Jeffrey Barke v. Eric Banks

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY I. BARKE; ED SACHS; No. 20-56075

LAURA FERGUSON; JIM REARDON;

LEIGHTON M. ANDERSON; PHILLIP D.C. No.

YARBROUGH; RODGER DOHM, 8:20-cv-00358-

Plaintiffs-Appellants, JLS-ADS

v.

OPINION

ERIC BANKS; ERICH SHINERS;

ARTHUR A. KRANTZ; LOU PAULSON,

in their official capacities as

members of the California Public

Employment Relations Board

(PERB); J. FELIX DE LA TORRE, in

his official capacity as General

Counsel of PERB,

Defendants-Appellees,

CALIFORNIA TEACHERS

ASSOCIATION; SEIU CALIFORNIA

STATE COUNCIL; CALIFORNIA

FEDERATION OF TEACHERS;

CALIFORNIA SCHOOL EMPLOYEES

ASSOCIATION; CALIFORNIA LABOR

FEDERATION,

Intervenor-Defendants-Appellees.

2 BARKE V. BANKS

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted October 21, 2021

Pasadena, California

Filed February 7, 2022

Before: Consuelo M. Callahan, John B. Owens, and

Danielle J. Forrest, Circuit Judges.

Per Curiam Opinion

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal without

leave to amend of a complaint brought by a group of elected

local government officials asserting a pre-enforcement

challenge to California Government Code section 3550, and

remanded for the limited purpose of amending the judgment

to reflect that the dismissal is without prejudice.

California Government Code section 3550 states in part

that “[a] public employer shall not deter or discourage public

employees . . . from becoming or remaining members of an

employee organization.” The district court dismissed the

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BARKE V. BANKS 3

case, in part, on the ground that Plaintiffs lacked standing

because section 3550 applies only to “public employer[s],”

not to Plaintiffs individually. Despite this statutory

limitation, Plaintiffs alleged that their speech has been

chilled because they fear the State of California Public

Employment Relations Board (“PERB”) will erroneously

attribute the statements Plaintiffs wish to make in their

individual capacities to Plaintiffs’ public employers, thereby

causing their employers to be sanctioned and damaging

Plaintiffs’ reputations as a result.

The panel determined that section 3550 does not regulate

Plaintiffs’ individual speech, and any restrictions the statute

does impose on Plaintiffs’ ability to speak on behalf of their

employers did not injure Plaintiffs’ constitutionally

protected individual interests. The panel held that Plaintiffs

had not shown that they had a well-founded fear that PERB

would impute statements made by Plaintiffs in their

individual capacities to Plaintiffs’ public employers,

particularly in light of concessions made by PERB in this

litigation. The panel concluded that Plaintiffs had failed to

demonstrate that they have suffered an injury in fact

sufficient to establish their standing to pursue their pre-

enforcement challenge.

The panel held that Plaintiffs failed to show that the

district court erred in determining that any amendment to

their complaint would be futile, and therefore, the district

court did not abuse its discretion by denying Plaintiffs leave

to amend. Finally, the panel noted that dismissals for lack

of Article III jurisdiction must be entered without prejudice

because a court that lacks jurisdiction is powerless to reach

the merits. The panel remanded the case to the district court

to enter judgment dismissing the case without prejudice.

4 BARKE V. BANKS

COUNSEL

David A. Schwarz (argued), Jay T. Ramsey, and Alexandra

Michele Jackson, Sheppard Mullin Richter & Hampton LLP,

Los Angeles, California; Michael Rosman, Center for

Individual Rights, Washington, D.C.; Mark W. Bucher, Law

Office of Mark W. Bucher, Tustin, California; for Plaintiffs-

Appellants.

Joseph W. Eckhart (argued), J. Felix De La Torre, Jeremy G.

Zeitlin, and Daniel S. Crossen, State of California Public

Employment Relations Board, Sacramento, California, for

Defendants-Appellees.

Matthew J. Murray (argued), Scott A. Kronland, and

Danielle E. Leonard, Altshuler Berzon LLP, San Francisco,

California, for Intervenor-Defendants-Appellees.

