Petition for Writ of Certiorari — Patrick Doughty, et al., Petitioners v. State Employees’ Association of New Hampshire, SEIU Local 1984, CTW, CLC

No. _____

In the Supreme Court of the United States

_____________

PATRICK DOUGHTY AND RANDY SEVERANCE,

v.

Petitioners,

STATE EMPLOYEES’ ASSOCIATION OF NEW HAMPSHIRE,

SEIU LOCAL 1984, CTW, CLC,

Respondent.

_____________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

_____________

PETITION FOR WRIT OF CERTIORARI

_____________

FRANK D. GARRISON

Counsel of Record

MILTON L. CHAPPELL

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

fdg@nrtw.org

Counsel for Petitioners

April 29, 2021

i

QUESTION PRESENTED

In 2018, this Court overruled Abood v. Detroit

Board of Education, 431 U.S. 209 (1977), holding

states and unions compel speech and association by

exacting agency fees from nonconsenting public-sector

employees and thus violate the First Amendment. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2486

(2018).

Petitioners are or were New Hampshire state employees who, before Janus, had agency fees exacted

from them by the State and respondent State Employees’ Association of New Hampshire. After Janus, petitioners sued respondent seeking damages or restitution under 42 U.S.C. § 1983 for this violation of their

First Amendment rights.

The First Circuit affirmed a district court order

dismissing petitioners’ complaint reasoning that their

First Amendment claim could be analogized to the

common-law torts of “abuse of process” and “malicious

prosecution,” which require a plaintiff to prove “malice” or “lack of probable cause” to recover damages or

restitution under § 1983.

The question presented is:

Does a First Amendment compelled speech and association claim for damages or restitution brought under 42 U.S.C. § 1983 require a plaintiff to prove malice

or lack of probable cause?

ii

PARTIES TO THE PROCEEDING

Petitioners are Patrick Doughty, a New Hampshire state employee, and Randy Severance, a retired

New Hampshire state employee. Petitioners were

Plaintiff-Appellants below.

Respondent, the State Employees’ Association of

New Hampshire, is a labor union that represents public employees in New Hampshire. Respondent was Defendant-Appellee below.

RULE 29 STATEMENT

A corporate disclosure statement is not required

under Supreme Court Rule 29.6 because no petitioner

is a corporation.

STATEMENT OF RELATED PROCEEDINGS

This case arises from and directly relates to these

proceedings in the U.S. District Court for the District

of New Hampshire and the U.S. Court of Appeals for

the First Circuit:

Doughty v. SEA, 19-cv-53-PB (D. N.H. May 30,

2019).

Doughty v. SEA, 981 F.3d 128 (1st Cir. 2020).

iii

TABLE OF CONTENTS

Page(s)

Question Presented ...................................................... i

Parties to the Proceeding ........................................... ii

Rule 29 Statement...................................................... ii

Statement of Related Proceedings ............................. ii

Table of Authorities..................................................... v

Petition for Writ of Certiorari ..................................... 1

Opinions Below ............................................................ 4

Jurisdiction .................................................................. 4

Constitutional and Statutory Provisions ................... 4

Statement ................................................................... 5

A. Legal Background.............................................. 5

B. Facts and Procedural History ........................... 7

Reasons for Granting the Petition ............................ 10

I. The Decision Below Conflicts with this Court’s

Precedents ............................................................ 11

A. The decision below conflicts with this Court’s §

1983 jurisprudence and ignored this Court’s

holding in Janus.............................................. 11

B. The decision below conflicts with this Court’s

civil-retroactivity jurisprudence ..................... 17

II. This Case Is Exceptionally Important ................. 20

Conclusion ................................................................. 23

iv

TABLE OF CONTENTS—Continued

Page(s)

Appendix:

A. Judgment, United States Court of Appeals for

the First Circuit ...................................... App. 1

B. Opinion, United States Court of Appeals for

the First Circuit ....................................... App. 2

C. Judgment, United States District Court for

the District of New Hampshire ............. App. 21

D. Transcript, United States District Court for

the District of New Hampshire ............. App. 22

E. Complaint, United States District Court for

the District of New Hampshire ............ App. 48

v

TABLE OF AUTHORITIES

Page(s)

CASES

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977)..................................................1

Albright v. Oliver,

510 U.S. 266 (1994)........................................ 2, 6, 13

Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ............................................... 14

