Petition for Writ of Certiorari — Patricia Grossman, Petitioner v. Hawaii Government Employees Association, AFSCME Local 152, et al.

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA GROSSMAN,

Plaintiff-Appellant,

v.

No. 20-15356

D.C. No. 1:18-cv00493-DKW-RT

MEMORANDUM*

HAWAII GOVERNMENT

EMPLOYEES’ ASSOCIATION, (Filed Jul. 29, 2021)

AFSCME LOCAL 152,AFLCIO; et al.,

Defendants-Appellees,

and

RUSSELL A. SUZUKI,

in his official capacity as

Attorney General of Hawaii,

Defendant.

Appeal from the United States District Court

for the District of Hawaii

Derrick Kahala Watson, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA,

Circuit Judges.

* This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

App. 2

Patricia Grossman appeals from the district

court’s summary judgment in her 42 U.S.C. § 1983 action alleging a First Amendment claim arising out of

union membership dues. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a decision on cross

motions for summary judgment. JL Beverage Co., LLC

v. Jim Beam Brands Co., 828 F.3d 1098, 1104 (9th Cir.

2016). We may affirm on any ground supported by the

record. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d

802, 811 (9th Cir. 2004). We affirm.

The district court properly granted summary judgment on Grossman’s claim seeking prospective relief

because such claim is moot. See Bain v. Cal. Teachers

Ass’n, 891 F.3d 1206, 1211-15 (9th Cir. 2018) (finding

plaintiffs’ claims for prospective relief moot when they

resigned their union membership and presented no

reasonable likelihood that they would rejoin the union

in the future).

The district court properly dismissed Grossman’s

First Amendment claim challenging the exclusive bargaining representation arrangement for Hawaii public

employees because Grossman failed to allege a plausible claim. See Mentele v. Inslee, 916 F.3d 783, 790-91

(9th Cir. 2019) (holding that exclusive bargaining arrangement is constitutionally permissible); Bain, 891

F.3d at 1211 (setting forth standard of review for motion to dismiss).

The parties agree that this court’s intervening decision in Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020),

cert. denied, No. 20-1120, 2021 WL 2519114 (June 21,

App. 3

2021), controls the outcome of Grossman’s First

Amendment claim arising from the collection of union

dues under her membership agreement. We affirm the

district court’s summary judgment because Grossman

affirmatively and voluntarily consented to the deduction of union dues. See Belgau, 975 F.3d at 950-52 (concluding that the Supreme Court’s decision in Janus v.

American Federation of State, County & Municipal

Employees, Council 31, 138 S. Ct. 2448 (2018), did not

extend a First Amendment right to avoid paying union

dues that were agreed upon under validly entered union membership agreements).

We do not consider matters not specifically and

distinctly raised and argued in the opening brief. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I

PATRICIA GROSSMAN,

Plaintiff,

Case No.

18-cv-00493-DKW-RT

ORDER (1) DENYING

PLAINTIFF’S MOTION

HAWAII GOVERNMENT FOR PARTIAL SUMEMPLOYEES ASSOCIA- MARY JUDGMENT;

TION/AFSCME LOCAL

(2) GRANTING DE152, et al.,

FENDANTS’ CROSSMOTIONS FOR SUMDefendants.

MARY JUDGMENT;

AND (3) DISMISSING

THIS ACTION

vs.

(Filed Jan. 31, 2020)

The vigorously disputed issues in this case concern

unions and the First Amendment. Plaintiff Patricia

Grossman is a University of Hawaii (University) employee. Because she recently terminated her membership in Defendant Hawaii Governmental Employees

Association (HGEA), she no longer pays any union

dues. Grossman, however, moves for partial summary

judgment, Dkt. No. 60, seeking reimbursement of “all

union dues collected from [her]” since her employment

with the University began in 1995 because, she contends, Janus v. American Federation of State, County,

& Municipal Employees, Council 31, 138 S. Ct. 2448

(2018) effectively invalidates the union membership

agreement she entered into over two decades ago.

Grossman further urges this Court to strike down

App. 5

Haw. Rev. Stat. § 89-4(c) (as recently amended) and enjoin its enforcement because the statute violates the

First Amendment by restricting union members to an

annual 30-day time window in which they may withdraw their membership. Defendants HGEA, the President of the University of Hawaii, and the Hawaii

Attorney General have each filed a separate crossmotion for summary judgment, contending Grossman’s claims should be dismissed on multiple grounds.

Dkt. Nos. 63, 66, 68.

The Court concludes that the good faith defense

bars Grossman’s claim for pre-Janus damages. And

although the record suggests that after Grossman requested to resign her HGEA membership, dues were

deducted from her pay for several months, during

which she was forced to remain a member pursuant to

Haw. Rev. Stat. § 89-4(c), until after she filed this lawsuit, because it is undisputed that Grossman has since

received the precise amount that was wrongfully deducted and because she cannot reasonably be subjected to the terms of Section 89-4(c) in the future,

Grossman’s claims for post-Janus damages and prospective equitable relief are moot. Accordingly, Grossman’s motion is DENIED, and Defendants’ respective

motions are GRANTED.

FACTUAL & PROCEDURAL BACKGROUND

A. Relevant Legal History

In 1977, the United States Supreme Court decided

Abood v. Detroit Board of Education, 431 U.S. 209

App. 6

(1977). Abood determined that teachers who were not

union members may nonetheless be required to pay

the union, as a condition of employment, an agency fee

proportionate to the percentage of union dues connected to activities “germane to [the union’s] duties as

collective-bargaining representative” without running

afoul of the First Amendment. Id. at 211–12, 235–36.

Nonmembers, however, could not be compelled to fund

the union’s political or ideological activities. Id. at 235–

36; see id. at 225–226. Abood was the law for 41 years.

On June 27, 2018, the Supreme Court overruled

Abood in Janus v. American Federation of State,

County, & Municipal Employees, Council 31, 138 S. Ct.

2448, 2460 (2018). In Janus, the Court held that mandatory agency fees “violates the free speech rights of

nonmembers by compelling them to subsidize private

speech on matters of substantial public concern.” Id.;

see id. at 2478. This shift in precedent is at the heart

of Grossman’s claims.

B. Factual Background

1. Grossman’s Union Membership

As demonstrated by the parties’ joint stipulation

of undisputed facts, Dkt. No. 57, the material facts are

largely uncontested. Grossman is an employee of the

public University. Id. at ¶ 5. Like many other States,

Hawaii has granted public employees the right to unionize for the purpose of collective bargaining. Haw.

