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 2021-07

Jeremy Durst v. Oregon Education Association ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUL 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY DURST; et al.,                           No. 20-35374
Plaintiffs-Appellants,          D.C. No. 1:19-cv-00905-MC
v.
MEMORANDUM*
OREGON EDUCATION ASSOCIATION,
a labor organization; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted July 19, 2021**
Before:      SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Jeremy Durst, Deanne Tanner, and Michael Garcie appeal from the district
court’s summary judgment in their
    42 U.S.C. § 1983
     action alleging First
Amendment claims arising out of union membership dues. We have jurisdiction
*
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). Plaintiffs’ request for oral
argument, set forth in the opening brief, is denied.
under
    28 U.S.C. § 1291
    . We review de novo. JL Beverage Co., LLC v. Jim Beam
Brands Co.,
    828 F.3d 1098
    , 1104 (9th Cir. 2016) (decision on cross-motions for
summary judgment); Foster v. Carson,
    347 F.3d 742
    , 745 (9th Cir. 2003)
(mootness determinations). We may affirm on any ground supported by the
record. Enlow v. Salem-Keizer Yellow Cab Co.,
    389 F.3d 802
    , 811 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on plaintiffs’ claims
for prospective relief because such claims are moot. See Bain v. Cal. Teachers
Ass’n,
    891 F.3d 1206
    , 1211-15 (9th Cir. 2018) (finding plaintiffs’ claims for
prospective relief moot when they resigned their union membership and presented
no reasonable likelihood that they would rejoin the union in the future).
Summary judgment was proper on plaintiffs’ First Amendment claims
against Oregon Education Association, Southern Oregon Bargaining Council Eagle
Point Education Certified and Classified Employees, and Portland Association of
Teachers because the deduction of union membership dues arose from private
membership agreements between the parties, 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).
Summary judgment was proper on plaintiffs’ First Amendment claim against
2                                  20-35374
Eagle Point School District 9 and Portland Public Schools/Multnomah County
School District Number 1 because plaintiffs affirmatively consented to the
voluntary deduction of union dues, and the Supreme Court’s decision in Janus v.
American Federation of State, County & Municipal Employees, Council 31,
    138 S. Ct. 2448
     (2018), did not extend a First Amendment right to avoid paying union
dues that were agreed upon under validly entered membership agreements. See
Belgau, 975 F.3d at 950-52.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
AFFIRMED.
3                                       20-35374