NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STACY PENNING, No. 20-15226

Plaintiff-Appellant, D.C. No. 4:19-cv-03624-YGR

v.

MEMORANDUM*

SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL 1021;

SERVICE EMPLOYEES

INTERNATIONAL UNION,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted October 22, 2021** San Francisco, California

Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District Judge.

* 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). *** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Plaintiff Stacy Penning appeals the district court’s dismissal of his putative

class action brought against Service Employees International Union Local 1021 and

other local unions affiliated with Service Employees International Union

nationwide. Penning seeks declaratory and monetary relief under 42 U.S.C. § 1983

for agency fees collected from paychecks in violation of the First Amendment. He

also brings common law conversion and restitution claims.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Serra v.

Lappin, 600 F.3d 1191, 1195–96 (9th Cir. 2010) (reviewing dismissal for failure to

state a claim and for lack of subject matter jurisdiction de novo).

The district court properly dismissed Penning’s First Amendment claim, as it

is established law in this Circuit that a public sector union may “invoke an

affirmative defense of good faith to retrospective monetary liability under section

1983” for 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 (2018). Danielson v. Inslee, 945 F.3d 1096, 1097–99 (9th Cir. 2019)

(“[P]rivate parties may invoke an affirmative defense of good faith to retrospective

monetary liability under 42 U.S.C. § 1983, where they acted in direct reliance on

then-binding Supreme Court precedent and presumptively-valid state law.”).

Penning’s claim for prospective declaratory relief is moot. “It is an inexorable

command of the United States Constitution that the federal courts confine

2 themselves to deciding actual cases and controversies.” Gator.com Corp. v. L.L.

Bean, Inc., 398 F.3d 1125, 1128 (9th Cir. 2005) (en banc). “The limitations that

Article III imposes upon federal court jurisdiction are not relaxed in the declaratory

judgment context.” Id. at 1129. When the Supreme Court issued Janus, Penning’s

union immediately stopped collecting agency fees from non-union members.

Shortly thereafter, the California Attorney General issued an advisory opinion

explaining that the state “may no longer automatically deduct a mandatory agency

fee from the salary or wages of a non-member public employee who does not

affirmatively choose to financially support the union.” Similarly, the state

administrative agency that enforces public employment collective bargaining

statutes stated that it “will no longer enforce existing statutory or regulatory

provisions requiring non-members to pay an agency fee without having consented

to such a fee.” Accordingly, it is clear that the conduct found unconstitutional in

Janus has ceased and “could not reasonably be expected to recur.” Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting

United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)).

That the California statutes governing agency fees have not been repealed

does not revive Penning’s claims. Unconstitutional statutes, without more, give no

one a right to sue. See, e.g., Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d

1134, 1139 (9th Cir. 2000) (en banc) (“[T]he mere existence of a . . . statute . . . [does

3 not] satisf[y] a ‘case or controversy’ requirement. . . . Rather, there must be a

‘genuine threat of imminent prosecution.’”) (citation omitted).

The district court also properly dismissed Penning’s state law claims.

Collection of agency fees was permitted by the Meyers-Milias-Brown Act,

California Government Code § 3508.5. Penning’s common law claims, asserting

conversion and seeking restitution for such collection, are inconsistent with the

statute. Cal. Civ. Code § 22.2 (“The common law . . . so far as it is not . . .

inconsistent with . . . laws of this State, is the rule of decision in all the courts of this

State.”). Furthermore, the common law claims are preempted. See City of San Jose

v. Operating Eng’rs Local Union No. 3, 232 P.3d 701, 705–07 (Cal. 2010); El

Rancho Unified Sch. Dist. v. Nat’l Educ. Ass’n, 663 P.2d 893, 901–02 (Cal. 1983).

AFFIRMED.

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