FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APRIL BAIN; BHAVINI BHAKTA;

CLARE SOBETSKI,

Plaintiffs-Appellants,

v.

CALIFORNIA TEACHERS 

ASSOCIATION; NATIONAL 

EDUCATION ASSOCIATION;

CALIFORNIA FEDERATION OF 

TEACHERS; AMERICAN FEDERATION 

OF TEACHERS; UNITED TEACHERS 

LOS ANGELES; UNITED TEACHERS OF 

RICHMOND CTA/NEA; RAMON 

CORTINES, in his capacity as 

Superintendent of Los Angeles 

Unified School District; BRUCE 

HARTER, in his capacity as 

Superintendent of West Contra Costa 

Unified School District; DAVID 

VANNASDALL, in his capacity as 

Superintendent of Arcadia Unified 

School District,

Defendants-Appellees.

No. 16-55768

D.C. No.

2:15-cv-02465-

SVW-AJW

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding
2 BAIN V. CALIF. TEACHERS ASS’N

Argued and Submitted December 6, 2017

Pasadena, California 

Filed June 11, 2018

Before: Paul J. Kelly, Jr.,* Consuelo M. Callahan,

and Carlos T. Bea, Circuit Judges. 

Opinion by Judge Callahan

SUMMARY**

Civil Rights

The panel dismissed as moot an appeal by public school 

teacher plaintiffs from the district court’s dismissal of their 

action alleging that their Unions’ requirement that they pay 

a fee to support the Unions’ political and ideological 

activities violated their constitutional right to free speech.

The panel determined that a change in plaintiffs’ 

professional circumstances during the pendency of this 

appeal fundamentally altered the posture of this case. 

Because plaintiffs had disassociated from their respective 

Unions, they could no longer benefit from the injunctive and 

declaratory relief they sought, and therefore their appeal was 

moot. The panel rejected plaintiffs’ attempt to transform 

 * The Honorable Paul J. Kelly, Jr., United States Circuit Judge for 

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BAIN V. CALIF. TEACHERS ASS’N 3

their lawsuit from a request for prospective equitable relief 

into a plea for money damages. The panel noted that 

plaintiffs had consistently represented throughout the 

litigation that they were seeking only declaratory and 

injunctive relief.

The panel further denied plaintiffs’ motion to add an 

organizational plaintiff, the Association of American 

Educators, to their suit under Federal Rule of Civil 

Procedure 21. The panel held that Rule 21 may not be used 

to rehabilitate a court’s jurisdiction where a case becomes 

moot on appeal. The panel further held that even if mootness 

were not an insurmountable barrier to considering a Rule 21 

motion, the panel would still deny the motion because 

Association failed to satisfy the criteria for Rule 21 joinder. 

The panel dismissed plaintiffs’ appeal and remanded to the 

district court with instructions to dismiss the case without 

vacating its judgment.

COUNSEL

Joshua S. Lipshutz (argued), Gibson Dunn & Crutcher LLP,

San Francisco, California; Theodore J. Boutrous Jr.,

Marcellus McRae, and Samuel Eckman, Gibson Dunn & 

Crutcher LLP, Los Angeles, California; Kyle Hawkins, 

Gibson Dunn & Crutcher LLP, Dallas, Texas; Michael R. 

Huston, Gibson Dunn & Crutcher LLP, Washington, D.C.; 

for Plaintiffs-Appellants.

Eric A. Harrington (argued), Jason Walta, and Alice 

O’Brien, National Education Association, Washington, 

D.C., for Defendants-Appellees.
4 BAIN V. CALIF. TEACHERS ASS’N

OPINION

CALLAHAN, Circuit Judge:

Plaintiffs-Appellants are public school teachers in 

California who were, at the time they filed their lawsuit, 

members of the Defendants-Appellees public sector 

teachers’ Unions. Plaintiffs claim that their Unions’ 

requirement that they pay a fee to support the Unions’ 

political and ideological activities violates their 

constitutional right to free speech. While “[public sector] 

union[s] remain[] as free as any other entity to participate in 

the electoral process with all available funds other than [] 

state-coerced agency fees lacking affirmative permission,” 

Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 190 

(2007), Plaintiffs reason that, as exclusive bargaining 

representatives under California law, the Unions are state 

actors and thus subject to the First Amendment’s 

proscriptions. And because the First Amendment prohibits 

state actors from infringing individuals’ right to free speech, 

Plaintiffs argue that their Unions’ requirement that Union 

members pay a political fee violates their and other 

members’ constitutional rights.

A change in Plaintiffs’ professional circumstances 

during the pendency of this appeal fundamentally alters the 

posture of this case. Plaintiffs have disassociated from their 

respective Unions, meaning they can no longer benefit from 

the injunctive and declaratory relief they seek. Their appeal 

is therefore moot. Perhaps cognizant of the consequences of 

their actions, Plaintiffs have filed a motion to add the 

Association of American Educators (“AAE”) to their suit as 

an organizational Plaintiff under Federal Rule of Civil 

Procedure 21. But because we hold that Rule 21 is an 

improper vehicle to resuscitate a moot case, we deny the 

motion and dismiss Plaintiffs’ appeal as moot.
BAIN V. CALIF. TEACHERS ASS’N 5

I.

California law accommodates agency shop1

arrangements between public sector teachers’ unions and 

public school employers. Cal. Gov’t Code §§ 3343.1; 3544–

3544.9. To establish a union, public school teachers must 

first form a bargaining unit. Id. § 3344. If a majority of 

teachers in the unit elect to negotiate collectively with their 

employer, then the union “may become the exclusive 

representative for the employees of [that] unit for purposes 

of meeting and negotiating.” Id. § 3544(a), (b). Once a 

union gains status as the exclusive bargaining representative, 

the public employer may bargain with only that union. Id.