Rev. Stat §§ 89-1(b)(1), 89-3. Employees in a bargaining unit vote for the union that will represent them,

App. 7

and the union that receives a majority of the votes is

certified by the Hawaii Labor Relations Board as “the

exclusive representative of all employees in the unit.”

See Haw. Rev. Stat. §§ 89-7, 89-8(a). In this case, Defendant HGEA is the certified collective bargaining

representative for Unit 8, covering the administrative,

professional, and technical employees of the University. Dkt. No. 57, ¶ 4.

Before June 27, 2018 (when Janus was decided),

employees in Unit 8 had two choices: (1) become an

HGEA member by signing a membership card that authorizes the deduction of union dues from their pay; or

(2) remain a nonmember and pay agency fees (or “fairshare fees”), which were approximately 75% of fullmember dues. See Dkt. No. 57, ¶¶ 7–8, 13; Haw. Rev.

Stat. §§ 89-3, 89-4(a)–(b).1 In other words, employees

in Unit 8 were “not required to become members of

HGEA” as a condition of employment. Dkt. No. 57, ¶ 8.

While HGEA members paid more out-of-pocket than

nonmembers, HGEA members have the right to run for

union office, vote in union officer elections, and participate in HGEA’s internal affairs. Nonmembers do not

have these same rights. Id. at ¶ 10.

In 1995, Grossman elected to become a member

by signing the HGEA membership application card.

Dkt. No. 57, ¶ 11; Dkt. No. 57-1. Grossman’s membership application states, “membership will continue . . .

until [the employee] submit[s] written resignation of

1

Either way, HGEA is required to represent the interests of

all employees in Unit 8. Haw. Rev. Stat. § 89-8(a).

App. 8

membership.” Dkt. No. 57-1 at 1. Unit 8 employees are

paid through the State of Hawaii Department of Accounting and General Services (DAGS). Dkt. No. 57,

¶ 6. After Grossman became an HGEA member, DAGS

deducted union dues from Grossman’s pay and remitted those dues to HGEA. Id. at ¶ 12; see also Haw. Rev.

Stat. § 89-4(b).

When the Supreme Court decided Janus on June

27, 2018, “DAGS immediately stopped deducting and

HGEA stopped receiving fair-share fees from nonmembers.” Dkt. No. 57, ¶ 13. The University communicated

this information to its employees via email on July 6,

2018, and advised employees to direct any questions

they may have to their respective union representative. Dkt. No.57-2 at 3; cf. Dkt. No. 57, ¶ 14. On July 7,

2018, Grossman sent an email to HGEA, Hawaii Island

Division, “to verify that I am a non-member of HGEA

UH Unit 8.” Dkt. No. 57-2 at 8. On July 9, 2018, a representative for HGEA responded to Grossman: “Our

records show that you have been an HGEA member

since 1995.” Id. at 7.

Grossman also exchanged emails with HGEA’s

Hawaii Island Division Chief, Lorena Kauhi. See Dkt.

No. 64-2, ¶ 1. In an email to Kauhi, dated July 9, 2018,

Grossman asked, “What determines ‘membership’ in

HGEA Union 8? . . . The 5 July 2015 pay stub shows a

deduction for [statutory deductions] . . . please explain[.]” See id. at 2. In a separate email sent on July

10, 2018, on which Kauhi was copied, Grossman asserted, “my status is non-member,” and requested that

App. 9

HGEA “confirm my status” and “have it reported to

DAGS within the next ten business days[.]” Id. at 5–6.

HGEA Division Chief Kauhi replied by email to

Grossman on July 10, 2018. In relevant part, Kauhi explained:

[A]lthough DAGS sent the notice . . . in response to the Janus ruling, recent legislation

(HB 1725) was passed this last session and

enacted into law (Act 007) designating a

“window” where active members can elect to

discontinue dues deductions. Since your

records show that you did activate your

membership in 1995, you’d [sic] be subject

to this window. If, after our discussion, you’d

still like to move forward with suspending

your dues, your “window” for discontinuing dues would fall next year between

5/23/19–6/23/19 (appears you signed up

around 5/23/95).

Dkt. No. 57-2 at 6 (emphasis added); see H.B. 1725,

29th Leg., Reg. Sess. (Hi. 2018), 2018 Hi. Act. 7 (codified

at Haw. Rev. Stat. § 89-4) [hereinafter “Act 7”]. Act 7

amended Section 89-4(c) by limiting when union members may resign their membership and end dues deductions. Under the current version of Section 89-4(c),2

2

Haw. Rev. Stat. Section 89-4(c) in full states:

(c) The employer shall continue all payroll assignments authorized by an employee prior to July 1, 1970,

and all assignments authorized under subsection (b)

until the employee provides written notification within

thirty days before the anniversary date of the employee’s execution of the written authorization under

App. 10

union members may do so only within an annual 30day window prior to the anniversary date of the employee’s union membership.

2. Grossman Resigns Her Union Membership

In July 2018, Grossman wrote to HGEA’s Hawaii

Island Division office and the University to advise

that, “effective immediately[,]” she was resigning her

HGEA membership and revoking her consent to withdraw dues from her paycheck. Dkt. No. 57-3 at 2; Dkt.

No. 57, ¶ 15. That July 13, 2018 letter was received by

HGEA’s Hawaii Island Division office on July 14, 2018.

Dkt. No. 57, ¶ 15. When DAGS nonetheless continued

to deduct dues from Grossman’s paycheck, Grossman

brought this lawsuit on December 20, 2018 under 42

U.S.C. Section 1983 against HGEA; David Lassner, in

his official capacity as the President of the University;

and Clare E. Connors, in her official capacity as Attorney General of Hawaii. See Dkt. No. 1, ¶ 30.3 On January 9, 2019—nearly six months after HGEA’s Hawaii

Island Division office received Grossman’s letter—

subsection (b), to the employee’s exclusive representative to discontinue the employee’s assignments. The

employee’s exclusive representative shall provide a

copy of the employee’s written notification to the employer within ten business days of receipt from the employee

3

When Grossman initially filed suit, she named Russell A.

Suzuki, in his official capacity as the then-Attorney General of

Hawaii. Clare E. Connors was substituted on May 21, 2019 after

she succeeded Suzuki. See Dkt. No. 46.

App. 11

HGEA notified DAGS of Grossman’s request to stop

dues deductions, and dues deductions from Grossman’s

pay ended. Dkt. No. 57, ¶ 16.