OPINION

PER CURIAM:

Plaintiffs, a group of elected local government officials,

seek to assert a pre-enforcement First Amendment challenge

to California Government Code section 3550, which states

in part that “[a] public employer shall not deter or discourage

public employees . . . from becoming or remaining members

of an employee organization.” Cal. Gov’t Code § 3550. The

district court dismissed the case on the ground that Plaintiffs

lacked standing because section 3550 applies only to “public

employer[s],” not to Plaintiffs individually. Despite this

statutory limitation, Plaintiffs allege that their speech has

been chilled because they fear the State of California Public

Employment Relations Board (“PERB”) will erroneously

BARKE V. BANKS 5

attribute the statements Plaintiffs wish to make in their

individual capacities to Plaintiffs’ public employers, thereby

causing their employers to be sanctioned and damaging

Plaintiffs’ reputations as a result. But Plaintiffs have not

shown that they have a well-founded fear that PERB will

impute these statements to Plaintiffs’ public employers,

particularly in light of concessions made by PERB in this

litigation, and therefore we affirm. However, because the

district court lacked jurisdiction over the case, it erred by

dismissing the complaint with prejudice. We thus remand

for the limited purpose of amending the judgment to reflect

that the dismissal of this matter is without prejudice.

I

PERB is a California agency responsible for

administering and enforcing a range of statutes governing

collective bargaining in California’s public-sector

workforce. Cal. Gov’t Code §§ 3541.3, 3541.5, 3509(a);

City of San Jose v. Operating Eng’rs Loc. Union No. 3,

232 P.3d 701, 725–26 (Cal. 2010). 1 One of the statutes

within PERB’s purview is Government Code section 3550,

which states:

A public employer shall not deter or

discourage public employees or applicants to

be public employees from becoming or

remaining members of an employee

organization, or from authorizing

representation by an employee organization,

1

Named defendants Eric Banks, Erich Shiners, Arthur A. Krantz,

and Lou Paulson are PERB members who were sued in their official

capacities. The remaining named defendant, J. Felix De La Torre, is

PERB’s general counsel and was also sued in his official capacity.

Collectively, these defendants are referred to as “PERB.”

6 BARKE V. BANKS

or from authorizing dues or fee deductions to

an employee organization. This is declaratory

of existing law.

Cal. Gov’t Code § 3550. The statute was originally enacted

in 2017, but according to PERB, the current version is the

product of a 2018 amendment which was “part of a broader

legislative package designed to address the impact of Janus

v. American Federation of State, County, & Municipal

Employees, Council 31, 138 S. Ct. 2448 (2018).” In Janus,

the Supreme Court held that the First Amendment barred

“States and public-sector unions” from “extract[ing] agency

fees from nonconsenting employees.” 138 S. Ct. at 2486.

The 2018 amendment added the language prohibiting a

public employer from deterring or discouraging public

employees “from authorizing dues or fee deductions to an

employee organization,” presumably to minimize the

financial impact of the Janus decision on public-sector

unions.

Plaintiffs identify themselves as “elected members of

local California government bodies, including city councils,

school boards, and community college and special purpose

districts.” 2 Plaintiffs state that they “are charged with

representing their constituencies with respect to . . . labor-

2

Jeffrey Barke is on the Board of Directors of the Rossmoor

Community Services District. Ed Sachs is an elected member of the

Mission Viejo City Council. Laura Ferguson is a member of the San

Clemente City Council. Until 2020, Jim Reardon was an elected member

of the Board of Trustees of the Capistrano Unified School District.

Leighton Anderson is an elected member of the Whittier Union High

School District Board of Trustees. Phillip Yarbrough is the president of

the Rancho Santiago Community College District Board of Trustees.

Rodger Dohm is an elected member of the Ramona Unified School

District Board of Education.

BARKE V. BANKS 7

management issues.” Plaintiffs assert that they have

“occasion to speak on these topics during public hearings,

townhall meetings with constituents, and in the course of

reelection campaigns or candidate endorsements.” They add

that “[i]t is not unusual for Plaintiffs to engage directly in

labor-management discussions, to comment publicly on

bargaining proposals, or to take positions on the terms of a

proposed [collective bargaining agreement].”

Plaintiffs allege that after the enactment of section 3550

they “have refrained from speaking about issues relating to

public unions, even remaining silent as to issues bearing on

the governing board’s interactions with the employees’ labor

representative and even not responding to constituent or

employee questions relating to Janus.” 3 While PERB has

not taken any enforcement action against them or their

employers, Plaintiffs fear that if they speak out in this

manner they will “face the threat of unfair labor charges

against their agencies.” Plaintiffs claim that by speaking

candidly on these matters, “they would risk injury to (i) their

personal reputations . . . ; (ii) their ability to serve as

effective elected officials . . . ; and (iii) . . . their ability to get

re-elected.”

