff, under 42 U.S.C. § 1983, alleges violations of her constitutional rights of

freedom of association, freedom of speech, and due process. In addition, Plaintiff alleges against

only SEIU fraud, federal racketeering,7 and state racketeering,8 based on Plaintiff’s allegation

that SEIU “forged” her signature in March 2016.

On June 8, 2021, SEIU filed with the ERB a ULP complaint against Plaintiff. Decl. of

Shirin Khosravi, ¶ 2 (ECF 30). In that complaint, SEIU alleges that a union organizer visited

Plaintiff’s home on the evening of March 22, 2016, and after Plaintiff spoke with the organizer,

Plaintiff signed a new membership agreement with her handwritten signature captured

electronically via iPad. SEIU further alleges in its labor complaint that the 2016 membership

agreement signed by Plaintiff provides authorization of dues deductions that may only be

revoked after the first year “not less than thirty (30) and not more than forty-five (45) days prior

7 Plaintiff asserts this claim under the federal Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1964, which Plaintiff erroneously calls the “Racketeer

Influenced and Corrupt Practices Act.” ECF 1, at 16.

8 Plaintiff asserts this claim under Oregon’s state-version of RICO, the Oregon Racketeer

Influenced and Corrupt Organization Act (ORICO), ORS § 166.715 et seq., which Plaintiff

erroneously calls the “Oregon Racketeer Influenced and Corrupt Practices Act.” ECF 1, at 18.

to the end of any annual period or the termination of the contract between my employer and the

Union, whichever occurs first.” ECF 30, at 8 (¶ 8). Based on these allegations, SEIU alleges in

its ULP complaint that Plaintiff violated Oregon law by asserting preempted state claims (fraud

and state racketeering) against SEIU in Plaintiff’s federal court complaint, rather than by filing a

ULP complaint with the ERB.9 Id. at 9-10 (¶¶ 14-18).

On June 28, 2021, DAS and Coba (collectively, the State Defendants) filed a motion to

dismiss Plaintiff’s federal lawsuit (ECF 26), and SEIU filed a motion to stay all claims in this

action against SEIU, pending a final decision by the ERB in the SEIU’s ULP proceeding against

Plaintiff. ECF 28. United States Magistrate Judge Mustafa T. Kasubhai has scheduled oral

argument on these two motions for December 2, 2021. ECF 41.

On October 6, 2021, Plaintiff filed a motion with the ALJ in the ERB proceeding to

dismiss SEIU’s complaint for lack of jurisdiction, which the ALJ denied on October 25, 2021.

Decl. of Rebekah Millard, ¶¶ 4-5 (ECF 48-1); see also ECF 48-5 (letter ruling from ALJ).

Plaintiff then filed a “motion to transmit legal question” to the full ERB and to stay the

proceeding pending before the ALJ until after the full ERB’s decision. The ERB denied that

motion on November 1, 2021. Decl. of Rebekah Millard, ¶¶ 6-7 (ECF 48-1); see also ECF 48-6

(letter ruling from ERB).

9 In its complaint filed with the ERB, SEIU alleges that Plaintiff violated

ORS §§ 243.806(10) and 243.672(2)(c). See, e.g., ECF 30, at 10 (¶¶ 16-17). ORS § 243.806(10)

provides: “If a dispute arises between the public employee and the labor organization regarding

the existence, validity or revocation of an authorization for the deductions and payment

described under subsections (1) and (2) of this section, the dispute shall be resolved through an

unfair labor practice proceeding under ORS 243.672” (emphasis added). ORS § 243.672(2)(c)

provides that, among other things, it is an unfair labor practice for a public employee to “[r]efuse

or fail to comply with any provision of ORS 243.650 to 243.806.”

Two days later, November 3, 2021, Plaintiff filed her pending motion for TRO, which

also was the first day of hearings held before the ALJ on SEIU’s ULP complaint. ECF 48, at 2.

In her TRO motion, Plaintiff asks the Court to enjoin the ERB and its agents—who are not

parties in this federal lawsuit—from proceeding with any hearing or other evidentiary procedure

involving the ULP complaint brought by SEIU against Plaintiff, including the hearing that had

already begun earlier that morning on November 3, 2021. Id. On November 3, 4, and 5, 2021, the

ERB’s assigned ALJ heard testimony and received documentary evidence in the proceeding

involving SEIU’s ULP complaint and authorized the parties to file post-hearing briefs by

December 17, 2021. Decl. Stacey Leyton ¶ 11 (ECF 52 at 4). After the ALJ issues a

recommended order, the parties will have the opportunity to file written objections with the ERB.

