1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 LATANA CHANDAVONG and NENG CASE NO. 1:21-CV-0675 AWI EPG

HER,

8 Plaintiffs ORDER ON DEFENDANT’S RULE 12(c) 9 MOTION FOR JUDGMENT ON THE v. PLEADINGS 10

FRESNO DEPUTY SHERIFF’S

11 ASSOCIATION and COUNTY OF (Doc. No. 42)

FRESNO,

12 Defendants 13 14 15 This is a dispute between Plaintiffs Latana Chandavong (“Chandavong”) and Neng Her 16 (“Her”) against their employer Defendant Fresno County (“the County”) and Defendant the Fresno 17 Deputy Sheriff’s Association (“FDSA”), which is a public sector employee union. Plaintiffs 18 allege that the involuntary collection of vacation hours by the County for the use and benefit of the 19 FDSA violates the First Amendment. Following the severance of this case from the claims of 20 other County employees, the active complaint is the Third Amended Complaint (“TAC”). 21 Currently before the Court is the FDSA’s Rule 12(c) motion for judgment on the pleadings. For 22 the reasons that follow, the FDSA’s motion will be denied. 23 24 RULE 12(c) FRAMEWORK 25 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed but within 26 such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed. R. 27 Civ. Pro. 12(c). Because the motions are functionally identical, the same standard of review 28 applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion. Gregg v. Department of 1 Public Safety, 870 F.3d 883, 887 (9th Cir. 2017). The non-moving party’s allegations are 2 accepted as true, and all reasonable inferences are drawn in the non-moving party’s favor. See 3 Herrera v. Zumiez, Inc., 953 F.3d 1063, 1068 (9th Cir. 2020); Hines v. Youseff, 914 F.3d 1218, 4 1227 (9th Cir. 2019). Any allegations made by the moving party that have been denied or 5 contradicted are assumed to be false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 6 1081 (9th Cir. 2006); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th 7 Cir. 1989). However, the Court is “not required to accept as true allegations that contradict 8 exhibits attached to the Complaint, or matters properly subject to judicial notice, or allegations 9 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Seven 10 Arts Filmed Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To 11 avoid judgment, “a complaint must contain sufficient factual matter, accepted as true, to state a 12 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S 662, 678 (2009); Harris v. 13 County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Complaints that offer no more than 14 “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not 15 do.” Iqbal, 556 U.S. at 678; Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). “A 16 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 17 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 18 at 678; see Harris, 682 F.3d at 1131. “Plausibility” means “more than a sheer possibility,” but less 19 than a probability, and facts that are “merely consistent” with liability fall short of “plausibility.” 20 Iqbal, 556 U.S. at 678. Although Rule 12(c) does not mention leave to amend, courts may grant a 21 Rule 12(c) motion with leave to amend. See Gregg, 870 F.3d at 887, 889; Harris, 682 F.3d at 22 1134. The court need not grant leave to amend when doing so would be futile and the deficiencies 23 in the complaint could not be cured by amendment. See Deveraturda v. Globe Aviation Sec. 24 Servs., 454 F.3d 1043, 1046 (9th Cir. 2006); see also Gregg, 870 F.3d at 887; Harris, 682 F.3d at 25 1131. Further, although Rule 12(c) “does not expressly authorize ‘partial’ judgments, neither does 26 it bar them; it is common practice to apply Rule 12(c) to individual causes of action.” Mays v. 27 Wal-Mart Stores, Inc., 354 F.Supp.3d 1136, 1141 (C.D. Cal. 2019); Cornejo v. Ocwen Loan 28 Serv’g LLC, 151 F.Supp.3d 1102, 1107 (E.D. Cal. 2015). 