The parties dispute why Grossman’s dues deductions did not cease upon HGEA’s receipt of Grossman’s

July 2018 letter. See, e.g., Dkt. No. 79 at 3–6. According

to HGEA, its policy has consistently been that when

one of HGEA’s island division offices receives a written

request from a member to resign or end dues, the island office forwards that request to the Fiscal Office on

Oahu for processing, the office purportedly responsible

for processing all member requests to resign union

membership and end dues deductions. Dkt. No. 64,

¶¶ 25–26. When HGEA’s Hawaii Island Division received Grossman’s resignation letter on July 14, 2018,

the office allegedly attempted to follow HGEA policy.

Id. at ¶ 27.

HGEA claims, however, that its Fiscal Office on

Oahu did not receive Grossman’s letter because of

“an inadvertent administrative error or mail lost in

transit.” Id. at ¶ 28. Division Chief Kauhi recalls placing Grossman’s resignation letter in “a pre-addressed

envelope used for inter-office mail to HGEA’s Fiscal

Office” and then depositing the envelope in the usual

location for pick-up at the HGEA Hawaii Island Division Office. Dkt. No. 64-2, ¶ 4. But HGEA’s Fiscal Office

allegedly did not receive Grossman’s forwarded letter.

Dkt. No. 64-1, ¶ 4; Dkt. No. 64-2, ¶ 6. HGEA’s Fiscal

Office asserts that it did not learn of Grossman’s letter

until January 2019, after Grossman had filed this lawsuit. Dkt. No. 64, ¶ 29.

App. 12

The parties also contest whether HGEA applied

Act 7 to Grossman. See, e.g., Dkt. No. 79 at 6. HGEA

asserts that it “never applied . . . Act 7 to Grossman,”

Dkt. No. 64, ¶ 35, a fact Grossman “vigorously disputes” in light of HGEA Division Chief Kauhi’s July 10,

2018 email to Grossman, advising that, pursuant to

Act 7, Grossman could not resign her membership until May 23, 2019. Dkt. No. 79 at 6; cf. Dkt. No. 57-2 at

6. Indeed, HGEA admits that “[w]hen Act 7 was enacted on April 24, 2018, HGEA assumed it applied to

all HGEA members.” Dkt. No. 64, ¶ 31; Dkt. No. 64-1,

¶ 6 (“HGEA leadership interpreted [Act 7] to apply to

all current HGEA members.”).

Maureen Wakuzawa (the Financial Officer responsible for operation and management at HGEA’s Fiscal

Office) claims that later, “in August 2018, HGEA leadership reevaluated the union’s interpretation of Act 7,

and HGEA now understands Act 7 not to apply to any

union member who signed a membership agreement

and dues authorization agreement before Act 7 was

enacted.” Dkt. No. 64-1, ¶ 8. On August 15, 2018, after HGEA “reevaluated” its interpretation of Act 7,

HGEA’s Fiscal Office instructed DAGS “to stop dues

deductions for a list of 55 former HGEA members,” all

of whom became HGEA members before Act 7 was enacted but had requested, sometime after Act 7 was enacted, that dues deductions end. Id. at ¶ 9. Wakuzawa

also asserted that HGEA sent checks to each of these

individuals, refunding the dues that had been deducted after they had asked that deductions end. Id.

Grossman was not included in the list of 55 employees

App. 13

because, according to Wakuzawa, “the Fiscal Office was

not aware that [Grossman] had requested to resign

and end her deductions.” Id. at ¶ 10.

3. HGEA Refunds Grossman’s Dues

Between July 10, 2018 and January 9, 2019 (when

dues were no longer deducted from Grossman’s pay), a

total of $402.60 in dues was deducted from Grossman’s

pay. Dkt. No. 57, ¶¶ 16–17. On January 10, 2019, counsel for HGEA sent Grossman’s counsel a letter, Dkt.

No. 57-4, and a check issued to Grossman in the

amount of $402.60, reimbursing these HGEA dues.

Dkt. No. 57, ¶ 17.4 On January 23, 2019, Grossman’s

counsel responded to HGEA counsel in a letter, stating

that Grossman was treating the check “as an admission from [HGEA] that taking union dues from her after she requested to withdraw from the union was

unlawful. If this is an incorrect conclusion to draw,

please let us know immediately, and Mrs. Grossman

will promptly return the check to you.” Dkt. No. 57-5 at

1; Dkt. No. 57-5, ¶ 19.5

4

Deductions of $33.55 were made on approximately the 5th

and 20th of each month beginning July 20, 2018 and ending January 4, 2019. The deductions on the 5th of the month covered dues

for the latter half of the previous month; dues for the first half of

that month were deducted on the 20th of the month. Dkt. No. 57,

¶ 17.

5

On January 28, 2019, HGEA counsel sent a follow-up letter, explaining that the delay was due to “an administrative error.” Dkt. No. 57-6; Dkt. No. 57, ¶ 20.

App. 14

On June 21, 2019, after this action had been pending for six months, Grossman’s counsel informed

HGEA counsel that Grossman had still not cashed the

January 10, 2019 check. Dkt. No. 57, ¶ 21. On June 28,

2019, HGEA counsel responded by sending Grossman’s counsel a letter and a reissued check in the

amount of $442.86. Dkt. No. 57, ¶ 22.6 In the letter,

HGEA counsel stated the following:

On June 21, 2019, you informed us that Patricia Grossman never deposited the check that

HGEA provided to her (through counsel) on

January 10, 2019 to refund dues deducted

from her pay for the period July 1, 2018 forward. You said Ms. Grossman is willing to void

the original check and deposit a reissued

check. Based on that representation, HGEA

has cancelled the January 10, 2019 check and

reissued the attached check to Ms. Grossman.

Dkt. No 57-7 at 1.

C. Procedural History

On May 21, 2019, the Court dismissed Count II of

Grossman’s two-count Complaint for failure to state a

claim. Dkt. No. 46. Grossman now moves for summary

judgment on Count I, Dkt. No. 60, seeking declaratory,

6

Twelve (12) payments of $33.55 (deducted on approximately the 5th and 20th of each month, beginning July 20, 2018,

and ending January 4, 2019) equals $402.60. Dk. No. 57, ¶ 17.

That amount, plus ten percent, yields $442.86. Thus, as HGEA

notes, the reissued check to Grossman includes an additional ten

percent to cover any interest. See Dkt. No. 63 at 18.

App. 15

injunctive, and compensatory relief. Id. at 2–3. First,

Grossman requests a damages award against HGEA

“for all union dues collected from [her].” Dkt. No. 60,

¶ (f ); see also Dkt. No. 1 at 16, ¶¶ (g)–(h). To that end,

Grossman asks this Court to declare that she was presented with an “unconstitutional choice” when she

signed her HGEA membership, and thus, she “did not

provide affirmative consent” for dues to be deducted

from her pay beginning in 1995. Dkt. No. 60, ¶¶ (b)–(c).

