ATISHMA KANT; MARLENE HERNANDEZ, individuals v. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 721, a labor organization

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ATISHMA KANT; MARLENE
HERNANDEZ, individuals,
Plaintiffs-Appellants,
v.
SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 721, a
labor organization; ROB BONTA, in his
official capacity as Attorney General of
California,
Defendants-Appellees.
No. 22-55904
D.C. No.
5:21-cv-01153-FMO-SHK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Submitted October 19, 2023**
San Francisco, California
Before: W. FLETCHER, NGUYEN, and R. NELSON, Circuit Judges.
After they resigned their union membership, Atishma Kant and Marlene
* 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).
FILED
OCT 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Hernandez (plaintiffs) sued their former union Service Employees International
Union Local 721 (SEIU) and Rob Bonta, the Attorney General of California. They
alleged that—under laws enforced by Attorney General Bonta—their employer, the
Superior Court of California, continued deducting union dues from their wages and
giving those dues to SEIU in violation of their First and Fourteenth Amendment
rights under Janus v. American Federation of State, County, and Municipal
Employees, Council 31, 138 S. Ct. 2448 (2018). They also raised state contract-law
claims. The district court dismissed their claims, and they appealed. We have
jurisdiction under 28 U.S.C. § 1291 and review de novo. Wright v. SEIU Loc. 503,
48 F.4th 1112, 1118 n.3 (9th Cir. 2022) (subsequent history omitted). We affirm.
1. Plaintiffs’ claims for prospective relief are moot because defendants have
refunded the money at issue. Article III jurisdiction extends only to live cases and
controversies. Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). But voluntary
cessation only moots a claim if the defendant carries the “formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000).
SEIU and the Attorney General have carried that “formidable” burden. After
this case was filed, SEIU told the Superior Court to stop deducting plaintiffs’ wages
and reimbursed the union dues that the Superior Court took after plaintiffs withdrew

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from union membership. Under California Government Code section 1157.12, the
Superior Court can only make deductions for union dues if SEIU certifies that
plaintiffs authorized such deductions. Plaintiffs are unlikely to authorize such
deductions again, and the deductions are therefore unlikely ever to resume. Attorney
General Bonta is entitled to a presumption of regularity and there is no evidence that
he would violate California law by certifying to the Superior Court that plaintiffs
reauthorized deductions. See United States v. Chem. Found., Inc., 272 U.S. 1, 14–
15 (1926). Even if plaintiffs did reauthorize deductions at some future point, the
task of telling the Superior Court to resume those deductions falls to SEIU, not the
Attorney General.
2. Plaintiffs cannot bring retrospective section 1983 claims against SEIU.
SEIU did not act as a state actor when it relied on plaintiffs’ authorizations to deduct
union dues from their wages. Section 1983 liability attaches to private action if the
private conduct was “fairly attributable to the State.” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982). That requirement is not met here. See Belgau v. Inslee,
975 F.3d 940, 946–47 (9th Cir. 2020).
Belgau is not distinguishable because plaintiffs are challenging the Superior
Court’s decision to enter the memorandum of understanding with SEIU. When
plaintiffs joined SEIU, they agreed to be “bound by the Constitution and Bylaws of
the Union and by any contracts that may be in existence at the time of application or

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that may be negotiated by the Union.” While California contract law might address
the legality of such a contract, a union entering into a contract with a government
employer does not engage in state action.
3. Sovereign immunity bars the retroactive claims for nominal and
compensatory damages against Attorney General Bonta. Parties can sue state
officers with “some connection with the enforcement of” a challenged law for
prospective and declaratory relief. Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir.
1998). However, “state sovereign immunity protects state officer defendants sued
in federal court in their official capacities from liability in damages, including
nominal damages.” Platt v. Moore, 15 F.4th 895, 910 (9th Cir. 2021). Plaintiffs do
not argue that sovereign immunity has been waived or abrogated. The Eleventh
Amendment thus bars their claims for damages against the Attorney General.
4. The district court properly declined to exercise supplemental jurisdiction
and dismissed the state contract-law claims without prejudice after it dismissed the
federal claims against SEIU and Attorney General Bonta. See Wade v. Reg’l Credit
Ass’n, 87 F.3d 1098, 1101 (9th Cir. 1996).
AFFIRMED.

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