1 FACTUAL BACKGROUND 2 From the TAC, the FDSA collects union dues from its members and, prior to July 2018, 3 collected “fair-share service fees” from the wages of non-members. The County assisted the 4 FDSA in collecting these fees by diverting money from its employees to the FDSA at the FDSA’s 5 request. The FDSA also collects vacation hours from the County employees that compose the 6 FDSA’s bargaining unit. Each year, the FDSA transfers 5.7 hours of vacation time from all 7 County bargaining unit employees to the FDSA president, who uses the hours to conduct union- 8 related business. The FDSA takes 3.5 hours in March and 2.2 hours in September. The County 9 assists the union in collecting these vacation hours by indicating the diversion/deduction of 10 vacation hours on pay stubs as “FDSA Vacation Lv I Bank” and by prohibiting affected County 11 employees from using the vacation hours that were taken by the FDSA. 12 Her is employed by the Fresno County Sheriff’s Department as a community service 13 officer. Her has never been a member of the FDSA, but in February 2016, the FDSA started 14 taking vacation hours from him. Her never consented to the taking of these vacation hours. 15 Following a lawsuit in which Her sued to stop the County and the FDSA from taking his vacation 16 hours, the County restored all vacation hours that were taken after July 2018 (the date that Janus v. 17 American Federation of State, County, and Municipal Employees, Council 31, 138 S.Ct. 2248 18 (2018) was decided). It does not appear that the County and the FDSA have taken any further 19 vacation hours after restoring the hours that were taken after July 2018. However, the County and 20 the FDSA have refused to restore the vacation hours taken by the County and the FDSA between 21 February 2016 and July 2018. 22 Chandavong is employed by the Fresno County Sheriff’s Department as a deputy sheriff. 23 Chandavong’s union membership was terminated in December 2016. The County and the FDSA 24 continued to collect vacation hours from Chandavong after December 2016. Like Her, the County 25 and the FDSA stopped collecting vacation hours after the filing of a lawsuit, restored all vacation 26 hours taken after July 2018, and do not appear to have taken any further vacation hours, but have 27 not restored the vacation hours taken between December 2016 and July 2018. Chandavong never 28 consented to the taking of the vacation hours taken between December 2016 and July 2018. 1 The FDSA’s taking of Her and Chandavong’s vacation hours was allegedly not consistent 2 with the Supreme Court’s limitations under Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). 3 The FDSA allegedly failed to include any of the necessary procedural safeguards required to 4 prevent non-union members from subsidizing activities that are not germane to collective 5 bargaining. Further, the same amount of vacation hours were taken from each affected County 6 employee, both FDSA member and FDSA non-member alike. The vacation hours taken from 7 non-union employees were not reduced to account for the time that would be spent on activities 8 that were not germane to collective bargaining activities. 9 10 DEFENDANT’S MOTION 11 I. State Action 12 Defendant’s Arguments 13 The FDSA argues that the TAC fails to contain any factual allegations that plausibly 14 demonstrates that the FDSA engaged in “state action.” The FDSA is a private actor, and without 15 plausible allegations that it engaged in “state action,” there are no viable § 1983 claims. Plaintiffs 16 must allege more than that the County simply played a role in taking the vacation hours. Instead, 17 the allegations must show that the allegedly unconstitutional conduct is fairly attributable to the 18 County. The TAC contains no factual allegations that would satisfy any of the four tests for state 19 action. The TAC merely alleges that the County “assisted,” but does not include factual 20 allegations that show conduct imposed by a governmental entity. This allegation at best shows 21 only a ministerial role in the conduct alleged because the County merely reflected the deduction 22 on pre-printed paystubs. 