Second, Grossman seeks a declaration that Haw. Rev.

Stat. § 89-4(c) is unconstitutional, see id. at ¶¶ (a), (g),

and asks this Court to enjoin the Hawaii Attorney General from enforcing the statute and enjoin Lassner and

HGEA from “collecting union dues from public employees like Grossman who request to end their dues deduction prior to [the] opt-out period.” Id. at ¶¶ (d)–(e),

(g). In response, HGEA, Lassner, and the Attorney

General each filed a separate cross-motion for summary judgment. Dkt. Nos. 63, 66, 68.

STANDARD OF REVIEW

Summary judgment under Rule 56 is appropriate

only when the Court, viewing the record as a whole and

in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material

fact and that the moving party is entitled to judgment

as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp.

v. Catrett, 477 U.S. 317, 322–24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A genuine

issue of material fact exists when, “there is sufficient

evidence favoring the nonmoving party for a jury to

App. 16

return a verdict for that party.” Anderson, 477 U.S. at

249; see Scott v. Harris, 550 U.S. 372, 380 (2007). This

requires “more than simply show[ing] that there is

some metaphysical doubt as to the material facts,”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986), and “a scintilla of evidence in support of the plaintiff ’s position will be insufficient,” Anderson, 477 U.S. at 252. “[A] complete failure of proof

concerning an essential element” of a claim “necessarily renders all other facts immaterial.” Celotex, 477

U.S. at 323.

The summary judgment standard does not change

simply because the parties presented cross-motions.

The court simply “evaluate[s] ‘each motion separately,

giving the nonmoving party in each instance the benefit of all reasonable inferences.’ ” See Zabriskie v. Fannie Mae, 912 F.3d 1192, 1196 (9th Cir. 2019) (quoting

ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790–

91 (9th Cir. 2006)).

DISCUSSION

I.

The Good Faith Defense Bars Grossman’s

Monetary Claim for Pre-Janus Dues.

The first issue is whether Grossman can recover

the HGEA member dues collected from her before

Janus was decided on June 27, 2018. Grossman claims

that HGEA is liable under Section 1983 for dues collected before Janus, “limited only, if at all,” by the applicable statute of limitations. Dkt. No. 60-1 at 8; see

id. at 14 (“Grossman’s claim is for all dues deducted

App. 17

since she became a union member more than 20 years

ago”). Although Grossman acknowledges that “the Supreme Court had not yet issued its decision in Janus”

when Grossman signed her HGEA membership application in 1995, Grossman’s theory is that she did not

voluntarily consent to pay HGEA member dues because she was not informed that public-sector employees have a First Amendment right to refuse payment

of union dues for any purpose. Dkt. No. 60-1 at 7, 11;

Dkt. No. 79 at 18. But Grossman’s theory runs headlong into the “good faith” defense. See Dkt. No. 63 at

15–16; Dkt. No. 85 at 8.

“[P]rivate parties may invoke an affirmative defense of good faith to retrospective monetary liability

under 42 U.S.C. § 1983.” Danielson v. Inslee, 945 F.3d

1096, 1097 (9th Cir. 2019); Clement v. City of Glendale,

518 F.3d 1090, 1096–97 (9th Cir. 2008) (citing Richardson v. McKnight, 521 U.S. 399, 413–14 (1992)). “[T]he

purpose underlying the good faith defense” is “that private parties should be entitled to rely on binding judicial pronouncements and state law without concern

that they will be held retroactively liable for changing

precedents.” Danielson, 945 F.3d at 1100; Janus v.

Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 942

F.3d 352 (7th Cir. 2019) (“Janus II”) (“The Rule of Law

requires that parties abide by, and be able to rely on,

what the law is, rather than what the readers of tealeaves predict that it might be in the future.”).

In Danielson, a group of employees who were not

union members brought suit under Section 1983, seeking to recover “all agency fees that were unlawfully

App. 18

collected” pre-Janus. 945 F.3d at 1098. The Ninth Circuit “assumed that the right delineated in Janus applies retroactively,” but explained that “retroactivity of

a right does not guarantee a retroactive remedy.” Id. at

1099 (citing Davis v. United States, 564 U.S. 229, 243

(2011)). In the end, the court joined “a growing consensus of courts across the nation” and held that “as a

matter of law” the good faith defense shielded the union defendant from the retrospective monetary relief

sought by the plaintiffs. Id. at 1104 & n.7 (collecting

cases). Other courts have gone further, holding that a

union’s good faith defense bars claims brought by former union members, like Grossman.7

The good faith defense applies to the facts of this

case. Under Abood, a union could collect “agency” or

“fair-share” fees from public-sector employees who

were not union members, without their consent, and

these employees had no right to object under the First

Amendment. See 431 U.S. at 225–32. Abood was not

overruled until decades later, on June 27, 2018, when

the Supreme Court decided Janus, holding that

“States and public-sector unions may no longer extract

agency fees from nonconsenting employees . . . [u]nless

employees clearly and affirmatively consent before any

money is taken from them[.]” Janus, 138 S. Ct. at 2486.

Although the rule in Janus applies retroactively, as

7

See, e.g., Crockett v. NEA-Alaska, 367 F. Supp. 3d 996,

1007–08 (D. Alaska 2019); Hernandez v. AFSCME California, 386

F. Supp. 3d 1300, 1304–05 (E.D. Cal. 2019); Oliver v. Serv. Employees Int’l Union Local 668, No. 19-891, 2019 WL 5964778, at

*1, *7 (E.D. Pa. Nov. 12, 2019).

App. 19

Grossman contends, Dkt. No. 60-1 at 8; cf. Danielson,

945 F.3d at 1099, when Grossman signed her HGEA

membership application in 1995, HGEA was entitled

to, and did, rely on Abood as then-binding Supreme

Court precedent. Nothing in Abood required HGEA (or

her employer) to inform Grossman that she could elect

to not pay any money to HGEA. Indeed, Grossman does

not contend that HGEA violated any legal principle

announced in Abood or its progeny.8 Because a private

party is not expected to anticipate changes in constitutional law, the good faith defense shields HGEA, as a

matter of law, from pre-Janus monetary liability.9

8

It is disingenuous for Grossman to argue that HGEA violated principles purportedly announced in Janus, Dkt. No. 60-1

at 6–7, and simultaneously contend that her membership agreement with HGEA is voidable because it was based on a “mutual

mistake” of law; namely, that in 1995 when Grossman and HGEA

executed the contract, they both mistakenly believed that a “union was permitted to take money from [Grossman] whether she

signed or not.” Dkt. No. 60-1 at 17–18; see also Dkt. No 79 at 20–

21. Under Abood, that was the law in 1995 and nothing suggests

either party harbored a contrary understanding. The doctrine of

“mutual mistake” only applies when both parties are mistaken as

to the facts or “the law in existence at the time of the making of

the contract.” AIG Hawai’i Ins. Co. v. Bateman, 923 P.2d 395,

399–400 (Haw. 1996) (quoting RESTATEMENT (SECOND) OF

CONTRACTS § 151 cmt. b & § 152 (1981)). The fact that “neither

party was aware, at the time the parties entered into the [membership agreement],” that Abood “would be reversed” in 2018,

does not mean that “the parties were mistaken as to their legal

responsibilities regarding the [membership agreement].” Id. at

399.

