Scott Wilford; v. National Education Association of the United States;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT WILFORD; et al.,
Plaintiffs-Appellants,
v.
NATIONAL EDUCATION
ASSOCIATION OF THE UNITED
STATES; et al.,
Defendants-Appellees,
and
ATTORNEY GENERAL FOR THE STATE
OF CALIFORNIA,
Intervenor-Defendant-
Appellee.
No. 19-55712
D.C. No. 8:18-cv-01169-JLS-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted January 19, 2022**
* 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 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 19-55712
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Scott Wilford, Bonnie Hayhurst, Rebecca Friedrichs, Michael Monge,
Harlan Elrich, Jelena Figueroa, and Gene Gray appeal from the district court’s
judgment dismissing their 42 U.S.C. § 1983 putative class action alleging First
Amendment and state law claims arising out of compulsory agency fees. 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’ claim for retrospective
monetary relief because a public sector union can, as a matter of law, “invoke an
affirmative defense of good faith to retrospective monetary liability under section
1983 for the agency fees it collected” prior to the Supreme Court’s decision in
Janus v. American Federation of State, County & Municipal Employees, Council
31, 138 S. Ct. 2448, 2486 (2018). Danielson v. Inslee, 945 F.3d 1096, 1097-99,
1102-03 (9th Cir. 2019), cert. denied, 141 S. Ct. 1265 (2021) (explaining that
plaintiffs’ claim for monetary relief was for damages and not restitution, but
“[e]ven accepting Plaintiffs’ restitutionary premise, the equities do not weigh in
favor of requiring a refund of all agency fees collected pre-Janus”).
The district court properly dismissed as moot plaintiffs’ claims for
prospective relief because defendants stopped deducting and receiving agency fees

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after the Supreme Court’s decision in Janus disallowed the deduction or receipt of
agency fees in their collective bargaining agreements, stopped enforcing statutes
permitting the deduction of agency fees, and demonstrated that they are unlikely to
rescind the policy changes. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 189-90 (2000) (explaining voluntary cessation and
mootness); cf. Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th
Cir. 2000) (en banc) (explaining that the mere existence of a proscriptive statute
does not create a constitutionally sufficient direct injury).
The district court properly dismissed plaintiffs’ state law claims because
plaintiffs failed to allege facts sufficient to state a plausible claim. See Cal. Gov’t
Code § 3515.7 (permitting collection of agency fees); City of San Jose v.
Operating Eng’rs Local Union No. 3, 232 P.3d 701, 705-07 (Cal. 2010)
(explaining that California’s Public Employment Relations Board has exclusive
jurisdiction over activities arguably protected or prohibited by the state’s relevant
labor law, including unfair practices); El Rancho Unified Sch. Dist. v. Nat’l Educ.
Ass’n, 663 P.2d 893, 901-02 (Cal. 1983) (setting forth California’s preemption
doctrine).
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.

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