23 Plaintiffs’ Opposition 24 Plaintiffs argue that the TAC plausibly alleges that the FDSA violated 42 U.S.C. § 1983 25 and the First Amendment. The TAC repeatedly and specifically alleges that the County and the 26 FDSA acted together in diverting vacation hours. The TAC describes the diversion as joint 27 activity undertaken by the County and the FDSA together. The TAC’s allegations are sufficient to 28 demonstrate a state policy and a state actor under Lugar v. Edmondson Oil Co., 457 U.S. 922 1 (1982). A state policy is satisfied if there is a rule of conduct imposed by the state. The rule of 2 conduct here is the collective bargaining agreement between the County and the FDSA, which 3 requires the County to implement a union’s request for payroll deductions or diversion of vacation 4 hours, as well as the statutes that authorize collective bargaining in the public sector. The state 5 actor requirement is met because the County and the FDSA are engaged in the joint activity of 6 diverting vacation hours – the FDSA asks the County to divert and the County does so. The TAC 7 does not allege merely ministerial conduct by the County. The FDSA’s arguments are contrary to 8 Janus, which permitted a public-sector union to be sued under § 1983 for diverting wages to non- 9 consenting employees. The FDSA’s argument would also permit state employers and public 10 sector unions to divert wages from non-consenting non-members without facing any liability 11 under § 1983. Finally, in Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020), the Ninth Circuit found 12 no state action because the state of Washington merely enforced a private agreement between state 13 employees and the public sector union. In this case, there is no private agreement between 14 Plaintiffs and the FDSA. 15 Legal Standard 16 To recover under 42 U.S.C. § 1983, a plaintiff must show: (1) that the defendant deprived 17 the plaintiff of a right secured by either the Constitution or laws of the United States; and (2) the 18 defendant acted under color of state law. Heineke v. Santa Clara Univ., 965 F.3d 1009, 1012 (9th 19 Cir. 2020); Jensen v. Lane Cty., 222 F.3d 570, 574 (9th Cir. 2000). Section 1983 does not apply 20 to merely private conduct, no matter how discriminatory or wrong the private conduct may be. 21 Heineke, 965 F.3d at 1012. A private individual’s actions are done under color of law or 22 constitute “state action” only if a “sufficiently close nexus” makes private action treatable as that 23 of a relevant government entity itself. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Ballinger v. 24 City of Oakland, 24 F.4th 1287, 1300 (9th Cir. 2022). The state action inquiry boils down to 25 whether the challenged conduct that caused the constitutional deprivation is “fairly attributable” to 26 the state. Belgau v. Inslee, 975 F.3d 940, 946 (9th Cir. 2020). There is a two pronged inquiry for 27 state action: (1) whether the constitutional deprivation resulted from “the exercise of some right 28 or privilege created by the State or by a rule of conduct imposed by the State or by a person from 1 whom the State is responsible?”; and (2) whether the defendant “may fairly be said to be a state 2 actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see Belgau, 975 F.3d at 946. 3 Discussion 4 Many post-Janus cases have addressed claims against a union and a public sector employer 5 and found no state action when the public sector employer diverts union dues from the plaintiff’s 6 paycheck to the union. E.g. Belgau, 975 F.3d at 949; Kurk v. Los Rios Classified Emples. Ass’n, 7 540 F.Supp.3d 973, 983 (E.D. Cal. 2021). The binding case cited by the FDSA is Belgau. 8 In Belgau, the public employees had voluntarily joined a public sector union and had 9 agreed to have the state of Washington collect union dues from the employees’ paycheck and 10 forward those dues to the union. E.g. Belgau, 975 F.3d at 945. Following Janus, the plaintiffs 11 attempted to resign their union membership and have Washington stop deducting further 12 membership dues from their paychecks. See id. at 946. However, dues continued to be collected 13 until an irrevocable one-year period mandated by a revised membership agreement had expired. 14 See id. The plaintiffs filed suit under § 1983. See id. at 944. The Ninth Circuit found no viable 15 § 1983 claim because the union had not engaged in state action. See id. at 949. In part, Belgau 16 found that Washington only ministerially processed payroll deductions pursuant to the plaintiffs’ 17 authorization. See id. at 948. Providing the machinery for implementing private agreements by 18 performing an administrative task did not mean that the union and Washington were joint actors. 