Dale Danielson v. Jay Inslee

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALE DANIELSON, a Washington No. 18-36087

State employee; BENJAMIN RAST, a

Washington State employee; D.C. No.

TAMARA ROBERSON, a Washington 3:18-cv-05206-

State employee; as individuals, and RJB

on behalf of all others similarly

situated,

Plaintiffs-Appellants, OPINION

v.

JAY ROBERT INSLEE, in his official

capacity as Governor of the State of

Washington; DAVID SCHUMACHER,

in his official capacity as Director of

Washington State Office of Financial

Management; AMERICAN

FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES,

COUNCIL 28, AFL-CIO, a labor

organization,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted November 6, 2019

Seattle, Washington

2 DANIELSON V. INSLEE

Filed December 26, 2019

Before: Ronald M. Gould and Jacqueline H. Nguyen,

Circuit Judges, and Gregory A. Presnell, * District Judge.

Opinion by Judge Nguyen

SUMMARY **

Civil Rights

The panel affirmed the district court’s dismissal of a

claim for monetary relief bought pursuant to 42 U.S.C.

§ 1983 by public sector employees against their union

following the Supreme Court’s decision in Janus v.

American Federation of State, County, & Municipal

Employees, Council 31, 138 S. Ct. 2448 (2018), which held

that the compulsory collection of agency fees by unions

violates the First Amendment.

Prior to the Supreme Court’s decision in Janus, public

sector unions around the country relied on the Supreme

Court’s decision in Abood v. Detroit Board of Education,

431 U.S. 209 (1977), which held that the unions could

collect compulsory agency fees from nonmembers to finance

their collective bargaining activities, without running afoul

of the First and Fourteenth Amendments. State laws and

*

The Honorable Gregory A. Presnell, United States District Judge

for the Middle District of Florida, 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.

DANIELSON V. INSLEE 3

regulations further entrenched the union agency shop into

the local legal framework. In 2018, the Supreme Court

uprooted its precedent by overturning Abood. Immediately

thereafter, the defendant Union stopped collecting

mandatory fees from nonmembers. Plaintiffs subsequently

brought suit seeking, among other things, a refund of all

agency fees that were allegedly unlawfully collected from

plaintiffs prior to the Supreme Court’s decision in Janus.

Joining the Seventh Circuit, the panel held that private

parties may invoke an affirmative defense of good faith to

retrospective monetary liability under 42 U.S.C. § 1983,

where they acted in direct reliance on then-binding Supreme

Court precedent and presumptively-valid state law. See

Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31,

942 F.3d 352 (7th Cir. 2019) (“Janus II”); Mooney v. Ill.

Educ. Ass’n, 942 F.3d 368 (7th Cir. 2019). The panel held

that the good faith affirmative defense applied as a matter of

law, and the district court was right to dismiss plaintiffs’

claim for monetary relief.

COUNSEL

Jonathan F. Mitchell (argued), Mitchell Law PLLC, Austin,

Texas; Talcott J. Franklin, Talcott Franklin PC, Dallas,

Texas; Eric Stahlfeld, Freedom Foundation, Olympia,

Washington; Christopher Hellmich, Hellmich Law Group

P.C., Anaheim Hills, California; for Plaintiffs-Appellants.

P. Casey Pitts (argued), Scott Kronland, and Matthew J.

Murray, Altshuler Berzon LLP, San Francisco, California;

Edward E. Younglove III, Younglove & Coker P.L.L.C.,

Olympia, Washington; for Defendants-Appellees.

4 DANIELSON V. INSLEE

OPINION

NGUYEN, Circuit Judge:

“Stare decisis—in English, the idea that today’s Court

should stand by yesterday’s decisions—is ‘a foundation

stone of the rule of law.’” Kimble v. Marvel Entm’t, LLC,

135 S. Ct. 2401, 2409 (2015) (quoting Michigan v. Bay Mills

Indian Cmty., 572 U.S. 782, 798 (2014)). But on rare

occasion, even longstanding precedent can be overruled.

What happens when the Supreme Court reverses course, but

private parties have already acted in reliance on longstanding

bedrock precedent?

This question lies at the center of this appeal. For over

40 years, public sector unions around the country relied on

the Supreme Court’s decision in Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), which held that the unions

could collect compulsory agency fees from nonmembers to

finance their collective bargaining activities, without

running afoul of the First and Fourteenth Amendments.