§ 3543.1(a).

Like many States, California allows public sector unions 

to charge a “fair share service fee”—commonly known as an 

“agency fee”—to those public employees who do not join 

the exclusive bargaining representative. Id. §§ 3543(a), 

3546. Nonmembers pay less than their union-member 

counterparts because California law permits a union to 

charge nonmembers only “chargeable fees”—i.e., fees 

related to a union’s collective bargaining activities.2 Id.

§ 3546(a). Union members, by contrast, are subject to the 

internal rules of the union, which, as is pertinent here, 

 1 An “agency shop” differs from a “union shop”—a term used in 

some of the cases cited in this opinion—in that the former refers to 

unions in which membership is voluntary, whereas a “union shop” 

arrangement means that all employees are technically union members. 

Kidwell v. Transp. Commc’ns Int’l Union, 946 F.2d 283, 291 (4th Cir. 

1991).

2 The schools automatically deduct these “chargeable fees” from all 

teachers’ paychecks. Cal. Gov’t Code § 3543.1(d); see Cal. Educ. Code 

§§ 45060, 45061, 45061.5, 45168.
6 BAIN V. CALIF. TEACHERS ASS’N

include paying “non-chargeable fees”—e.g., fees that fund 

members-only benefits and the union’s political, ideological, 

and other activities unrelated to collective bargaining. See 

id. § 3543.1(d). Supreme Court precedent and California 

law prohibit unions from charging objecting nonmembers

for the unions’ First Amendment-protected expressive 

political activities. Abood v. Detroit Bd. of Ed., 431 U.S. 

209, 234–36 (1977); Cumero v. Pub. Emp’t Relations Bd., 

49 Cal. 3d 575, 594 (1989).

Consistent with their own internal policies, the Unions in 

the instant matter provide certain members-only benefits. 

For example, Union members enjoy the privilege of voting 

on collective bargaining agreements (“CBA”) and sitting on 

school district committees. In addition, the Unions provide 

employment-related benefits such as disability insurance, 

free legal representation, life insurance, death and 

dismemberment benefits, and disaster relief. Nonmembers 

are not entitled to these benefits, nor are they charged for 

them. Cumero, 49 Cal. 3d at 587–88 (under California law, 

nonmembers “should not be required to support activities 

which are beyond the Association’s representational 

obligations” (emphasis in original)). And while the Unions 

could negotiate for state-offered insurance benefits in the 

collective bargaining process—e.g., California’s State 

Disability Insurance and Paid Family Leave (“SDI”) 

program—they have opted not to do so and instead offer 

alternative insurance to their members.3

 3 If the Unions did negotiate for SDI, then such insurance would be 

provided to all teachers—members and nonmembers alike. By the same 

token, all teachers would be required to pay insurance premiums on the 

policies. Cal. Unemp. Ins. Code § 710.4.
BAIN V. CALIF. TEACHERS ASS’N 7

Plaintiffs April Bain, Clare Sobetski, and Bhavini 

Bhakta were public school teachers in California who 

elected to join the Unions. They are no longer Union 

members, however, because they have left their teaching 

positions. Bain’s Union membership ended in June 2017 

and Sobetski’s ended in August 2017. For her part, Bhakta’s 

Union membership ended in August 2016 when she was 

promoted to Assistant Principal at Arcadia High School, a 

position that makes her ineligible for Union membership.

II.

Plaintiffs filed their operative Second Amended 

Complaint (“SAC”) in October 2015 in the Central District 

of California as a 42 U.S.C. § 1983 civil rights action. Both 

in the district court and on appeal, Plaintiffs claim violations 

of their right to free speech under the First Amendment and 

Article I, § 2(a) of the California Constitution.4 Plaintiffs 

argue that the Unions and state School Boards work together 

to force teachers to either finance the Unions’ political 

activities and thereby surrender their free speech rights, or 

forgo the benefits of union membership and keep their 

constitutional rights intact. Plaintiffs assert that because 

membership benefits are so enticing, most teachers will 

acquiesce, join the Unions, and pay the non-chargeable—

i.e., political—fee.

 4 The First Amendment to the U.S. Constitution provides that 

“Congress shall make no law . . . abridging the freedom of speech, or of 

the press; or the right of the people peaceably to assemble, and to petition 

the Government for a redress of grievances.” Article I, § 2(a) of the 

California Constitution provides that “[e]very person may freely speak, 

write and publish his or her sentiments on all subjects, being responsible 

for the abuse of this right. A law may not restrain or abridge liberty of 

speech or press.”
8 BAIN V. CALIF. TEACHERS ASS’N

Plaintiffs seek declaratory relief in the form of (1) a 

declaration that California’s agency shop laws, collective 

bargaining laws, and the CBAs entered into the by the 

Unions violate their constitutional rights; (2) a declaration 

that those laws and CBAs coerce teachers into funding the 

Unions’ political activities in violation of their constitutional 

rights; and (3) a declaration that those laws and CBAs violate 

Plaintiffs’ constitutional rights by forcing school 

superintendents to deduct from teachers’ paychecks dues 

that support the Unions’ non-chargeable activities. Plaintiffs 

also seek an injunction (1) barring the Unions from denying 

Union membership or any of its privileges based on a 

teacher’s refusal to pay the non-chargeable fee; and 

(2) barring school superintendents from deducting the nonchargeable fee from Union members’ paychecks. Finally, 

Plaintiffs seek “such additional or different relief as [the 

district court] deems just and proper, including an award of 

reasonable attorneys’ fees and the costs of this action.”