In Plaintiff’s motion, she also requests that, if the Court decides this TRO after the conclusion of

the ALJ’s hearing on November 5, 2021, the Court enjoin the ALJ “from issuing a proposed

ruling in the case pending the outcome of this Court’s decision on appropriate forum for such

proceedings.” ECF 48, at 2.

DISCUSSION

In Plaintiff’s motion for TRO, she argues that SEIU is seeking from ERB a factual

determination that the signature SEIU alleges Plaintiff provided in March 2016 is “authentic and

valid.” ECF 48, at 5. Plaintiff adds that SEIU “then plans to argue in this Court that the ERB’s

factual determination has preclusive effect in litigation of Ms. Trees’ federal constitutional

claims.” Id. (emphasis in original). Plaintiff also argues that the “Court should enjoin the ERB

from holding its hearing on Ms. Trees’ constitutional and § 1983 claims until the question of

jurisdiction is decided.” Id., at 7. Defendants respond, however, that Plaintiff’s constitutional and

§ 1983 claims are not pending before the ERB. Plaintiff admits the same. See Decl. of Rebekah

Millard ¶ 8 (ECF 48-1) (“Further, during the pre-hearing conferences with the ALJ, the ALJ

stated that the ERB is not a proper forum to hear constitutional issues.”). Thus, the issues

pending before the ERB are whether Plaintiff and SEIU entered into a valid agreement under

state law in March 2016, whether Plaintiff violated state law in attempting to repudiate a valid

dues authorization agreement, and whether Plaintiff committed an unlawful labor practice in

violation of state law by asserting purportedly preempted state claims (fraud and state

racketeering) in her federal lawsuit, rather than pursuing those claims with the ERB. See ECF 52,

at 17-18 (Decl. of Stacey Leyton, Ex. C, July 15, 2021 Letter from ALJ Jennifer Kaufman). At

the core of the pending motion for TRO is Plaintiff’s concern that the ERB’s factual finding on

whether Plaintiff and SEIU entered into a valid agreement in March 2016 will have a preclusive

effect in this federal lawsuit.

Plaintiff focuses her motion for TRO exclusively on her federal civil rights claims under

§ 1983, and not on her state claims. See ECF 48, at 6-8. Plaintiff quotes the Supreme Court in

arguing that § 1983 guarantees “a federal forum for claims of unconstitutional treatment at the

hands of state officials.” Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2167 (2019)

(quoting Heck v. Humphrey, 512 U.S. 477, 480 (1994)). Plaintiff adds that through § 1983,

Congress guaranteed a federal judicial forum to adjudicate civil rights deprivations perpetrated

by state actors. See Heck, 512 U.S. at 480.

In its written response to Plaintiff’s motion, SEIU offers four arguments, only two of

which the Court will address.10 First, SEIU argues that the Court lacks authority to enjoin the

ERB or its ALJ, who are not parties to this lawsuit. Second, SEIU argues that Plaintiff has not

10 Based on the Court’s ruling, the Court sees no need to address SEIU’s arguments that

Plaintiff’s delay forecloses her claim for emergency relief and that the balance of the equities and

public interest factors counsel against granting Plaintiff’s requested emergency relief.

shown that the ERB proceeding is likely to inflict “irreparable” injury on Plaintiff. See ECF 51,

at14-16. The State Defendants join SEIU’s opposition to Plaintiff’s motion. See ECF 53.11

A. Whether the Court Has Authority to Enjoin the Pending ERB Proceeding

Plaintiff asks the Court to enjoin the ERB, a nonparty state agency, from completing its

pending state administrative proceeding. “It is a principle of general application in Anglo-

American jurisprudence that one is not bound by a judgment in personam in a litigation in which

he is not designated as a party or to which he has not been made a party by service of process.”