State laws and regulations further entrenched the union

agency shop into the local legal framework. But in 2018, the

Supreme Court uprooted its precedent by overturning

Abood. In Janus v. American Federation of State, County,

& Municipal Employees, Council 31, 138 S. Ct. 2448 (2018),

the Supreme Court held that unions’ compulsory collection

of agency fees violated the Constitution.

Many public sector unions, including the defendant

union here, immediately stopped collecting agency fees. But

uncertainty remained as to whether they would be

monetarily liable for their pre-Janus conduct—conduct that

was once explicitly authorized under Abood and state law.

DANIELSON V. INSLEE 5

Throughout the country, public sector employees

brought claims for monetary relief against the unions

pursuant to 42 U.S.C. § 1983. Many unions asserted a good

faith defense in response. Joining a growing consensus, the

district court here ruled in favor of the union. We affirm and

hold that private parties may invoke an affirmative defense

of good faith to retrospective monetary liability under

42 U.S.C. § 1983, where they acted in direct reliance on

then-binding Supreme Court precedent and presumptively-

valid state law.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

Plaintiffs are Washington state employees who work

within bargaining units exclusively represented by the

American Federation of State, County, and Municipal

Employees, Council 28, AFL-CIO (the “Union”). Plaintiffs

are not members of the Union and object to financing its

activities. Nonetheless, until recently, they were required to

pay agency fees to the Union. Collection of agency fees

from nonmembers was authorized by the governing

collective bargaining agreement, by Washington law, and by

over four decades of U.S. Supreme Court precedent dating

back to Abood.

On June 27, 2018, the Supreme Court issued its decision

in Janus, reversing course on the constitutionality of the

traditional agency shop regime. Janus overruled Abood and

held that the mandatory collection of agency fees from

objectors violated the First Amendment. 138 S. Ct. at 2486.

It is undisputed that, immediately thereafter, the Union

stopped collecting mandatory fees from nonmembers.

6 DANIELSON V. INSLEE

B. Procedural Background

On March 15, 2018, Plaintiffs brought a putative class

action pursuant to 42 U.S.C. § 1983 against Jay Inslee, in his

official capacity as Governor of Washington; David

Schumacher, in his official capacity as Director of the

Washington Office of Financial Management; and the

Union. In anticipation of the Supreme Court’s decision in

Janus, Plaintiffs alleged that the imposition of compulsory

agency fees violated their constitutional rights under the

First and Fourteenth Amendments. They sought declaratory

and injunctive relief, a refund of “all agency fees that were

unlawfully collected from Plaintiffs and their fellow class

members,” and an award of attorney’s fees and costs.

In the wake of Janus and changes to the Union’s

practices, the district court determined that the claims

against Inslee and Schumacher (the “State Defendants”) for

declaratory and injunctive relief were moot, and they were

dismissed from the case. 1 Shortly thereafter, the Union filed

a motion for judgment on the pleadings or summary

judgment. The Union argued that the claims for declaratory

and injunctive relief should be dismissed as moot, as the

parallel claims against the State Defendants had been. The

Union further argued that the claim for monetary relief

should be dismissed because it had relied in good faith on

presumptively-valid state law and then-binding Supreme

Court precedent. The district court granted the Union’s

motion as to all claims and dismissed the case. Plaintiffs

1

Plaintiffs sought monetary relief from only the Union, not the State

Defendants.

DANIELSON V. INSLEE 7

then sought reconsideration of the ruling, which the district

court denied. This appeal timely followed. 2

II. STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo an order granting summary judgment or

judgment on the pleadings. Heliotrope Gen., Inc. v. Ford

Motor Co., 189 F.3d 971, 975, 978 (9th Cir. 1999).

III. DISCUSSION

We hold that the district court properly dismissed

Plaintiffs’ claim for monetary relief against the Union. In so

ruling, we join the Seventh Circuit, the only other circuit to

have addressed the question before us. See Janus v. Am.

Fed’n of State, Cty. & Mun. Emps., Council 31, 942 F.3d 352

(7th Cir. 2019) (“Janus II”); Mooney v. Ill. Educ. Ass’n,

942 F.3d 368 (7th Cir. 2019). We agree with our sister

circuit that a union defendant can invoke an affirmative

defense of good faith to retrospective monetary liability

under section 1983 for the agency fees it collected pre-Janus,

where its conduct was directly authorized under both state

law and decades of Supreme Court jurisprudence. The

Union was not required to forecast changing winds at the

Supreme Court and anticipatorily presume the overturning

of Abood. Instead, we permit private parties to rely on

judicial pronouncements of what the law is, without

exposing themselves to potential liability for doing so.

