Respondents Brief — Glenn Laird, Petitioner v. United Teachers Los Angeles, et al.

No. 23-1111

IN THE

Supreme Court of the United States

___________________

GLENN LAIRD,

v.

Petitioner,

UNITED TEACHERS LOS ANGELES, ET AL.,

Respondents.

___________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

___________________

BRIEF IN OPPOSITION

___________________

IRA L. GOTTLIEB

SCOTT A. KRONLAND

LISA C. DEMIDOVICH

Counsel of Record

LUKE TAYLOR

EMANUEL WADDELL

BUSH GOTTLIEB, a Law Corp. ALTSHULER BERZON LLP

801 N. Brand Blvd., # 950

177 Post Street, #300

Glendale, CA 91203

San Francisco, CA 94108

(415) 421-7151

skronland@altber.com

Counsel for Respondent United Teachers Los Angeles

Mosaic - (301) 927-3800 - Cheverly, MD

Mosaic - (301) 927-3800 - Cheverly, MD

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i

QUESTION PRESENTED

Whether a union engaged in “state action” for purposes of 42 U.S.C. § 1983 when the union violated

state law by failing to inform petitioner’s public employer that he had cancelled his authorization for

continued payroll deductions.

ii

CORPORATE DISCLOSURE STATEMENT

Respondent United Teachers Los Angeles has no

parent corporation, and no company owns any stock in

Respondent.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................i

CORPORATE DISCLOSURE STATEMENT ......... ii

TABLE OF CONTENTS ......................................... iii

TABLE OF AUTHORITIES ..................................... v

PRELIMINARY STATEMENT ................................ 1

STATEMENT OF THE CASE.................................. 4

A. Background.......................................................... 4

B. Proceedings below ............................................... 6

REASONS FOR DENYING THE PETITION ......... 8

I. Petitioner’s first question presented was

not addressed below and is not worthy of

this Court’s review............................................... 9

II. The state action issue is not worthy of this

Court’s review. ................................................... 13

CONCLUSION........................................................ 21

iv

v

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Abood v. Detroit Bd. of Ed.,

431 U.S. 209 (1977) ........................................... 16

Alaska v. Alaska State Emps.

Ass’n/AFSCME Loc. 52, AFL-CIO,

No. 23-179, 144 S. Ct. 682 (2024)...................... 12

Anderson v. Serv. Emps. Int’l Union Loc.

503,

No. 21-609, 142 S. Ct. 764 (2022)...................... 13

Belgau v. Inslee,

975 F.3d 940 (9th Cir. 2020), cert.

denied, 141 S. Ct. 2795 (2021) .......... 1, 10, 11, 14

Belgau v. Inslee,

No. 20-1120, 141 S. Ct. 2795 (2021).................. 13

Bennett v. AFSCME, Council 31, AFL-CIO,

No. 20-1603, 142 S. Ct. 424 (2021).................... 13

Bennett v. Council 31 of the AFSCME, AFLCIO,

991 F.3d 724 (7th Cir.), cert. denied, 142

S. Ct. 424 (2021) ................................................ 11

Blum v. Yaretsky,

457 U.S. 991 (1982) ........................................... 18

vi

Burns v. Sch. Serv. Emps. Union Loc. 284,

75 F.4th 857 (8th Cir. 2023), cert. denied,

144 S. Ct. 814 (2024) ..................................... 1, 11

Chicago Tchrs. Union, Loc. No. 1 v. Hudson,

475 U.S. 292 (1986) ........................................... 16

Cooley v. Cal. Statewide Law Enf’t Ass’n,

No. 22-216, 143 S. Ct. 405 (2022)...................... 12

Ellis v. Bhd. of Ry., Airline & S.S. Clerks,

Freight Handlers, Exp. & Station Emps.,

466 U.S. 435 (1984) ........................................... 16

Fischer v. Governor of N.J.,

842 F. App’x 741 (3d Cir.), cert. denied,

142 S. Ct. 426 (2021) ......................................... 11

Fischer v. Murphy,

No. 20-1751, 142 S. Ct. 426 (2021).................... 13

Grossman v. Hawaii Gov’t Emps. Ass’n,

No. 21-597, 142 S. Ct. 591 (2021)...................... 13

Harris v. Quinn,

573 U.S. 616 (2014) ........................................... 16

Hendrickson v. AFSCME Council 18,

992 F.3d 950 (10th Cir.), cert. denied,

142 S. Ct. 423 (2021) ......................................... 11

Hendrickson v. AFSCME Council 18,

No. 20-1606, 142 S. Ct. 423 (2021).................... 13

Hoekman v. Educ. Minn.,

41 F.4th 969 (8th Cir. 2022) ............ 11, 14, 15, 20

vii

Janus v. AFSCME, Council

31, 585 U.S. 878 (2018) ........................... 2, 12, 16

Janus v. AFSCME, Council 31,

942 F.3d 352 (7th Cir. 2019) ....................... 15, 16

Jarrett v. Serv. Emps. Int’l Union Loc. 503,

No. 23-272, 144 S. Ct. 494 (2023)...................... 18

Knox v. Serv. Employees Intern. Union, Loc.