The Unions filed a motion to dismiss the SAC under 

Federal Rule of Civil Procedure 12(b)(6), which the district 

court granted with prejudice. The court rejected Plaintiffs’ 

argument that the Unions’ internal membership rules 

requiring their members to pay the non-chargeable fee 

constitute state action. The court found unpersuasive 

Plaintiffs’ theory that “the choice [teachers] face between the 

benefits of union membership and the lack of benefits of 

nonmember status ‘is a product of state action because the 

coercion that California teachers experience could not exist 

without the State.’” To the contrary, the court found that 

because the Unions could decide, without any intervention 

by the State, not to require their members to pay nonchargeable fees, Plaintiffs challenged only a private decision 

by the Unions.
BAIN V. CALIF. TEACHERS ASS’N 9

The district court also rejected Plaintiffs’ argument that 

the CBAs negotiated by the State and the Unions are infused 

with state action through state legislation authorizing agency 

shops. The court noted that the “agency shop arrangement 

established by the State does not compel employees to 

finance union activities unrelated to collective bargaining 

unless they choose to join a union.” (emphasis added). 

Citing the Fourth Circuit’s decision in Kidwell v. 

Transportation Communications International Union, 

946 F.2d 283 (4th Cir. 1991), the court reasoned that the 

State’s recognition of the Unions as collective bargaining 

representatives did not transform the Unions’ “internal 

policies and practices” into state action. Accordingly, 

because Plaintiffs failed to show that the Unions qua “state 

actors” had infringed their constitutional rights, the district 

court found no actionable claim for relief and dismissed the 

case. Plaintiffs timely appealed.

III.

We review a district court’s grant of a Rule 12(b)(6) 

motion to dismiss for failure to state a claim de novo. 

Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 

2004). “A motion under Rule 12(b)(6) should be granted 

only if ‘it appears beyond doubt that the plaintiff can prove 

no set of facts in support of his claim which would entitle 

him to relief,’ construing the complaint in the light most 

favorable to the plaintiff.” Id. (internal citation omitted)

(quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). “To 

survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (internal quotation marks 

omitted). “Threadbare recitals of the elements of a cause of 
10 BAIN V. CALIF. TEACHERS ASS’N

action, supported by mere conclusory statements, do not 

suffice.” Id.

IV.

We must first decide whether Plaintiffs’ appeal is moot 

in light of their disassociation from the Unions. “[A]n actual 

controversy must be extant at all stages of review, not merely 

at the time the complaint is filed.” Arizonans for Official

English v. Arizona, 520 U.S. 43, 67 (1997) (internal 

quotation marks and citation omitted). Thus, a plaintiff must 

satisfy the irreducible constitutional minimum of Article III 

standing at each stage of the litigation, including on appeal. 

Standing requires a showing that a plaintiff has suffered an 

(1) injury-in-fact that is actual or imminent and concrete and 

particularized, rather than speculative or hypothetical; 

(2) which is fairly traceable to the conduct complained of; 

and (3) which is likely to be redressed by a favorable ruling. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

Plaintiffs argue that a live controversy persists despite 

the termination of their memberships in the Unions. First, 

Plaintiffs rely on a catch-all claim for relief in their SAC, 

which seeks “such additional or different relief as [the 

district court] deems just and proper.” Second, Plaintiffs 

argue that the district court could “issue restitution or other 

equitable relief on its own.” Third, Plaintiffs reason that 

because Bhakta still lives in California and works for one of 

the school districts represented by a Union, she has standing 

because it is conceivable she could rejoin the Union in the 

future. None of these arguments are persuasive.

A.

Plaintiffs’ first two arguments merge into one: that the 

district court’s ability to grant restitution for past alleged 
BAIN V. CALIF. TEACHERS ASS’N 11

constitutional violations under the umbrella of “such 

additional or different relief” suffices to maintain a live 

controversy. But, as the Unions point out, bootstrapping 

restitution into an ancillary prayer for relief at this stage of 

the litigation runs afoul of binding Ninth Circuit law.

Until now, Plaintiffs never sought any type of money 

damages. Injunctive relief—a requirement that the Unions 

allow their members to abstain from paying a nonchargeable political fee, or allow nonmembers to enjoy the 

perquisites of Union membership—and a declaration that the 

Unions’ operations are unconstitutional, form the body, 

heart, and soul of Plaintiffs’ action. None of Plaintiffs’ three 

complaints nor their briefing on appeal indicate any desire 

for monetary relief. Moreover, restitution would not 

vindicate all Union members’ First Amendment rights, even 

though that is precisely what Plaintiffs seek to do. Instead, 

at the eleventh hour, Plaintiffs propose to transform their 

lawsuit from a request for prospective equitable relief into a 

plea for money damages to remedy past wrongs.

We have previously rejected such late-in-the-day 

transformations. In Seven Words LLC v. Network Solutions, 

260 F.3d 1089, 1092, 1095 (9th Cir. 2001), plaintiffs sought 

injunctive and declaratory relief against a government 

agency that refused to register their internet domain name, 

which contained explicit words. By the time their case was 

heard on appeal, the relevant words had already been given 

to others to use as their own domain names and the defendant 

had abandoned its policy of rejecting explicit words. Id. at 

1095. In an attempt to save their appeal from mootness, 

plaintiffs argued that they were still entitled to money 

damages for past harms. Id.

We rejected plaintiffs’ argument, concluding that 

“[s]uch a late-in-the-day damages claim is inconsistent with 
12 BAIN V. CALIF. TEACHERS ASS’N

our longstanding rule that we do not consider arguments not 

raised in the briefs.” Id. at 1097. We explained that

[o]ver and over again, throughout the various 

legal maneuvers, Seven Words consistently 

represented that it was seeking only 

declaratory and injunctive relief. For 

example, not only did Seven Words, in its 

Seven Words II complaint, seek only “a 

declaration of its rights” and “injunctive 

relief,” but it similarly represented that it was 

“seeking declaratory relief” in its August 

1999 opposition to NSI’s motion to dismiss 

. . . . Seven Words did not . . . claim it was 

seeking damages . . . . The first time Seven 

Words raised damages in an effort to defeat 

mootness was in supplemental briefing on 

appeal.