Carey v. Piphus,

435 U.S. 247 (1978) ............................................... 13

Daniels v. Williams,

474 U.S. 327 (1986) ............................................... 12

Diamond v. Pa. State Educ. Ass’n,

972 F.3d 262 (3d Cir. 2020) ....................... 15, 16, 22

Estelle v. Gamble,

429 U.S. 97 (1976) ................................................. 14

Franklin v. Navient, Inc.,

2021 WL 1535575, at *2 (D.Del., 2021) ............... 18

Harper v. Va. Dep’t of Tax’n,

509 U.S. 86 (1993).................................................. 18

Imbler v. Pachtman,

424 U.S. 409 (1976)..................................................7

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018).................................... passim

Knox v. SEIU, Loc. 1000,

567 U.S. 298 (2012)..................................................5

Manuel v. City of Joliet,

137 S. Ct. 911 (2017)...................................... passim

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ........................................... 12

vi

Owen v. City of Indep.,

445 U.S. 622 (1980)..................................................7

Parratt v. Taylor,

451 U.S. 527 (1981).......................................... 12, 21

Rehberg v. Paulk,

566 U.S. 356 (2012)............................................ 7, 20

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995)........................................ passim

Richardson v. McKnight,

521 U.S. 399 (1997)..................................................7

Soldal v. Cook Cnty.,

506 U.S. 56 (1992) ................................................. 16

Thomas v. Collins,

323 U.S. 516 (1945)................................................ 17

Tower v. Glover,

467 U.S. 914 (1984)..................................................7

Tucker v. Interscope Recs., Inc.,

515 F.3d (9th Cir. 2008) ....................................... 16

W. Va. Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) ............................................... 21

Wyatt v. Cole,

504 U.S. 158 (1992)...................................... 7, 14, 15

Wyatt v. Cole,

994 F.2d 1113 (5th Cir. 1993) ......................... 14, 15

CONSTITUTIONAL AMENDMENTS

U.S. Const. amend. I ..................................... passim

FEDERAL STATUTES

28 U.S.C. § 1254.......................................................4

42 U.S.C. § 1983............................................. passim

vii

OTHER AUTHORITIES

Thomas M. Cooley, A Treatise on the Law of Torts

(1876) ...................................................................... 15

1

PETITION FOR WRIT OF CERTIORARI

For many years, petitioners were compelled as a

condition of employment to subsidize the respondent

union’s speech. But in 2018, this Court overruled

Abood v. Detroit Board of Education, 431 U.S. 209

(1977) in Janus v. AFSCME, Council 31, 138 S. Ct.

2448, 2486 (2018), finding that compelling nonunion

member employees to subsidize a union’s speech violates the First Amendment.

Petitioners then sued on behalf of themselves and

other similarly situated employees to recover the

money that respondent took from them, during the

statutory limitations period, in violation of their First

Amendment rights. They did so under 42 U.S.C. §

1983, which Congress enacted to provide a remedy for

those who have suffered constitutional violations.

Naturally, petitioners’ claim sought damages or restitution for the respondent’s constitutional violations

under the First Amendment. After all, Janus held

that identical compelled fee seizers violated publicsector employees’ First Amendment rights.

But the District Court below dismissed petitioners’

claim on two grounds unrelated to the First Amendment. First, the court held that it did not matter what

constitutional right petitioners pled because the court

could infer that § 1983 provided respondent an affirmative “good-faith” defense based on respondent’s alleged reliance on Abood. The court then alternatively

held it could analogize petitioners’ First Amendment

claim for compelled speech and association to the common-law tort abuse of process. And because that tort

required proof of “malice” or “lack of probable” cause,

which the court held petitioners could not prove, they

2

could not recover damages or restitution for their

First Amendment claim.

The First Circuit rejected the District Court’s primary holding that § 1983 contained an affirmative defense, but upheld the District Court on its alternative

rationale that the common-law torts of abuse of process or malicious prosecution provided an analogue for

petitioners’ First Amendment claim. To justify this

holding, the panel cited respondent’s reliance interests and several cases applying these common-law

torts to claims alleging Fourteenth Amendment procedural due process violations—not First Amendment

violations.

The First Circuit’s holding defies this Court’s precedent and cannot stand. First, determining the elements of a claim under § 1983 requires courts first “to

identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994).

Then courts “must determine the elements of, and

rules associated with, an action seeking damages for

its violation.” Manuel v. City of Joliet, 137 S. Ct. 911,

920 (2017). And courts “must closely attend to the values and purposes of the constitutional right at issue”

when determining the elements of a § 1983 claim. Id.

at 921. The First Circuit’s decision did not apply the

values and purposes of the First Amendment nor this

Court’s interpretation of it under Janus. The First

Amendment implicates different values and purposes

than the Fourteenth Amendment’s Procedural Due

Process Clause—and the common-law torts that resemble it. The First Circuit should have applied the

Constitution’s First Amendment to determine

whether respondents deprived petitioners of their

First Amendment rights.

