Respondents Brief — Atishma Kant, et al., Petitioners v. Service Employees International Union, Local 721, et al.

No. 23-1113

IN THE

Supreme Court of the United States

___________________

ATISHMA KANT, ET AL.,

v.

Petitioners,

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 721, ET AL.,

Respondents.

___________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

___________________

BRIEF IN OPPOSITION

___________________

GLENN ROTHNER

ROTHNER, SEGALL &

GREENSTONE

510 South Marengo Avenue

Pasadena, CA 91101

SCOTT A. KRONLAND

Counsel of Record

EMANUEL WADDELL

ALTSHULER BERZON LLP

177 Post Street, #300

San Francisco, CA 94108

(415) 421-7151

skronland@altber.com

Counsel for Respondent Service Employees

International Union, Local 721

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

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

49261_Ltrhd.indd

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6/11/08

12:44:0

49261_Ltrhd.indd

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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 petitioners’ public employer that they had cancelled their authorizations for

continued payroll deductions.

ii

CORPORATE DISCLOSURE STATEMENT

Respondent Service Employees International Union, Local 721, 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)

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)...................... 12

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).................. 12

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

No. 20-1603, 142 S. Ct. 424 (2021).................... 12

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, 20

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

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ........................................... 12

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).................... 12

Grossman v. Hawaii Gov’t Emps. Ass’n,

No. 21-597, 142 S. Ct. 591 (2021)...................... 12

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).................... 12

vii

Hoekman v. Educ. Minn.,

41 F.4th 969 (8th Cir. 2022) .................. 11, 14, 19

Janus v. AFSCME, Council

31, 585 U.S. 878 (2018) ............... 2, 11, 12, 15, 16

Janus v. AFSCME, Council 31,

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

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

No. 23-272, 144 S. Ct. 494 (2023)...................... 17

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

1000,

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

Lindke v. Freed,

601 U.S. 187 (2024) ........................................... 13

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

88 F.4th 1176 (6th Cir. 2023) .......... 14, 15, 16, 17

Lugar v. Edmonson Oil Co.,

457 U.S. 922 (1982) ............................... 13, 18, 19

Lutter v. JNESO,

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

Smith v. Bieker,

No. 21-639, 142 S. Ct. 593 (2021)...................... 12

Trevisanut v. Cal. Union of Safety

Employees,

1993 WL 13699367 (Cal. Pub.

Employment Relations Bd. Dec. 13,

1993)..................................................................... 6

Troesch v. Chicago Tchrs. Union,

No. 20-1786, 142 S. Ct. 425 (2021).................... 12

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)...................... 12

Woods v. Alaska State Emps. Ass’n,

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

Wright v. SEIU Local 503,

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

denied, 143 S. Ct. 749 (2023) ................ 14, 15, 17

ix

Yates v. Hillsboro Unified Sch. Dist.,

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

Constitution and Statutes

First Amendment ...................... 1, 6, 9, 10, 11, 12, 15

Fourteenth Amendment ......................................... 13

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

13, 14, 15, 16

Cal. Gov’t Code

§ 1157.3 ................................................................ 4

§ 1157.12 ........................................................ 4, 20

§ 1157.12(b) .................................................... 4, 20

§ 71631 ................................................................. 4

§ 71635.1 .............................................................. 4

§ 71638 ................................................................. 4

§ 71639.1(c) .......................................................... 5

Other Authorities

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

Petitioners are two public employees in California

who joined a union and signed voluntary written authorizations permitting their employers to deduct

union dues from their paychecks. Petitioners claim

that, after they properly revoked their authorizations

for continued deductions, the union did not process

the revocations and, as a result, their employer continued to deduct dues. Assuming petitioners’

allegations are correct, the union violated state law by

failing to process the revocations. The union subsequently sent petitioners a refund.

Petitioners ask 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 can deduct union

dues for public employees without the employees’ “affirmative consent.” Pet. 7. But petitioners’ own

42 U.S.C. § 1983 claims were dismissed for threshold

reasons, not because the Ninth Circuit ruled that the

government may require public employees to pay

money that they have not affirmatively agreed to pay.

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 they have

not affirmatively agreed to pay.

Petitioners contend 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. There have been no developments since

that time that would make the issue worthy of review—even if it were presented by this case.

Petitioners also ask 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 petitioners erroneously claim 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 alleged 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 petitioners’ allegations are correct, the union violated

state law by failing to process their revocations, and

petitioners have a state law remedy against the union

for the union’s private misconduct.

Petitioners’ 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 17.

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, trial court employees

have the right to decide whether to become members

of the union that represents their bargaining unit.