Id. at 1096–97; see also Arizonans for Official English, 

520 U.S. at 71 (a claim “extracted late in the day from [a] 

general prayer for relief and asserted solely to avoid 

otherwise certain mootness, b[ears] close inspection”); Fox 

v. Bd. of Trustees of State Univ. of New York, 42 F.3d 135, 

141 (2d Cir. 1994) (complaint’s prayer for “such other relief 

as the Court deems just and proper” did not suffice to support 

a late-in-the-day claim for nominal damages to avoid 

mootness because “there is absolutely no specific mention in 

the Complaint of nominal damages” (internal quotation 

marks and adjustment omitted)); R.S. & V. Co. v. Atlas Van 

Lines, 917 F.2d 348, 351 (7th Cir. 1990) (contract claim was 

moot where complaint failed to seek nominal damages).

Same here. Plaintiffs have, “over and over again, 

throughout the various legal maneuvers . . . consistently 
BAIN V. CALIF. TEACHERS ASS’N 13

represented that [they were] seeking only declaratory and 

injunctive relief.” Seven Words, 260 F.3d at 1096–97. 

Indeed, as recently as their reply brief on appeal, Plaintiffs 

summed up their requested relief as follows: “[The Unions’] 

constitutional transgressions can be remedied by an order 

operating upon the State directly . . . or by an order operating 

upon Unions . . . .”5 Neither option includes even a whiff of 

a request for money damages.

Plaintiffs cite Bayer v. Neiman Marcus Group, Inc., 

861 F.3d 853 (9th Cir. 2017), for the proposition that “[t]his 

Court has implicitly concluded that claims for equitable 

relief, such as restitution, are analyzed differently from 

claims for nominal damages when considering mootness.” 

Plaintiffs are correct that, in Bayer, we distinguished 

equitable from legal relief, but that distinction had nothing 

to do with that case’s separate mootness inquiry. 861 F.3d 

at 868–69. In Bayer, we considered whether the plaintiff 

could secure nominal damages where the statute at issue 

provided for only equitable relief. Id. Our decision 

addressed two issues: (1) whether nominal damages could 

 5 Plaintiffs’ position on appeal differs from their requested relief in 

their SAC. Whereas the SAC seeks a declaration that California’s 

agency shop statutes are unconstitutional, Plaintiffs on appeal seek to 

enjoin the agency shop laws through “an order operating upon the State

. . . .” (emphasis added). But California is not a party to this action, and 

failure to give California an opportunity to defend its own law before a 

court strikes it down arguably runs afoul of the Federal Rules of Civil 

Procedure and skirts a due process violation. See Fed. R. Civ. P. 65(d)(2) 

(defining “[p]ersons [b]ound” by an order granting injunctive relief to 

include “parties” or “other persons who are in active concert of 

participation” with a party to the action); Hakeem v. Stinson, 39 F. App’x 

674, 675 (2d Cir. 2002) (“Generally, we may order no injunctive relief

against non-parties . . . .”); cf. Catanzaro v. Michigan Dep’t of Corr., No. 

08-11173, 2009 WL 2139210, at *1 (E.D. Mich. July 14, 2009) (“This 

court has no authority to order relief for a non-party.”).
14 BAIN V. CALIF. TEACHERS ASS’N

be construed as equitable relief, and, if so, (2) whether the 

plaintiff had put the defendant on sufficient notice that it 

sought nominal damages in the district court. See id. at 869. 

While Plaintiffs focus on the first issue, the second is the one 

that applies here, and on that point, Bayer accords with Seven 

Words.

In Bayer, unlike here, the plaintiff “asserted a claim for 

damages” in the district court in addition to stating a “general 

prayer for such other relief as the district court deemed 

proper.” Id. The plaintiff also “explicitly argued he was 

entitled to nominal damages” before the district court. Id. 

Thus, Bayer was “not a case in which the defendant lacked 

notice that damages were sought until the plaintiff attempted 

to wrest a claim for nominal damages from a general prayer 

for relief for the first time on appeal.” Id. The exact opposite 

is true here: Plaintiffs seek, for the first time on appeal, to 

“wrest a claim for [restitution] from a general prayer for 

relief” without prior notice to the Unions.

Consistent with our decisions in Seven Words and Bayer, 

we reject Plaintiffs’ attempt to manufacture jurisdiction and 

avoid mootness by suddenly seeking restitution.

B.

Plaintiffs argue that even if Bain and Sobetski no longer 

have standing, Bhakta’s distinct situation salvages our 

jurisdiction. Although Bhakta canceled her union 

membership when she was promoted, Plaintiffs note that, 

unlike Bain and Sobetski, Bhakta has maintained her 

employment—albeit as a non-unionized Assistant 

Principal—with the school district where she was formerly 

a unionized teacher. Plaintiffs contend that if Bhakta goes 

back to teaching, “she would face the same coercion alleged 

in the SAC.”
BAIN V. CALIF. TEACHERS ASS’N 15

The problem for Plaintiffs is that they fail to show any 

intention by Bhakta to return to teaching. Standing requires 

Bhakta to have an “actual or imminent” and “concrete and 

particularized” injury. Defenders of Wildlife, 504 U.S. at 

560. It cannot be merely “hypothetical” that she will teach 

again. Id.; Summers v. Earth Island Institute, 555 U.S. 488, 

493 (2009). The assertion that Bhakta could conceivably

return to her old job, without more, is precisely the type of 

speculative “some day” intention the Supreme Court has 

rejected as insufficient to confer standing. Defenders of 

Wildlife, 504 U.S. at 564; see also Thomas v. Anchorage 

Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) 

(en banc) (requiring a “concrete plan” rather than a 

“hypothetical intent to violate the law” (internal quotation 

marks omitted)).