Hansberry v. Lee, 311 U.S. 32, 40 (1940). This principle applies to injunctions as well. In 1897,

the Supreme Court invalidated an injunction “because it enjoins persons not parties to the suit,”

explaining that “we do not think it comports with well-settled principles of equity procedure to

include them in an injunction in a suit in which they were not heard or represented, or to subject

them to penalties for contempt in disregarding such an injunction.” Scott v. Donald, 165

U.S. 107, 117 (1897).

This principle is codified in Rule 65 of the Federal Rules of Civil Procedure, which

establishes that every injunction and TRO “binds only the following who receive actual notice of

it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents, servants,

employees, and attorneys; and (C) other persons who are in active concert or participation with

anyone described in Rule 65(d)(2)(A) or (B).” Fed. R. Civ. P. 65(d)(2). The Supreme Court has

summarized the scope of the rule as follows:

This [rule] is derived from the common law doctrine that a decree

of injunction not only binds the parties defendant but also those

11 The Court observes that SEIU did not argue in its written response to Plaintiff’s TRO

motion that Plaintiff failed to show she is likely to succeed on the merits of her federal claims in

responding to the motion. At the hearing, SEIU attempted to raise this point, but the Court ruled

that SEIU had waived this argument and declined to allow SEIU to present a new argument at

the hearing. Thus, the Court does not address it further at this time.

identified with them in interest, in “privity” with them, represented

by them or subject to their control. In essence it is that defendants

may not nullify a decree by carrying out prohibited acts through

aiders and abettors, although they were not parties to the original

proceeding.

Regal Knitwear Co. v. Nat’l Lab. Rels. Bd., 324 U.S. 9, 14 (1945); see also Chase Nat’l Bank v.

City of Norwalk, Ohio, 291 U.S. 431, 436-37 (1934) (stating that “persons not technically agents

or employees may be specifically enjoined from knowingly aiding a defendant in performing a

prohibited act if their relation is that of associate or confederate. Since such persons are legally

identified with the defendant and privy to his contempt, the provision merely makes explicit as to

them that which the law already implies”). Thus, as Judge Learned Hand explained in discussing

the equitable doctrine that preceded the Federal Rules of Civil Procedure:

[T]he only occasion when a person not a party may be punished, is

when he has helped to bring about, not merely what the decree has

forbidden, because it may have gone too far, but what it has power

to forbid, an act of a party. This means that the respondent must

either abet the defendant, or must be legally identified with him.

Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir. 1930) (emphasis added).

The narrow circumstances identified in Rule 65(d)(2)(C) for binding nonparties do not

apply here. Plaintiff did not sue the State of Oregon; she sued SEIU, DAS, and the Director of

DAS. The ERB is a distinct state agency not legally identified with any Defendant and not

accused of aiding or abetting any wrongful act. See generally Scott, 165 U.S. at 117 (“This is not

a case where the defendants named represent those not named. Nor is there alleged any

conspiracy between the parties defendant and other unknown parties.”). The ERB is an alternate

adjudicative forum that Plaintiff does not prefer, but that does not make the ERB a party acting

in concert with SEIU.

Plaintiff also argues that SEIU is pursuing ERB proceedings as a “usurpation” of this

Court’s jurisdiction over Plaintiff’s claims. This appears to be an invocation of another narrow

exception under which courts may enjoin nonparties—when an injunction is “necessary in aid of

the federal court’s jurisdiction.” Bennett v. Medtronic, Inc., 285 F.3d 801, 805 (9th Cir. 2002), as

amended on denial of reh’g (May 15, 2002). This is an exception to the Anti-Injunction Act’s

prohibition on a federal court’s authority to enjoin a state court proceeding. See Atl. Coast Line

R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 295 (1970) (“[S]ome federal injunctive

relief may be necessary to prevent a state court from so interfering with a federal court’s

consideration or disposition of a case as to seriously impair the federal court’s flexibility and

authority to decide that case.”). The Anti-Injunction Act and its “necessary in aid of the federal

court’s jurisdiction” exception do not apply in this case. But even when the exception applies, for

in personam actions “injunctions are permitted where an in personam action bears substantial

similarity to an in rem action.” Bennett, 285 F.3d at 806. Here, it is “facially implausible” for

Plaintiff to argue that this action bears a substantial similarity to an in rem action, id., and thus

any argument that Plaintiff’s situation is analogous and requires an injunction in aid of this

Court’s jurisdiction is rejected.