Cal. Gov’t Code § 71631. Employees who choose to join

the union may authorize the deduction of union dues

from their paychecks by providing “written authorization” for payroll deductions. Id. §§ 1157.3, 1157.12,

71638. Employees may cancel their dues deductions in

accordance with “the terms of the authorization.” Id.

§§ 1157.3(b), 1157.12(b).

“[E]mployee requests to cancel or change deductions” must be “direct[ed] … to the employee

organization.” Id. § 1157.12(b). Public employers must

“rely on information provided by the employee organization regarding whether deductions … were

properly canceled or changed.” Id. 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 trial court employees’

rights to decline to join and support labor unions.

Id. §§ 71631, 71635.1. A union’s failure to process the

revocation of an employee’s written dues deduction

authorization in accordance with the terms of that authorization would violate this state law. California’s

Public Employment Relations Board (“PERB”) has the

5

authority to remedy violations of public employees’

rights. Id. § 71639.1(c).

2. Petitioners are two employees of the San Bernardino County Superior Court in a bargaining unit

represented by SEIU Local 721 (“Union”). App. 3a–4a

¶¶8–11. Petitioners voluntarily became Union members by signing membership applications that

included authorizations for dues deductions. App. 4a–

5a ¶¶13–18. In those agreements, petitioners agreed

that their dues deduction authorizations would “be irrevocable unless revoked by me in writing in

accordance with applicable provisions in the memorandum of understanding or agreement between my

employer and SEIU Local 721.” App. 6a ¶27, 34a. Petitioners also agreed that they would be “bound by the

Constitution and Bylaws of the Union and by any contracts that may be in existence at the time of

application or that may be negotiated by the Union.”

App. 6a ¶26, 34a.

The memorandum of understanding (“MOU”) between the Union and the Superior Court that was in

effect at the time petitioners authorized dues deductions provided that dues deductions could be cancelled

“during the thirty (30) day period commencing ninety

(90) days before the expiration of the MOU.” App. 6a–

7a ¶28, 35a. That MOU had an original expiration

date of September 30, 2019. App. 5a ¶16, 33a. On December 21, 2018, the Union and the Superior Court

executed a side letter that extended the MOU’s expiration to September 30, 2021. App. 33a.

Petitioners resigned from Union membership in

July 2019, which was within their original window period for cancelling deductions. App. 5a–6a ¶¶19, 21,

6

23, 35a. The Union advised petitioners that their payroll deductions would continue, however, because

their cancellations were not within the applicable window period. App. 5a–6a ¶¶22, 24; 35a. Petitioners

allege that the Union “refused to instruct their Employer to stop deducting their money” on the theory

that the December 21, 2018 side letter extending the

expiration date of the MOU also prevented them from

cancelling deductions during their original window

period. App. 14a, ¶65, 36a

Assuming petitioners’ allegations are correct, the

Union’s failure to process the revocations violated

state law. California’s PERB has ruled that the extension of a memorandum of understanding does not

change the original window period for terminating

dues deductions and has ordered the return of union

dues deducted under circumstances indistinguishable

from those alleged here. See Trevisanut v. Cal. Union

of Safety Employees, 1993 WL 13699367 (Cal. Pub.

Employment Relations Bd. Dec. 13, 1993). The Union

conceded below that “the precise conduct alleged here

unlawfully interferes with public employees’ rights

under state labor law.” 9th Cir. Dkt. 22 at 19–20.

B. Proceedings below

1. On July 9, 2021, petitioner Atishma Kant filed

the original complaint in this action against the Union

and the California Attorney General. App. 33a. On

July 21, 2021, petitioners filed a first amended complaint that added petitioner Marlene Hernandez as an

additional plaintiff. App. 1a–26a. Petitioners’ first

amended complaint alleged that the continued deduction of union dues after they resigned their

memberships violated their rights under the First

7

Amendment and the Due Process Clause and gave rise

to claims under 42 U.S.C. § 1983. App. 17a–22a. Petitioners also alleged that their Union membership

agreements were “void for unconscionability.” App.

22a–23a. Petitioners did not sue their employer.

After reviewing the complaint, the Union notified

petitioners’ employer to stop deductions and sent refunds to petitioners. Pet. 42a. The Union advised the

district court that the extension of the MOU was an

“unusual situation” and, if it should occur in the future, the Union would “honor dues revocations made

during both the old and new window periods so as to

avoid any disputes.” 9th Cir. Dkt. 23 at 7.

2. The district court granted defendants’ motions

to dismiss petitioners’ Section 1983 claims. App. 32a–

55a.

The district court concluded that petitioners did

not have viable Section 1983 claims against the Attorney General because he has sovereign immunity from

damages claims and because there was “no ongoing violation” of federal law that might justify application of

the Ex parte Young exception to sovereign immunity

for claims seeking prospective relief. App. 40a–42a.