A case cited by Plaintiffs, Southern Oregon Barter Fair 

v. Jackson County, Oregon, 372 F.3d 1128 (9th Cir. 2004), 

actually makes the point. There, the plaintiff organization 

had not held a major fair in years. Id. at 1134. But it had

made concrete efforts to hold another event, and because it 

did so, it alleged a cognizable injury-in-fact. Id. Thus, the 

case was not moot. Id. The court in Fair was quick to note, 

however, that the case “would be moot if the [organization] 

had entirely ceased to operate, left the business, and no 

longer sought or intended to seek a license” to operate. Id.

(emphasis added). As Bayer similarly explained:

A former employee currently seeking to be 

reinstated or rehired may have standing to 

seek injunctive relief against a former 

employer. But a former employee has no 

claim for injunctive relief addressing the 

employment practices of a former employer 

absent a reasonably certain basis for 
16 BAIN V. CALIF. TEACHERS ASS’N

concluding he or she has some personal need 

for prospective relief.

861 F.3d at 865 (emphasis added; internal citation omitted).

Unlike in Fair, Plaintiffs do not allege that Bhakta 

intends to return to teaching. And as in the Bayer 

illustration, Plaintiffs have “produced no evidence to suggest 

that [Bhakta] plans to [re-]seek employment” as a teacher in 

the Arcadia Unified School District. Id. Accordingly, 

Bhakta has not shown the requisite ongoing or imminent 

injury-in-fact to preserve standing. The case is therefore 

moot.

V.

Our conclusion that Plaintiffs’ appeal is moot would be 

the end of the matter but for their fourth-quarter motion to 

add AAE as an organizational plaintiff under Federal Rule 

of Civil Procedure 21. Rule 21 provides that “[o]n motion 

or on its own, the court may at any time, on just terms, add 

or drop a party. The court may also sever any claim against 

a party.”

Plaintiffs’ motion confronts several obstacles. Most 

fundamentally, to grant Plaintiffs’ request we would first 

need to hold that a court, having been deprived of 

jurisdiction by way of mootness, may nevertheless resurrect 

jurisdiction by adding a party to the suit. Second, we would 

need to find that AAE has standing in its own right to pursue 

Plaintiffs’ claims. And third, even if we ruled in favor of 

Plaintiffs on these two jurisdictional issues, we would still 

need to decide that Plaintiffs satisfy Rule 21’s criteria for 

adding AAE to the suit.
BAIN V. CALIF. TEACHERS ASS’N 17

Ultimately, despite its efforts, AAE fails to make the 

grade because, we hold, Rule 21 is an improper vehicle for 

reviving a moot case, and even if it were not, AAE does not 

satisfy the requirements for Rule 21 joinder.6

A.

By the time a case reaches the court of appeals, it has 

undergone significant development. If it originated in 

district court, a complaint has been served, an answer or 

motion to dismiss has been filed, and discovery may have 

been taken. All of this occurs in the context of a particular 

dispute between particular parties. Adding a party 

midstream can alter the character of the litigation in material 

ways, causing a plaintiff or defendant to adjust their theory 

of the case, file additional or different motions, and modify 

their legal strategy. Moreover, joining a party on appeal 

carries an acute risk of prejudice because the opposing party 

is deprived of the opportunity to develop the facts and law 

as is relevant to the new party. For these reasons, Rule 21 is 

“rarely” used on appeal. See Mullaney v. Anderson, 

342 U.S. 415, 417 (1952).

Of course, rarely is not never, and we have, in limited 

circumstances, granted a Rule 21 motion to cure a 

jurisdictional defect. But we have been careful to restrict 

this exception to cases satisfying two narrow criteria: where 

(1) failure to join a party would result in “meaningless 

proceedings in the district court,” thereby thwarting the 

interests of judicial economy, California Credit Union 

 6 We assume without deciding that AAE has organizational standing 

to press Plaintiffs’ constitutional claims. See Hunt v. Wash. State Apple 

Adver. Comm’n, 432 U.S. 333, 343 (1977) (setting forth the standard for 

organizational standing).
18 BAIN V. CALIF. TEACHERS ASS’N

League v. City of Anaheim, 190 F.3d 997, 1001 (9th Cir. 

1999), and where (2) joinder would allow the original 

plaintiff to perfect jurisdiction for its claims and thereby 

recover its requested relief, id. at 998; Mullaney, 342 U.S. at 

416–17.

Anaheim involved a suit brought by federal credit union 

employees who contested an occupancy tax levied under the 

City of Anaheim’s municipal code. 190 F.3d at 998. They 

argued that the tax violated a federal statute granting credit 

unions broad immunity from local taxation. Id. We granted 

relief, but the Supreme Court vacated that decision, holding 

that the Tax Injunction Act barred such suits unless the 

United States was a party. Id. On remand, plaintiffs sought 

to join the United States, and we granted the motion to solve 

the jurisdictional problem that precluded plaintiffs from 

securing their requested relief. Id. We explained that,

[i]f we were to remand this case with 

instructions to dismiss or to have the United 

States litigate the merits of the tax exemption 

issue, the United States and the League, as 

co-plaintiffs, would simply rely on the 

League’s original complaint against 

Anaheim, submit the same materials that the 

League already filed in the district court, and 

receive a preordained judgment in their 

favor. The United States and the League 

“should not be compelled to jump through 

these judicial hoops merely for the sake of 

hypertechnical jurisdictional purity,” because 

judicial economy and considerations of 

practicalities outweigh any concern we have 

regarding jurisdictional purity.
BAIN V. CALIF. TEACHERS ASS’N 19

Id. (emphasis added; internal citation omitted) (quoting 

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 837 

(1989)). We were quick to caution, however, that granting a 

Rule 21 motion in such circumstances is “rare” and must be 

“‘exercised sparingly.’” Id. at 999, 1001 (quoting NewmanGreen, 490 U.S. at 837); see also Mullaney, 342 U.S. at 417 

(“Rule 21 will rarely come into play at [the appellate] stage 

of a litigation.”).