3

Second, the First Circuit’s holding defies this

Court’s retroactivity jurisprudence. Courts cannot

fashion legal rules to avoid applying this Court’s holdings retroactively. See Reynoldsville Casket Co. v.

Hyde, 514 U.S. 749, 753–54 (1995). Yet the First Circuit’s opinion, and the district court order it affirmed,

did not hide the reason for grafting state-of-mind requirements onto petitioners’ First Amendment claim.

Both courts below repeatedly referred to respondent’s

reliance interests—reliance interests that this Court

already held were insufficient to retain Abood—before

analogizing inapt common-law torts and applying

their state-of-mind requirements to petitioners’ claim.

This type of pretextual legal analysis defies Reynoldsville Casket.

The First Circuit’s decision to import elements of a

common-law tort into petitioners’ First Amendment

claims—based on its aversion to applying this Court’s

rules retroactively—undermines the Constitution and

will have adverse consequences for civil rights plaintiffs. If lower courts can manipulate constitutional

claims to achieve what they feel is the best policy,

many victims of civil rights abuses will be left remediless. It is therefore exceptionally important that the

Court take this case, overrule the First Circuit’s decision, and direct it to apply the First Amendment to

petitioners’ First Amendment claims.

For these reasons, petitioners respectfully request

this Court grant this petition for a writ of certiorari to

review the judgment of the United States Court of Appeals for the First Circuit.

4

OPINIONS BELOW

The United States Court of Appeals for the First

Circuit’s opinion is reported at 981 F.3d 128 (1st Cir.

2020) and reproduced at App. 2–20. The United States

District Court for the District of New Hampshire’s unpublished Order and Transcript are reproduced at

App. 21–47.

JURISDICTION

The First Circuit entered judgment on November 30,

2020. On March 19, 2020, this Court extended the

deadline to file any petition for a writ of certiorari due

on or after that date to 150 days. This Court has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The United States Constitution’s First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or 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.”

42 U.S.C. § 1983 provides in relevant part: “Every

person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress * * *[.]”

5

STATEMENT

A. Legal Background

1. In 2018, this Court overruled Abood holding

that it violates the First Amendment for states and

unions to exact agency fees from nonconsenting employees. Janus, 138 S. Ct. at 2486. In doing so, the

Court recognized that the freedom of speech includes

the freedom to refrain from speaking—just as it protects the right to speak. Id. at 2463. For this reason,

forcing individuals to subsidize the speech of another

private speaker creates “similar First Amendment

concerns.” Id. at 2464. And, the Court found, a “‘significant impingement on First Amendment rights’ occurs when public employees are required to provide

financial support for a union that ‘takes many positions during collective bargaining that have powerful

political and civic consequences.’” Id. at 2463 (quoting

Knox v. SEIU, Loc. 1000, 567 U.S. 298, 310–11

(2012)).

The Court thus held “public-sector agency-shop arrangements violate the First Amendment[.]” Id. at

2478. Unions therefore cannot “extract agency fees

from nonconsenting employees.” Id. at 2486. And for a

state and union to legally extract agency fees from

public-sector employees, those employees must waive

their First Amendment rights and affirmatively consent to pay. Id.

During the four-decade span between Abood and

Janus, unions were allowed to exact vast amounts of

money for their expressive activities from nonunion

public employees’ wages. As this Court noted in Janus, it is “hard to estimate how many billions of dollars” unions were allowed to unconstitutionally seize

6

and keep during that time. Id. The Court likewise

found “unions have been on notice for years regarding

this Court’s misgiving about Abood” and that, since at

least 2012, “any public-sector union seeking an

agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality

of such a provision was uncertain.” Id. at 2484–85.

2. Congress enacted § 1983 to give victims of constitutional violations a cause of action to vindicate

their constitutional rights in federal court. This purpose is clear from § 1983’s text: “Every person who,

under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or

other proper proceeding for redress * * *[.]” 42 U.S.C.

§ 1983.

The elements for establishing a “deprivation” for a

constitutional claim under § 1983 depend on “the specific constitutional right allegedly infringed.” Albright, 510 U.S. at 271. The Court “look[s] first to the

common law of torts.” Manuel, 137 S. Ct. at 920.

Sometimes a review of the common law will “lead a

court to adopt wholesale the rules that would apply in

a suit involving the most analogous tort.” Id. But that

is not always the case. Because “[c]ommon-law principles are meant to guide rather than to control the definition of § 1983 claims, serving ‘more as a source of

inspired examples than of prefabricated components.’”