The district court concluded that petitioners’

claims for prospective relief against the Union were

moot, and that petitioners’ damages claims against

the Union failed because the Union’s alleged misconduct was not state action for purposes of Section 1983.

App. 43a–52a. The district court declined to exercise

supplemental jurisdiction over petitioners’ state law

claims against the Union. App. 53a–54a.

8

3. A Ninth Circuit panel unanimously affirmed the

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

memorandum. App. 27a–30a. The Ninth Circuit

agreed with the district court that petitioners’ claims

for prospective relief were moot. App. 28a–29a. The

Ninth Circuit also agreed with the district court that

petitioners’ damages claims against the Attorney

General were barred by sovereign immunity. App.

29a–30a.

Finally, the Ninth Circuit agreed with the district

court that petitioners’ Section 1983 damages claims

against the Union were properly dismissed because

the Union “did not act as a state actor when it relied

on [petitioners’] authorizations to deduct union dues

from their wages.” App. 29a. The Ninth Circuit reasoned that the Union’s conduct was not “fairly

attributable to the state.” App. 29a (quoting Lugar v.

Edmonson Oil Co., 457 U.S. 922, 937 (1982)).

The Ninth Circuit denied petitioners’ request for

rehearing en banc with no judge requesting a vote on

the petition. Pet. 31a. In their petition, petitioners do

not dispute that their claims for prospective relief are

moot and their claims against the Attorney General

are barred by sovereign immunity.

REASONS FOR DENYING THE PETITION

Petitioners ask 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 not affirmatively agreed 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

9

the government may, consistent with the First

Amendment, require public employees to pay any

money to unions that the employees have not voluntarily and affirmatively agreed to pay. Petitioners also

ask 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.

Petitioners’ first question presented

was not addressed below and is not

worthy of this Court’s review.

Petitioners ask the Court to grant review to decide

whether “a public sector labor union and government

employer [can] unilaterally waive public employees’

First Amendment rights without the employee’s

knowledge or direct involvement.” Pet. i (first question

presented). According to petitioners, there is a “split

of authority … concerning the affirmative consent

standard required for union dues deductions.” Pet. 7

(capitalization omitted). But the Ninth Circuit did not

address the “affirmative consent standard” in this

case, and there is no split of authority. Pet. 8. 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 public employers to deduct union

dues in the absence of affirmative consent by a public

employee. Petitioners did not sue their public employer, and the Ninth Circuit held that petitioners’

10

Section 1983 claims against the Attorney General and

the Union were correctly dismissed for threshold reasons—because petitioners’ prospective relief claims

were moot, the Attorney General has sovereign immunity from damages, and the Union’s conduct was

not state action. See supra at 8.

Petitioners assert that the Ninth Circuit panel

“implie[d] that if an employee previously consented to

union dues deductions, that consent may be extended

indefinitely without the employee’s knowledge or approval.” Pet. 5 (emphasis supplied). The Ninth Circuit

decision does not say this or imply this. See App. 29a.

The Union conceded in the Ninth Circuit that, notwithstanding the extension of the MOU, petitioners

had the right to cancel their dues authorizations during the original window period and that “the precise

conduct alleged here unlawfully interferes with public

employees’ rights under state labor law.” 9th Cir. Dkt.

22 at 19–20; see supra at 6. Petitioners’ hypothetical

scenario of public employees compelled by MOU extensions to pay dues “in perpetuity” (Pet. 3) is not

permitted by California law. See supra at 6.

As petitioners acknowledge, moreover, the Ninth

Circuit held in Belgau, 975 F.3d 950–52, that the First

Amendment permits only voluntary agreements to

pay union dues. Pet. 8. Even if the Ninth Circuit’s nonprecedential decision below “implie[d]” that dues may

be deducted without an employee’s affirmative consent (and it does not), this Court does not grant review

to correct dicta in non-precedential opinions—let

alone dicta that allegedly conflicts with the same Circuit’s controlling precedent. Pet. 5.

11

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

presented.

B. In any event, petitioners are wrong that a “split

of authority exists concerning the affirmative consent

standard for union deductions.” Pet. 7 (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 Petitioners do not cite any decisions that permit

dues deductions without affirmative consent.

Petitioners argue 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,

5, 8. 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 non1 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

member agency fees, “States can keep their labor-relations systems exactly as they are.” Id. at 928 n.27.