Mullaney involved a suit brought by a fishermen’s union 

and its treasurer against the Alaska tax commissioner. 

342 U.S. at 416–17. Once the case reached the Supreme 

Court, the tax commissioner argued for the first time that 

plaintiffs lacked standing absent joinder of members of the 

union. Id. at 416. Petitioners then filed a motion to join two 

of their members to cure any perceived jurisdictional defect, 

and the Court granted the motion. Id. Critically, as in 

Anaheim, joining the additional parties allowed the original 

plaintiffs to recover. See id. at 416–17.

Finally, Newman-Green involved a court of appeals’ 

decision to dismiss a dispensable non-diverse party to 

perfect diversity jurisdiction. 490 U.S. at 836–37. There 

was no question that a live controversy existed, or that the 

court could still award relief to the original plaintiffs. See 

id.

The type of jurisdictional defect at issue in our case—

mootness—differs from those presented in Mullaney, 

Anaheim, and Newman-Green. In those cases, a live 

controversy existed between the original parties, but the 

party joined or dropped was either necessary to the suit or, 

in the case of Newman-Green, dispensable to the suit. The 

original plaintiffs could recover so long as the additional 

parties were added or dropped. By contrast, when a case 

becomes moot the court can no longer award relief to the 
20 BAIN V. CALIF. TEACHERS ASS’N

plaintiffs, and so the proper resolution is dismissal. PicrinPeron v. Rison, 930 F.2d 773, 775–76 (9th Cir. 1991); see 

also North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per 

curiam) (“federal courts are without power to decide 

questions that cannot affect the rights of litigants in the case 

before them”). As we have previously observed, Rule 21 is 

not designed to swap in new plaintiffs for the sake of 

securing a judicial determination on the merits where the 

original plaintiffs no longer have a stake in the outcome. See 

Sable Commc’ns of California Inc. v. Pac. Tel. & Tel. Co., 

890 F.2d 184, 191 n.13 (9th Cir. 1989) (“Nothing on the face 

of Rule 21 allows substitution of parties.”).

The dangers of adding a party to “un-moot” a case are

substantial. First, unlike granting joinder to perfect 

jurisdiction for the benefit of the original plaintiffs, joining 

a party to replace the original plaintiffs effectively hatches a 

new controversy on appeal, and without the benefit of 

development in the district court. Second, allowing joinder 

in such circumstances is contrary to the foundational 

jurisdictional doctrines of mootness and standing, and 

disserves the interests of judicial economy and judicial 

restraint. As the Second Circuit has recognized, the 

mootness doctrine would be rendered obsolete in many if not 

most cases if Rule 21 could be used to revive a moot case. 

Fox, 42 F.3d at 144 (discussing Fox v. Bd. of Trustees of the 

State Univ. of New York, 148 F.R.D. 474, 482–89 (N.D.N.Y. 

1993)). So long as a party could locate an eligible participant 

with standing to pursue an action, a case could avoid ever 

going moot. As the Northern District of New York held in 

Fox, whose reasoning was incorporated by reference on 

appeal:

Rule 21 was also not enacted as a means for 

a party to avoid dismissal on mootness 
BAIN V. CALIF. TEACHERS ASS’N 21

grounds. If that were so, no case would ever 

become moot because a party who no longer 

had the requisite personal stake in the 

litigation, so as to satisfy the case or 

controversy requirement of Article III, would 

only have to move under Rule 21 for 

substitution of a party who could satisfy the 

requirement. That was not the purpose 

underlying the adoption of Rule 21.

Fox, 148 F.R.D. at 484, aff’d, 42 F.3d 135.

We find the Second Circuit’s position compelled by the 

Supreme Court’s decision in Board of School 

Commissioners of City of Indianapolis v. Jacobs, 420 U.S. 

128 (1975). There, six students sought a declaration that 

certain regulations by the Indianapolis Board of School 

Commissioners violated their First Amendment rights. Id.

at 128. The students’ complaint sought class certification for 

all similarly situated high school students. Id. at 129. But 

by the time the case reached the Supreme Court, the named 

plaintiffs had graduated, rendering the appeal moot. Id. The 

Court refused to replace the named plaintiffs with other 

members of the putative class so that the appeal could 

proceed because the class was never certified. Id. at 129–30. 

The Court explained that “[t]he case is [] moot unless it was 

duly certified as a class action pursuant to Fed. Rule Civ.

Proc. 23, a controversy still exists between petitioners and 

the present members of the class, and the issue in 

controversy is such that it is capable of repetition yet evading 

review.” Id. at 129. While it appears no Rule 21 motion was 

ever filed, the Court’s holding applies with particular force 

to the instant matter. Jacobs stands for the proposition that 

absent the unique circumstance of class certification, courts 

lack the authority to replace a party with a new one once a 
22 BAIN V. CALIF. TEACHERS ASS’N

case becomes moot. See id. at 129–30; Eckert v. Equitable 

Life Assurance Soc’y of U.S., 227 F.R.D. 60, 63 (E.D.N.Y. 

