FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY I. BARKE; ED SACHS; No. 20-56075
LAURA FERGUSON; JIM REARDON;
LEIGHTON M. ANDERSON; PHILLIP D.C. No.
YARBROUGH; RODGER DOHM, 8:20-cv-00358-
Plaintiffs-Appellants, JLS-ADS
v.
OPINION
ERIC BANKS; ERICH SHINERS;
ARTHUR A. KRANTZ; LOU PAULSON,
in their official capacities as
members of the California Public
Employment Relations Board
(PERB); J. FELIX DE LA TORRE, in
his official capacity as General
Counsel of PERB,
Defendants-Appellees,
CALIFORNIA TEACHERS
ASSOCIATION; SEIU CALIFORNIA
STATE COUNCIL; CALIFORNIA
FEDERATION OF TEACHERS;
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION; CALIFORNIA LABOR
FEDERATION,
Intervenor-Defendants-Appellees.
2 BARKE V. BANKS
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted October 21, 2021
Pasadena, California
Filed February 7, 2022
Before: Consuelo M. Callahan, John B. Owens, and
Danielle J. Forrest, Circuit Judges.
Per Curiam Opinion
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal without
leave to amend of a complaint brought by a group of elected
local government officials asserting a pre-enforcement
challenge to California Government Code section 3550, and
remanded for the limited purpose of amending the judgment
to reflect that the dismissal is without prejudice.
California Government Code section 3550 states in part
that “[a] public employer shall not deter or discourage public
employees . . . from becoming or remaining members of an
employee organization.” The district court dismissed the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BARKE V. BANKS 3
case, in part, on the ground that Plaintiffs lacked standing
because section 3550 applies only to “public employer[s],”
not to Plaintiffs individually. Despite this statutory
limitation, Plaintiffs alleged that their speech has been
chilled because they fear the State of California Public
Employment Relations Board (“PERB”) will erroneously
attribute the statements Plaintiffs wish to make in their
individual capacities to Plaintiffs’ public employers, thereby
causing their employers to be sanctioned and damaging
Plaintiffs’ reputations as a result.
The panel determined that section 3550 does not regulate
Plaintiffs’ individual speech, and any restrictions the statute
does impose on Plaintiffs’ ability to speak on behalf of their
employers did not injure Plaintiffs’ constitutionally
protected individual interests. The panel held that Plaintiffs
had not shown that they had a well-founded fear that PERB
would impute statements made by Plaintiffs in their
individual capacities to Plaintiffs’ public employers,
particularly in light of concessions made by PERB in this
litigation. The panel concluded that Plaintiffs had failed to
demonstrate that they have suffered an injury in fact
sufficient to establish their standing to pursue their pre-
enforcement challenge.
The panel held that Plaintiffs failed to show that the
district court erred in determining that any amendment to
their complaint would be futile, and therefore, the district
court did not abuse its discretion by denying Plaintiffs leave
to amend. Finally, the panel noted that dismissals for lack
of Article III jurisdiction must be entered without prejudice
because a court that lacks jurisdiction is powerless to reach
the merits. The panel remanded the case to the district court
to enter judgment dismissing the case without prejudice.
4 BARKE V. BANKS
COUNSEL
David A. Schwarz (argued), Jay T. Ramsey, and Alexandra
Michele Jackson, Sheppard Mullin Richter & Hampton LLP,
Los Angeles, California; Michael Rosman, Center for
Individual Rights, Washington, D.C.; Mark W. Bucher, Law
Office of Mark W. Bucher, Tustin, California; for Plaintiffs-
Appellants.
Joseph W. Eckhart (argued), J. Felix De La Torre, Jeremy G.
Zeitlin, and Daniel S. Crossen, State of California Public
Employment Relations Board, Sacramento, California, for
Defendants-Appellees.
Matthew J. Murray (argued), Scott A. Kronland, and
Danielle E. Leonard, Altshuler Berzon LLP, San Francisco,
California, for Intervenor-Defendants-Appellees.
