NOT FOR PUBLICATION FILED

JUL 29 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK R. SMITH, No. 19-16381

Plaintiff-Appellant, D.C. No. 3:18-cv-05472-VC

v.

MEMORANDUM*

KATE BIEKER, Chief Executive Officer, Superior Court, County of Alameda;

AFSCME LOCAL 2700,

Defendants-Appellees,

ROB BONTA, Attorney General,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Mark R. Smith appeals from the district court’s summary judgment in his 42

* 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). U.S.C. § 1983 action alleging a First Amendment claim arising out of union

membership dues. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the district court’s decision on cross-motions for summary judgment. Guatay

Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).

We may affirm on any ground supported by the record. Thompson v. Paul, 547

F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

Summary judgment on Smith’s First Amendment claim against AFSCME

Local 2700 was proper because the deduction of union membership dues arose

from the private membership agreement between AFSCME Local 2700 and Smith,

and “private dues agreements do not trigger state action and independent

constitutional scrutiny.” Belgau v. Inslee, 975 F.3d 940, 946-49 (9th Cir. 2020),

cert. denied, No. 20-1120, 2021 WL 2519114 (June 21, 2021) (discussing state

action).

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.

2 19-16381