9

Janus concerned compulsory fees extracted from nonmembers; it did not uproot the bedrock principle that “the First

Amendment does not confer . . . a constitutional right to disregard

promises that would otherwise be enforced under state [contract]

App. 20

Accordingly, with respect to Grossman’s claim for

reimbursement of pre-Janus membership dues, HGEA

is entitled to summary judgment.

II.

Grossman’s Remaining Claims Are Moot

That leaves Grossman’s damages claim for the union dues collected after Janus was decided, see Dkt. No.

1 at 16, ¶ (h), and Grossman’s request that the Court

strike down Haw. Rev. Stat. Section 89-4(a) and (c) (Act

7) as unconstitutional and enjoin Defendants Lassner

and the Attorney General from enforcing these provisions because, inter alia, the statute permits employees to withdraw their union membership only within

an arbitrary 30-day window, Dkt. No. 1, ¶¶ 51–52; id.

at 16–17, ¶¶ (i)–(j); see Dkt. No. 60 at ¶¶ (a), (d)–(e), (g);

Dkt. No. 60-1 at 9, 11. Defendants contend these claims

should be dismissed on several grounds, one of which

is that Grossman’s claims are moot. See Dkt. No. 63 at

7, 18–19; Dkt. No. 66-1 at 11–14; Dkt. No. 68-3 at 11–

12. The Court agrees.10

law.” Cohen v. Cowles Media Co., 501 U.S. 663, 671–72 (1991);

Janus, 138 S. Ct. at 2485 (“States can keep their labor-relations

systems exactly as they are—only they cannot force nonmembers

to subsidize public-sector unions.” (emphasis added); Fisk v.

Inslee, 759 F. App’x 632, 633–34 (9th Cir. 2019); Hernandez, 2019

WL 7038389, at *7. Janus, in other words, did nothing to nullify

Grossman’s HGEA membership agreement.

10

The Court notes that the “under color of law” or “state action” requirement of 42 U.S.C. Section 1983 is far more expansive

than HGEA would have it. Dkt. No. 63 at 16–18, 19–20. “[C]onduct satisfying the state-action requirement of the Fourteenth

Amendment satisfies the statutory requirement of action under

App. 21

color of state law” for purposes of Section 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982). “Misuse of power, possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law, is action

taken ‘under color of ’ state law.” Monroe v. Pape, 365 U.S. 167,

184 (1961) (citation omitted). Contrary to Defendants’ rationale,

it is irrelevant that the conduct in question was not commanded

or authorized by state law, as is any notion that state action is

absent simply because the conduct was contrary to state law. See

id. at 184, 187 (discussing Screws v. United States, 325 U.S. 91

(1945)). Further, “[Section] 1983 . . . contains no state-of-mind requirement independent of that necessary to state a violation of

the underlying constitutional right.” Daniels v. Williams, 474

U.S. 327, 329–30 (1986); see also Maddox v. City of Los Angeles,

792 F.2d 1408, 1413–14 (9th Cir. 1986). “[A] private entity can

qualify as a state actor in a few limited circumstances—including

. . . when the government acts jointly with the private entity.”

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928

(2019). A “procedural scheme created by . . . statute obviously is

the product of state action” and “properly may be addressed in a

[S]ection 1983 action.” Lugar, 457 U.S. at 941. “[W]hen private

parties make use of state procedures with the overt, significant

assistance of state officials, state action may be found.” Tulsa

Prof ’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486 (1988).

Here, DAGS deducted fair-share fees from Grossman’s paychecks

and transferred that money to HGEA pursuant to Hawaii statute

and a collective bargaining agreement. While Grossman initially

had voluntarily agreed to pay these dues prior to Janus, the dues

deducted after she sent her membership resignation letter were

no longer voluntary or made pursuant to a “private” agreement.

Dkt. No. 85 at 8. As such, Janus II is not inapposite merely because the case involved claims by nonmembers. 942 F.3d at 361.

The dispositive fact is HGEA obtained Grossman’s post-resignation dues (after she was effectively a nonmember), and that was

made possible only because of HGEA’s joint action with the State

and its statutory regime. Therefore, HGEA is a proper defendant

under Section 1983.

App. 22

A. Legal Framework

“Article III of the Constitution grants the [federal

courts] authority to adjudicate ‘Cases’ and ‘Controversies.’ ” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013).

To satisfy this requirement and “invoke the jurisdiction of a federal court,” a litigant must demonstrate

standing, i.e., they must “have suffered, or be threatened with, an actual injury traceable to the defendant

and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472,

477 (1990); Already, LLC, 568 U.S. at 90. Put simply, a

plaintiff “must demonstrate that [they] possesses a

legally cognizable interest, or ‘personal stake,’ in the

outcome of the action.” Genesis HealthCare Corp. v.

Symczyk, 569 U.S. 66, 71 (2013) (citation omitted)

(quoting Camreta v. Greene, 563 U.S. 692, 701 (2011)).

The plaintiff, moreover, “must continue to have a ‘personal stake in the outcome’ of the lawsuit,” Lewis,

494 U.S. at 478, “not merely at the time the complaint

is filed.” Alvarez v. Smith, 558 U.S. 87, 92 (2009) (internal quotation marks omitted). “This requirement

ensures that the Federal Judiciary confines itself to

its constitutionally limited role of adjudicating actual

and concrete disputes, the resolutions of which have

direct consequences on the parties involved.” Genesis

HealthCare, 569 U.S. at 71 (emphasis added).