OPINION
PER CURIAM:
Plaintiffs, a group of elected local government officials,
seek to assert a pre-enforcement First Amendment challenge
to California Government Code section 3550, which states
in part that “[a] public employer shall not deter or discourage
public employees . . . from becoming or remaining members
of an employee organization.” Cal. Gov’t Code § 3550. The
district court dismissed the case on the ground that Plaintiffs
lacked standing because section 3550 applies only to “public
employer[s],” not to Plaintiffs individually. Despite this
statutory limitation, Plaintiffs allege that their speech has
been chilled because they fear the State of California Public
Employment Relations Board (“PERB”) will erroneously
BARKE V. BANKS 5
attribute the statements Plaintiffs wish to make in their
individual capacities to Plaintiffs’ public employers, thereby
causing their employers to be sanctioned and damaging
Plaintiffs’ reputations as a result. But Plaintiffs have not
shown that they have a well-founded fear that PERB will
impute these statements to Plaintiffs’ public employers,
particularly in light of concessions made by PERB in this
litigation, and therefore we affirm. However, because the
district court lacked jurisdiction over the case, it erred by
dismissing the complaint with prejudice. We thus remand
for the limited purpose of amending the judgment to reflect
that the dismissal of this matter is without prejudice.
I
PERB is a California agency responsible for
administering and enforcing a range of statutes governing
collective bargaining in California’s public-sector
workforce. Cal. Gov’t Code §§ 3541.3, 3541.5, 3509(a);
City of San Jose v. Operating Eng’rs Loc. Union No. 3,
232 P.3d 701, 725–26 (Cal. 2010). 1 One of the statutes
within PERB’s purview is Government Code section 3550,
which states:
A public employer shall not deter or
discourage public employees or applicants to
be public employees from becoming or
remaining members of an employee
organization, or from authorizing
representation by an employee organization,
1
Named defendants Eric Banks, Erich Shiners, Arthur A. Krantz,
and Lou Paulson are PERB members who were sued in their official
capacities. The remaining named defendant, J. Felix De La Torre, is
PERB’s general counsel and was also sued in his official capacity.
Collectively, these defendants are referred to as “PERB.”
6 BARKE V. BANKS
or from authorizing dues or fee deductions to
an employee organization. This is declaratory
of existing law.
Cal. Gov’t Code § 3550. The statute was originally enacted
in 2017, but according to PERB, the current version is the
product of a 2018 amendment which was “part of a broader
legislative package designed to address the impact of Janus
v. American Federation of State, County, & Municipal
Employees, Council 31, 138 S. Ct. 2448 (2018).” In Janus,
the Supreme Court held that the First Amendment barred
“States and public-sector unions” from “extract[ing] agency
fees from nonconsenting employees.” 138 S. Ct. at 2486.
The 2018 amendment added the language prohibiting a
public employer from deterring or discouraging public
employees “from authorizing dues or fee deductions to an
employee organization,” presumably to minimize the
financial impact of the Janus decision on public-sector
unions.
Plaintiffs identify themselves as “elected members of
local California government bodies, including city councils,
school boards, and community college and special purpose
districts.” 2 Plaintiffs state that they “are charged with
representing their constituencies with respect to . . . labor-
2
Jeffrey Barke is on the Board of Directors of the Rossmoor
Community Services District. Ed Sachs is an elected member of the
Mission Viejo City Council. Laura Ferguson is a member of the San
Clemente City Council. Until 2020, Jim Reardon was an elected member
of the Board of Trustees of the Capistrano Unified School District.
Leighton Anderson is an elected member of the Whittier Union High
School District Board of Trustees. Phillip Yarbrough is the president of
the Rancho Santiago Community College District Board of Trustees.
Rodger Dohm is an elected member of the Ramona Unified School
District Board of Education.
BARKE V. BANKS 7
management issues.” Plaintiffs assert that they have
“occasion to speak on these topics during public hearings,
townhall meetings with constituents, and in the course of
reelection campaigns or candidate endorsements.” They add
that “[i]t is not unusual for Plaintiffs to engage directly in
labor-management discussions, to comment publicly on
bargaining proposals, or to take positions on the terms of a
proposed [collective bargaining agreement].”
Plaintiffs allege that after the enactment of section 3550
they “have refrained from speaking about issues relating to
public unions, even remaining silent as to issues bearing on
the governing board’s interactions with the employees’ labor
representative and even not responding to constituent or
employee questions relating to Janus.” 3 While PERB has
not taken any enforcement action against them or their
employers, Plaintiffs fear that if they speak out in this
manner they will “face the threat of unfair labor charges
against their agencies.” Plaintiffs claim that by speaking
candidly on these matters, “they would risk injury to (i) their
personal reputations . . . ; (ii) their ability to serve as
effective elected officials . . . ; and (iii) . . . their ability to get
re-elected.”