1000,

567 U.S. 298 (2012) ........................................... 16

Lindke v. Freed,

601 U.S. 187 (2024) ............................... 13, 14, 21

Littler v. Ohio Ass’n of Pub. Sch. Emps.,

88 F.4th 1176 (6th Cir. 2023) ................ 15, 16, 17

Lugar v. Edmundson Oil Co.,

457 U.S. 922 (1982) ............................... 14, 18, 21

Lutter v. JNESO,

86 F.4th 111 (3d Cir. 2023) ......................... 12, 16

O’Callaghan v. Drake,

No. 22-219, 143 S. Ct. 2431 (2023).................... 12

Oliver v. SEIU Loc. 668,

830 F. App’x 76 (3d Cir. 2020) .......................... 11

Polk v. Yee,

No. 22-213, 143 S. Ct. 405 (2022)...................... 12

viii

Ramon Baro v. Lake Cnty. Fed’n of Tchrs.

Loc. 504,

57 F.4th 582 (7th Cir.), cert denied, 143

S. Ct. 2614 (2023) .............................................. 11

Ramon Baro v. Lake Cnty. Fed’n of Tchrs.

Loc. 504,

No. 22-1096, 143 S. Ct. 2614 (2023).................. 12

Savas v. Cal. Statewide Law Enf’t Ass’n,

No. 22-212, 143 S. Ct. 2430 (2023).................... 12

Screws v. United States,

325 U.S. 91 (1945) ............................................. 21

Smith v. Bieker,

No. 21-639, 142 S. Ct. 593 (2021)...................... 13

Troesch v. Chicago Tchrs. Union,

No. 20-1786, 142 S. Ct. 425 (2021).................... 13

United States v. Classic,

313 U.S. 299 (1941) ........................................... 21

Wheatley v. N.Y. State United Tchrs.,

80 F.4th 386 (2d Cir. 2023) ............................... 11

Wolf v. UPTE-CWA 9119,

No. 21-612, 142 S. Ct. 591 (2021)...................... 13

Woods v. Alaska State Emps. Ass’n,

No. 21-615, 142 S. Ct. 1110 (2022).................... 12

Wright v. SEIU Loc. 503,

48 F.4th 1112 (9th Cir. 2022), cert.

denied, 143 S. Ct. 749 (2023) ................ 14, 16, 17

ix

Yates v. Hillsboro Unified Sch. Dist.,

No. 21-992, 142 S. Ct. 1230 (2022).................... 12

Constitution and Statutes

First Amendment .............................. 1, 3, 8, 9, 10, 11

Fourteenth Amendment ................................... 13, 14

42 U.S.C. § 1983 ........................... 1, 2, 7, 8, 9, 10, 13,

14, 15, 16, 20, 21

Cal. Educ. Code

§ 45060(a)....................................................... 4, 10

§ 45060(c) ................................................. 4, 10, 19

§ 45060(e) ....................................................... 4, 19

§ 45060(f) ........................................................... 20

Cal. Gov’t Code

§ 3541.3(i)............................................................. 5

§ 3543 ................................................................... 4

§3543.5 ................................................................. 4

§3543.6(b)............................................................. 4

Other Authorities

5 Witkin, Summary of California Law, Torts

(11th Ed. 2024) .................................................. 20

News Release, Bureau of Labor Statistics,

U.S. Dep’t of Labor, Union Members—

2023 (Jan. 23, 2024), Table 3, available

at

https://www.bls.gov/news.release/pdf/uni

on2.pdf (last visited July 2, 2024) ..................... 18

1

PRELIMINARY STATEMENT

Petitioner was a public employee in California who

joined a union and signed a voluntary written authorization permitting his employer to deduct union dues

from his paychecks. Petitioner claims that, after he

validly revoked his authorization for continued deductions, the union violated state law by failing to process

the revocation and, as a result, his employer erroneously continued to deduct dues for several months.

The union subsequently sent petitioner a refund.

Petitioner asks the Court to grant review of the

non-precedential decision below to resolve a purported

“split of authority” about whether, consistent with the

First Amendment, the government may deduct union

dues from the paychecks of public employees “who

have rescinded their prior consent to union dues deductions.” Pet. i, 8. But petitioner’s own 42 U.S.C.

§ 1983 claims were dismissed for threshold reasons,

not because the Ninth Circuit ruled that the government may deduct union dues for public employees who

have not authorized those deductions.

Moreover, there is no split of authority. “Every circuit to consider the matter”—including the Ninth

Circuit—“has concluded that the deduction of union

dues under a valid contract between the union and a

member does not violate the First Amendment.”

Burns v. Sch. Serv. Emps. Union Loc. 284, 75 F.4th

857, 860 (8th Cir. 2023) (emphasis supplied), cert. denied, 144 S. Ct. 814 (2024); see also Belgau v. Inslee,

975 F.3d 940, 950–52 (9th Cir. 2020), cert. denied, 141

S. Ct. 2795 (2021). No court has held that the government may, consistent with the First Amendment,

2

require public employees to pay union dues that they

have not agreed to pay.