2

On appeal, Plaintiffs argue only that the district court erred in

dismissing their claim for monetary relief against the Union. They do

not contest the dismissal of their claims for declaratory and injunctive

relief.

8 DANIELSON V. INSLEE

1. We assume the retroactivity of the rule

established in Janus, but that does not answer the

remedial question before this court.

As an initial matter, Plaintiffs urge the retroactive

application of the Supreme Court’s decision in Janus. But,

like the Seventh Circuit, we find it unnecessary to “wrestle

the retroactivity question to the ground.” Janus II, 942 F.3d

at 360. The Supreme Court has made clear that right and

remedy must not be conflated, and that retroactivity of a

right does not guarantee a retroactive remedy. Davis v.

United States, 564 U.S. 229, 243 (2011). Therefore, we will

assume that the right delineated in Janus applies

retroactively and proceed to a review of available remedies.

2. A private entity may avail itself of a good faith

defense in litigation brought pursuant to 42

U.S.C. § 1983.

The Supreme Court has held that private parties sued

under 42 U.S.C. § 1983 cannot claim qualified immunity,

but it has suggested in dicta that such parties might be able

to assert a good faith defense to liability instead. Wyatt v.

Cole, 504 U.S. 158, 168–69 (1992); Lugar v. Edmondson Oil

Co., 457 U.S. 922, 942 n.23 (1982). Although the Supreme

Court has never squarely reached the question, we held in

Clement v. City of Glendale that private parties may invoke

a good faith defense to liability under section 1983. 3

518 F.3d 1090, 1096–97 (9th Cir. 2008).

3

Every other circuit that has considered the issue agrees. Janus II,

942 F.3d at 364; Jarvis v. Cuomo, 660 F. App’x 72, 75 (2d Cir. 2016);

Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d Cir. 1996); Vector Research,

Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 699 (6th Cir.

DANIELSON V. INSLEE 9

Plaintiffs argue that Clement should be disregarded.

They contend the Ninth Circuit previously reached a

contrary outcome in Howerton v. Gabica, 708 F.2d 380 (9th

Cir. 1983), and a three-judge panel cannot overturn existing

precedent.

Because “we are required to reconcile prior precedents if

we can do so,” we first assess whether Clement and

Howerton are truly at odds. Cisneros-Perez v. Gonzales,

465 F.3d 386, 392 (9th Cir. 2006). We find the two

decisions reconcilable. Howerton stands for the

unremarkable proposition that private parties cannot avail

themselves of qualified immunity to a section 1983 lawsuit.

708 F.2d at 385 n.10. Both the Supreme Court and later

panels of our court have adopted that reading of Howerton.

See, e.g., Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing

Howerton for the proposition that the Ninth Circuit has held

that private parties acting under color of state law are not

entitled to qualified immunity); F.E. Trotter, Inc. v. Watkins,

869 F.2d 1312, 1318 (9th Cir. 1989) (citing Howerton for

the proposition that “the Ninth Circuit has stated that private

defendants are not entitled to qualified immunity in section

1983 actions”).

Although Howerton used the somewhat less precise

language of a “good faith immunity,” 708 F.2d at 385 n.10,

we do not read the decision to foreclose a good faith

affirmative defense. Indeed, Howerton cited favorably to

Lugar, 457 U.S. at 942 n.23, for the proposition that

“compliance with [a] statute might be raised as an

affirmative defense” to section 1983 liability. 708 F.2d at

385 n.10. As the Supreme Court has explained, “a

1996); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1276 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir. 1993).

10 DANIELSON V. INSLEE

distinction exists between an ‘immunity from suit’ and other

kinds of legal defenses.” Richardson v. McKnight, 521 U.S.

399, 403 (1997); see also Mitchell v. Forsyth, 472 U.S. 511,

526 (1985) (holding that qualified immunity “is an immunity

from suit rather than a mere defense to liability”). We

assume the Howerton court appreciated that distinction and

grappled only with the former. Thus, the Clement court

acted well within its authority to find that, while private

parties cannot assert an immunity to suit under section 1983,

they can invoke a good faith defense. 4 We are bound by

Clement, which is dispositive as to the threshold question

presented by Plaintiffs.