Plaintiffs filed this lawsuit against PERB alleging that
section 3550 violates the First Amendment because the
statute prohibits speech based on its content, and because the
3
As one specific example, Plaintiff Jim Reardon submitted a
declaration recalling that in his 2012 campaign for election he stated,
“Now more than ever, our school board must focus on education and not
union contracts that protect senior staff,” and that “I am able to see past
the heated rhetoric of education insiders to protect our students and
schools.” Reardon claims he would not make such a statement now on
the ground that it would result in a section 3550 charge against his public
employer.
8 BARKE V. BANKS
statute is unconstitutionally vague and overbroad. The
district court permitted five public-sector unions to intervene
as defendants (the “Union Defendants”). 4 PERB, joined by
the Union Defendants, moved to dismiss on the ground that
the district court lacked subject matter jurisdiction over the
case because Plaintiffs lacked standing to bring a pre-
enforcement challenge and their claims were not ripe for
adjudication.
The district court granted the motion to dismiss on both
grounds. With respect to standing, the district court
emphasized that section 3550 could only be enforced against
public employers, not Plaintiffs individually. Rejecting
Plaintiffs’ argument that the statute created a line-drawing
problem because it was impossible to know in advance
whether their speech would be attributed to their public
employers, the court held that Plaintiffs had “presented no
concrete plan to violate Section 3550, let alone one in which
it would not be clear whether a Plaintiff was speaking in their
official or individual capacity.” For the same reason, the
court found Plaintiffs had failed to show that there was a
reasonable likelihood the government would enforce the law
against them in the future. Alternatively, the district court
held that Plaintiffs’ claim was not ripe for review. The court
explained that the challenge was not constitutionally or
prudentially ripe for largely the same reasons that Plaintiffs
lacked standing, plus the fact that Plaintiffs had not
identified any hardship that would result if they could not
4
The Union Defendants are the California Teachers Association,
SEIU California State Council, the California Federation of Teachers,
the California School Employees Association, and the California Labor
Federation.
BARKE V. BANKS 9
obtain pre-enforcement review of the statute. Plaintiffs
appealed.
II
We review district court’s dismissal for lack of standing
de novo. Desert Water Agency v. U.S. Dep’t of the Interior,
849 F.3d 1250, 1253 (9th Cir. 2017). To establish Article III
standing, “a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or
imminent; (ii) that the injury was likely caused by the
defendant; and (iii) that the injury would likely be redressed
by judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2203 (2021). “[W]here a plaintiff has refrained from
engaging in expressive activity for fear of prosecution under
the challenged statute, such self-censorship is a
constitutionally sufficient injury as long as it is based on an
actual and well-founded fear that the challenged statute will
be enforced.” Libertarian Party of L.A. Cnty. v. Bowen,
709 F.3d 867, 870 (9th Cir. 2013) (alteration in original)
(quoting Hum. Life of Wash. Inc. v. Brumsickle, 624 F.3d
990, 1001 (9th Cir. 2010)).
We consider three factors in determining whether a
plaintiff faces a credible threat of enforcement, and thus has
suffered an “actual injury to a legally protected interest.”
Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1174 (9th
Cir. 2018). Those factors are: “1) the likelihood that the law
will be enforced against the plaintiff; 2) whether the plaintiff
has shown, ‘with some degree of concrete detail,’ that she
intends to violate the challenged law; and 3) whether the law
even applies to the plaintiff.” Id. at 1172 (quoting Lopez v.
Candaele, 630 F.3d 775, 786 (9th Cir. 2010)).
Plaintiffs allege that they are refraining from speaking
about issues related to public-sector unions out of fear that
10 BARKE V. BANKS
their speech will lead to their public employers being
charged with violations of section 3550. They argue that this
self-censorship constitutes an injury in fact. Even if the
statute would likely not be directly enforced against
Plaintiffs in their individual capacities, they claim to have a
well-founded fear that sanctions entered against their
employers based on Plaintiffs’ speech would nevertheless
cause Plaintiffs to suffer: (1) reputational harm; (2) harm to
their abilities to serve as effective elected officials; and
(3) harm to their abilities to get reelected.
Although intangible reputational harms can be
sufficiently concrete to create Article III standing,
TransUnion LLC, 141 S. Ct. at 2204, in the pre-enforcement
context Plaintiffs must still show that the statute applies to
them and is likely to be enforced in a way that causes the
feared harm, Italian Colors Rest., 878 F.3d at 1171–72.