7

Id. at 921 (citation omitted). And § 1983 is not “a federalized amalgamation of pre-existing common-law

claims.” Rehberg v. Paulk, 566 U.S. 356, 366 (2012).

The statutory text “‘on its face admits of no immunities’ * * * [i]ts language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted.” Owen v. City

of Indep., Mo., 445 U.S. 622, 635 (1980) (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). Even so,

this Court has found that if an immunity or defense

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” when it enacted § 1983, then a

court can find an immunity or defense. Richardson v.

McKnight, 521 U.S. 399, 403 (1997) (quoting Wyatt v.

Cole, 504 U.S. 158, 164 (1992)). But courts “do not

have a license to create immunities based solely on

[their] view[s] of sound policy,” Rehberg, 566 U.S. at

363, and thus “do not have a license to establish immunities from § 1983 actions in the interests of * * *

sound public policy. It is for Congress to determine

whether § 1983 litigation has become too burdensome.” Tower v. Glover, 467 U.S. 914, 922–23 (1984).

B. Facts and Procedural History

1. Petitioner Patrick Doughty is a New Hampshire State employee and petitioner Randy Severance

is a retired New Hampshire State employee. Respondent union represented both petitioners as their collective bargaining agent before Janus. At that time, pe-

8

titioners were not union members, but were compelled, as a condition of employment, by respondent to

pay agency fees without their consent. App. 3–5, 52.

Shortly after this Court’s holding in Janus, petitioners sued respondent under § 1983. They alleged

that respondents violated their First Amendment

rights as recognized in Janus, seeking damages or restitution for themselves, and a class of similarly situated employees, for the agency fees respondent unconstitutionally exacted from their wages during the statutory limitations period. App. 5–6, 54–56.

The District Court below dismissed petitioners’

complaint. App. 44. The court first questioned

whether it would be “right to require [respondent] to

pay damages for acting consistent with the requirements of state law and … [S]upreme [C]ourt precedent.” App. 7, 24. The court thus found it “incomprehensible” that “damages[s] actions [could] be maintained under these ‘unique circumstances.’” App. 8,

37.

In line with its aversion to providing petitioners

any relief for the deprivations they suffered before Janus, the District Court dismissed petitioners First

Amendment claim for two alternative reasons. First,

the court found that a “good faith defense must be

available to protect defendants under these kinds of

circumstances.” App. 8, 42. The court thus held it

could “infer[]” an affirmative defense to petitioners’

First Amendment claim based on this Court’s precedent “recognizing the qualified immunity doctrine.”

App. 42. Because petitioners could not overcome this

affirmative defense, the District Court dismissed their

claim on that basis. App. 42–46.

9

The court then alternatively held that it could dismiss petitioners’ complaint because the most analogous tort to a compelled speech and association claim

under the First Amendment is the common-law tort of

abuse of process. App. 42–43. And petitioners could

not prove the state-of-mind requirements for that tort.

App. 43.

2. The First Circuit affirmed the District Court’s

order. App. 1, 20. The panel began its legal analysis

by noting that it “must attend to the District Court's

concern that the recognition of such a damages claim

under § 1983 would unduly upset the justifiable reliance interests of the private defendant.” App. 10. But

the panel rejected the District Court’s holding that §

1983 contains an affirmative defense based on reliance interests. Id. (“In attending to [the District

Court’s] concern, we do not embark on a free-wheeling

assessment of whether to import into § 1983 a policy

based on protection of reliance interests.”). The panel,

though, determined it would look to the common law

in “defining the elements of damages and the prerequisites for their recovery” for petitioners’ First

Amendment claim. Id.

The panel looked to several cases in which other

courts of appeal analogized First Amendment compelled speech and association claims brought under

Janus to the common-law torts of malicious prosecution and abuse of process. App. 11–12. The court also

looked to several cases that found Fourteenth Amendment procedural due process claims analogous to

those common-law torts. App. 12–14. Because those

torts include the state of mind requirements “malice”

and “lack of probable cause,” which petitioners could

10

not prove, they could not recover damages or restitution for their claim. See id.

Even so, the panel acknowledged that petitioners’

First Amendment compelled speech and association

claim “protects interests quite different from those

protected by the common-law torts of malicious prosecution and abuse of process,” yet found their claim

“similar to claims for those common-law torts in that

it seeks to compensate them for a private party having

used a lawful-when-invoked, state-backed process to

acquire their property, even though that process was

subsequently held to be unlawful due to a change in

the law.” App. 14–15.

The panel likewise acknowledged “while [petitioners] are right that their Janus-based § 1983 claim * *

* is distinct from the use of a court process to effect a

seizure,” the panel reasoned * * * “[s]ome divergence

is to be expected even between a § 1983 claim and a

common-law tort that it closely parallels.” App. 15.