Plaintiffs also argue that an entity cannot invoke the

good faith defense, just as a municipality cannot invoke

qualified immunity. This argument, however, runs counter

to Clement, in which we applied the good faith defense to an

entity defendant. Plaintiffs’ argument is also at odds with

the purpose underlying the good faith defense: that private

parties should be entitled to rely on binding judicial

pronouncements and state law without concern that they will

be held retroactively liable for changing precedents. This

principle applies equally to a private entity as it does to a

private individual.

4

Clement is not alone in presuming that Ninth Circuit precedent did

not foreclose a good faith defense. For example, in Jensen v. Lane

County, we considered it an open question whether a private party could

invoke “an affirmative good faith defense” to section 1983 liability.

222 F.3d 570, 580 n.5 (9th Cir. 2000).

DANIELSON V. INSLEE 11

3. The good faith defense is not limited by the

availability of a similar defense to the most closely

analogous common law tort. But, even if it were,

the closest analogue allows a good faith defense.

Plaintiffs contend that any good faith defense must be

confined to claims for which the most closely analogous

common law tort carried a similar immunity. Plaintiffs

argue that conversion is the closest common law analogue to

their claim against the Union, that good faith is no defense

to conversion, and therefore that good faith can provide no

defense to liability here. Plaintiffs derive this argument from

the Supreme Court’s discussion of the history of qualified

immunity in Wyatt v. Cole:

Section 1983 creates a species of tort liability

that on its face admits of no immunities.

Nonetheless, we have accorded certain

government officials either absolute or

qualified immunity from suit if the tradition

of immunity was so firmly rooted in the

common law and was supported by such

strong policy reasons that Congress would

have specifically so provided had it wished to

abolish the doctrine. If parties seeking

immunity were shielded from tort liability

when Congress enacted the Civil Rights Act

of 1871—§ 1 of which is codified at

42 U.S.C. § 1983—we infer from legislative

silence that Congress did not intend to

abrogate such immunities when it imposed

liability for actions taken under color of state

law. . . . In determining whether there was an

immunity at common law that Congress

intended to incorporate in the Civil Rights

12 DANIELSON V. INSLEE

Act, we look to the most closely analogous

torts . . . .

504 U.S. 158, 163–64 (1992) (internal citations and

quotation marks omitted).

Plaintiffs’ argument fails for several reasons. First, the

above passage applies only to Wyatt’s discussion of qualified

immunity, not to the good faith affirmative defense on which

Wyatt expressly reserved judgment. The rationales behind

the two doctrines, and their limitations, are not

interchangeable. Accord Janus II, 942 F.3d at 365 (“As

several district courts have commented, the Supreme Court

in Wyatt I embarked on the search for the most analogous

tort only for immunity purposes—the Court never said that

the same methodology should be used for the good-faith

defense.”).

Second, even qualified immunity is no longer

constrained by a common law tort analogy. See Wyatt,

504 U.S. at 166 (noting that “Harlow ‘completely

reformulated qualified immunity along principles not at all

embodied in the common law’” (quoting Anderson v.

Creighton, 483 U.S. 635, 645 (1987))); see also Ziglar v.

Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J.,

dissenting) (explaining that contemporary courts no longer

“ask[] whether the common law in 1871 would have

accorded immunity to an officer for a tort analogous to the

plaintiff's claim under § 1983,” but “instead grant immunity

to any officer whose conduct ‘does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known’” (quoting Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam))). The

Supreme Court itself has emphasized that it “never

suggested that the precise contours of official immunity can

DANIELSON V. INSLEE 13

and should be slavishly derived from the often arcane rules

of the common law.” Anderson, 483 U.S. at 645.

Third, in Clement, we did not limit the applicability of

the good faith defense to common law analogues. 518 F.3d

at 1096–97 (9th Cir. 2008). Our decision in Clement was

driven not by the strictures of common law, but rather by

principles of equality and fairness—which the Supreme

Court likewise indicated could lay the foundation for a good

faith defense to section 1983 liability. See id. (applying the

good faith defense because “[t]he company did its best to

follow the law and had no reason to suspect that there would

be a constitutional challenge to its actions,” and “the

constitutional violation arose from the inactions of the police

rather than from any act or omission by the towing

company”); Wyatt, 504 U.S. at 168 (citing “principles of

equality and fairness” as the basis for a potential good faith

defense).

