The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 14 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SILVIA LOPEZ, No. 14-16640
Plaintiff-Appellee, D.C. No.
1:14-cv-00236-LJO-GSA
v.
GENEVIEVE SHIROMA, an individual; MEMORANDUM*
et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Argued and Submitted August 12, 2016
San Francisco, California
Before: HAWKINS and GRABER, Circuit Judges, and SELNA,** District Judge.
This interlocutory appeal arises from the denial of official immunity in plaintiff
Silvia Lopez’s (“Lopez”) labor dispute with defendants-appellants, officials of
California’s Agricultural Labor Relations Board (“ALRB” or “Board”). An employee
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
of Gerawan Farming, Inc., Lopez opposes its relationship with United Farm Workers
of America (“UFW”) and launched a representation election to decertify UFW as
Gerawan employees’ union representative. She alleges that certain decisions issued
in the course of the decertification process served as a pretext to shield UFW from
decertification and that defendants violated her due process and First Amendment
rights. Lopez seeks damages as well as declaratory and injunctive relief pursuant to
42 U.S.C. § 1983.
The district court ruled that defendants lacked official immunity by denying
their absolute immunity defense and declining to reach qualified immunity. Absolute
and qualified immunity are questions of law reviewed de novo, based on the facts as
the complaint presents them. Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012); Olsen
v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We have jurisdiction
under 28 U.S.C. § 1291, see Morley v. Walker, 175 F.3d 756, 759-60 (9th Cir. 1999),
and we affirm in part and reverse in part.
Lopez’s claims stem from the Board’s decision to impound ballots from the
decertification election pending resolution of certain unfair labor practice complaints
(“ULPs”) and from purportedly unwarranted delays and interference on the part of the
ALRB’s Regional Director defendant Silas Shawver.
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We affirm the district court’s determination that defendants are not entitled to
absolute immunity. Quasi-judicial immunity extends to non-judicial agents when
such agents “perform official duties that are functionally comparable to those of
judges, i.e., duties that involve the exercise of discretion in resolving disputes.”
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993). Similar to judges,
prosecutors are shielded from damages actions that stem from conduct closely
intertwined with the judicial process. Imbler v. Pachtman, 424 U.S. 409, 430-31
(1976). When they are performing administrative or investigative functions, however,
such immunity is not available. Buckley v. Fitzsimmons, 509 U.S. 259, 271-73 (1993).
Thus, “the protection of absolute immunity reaches ‘only those actions that are
judicial or closely associated with the judicial process’”–even if the actors in question
have, in other contexts, been deemed entitled to immunity. Buckwalter v. Nev. Bd. of
Med. Exam’rs, 678 F.3d 737, 740 (9th Cir. 2012) (emphasis added) (quoting Buckley,
509 U.S. at 273).
On balance, the Butz v. Economou, 438 U.S. 478, 512 (1978), factors weigh
against finding absolute immunity for the Board member defendants. Their disputed
decision–the ballot impound–fell squarely within their administrative responsibilities
to oversee representation elections, Cal. Lab. Code §§ 1142-1144, a role distinct from
their quasi-judicial function of adjudicating ULPs, id. §§ 1160.2-.3, .8; 8 Cal. Code
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Regs. §§ 20202, 20206, 20280-20287; see Bud Antle, Inc. v. Barbosa, 45 F.3d 1261,
1272 (9th Cir. 1995). The petitioner employees received no immediate opportunity
to contest the decision, cf. Buckwalter, 678 F.3d at 741, and have instead been
embroiled in separate litigation to air their grievances against the Board.
Shawver is likewise not entitled to absolute immunity. As a regional director,
Shawver is vested by the Board with authority to investigate petitions, oversee
representation elections, and investigate ULPs. 8 Cal. Code Regs. §§ 20216, 20290,
20350, 20385, 20390. Many types of decisions made by regional directors are
appealable to the Board. Id. §§ 20219, 20393. A decision to deny an election petition
on the ground that it lacks a sufficient number of signatures from eligible employees
is, however, final. Id. § 20300. Although regional directors investigate ULPs, they
report findings to the Board’s General Counsel, who then decides whether to issue a
formal complaint and pursue a case. Id. §§ 20216, 20222-20261.
Defendants are, however, entitled to qualified immunity. Although the district
court found the defendants’ footnote raising this alternative defense insufficient to
decide its merits, the issue is fully briefed on appeal. Moreover, qualified immunity
is a question of law that, here, does not depend on the factual record; it is thus within
our discretion to take up in the first instance. A-1 Ambulance Serv., Inc. v. Cty. of
Monterey, 90 F.3d 333, 338-39 (9th Cir. 1996). We take note that Lopez wishes to
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amend her complaint below to plead additional facts. Yet, no amendment can cure
that the crux of her case lacks a clearly defined constitutional right. See Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 313 (1979).
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Each party shall bear their own costs on appeal.
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