19 See id. Belgau concluded that, “[a]t bottom, Washington’s role was to enforce a private 20 agreement. Because the private dues agreements do not trigger state action and independent 21 constitutional scrutiny,” there was no viable § 1983 claim against the union. Id. at 949. 22 Belgau has been cited and relied on by numerous district courts to find that a public sector 23 union did not engage in state action when membership dues were collected from the paychecks of 24 union members by a governmental employer. However, the facts of this case are not the same as 25 the facts of Belgau. As Plaintiffs correctly point out, the challenged conduct by the FDSA does 26 not involve requests by members to stop the collection of membership dues. Rather, the 27 challenged conduct by the FDSA is the taking of vacation hours from two non-FDSA members, 28 including Her who has never been an FDSA member. 1 When a public sector union and a governmental employer cause the diversion of funds 2 from a non-member employee’s paycheck to the coffers of a union, courts generally find that the 3 union has engaged in state action and joint action with the governmental employer. See Janus v. 4 American Fed. of State, 942 F.3d 352, 361 (7th Cir. 2019) (“Janus II”); Warren v. FOP, 2022 U.S. 5 Dist. LEXIS 52598, *17-*18 (N.D. Ohio Mar. 23, 2022); Grossman v. Hawaii Gov’t Emples. 6 Ass'n/AFSCME, 2020 U.S. Dist. LEXIS 17866, *18 n.10 (D. Haw. Jan. 31, 2020); Wenzig v. 7 SEIU Local 668, 426 F.Supp.3d 88, 93 n.5 (M.D. Pa. 2019). These courts have found that if a 8 union utilizes a governmental procedural scheme with overt and significant assistance from 9 governmental officials, there is state action under Lugar and Tulsa Prof’l Collection Servs., Inc. v. 10 Pope, 485 U.S. 478, 486 (1988). See Janus, 942 F.3d at 361; Warren, 2022 U.S. Dist. LEXIS 11 52598 at *17-*18; Grossman, 2020 U.S. Dist. LEXIS 17866 at *18 n.10; Wenzig, 426 F.Supp.3d 12 at 93 n.5. 13 At least one court has distinguished Belgau on the grounds that Belgau addressed the 14 collection of union dues from union members by the governmental employer. See Warren, 2022 15 U.S. Dist. LEXIS 52598 at *21-*23. Further, Belgau briefly addressed Janus II. See Belgau, 975 16 F.3d at 948 n.3. The Ninth Circuit explained that the claim at issue was for the deduction of union 17 dues from union members without a waiver, not the deduction of agency fees from non-union 18 members. See id. at 948. The Ninth Circuit cited Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) 19 and parenthetically quoted Blum as holding that “state action analysis is aimed at ‘the specific 20 conduct of which the plaintiff complains.’”) (emphasis added by Belgau). In a footnote, the Ninth 21 Circuit then stated: “Our conclusion that state action is absent in the deduction and the transfer of 22 union dues does not implicate the Seventh Circuit’s analysis on the collection of agency fees. See 23 [Janus II].” Id. at 948 n.3. 24 In light of Belgau’s express holding that Janus II is not implicated because a different 25 factual situation is involved, as well as the nature of the claims at issue in this case, the Court finds 26 that Belgau and its progeny do not apply to this case. Rather, because this case involves the taking 27 of vacation hours from non-union members by the FDSA through the County, the Court finds that 28 the state action analysis of Janus II, Warren, Grossman, and Wenzig applies. Under these cases, 1 and at this stage in the proceedings, see Hines, 914 F.3d at 1227, the FDSA’s conduct with the 2 County in diverting vacation h+ours is sufficient state action for purposes of § 1983. Thus, 3 dismissal of Plaintiffs’ § 1983 claim against the FDSA due to the absence of state action is 4 inappropriate. 5 6 II. Good Faith Defense 7 Defendant’s Argument 8 The FDSA argues that it is entitled to assert the good faith defense for the collection of the 9 vacation hours at issue. Plaintiffs are members of a bargaining unit that is represented by the 10 FDSA, even though they are not members of the FDSA. Until Janus, unions were permitted to 11 collect fair share fees from non-union members for collective bargaining activities. The vacation 12 hours at issue are tantamount to pre-Janus compulsory agency fees that help finance the FDSA’s 13 collective bargaining activities. That is, the vacation hour deductions are indistinguishable in 14 purpose from fair-share fees. Because taking the fair-share fees from non-union members was 15 constitutional pre-Janus, the good faith defense recognized by Ninth Circuit applies to pre-Janus 16 vacation hours taken. 