Petitioner contends that this Court’s decision in

Janus v. AFSCME, Council 31, 585 U.S. 878 (2018),

requires the application of a heightened “waiver”

standard to voluntary agreements to pay union dues.

Pet. i. To the contrary, Janus addressed mandatory

agency fees that public employers required their employees to pay as a condition of employment, not

voluntary dues deductions. This Court has denied

more than a dozen petitions for certiorari that advanced the same meritless argument about Janus. See

infra at 12–13. There have been no developments

since that time that would make the issue worthy of

review—even if it were presented by this case.

Petitioner also asks the Court to grant review of

the non-precedential decision below to resolve a purported “split of authority” about whether unions are

Section 1983 state actors. Pet. i, 11. Again, however,

there is no split of authority.

The circuits agree that when state law permits

only voluntary dues deductions, an employee’s claim

that a union violated state law by providing incorrect

information to a public employer about whether the

employee has authorized deductions is actionable under state law, not Section 1983. That conclusion

follows from this Court’s precedents that distinguish

between private misconduct and misconduct for which

the government is responsible.

The cases that petitioner erroneously claims create

a conflict on the state action issue are cases like Janus, in which the government required employees to

3

pay fees to a union as a condition of employment. In

those cases, the government’s mandatory fees requirement was the First Amendment infringement. The

unions’ conduct in those cases was attributable to the

government because the unions were acting jointly

with the government in implementing the government’s mandatory fees requirement.

Here, there was no government requirement to pay

fees to a union—state law permits deductions only

with the employee’s affirmative authorization. If petitioner’s allegations are correct, the union violated

state law by failing to process his revocation, and petitioner has a state law remedy against the union for

the union’s private misconduct.

Petitioner’s state action analysis would flood the

federal courts with run-of-the-mill payroll disputes.

State and local public employers process millions of

voluntary employee payroll deductions every month

for union dues, charitable contributions, insurance

programs, and other purposes. The lower courts have

wisely rejected a state action analysis that is inconsistent with this Court’s precedents and would make

the federal courts responsible for addressing payroll

disputes that state labor boards and state courts are

competent to resolve.

This Court recently denied another petition for certiorari, filed by the same advocacy organization, that

made the same state action argument. See infra at 18.

There have been no developments since then that

would make the question worthy of review.

4

In the absence of a split of authority, there is no

good reason for granting review of the non-precedential decision below. The petition should be denied.

STATEMENT OF THE CASE

A. Background

1. Under California law, public school employees

have the right to decide whether to become members

of the union that represents their bargaining unit.

Cal. Gov’t Code § 3543. Employees who choose to join

the union may authorize the deduction of union dues

from their paychecks by providing “written authorization for payroll deductions.” Cal. Educ. Code

§ 45060(a), (e). Employees may cancel their dues deductions in accordance with “the terms of the written

authorization.” Id. § 45060(a); see also id. § 45060(c).

“Employee requests to cancel or change authorizations for payroll deductions” must “be directed to the

employee organization,” and “[t]he employee organization [is] responsible for processing these requests.”

Id. § 45060(e). Public employers must “rely on information provided by the employee organization

regarding whether deductions … were properly canceled or changed.” Id. § 45060(e). The employee

organization must indemnify the public employer for

any errors made in reliance on that information. Id.

California law prohibits public employers and unions from interfering with public employees’ rights to

choose whether to join or support labor unions. Cal.

Gov’t Code §§ 3543, 3543.5, 3543.6(b). A union’s failure to process the revocation of an employee’s written

dues deduction authorization in accordance with the

5

terms of that authorization would violate this state

law. California’s Public Employee Relations Board

(“PERB”) has jurisdiction to remedy violations of public employees’ rights. Cal. Gov’t Code § 3541.3(i).

2. Petitioner Glenn Laird was a high school

teacher employed by the Los Angeles Unified School

District (“LAUSD”) in a bargaining unit represented

by United Teachers Los Angeles (“UTLA”). App. 3a

¶¶4–5. Petitioner voluntarily chose to become a UTLA

member when he became an LAUSD employee. App.

3a–4a ¶¶4, 8.

On February 11, 2018, petitioner executed a new

UTLA membership agreement. App. 10a ¶51. In the

agreement, petitioner first confirmed that he

“want[ed] to join with [his] fellow employees and become a member of UTLA.” App. 52a. Petitioner then

separately “(1) agree[d] to pay regular monthly dues

uniformly applicable to members of UTLA” and

“(2) request[ed] and voluntarily authorize[d] [his] employer to deduct from [his] earnings and to pay over to

UTLA such dues.” Id.

In the membership agreement, petitioner acknowledged that his “agreement to pay dues shall remain in

effect … unless [he] revoke[d] it by sending written

notice … to UTLA.” App. 10a ¶51, 52a. The printed

agreement provided that it could be revoked only during an annual window period. See App. 52a.

