Kathryn McCollum v. Nea-Alaska

NOT FOR PUBLICATION FILED
JUL 29 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

TRACY CROCKETT, No. 19-35299

Plaintiff, D.C. No. 3:18-cv-00179-JWS

and
MEMORANDUM*
KATHRYN McCOLLUM; et al.,

Plaintiffs-Appellants,

v.

NEA-ALASKA; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Kathryn McCollum, David Nees, Carol Carman, Donn Liston, and Timothy

*
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.
C. Christopherson appeal from the district court’s judgment in their 42 U.S.C.

§ 1983 putative class action alleging federal and state law claims arising out of

agency fees, charitable donations, and union membership dues. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal under Federal Rule of Civil Procedure 12(b)(6). Daniels-Hall

v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). We may affirm on any

ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th

Cir. 2008). We affirm.

The parties agree that this court’s intervening decision in Danielson v.

Inslee, 945 F.3d 1096, 1097-99 (9th Cir. 2019), cert. denied, 141 S. Ct. 1265

(2021), controls the outcome of this appeal.

The district court properly dismissed the claims of McCollum, Nees,

Carman, and Christopherson against NEA-Alaska, Matanuska-Susitna Education

Association, and National Education Association (“union defendants”) because a

public sector union can, as a matter of law, “invoke an affirmative defense of good

faith to retrospective monetary liability under section 1983 for the 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, 945 F.3d at 1097-99, 1102-03 (explaining that plaintiffs’ claim for

monetary relief was damages, not restitution, but “[e]ven accepting Plaintiffs’

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restitutionary premise, the equities do not weigh in favor of requiring a refund of

all agency fees collected pre-Janus”).

Dismissal of Liston’s First Amendment claim against the union defendants

was proper because the deduction of union membership dues arose from the

private membership agreements between the union defendants and plaintiffs, 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).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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