17 Plaintiffs’ Opposition 18 Plaintiffs argue that the FDSA is not entitled to the good faith defense. That defense only 19 applies if the FDSA can demonstrate that it complied with the strictures of Abood. Under Abood, 20 the vacation hours could only be used for union activities that are non-ideological and germane to 21 collective bargaining. However, there are no allegations or indications that the vacation hours 22 were appropriately segregated. The same amount of vacation hours were taken from union 23 members and non-union members alike, without any reduction for time that would be spent on 24 non-germane collective bargaining activities. Because the good faith defense is an affirmative 25 defense, the FDSA must plead and prove it. It is not a sufficient basis for dismissal in this case. 26 Legal Standard 27 On First Amendment grounds, “Janus invalidated state agency shop laws requiring 28 nonmembers of a union to pay a fee in support of the union's collective bargaining activities - 1 activities performed on behalf of union members and nonmembers alike.” Interpipe Contracting, 2 Inc. v. Becerra, 898 F.3d 879, 894 n.12 (9th Cir. 2018). Janus overruled Abood. Janus, 138 S.Ct. 3 at 2486. Abood had “held that unions could collect compulsory agency fees from nonmembers to 4 finance their collective bargaining activities, without running afoul of the First and Fourteenth 5 Amendments.” Danielson v. Inslee, 945 F.3d 1096, 1097 (9th Cir. 2019). Unions may no longer 6 collect agency fees or any other payments from non-union members in the absence of clear and 7 affirmative consent from the non-union member. Janus, 138 S. Ct. at 2486; In re Google Inc. St. 8 View Elecs Communs. Litig., 21 F.4th 1102, 1118 (9th Cir. 2021). However, for purposes of 9 retroactive relief, if a union’s conduct was taken in direct reliance on and is consistent with 10 presumptively valid state laws and binding Supreme Court precedent, the union may successfully 11 utilize a “good faith affirmative defense.” Danielson, 945 F.3d at 1097; Clement v. City of 12 Glendale, 518 F.3d 1090, 1096-97 (9th Cir. 2008). 13 Discussion 14 The allegations in the FAC do not demonstrate that the FDSA is entitled to the good faith 15 defense as a matter of law. In a previous order, the Court expressed concern about whether the 16 vacation hours taken from Plaintiffs were the equivalent of an agency service fee. See Campos v. 17 Fresno Deputy Sheriff’s Ass’n, 535 F.Supp.3d 913, 927 (E.D. Cal. 2021). This is particularly true 18 since it appears that Chandavong was charged an agency service fee in addition to having vacation 19 hours taken from him. See Doc. No. 8 at ¶¶ 70, 81; see also FAC ¶ 13. If the vacation hours are 20 not “agency fees” under Abood, then a legitimate and lawful basis for collecting the hours would 21 be unclear. Further, Abood permitted the collection of compulsory agency fees from non-union 22 members, but the fee was to cover expenses that were germane to collective bargaining activities. 23 See Abood, 431 U.S. at 235; Belgau, 975 F.3d at 945. The FAC alleges that the FDSA collected 24 the same amount of vacation hours from both FDSA members and non-members alike, contrary to 25 Abood. See FAC ¶ 21. This appears to be inconsistent with a fee that is to be taken only for 26 activities that are germane to collective bargaining activities. At this stage in the proceedings, and 27 making all reasonable inferences in Plaintiffs’ favor, see Hines, 914 F.3d at 1227, the Court cannot 28 hold as a matter of law that the good faith defense applies to the FDSA. Therefore, dismissal of 1 |the § 1983 claims against the FDSA based on the good faith defense is inappropriate. 2 ORDER 3 Accordingly, IT IS HEREBY ORDERED that the FDSA’s motion for judgment on the 4 | pleadings (Doc. No. 42) is DENIED. 5 6 IT IS SO ORDERED. □□ |Dated: _ April 22, 2022 7 □□ 7 Cb Lec _-SENIOR DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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