Plaintiffs filed this lawsuit against PERB alleging that

section 3550 violates the First Amendment because the

statute prohibits speech based on its content, and because the

3

As one specific example, Plaintiff Jim Reardon submitted a

declaration recalling that in his 2012 campaign for election he stated,

“Now more than ever, our school board must focus on education and not

union contracts that protect senior staff,” and that “I am able to see past

the heated rhetoric of education insiders to protect our students and

schools.” Reardon claims he would not make such a statement now on

the ground that it would result in a section 3550 charge against his public

employer.

8 BARKE V. BANKS

statute is unconstitutionally vague and overbroad. The

district court permitted five public-sector unions to intervene

as defendants (the “Union Defendants”). 4 PERB, joined by

the Union Defendants, moved to dismiss on the ground that

the district court lacked subject matter jurisdiction over the

case because Plaintiffs lacked standing to bring a pre-

enforcement challenge and their claims were not ripe for

adjudication.

The district court granted the motion to dismiss on both

grounds. With respect to standing, the district court

emphasized that section 3550 could only be enforced against

public employers, not Plaintiffs individually. Rejecting

Plaintiffs’ argument that the statute created a line-drawing

problem because it was impossible to know in advance

whether their speech would be attributed to their public

employers, the court held that Plaintiffs had “presented no

concrete plan to violate Section 3550, let alone one in which

it would not be clear whether a Plaintiff was speaking in their

official or individual capacity.” For the same reason, the

court found Plaintiffs had failed to show that there was a

reasonable likelihood the government would enforce the law

against them in the future. Alternatively, the district court

held that Plaintiffs’ claim was not ripe for review. The court

explained that the challenge was not constitutionally or

prudentially ripe for largely the same reasons that Plaintiffs

lacked standing, plus the fact that Plaintiffs had not

identified any hardship that would result if they could not

4

The Union Defendants are the California Teachers Association,

SEIU California State Council, the California Federation of Teachers,

the California School Employees Association, and the California Labor

Federation.

BARKE V. BANKS 9

obtain pre-enforcement review of the statute. Plaintiffs

appealed.

II

We review district court’s dismissal for lack of standing

de novo. Desert Water Agency v. U.S. Dep’t of the Interior,

849 F.3d 1250, 1253 (9th Cir. 2017). To establish Article III

standing, “a plaintiff must show (i) that he suffered an injury

in fact that is concrete, particularized, and actual or

imminent; (ii) that the injury was likely caused by the

defendant; and (iii) that the injury would likely be redressed

by judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2203 (2021). “[W]here a plaintiff has refrained from

engaging in expressive activity for fear of prosecution under

the challenged statute, such self-censorship is a

constitutionally sufficient injury as long as it is based on an

actual and well-founded fear that the challenged statute will

be enforced.” Libertarian Party of L.A. Cnty. v. Bowen,

709 F.3d 867, 870 (9th Cir. 2013) (alteration in original)

(quoting Hum. Life of Wash. Inc. v. Brumsickle, 624 F.3d

990, 1001 (9th Cir. 2010)).

We consider three factors in determining whether a

plaintiff faces a credible threat of enforcement, and thus has

suffered an “actual injury to a legally protected interest.”

Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1174 (9th

Cir. 2018). Those factors are: “1) the likelihood that the law

will be enforced against the plaintiff; 2) whether the plaintiff

has shown, ‘with some degree of concrete detail,’ that she

intends to violate the challenged law; and 3) whether the law

even applies to the plaintiff.” Id. at 1172 (quoting Lopez v.

Candaele, 630 F.3d 775, 786 (9th Cir. 2010)).

Plaintiffs allege that they are refraining from speaking

about issues related to public-sector unions out of fear that

10 BARKE V. BANKS

their speech will lead to their public employers being

charged with violations of section 3550. They argue that this

self-censorship constitutes an injury in fact. Even if the

statute would likely not be directly enforced against

Plaintiffs in their individual capacities, they claim to have a

well-founded fear that sanctions entered against their

employers based on Plaintiffs’ speech would nevertheless

cause Plaintiffs to suffer: (1) reputational harm; (2) harm to

their abilities to serve as effective elected officials; and

(3) harm to their abilities to get reelected.

Although intangible reputational harms can be

sufficiently concrete to create Article III standing,

TransUnion LLC, 141 S. Ct. at 2204, in the pre-enforcement

context Plaintiffs must still show that the statute applies to

them and is likely to be enforced in a way that causes the

feared harm, Italian Colors Rest., 878 F.3d at 1171–72.