Petitioner alleges that, before signing the agreement,

he used a Sharpie marker to strike out language defining the annual “opt out window” for submitting

such a revocation. App. 10a ¶¶50–51. Petitioner did

not strike out separate language providing that his

agreement to pay dues via payroll deduction “shall be

6

automatically renewed from year to year unless [he]

revoke[s] it in writing during the window period, irrespective of [his] membership in UTLA.” Id.; App. 52a.

On June 12, 2020, Petitioner sent a letter to UTLA

resigning from union membership and instructing

UTLA to terminate his membership dues deductions.

App. 10a ¶55. His letter did not say anything about

the alteration he had made in Sharpie marker to the

printed UTLA membership agreement. See Ninth Cir.

Dkt. 21 at 9. Petitioner alleges that UTLA did not immediately honor his request to terminate his dues

deductions because the request had been submitted

outside the window period set forth in his printed

membership agreement. App. 11a ¶57. Petitioner alleges that, as a result of UTLA’s failure to process his

revocation of dues deductions, LAUSD erroneously deducted UTLA membership dues from his pay from

May 2020 through December 2020. App. 12a ¶68. Petitioner’s subsequent communications with UTLA and

LAUSD did not mention the Sharpie marker issue.

See Ninth Cir. Dkt. 10 at 26, 28–29.

On December 14, 2020, within the window period

on his printed membership agreement, petitioner sent

another request to UTLA to terminate his dues deductions. App. 12a ¶70. UTLA processed the request and

the deductions ended. App. 12a–13a ¶¶71–73, 34a;

Ninth Cir. Dkt. 21 at 6 ¶14.

B. Proceedings below

On March 16, 2021, several months after his dues

deductions had ended, petitioner filed suit in federal

court against UTLA, LAUSD, and the California Attorney General. App. 1a–20a, 30a. Petitioner claimed

7

that the deduction of membership dues following his

June 12, 2020 resignation violated his rights under

the First Amendment and the Due Process Clause and

gave rise to claims under 42 U.S.C. § 1983. App. 14a–

18a. After reviewing petitioner’s complaint, UTLA became aware of the Sharpie marker issue and sent

petitioner a refund of his post-resignation dues. 9th

Cir. Dkt. 21 at 6–7, 25–26.

The district court granted the defendants’ motions

to dismiss petitioner’s claims. App. 27a–47a. The district court concluded that petitioner lacked standing

to pursue prospective relief because his deductions already had ended and his complaint “d[id] not contain

any allegations of future injury.” App. 35a–36a. The

district court held that sovereign immunity barred petitioner’s claims for damages against LAUSD and the

Attorney General. App. 38a–41a. The district court

held that petitioner’s Section 1983 claims against

UTLA failed because UTLA’s alleged misconduct was

not state action. App. 41a–47a.

A Ninth Circuit panel unanimously affirmed the

district court’s decision in a short, non-precedential

memorandum. App. 23a–25a. Petitioner did not challenge on appeal the district court’s dismissal of his

claims for prospective relief or the dismissal of his

claims against LAUSD, so the Ninth Circuit did not

address those issues. The Ninth Circuit agreed with

the district court that petitioner’s damages claims

against the Attorney General were barred by sovereign immunity. App. 25a. The Ninth Circuit also

agreed with the district court that petitioner’s claims

against UTLA were properly dismissed because, on

the facts alleged by petitioner, UTLA did not engage

8

in the state action required for a Section 1983 claim.

App. 24a.

With regard to state action, the Ninth Circuit reasoned that petitioner’s allegations about UTLA failed

to satisfy either prong of the two-prong test. First, if

petitioner were correct that he validly had revoked his

dues authorization in June 2020, then UTLA’s request

that LAUSD continue deducting those dues violated

state law and was thus “antithetical to any right or

privilege created by the State.” App. 24a–25a (quoting

Wright v. SEIU Loc. 503, 48 F.4th 1112, 1118 n.3 (9th

Cir. 2022), cert. denied, 143 S. Ct. 749 (2023)). Second,

neither “the mere fact that a state transmits dues payments to a union” nor LAUSD’s “ministerial

processing of payroll deductions pursuant to [e]mployees’ authorizations” would “give rise to a section 1983

claim against the union under the ‘joint action’ test.”

App. 25a (quoting Belgau, 975 F.3d at 947–49 & n.2).

The Ninth Circuit denied petitioner’s request for

rehearing en banc with no judge calling for a vote on

the request. App. 26a. In his petition to this Court, petitioner does not dispute that his claims against the

Attorney General are barred by sovereign immunity.

REASONS FOR DENYING THE PETITION

Petitioner asks the Court to grant review to resolve a purported split of authority about whether the

First Amendment permits the government to require

public employees to pay union dues if the employees

have rescinded their consent to dues deductions. But

the Ninth Circuit did not address that issue here, and

there is no split of authority. No court has held that

the government may, consistent with the First

9

Amendment, require public employees to pay any

money to unions that the employees have not voluntarily agreed to pay. Petitioner also asks the Court to

grant review to resolve a purported split of authority

about whether unions that receive voluntary dues

through payroll deduction are Section 1983 state actors. Again, there is no split of authority. Nor is there

any other reason for the Court to grant review of the

non-precedential ruling below.