Fourth, Plaintiffs’ proposed constraints are contrary to

the principles underlying the good faith defense. As noted,

the availability of the defense arises out of general principles

of equality and fairness—values that are inconsistent with

rigid adherence to the oft-arbitrary elements of common law

torts as they stood in 1871. It would be an odd result for an

affirmative defense grounded in concerns for equality and

fairness to hinge upon historical idiosyncrasies and strained

legal analogies for causes of action with no clear parallel in

nineteenth century tort law. We would find it neither

“equal” nor “fair” for a private party’s entitlement to a good

faith defense to turn not on the innocence of its actions but

rather on the elements of an 1871 tort that the party is not

charged with committing.

Finally, even if we adopted the common-law-analogue

rule, Plaintiffs’ position would still fail. Contrary to

14 DANIELSON V. INSLEE

Plaintiffs’ contention, conversion is not the closest common

law analogue to the First Amendment violation alleged in

this case. Plaintiffs’ First Amendment claim arises not from

the taking of their property, but from their compelled speech

on behalf of a cause they do not endorse. The unprivileged

confiscation of funds from employees’ paychecks, on its

own, would yield no cognizable First Amendment violation.

Moreover, unlike in a traditional conversion case, the Union

did not collect agency fees in contravention of state law; the

key theme underlying Plaintiffs’ section 1983 cause of

action is that the Union collected agency fees in accord with

state law. For these reasons, conversion bears little

substantive similarity to Plaintiffs’ claim.

Rather, we agree with our sister circuit that abuse of

process provides the best analogy to Plaintiffs’ claim. 5

Janus II, 942 F.3d at 365. At common law, abuse of process

“provided [a] cause[] of action against private defendants for

unjustified harm arising out of the misuse of governmental

processes.” Wyatt, 504 U.S. at 164. Although the

prototypical abuse of process claim involves the abuse of

judicial process, the tort is not clearly so confined. Here, the

fundamental premise for section 1983 liability against the

Union is its alleged abuse of processes authorized by

Washington law—the agency shop regime and its

concomitant agency fee collection protocol—toward

unconstitutional ends. Indeed, it is the use of governmental

processes by the Union that supplies the “color of law”

element required to state a claim under section 1983.

5

We agree with the Seventh Circuit that “[n]one of these torts is a

perfect fit, but they need not be,” as the search for a common law

analogue is “inherently inexact.” Janus II, 942 F.3d at 365.

DANIELSON V. INSLEE 15

Adopting abuse of process as the appropriate common-

law analogue poses no barrier to the Union’s invocation of a

good faith defense. This is because, at common law, a

private party could avoid liability for abuse of process if it

acted in good faith. Id. at 164; id. at 172 (Kennedy, J.,

concurring); id. at 176 (Rehnquist, C.J., dissenting).

4. Plaintiffs’ labeling of their claim as restitutionary

does not preclude application of the good faith

defense.

Plaintiffs argue that any good faith defense is limited to

liability for damages, whereas they seek restitution from the

Union for agency fees collected in contravention of Janus.

They contend that “a defendant’s good faith will never allow

it to keep the property or money that it took in violation of

another’s constitutional rights,” even if good faith might

provide a shield to liability for additional damages.

As an initial matter, Plaintiffs’ restitutionary premise is

flawed. Plaintiffs’ constitutionally cognizable injury is the

intangible dignitary harm suffered from being compelled to

subsidize speech they did not endorse. It is not the

diminution in their assets from the payment of compulsory

agency fees. Accordingly, Plaintiffs seek compensatory

damages, not true restitution, when they pray for a monetary

award in the amount of the agency fees they paid to the

Union. The labeling of the relief sought in restitutionary

terms does not change the underlying nature of Plaintiffs’

claim.