Plaintiffs have failed to meet that burden here.
Our prior decision in Leonard v. Clark is instructive.
12 F.3d 885 (9th Cir. 1993), as amended (Mar. 8, 1994).
Leonard involved a collective bargaining agreement that
restricted a union’s ability to “specifically endorse[] or
sponsor[]” legislation that would benefit the union’s
members. 12 F.3d at 886. Certain members of the union
sued, arguing that this provision violated their individual
First Amendment rights. Id. at 886–87. We held that the
plaintiffs lacked standing, noting that the bargaining
agreement provision “by its plain language applies only to
the Union and not to its individual members.” Id. at 888.
We noted that “[t]he individual plaintiffs have not shown
that [the bargaining agreement] in any way inhibits their
freedom to speak as individuals.” Id. Therefore, we
reasoned, “the only chill implicating the First Amendment
here is on the speech of these agents when they act under
BARKE V. BANKS 11
authority from their principal, the Union,” and only the
union had standing to assert its free speech rights. Id. at 889.
The same principles apply here. Like the collective
bargaining agreement in Leonard, section 3550 does not
regulate speech made by Plaintiffs in their individual
capacities; the statute only impacts them to the extent their
speech can be attributed to their “public employer[s].” Cal.
Gov’t Code § 3550. “[W]hen public employees make
statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes,”
and therefore restrictions on such speech do not implicate the
employees’ individual constitutional rights. Garcetti v.
Ceballos, 547 U.S. 410, 421–22 (2006). Thus, section 3550
does not regulate Plaintiffs’ individual speech, and any
restrictions the statute does impose on Plaintiffs’ ability to
speak on behalf of their employers do not injure Plaintiffs’
constitutionally protected individual interests. See id.
Plaintiffs respond to Leonard in two ways. First, they
assert that PERB will erroneously attribute statements
Plaintiffs make in their individual capacities—such as
campaign statements, statements made during debates, and
statements to constituents—to their public employers,
resulting in allegations of section 3550 violations. But
neither the record nor the authorities cited by Plaintiffs
demonstrate that there is a “credible threat” of section 3550
being enforced in this manner. Italian Colors Rest., 878 F.3d
at 1171. To the contrary, PERB concedes that much of the
speech Plaintiffs allege they want to engage in constitutes
individual speech to which section 3550 does not apply. For
example, in its briefing to the district court, PERB stated that
“[p]rivate speech by an individual—including campaign
speech—cannot reasonably be viewed as the speech of a
public employer under section 3550.” In its appellate brief,
12 BARKE V. BANKS
PERB emphasized that “[s]ection 3550 does not apply to all
speech by public officials in their official capacities, only
that of public employers and their agents.” And at argument,
PERB’s counsel stated that it generally would not be
reasonable to view debate by elected officials on “various
policy positions” as attributable to the government itself.
Nor would it be reasonable, in PERB’s view, to attribute
statements made by an individual board member during a
meeting to the board as a whole, at least where the meeting
is attended by multiple board members and there are no other
indicia that the individual board member purports to speak
on the board’s behalf. 5 See United Tchrs. L.A. v. All. Marc
& Eva Stern Math & Sci. High Sch., 46 PERC ¶ 82, PERB
Decision No. 2795, 2021 WL 5450674 (Nov. 3, 2021)
(noting that “an elected official’s political speech, answer to
a constituent question, or other communication where such
speech does not manifest employer authority” cannot be
imputed to the official’s public employer). Further, the
administrative decisions and caselaw cited by Plaintiffs do
not establish that there is a credible threat PERB will apply
section 3550 in a manner inconsistent with these
concessions. Thus, Plaintiffs have not established that they
have standing to bring their pre-enforcement challenge to the
statute.
Second, even if Leonard applies, Plaintiffs ask us to
clarify that Leonard stands for the proposition that an agent’s
speech can only be attributed to the agent’s principal if the
5
The Union Defendants take a similar position, stating that
“[s]ection 3550 does not prohibit Plaintiffs from expressing their own
personal policy preferences during legislative or electoral debates or in
meetings with constituents. Reasonable observers understand the
difference between an official expressing personal policy views and an
official speaking for or threatening to take action on behalf of the
government.”
BARKE V. BANKS 13
agent both has actual authority to make the statement and
expressly claims to be speaking on behalf of the principal.
