Pablo Labarrere; Sam Doroudi v. University Professional

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO LABARRERE; SAM DOROUDI,
Plaintiffs-Appellants,
v.
UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES (UPTE) CWA
9119; MICHAEL V. DRAKE, M.D., in his
official capacity as President of the
University of California,
Defendants-Appellees.
No. 20-56173
D.C. No. 3:20-cv-00444-CAB-
WVG
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Pablo Labarrere and Sam Doroudi appeal from the district court’s judgment
dismissing their 42 U.S.C. § 1983 action alleging First Amendment claims arising
* 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). Appellants’ request for oral
argument, set forth in the opening brief, is denied.
FILED
JAN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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out of union membership dues. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal for failure to state a claim and for lack of subject matter
jurisdiction. Serra v. Lappin, 600 F.3d 1191, 1195-96 (9th Cir. 2010). We affirm.
The district court properly dismissed plaintiffs’ claims against University
Professional and Technical Employees (“UPTE”) CWA 9119 because plaintiffs
failed to allege facts sufficient to show state action. See Belgau v. Inslee, 975 F.3d
940, 946-49 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021) (“[P]rivate dues
agreements do not trigger state action and independent constitutional scrutiny.”);
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139-40 (9th Cir. 2012) (discussing
tests for determining whether a private party’s actions amount to state action).
The district court properly dismissed plaintiffs’ claims against defendant
Drake in his official capacity because plaintiffs failed to allege facts sufficient to
show that they did not affirmatively consent to the voluntary deduction of union
dues. See Belgau, 975 F.3d at 950-52 (explaining that 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 membership agreements).
To the extent plaintiffs allege that UPTE misinformed them about their legal
obligations to join the union or pay membership dues, their claims are outside the
scope of this appeal.

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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).
Appellants’ motion for leave to file a substitute reply brief (Docket Entry
No. 34) is granted. The Clerk will file the substitute reply brief submitted at
Docket Entry No. 35.
AFFIRMED.

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