The panel also concluded that petitioners’ distinction

“between their [First Amendment] § 1983 claim and

the common-law torts of abuse of process and malicious prosecution might have force if there were any

indication that the common law was as indifferent to

reliance interests in a circumstance like the one at issue here.” App. 16.

REASONS FOR GRANTING THE PETITION

It is hard to overstate this case’s legal importance.

Not only for remedying petitioners’ First Amendment

rights, but for many individuals who depend on the

remedy Congress gave them to redress their constitutional rights under § 1983. The decision below determined that it could ignore the First Amendment, look

11

into the common law for inapt torts requiring a stateof-mind element, and essentially nullify petitioners’

congressionally provided remedy.

First, the First Circuit’s holding flouts this Court’s

precedent requiring courts to look to the constitutional right at issue in determining elements of a §

1983 claim. It likewise ignored this Court’s holding in

Janus, which did not suggest that “malice” or “lack of

probable cause” played any part in a First Amendment compelled speech and association analysis.

Second, the decision flouts this Court’s retroactivity jurisprudence. It does so by fashioning a pretextual

rule to avoid the retroactive applicability of this

Court’s ruling in Janus and protecting a union’s alleged reliance interests—reliance interests this Court

already adjudicated in Janus.

Last, it is exceptionally important the Court take

this case because the First Circuit’s holding undermines the Constitution and will have adverse consequences for civil rights plaintiffs. The decision sets a

precedent that courts can manipulate constitutional

claims to predetermine the outcome of cases based on

what they think is good policy. The Court should take

this case and reject the proposition that courts can engage in such judicial gerrymandering. Certiorari is

warranted.

I.

The Decision Below Conflicts with this Court’s

Precedents.

A. The decision below conflicts with this Court’s §

1983 jurisprudence and ignores this Court’s

holding in Janus.

The First Circuit’s decision contravenes this

Court’s § 1983 precedents because it conflates the

12

First Amendment with the Fourteenth Amendment’s

Procedural Due Process Clause and the common-law

torts that resemble violations under it. And in doing

so, it ignored this Court’s holding for what a compelled

speech and association claim requires under Janus.

That contravention demands this Court’s intervention.

1. Section 1983 provides a cause of action for the

“deprivation of any rights, privileges, or immunities

secured by the Constitution and laws.” 42 U.S.C. §

1983. The statute does not include a “state of mind requirement.” Parratt v. Taylor, 451 U.S. 527, 534–35

(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). As this Court explained in

Parratt, “[n]othing in the language of § 1983 or its legislative history limits the statute solely to intentional

deprivations of constitutional rights.” Id. at 534.1

Several years later, the Court reaffirmed § 1983

does not have a general state of mind requirement. In

Daniels, the Court explained that § 1983 “contains no

state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” 474 U.S. at 330 (citing Parratt, 451 U.S.

at 534–35). In other words, if a plaintiff must prove a

defendant’s state of mind, it is only because that constitutional right at issue requires that proof.

See also Parratt, 451 U.S. at 534 (“[§] 1983, unlike its criminal

counterpart, 18 U.S.C. § 242, has never been found by this Court

to contain a state-of-mind requirement.”); Nieves v. Bartlett, 139

S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (“[L]ook at [§ 1983] as long as you like and you

will find no reference to the presence or absence of probable cause

as a precondition or defense to any suit.”)

1

13

In Manuel, this Court gave a guide to courts on

how to determine the requirements for a constitutional claim under § 1983. There, the Court analyzed

whether a plaintiff must bring a § 1983 pretrial detention claim under the Fourteenth Amendment’s Due

Process Clause or whether a plaintiff has a cause of

action under the Fourth Amendment. See 137 S. Ct.

at 917–20. The Seventh Circuit had determined that

a plaintiff could not bring a pretrial detention claim

under the Fourth Amendment once legal process had

begun, because the Fourth Amendment no longer applies after arrest and the onset of legal process. Id.

And thus the plaintiff had pled “the wrong part of the

Constitution.” Id. at 916. In rejecting that view, the

Court analyzed the Fourth Amendment and the case

law surrounding it to find that a pretrial detention is

covered by that Amendment and thus the Court identified “the specific constitutional right at issue.” Id. at

920 (citing Albright, 510 U.S. at 271).

