NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             SEP 14 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
SILVIA LOPEZ,                                     No.   14-16640

              Plaintiff-Appellee,                 D.C. No.
                                                  1:14-cv-00236-LJO-GSA
 v.

GENEVIEVE SHIROMA, an individual;                 MEMORANDUM*
et al.,

              Defendants-Appellants.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O’Neill, Chief Judge, Presiding

                      Argued and Submitted August 12, 2016
                            San Francisco, California

Before: HAWKINS and GRABER, Circuit Judges, and SELNA,** District Judge.

      This interlocutory appeal arises from the denial of official immunity in plaintiff

Silvia Lopez’s (“Lopez”) labor dispute with defendants-appellants, officials of

California’s Agricultural Labor Relations Board (“ALRB” or “Board”). An employee

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
of Gerawan Farming, Inc., Lopez opposes its relationship with United Farm Workers

of America (“UFW”) and launched a representation election to decertify UFW as

Gerawan employees’ union representative. She alleges that certain decisions issued

in the course of the decertification process served as a pretext to shield UFW from

decertification and that defendants violated her due process and First Amendment

rights. Lopez seeks damages as well as declaratory and injunctive relief pursuant to

42 U.S.C. § 1983.

      The district court ruled that defendants lacked official immunity by denying

their absolute immunity defense and declining to reach qualified immunity. Absolute

and qualified immunity are questions of law reviewed de novo, based on the facts as

the complaint presents them. Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012); Olsen

v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We have jurisdiction

under 28 U.S.C. § 1291, see Morley v. Walker, 175 F.3d 756, 759-60 (9th Cir. 1999),

and we affirm in part and reverse in part.

      Lopez’s claims stem from the Board’s decision to impound ballots from the

decertification election pending resolution of certain unfair labor practice complaints

(“ULPs”) and from purportedly unwarranted delays and interference on the part of the

ALRB’s Regional Director defendant Silas Shawver.




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      We affirm the district court’s determination that defendants are not entitled to

absolute immunity. Quasi-judicial immunity extends to non-judicial agents when

such agents “perform official duties that are functionally comparable to those of

judges, i.e., duties that involve the exercise of discretion in resolving disputes.”

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993). Similar to judges,

prosecutors are shielded from damages actions that stem from conduct closely

intertwined with the judicial process. Imbler v. Pachtman, 424 U.S. 409, 430-31

(1976). When they are performing administrative or investigative functions, however,

such immunity is not available. Buckley v. Fitzsimmons, 509 U.S. 259, 271-73 (1993).

Thus, “the protection of absolute immunity reaches ‘only those actions that are

judicial or closely associated with the judicial process’”–even if the actors in question

have, in other contexts, been deemed entitled to immunity. Buckwalter v. Nev. Bd. of

Med. Exam’rs, 678 F.3d 737, 740 (9th Cir. 2012) (emphasis added) (quoting Buckley,

509 U.S. at 273).

       On balance, the Butz v. Economou, 438 U.S. 478, 512 (1978), factors weigh

against finding absolute immunity for the Board member defendants. Their disputed

decision–the ballot impound–fell squarely within their administrative responsibilities

to oversee representation elections, Cal. Lab. Code §§ 1142-1144, a role distinct from

their quasi-judicial function of adjudicating ULPs, id. §§ 1160.2-.3, .8; 8 Cal. Code


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Regs. §§ 20202, 20206, 20280-20287; see Bud Antle, Inc. v. Barbosa, 45 F.3d 1261,

1272 (9th Cir. 1995). The petitioner employees received no immediate opportunity

to contest the decision, cf. Buckwalter, 678 F.3d at 741, and have instead been

embroiled in separate litigation to air their grievances against the Board.

      Shawver is likewise not entitled to absolute immunity. As a regional director,

Shawver is vested by the Board with authority to investigate petitions, oversee

representation elections, and investigate ULPs. 8 Cal. Code Regs. §§ 20216, 20290,

20350, 20385, 20390. Many types of decisions made by regional directors are

appealable to the Board. Id. §§ 20219, 20393. A decision to deny an election petition

on the ground that it lacks a sufficient number of signatures from eligible employees

is, however, final. Id. § 20300. Although regional directors investigate ULPs, they

report findings to the Board’s General Counsel, who then decides whether to issue a

formal complaint and pursue a case. Id. §§ 20216, 20222-20261.

      Defendants are, however, entitled to qualified immunity. Although the district

court found the defendants’ footnote raising this alternative defense insufficient to

decide its merits, the issue is fully briefed on appeal. Moreover, qualified immunity

is a question of law that, here, does not depend on the factual record; it is thus within

our discretion to take up in the first instance. A-1 Ambulance Serv., Inc. v. Cty. of

Monterey, 90 F.3d 333, 338-39 (9th Cir. 1996). We take note that Lopez wishes to


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amend her complaint below to plead additional facts. Yet, no amendment can cure

that the crux of her case lacks a clearly defined constitutional right. See Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 313 (1979).

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Each party shall bear their own costs on appeal.




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