As the lower courts uniformly have concluded, the

application of a heightened “waiver” standard to voluntary contracts does not make sense because “the

First Amendment does not confer … a constitutional

right to disregard promises that would otherwise be

enforced under state law.” Cohen v. Cowles Media Co.,

501 U.S. 663, 672 (1991). This Court has denied petitions for certiorari in more than a dozen cases raising

the same basic argument about Janus that petitioners

press here.2 There have been no developments since

then that would make the question worthy of review

even if it were presented by this case.

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.

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).

13

II.

The state action issue is not worthy of

this Court’s review.

Petitioners also ask the Court to grant review to

decide whether the lower courts correctly dismissed

their Section 1983 claims against the Union because

the Union’s alleged misconduct was not state action.

Pet. i (second question presented), 11–15. Contrary to

petitioners’ 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

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, 457 U.S. at 929.

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

14

therefore actionable under state law, not Section

1983.

The Ninth Circuit addressed this issue in Belgau

v. Inslee and in Wright v. SEIU Local 503, 48 F.4th

1112 (9th Cir. 2022), cert. denied, 143 S. Ct. 749

(2023). Belgau held that a union was not engaged in

state action when the union entered into agreements

with its members that contained “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 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

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

15

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 petitioners rely upon as showing an alleged conflict about state action (Pet. 6, 11–

13) 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

agency fees to a union. The union 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, 11–12 (citing cases). Those

cases all involved government requirements that non-

16

members provide financial support to unions as a condition of public employment.3

Petitioners misread the Third Circuit’s decision in

Lutter v. JNESO, 86 F.4th 111 (3d Cir. 2023) as showing a conflict about the proper analysis of state action.

Pet. 6, 12–13. The Third Circuit did not find “the presence of state action.” Pet. 13. Rather, the Third Circuit

held only that a plaintiff had standing and her claim

was not moot. Lutter, 86 F.4th at 129. The Third Circuit expressly did not decide whether the union

defendant in that case qualified as a Section 1983

state actor. See id. at 135 n.27 (“[W]hether JNESO

was a state actor subject to suit under § 1983 [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, petitioners point 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. 12–13

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

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

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). Petitioners rely 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

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 dues 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

4–5. 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

Pet. 11. 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. Petitioners’ 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,

4 Petitioners are wrong that district court decisions show a

conflict on the state action issue. Pet. 13 n.3. Not only do petitioners mischaracterize some of those decisions, but the district

court decisions that petitioners rely upon are from the Sixth and

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

18

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.”).

Petitioners’ analysis would also 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 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.

Because public employers process millions of voluntary payroll deductions every month, errors (and

alleged errors) are inevitable. Petitioners do not show

that state law is inadequate to remedy such errors.

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

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.

Petitioners acknowledge that they signed union

membership agreements that authorized the payment

of dues through payroll deduction and “agreed to be

bound to a reasonable window period before opting out

of dues deductions.” Pet. 1, 15. The essence of petitioners’ claim is that they “opted out during the applicable

window” but the Union did not process the cancellations. Pet. 16. Assuming petitioners’ allegations are

correct, the Union violated state law by failing to process the cancellations. See supra at 6.

The Union’s 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….”); 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.”).

Petitioners point out that that their public employer agreed to extend the expiration of the MOU.

Pet. 14. But the one-page Side Letter said nothing

about the window period for cancelling deductions.

See Ninth Cir. Dkt. 9 at 0094. Petitioners did not sue

their employer, and they did not allege that their employer was responsible for the Union’s decision not to

20

process their cancellations. The Side Letter therefore

does not affect the state action analysis.

Petitioners also argue that the Union “used the authority the State of California granted … in

[California Government Code] Section 1157.12 to continue the … deductions.” Pet. 14. To the contrary,

Section 1157.12 permits only authorized deductions

and provides that deductions can be cancelled in accordance with the “employee’s written authorization.”

Cal. Gov’t Code §1157.12(b). California law makes it

illegal to force public employees to join or support unions. See supra at 4–5.

That the Union’s failure to follow state law resulted in the continued deduction of union dues does

not make the government responsible for the Union’s

misconduct. 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). Petitioners could

have sought a remedy against the Union under state

law—although they have already received full refunds.

The Ninth Circuit’s ruling about state action was

therefore entirely correct. 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 petitioners who would have a state

law remedy if they had not already received refunds)

would not provide a sufficient basis for this Court’s intervention.

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CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

SCOTT A. KRONLAND

GLENN ROTHNER

ROTHNER, SEGALL &

Counsel of Record

EMANUEL WADDELL

GREENSTONE

510 South Marengo Avenue ALTSHULER BERZON LLP

177 Post Street, #300

Pasadena, CA 91101

San Francisco, CA 94108

(415) 421-7151

skronland@altber.com

Counsel for Respondent Service Employees

International Union, Local 721

July 22, 2024