I.

Petitioner’s first question presented

was not addressed below and is not

worthy of this Court’s review.

Petitioner asks the Court to grant review to decide

whether “nonmember public employees who have rescinded their prior consent to union dues deductions

enjoy the same right to freedom from compelled

speech as employees who never affirmatively consented.” Pet. i (first question presented). According to

petitioner, there is a “split of authority” on this question. Pet. 8–11. But the Ninth Circuit did not address

this question below, so this case would not be a suitable vehicle for addressing the question. There also is

no split of authority. The circuits, including the Ninth

Circuit, agree that the government cannot require

public employees to pay union dues that the employees have not voluntarily and affirmatively agreed to

pay.

A. The Ninth Circuit did not rule that the First

Amendment permits the government to require public

employees to pay any union dues they have not affirmatively agreed to pay. Petitioner’s Section 1983 claims

against the government defendants were dismissed on

threshold grounds that the petition does not dispute.

10

See supra at 7. Petitioner’s section 1983 claims

against UTLA were dismissed because UTLA’s alleged misconduct (violating state law by failing to

inform his public employer that he had validly cancelled dues deductions) was not state action. Id. at __.

Petitioner asserts that “the [Ninth Circuit] panel

implied that the mere existence of a union membership card, no matter [his] contractual ability to end

the deductions without restriction, and his release

from membership, was sufficient to bar [him] from

bringing a First Amendment claim for compelled

speech.” Pet. 4 (emphasis added). The Ninth Circuit’s

short, unpublished memorandum decision does not

say this or imply this. See App. 24a–25a.

The Ninth Circuit already held in Belgau that the

First Amendment permits only voluntary agreements

to pay union dues and that, in the absence of compulsion, state contract law governs the enforceability of

such voluntary agreements. 975 F.3d 950–52. Under

Ninth Circuit precedent, if petitioner validly revoked

his consent to pay union dues, then the government

could not, consistent with the First Amendment, compel him to continue to pay union dues.

Moreover, California law does not require public

employees to pay dues after they have revoked their

voluntary authorizations for dues deductions in accordance with the terms of their own authorizations.

Cal. Educ. Code § 45060(a), (c). As the Ninth Circuit

stated: “[A]ssuming that [petitioner] validly revoked

his dues deduction authorization in June 2020,

UTLA’s request that LAUSD continue making deductions violated state law.” App. 24a–25a. The Ninth

Circuit also did not leave petitioner “without the

11

ability to seek relief.” Pet. 10. Petitioner would have a

claim against UTLA under state law. See infra at 20.

That being so, this case would not be a suitable vehicle for addressing petitioner’s first question

presented.

B. In any event, petitioner is wrong that a “split of

authority exists concerning the First Amendment’s

application to public employees alleging compelled union speech.” Pet. 8 (capitalization omitted). “[E]very

circuit to consider the matter has concluded that the

deduction of union dues under a valid contract between the union and a member does not violate the

First Amendment.” Burns, 75 F.4th at 860.1 Petitioner

does not cite any decisions that permit the government to require that public employees pay any money

to unions that the employees have not voluntarily

agreed to pay.

Petitioner argues that all these decisions are

wrong because this Court’s decision in Janus created

a heightened constitutional “waiver” standard for voluntary agreements to pay union dues that makes such

agreements different from all other contracts. Pet. i,

1 See Wheatley v. N.Y. State United Tchrs., 80 F.4th 386, 390–

91 (2d Cir. 2023); Ramon Baro v. Lake Cnty. Fed’n of Tchrs. Loc.

504, 57 F.4th 582, 586 (7th Cir.), cert denied, 143 S. Ct. 2614

(2023); Hoekman v. Educ. Minn., 41 F.4th 969, 978 (8th Cir.

2022); Hendrickson v. AFSCME Council 18, 992 F.3d 950, 961

(10th Cir.), cert. denied, 142 S. Ct. 423 (2021); Bennett v. Council

31 of the AFSCME, AFL-CIO, 991 F.3d 724, 729–33 (7th Cir.),

cert. denied, 142 S. Ct. 424 (2021); Fischer v. Governor of N.J.,

842 F. App’x 741, 753 & n.18 (3d Cir.), cert. denied, 142 S. Ct. 426

(2021); Oliver v. SEIU Loc. 668, 830 F. App’x 76, 80 (3d Cir.

2020); Belgau, 975 F.3d at 951.

12

8–10. To the contrary, this Court held in Janus only

that public employers cannot require non-members to

pay agency fees to a union as a condition of employment. 585 U.S. at 929. Janus did not involve voluntary

union membership agreements, and this Court explained that, beyond eliminating compulsory nonmember agency fees, “States can keep their labor-relations systems exactly as they are.” Id. at 928 n.27.

Petitioner is wrong that the Third Circuit reached

a contrary conclusion about Janus in Lutter v.