Plaintiffs have failed to meet that burden here.

Our prior decision in Leonard v. Clark is instructive.

12 F.3d 885 (9th Cir. 1993), as amended (Mar. 8, 1994).

Leonard involved a collective bargaining agreement that

restricted a union’s ability to “specifically endorse[] or

sponsor[]” legislation that would benefit the union’s

members. 12 F.3d at 886. Certain members of the union

sued, arguing that this provision violated their individual

First Amendment rights. Id. at 886–87. We held that the

plaintiffs lacked standing, noting that the bargaining

agreement provision “by its plain language applies only to

the Union and not to its individual members.” Id. at 888.

We noted that “[t]he individual plaintiffs have not shown

that [the bargaining agreement] in any way inhibits their

freedom to speak as individuals.” Id. Therefore, we

reasoned, “the only chill implicating the First Amendment

here is on the speech of these agents when they act under

BARKE V. BANKS 11

authority from their principal, the Union,” and only the

union had standing to assert its free speech rights. Id. at 889.

The same principles apply here. Like the collective

bargaining agreement in Leonard, section 3550 does not

regulate speech made by Plaintiffs in their individual

capacities; the statute only impacts them to the extent their

speech can be attributed to their “public employer[s].” Cal.

Gov’t Code § 3550. “[W]hen public employees make

statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes,”

and therefore restrictions on such speech do not implicate the

employees’ individual constitutional rights. Garcetti v.

Ceballos, 547 U.S. 410, 421–22 (2006). Thus, section 3550

does not regulate Plaintiffs’ individual speech, and any

restrictions the statute does impose on Plaintiffs’ ability to

speak on behalf of their employers do not injure Plaintiffs’

constitutionally protected individual interests. See id.

Plaintiffs respond to Leonard in two ways. First, they

assert that PERB will erroneously attribute statements

Plaintiffs make in their individual capacities—such as

campaign statements, statements made during debates, and

statements to constituents—to their public employers,

resulting in allegations of section 3550 violations. But

neither the record nor the authorities cited by Plaintiffs

demonstrate that there is a “credible threat” of section 3550

being enforced in this manner. Italian Colors Rest., 878 F.3d

at 1171. To the contrary, PERB concedes that much of the

speech Plaintiffs allege they want to engage in constitutes

individual speech to which section 3550 does not apply. For

example, in its briefing to the district court, PERB stated that

“[p]rivate speech by an individual—including campaign

speech—cannot reasonably be viewed as the speech of a

public employer under section 3550.” In its appellate brief,

12 BARKE V. BANKS

PERB emphasized that “[s]ection 3550 does not apply to all

speech by public officials in their official capacities, only

that of public employers and their agents.” And at argument,

PERB’s counsel stated that it generally would not be

reasonable to view debate by elected officials on “various

policy positions” as attributable to the government itself.

Nor would it be reasonable, in PERB’s view, to attribute

statements made by an individual board member during a

meeting to the board as a whole, at least where the meeting

is attended by multiple board members and there are no other

indicia that the individual board member purports to speak

on the board’s behalf. 5 See United Tchrs. L.A. v. All. Marc

& Eva Stern Math & Sci. High Sch., 46 PERC ¶ 82, PERB

Decision No. 2795, 2021 WL 5450674 (Nov. 3, 2021)

(noting that “an elected official’s political speech, answer to

a constituent question, or other communication where such

speech does not manifest employer authority” cannot be

imputed to the official’s public employer). Further, the

administrative decisions and caselaw cited by Plaintiffs do

not establish that there is a credible threat PERB will apply

section 3550 in a manner inconsistent with these

concessions. Thus, Plaintiffs have not established that they

have standing to bring their pre-enforcement challenge to the

statute.

Second, even if Leonard applies, Plaintiffs ask us to

clarify that Leonard stands for the proposition that an agent’s

speech can only be attributed to the agent’s principal if the

5

The Union Defendants take a similar position, stating that

“[s]ection 3550 does not prohibit Plaintiffs from expressing their own

personal policy preferences during legislative or electoral debates or in

meetings with constituents. Reasonable observers understand the

difference between an official expressing personal policy views and an

official speaking for or threatening to take action on behalf of the

government.”

BARKE V. BANKS 13

agent both has actual authority to make the statement and

expressly claims to be speaking on behalf of the principal.