Even accepting Plaintiffs’ restitutionary premise, the

equities do not weigh in favor of requiring a refund of all

agency fees collected pre-Janus. The Union bears no fault

for acting in reliance on state law and Supreme Court

precedent. It collected and spent fees under the

16 DANIELSON V. INSLEE

assumption—sanctioned by the nation’s highest court—that

its conduct was constitutional. And the Union provided a

service to contributing employees in exchange for the

agency fees it received. Indeed, under Abood, the Union was

required to use those fees for collective bargaining activities

that inured to the benefit of all employees it represented—an

exchange that cannot be unwound. It is true that, under

current law, the employees suffered a constitutional wrong

for which they may have no viable means of compensation

if the good faith defense prevails. Nonetheless, it would not

be equitable to order the transfer of funds from one innocent

actor to another, particularly where the latter received a

benefit from the exchange. Accord Ellis v. Bhd. of Ry.,

Airline & S.S. Clerks, Freight Handlers, Exp. & Station

Emps., 466 U.S. 435, 454–55 (1984) (expressing “doubt that

the equities call for a refund” of compulsory payments made

by employees to their union, even if the practice ran afoul of

the law, because objecting employees received a service in

exchange for their money); Janus II, 942 F.3d at 367

(“[T]hough [plaintiff] contends that he did not want any of

the benefits of [the union’s] collective bargaining and other

representative activities over the years, he received them.

Putting the First Amendment issues . . . to one side, there

was no unjust ‘windfall’ to the union . . . but rather an

exchange of money for services.”). Under the circumstances

here, the most equitable outcome is a prospective change in

the Union’s policy and practice (which undisputedly

occurred), without retrospective monetary liability.

DANIELSON V. INSLEE 17

5. The good faith defense applies to the Union as a

matter of law, because the Union was not required

to anticipate the overturning of then-binding

precedent.

The Union’s assertion of a good faith affirmative defense

is sound, but that does not fully answer the question before

this court. We must next determine whether the district court

correctly found that the good faith defense shielded the

Union from retrospective monetary liability as a matter of

law.

In collecting compulsory agency fees, the Union relied

on presumptively-valid state law and then-binding Supreme

Court precedent. The Union now faces an assertion of

monetary liability not for flouting that law or misinterpreting

its bounds, but for adhering to it. Although some justices

had signaled their disagreement with Abood in the years

leading up to Janus, Abood remained binding authority until

it was overruled. 6 We agree with our sister circuit that “[t]he

Rule of Law requires that parties abide by, and be able to

rely on, what the law is, rather than what the readers of tea-

leaves predict that it might be in the future.” Janus II,

942 F.3d at 366.

The Supreme Court has admonished the circuit courts

not to presume the overruling of its precedents, irrespective

of hints in its decisions that a shift may be on the horizon.

See Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

490 U.S. 477, 484 (1989) (“If a precedent of this Court has

6

Indeed, not long before Janus, the Supreme Court affirmed the

judgment of this court on the same question presented—albeit by an

equally divided court. Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083

(2016). Although the outcome in Janus may have been the writing on

the wall, it was not a foregone conclusion.

18 DANIELSON V. INSLEE

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to

this Court the prerogative of overruling its own decisions.”);

Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir. 2011)

(“As a circuit court, even if recent Supreme Court

jurisprudence has perhaps called into question the

continuing viability of its precedent, we are bound to follow

a controlling Supreme Court precedent until it is explicitly

overruled by that Court.” (internal quotation marks and

brackets omitted)). We decline to hold private parties to a

different standard. It would be paradoxical for the circuit

courts to be required to follow Abood until its overruling in

Janus, while private parties incur liability for doing the

same.

The ability of the public to rely on the courts’

pronouncements of law is integral to the functioning of our

judicial system. After all, “[i]t is emphatically the province

and duty of the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). If

private parties could no longer rely on the pronouncements

of even the nation’s highest court to steer clear of liability, it

could have a destabilizing impact on the judicial system.

Because the Union’s action was sanctioned not only by

state law, but also by directly on-point Supreme Court

precedent, we hold that the good faith defense shields the

Union from retrospective monetary liability as a matter of

law. In so ruling, we join a growing consensus of courts

across the nation. 7

7

See Janus II, 942 F.3d 352; Mooney, 942 F.3d 368; Aliser v. SEIU

Cal., No. 19-CV-00426-VC, 2019 WL 6711470, at *1 (N.D. Cal. Dec.

DANIELSON V. INSLEE 19

Finally, we reject Plaintiffs’ contention that the Union

must prove that it “fully complied with the pre-Janus

constitutional strictures on agency shops” to avail itself of a

good faith defense. Plaintiffs’ argument lacks any

grounding in the claims presented in this action. Plaintiffs

alleged in their complaint only that the Union’s collection of

compulsory agency fees, as a general matter, violated their

10, 2019); Wenzig v. Serv. Emps. Int’l Union Local 668, No. CV 1:19-

1367, 2019 WL 6715741, at *10 (M.D. Pa. Dec. 10, 2019); Hamidi v.

SEIU Local 1000, No. 2:14-CV-00319, 2019 WL 5536324 (E.D. Cal.