Plaintiff’s motion did not identify any specific legal basis for a federal court’s authority

to issue an injunction against a nonparty state agency other than § 1983 and the Court’s “inherent

authority.” ECF 48, at 7. Plaintiff states that “the Supreme Court long ago recognized that federal

injunctive relief against a state proceeding can be essential to prevent irreparable loss of a

person’s constitutional rights.” ECF 48, at 8.12 Shortly before the hearing, Plaintiff filed a reply,

12 In discussing irreparable injury, Plaintiff cites Mitchum v. Foster, 407 U.S. 225, 242

(1972) (“[T]his Court long ago recognized that federal injunctive relief against a state court

proceeding can in some circumstances be essential to prevent great, immediate, and irreparable

loss of a person’s constitutional rights.” (citing Ex parte Young, 209 U.S. 123 (1908))). In

Mitchum, however, the plaintiff invoked § 1983 in a lawsuit against a city prosecutor, who

brought a proceeding in a Florida court to close down Mitchum’s bookstore as a public nuisance

under the claimed authority of Florida law. The state court entered a preliminary order

in which she asserts that she relies on 28 U.S.C. §§ 1331, 1343, and 1983. These statutes,

however, do not provide authority to enjoin a nonparty.13

Plaintiff cites Bell v. Hood, 327 U.S. 678, 684 (1946), for the proposition that “it is

established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions

to protect rights safeguarded by the Constitution and to restrain individual state officers from

doing what the 14th Amendment forbids the State to do.” Id. Plaintiff also cites Justice

Rehnquist’s dissenting opinion in Carlson v. Green, 446 U.S. 14, 42 (1980), for the statement

that “[t]he broad power of federal courts to grant equitable relief for constitutional violations has

long been established.”

In Bell, the plaintiffs sued agents of the Federal Bureau of Investigation, seeking money

damages for alleged illegal arrest, false imprisonment, and illegal searches and seizures of

property, all in violation of the plaintiffs’ rights under the Fourth and Fifth Amendments. The

prohibiting continued operation of the bookstore. Mitchum then filed his complaint in federal

court under § 1983, alleging that the actions of the state judicial and law enforcement officials

were depriving him of rights protected by the First and Fourteenth Amendments. Mitchum, 407

U.S. at 227. Mitchum sought an injunction against the state proceedings. A district judge granted

a TRO, but it was dissolved by a three-judge court under 28 U.S.C. §§ 2281 and 2284. The three-

judge court concluded that the TRO violated the Anti-Injunction Act, 28 U.S.C. § 2283. The

Supreme Court reversed, concluding that § 1983 provided an exception to the Anti-Injunction

Act’s prohibition against injunctions entered against state courts. Id. at 242.

Thus, if the ERB were violating Plaintiff’s federal civil rights by holding its ULP

proceeding, then the authority of § 1983 itself, which authorizes injunctive relief, might provide

a basis for the TRO that Plaintiff seeks. Plaintiff, however, does not contend that the ERB’s

proceeding violates Plaintiff’s civil rights. She argues only that a factual finding that the ERB

might issue in its proceeding would, if given preclusive effect here, disadvantage Plaintiff’s

prosecution of her federal claims in this Court. That is a far cry from the facts in Mitchum.

13 At the hearing, Plaintiff attempted to amend the relief sought in her TRO to request

relief against SEIU. As with SEIU’s attempt to add a new argument regarding likelihood of

success on the merits, the Court ruled that Plaintiff waived requesting such relief by not timely

asserting it and declined to allow Plaintiff to amend her relief requested at the hearing.

defendants moved to dismiss on the grounds that they are federal agents who acted within the

scope of their authority as officers of the United States and that the searches and seizures were

incidental to lawful arrests and therefore valid. The district court dismissed the case, but on other

grounds, concluding that the court lacked federal jurisdiction. The Ninth Circuit affirmed on that

basis. The Supreme Court reversed.