But that only addresses the threshold inquiry of

what constitutional right to apply. Courts must also

“determine the elements of, and rules associated with,

an action seeking damages for its violation.” Id. (citing

Carey v. Piphus 435 U.S. 247, 257–58 (1978)). In doing

so, a court should “look first to the common law of

torts” because sometimes “that review of common law

will lead a court to adopt wholesale the rules that

would apply in a suit involving the most analogous

tort.” Id. “But not always. Common-law principles are

meant to guide rather than to control the definition of

§ 1983 claims, serving ‘more as a source of inspired

examples than of prefabricated components.’” Id. at

921 (emphasis added) (citation omitted). And “[i]n ap-

14

plying, selecting among, or adjusting common-law approaches, courts must closely attend to the values and

purposes of the constitutional right at issue.” Id.

Sometimes that analysis will lead a court to find

there is a state-of mind-requirement for this constitutional violation under § 1983. For example, an equal

protection violation requires a plaintiff to prove an invidious discriminatory purpose before he or she can

recover damages under § 1983. See Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

An Eighth Amendment claim for “cruel and unusual

punishment” requires a plaintiff to prove “deliberate

indifference” before recovery is available. See Estelle

v. Gamble, 429 U.S. 97, 101–105 (1976). And, as most

relevant here, some procedural due process claims under the Fourteenth Amendment sometimes require a

plaintiff to prove “malice” or “lack of probable cause”

as an element of the prima facie case. See, e.g., Wyatt

v. Cole, 994 F.2d 1113, 1119–20 (5th Cir. 1993). But

those cases all concentrated on the constitutional provision at issue.

2. Applying these principles, the First Circuit’s

decision should have analyzed the First Amendment

and this Court’s case law to determine whether § 1983

required petitioners to prove respondent’s state of

mind when it deprived petitioners of their First

Amendment rights. The decision instead did not

“closely attend” to the First Amendment, ignored this

Court’s holding in Janus, and applied inapt commonlaw torts to graft on a state-of-mind requirement to

petitioners’ claim.

Indeed, the decision analyzed several cases that

concerned the use of judicial or governmental processes to deprive someone of their property. App. 10–

15

12. Most of those cases trace to this Court’s opinion in

Wyatt, 504 U.S. 158, and the Fifth Circuit’s holding

on remand. Wyatt, 994 F.2d 1113. Those cases in the

main were brought under the Fourteenth Amendment’s Procedural Due Process Clause. The claim in

Wyatt, for example, was that a private defendant deprived the plaintiff of due process of law when seizing

his property through a judicial process under an ex

parte replevin statute. Wyatt, 504 U.S. at 160. The

Court found the plaintiff’s due process claims analogous to “malicious prosecution and abuse of process,”

and recognized that at common law “private defendants could defeat a malicious prosecution or abuse of

process action if they acted without malice and with

probable cause.” Id. at 164–65; see id. at 172–73 (Kennedy, J., concurring) (similar). And that made sense

to a degree. After all, the defendant in Wyatt, like

most defendants in a common-law tort action for malicious prosecution or abuse of process, used the judicial system to deprive a plaintiff of their rights. There

was a common link.

There is no common link between a First Amendment compelled speech and association claim under

Janus and these torts other than there is property involved. As the Third Circuit observed in a post-Janus

case with similar facts as here, “the torts of abuse of

process and malicious prosecution provide at best attenuated analogies. It seems apparent that we are not

dealing here simply with a civil ‘process ... willfully

made use of for a purpose not justified by the law,’ * *

* let alone ‘the malicious institution of a civil suit’” Diamond v. PSEA, 972 F.3d 262, 280 (3rd Cir. 2020)

(Fisher, J., concurring) (citing Thomas M. Cooley, A

Treatise on the Law of Torts 187, 189 (1876)). The

16

First Amendment is different from the Fourteenth

Amendment’s Due Process Clause and the commonlaw torts applied in these cases.2

3. This Court held in Janus that the First Amendment protects public employees’ freedom from being

compelled to financially support a labor union’s

speech as a condition of employment without their affirmative consent. 138 S. Ct. at 2486. This is because

“[c]ompelling a person to subsidize the speech of other

private speakers” undermines “our democratic form of

government” and leads to individuals being “coerced

into betraying their convictions.” Id. at 2464. Under

the First Amendment as construed by this Court in

Janus, then, all that is required for a defendant to “deprive” employees of their First Amendment rights is

to compel speech by taking their money without affirmative consent. 138 S. Ct. at 2486.

The injury in Janus and here is thus unlike that

caused by common-law torts. It is peculiar to the First

Amendment. More importantly, a violation of First

Amendment speech rights is nothing like a malicious

prosecution or abuse of process tort. See, e.g., Tucker

v. Interscope Recs., Inc., 515 F.3d 1019, 1037 (9th Cir.