Oct. 25, 2019); LaSpina v. SEIU Pa. State Council, No. 3:18-2018, 2019

WL 4750423 (M.D. Pa. Sept. 30, 2019); Allen v. Santa Clara Cty. Corr.

Peace Officers Ass’n, No. 18-CV-02230, 2019 WL 4302744 (E.D. Cal.

Sept. 11, 2019); Casanova v. Int’l Ass’n of Machinists, Local 701, No.

19-CV-00428 (N.D. Ill. Sept. 11, 2019); Ogle v. Ohio Civil Serv. Emp.

Ass’n, No. 18-CV-1227, 2019 WL 3227936 (S.D. Ohio July 17, 2019),

appeal pending, No. 19-3701 (6th Cir.); Diamond v. Pa. State Educ.

Ass’n, No. 18-CV-128, 2019 WL 2929875 (W.D. Pa. July 8, 2019),

appeal pending, No. 19-2812 (3d Cir.); Hernandez v. AFSCME Cal., No.

18-CV-2419, 2019 WL 2546195 (E.D. Cal. June 20, 2019); Doughty v.

State Emp. Ass’n of N.H., No. 19-CV-53 (D.N.H. May 30, 2019), appeal

pending, No. 19-1636 (1st Cir.); Babb v. Cal. Teachers Ass’n, 378 F.

Supp. 3d 857 (C.D. Cal. 2019), appeal pending, No. 19-55692 (9th Cir.);

Wholean v. CSEA SEIU Local 2001, No. 18-CV-1008, 2019 WL

1873021 (D. Conn. Apr. 26, 2019), appeal pending, No. 19-1563 (2d

Cir.); Akers v. Md. Educ. Ass’n, 376 F. Supp. 3d 563 (D. Md. 2019),

appeal pending, No. 19-1524 (4th Cir.); Bermudez v. SEIU Local 521,

No. 18-CV-4312, 2019 WL 1615414 (N.D. Cal. Apr. 16, 2019); Hough

v. SEIU Local 521, No. 18-CV-4902, 2019 WL 1785414 (N.D. Cal. Apr.

16, 2019), appeal pending, No. 19-15792 (9th Cir.); Lee v. Ohio Educ.

Ass’n, 366 F. Supp. 3d 980 (N.D. Ohio 2019), appeal pending, No. 19-

3250 (6th Cir.); Crockett v. NEA-Alaska, 367 F. Supp. 3d 996 (D. Alaska

2019), appeal pending, No. 19-35299 (9th Cir.); Carey v. Inslee, 364 F.

Supp. 3d 1220 (W.D. Wash. 2019), appeal pending, No. 19-35290 (9th

Cir.); Cook v. Brown, 364 F. Supp. 3d 1184 (D. Or. 2019), appeal

pending, No. 19-35191 (9th Cir.). See also Jarvis v. Cuomo, 660 F.

App’x 72 (2d Cir. 2016); Winner v. Rauner, No. 15-CV-7213, 2016 WL

7374258 (N.D. Ill. Dec. 20, 2016); Hoffman v. Inslee, No. 14-CV-200,

2016 WL 6126016 (W.D. Wash. Oct. 20, 2016).

20 DANIELSON V. INSLEE

rights under the First and Fourteenth Amendments.

Plaintiffs did not allege that the Union violated their rights

under Abood or any similar pre-Janus authority. In fact,

Plaintiffs devoted several paragraphs of their complaint to

an effort to discredit Abood as controlling authority, so that

their claims might prevail.

Because Plaintiffs’ claims arise from the Union’s

reliance on Abood, not allegations that the Union flouted that

authority, the Union need not show compliance with

Abood’s strictures to assert successfully a good faith

defense. Such a requirement would be entirely divorced

from the allegations in this action.

IV. CONCLUSION

When the Supreme Court delivered its decision in Janus,

the Union was required to change its policies to conform to

the newly-announced law of the land. And it did. But the

shift in precedent only carries the plaintiff employees so far.

We hold that the Union is not retrospectively liable for doing

exactly what we expect of private parties: adhering to the

governing law of its state and deferring to the Supreme

Court’s interpretations of the Constitution. A contrary result

would upend the very principles upon which our legal

system depends. The good faith affirmative defense applies

as a matter of law, and the district court was right to dismiss

Plaintiffs’ claim for monetary relief.

AFFIRMED.