NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT WILFORD; et al., 

Plaintiffs-Appellants, 

 v. 

NATIONAL EDUCATION 

ASSOCIATION OF THE UNITED 

STATES; et al., 

Defendants-Appellees, 

 and 

ATTORNEY GENERAL FOR THE STATE 

OF CALIFORNIA, 

Intervenor-DefendantAppellee.

No. 19-55712 

D.C. No. 8:18-cv-01169-JLS-DFM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Submitted January 19, 2022**

* 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). Appellants’ request for oral 

argument, set forth in the opening brief, is denied.

FILED

JAN 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 19-55712 

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Scott Wilford, Bonnie Hayhurst, Rebecca Friedrichs, Michael Monge, 

Harlan Elrich, Jelena Figueroa, and Gene Gray appeal from the district court’s 

judgment dismissing their 42 U.S.C. § 1983 putative class action alleging First

Amendment and state law claims arising out of compulsory agency fees. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to 

state a claim and for lack of subject matter jurisdiction. Serra v. Lappin, 600 F.3d 

1191, 1195-96 (9th Cir. 2010). We affirm. 

The district court properly dismissed plaintiffs’ claim for retrospective 

monetary relief 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, 2486 (2018). Danielson v. Inslee, 945 F.3d 1096, 1097-99, 

1102-03 (9th Cir. 2019), cert. denied, 141 S. Ct. 1265 (2021) (explaining that 

plaintiffs’ claim for monetary relief was for damages and not restitution, but 

“[e]ven accepting Plaintiffs’ restitutionary premise, the equities do not weigh in 

favor of requiring a refund of all agency fees collected pre-Janus”).

The district court properly dismissed as moot plaintiffs’ claims for 

prospective relief because defendants stopped deducting and receiving agency fees 
 3 19-55712 

after the Supreme Court’s decision in Janus disallowed the deduction or receipt of 

agency fees in their collective bargaining agreements, stopped enforcing statutes 

permitting the deduction of agency fees, and demonstrated that they are unlikely to 

rescind the policy changes. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. 

(TOC), Inc., 528 U.S. 167, 189-90 (2000) (explaining voluntary cessation and 

mootness); cf. Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th 

Cir. 2000) (en banc) (explaining that the mere existence of a proscriptive statute 

does not create a constitutionally sufficient direct injury).

The district court properly dismissed plaintiffs’ state law claims because 

plaintiffs failed to allege facts sufficient to state a plausible claim. See Cal. Gov’t 

Code § 3515.7 (permitting collection of agency fees); City of San Jose v. 

Operating Eng’rs Local Union No. 3, 232 P.3d 701, 705-07 (Cal. 2010)

(explaining that California’s Public Employment Relations Board has exclusive 

jurisdiction over activities arguably protected or prohibited by the state’s relevant 

labor law, including unfair practices); El Rancho Unified Sch. Dist. v. Nat’l Educ. 

Ass’n, 663 P.2d 893, 901-02 (Cal. 1983) (setting forth California’s preemption 

doctrine).

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.