JNESO, 86 F.4th 111 (3d Cir. 2023). Pet. 6, 9–10. The

public employee in Lutter argued that a new state

statute impermissibly restricted her right to cancel

her authorization for dues deductions—even though

she never agreed to the restriction. Lutter, 86 F.4th at

120, 131. The Third Circuit held in Lutter only that

the plaintiff had standing and her claim for damages

was not moot. Id. at 124–35. The Third Circuit said

nothing about the enforceability of the terms of voluntary union membership and dues authorization

agreements.

This Court has denied petitions for certiorari in

more than a dozen cases raising the same basic argument about Janus that petitioner presses here.2 There

2 Alaska v. Alaska State Emps. Ass’n/AFSCME Loc. 52, AFLCIO, No. 23-179, 144 S. Ct. 682 (2024); Ramon Baro v. Lake Cnty.

Fed’n of Tchrs. Loc. 504, No. 22-1096, 143 S. Ct. 2614 (2023);

O’Callaghan v. Drake, No. 22-219, 143 S. Ct. 2431 (2023); Savas

v. Cal. Statewide Law Enf’t Ass’n, No. 22-212, 143 S. Ct. 2430

(2023); Polk v. Yee, No. 22-213, 143 S. Ct. 405 (2022) (denying

petition covering two cases); Cooley v. Cal. Statewide Law Enf’t

Ass’n, No. 22-216, 143 S. Ct. 405 (2022); Yates v. Hillsboro Unified Sch. Dist., No. 21-992, 142 S. Ct. 1230 (2022); Woods v.

13

have been no developments since then that would

make the question worthy of review even if it were

presented by this case.

II.

The state action issue is not worthy of

this Court’s review.

Petitioner also asks the Court to grant review to

decide whether the lower courts correctly dismissed

his Section 1983 claims against UTLA because

UTLA’s alleged misconduct was not state action. Pet.

11–15. Contrary to petitioner’s contention, there is no

“split of authority” about state action in the union

dues context. Pet. 11. The Ninth Circuit’s case-specific

application of state action caselaw in the non-precedential decision below was entirely correct and, in any

event, is not worthy of the Court’s review.

A. Section 1983, which provides a cause of action

for constitutional deprivations that occur under color

of state law, “protects against acts attributable to a

State, not those of a private person.” Lindke v. Freed,

601 U.S. 187, 194 (2024). “This limit tracks that of the

Fourteenth Amendment, which obligates States to

Alaska State Emps. Ass’n, No. 21-615, 142 S. Ct. 1110 (2022)

(denying petition covering two cases); Anderson v. Serv. Emps.

Int’l Union Loc. 503, No. 21-609, 142 S. Ct. 764 (2022) (denying

petition covering four cases); Grossman v. Hawaii Gov’t Emps.

Ass’n, No. 21-597, 142 S. Ct. 591 (2021); Smith v. Bieker, No. 21639, 142 S. Ct. 593 (2021); Wolf v. UPTE-CWA 9119, No. 21-612,

142 S. Ct. 591 (2021); Hendrickson v. AFSCME Council 18, No.

20-1606, 142 S. Ct. 423 (2021); Bennett v. AFSCME, Council 31,

AFL-CIO, No. 20-1603, 142 S. Ct. 424 (2021); Troesch v. Chicago

Tchrs. Union, No. 20-1786, 142 S. Ct. 425 (2021); Fischer v. Murphy, No. 20-1751, 142 S. Ct. 426 (2021); Belgau v. Inslee, No. 201120, 141 S. Ct. 2795 (2021).

14

honor the constitutional rights that §1983 protects.”

Id. at 194–95 (emphasis in original). “[T]he statutory

requirement of action ‘under color of state law’ and the

‘state action’ requirement of the Fourteenth Amendment are identical.” Lugar v. Edmundson Oil Co., 457

U.S. 922, 929 (1982).

1. Unions are private parties. The circuit courts

agree that, when state law permits only voluntary

dues deductions, a union does not engage in state action when the union enters into private membership

agreements with its members or when the union provides information to public employers about which

employees have voluntarily authorized dues deductions. Misconduct by a union in those contexts is

therefore actionable under state law, not Section

1983.

The Ninth Circuit addressed this issue in Belgau

and Wright. Belgau held that a union was not engaged

in state action when the union entered into private

agreements with its members that included “allegedly

insufficient consent for dues deduction.” 975 F.3d at

946–49. Wright held that a union’s alleged forgery of

a public employee’s dues authorization, in violation of

state law, was not attributable to the government. 48

F.4th at 1123–25. In both cases, the employee’s remedy against the union would be under state law, not

Section 1983. This Court denied petitions for certiorari in both cases.

The Eighth Circuit reached the same conclusion in

Hoekman v. Education Minnesota, 41 F.4th 969 (8th

Cir. 2022). In that case, a public employee (Piekarski)

alleged that his union failed to promptly process his

resignation request and that the delay resulted in the

15

deduction of additional membership dues. Id. at 978.

Judge Colloton, writing for the Eighth Circuit panel,

explained that “[w]hether or not the union officials

were correct in declining to honor the e-mail request,

the decision was made by the union officials alone, and

does not constitute state action. That the State continued to deduct dues from Piekarski as long as he

remained on the union rolls does not make the State

responsible for the decision of union officials….” Id.