2008) (“[T]he tort of abuse of process requires misuse

of a judicial process.”); see also Diamond, 972 F.3d at

289 (Phipps. J, dissenting) (“At most, a showing of

good faith can negate a mental state element of a

claim – such as gross negligence required for a procedural due process claim. But that is of no moment here

2 To be sure, “[c]ertain wrongs affect more than a single right

and, accordingly, can implicate more than one of the Constitution’s commands.” Soldal v. Cook Cnty., 506 U.S. 56, 70 (1992).

But petitioners did not plead a deprivation of due process below—they pled a First Amendment violation. App. 54.

17

because a claim for compelled speech does not have a

mens rea requirement.”) (citations omitted). Those

torts do not exist, as the First Amendment does, “to

foreclose public authority from assuming a guardianship of the public mind through regulating the press,

speech, and religion.” Thomas v. Collins, 323 U.S. 516,

545 (1945) (Jackson, J., concurring).

4. In sum, The First Amendment is not like the

Fourteenth Amendment’s Procedural Due Process

Clause. And the common-law torts of malicious prosecution or abuse of process do not resemble a compelled

subsidization of speech claim under Janus. Malice and

lack of probable cause thus are not elements of a First

Amendment claim under Janus. Respondent’s intent

when it compelled petitioners’ speech was immaterial.

With no common-law tort resembling a First Amendment compelled speech and association claim, the

First Circuit should have looked to the First Amendment and this Court’s opinion in Janus and applied it

to petitioners’ claim.

B. The decision below conflicts with this Court’s

civil-retroactivity jurisprudence.

The courts below reiterated a common theme

throughout their decision-making: the respondent’s

reliance interests. App. 16–17, 24. But that reliance

should have played no part in the lower courts’ analysis. First, this Court adjudicated unions’ reliance interests in Janus and found those interests insufficient

to retain Abood. See Janus, 138 S. Ct. at 2484–86. But

more importantly, this Court’s retroactivity jurisprudence forbids lower courts from using reliance to formulate rules that foreclose retroactive liability for victims of unconstitutional laws.

18

1. In Reynoldsville Casket Co., this Court held

that “when (1) the Court decides a case and applies

the (new) legal rule of that case to the parties before

it, then (2) it and other courts must treat that same

(new) legal rule as ‘retroactive,’ applying it, for example, to all pending cases, whether or not those cases

involve predecision events.” 514 U.S. at 752 (citing

Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993)).3

Reynoldsville Casket not only reiterated that lower

courts must apply its decisions retroactively, but also

further held courts cannot avoid retroactive applica-

3 As Judge Bibas recently explained (sitting by designation):

The Supreme Court has the power to declare law,

not make it. The Constitution vests “[a]ll legislative Powers in Congress. Courts are limited to

judging ‘Cases’ and ‘Controversies.’ As Blackstone explained, they are ‘not delegated to pronounce a new law, but to maintain and expound

the old one.’ Their only power is “to say what the

law is.” So federal courts cannot ‘change’ the law’;

they can only, in deciding cases, say what a law

‘has meant continuously since the date when it

became law.’

Because Supreme Court decisions clarify what

the law ‘ha[s] always meant,’ their rulings apply

to all open cases, even those whose facts predate

the ruling. Otherwise, they would be ‘not ... adjudication but in effect ... legislation.’ In short, judicial decisions apply retroactively.

Franklin v. Navient, Inc., 2021 WL 1535575, at *2 (D.Del., 2021)

(cleaned up). See also Harper, 509 U.S. at 107 (Scalia, J., concurring) (“retroactivity [i]s an inherent characteristic of the judicial

power.”).

19

tion of this Court’s cases by fashioning contrary remedies based on a party’s prior reliance on now a overruled law. Id. at 753–54.

2. The First Circuit’s decision contravenes Reynoldsville Casket’s holding. The district court referred

repeatedly to respondent’s reliance interests before

holding it could tack on state-of-mind elements to petitioners’ First Amendment claim. App. 37. The First

Circuit also “attended” to those reliance interests

when affirming the District Court’s order. App. 16–17.

Indeed, the First Circuit’s decision went out of its way

to base its justification for adopting inapt commonlaw torts to petitioners’ First Amendment claim so

that respondent’s alleged reliance interests were protected. Id.

To be sure, the Court’s retroactivity doctrine permits courts to find “a previously existing, independent

legal basis (having nothing to do with retroactivity)

for denying relief.” Reynoldsville Casket Co., 514 U.S.

at 759. But courts cannot fashion the elements of constitutional claims in a way to avoid applying this

Court’s cases retroactively. Reynoldsville Casket precludes this type of end-run around retroactivity. Indeed, in rejecting a similar attempt in that case, this

Court put it aptly: “If Harper has anything more than

symbolic significance, how could virtually identical reliance, without more, prove sufficient to permit a virtually identical denial simply because it is characterized as a denial based on ‘remedy’ rather than ‘nonretroactivity.’” Id. at 754 (emphasis added).