2005) (“[C]lass certification acts as a lifeboat for a claim that 

would otherwise be moot . . . .”).

Adding AAE on appeal also clashes with the Supreme 

Court’s careful articulation of the Article III standing 

doctrine.

In limiting the judicial power to ‘Cases’ and 

‘Controversies,’ Article III of the 

Constitution restricts it to the traditional role 

of Anglo-American courts, which is to 

redress or prevent actual or imminently 

threatened injury to persons caused by 

private or official violation of law. Except 

when necessary in the execution of that 

function, courts have no charter to review and 

revise legislative and executive action.

Summers, 555 U.S. at 492. Where the original plaintiffs no 

longer have an actionable claim, replacing them with a new 

plaintiff risks resolving a generalized grievance over 

remedying an individualized injury. Lexmark Int’l, Inc. v. 

Static Control Components, Inc., 134 S. Ct. 1377, 1386 

(2014) (recognizing the prudential limitation on 

“adjudication of generalized grievances” (internal quotation 

marks omitted)). Such an approach not only strikes at 

standing’s doctrinal underpinnings, but it is hardly 

“necessary in the execution of” the court’s function to 

“redress” an “injury”—after all, the plaintiffs that invoked 

the court’s jurisdiction no longer have a redressable injury.

The harm from courts arrogating power by giving short 

shrift to the standing doctrine is particularly acute where, as 

here, we are asked to pass on questions of constitutional 
BAIN V. CALIF. TEACHERS ASS’N 23

import. “If there is one doctrine more deeply rooted than 

any other in the process of constitutional adjudication, it is 

that we ought not to pass on questions of constitutionality 

. . . unless such adjudication is unavoidable.” Clinton v. 

Jones, 520 U.S. 681, 690, n.11 (1997) (internal quotation 

marks omitted). It would turn this axiom on its head to hold 

that we should “pass on questions of constitutionality” where 

an appeal has become moot.

For all these reasons, we join the Second Circuit in

holding that Rule 21 may not be used to rehabilitate a court’s 

jurisdiction where a case becomes moot on appeal. 

Accordingly, we deny Plaintiffs’ motion to join AAE as a 

party to the instant action.

B.

For the sake of completeness, we proceed to consider

whether AAE satisfies the criteria for Rule 21 joinder, 

notwithstanding our holding that the appeal is moot. “[A] 

party may join a lawsuit on appeal under Rule 21 when the 

party seeking joinder [1] requests the same remedy as the 

original party and [2] offers the same reasons for that remedy 

and [3] earlier joinder would not have affected the course of 

the litigation.” Anaheim, 190 F.3d at 999.

AAE satisfies the first factor because both it and 

Plaintiffs seek the same declaratory and injunctive relief. 

While Plaintiffs also seek restitution in their post-merits 

briefing, as explained in Part IV.A, supra, we do not credit 

this eleventh-hour plea to convert a matter that was always 

about securing prospective equitable relief into a claim for 

money damages. However, AAE fails to carry its burden on 

the second and third factors. AAE has not shown that it 

seeks relief for the same reasons as the original Plaintiffs 
24 BAIN V. CALIF. TEACHERS ASS’N

and, as a consequence, joining AAE presents a considerable 

risk of prejudice to the Unions in their chosen defense.

AAE’s interests and those of the Unions diverge in a 

crucial way: AAE seeks to out-compete the Unions, whereas 

Plaintiffs continue to support their Unions. Indeed, AAE 

characterizes its mission as providing an “alternative to the 

partisan politics . . . of the teacher labor unions.” AAE has 

also “acknowledg[ed] that [its affiliates and affiliates of 

public sector teachers’ unions] compete for membership 

dues dollars, because as a practical matter both organizations 

offer similar benefits . . . and one would not expect teachers 

to pay two sets of dues for similar benefits.” Unified Sch. 

Dist. No. 233 Johnson Cnty. v. Kansas Ass’n of Am. 

Educators, 275 Kan. 313, 324 (2003) (internal quotation 

marks omitted). In other words, join AAE, not the Unions. 

Driving home the point, AAE recently stated that “[t]here is 

a direct conflict between AAE’s mission” and collective 

bargaining by the Unions, and that it “object[s] on policy 

grounds to the positions taken by teachers’ unions in the 

collective-bargaining process and outside of that process.” 

Compl. at 11–12 (Yohn v. California Teachers Ass’n, No. 

8:17-cv-00202-JLS-DFM (C.D. Cal. Feb. 6, 2017)). 

Plaintiffs, by contrast, “value their unions,” in particular the 

“support” their Unions provide in “negotiating with their 

employers” through collective bargaining.

The mis-match in objectives renders it implausible that 

AAE seeks injunctive and declaratory relief to, as the 

Plaintiffs desire, make Union membership more attractive to 

teachers reluctant to pay the Unions’ non-chargeable fee. It 

also means the Unions may have litigated the case 

differently, and made alternative arguments, had AAE been 

a party from the start. For example, the Unions likely would 

have argued that AAE lacks organizational standing—a 
BAIN V. CALIF. TEACHERS ASS’N 25

threshold question not implicated by the Plaintiffs’ original 

action. The Unions may have also explored the distinction 

between AAE’s members’ alleged First Amendment injury 

and Plaintiffs’ own: Plaintiffs are Union members whose 

free speech interests are allegedly infringed by the 

requirement that they pay their Unions’ non-chargeable fee. 

AAE, by contrast, does not allege that any of its members 

are members of the Unions, let alone that they are subject to 

the same fee.