The Supreme Court explained that subject matter jurisdiction is not defeated “by the

possibility that the averments might fail to state a cause of action on which petitioners could

actually recover.” Bell, 327 U.S. at 682. The Court added:

The issue of law is whether federal courts can grant money

recovery for damages said to have been suffered as a result of

federal officers violating the Fourth and Fifth Amendments. That

question has never been specifically decided by this Court. That

the issue thus raised has sufficient merit to warrant exercise of

federal jurisdiction for purposes of adjudicating it can be seen from

the cases where this Court has sustained the jurisdiction of the

district courts in suits brought to recover damages for depriving a

citizen of the right to vote in violation of the Constitution. And it is

established practice for this Court to sustain the jurisdiction of

federal courts to issue injunctions to protect rights safeguarded by

the Constitution and to restrain individual state officers from doing

what the 14th Amendment forbids the state to do. Moreover, where

federally protected rights have been invaded, it has been the rule

from the beginning that courts will be alert to adjust their remedies

so as to grant the necessary relief. And it is also well settled that

where legal rights have been invaded, and a federal statute

provides for a general right to sue for such invasion, federal courts

may use any available remedy to make good the wrong done.

Id. at 684 (footnotes omitted).14 Thus, Bell provides, in dicta, broad and sweeping language but

not in the context of whether, and if so under what circumstances, a federal court may enjoin an

14 The Bell lawsuit predated by 25 years Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971).

ongoing state administrative proceeding, let alone a proceeding in which the state agency

conducting that proceeding is not a party in the federal lawsuit.15

SEIU states that a potential basis for the Court’s authority to enjoin the ERB might be the

All Writs Act, 28 U.S.C. § 1651. In her reply and at oral argument, Plaintiff clarified that she

does not rely on the All Writs Act as a basis for this Court’s authority to issue the requested

injunction. In any event, the Court does not find that the All Writs Act would provide

jurisdiction. That statute allows federal courts to issue “all writs necessary or appropriate in aid

of their respective jurisdictions.” 28 U.S.C. § 1651(a). The textual qualifier “in aid of” is

significant. “While the All Writs Act authorizes employment of extraordinary writs, it confines

the authority to the issuance of process ‘in aid of’ the issuing court’s jurisdiction.” Clinton v.

Goldsmith, 526 U.S. 529, 534 (1999) (quoting 28 U.S.C. § 1651(a)).16

Plaintiff argues that the administrative hearing before the ERB is a “usurpation of this

Court’s jurisdiction.” ECF 48, at 4. SEIU responds that this is merely a “run-of-the-mill situation

in which there are parallel proceedings on related issues.” ECF 51, at 11. SEIU states:

It is well-settled that parallel proceedings in different forums

(except in rem proceedings) do not by themselves compromise a

federal court’s jurisdiction. The Supreme Court has “never viewed

15 Similarly, Justice Rehnquist’s dissent in Carlson does not provide support for

Plaintiff’s motion. In that case, the administratrix of the estate of a deceased federal prisoner

sued federal prison officials, alleging violations of the prisoner’s due process, equal protection,

and Eighth Amendment rights. The district court dismissed the complaint, but the Seventh

Circuit reversed. The Supreme Court affirmed, holding that, under Bivens, a remedy was

available directly under the Constitution to the administratrix even though her allegations could

also support a suit against the United States under the Federal Tort Claims Act. Carlson, 446

U.S. at 16-17, 25.

16 The Court observes that nothing in the Anti-Injunction Act, 28 U.S.C. § 2283,

“prevent[s] federal courts from enjoining state administrative proceedings.” U.S. Fid. & Guar.

Co. v. Lee Invs. LLC, 641 F.3d 1126, 1136 (9th Cir. 2011) (brackets in original) (quoting Bud

Antle, Inc. v. Barbosa, 45 F.3d 1261, 1271-72 (9th Cir. 1994)). The absence of prohibition,

however, does not equate to the conferral of authority.

parallel in personam actions as interfering with the jurisdiction of

either court . . . .” Vendo Co. v. Lektro–Vend Corp., 433 U.S. 623,

642 (1977) (plurality opinion). That principle has been settled for a

century.

ECF 51, at 11.17 As SEIU adds, this principle continues to apply today. See Sandpiper Vill.

Condo. Ass’n., Inc. v. Louisiana-Pac. Corp., 428 F.3d 831, 844 (9th Cir. 2005). Thus, the All

Writs Act does not authorize an injunction to block the ERB’s proceedings because those

proceedings do not in any way impair this Court’s jurisdiction. Indeed, the ERB will not even

adjudicate any of Plaintiff’s federal claims. It will decide only separate ULP claims under

Oregon law, although it also will likely make factual findings that might have preclusive effect in

this federal lawsuit.