So too here. When a court creates new elements to

a constitutional claim that are predicated on a defendant’s reliance on overturned law, the court is fashioning the law to avoid the retroactive application of this

20

Court’s precedent. It is not engaging in a neutral analysis of the law. The First Circuit’s decision engaged in

just such an analysis to effectively render respondent’s unconstitutional behavior constitutional. That

conflicts with this Court’s retroactivity doctrine and

this Court’s command that “other courts must treat

that same (new) legal rule as ‘retroactive,’ applying it,

for example, to all pending cases, whether or not those

cases involve predecision events.” Id. at 752.

II.

This Case is Exceptionally Important.

This case is profoundly important not just for the

vindication of petitioners’ First Amendment rights,

but also for other civil rights plaintiffs who rely on §

1983 to obtain a remedy for violations of their constitutional rights. Congress enacted § 1983 to give plaintiffs a mechanism to enforce the Constitution’s mandates against those who use governmental power to

invade protected liberties. But if lower courts, like the

court below did here, can fashion constitutional claims

brought under § 1983 to achieve what they feel is the

best policy, it will undermine the Constitution and

will leave many victims of civil rights abuses remediless. It is therefore exceptionally important that this

Court take this case and make clear that the Constitution is the primary source for determining what constitutes a “deprivation” under § 1983.

1. Section 1983 is not “a federalized amalgamation of preexisting common-law claims, an all-in-one

federal claim encompassing the torts of assault, trespass, false arrest, defamation, malicious prosecution,

and more.” Rehberg, 566 U.S. at 366. While courts

may use common law as a rough guide for determining

the rules associated with certain deprivations, “[t]he

21

new federal claim created by § 1983 differs in important ways from those pre-existing torts. It is

broader in that it reaches constitutional and statutory

violations that do not correspond to any previously

known tort.” Id.

This principle conforms with § 1983’s text, which

only requires two prerequisites for a claim: “(1)

whether the conduct complained of was committed by

a person acting under color of state law; and (2)

whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or

laws of the United States.” Parratt, 451 U.S. at 535.

There is no mention of common-law torts for determining whether a deprivation of constitutional rights

has occurred—it refers instead to depriving a person

“of rights * * *secured by the Constitution * * *[.]”

2. The court below violated that principle by using

tenuous common-law analogues to control and limit

the scope of constitutional claim unlike any commonlaw tort: A First Amendment claim for compelled

speech and association under Janus. That claim only

requires for its violation that a union compel publicemployees to subsidize its speech without employees’

affirmative consent. 138 S Ct. at 2486. What is more,

in analogizing common-law torts to petitioners’ First

Amendment claim, the court below undermined the

value of the First Amendment, a “fixed star in our constitutional constellation” that prevents others from

“forc[ing] citizens to confess by word or act” their belief on important matters of public concern. See W. Va.

Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943).

The First Circuit should have looked to this

Court’s holding in Janus to determine whether respondent “deprived” petitioners of their constitutional

22

rights. Under Janus, no showing of malice or lack of

probable cause is needed to establish that a union violates an employees’ First Amendment rights when

seizing money for union speech from them.

3. Any other rule of construction invites broad judicial policymaking and will have severe consequences for civil rights plaintiffs. Indeed, the First

Circuit’s is not an isolated holding. Other courts have

likewise felt untethered from the First Amendment

and this Court’s holding in Janus, applying the same

inapt common-law torts—or in some cases an affirmative “good-faith” defense—to deny public-employees’

a remedy based on unions’ reliance interests. See, e.g.,

Diamond, 972 F.3d at 264–73 (Rendell, J., opinion)

(applying both an affirmative “good-faith” defense and

common-law torts to plaintiffs’ First Amendment

claims).

But it is not just the rights of public-employees’

vindicated by Janus that the decision below threatens. The decision provides a road map for courts to

disregard the values and purposes of any constitutional right this Court newly recognizes and circumvent the remedies Congress provided to vindicate

those rights. It is thus exceptionally important that

the Court take this case, overrule the First Circuit’s

decision, and direct it to apply the First Amendment

to petitioners’ First Amendment claims. Certiorari is

warranted.

* * * * *

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CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

FRANK D. GARRISON

Counsel of Record

MILTON L. CHAPPELL

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

fdg@nrtw.org

Counsel for Petitioners

April 29, 2021