“A case becomes moot—and therefore no longer a

‘Case’ or ‘Controversy’ for purposes of Article III—

‘when the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the outcome.’ ” Already, LLC, 568 U.S. at 91 (quoting Murphy

App. 23

v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). Thus,

“[i]f an intervening circumstance deprives the plaintiff

of a ‘personal stake in the outcome of the lawsuit,’ at

any point during litigation, the action can no longer

proceed and must be dismissed as moot.” Genesis

HealthCare, 569 U.S. at 72 (citation omitted). The

plaintiff lacks a “personal stake” in the litigation—and

thus the case is moot—“only when it is impossible for

a court to grant any effectual relief whatever to the

prevailing party.” Knox v. SEIU, Local 1000, 567 U.S.

298, 307 (2012) (citations and internal quotation

marks omitted). To that end, a federal court must evaluate Article III jurisdiction as to “each claim [a plaintiff ] seeks to press and for each form of relief that is

sought.” See Town of Chester v. Laroe Estates, Inc., 137

S. Ct. 1645, 1650 (2017) (quoting Davis v. Federal Election Comm’n, 554 U.S. 724, 734 (2008)).

B. Grossman’s Claim for Post-Janus Damages

Grossman’s claim for post-Janus damages is moot.

It is undisputed that on January 9, 2019, dues deductions from Grossman’s pay ceased, and the total

amount that was deducted between July 10, 2018 and

when the dues ceased is $402.60. Dkt. No. 57, ¶¶ 16–

17. Through counsel, HGEA sent Grossman a check for

$402.60, Dkt. No. 57-4; Dkt. No. 57, ¶18, but on June

21, 2019, Grossman’s counsel informed HGEA counsel

that Grossman had not cashed the check for $402.60.

Dkt. No. 57, ¶¶ 21. HGEA counsel later responded by

sending Grossman’s counsel a letter and a reissued

App. 24

check in the amount of $442.86, reflecting a ten percent increase to cover interest. Dkt. No. 57, ¶ 22.11

The letter—which is attached to the parties’ stipulated

facts—recounts that Grossman’s counsel had informed

HGEA counsel that “Grossman is willing to void the

original check and deposit a reissued check,” and accordingly, that HGEA acted on that representation by

issuing Grossman a check for $442.86. Dkt. No 57-7 at

1. “Where an offer invites an offeree to accept by rendering a performance, no notification is necessary to

make such an acceptance effective unless the offer requests such a notification.”12 See Hew v. Aruda, 462

P.2d 476, 481 (Haw. 1969) (“[S]ilence in the light of

previous dealings between parties may operate as

assent.”). As such, HGEA accepted Grossman’s offer

when it tendered the check for $442.86, and as a result,

Grossman’s claim for post-Janus damages became

moot.

To be sure, unlike with the first check for $402.60,

nothing in the record suggests that Grossman rejected

the reissued check. The fact that HGEA actually issued

and provided the check to Grossman without any

strings attached makes this case distinctly different

from Knox v. SEIU, Local 1000, 567 U.S. 289 (2012),

where the union’s refund notice to class members did

not moot the case because it included “a host of conditions, caveats, and confusions” and essentially sought

to “unilaterally” dictate “the manner in which [the

11

12

See supra note 6.

RESTATEMENT (SECOND) OF CONTRACTS § 54(1) (1981).

App. 25

union] advertise[d] the availability of the refund” to

class members. Id. at 308. Yet Grossman makes a lastditch effort to keep her damages claim alive by asserting for the first time in her reply brief that she “treated

these checks as an incomplete offer of settlement and

rejected them.” Dkt. No. 79 at 24 (citing Dkt. No. 57,

¶ 21). But Grossman’s citation to the parties’ stipulated facts does not support her proposition. An opposing party cannot avoid summary judgment by

supporting its factual contentions with bald assertions

in its legal memoranda; rather, a litigant “must support [their] assertion[s] by citing to particular parts

of materials in the record.” See, e.g., Fed.R.Civ.P.

56(c)(1)(a); Anderson, 477 U.S. at 256–57; Teamsters

Local Union No. 117 v. Wash. Dep’t of Corr., 789 F.3d

979, 994 (9th Cir. 2015).13

In sum, Grossman sought “damages against

HGEA for all union dues collected from [Grossman]

since the Janus decision on June 27, 2018.” Dkt. No. 1

at 16, ¶(h). Because the undisputed evidence in the

record indicates Grossman has received just that from

13

See also Californians for Renewable Energy v. Cal. PUC,

922 F.3d 929, 936 (9th Cir. 2019) (“[I]t is not [the court’s] task . . .

to scour the record in search of a genuine issue of triable fact.”

(citations and internal quotation marks omitted)); Carmen v. S.F.

Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (supporting evidence must be “set forth in the opposing papers with adequate references so that it could conveniently be found.”); S. Cal.

Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003)

(“General references without page or line numbers are not sufficiently specific.”).

App. 26

HGEA, plus ten percent interest, Grossman’s claim for

post-Janus damages is moot.

C. Prospective Injunctive and Declaratory

Relief Regarding Act 7

Grossman has no “personal stake” in challenging

the constitutionality of Act 7 or enjoining the enforcement of the statute’s opt-out window, and thus, both

forms of relief sought by Grossman are moot. Grossman concludes otherwise and argues that two exceptions to the mootness doctrine save her remaining

claims: (1) voluntary cessation; and (2) wrongs capable

of repetition, yet evading review. See Dkt. No. 60-1 at

12–16; Dkt. No. 79 at 13–17; cf. EEOC v. Fed. Express

Corp., 558 F.3d 842, 847 (9th Cir. 2009) (listing four

major exceptions to the mootness doctrine). Both theories are unavailing.

1. Voluntary Cessation

The voluntary cessation doctrine does not save

Grossman’s equitable claims. Unless the party asserting mootness can satisfy the “heavy burden” of proving

that it is “absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur,”

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.

1, 551 U.S. 701, 719 (2007) (quoting Friends of Earth,

Inc. v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167, 189 (2000)), its “voluntary cessation of

challenged conduct does not . . . render a case moot.”

Knox, 567 U.S. at 307. The focus of the inquiry is

App. 27

whether the challenged conduct cannot “reasonably be

expected to recur” with respect to the complaining

party. See, e.g., Logan v. U.S. Bank N.A., 722 F.3d 1163,

1166 (9th Cir. 2013) (defendant bank “offered no evidence or reassurance that it either could not or would

not reinitiate the unlawful detainer action against [the

plaintiff ] at another time”); McCormack v. Herzog, 788

F.3d 1017, 1025 (9th Cir. 2015) (prosecutor’s offer of

transactional immunity “does not by itself make it ‘absolutely clear’ that the prosecution of [the plaintiff ]

would never recur.”).

