NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREEDOM FOUNDATION, a Washington No. 23-3946 nonprofit corporation, D.C. No. 3:22-cv-05273-DGE Plaintiff - Appellant,

v. MEMORANDUM*

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS LOCAL 117, a nonprofit corporation; INTERNATIONAL

BROTHERHOOD OF TEAMSTERS

LOCAL 763, an unincorporated association; INTERNATIONAL

BROTHERHOOD OF TEAMSTERS

LOCAL 760, an unincorporated association; JAY INSLEE, Governor, State of Washington,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding

Argued and Submitted November 13, 2024 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: S.R. THOMAS and MILLER, Circuit Judges, and MOLLOY, District Judge.** Concurrence by Judge Molloy.

Freedom Foundation, a nonprofit organization that advocates for public

employees to refrain from paying union dues, appeals the grant of summary

judgment to the defendants on its claims for damages and injunctive relief under 42

U.S.C. § 1983 against three unions that represent public employees in Washington

and against Washington Governor Jay Inslee. In Washington, a public employee

who has agreed to pay union dues can revoke that authorization only by making a

written revocation request to the union. Wash. Rev. Code § 41.56.110(3)(a).

In its claims against the unions, Freedom Foundation argues that the unions

violate public employees’ First Amendment rights against compelled speech and

association by rejecting packages of dues revocation forms that it mails on their

behalf. See Janus v. American Fed’n of State, Cnty., & Mun. Emps., Council 31,

585 U.S. 878 (2018). In its claim against Governor Inslee, Freedom Foundation

brings a facial constitutional challenge to the Washington statute that sets dues

authorization and revocation procedures.

The district court held that Freedom Foundation lacks Article III standing

and also that its claims against the unions fail on the merits. We have jurisdiction

** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation.

2 23-3946 under 28 U.S.C. § 1291, and we review de novo the district court’s grant of

summary judgment. La Asociacion de Trabajadores de Lake Forest v. City of Lake

Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). We affirm.

1. Freedom Foundation has organizational standing to assert its claims

against the unions. “[O]rganizations must satisfy the usual standards for injury in

fact, causation, and redressability that apply to individuals.” FDA v. Alliance for

Hippocratic Med., 602 U.S. 367, 393–94 (2024). To demonstrate injury in fact, an

organization must “show that a challenged . . . action directly injures the

organization’s pre-existing core activities and does so apart from the plaintiffs’

response to that . . . action.” Arizona All. for Retired Americans v. Mayes, 117

F.4th 1165, 1170 (9th Cir. 2024).

Freedom Foundation has successfully shown injury through declarations

which, “for purposes of the summary judgment motion,” must “be taken to be

true.” Washington Env’t Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Those

declarations show that the organization “has dedicated itself to . . . helping

interested employees” to “cancel their financial support of unions,” including by

mailing an average of about 250 revocation forms per week on behalf of

employees in more than 20 unions in five States and by maintaining a website that

helps employees create and send revocation forms. Helping public employees

3 23-3946 revoke their dues authorizations is therefore a core activity of the organization in

which it engaged before any of the alleged conduct by the unions. Taking the

declarations as true, the unions hinder that core activity by rejecting revocation

forms mailed by Freedom Foundation, at a cost of approximately $14 for each

rejected form. Those expenditures, necessary to continue a pre-existing core

activity, are sufficient injuries in fact. See Mayes, 117 F.4th at 1170, 1177.

Freedom Foundation has also shown causation and redressability. If the

unions did not refuse the organization’s mail, then it would not have to resend the

revocation forms. Money damages would remedy the alleged past injury, and the

requested injunction would prevent future injury.

Because we conclude that Freedom Foundation has standing to assert its

claims against the unions based on the originally submitted appellate record, we

deny its motion to supplement the record (Dkt. No. 55).

2. Freedom Foundation’s claims against the unions fail for lack of state

action. In Wright v. Service Employees International Union Local 503, we held

that a union’s forgery of a public employee’s dues authorization was not state

action under an Oregon statute nearly identical to the Washington statute at issue

here. 48 F.4th 1112, 1116–18, 1121–22 (9th Cir. 2022). A union’s refusal to accept

delivery of a public employee’s dues revocation is not state action either. Freedom

Foundation’s “alleged constitutional deprivation did not result from ‘the exercise

4 23-3946 of some right or privilege created by the State or by a rule of conduct imposed by

the state or by a person for whom the State is responsible.’” Id. at 1122 (quoting

Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 994 (9th Cir. 2013)). The unions

“further cannot fairly be ‘described . . . as . . . state actor[s].’” Id. at 1123 (first

alteration in original) (quoting Naoko Ohno, 723 F.3d at 994). Washington “did not

‘affirm[], authorize[], encourage[], or facilitate[] unconstitutional conduct’” by

failing to process revocation requests that it may not even have known about. Id.

(alterations in original) (quoting Naoko Ohno, 723 F.3d at 996).

3. Freedom Foundation lacks standing to assert its claim against Governor

Inslee. Freedom Foundation argues that it has been injured by the Washington

statute because the statute prevents it from associating with public employees for

the purpose of expressive activity. But it has not shown that the statute limits any

association or expression. Even if the statute did allow unions to reject revocation

forms sent by Freedom Foundation, that would not prevent the organization from

associating with public employees or from expressing its views on public-sector

unions. At most, the statute obstructs the effects that Freedom Foundation would

like its association and expression to have—namely, to reduce the amount sent to

those unions in dues. But “[t]he First Amendment right to associate and to

advocate ‘provides no guarantee that a speech will persuade or that advocacy will

be effective.’” Smith v. Arkansas State Highway Emp., Loc. 1315, 441 U.S. 463,

5 23-3946 464–65 (1979) (quoting Hanover Twp. Fed’n of Tchrs., Loc. 1954 (AFL-CIO) v.

Hanover Cmty. Sch. Corp., 457 F.2d 456, 461 (7th Cir. 1972)).

AFFIRMED.

6 23-3946

FILED

DEC 31 2024

Freedom Foundation v. Int’l Brotherhood of Teamsters Local 117, 23-3946

MOLLY C. DWYER, CLERK

MOLLOY, District Judge, concurring: U.S. COURT OF APPEALS

Although I agree with the majority’s conclusion that Freedom Foundation’s

claims against the unions fail for lack of state action, I would affirm the district

court’s finding that Freedom Foundation lacks organizational standing. See Ariz.

Alliance for Retired Ams. v. Mayes, 117 F.4th 1165, 1178 (9th Cir. 2024)

(“[S]pending money voluntarily in response to a governmental policy cannot be an

injury in fact.”).