At oral argument, Plaintiff’s counsel emphasized Plaintiff’s “greatest” concern—that a

factual finding made during the ERB hearing on the question of the alleged consent on the March

2016 agreement could be preclusive in this federal case. But “the necessary-in-aid-of-jurisdiction

. . . principle does not authorize interference with parallel in personam state actions merely

because the state courts might reach a conclusion before the district court does.” Negrete v.

Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1101 (9th Cir. 2008). Nor does this possibility

show a likelihood of irreparable injury. The Court turns to that issue next.

17 Plaintiff also likely cannot evade this standard by seeking to enjoin SEIU rather than

the ERB. The Ninth Circuit recognizes that an injunction directing a party not to participate in a

parallel proceeding in another forum is, in effect, an injunction directed against the other forum

itself and must therefore be analyzed under the All Writs Act, “for it is the restraint on other

court proceedings that is problematic.” Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091,

1098 (9th Cir. 2008)). In any event, Plaintiff’s motion for TRO, on its own terms, is directed

only against the ERB and its ALJ and not against any party in this lawsuit.

B. Whether Plaintiff Has Shown a Substantial Likelihood of Irreparable Injury

Contrary to Plaintiff’s assertions, she is not being denied access to a federal forum for her

§ 1983 civil rights claims or her federal racketeering (RICO) claim. Plaintiff filed her § 1983 and

federal RICO claims in this Court, and this Court will adjudicate them. Further, Plaintiff and

SEIU both agree that ERB has no jurisdiction to adjudicate Plaintiff’s federal claims, and the

ERB is not doing so.

As noted, however, the ERB has identified as one of its issues the factual question of

whether SEIU and Plaintiff entered into a valid membership agreement in 2016. Plaintiff

expresses concern that such a factual determination may be found against Plaintiff and might

have preclusive effect in this federal lawsuit. Plaintiff states that a factual determination on that

issue by the ERB should not be given preclusive effect. Plaintiff argues that

whether an administrative decision has a preclusive effect depends

on: (1) whether the administrative forum maintains procedures that

are “sufficiently formal and comprehensive”; (2) whether the

proceedings are “trustworthy”; (3) whether the application of issue

preclusion would “facilitate prompt, orderly and fair problem

resolution”; and (4) whether the “same quality of proceedings and

the opportunity to litigate is present in both proceedings.” . . .

Thus, the administrative decision sought here cannot have a

preclusive effect because a ULP proceeding does not guarantee

procedures that are “sufficiently formal and comprehensive” to

make them comparably trustworthy when compared to a Federal

Court proceeding. Further, application of issue preclusion would

not “facilitate prompt, orderly and fair problem resolution”

because the “same quality of proceedings and the opportunity to

litigate is [not] present in both proceedings.”

ECF 48, at 10 (citations omitted). The Court expresses no opinion on this question at this time.

Issue preclusion (or “collateral estoppel,” as it previously was known) is a complex doctrine, and

questions of issue preclusion are best resolved after thorough and nuanced briefing and

argument.

Assuming the ERB finds that Plaintiff and SEIU entered into a valid agreement in

March 2016, whether that factual finding is later given preclusive effect will not deprive Plaintiff

of having her day in Court on her federal civil rights and federal RICO claims. On that point,

Plaintiff argues that giving preclusive effect to that factual finding is inconsistent with her

Seventh Amendment right to a jury determination. SEIU disagrees, citing B&B Hardware, Inc. v.

Hargis, Inc., 575 U.S. 138, 150 (2015) (“[A]lthough the Seventh Amendment creates a jury trial

right in suits for trademark damages, [administrative agency] decisions still can have preclusive

effect in such suits.” (citation omitted)), and Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337

(1979) (“[T]he law of collateral estoppel forecloses the petitioners from relitigating the factual

issues determined against them in the SEC action, nothing in the Seventh Amendment dictates a

different result[.]”).