The Sixth Circuit reached the same conclusion in

Littler v. Ohio Ass’n of Pub. Sch. Emps., 88 F.4th 1176

(6th Cir. 2023). The Sixth Circuit held that the plaintiff’s allegations that a union “improperly instructed

the state to withhold union dues after she withdrew

her union membership” did not state a Section 1983

claim against the union because the union’s alleged

misconduct was not attributable to the State. Littler,

88 F.4th at 1181.

2. The decisions that petitioner relies upon as

showing an alleged conflict about state action (Pet. 6,

12–15) involve a very different situation. In those

cases, as in this Court’s Janus decision, a state law or

policy required non-members to provide financial support to a union as a condition of employment. The

alleged First Amendment infringement was the government’s mandatory fees requirement, so it was

attributable to the government. The union was a state

actor because the union was acting jointly with the

government in implementing that government requirement.

In Janus v. AFSCME, Council 31, 942 F.3d 352

(7th Cir. 2019) (Janus II), for example, the government required non-members to pay compulsory

16

agency fees to a union. The union was a state actor

because it was “a joint participant with the state in

the agency-fee arrangement.” Id. at 361. See Littler,

88 F.4th at 1182 n.2 (distinguishing Janus II because

the deductions were required by a “fair-share statute[]”); Wright, 48 F.4th at 1122 n.7 (distinguishing

Janus II for the same reason).

The same is true of this Court’s agency fee precedents, which assumed sub silentio that public

employee unions were proper Section 1983 defendants

in those cases. See Pet. 6–7, 11–12 (citing cases).

Those cases all involved government requirements

that non-members provide financial support to unions

as a condition of public employment.3

Petitioner misreads the Third Circuit’s decision in

Lutter v. JNESO as showing a conflict about the

proper analysis of state action. Pet. 7, 14. It is not true

that the Third Circuit “found state action” in Lutter.

Pet. 14. Rather, as stated above, the Third Circuit

held only that the plaintiff had standing and her claim

was not moot. Lutter, 86 F.4th at 124–35; see supra at

12. The Third Circuit expressly did not decide whether

the union defendant in that case qualified as a Section

1983 state actor. See 86 F.4th at 135 n.27 (“[W]hether

JNESO was a state actor subject to suit under § 1983

3 See Janus, 585 U.S. at 929–930 (mandatory agency fees);

Harris v. Quinn, 573 U.S. 616, 625–26 (2014) (same); Knox v.

Serv. Employees Intern. Union, Loc. 1000, 567 U.S. 298, 302

(2012) (same); Chicago Tchrs. Union, Loc. No. 1 v. Hudson, 475

U.S. 292, 295 (1986) (same); Abood v. Detroit Bd. of Ed., 431 U.S.

209, 212 (1977) (same). Petitioner relies upon Ellis v. Bhd. of Ry.,

Airline & S.S. Clerks, Freight Handlers, Exp. & Station Emps.,

466 U.S. 435 (1984), but this Court’s decision addressed the interpretation of the Railway Labor Act.

17

[is] properly addressed in the first instance by the District Court on remand.”). There is no conflict or even

any tension in reasoning.

Finally, although the Sixth Circuit held in Littler

that the union defendant was not a state actor, petitioner points to the Sixth Circuit’s observation that

“[h]ad Littler challenged the constitutionality of a

statute pursuant to which the state withheld dues, the

‘specific conduct’ challenged would be the state’s withholdings, which would be state action.” Pet. 14

(quoting Littler, 88 F.4th at 1182). But the Littler

court gave the example of Janus II, in which state law

required non-members to pay fair-share fees. See 88

F.4th at 1182.

In this case, there is no state statute that requires

public employees to pay any money they have not

agreed to pay. California law permits only deductions

an employee has authorized in writing and provides

that employees can cancel deductions pursuant to the

terms of their voluntary authorizations. See supra at

4. As in Littler, the alleged harm here was caused by

the union’s “failure to … remove [an employee’s] name

from the deduction list”—which is not state action.

Littler, 88 F.4th at 1182.

In sum, there is no “split of authority” that would

justify review, or even any tension in the caselaw.4

4 Petitioner is wrong that district court decisions show a conflict on the state action issue. Pet. 15 n.4. Not only does petitioner

mischaracterize some of those decisions, but the district court decisions that petitioner relies upon are from the Sixth and Ninth

Circuits. Those circuits subsequently resolved the state action issue in Littler and Wright.

18

Moreover, this Court recently denied another petition

for certiorari, filed by the same advocacy organization,

that raised the same argument about state action. See

Jarrett v. Serv. Emps. Int’l Union Loc. 503, No. 23-272,

144 S. Ct. 494 (2023). There have been no developments since that time that would make the question

worthy of review.

3. Petitioner’s proposed state action analysis is

also inconsistent with this Court’s precedents. Private

misconduct does not become state action simply because, as a result of that private misconduct, a public

employer erroneously deducts unauthorized dues. See,

e.g., Blum v. Yaretsky, 457 U.S. 991, 1005 (1982)

(“That the State responds to [private] actions … does

not render it responsible for those actions.”) (Emphasis in original); Lugar, 457 U.S. at 940 (“That

respondents invoked the statute without the grounds

to do so could in no way be attributed to a state rule

or a state decision.”).

