NOT FOR PUBLICATION FILED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

MARK GABRIELE; JEN-FANG LEE, No. 20-16353

Plaintiffs-Appellants, D.C. No. 2:19-cv-00292-WBS-KJN v.

SERVICE EMPLOYEES MEMORANDUM*

INTERNATIONAL UNION, LOCAL 1000;

SERVICE EMPLOYEES

INTERNATIONAL UNION,

Defendants-Appellees,

and

NATIONAL EDUCATION

ASSOCIATION OF THE UNITED

STATES; et al.,

Defendants.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted October 22, 2021** San Francisco, California

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

Plaintiffs Mark Gabriele and Jen-Fang Lee (“Appellants”) appeal the district

court’s dismissal of their putative class action brought against Service Employees

International Union Local 1000 and Service Employees International Union.

Appellants seek declaratory and monetary relief under 42 U.S.C. § 1983 for agency

fees collected from paychecks in violation of the First Amendment. They also bring

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 Appellants’ 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

*** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation.

2 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.”).

Appellants’ claim for prospective declaratory relief is moot. “It is an

inexorable command of the United States Constitution that the federal courts confine

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, Appellants’

union 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, 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)).

3 That the California statutes governing agency fees have not been repealed

does not revive Appellants’ 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

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 Appellants’ state law claims.

Collection of agency fees was permitted by the Dills Act, California Government

Code §§ 3513(k), 3515.7, 3515.8. Appellants’ 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 El Rancho

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

v. State Bd. Of Control, 176 Cal. App. 3d 1059, 1063–66 (1985).

AFFIRMED.

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