                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 17 2018
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BECKY FISK,                                      No.   17-35957

              Plaintiff,                         D.C. No. 3:16-cv-05889-RBL

 and
                                                 MEMORANDUM*
LINDA BOWMAN; et al.,

              Plaintiffs-Appellants,

 v.

JAY INSLEE, Governor; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted December 3, 2018
                               Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Appellants Linda Bowman, Nathaniel Israel, and Susan Nott appeal the

district court’s order granting summary judgment to the State of Washington and

the Service Employees International Union 775 (or “SEIU”). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Because the parties are familiar with the facts, we provide only a brief

overview here. Appellants are former SEIU members. When they enrolled in the

union, they signed membership cards that authorized SEIU to deduct union dues

for at least a full year and provided the Appellants could opt out of dues payments

only during a 15-day window each year (the “dues irrevocability provision”). Each

of the Appellants resigned from the union before their dues authorizations elapsed,

and the union continued to deduct dues from their paychecks until the full year had

passed or the appropriate 15-day window arrived. Appellants brought a putative

class action alleging violations of their First and Fourteenth Amendment rights

because they were unable to immediately cease dues contributions when they

resigned.

      1. Appellants’ non-damages claims are not moot. Although no class has

been certified and SEIU and the State have stopped deducting dues from

Appellants, Appellants’ non-damages claims are the sort of inherently transitory

claims for which continued litigation is permissible. See Gerstein v. Pugh, 420


                                          2
U.S. 103, 111 n.11 (1975) (deciding case not moot because the plaintiff’s claim

would not last “long enough for a district judge to certify the class”); see also

County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). Indeed, claims

regarding the dues irrevocability provision would last for at most a year, and we

have previously explained that even three years is “too short to allow for full

judicial review.” Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011,

1019 (9th Cir. 2010). Accordingly, Appellants’ non-damages claims are not moot

simply because the union is no longer deducting fees from Appellants.

      2. Appellees’ deduction of union dues in accordance with the membership

cards’ dues irrevocability provision does not violate Appellants’ First Amendment

rights. Although Appellants resigned their membership in the union and objected

to providing continued financial support, the First Amendment does not preclude

the enforcement of “legal obligations” that are bargained-for and “self-imposed”

under state contract law. Cohen v. Cowles Media Co., 501 U.S. 663, 668-71

(1991). The provisions authorizing the withholding of dues and making that

authorization irrevocable for certain periods were in clear, readable type on a

simple one-page form, well within the ken of unrepresented or lay parties.

Moreover, temporarily irrevocable payment authorizations are common and

enforceable in many consumer contracts—e.g., gym memberships or cell phone


                                           3
contracts—and we conclude that under state contract law those provisions should

be similarly enforceable here.

      Appellants’ complaint expressly challenges only the dues irrevocability

provision and the continued deduction of dues after Appellants resigned. In the

wake of Janus v. American Federation of State, County, and Municipal Employees,

Council 31, 138 S. Ct. 2448 (2018), Appellants now wish to argue that their

consent to the deduction of dues was impermissible from the outset and violated

their First Amendment rights. Resolving this revised claim would require

determining whether Appellants’ initial agreement with SEIU qualified as a

knowing, voluntary, and intelligent waiver.1

      Importantly however, this claim is not properly before us and so we need not

address the adequacy of Appellants’ putative waivers. As Appellants’ counsel

himself acknowledged at oral argument, this broader claim is a departure from the

actual allegations of the complaint, which was never amended. Nowhere in the

complaint do Appellants allege that they did not initially consent to the dues



      1
         We have previously explained that First Amendment rights may be waived
only if the waiver is “knowing, voluntary and intelligent.” Leonard v. Clark, 12
F.3d 885, 889-90 (9th Cir. 1994). Assuming without deciding that contracts with
SEIU, a public sector union, involve enough state action to implicate the First
Amendment, every employee has a First Amendment right not to financially
support SEIU. See, e.g., Janus, 138 S. Ct. at 2486.
                                          4
deductions, nor did they object to any fees deducted prior to their resignations or

seek recovery of pre-resignation dues deductions. Appellants are necessarily

bound by the allegations and claims in their complaint. See Ecological Rights

Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 510-11 (9th Cir. 2013) (declining to

consider a new argument that would effectively qualify as an attempt to amend the

operative complaint on appeal). Because Appellants’ complaint impliedly

concedes that they initially agreed to pay union dues and only objects to later

attempts to escape the terms of that membership card agreement, we need not

inquire into whether Appellants’ initial decision to enter into the agreement

constituted an adequate waiver.

      Accordingly, we affirm the district court’s order granting summary

judgment to Washington state and SEIU.

      AFFIRMED.




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