Defendants have satisfied this burden. Although

the evidence—when viewed in the light most favorable

to Grossman—suggests that Grossman was initially

subjected to Act 7’s opt-out window, Dkt. No 57-2 at 5;

Dkt. No. 79 at 4–6, 12–13, rather than some “inadvertent administrative error” on HGEA’s part, the interim

events of HGEA processing Grossman’s membership

resignation and refunding her dues for the relevant period, see supra Section I, “have completely and irrevocably eradicated the effects of the alleged violation,”

Buono v. Norton, 371 F.3d 543, 545–46 (9th Cir. 2004).

As a result, Grossman no longer has a “personal” stake

in challenging Act 7 simply because she was subjected

to its terms in the past.

Nor does Grossman have a “personal stake” in this

lawsuit that is grounded in some threatened interest.

That is, it is absolutely clear that Grossman “could not

reasonably be” again subjected to the opt-out window

in Act 7 because that window applies only to members

and Grossman, by her own 2018 choice, is no longer a

App. 28

member. The fact that HGEA may have changed its

conduct “only after being sued,” Dkt. No. 60-1 at 12, is

not enough to keep this controversy alive. Unlike a

woman faced with the ongoing risk that a prosecutor

will re-file charges under a state statute for the termination of her past pregnancy and the stark probability

that she also may became pregnant and seek another

abortion, see McCormack, 788 F.3d at 1025–27, or an

individual who continued to remain in possession of a

piece of real estate where she might again be subjected

to an unlawful detainer action, Logan, 722 F.3d at

1165–66, here, in light of Grossman’s status as a nonmember and the mechanics of Act 7, Grossman is no

longer in a position where it is reasonable to expect

that she will again fall within the purview of Act 7 and

be subjected to its opt-out window.

For Grossman to come under the scrutiny of Act 7

in the future, she would first need to become a member

and then wish to withdraw her membership before the

opt-out window. But even then, Act 7 would not present

the same issue for Grossman that it does here because

she will have voluntarily become a member knowing

in advance that she is locked in for 11 months. Thus,

any threat Act 7 poses to Grossman is “two steps

removed from reality.” See Super Tire Eng’g Co. v.

McCorkle, 416 U.S. 115, 123 (1974) (discussing Oil

Workers Unions v. Missouri, 361 U.S. 363 (1960) and in

Harris v. Battle, 348 U.S. 803 (1954)).

Grossman’s reliance on Knox v. SEIU, Local 1000,

567 U.S. 298, 307 (2012), is misplaced. Dkt. No. 60-1 at

14; Dkt. No. 79 at 15. In Knox, the circumstances of the

App. 29

constitutional challenge concerned dues extracted

from nonmembers without their consent. There, it was

thus reasonable to find that the union would not “necessarily refrain from collecting similar fees in the future” from nonmembers who were still covered by a

collective bargaining agreement. Knox, 567 U.S. at 302,

307. By contrast, Act 7 only impacts union members,

which Grossman is not. Because the wrongful behavior

in this case could not reasonably be expected to recur,

HGEA’s voluntary cessation of the challenged conduct

alone does not warrant this Court continuing to hear

the case.

2. Capable of Repetition, Yet Evading

Review

The capable-of-repetition-yet-evading-review exception to the mootness doctrine does not apply. “That

exception applies ‘only in exceptional situations,’

where (1) ‘the challenged action [is] in its duration too

short to be fully litigated prior to cessation or expiration,’ and (2) ‘there [is] a reasonable expectation that

the same complaining party [will] be subject to

the same action again.’ ” Kingdomware Techs., Inc. v.

United States, 136 S. Ct. 1969, 1976 (2016) (brackets in

original; emphasis added) (quoting Spencer v. Kemna,

523 U. S. 1, 17 (1998)). Grossman’s challenge to the annual opt-out window in Act 7 satisfies the first requirement. Johnson v. Rancho Santiago Cmty. Coll. Dist.,

623 F.3d 1011, 1019 (9th Cir. 2010) (observing that

“three years is too short” for full judicial review). But

App. 30

Grossman cannot satisfy the “capable of repetition” requirement.

As with Grossman’s voluntary cessation theory,

the fatal defect here is the fact that there is no “reasonable expectation that [Grossman] [will] be subject

to [the terms of Act 7] again.” Kingdomware Techs., 136

S. Ct. at 1976. Of course, Grossman continues to dispute the lawfulness of Act 7. But the problem is that

Grossman’s “dispute is no longer embedded in any actual controversy about [Grossman’s] particular legal

rights.” Alvarez v. Smith, 558 U.S. 87, 93 (2009). Instead, “it is an abstract dispute about the law, unlikely

to affect [Grossman] any more than it affects other

[Hawaii] citizens. And a dispute solely about the meaning of a law, abstracted from any concrete actual or

threatened harm, falls outside the scope of the constitutional words ‘Cases’ and ‘Controversies.’ ” Id.; see Already, LLC, 568 U.S. at 91.

Super Tire Eng’g Co. v. McCorckle, 416 U.S. 115,

122–26 (1974), on which Grossman relies, is not to the

contrary. There, a group of employers sought to enjoin

the two State welfare programs that made benefits

available to striking workers. Id. at 117–119. Although

the strike ended before an injunction could be issued,

the Court concluded that the case was not moot because the employers’ subsequent relations with the union would be affected by the ongoing state policy to

provide welfare to employees when they chose to go on

strike. Id. at 123–24. That “personal stake” was “not

contingent, ha[d] not evaporated or disappeared, and

by its continuing and brooding presence, cast[ed] . . . a

App. 31

substantial adverse effect on the interests of the petitioning parties.” Id. at 122, 125 (emphasis added).

By contrast, Grossman does not have a similar interest

in Act 7. That is, it cannot be said that Act 7 “has adversely affected and continues to affect a present interest” for Grossman, as a nonmember, any more than Act

7 impacts members of the general public. Super Tire

Eng’g Co., 416 U.S. at 126 (emphasis added). Therefore,

this case does not fall within the capable-of-repetitionyet-evading-review exception to the mootness doctrine.

Lastly, Grossman turns to a separate line of cases

for support. She cites Fisk v. Inslee, 759 F. App’x 632

(9th Cir. 2019), and argues that a challenge to Hawaii’s

annual period for revoking union membership is the

type of transitory claim for which judicial review remains available after a plaintiff is no longer subject

to the challenged conditions. Dkt. No. 79 at 14–16.