See Leonard, 12 F.3d at 889. Plaintiffs assert that applying

this test would alleviate their concerns with section 3550

because they would have more control over when their

speech would be imputed to their employers.

We do not read Leonard as creating such a standard.

Leonard stated that the collective bargaining agreement

restricted the plaintiffs from speaking “when they act under

authority from their principal,” and cited several sections

from the Restatement (Second) of Agency setting forth

examples of how this authority could be created. Leonard,

12 F.3d at 889. Those sections do not support the

proposition that agents need to have—and explicitly claim

to have—actual authority from their principal before acting

on the principal’s behalf. For example, the Restatement

(Second) discusses the concept of apparent authority, which

is created when the principal’s conduct, “reasonably

interpreted, causes [a] third person to believe that the

principal consents to have the act done on his behalf by the

person purporting to act for him.” Restatement (Second) of

Agency § 27 (Am. L. Inst. 1958); Leonard, 12 F.3d at 889.

We have more recently held that speech can be imputed to

the government under a similar standard, not only where the

principal has conferred actual authority to make a statement

to an agent and the agent explicitly claims to have this

authority. See Eagle Point Educ. Ass’n/SOBC/OEA v.

Jackson Cnty. Sch. Dist. No. 9, 880 F.3d 1097, 1103 (9th Cir.

2018) (stating the focus of the inquiry is “whether a

reasonable observer would view the statement made . . . to

be a statement by the government”). Thus, our subsequent

caselaw establishes that there is no ironclad requirement that

an agent have actual authority to make a statement, and

14 BARKE V. BANKS

claim to have such authority, before the statement can be

imputed to the agent’s principal. 6

For these reasons, we hold that Plaintiffs have failed to

demonstrate that they have suffered an injury in fact

sufficient to establish their standing to pursue their pre-

enforcement challenge. 7

III

Plaintiffs also argue that the district court should have

granted them leave to amend the complaint, and that any

dismissal should have been without prejudice. We review

the district court’s rulings on these issues for abuse of

discretion. Nat’l Council of La Raza v. Cegavske, 800 F.3d

1032, 1045 (9th Cir. 2015).

The district court did not abuse its discretion by denying

Plaintiffs leave to amend. While “[i]t is black-letter law that

a district court must give plaintiffs at least one chance to

amend a deficient complaint,” that presumption can be

6

Plaintiffs acknowledge that the government speech doctrine

generally allows the state to regulate employees’ speech when they act

in their official capacities, but they argue that elected officials are exempt

from this doctrine. While restrictions on the speech of elected officials

may present different concerns than restrictions on the speech of line

employees, those concerns are generally centered on whether the

challenged law infringes upon the officials’ “core political speech.” See,

e.g., City of El Cenizo v. Texas, 890 F.3d 164, 184–85 (5th Cir. 2018).

Given PERB’s concession that Plaintiffs’ political speech is individual

speech not subject to section 3550, we decline—in this pre-enforcement

context—to address whether the government speech doctrine is

categorically inapplicable to elected officials.

7

Because we affirm the district court’s holding that Plaintiffs lack

standing, we decline to address its alternative ruling that Plaintiffs’

claims are not ripe for judicial review.

BARKE V. BANKS 15

overcome where there has been “a clear showing that

amendment would be futile.” Id. at 1041. The district court

gave Plaintiffs an opportunity to state what additional details

they would add to their complaint if given the opportunity

and Plaintiffs did not do so, instead arguing that their

existing allegations were sufficient. Nor have Plaintiffs

identified on appeal what additional allegations they would

add that would demonstrate they face a credible threat that

PERB will attribute their protected individual speech to their

public employers. Plaintiffs have thus failed to show that the

district court erred in determining that any amendment

would be futile.

However, dismissals for lack of Article III jurisdiction

must be entered without prejudice because a court that lacks

jurisdiction “is powerless to reach the merits.” Fleck &

Assocs., Inc. v. Phoenix, City of, an Ariz. Mun. Corp.,

471 F.3d 1100, 1106–07 (9th Cir. 2006). Both PERB and

the Union Defendants concede that the district court erred by

dismissing the case with prejudice. We agree, and thus

remand the case to the district court to enter judgment

dismissing the case without prejudice.

IV

For the reasons set forth above, the district court’s

decision to dismiss Plaintiffs’ complaint without leave to

amend is AFFIRMED. The case is REMANDED for the

district court to enter judgment dismissing the case without

prejudice. Each party is to bear its own costs.