United States District Court, D. Oregon, Portland Division
OPINION & ORDER
A. HERNÁNDEZ United States District Judge.
brings this action under 42 U.S.C. § 1983 and 28 U.S.C.
§ 2201(a) against Defendants Kate Brown, Paul Mather,
and Katy Coba (“State Defendants”) and Service
Employees International Union, Local 503, Oregon Public
Employees Union (SEIU). Plaintiff alleges that Defendants
violated her First Amendment rights to free speech and
freedom of association when they continued to deduct dues
from her wages after she resigned her union membership
following the Supreme Court's decision in Janus v.
AFSCME, 138 S.Ct. 2448 (2018). Before the Court is State
Defendants' motion to dismiss . For the reasons that
follow, the motion is granted, and State Defendants are
dismissed from this case.
Colleen Stroder began working for the Oregon Department of
Transportation (ODOT) in 2008. Compl. ¶ 5, ECF 1. When
she started the job, she also joined the Service Employees
International Union Local 503, Oregon Public Employees Union
(“SEIU”). Compl. ¶¶ 12-14. As part of
joining the union, Plaintiff signed a union membership
application card. Compl. ¶ 14. On September 19, 2017,
she renewed her membership and signed another union
membership application card. Compl. ¶ 17. This card
included a “dues irrevocability provision” that
provided that Plaintiff could opt out of union dues only
during a 15-day window each year. Compl. ¶ 19, 27.
Plaintiff remained a member of SEIU until August 28, 2018,
when she resigned her membership following the Supreme
Court's decision in Janus v. AFSCME, 138 S.Ct.
2448 (2018). Compl. ¶ 18. However, under the terms of
the agreement-specifically, the dues irrevocability
provision-SEIU informed Plaintiff that she could not end her
dues deductions until August 3, 2019. Compl. ¶¶
18-25. On August 20, 2019, Defendants stopped deducting union
dues and fees from Plaintiff's wages. Pye Decl.
¶¶ 4-5, ECF 25.
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994). A party may challenge a court's subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
A Rule 12(b)(1) motion may attack the substance of the
complaint's jurisdictional allegations even though the
allegations are formally sufficient. See Corrie
v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir.
2007) (court treats motion attacking substance of
complaint's jurisdictional allegations as a Rule 12(b)(1)
motion); Dreier v. United States, 106 F.3d 844, 847
(9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a
Rule 12(b)(1) motion can attack the substance of a
complaint's jurisdictional allegations despite their
formal sufficiency[.]”) (internal quotation omitted).
Additionally, a court may consider evidence outside the
pleadings to resolve factual disputes. Robinson v. United
States, 586 F.3d 683, 685 (9th Cir. 2009); see
also Dreier, 106 F.3d at 847 (a challenge to
the court's subject matter jurisdiction under Rule
12(b)(1) may rely on affidavits or any other evidence
properly before the court).
is a question of subject matter jurisdiction properly raised
under Rule 12(b)(1). White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000).
brings a single claim for injunctive and declaratory relief
against State Defendants. Plaintiff argues that Defendants
violated Plaintiff's First Amendment rights to free
speech and freedom of association “[b]y refusing to
allow Plaintiff to withdraw from the Union and end her dues
deduction until a specified time.” Compl. ¶¶
30-44. State Defendants move to dismiss the claim against
them as moot.
III of the Constitution limits federal courts to adjudicating
actual, ongoing controversies between litigants.”
Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th
Cir. 1998). Generally, an action is moot “when the
issues presented are no longer ‘live' or the
parties lack a legally cognizable interest in the
outcome.” Lee v. Schmidt-Wenzel, 766 F.2d
1387, 1389 (9th Cir. 1985) (internal quotations and citations
omitted). “The basic question in determining mootness
is whether there is a present controversy as to which
effective relief can be granted.” Nw. Environmental
Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir.
federal court cannot issue a declaratory judgment if a claim
has become moot. United Pub. Workers of Am. v.
Mitchell, 330 U.S. 75, 89 (1947); Native Vill. of
Noatak v. Blatchford, 38 F.3d 1505, 1514 (9th Cir. 1994)
(overruled on other grounds). A request for declaratory
relief becomes moot when the facts alleged fail to show that
there is a substantial controversy “between parties
having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of declaratory
judgment.” Preiser v. Newkirk, 422 U.S. 395,
402 (1975); see also Jones Intercable of San Diego v.
City of Chula Vista, 80 F.3d 320, 328 (9th Cir. 1995)
(case moot when cable television licensee no longer could or
wanted to operate cable system); Nome Eskimo Cmty. v.
Babbitt, 67 F.3d 813, 815 (9th Cir. 1995) (lease sale
that was center of controversy canceled for lack of bids with
no immediate prospect of another similar lease sale ended
case, constitutionally and practically); Smith v. Univ.
of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000) (after
passage of statute prohibiting affirmative action, law
school's “abandoned policy” of affirmative
action made litigation moot). Similarly, “[c]laims for
injunctive relief become moot when the challenged activity
ceases if subsequent events have made it clear that the
alleged violations could not reasonably be expected to
recur.” Ruiz, 160 F.3d at 549 (quotation
omitted); Chinese for Affirmative Action v.
Leguennec, 580 F.2d 1006, 1009 (9th Cir. 1978).
is does not become moot, however, when it is “capable
of repetition yet evading review.” See
Honig v. Doe, 484 U.S. 305, 318-20 (1988); Roe
v. Wade, 410 U.S. 113, 125 (1973); Am. Rivers v.
National Marine Fisheries Serv., 126 F.3d 1118, 1123
(9th Cir. 1997); Doe v. Madison Sch. Dist. No.
321, 177 F.3d 789, 798 (9th Cir. 1999). “The
capable of repetition, yet evading review exception to
mootness applies only where (1) the duration of the
challenged action is too short to allow full litigation
before it ceases, and (2) there is a reasonable expectation
that the plaintiffs will be subjected to it again.”
Johnson v. Rancho Santiago Community College
Dist., 623 F.3d 1011 (9th Cir. 2010) (quotation
omitted). This rule applies only in “exceptional
circumstances, ” GTE California, Inc. v.
F.C.C., 39 F.3d 940, 945 (9th Cir. 1994), and provides
“only minimal protection to individual plaintiffs,
” Doe v. Att'y General of the United
States, 941 F.2d 780, 784 (9th Cir. 1991).
acknowledges that Defendants have stopped deducting dues from
Plaintiff's wages. Plaintiff argues, however, that her
claims are “capable of repetition yet evading
review.” Plaintiff relies in part on Fisk v.
Inslee, 759 Fed.Appx. 632 (9th Cir. 2019). In
Fisk, the Ninth Circuit issued an unpublished
opinion rejecting defendants' argument that non-damages
claims were moot after the defendant union stopped deducting
dues from the plaintiffs' wages:
Appellants' non-damages claims are not moot. Although no
class has been certified and SEIU and the State have stopped
deducting dues from Appellants, Appellants' non-damages
claims are the sort of inherently transitory claims for which
continued litigation is permissible. SeeGerstein v. Pugh, 420 U.S. 103, 111 n.11, 95 S.Ct.
854, 43 L.Ed.2d 54 (1975) (deciding case not moot because the
plaintiff's claim would not last “long enough for a
district judge to certify the class”); see
alsoCounty of Riverside v. McLaughlin, 500
U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Indeed,
claims regarding the dues irrevocability provision would last
for at most a year, and we have previously explained that
even three years is “too short to allow for full
judicial review.” Johnson v. Rancho ...