Fisk is similar to this case in that it involved a challenge by former union members to an opt-out window

restriction. Id. at 633. But Fisk, unlike this case, was

brought as a class action. Complaint at 8–10, 13, Fisk

v. Inslee, No. 3:16-cv-5889 (W.D. Wash. Oct. 20, 2016),

ECF No. 1. In Fisk, the Ninth Circuit acknowledged

that “no class ha[d] been certified and [the union] and

the State ha[d] stopped deducting dues,” but nonetheless, the court concluded that plaintiffs’ non-damages

claims were not moot. 759 F. App’x at 633. Citing Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975), the court

reasoned that plaintiffs’ “non-damages claims are the

sort of inherently transitory claims for which continued litigation is permissible.” Fisk, 759 F. App’x at 633.

App. 32

The fact that Grossman did not bring this case as

a class action is significant. In United States v.

Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018), the Supreme Court recently reversed the Ninth Circuit and

explicitly “reject[ed] the notion that Gerstein supports

a freestanding exception to mootness outside the class

action context.” Id. at 1538. The Court explained that

Gerstein was brought as a class action by detainees

raising claims concerning their pretrial detention, and

although the case was certified as a class action under

Fed.R.Civ.P. 23, it was discovered that the named representatives’ claims had become moot before the class

was certified. Id. at 1537–38. Due to the “inherently

temporary” and “uncertain length” of pretrial custody,

id. at 1538, it was unlikely “that any given individual,

named as plaintiff, would be in pretrial custody long

enough for a district judge to certify the class.” Id.

(quoting Gerstein, 420 U.S. at 110–11, n.11). But “it was

certain that there would always be some group of detainees subject to the challenged practice[,]” and,

therefore, the Court held in Gerstein that the class action could proceed. Id.

The Court went on to underscore that “Gerstein . . .

provides a limited exception to [the] requirement that

a named plaintiff with a live claim exist at the time of

class certification,” and the exception applies only

when “the pace of litigation and the inherently transitory nature of the claims at issue conspire to make that

requirement difficult to fulfill.” Id. at 1539 (citation

omitted). As such, the Court emphasized that Gerstein’s rule is “tied . . . to the class action setting from

App. 33

which it emerged.” Id. at 1539 (collecting cases); see

also Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66,

76 (2013) (explaining that the “doctrine may apply in

Rule 23 cases where it is ‘certain that other persons

similarly situated’ will continue to be subject to the

challenged conduct and the claims raised are ‘so inherently transitory that the trial court will not have even

enough time to rule on a motion of class certification

before the proposed representative’s individual interest expires.’ ” (quoting Cty. of Riverside v. McLaughlin,

500 U.S. 44, 52 (1991)).

Here, Gerstein’s exception does not apply, and thus

Fisk is inapposite. Fisk fit within Gerstein’s exception

because although “no class ha[d] been certified,” 759 F.

App’x at 633, the case was brought as a class action.

Complaint at 8–10, 13, Fisk v. Inslee, No. 3:16-cv-5889

(W.D. Wash. Oct. 20, 2016), ECF No. 1. This case differs

because Grossman did not file her complaint as a class

action, and she never sought to certify this case as a

class action at any point in this litigation. The “ ‘mere

presence of . . . allegations’ that might, if resolved in

[Grossman’s] favor, benefit other similarly situated

individuals cannot ‘save [Grossman’s] suit from mootness once [her] individual claim[s]’ have dissipated.”

Sanchez-Gomez, 138 S. Ct. at 1540 (quoting Genesis

HealthCare, 569 U.S. at 73). Indeed, “[n]o matter how

vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit,”

Already, LLC, 568 U.S. at 91, “Article III denies federal

courts the power to decide questions that cannot affect

the rights of litigants in the case before them,” Lewis,

App. 34

494 U.S. at 477 (emphasis added; citations and internal

quotation marks omitted). Accordingly, this Court joins

the other courts that have addressed claims by former

union member’s challenging opt-out provisions14 in

concluding that Grossman’s claims for equitable prospective relief are moot.

Because intervening circumstances during this

litigation have deprived Grossman of any “personal

stake in the outcome of the lawsuit” that would save

her claims from mootness, Genesis HealthCare, 569

U.S. at 72, such that it is now “impossible” for this

Court “to grant any effectual relief whatever” to

Grossman, Knox, 567 U.S. at 307, this action “can no

longer proceed” and is “dismissed as moot.” Genesis

HealthCare, 569 U.S. at 72.

CONCLUSION

For the foregoing reasons, Defendants are entitled

to summary judgment on Count I. Plaintiff ’s motion

for partial summary judgment, (Dkt. No. 60), is therefore DENIED, and Defendants’ cross-motions for summary judgment, (Dkt. Nos. 63, 66, 68), are GRANTED

to the extent set forth herein.

14

Oliver, 2019 WL 5964778, at *7 (finding moot a former

union member’s claims for declaratory and injunctive relief regarding state statutes that restricted window of time in which union members could withdraw their membership); Hendrickson v.

AFSCME Council 18, No. 18-1119 RB/LF, 2020 WL 365041, at

*4–5 (D.N.M. Jan. 22, 2020).

App. 35

The Clerk of Court is instructed to enter Judgment, pursuant to this Order, and the Order entered

on May 21, 2019, (Dkt. No. 46). The Clerk is then DIRECTED to close this case.

IT IS SO ORDERED.

DATED: January 31, 2020 at Honolulu, Hawai‘i.

[SEAL]

/s/ Derrick K. Watson

Derrick K. Watson

United States District Judge

App. 36

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

PATRICIA GROSSMAN

Plaintiff,

V.

HAWAII GOVERNMENT

EMPLOYEES

ASSOCIATION/AFSME

LOCAL 152; DAVID

LASSNER, in his Official

Capacity as President of

the University of Hawaii;

CLARE E. CONNORS,

in her Official Capacity as

Attorney General of Hawaii

JUDGMENT IN

A CIVIL CASE

Case: CV 18-00493

DKW-RT

FILED IN THE

UNITED STATES

DISTRICT COURT

DISTRICT OF HAWAII

January 31, 2020

At 2 o’clock and

38 min p.m.

SUE BEITIA, CLERK

Defendants.

[ ] Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

[🗸] Decision by Court. This action came for consideration before the Court. The issues have been

considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that judgment is entered pursuant to the “Order Granting

Defendants’ Motion to Dismiss Count II”, ECF No.

46, filed May 21, 2019 and the “Order (1) Denying

Plaintiff ’s Motion for Partial Summary Judgment;

(2) Granting Defendants’ Cross-Motions for Summary Judgment; and (3) Dismissing This Action”,

App. 37

ECF No. 92, filed January 31, 2020. It is further

ordered that the Clerk shall close this case.

January 31, 2020

Date

SUE BEITIA

Clerk

/s/ Sue Beitia by ET

(By) Deputy Clerk