Petitioner’s analysis would flood the federal courts

with lawsuits about alleged payroll errors. About six

million state and local public employees are union

members.5 Most of them pay their union dues through

payroll deduction, so public employers are processing

millions of dues deductions every month. Public employees also authorize voluntary payroll deductions

for charitable contributions, insurance premium payments, and other purposes. The lower courts have

wisely and correctly rejected a state action analysis

5 News Release, Bureau of Labor Statistics, U.S. Dep’t of Labor, Union Members—2023 (Jan. 23, 2024), Table 3, available at

https://www.bls.gov/news.release/pdf/union2.pdf (last visited

July 2, 2024).

19

that both is inconsistent with this Court’s precedents

and would turn the federal courts into substitutes for

state labor boards and state courts in addressing disputes about employee payroll deductions, where state

law already requires affirmative consent.

B. The Ninth Circuit’s analysis of state action in

this case was entirely correct. In any event, a casespecific error in a non-precedential decision would not

be worthy of review.

California law permits public school employees to

revoke their voluntary authorizations for dues deductions “pursuant to the terms of the written

authorization.” Cal. Educ. Code § 45060(c). Unions are

“responsible for processing” employees’ “requests to

cancel or change authorizations.” Id. § 45060(e).

The essence of petitioner’s claim is that, because

he crossed out certain language on the standard

UTLA membership card with a Sharpie marker, he

was not bound by the window period for cancelling deductions. See supra at 5–6. If petitioner is correct,

then UTLA violated state law by failing to process his

request to revoke deductions. As the Ninth Circuit

stated: “[A]ssuming that [petitioner] validly revoked

his dues deduction authorization in June 2020,

UTLA’s request that LAUSD continue making deductions violated state law.” App. 24a–25a.6

6 It is not clear whether, as a matter of state contract law, a

party that crosses out language on a form agreement without

bringing the alteration to the attention of the other party need

not follow the form agreement. In any event, had petitioner

brought the Sharpie marker issue to UTLA’s attention when he

20

UTLA’s alleged violation of state law, however,

was unilateral, private misconduct, not misconduct

for which the government was responsible. See

Hoekman, 41 F.4th at 978 (“[T]he decision was made

by the union officials alone, and does not constitute

state action. That the State continued to deduct dues

… does not make the State responsible for the decision

of union officials….”). Petitioner did not allege that

any government official even knew about the Sharpie

marker issue.

Petitioner insists that, in this case, UTLA should

have been treated like a government official for purposes of Section 1983 because UTLA’s “authority to

take involuntary dues deductions is a privilege

granted by the State of California.” Pet. 13. That is

simply wrong. California law forbids involuntary dues

deductions. Public employees must voluntarily authorize deductions in writing and can cancel their

deductions in accordance with the terms of their own

authorizations. See supra at 4. California law permits

public employers to request that a union produce “a

copy of the employee’s written authorization” if “a dispute arises about the existence or terms of the written

authorization.” Cal. Educ. Code § 45060(f). A union’s

failure to process a valid request to revoke voluntary

deductions would constitute a violation of state law redressable by PERB. See supra at 4–5. California law

also recognizes all the usual state law civil claims,

such as for conversion and unjust enrichment. 5

Witkin, Summary of California Law, Torts § 810 et

seq., § 1053 (11th Ed. 2024). Petitioner could have

signed the membership card or when he resigned membership,

this dispute would likely have been avoided.

21

sought a remedy under state law—although he has already received a full refund with interest.

Petitioner points out that state officials, acting in

their official capacities, are considered Section 1983

state actors even when they abuse their authority in

violation of state law. Pet. 13.7 The same analysis,

however, does not apply equally to private parties.

See, e.g., Lugar, 457 U.S. at 940 (“That respondents

invoked the statute without the grounds to do so could

in no way be attributed to a state rule or a state decision.”).

In any event, even if the Ninth Circuit made an error in applying state action caselaw to the allegations

of this particular case (and it did not), a case-specific

error in a non-precedential decision (affecting a petitioner who would have a state law remedy if he had

not already received a refund) would not provide a sufficient basis for this Court’s intervention.

7 See Lindke v. Freed, 601 U.S. at 191 (city manager); Screws

v. United States, 325 U.S. 91, 92 (1945) (county sheriff); United

States v. Classic, 313 U.S. 299, 307 (1941) (state election commissioners).

22

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

SCOTT A. KRONLAND

IRA L. GOTTLIEB

LISA C. DEMIDOVICH

Counsel of Record

LUKE TAYLOR

EMANUEL WADDELL

BUSH GOTTLIEB, a Law Corp. ALTSHULER BERZON LLP

801 N. Brand Blvd., # 950

177 Post Street, #300

Glendale, CA 91203

San Francisco, CA 94108

(415) 421-7151

skronland@altber.com

Counsel for Respondent United Teachers Los Angeles

July 22, 2024