The legal import of this distinction is far from 

speculative. The Supreme Court has consistently held that 

unions—acting under the aegis of federal or state law—

infringe non-Union members’ free speech rights if they 

compel nonmembers to finance the Unions’ political 

activities—something AAE does not allege the Unions have 

done here. See, e.g., Commc’ns Workers of Am. v. Beck, 

487 U.S. 735, 758, 761 (1988) (“the [Railway Labor Act] 

does not permit a union, over the objections of nonmembers, 

to expend compelled agency fees on political causes”);

Abood, 431 U.S. at 234–36 (addressing the First Amendment 

rights of nonmembers not to fund a union’s political and 

ideological activities); cf. Ellis v. Railway Clerks, 466 U.S. 

435, 455 n.14 (1984) (distinguishing “voluntary members”

from objecting “nonmembers”). Had AAE’s constitutional 

claims been squarely presented in the district court and in the 

merits briefing on appeal, the parties could have addressed 

the applicability of this line of precedent on AAE’s asserted 

First Amendment interests.

Even if prejudice were not apparent, an acute tension in 

interests presents an inescapable risk of prejudice to the 

opposing party. We therefore adopt the precautionary 

principle when deciding a motion to join a party midstream: 

unless the interests of the party to be joined align with those 
26 BAIN V. CALIF. TEACHERS ASS’N

of the original party to the suit, then, as a general rule, the 

proper course is to deny the motion. See Spangler v. 

Pasadena City Bd. of Educ., 552 F.2d 1326, 1328 (9th Cir. 

1977) (Kennedy, J.) (adding a party under Rule 21 is only 

appropriate where the party seeking joinder, among other 

things, “offer[s] all the same reasons for relief”). The 

impropriety of granting a Rule 21 motion under the 

circumstances here is magnified where, as here, adding a 

party seeks to cure a jurisdictional defect. Anaheim, 

190 F.3d at 999, 1001 (granting a Rule 21 motion to cure a 

jurisdictional defect is “rare” and must be “‘exercised 

sparingly’” (quoting Newman-Green, 490 U.S. at 837)).

To be sure, the Unions, acting in their capacities as the 

exclusive bargaining representatives of California’s public 

school teachers in negotiations with the State, offer 

privileges of membership that AAE cannot provide. These 

include voting rights within the Unions and the privilege of 

serving on certain school district policy committees. This 

disjuncture in benefits may provide some surface appeal to 

AAE’s argument that their members might join the Unions 

but for the Unions’ mandatory political fees, and thus that 

their members and Plaintiffs share a common interest in this 

litigation. But AAE fails to identify any of its members that 

seek to join the Unions. And even if it did, voting rights and 

committee privileges do not implicate a First Amendment 

interest. Minn. State Bd. for Comm’y Colleges v. Knight, 

465 U.S. 271, 289–90 (1984). That is because “pressure to 

join the exclusive representative in order to give 

[individuals] the opportunity to,” among other things, “serve 

on . . . committees” is “inherent in our system of 

government; it does not create an unconstitutional inhibition 
BAIN V. CALIF. TEACHERS ASS’N 27

on associational freedom.”7 Id. (emphasis added). Thus, 

whatever the merits of Plaintiffs’ First Amendment claim, 

their constitutional interest does not extend to the collective 

bargaining rights that are peculiar to an agency shop union.

In sum, because AAE’s interests in pursuing this appeal 

diverge from those of the original Plaintiffs, the risk of 

prejudice to the Unions of adding AAE as a party to 

Plaintiffs’ action is acute. AAE therefore cannot satisfy the 

three-part test for joining a party under Rule 21.

CONCLUSION

In both the district court and in their merits briefing on 

appeal, Plaintiffs were the only plaintiffs to this suit. But 

Plaintiffs resigned their Union memberships during the 

pendency of their appeal, thereby mooting the appeal and 

depriving us of jurisdiction. Now, at the eleventh hour, 

Plaintiffs seek to add a new party, AAE, to their action. 

Adding a new party on appeal is rarely done, however, and 

is particularly ill-advised—indeed, we hold it to be 

erroneous as a matter of law—when used to resurrect a moot 

case. Fox, 42 F.3d at 144; see also Jacobs, 420 U.S. at 129–

30. And even if mootness were not an insurmountable 

barrier to considering a Rule 21 motion, we would still deny 

the motion because AAE fails to satisfy the criteria for Rule 

21 joinder. Accordingly, we DISMISS Plaintiffs’ appeal 

 7 Knight involved a challenge to a state statute requiring public 

employers to engage in official exchanges of views only with an 

“exclusive representative” of the public employee union’s bargaining 

unit. Knight, 465 U.S. at 273.
28 BAIN V. CALIF. TEACHERS ASS’N

and REMAND8 to the district court with instructions to 

dismiss the case without vacating its judgment.9

 8 In line with our disposition, we GRANT the Unions’ motion to 

dismiss the appeal as moot and DENY Plaintiffs and AAE’s motion for 

joinder.

9 The Unions argue for dismissal without vacatur and Plaintiffs do 

not offer a counterargument. We agree with the Unions that vacating the 

district court’s judgment would be inconsistent with the “equitable 

tradition of vacatur.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 

513 U.S. 18, 25 (1994). “It is [Plaintiffs’] burden, as the part[ies] seeking 

relief from the status quo of the appellate judgment, to demonstrate . . .

equitable entitlement to the extraordinary remedy of vacatur. 

[Plaintiffs’] voluntary forfeiture of review,” by being the parties 

responsible for mooting the controversy, “constitutes a failure of equity 

that makes the burden decisive . . . .” Id. at 26. Indeed, allowing 

Plaintiffs to vacate the judgment below would constitute a “refined form 

of collateral attack” that would “disturb the orderly operation of the 

federal judicial system.” Id. at 27.