NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL CRAINE, 

Plaintiff-Appellant, 

 v. 

AMERICAN FEDERATION OF STATE, 

COUNTY, AND MUNICIPAL 

EMPLOYEES COUNCIL 36, LOCAL 119, 

an employee organization; COUNTY OF 

LOS ANGELES, a public agency; ROB 

BONTA, in his official capacity as Attorney 

General of California, 

Defendants-Appellees.

No. 23-55206 

D.C. No. 

2:22-cv-03310-DSF-SK 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

CAMILLE BOURQUE, individual; PETER 

MOREJON, individual, 

Plaintiffs-Appellants, 

 v. 

ENGINEERS AND ARCHITECTS 

ASSOCIATION, a labor organization; CITY 

No. 23-55369 

D.C. No. 

2:21-cv-04006-JAK-PVC 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

APR 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

OF LOS ANGELES; ROB BONTA, in his 

official capacity as Attorney General of 

California, 

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted March 8, 2024

Pasadena, California

Before: CLIFTON, H.A. THOMAS, and DESAI, Circuit Judges.

Plaintiff Michael Craine is an employee of the County of Los Angeles. He

alleges that he had dues deducted from his wages without his authorization and 

sent to the American Federation of State, County, and Municipal Employees 

Council 36, Local 119 (“AFSCME”), the exclusive bargaining representative for 

his unit. Plaintiffs Camille Bourque and Peter Morejon are employees of the City 

of Los Angeles. They allege that they had dues deducted from their wages without 

their authorization and sent to the Engineers and Architects Association (“EAA”), 

the exclusive bargaining representative for their units; indeed, Bourque alleges that 

she never joined EAA. Plaintiffs raise First and Fourteenth Amendment claims 

against the unions, their respective municipal employers, and California Attorney 

General Rob Bonta. The district court granted Defendants’ motions to dismiss. We 

have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s 
3 

dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure 

to state a claim under Rule 12(b)(6). Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 

F.4th 867, 878 (9th Cir. 2022). We affirm. 

1. The district court properly dismissed Morejon’s claims for prospective 

relief for a lack of standing. Morejon was removed from EAA’s member list and 

all deductions from his wages ceased before he filed his complaint. Allegations of 

past injury alone, with only a highly speculative potential for future unauthorized 

dues deductions, are insufficient to establish standing. Wright v. Serv. Emps. Int’l 

Union Loc. 503, 48 F.4th 1112, 1118–21 (9th Cir. 2022), cert. denied, 143 S. Ct. 

749 (2023). 

2. The district court properly dismissed Plaintiffs’ claims for prospective 

relief as moot. The unions have refunded the money at issue and added Plaintiffs’ 

names to a list they sent to the municipalities containing the names of members 

who have cancelled their dues authorization. When a defendant voluntarily ceases 

allegedly unlawful conduct, that defendant “bears 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). Here, Defendants have carried their burden. 

Plaintiffs are unlikely to authorize such deductions, and the deductions are 

therefore unlikely ever to resume.
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3. The district court properly dismissed Plaintiffs’ claims against the 

Attorney General because they are barred by Eleventh Amendment sovereign 

immunity.1 We have recognized that, “‘absent waiver by the State or valid 

congressional override,’ 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) (quoting 

Kentucky v. Graham, 473 U.S. 159, 166–69 (1985)). Plaintiffs have not shown 

waiver by the State or a valid congressional override. 

Plaintiffs’ argument that the Ex parte Young doctrine applies is unavailing. 

Plaintiffs’ complaints include no allegations against the Attorney General beyond 

stating that he is “sued in his official capacity as the representative of the State of 

California charged with the enforcement of state laws . . . .” But this “generalized 

duty to enforce state law or general supervisory power over the persons responsible 

for enforcing the challenged provision” is not enough to subject the Attorney 

General to suit. L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). And 

Plaintiffs identify no ongoing violation of federal law, as the unions have

1 Appellants filed motions for judicial notice of the Attorney General’s motion for 

intervention in a pending case before the U.S. District Court for the Central District 

of California. The district court case is not relevant, however, as it involves a 

different state law. As such, the Motion for Judicial Notice, Dkt. No. 46, Case No. 

23-55206, and the Motion for Judicial Notice, Dkt. No. 39, Case No. 23-55369, are 

DENIED. 
5 

processed their membership resignations and refunded all money at issue. See 

Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (noting 

that courts determine whether Ex parte Young overcomes an Eleventh Amendment 

bar to suit by conducting a “straightforward inquiry into whether [the] complaint 

alleges an ongoing violation of federal law and seeks relief properly characterized 

as prospective” (alteration in original) (quoting Idaho v. Coeur d’Alene Tribe of 

Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring))). 

4. The district court properly dismissed Plaintiffs’ claims against the unions 

for lack of state action. Actions by a private actor may be subject to Section 1983 

liability if the plaintiff can show that the conduct was “fairly attributable to the 

State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). To establish fair 

attribution, two criteria must be met: (1) “the deprivation must be caused by the 

exercise of some right or privilege created by the State or by a rule of conduct 

imposed the [S]tate or by a person for whom the State is responsible,” and (2) “the 

party charged with the deprivation must be a person who may fairly be said to be a 

state actor.” Id.

First, Plaintiffs’ allegations that the unions failed to timely process their 

resignations and notify their municipal employers amount to a “private misuse of a 

state statute” that is “contrary to the relevant policy articulated by the State.” 

Wright, 48 F.4th at 1123 (quoting Lugar, 457 U.S. at 940–41). As such, Plaintiffs 
6 

cannot satisfy the first Lugar prong. 

Second, we reject Plaintiffs’ argument that the unions are state actors under 

the “joint action” or “governmental nexus” tests. See Tsao v. Desert Palace, Inc., 

698 F.3d 1128, 1140 (9th Cir. 2012). We have held that the mere fact that a state 

transmits dues payments to a union does not give rise to a Section 1983 claim 

against a union under these tests. Belgau v. Inslee, 975 F.3d 940, 947–49 (9th Cir. 

2020), cert. denied, 141 S. Ct. 2795 (2021); see also Wright, 48 F.4th at 1122 n.6 

(noting that the joint action test “largely subsume[s]” the governmental nexus test

(quoting Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 996 n.13 (9th Cir. 2013))). 

And a state employer’s “ministerial processing of payroll deductions” does not 

create a sufficient nexus between the state and a union to subject the union to 

Section 1983 liability. Belgau, 975 F.3d at 948; see also Wright, 48 F.4th at 1123–

24. Accordingly, Plaintiffs cannot satisfy the second Lugar prong. 

5. The district court properly dismissed Plaintiffs’ claims against the 

municipalities for failure to establish Monell liability. See Monell v. Dep’t of Soc. 

Servs. of City of New York, 436 U.S. 658, 694 (1978). Plaintiffs do not allege that 

the municipalities intended to withhold unauthorized dues. See Ochoa v. Pub. 

Consulting Grp., Inc., 48 F.4th 1102, 1110 (9th Cir. 2022), cert. denied, 143 S. Ct. 

783 (2023). Nor have Plaintiffs alleged that the municipalities were “even aware 

that the deductions were unauthorized.” Id. We have noted that “Janus imposes no 
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affirmative duty on government entities to ensure that membership agreements and

dues deductions are genuine,” and “does not require that [a state] ensure the

accuracy of [a union’s] certification of those employees who have authorized dues 

deductions.” Wright, 48 F.4th at 1125 (citing Janus v. Am. Fed’n of State, Cnty., & 

Mun. Emps., Council 31, 585 U.S. 878, 929–30 (2018)).

Plaintiffs also cannot point to any deliberate choice the municipalities made,

as the municipalities had to comply with California state law requiring them to 

deduct dues in reliance on the unions’ representations. See Connick v. Thompson, 

563 U.S. 51, 60 (2011) (“[U]nder § 1983, local governments are responsible only 

for ‘their own illegal acts.’” (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 

(1986))); Castro v. County of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (en 

banc) (“The custom or policy must be a ‘deliberate choice to follow a course of 

action . . . made from among various alternatives by the official or officials 

responsible for establishing final policy with respect to the subject matter in 

question.’” (quoting Pembaur, 475 U.S. at 483)). 

AFFIRMED.