See Leonard, 12 F.3d at 889. Plaintiffs assert that applying
this test would alleviate their concerns with section 3550
because they would have more control over when their
speech would be imputed to their employers.
We do not read Leonard as creating such a standard.
Leonard stated that the collective bargaining agreement
restricted the plaintiffs from speaking “when they act under
authority from their principal,” and cited several sections
from the Restatement (Second) of Agency setting forth
examples of how this authority could be created. Leonard,
12 F.3d at 889. Those sections do not support the
proposition that agents need to have—and explicitly claim
to have—actual authority from their principal before acting
on the principal’s behalf. For example, the Restatement
(Second) discusses the concept of apparent authority, which
is created when the principal’s conduct, “reasonably
interpreted, causes [a] third person to believe that the
principal consents to have the act done on his behalf by the
person purporting to act for him.” Restatement (Second) of
Agency § 27 (Am. L. Inst. 1958); Leonard, 12 F.3d at 889.
We have more recently held that speech can be imputed to
the government under a similar standard, not only where the
principal has conferred actual authority to make a statement
to an agent and the agent explicitly claims to have this
authority. See Eagle Point Educ. Ass’n/SOBC/OEA v.
Jackson Cnty. Sch. Dist. No. 9, 880 F.3d 1097, 1103 (9th Cir.
2018) (stating the focus of the inquiry is “whether a
reasonable observer would view the statement made . . . to
be a statement by the government”). Thus, our subsequent
caselaw establishes that there is no ironclad requirement that
an agent have actual authority to make a statement, and
14 BARKE V. BANKS
claim to have such authority, before the statement can be
imputed to the agent’s principal. 6
For these reasons, we hold that Plaintiffs have failed to
demonstrate that they have suffered an injury in fact
sufficient to establish their standing to pursue their pre-
enforcement challenge. 7
III
Plaintiffs also argue that the district court should have
granted them leave to amend the complaint, and that any
dismissal should have been without prejudice. We review
the district court’s rulings on these issues for abuse of
discretion. Nat’l Council of La Raza v. Cegavske, 800 F.3d
1032, 1045 (9th Cir. 2015).
The district court did not abuse its discretion by denying
Plaintiffs leave to amend. While “[i]t is black-letter law that
a district court must give plaintiffs at least one chance to
amend a deficient complaint,” that presumption can be
6
Plaintiffs acknowledge that the government speech doctrine
generally allows the state to regulate employees’ speech when they act
in their official capacities, but they argue that elected officials are exempt
from this doctrine. While restrictions on the speech of elected officials
may present different concerns than restrictions on the speech of line
employees, those concerns are generally centered on whether the
challenged law infringes upon the officials’ “core political speech.” See,
e.g., City of El Cenizo v. Texas, 890 F.3d 164, 184–85 (5th Cir. 2018).
Given PERB’s concession that Plaintiffs’ political speech is individual
speech not subject to section 3550, we decline—in this pre-enforcement
context—to address whether the government speech doctrine is
categorically inapplicable to elected officials.
7
Because we affirm the district court’s holding that Plaintiffs lack
standing, we decline to address its alternative ruling that Plaintiffs’
claims are not ripe for judicial review.
BARKE V. BANKS 15
overcome where there has been “a clear showing that
amendment would be futile.” Id. at 1041. The district court
gave Plaintiffs an opportunity to state what additional details
they would add to their complaint if given the opportunity
and Plaintiffs did not do so, instead arguing that their
existing allegations were sufficient. Nor have Plaintiffs
identified on appeal what additional allegations they would
add that would demonstrate they face a credible threat that
PERB will attribute their protected individual speech to their
public employers. Plaintiffs have thus failed to show that the
district court erred in determining that any amendment
would be futile.
However, dismissals for lack of Article III jurisdiction
must be entered without prejudice because a court that lacks
jurisdiction “is powerless to reach the merits.” Fleck &
Assocs., Inc. v. Phoenix, City of, an Ariz. Mun. Corp.,
471 F.3d 1100, 1106–07 (9th Cir. 2006). Both PERB and
the Union Defendants concede that the district court erred by
dismissing the case with prejudice. We agree, and thus
remand the case to the district court to enter judgment
dismissing the case without prejudice.
IV
For the reasons set forth above, the district court’s
decision to dismiss Plaintiffs’ complaint without leave to
amend is AFFIRMED. The case is REMANDED for the
district court to enter judgment dismissing the case without
prejudice. Each party is to bear its own costs.