Plaintiff further contends that giving preclusive effect to an adverse factual finding from

the ERB is inconsistent with rights under § 1983. SEIU disagrees, citing Allen v. McCurry, 449

U.S. 90, 98 (1980) (“[T]he legislative history of § 1983 does not . . . suggest that Congress

intended to repeal or restrict the traditional doctrines of preclusion.”). SEIU adds that the Ninth

Circuit has held that “the rules of claim and issue preclusion apply equally to § 1983 actions in

federal courts.” White v. City of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012). SEIU also quotes

the Ninth Circuit as stating that “as a matter of federal common law, federal courts give

preclusive effect to the findings of state administrative tribunals in subsequent actions under

§ 1983.” Miller v. County of Santa Cruz, 39 F.3d 1030, 1033 (9th Cir. 1994)); see also Wehril v.

County of Orange, 175 F.3d 692, 694 (9th Cir. 1999); Ellrich v. Remas, 839 F.2d 630, 635 (9th

Cir. 1988).

Again, the Court will not resolve these questions at this time. SEIU may be correct on

these points and, if it receives a favorable factual finding from the ERB, that may present a

litigation benefit for SEIU in this lawsuit. Of course, SEIU might not receive a favorable factual

finding from the ERB, and the Court will not speculate about the outcome. Alternatively,

Plaintiff may be correct in her arguments that giving preclusive effect to a factual finding from

the ERB is inconsistent with her rights under Oregon law, the Seventh Amendment, or § 1983. If

Plaintiff is correct, the Court will not give the ERB’s factual findings preclusive effect.

In either event, Plaintiff would not suffer an irreparable injury of the sort required for a

TRO. If preclusion is not appropriate, Plaintiff has merely expended time and money litigating

parallel proceedings temporally before the federal court could render its decision, which is not

irreparable harm. See Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974)

(“Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable

injury.”); Graphic Commc’ns Union, Chicago Paper Handlers’ & Electrotypers’ Loc. No. 2 v.

Chicago Trib. Co., 779 F.2d 13, 15 (7th Cir. 1985) (“[T]he fact that an order to arbitrate imposes

a cost, the cost of the arbitration, whether it is an opportunity cost of time or an out-of-pocket

expense for lawyers or witness fees or whatever, or both types of costs, does not show

irreparable harm.”); Cal. Specialty Insulation, Inc. v. Allied World Surplus Lines Ins., 2021

WL 3033401, at *4 (C.D. Cal. July 19, 2021) (“Allied World argues that it will suffer irreparable

harm absent a stay because an intervening state court judgment could render its appeal

meaningless. Allied World also contends the costs associated with litigating in state court and

litigating the appeal to the Ninth Circuit would constitute irreparable harm. . . . As an initial

matter, nearly all courts have concluded that incurring litigation expenses does not amount to an

irreparable harm.” (simplified)); Dunson v. Cordis Corp., 2016 WL 10679457, at *3 (N.D. Cal.

Nov. 8, 2016) (“Cordis asserts that it faces irreparable harm only because, if a stay is denied, it

may have to spend some amount of time litigating concurrently in both state and federal court.

This would create the possibility that Cordis would be forced to making filings that would

ultimately have served no purpose, as well as adding unnecessary expense for both sides. But

this is the sort of mere injury in terms of money, time and energy necessarily expended that the

Supreme Court has found insufficient to constitute an irreparable harm.” (simplified)).

If preclusion is appropriate, Plaintiff would not have suffered irreparable harm from

litigating in a parallel forum and having certain facts adjudicated that properly are considered

determined in this case through issue preclusion. And it will be this federal Court that determines

whether the ERB’s factual findings have preclusive effect. All of this is sufficient to defeat the

irreparable injury requirement for Plaintiff’s requested TRO. As another district court concluded

in a somewhat analogous situation:

Turning to the traditional test for issuing a temporary restraining

order, the Court finds that Plaintiffs have not made a showing of

irreparable harm if the state court proceeds with its fairness hearing

on the proposed class action settlement. . . . [A]ny res judicata

effect of the state court settlement on the issues in this federal

litigation will be determined in the future motion proceeding,

thereby giving Plaintiffs another fair opportunity to argue their

position.

San Diego Police Officers’ Ass’n v. Aguirre, 2006 WL 8442795, at *2 (S.D. Cal. Sept. 22, 2006).

CONCLUSION

The Court DENIES Plaintiffs’ Motion for Temporary Restraining Order. ECF 48.

IT IS SO ORDERED.

DATED this 9th day of November, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge