Opposition Brief — Kiernan Wholean, et al., Petitioners v. CSEA SEIU Local 2001, et al.

No. 20-605

IN THE

Supreme Court of the United States

___________________

KIERNAN WHOLEAN, ET AL.,

Petitioners,

v.

CSEA SEIU LOCAL 2001, ET AL.,

Respondents.

___________________

On Petition for a Writ of Certiorari to the

United States Court of Appeal for the Ninth Circuit

___________________

BRIEF IN OPPOSITION

___________________

DAN LIVINGSTON

SCOTT A. KRONLAND

LIVINGSTON, ADLER,

Counsel of Record

PULDA, MEIKLEJOHN & P. CASEY PITTS

KELLY PC

ALTSHULER BERZON LLP

557 Prospect Avenue

177 Post Street, Suite 300

Hartford, CT 06105-2922 San Francisco, CA 94108

(860) 233-9821

(415) 421-7151

skronland@altber.com

Counsel for Respondent CSEA SEIU LOCAL 2001

i

QUESTION PRESENTED

Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for

receiving and spending agency fees to pay for collective bargaining representation prior to Janus v.

AFSCME Council 31, 138 S. Ct. 2448 (2018), even

though such fees were authorized by state law and

constitutional under then-binding Supreme Court

precedent.

ii

CORPORATE DISCLOSURE STATEMENT

Respondent CSEA SEIU Local 2001 is not a corporation. Respondent has no parent corporation, and no

corporation or other entity owns any stock in respondent.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE.................................... 1

A. Background ................................................. 1

B. Proceedings below....................................... 3

REASONS FOR DENYING THE PETITION ........... 5

I.

The lower courts have unanimously

held that unions are not subject to

retrospective monetary liability

under Section 1983 for having

collected pre-Janus agency fees ............ 6

II.

Petitioners’ merits arguments have

already been found insufficient to

justify granting review ........................ 13

III.

There is no other justification for

this Court’s intervention at this

time ...................................................... 14

CONCLUSION.......................................................... 15

iv

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

431 U.S. 209 (1977) ................................. 2, 11, 12

Agostini v. Felton,

521 U.S. 203 (1997) ........................................... 15

Akers v. Md. State Educ. Ass’n,

376 F. Supp. 3d 563 (D. Md. 2019) ................... 10

Allen v. Cooper,

140 S. Ct. 994 (2020) ......................................... 15

Allen v. Santa Clara Cty. Corr. Peace

Officers Ass’n,

400 F. Supp. 3d 998 (E.D. Cal. 2019)................ 10

Babb v. Cal. Teachers Ass’n,

378 F. Supp. 3d 857 (C.D. Cal. 2019)................ 10

Bermudez v. SEIU Local 521,

2019 WL 1615414 (N.D. Cal. Apr. 16,

2019)..................................................................... 9

Brice v. Cal. Faculty Ass’n,

No. 19-cv-04095 (C.D. Cal. Sept. 10,

2019)................................................................... 10

California v. Rooney,

483 U.S. 307 (1987) ........................................... 12

Carey v. Inslee,

364 F. Supp. 3d 1220 (W.D. Wash. 2019) ........... 9

v

Casanova v. Int’l Ass’n of Machinists,

_ S. Ct. _, 2021 WL 231651 (Jan. 25,

2021)..................................................................... 1

Casanova v. Machinists Local 701,

No. 1:19-cv-00428 (N.D. Ill. Sept. 11,

2019)................................................................... 10

Chambers v. AFSCME Int’l,

450 F. Supp. 3d 1108 (D. Or. 2020) .................. 10

Clement v. City of Glendale,

518 F.3d 1090 (9th Cir. 2008) ......................... 5, 8

Cook v. Brown,

364 F. Supp. 3d 1184 (D. Or. 2019) .................... 9

Crockett v. NEA-Alaska,

367 F. Supp. 3d 996 (D. Alaska 2019) ................ 9

Danielson v. AFSCME Council 28,

340 F. Supp. 3d 1083 (W.D. Wash. 2018) ........... 9

Danielson v. Inslee,

_ S. Ct. _, 2021 WL 231555 (Jan. 25,

2021)..................................................................... 1

Danielson v. Inslee,

945 F.3d 1096 (9th Cir. 2019) ............................. 9

Diamond v. Pa. State Educ. Ass’n,

399 F. Supp. 3d 361 (W.D. Pa. 2019) ................ 10

Diamond v. Pa. State Educ. Ass’n,

972 F.3d 262 (3d Cir. 2020) ..................... 9, 12, 13

vi

Doughty v. State Employees’ Ass’n of N.H.,

SEIU Local 1984,

981 F.3d 128 (1st Cir. 2020) .................. 5, 8, 9, 14

Doughty v. State Emps. Ass’n of N.H.,

No. 1:19-cv-00053-PB (D.N.H. May 30,

2019)................................................................... 10

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ............................................. 8

Harris v. Quinn,

134 S. Ct. 2618 (2014) ....................................... 10

Hernandez v. AFSCME Cal.,

386 F. Supp. 3d 1300 (E.D. Cal. 2019).............. 10

Hoffman v. Inslee,

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

2016)................................................................... 11

Hough v. SEIU Local 521,

2019 WL 1785414 (N.D. Cal. Apr. 16,

2019)..................................................................... 9

Imhoff v. Cal. Teachers Ass’n,

No. 2:19-cv-01841 (C.D. Cal. July 1,

2019)................................................................... 10

Janus v. AFSCME Council 31,

_ S. Ct. _, 2021 WL 231649 (Jan. 25,

2021)..................................................................... 1

Janus v. AFSCME Council 31,

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

vii

Janus v. AFSCME Council 31,

2019 WL 1239780 (N.D. Ill. Mar. 18,

2019)..................................................................... 9

Janus v. AFSCME Council 31,

942 F.3d 352 (7th Cir. 2019) ....................... 5, 8, 9

Jarvis v. Cuomo,

660 F. App’x 72 (2d Cir. 2016) .......................... 11

Jordan v. Fox, Rothschild, O’Brien &

Frankel,

20 F.3d 1250 (3d Cir. 1994) ............................. 5, 8

Lee v. Ohio Educ. Ass’n,

_ S. Ct. _, 2021 WL 231559 (Jan. 25,

2021)..................................................................... 1

Lee v. Ohio Educ. Ass’n,

366 F. Supp. 3d 980 (N.D. Ohio 2019) ................ 9

Lee v. Ohio Educ. Ass’n,

951 F.3d 386 (6th Cir. 2020) ......................... 9, 11

Leitch v. AFSCME Council 31,

No. 1:19-cv-02921 (N.D. Ill. Jan. 30,

2020)................................................................... 10

Lugar v. Edmondson Oil Company,

457 U.S. 922 (1982) ....................................... 7, 11

Mattos v. AFSCME Council 3,

2020 WL 2027365 (D. Md. Apr. 27, 2020) ........ 10

Mooney v. Ill. Educ. Ass’n,

_ S. Ct. _, 2021 WL 231650 (Jan. 25,

2021)..................................................................... 1

viii

Mooney v. Ill. Educ. Ass’n,

372 F. Supp. 3d 690 (C.D. Ill. 2019).................... 9

Mooney v. Ill. Educ. Ass’n,

942 F.3d 368 (7th Cir. 2019) ............................... 9

O’Callaghan v. Regents of the Univ. of Cal.,

2019 WL 6330686 (C.D. Cal. Sept. 30,

2019)................................................................... 10

Ocol v. Chi. Teachers Union,

2020 WL 1467404 (N.D. Ill. Mar. 26,

2020)................................................................... 10

Ogle v. Ohio Civ. Serv. Emps. Ass’n,

_ S. Ct. _, 2021 WL 231560 (Jan. 25,

2021)..................................................................... 1

Ogle v. Ohio Civ. Serv. Emps. Ass’n,

951 F.3d 794 (6th Cir. 2020) ................... 9, 13, 14

Ogle v. Ohio Civ. Serv. Emps. Ass’n,

397 F. Supp. 3d 1076 (S.D. Ohio 2019) ............. 10

Penning v. SEIU Local 1021,

424 F. Supp. 3d 684 (N.D. Cal. 2020) ............... 10

Pinsky v. Duncan,

79 F.3d 306 (2d Cir. 1996) ............................... 5, 8

Seidemann v. Prof’l Staff Cong. Local 2334,

432 F. Supp. 3d 367 (S.D.N.Y. Jan. 10,

2020)................................................................... 10

Smith v. N.J. Educ. Ass’n,

2019 WL 6337991 (D.N.J. Nov. 27, 2019) ........ 10

ix

Vector Research, Inc. v. Howard & Howard

Attorneys P.C.,

76 F.3d 692 (6th Cir. 1996) ............................. 5, 8

Wenzig v. SEIU Local 668,

2019 WL 6715741 (M.D. Pa. Dec. 10,

2019)................................................................... 10

Wholean v. CSEA SEIU Local 2001,

2019 WL 1873021 (D. Conn. Apr. 26,

2019)................................................................... 10

Wholean v. CSEA SEIU Local 2001,

955 F.3d 332 (2d Cir. 2020) ................................. 9

Winner v. Rauner,

2016 WL 7374258 (N.D. Ill. Dec. 20,

2016)................................................................... 11

Wyatt v. Cole,

504 U.S. 158 (1992) ................................... passim

Wyatt v. Cole,

994 F.2d 1113 (5th Cir. 1993) ......................... 5, 8

Statutes and Regulations

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

Conn. Gen. Stat. § 5-280 ........................................... 2

Conn. Gen. Stat. § 7-468 ........................................... 1

Rules

Fed. R. Civ. P. 8 ...................................................... 13

x

Other Authorities

Stephen M. Shapiro et al., Supreme Court

Practice § 4.3 (11th ed. 2019) ............................ 12

1

INTRODUCTION

The lower courts have unanimously and correctly

held that unions are not subject to retrospective monetary liability in suits under 42 U.S.C. § 1983 for

having collected agency fees before Janus v. AFSCME

Council 31, 138 S. Ct. 2448 (2018), in accordance with

then-controlling precedent. The decision below agrees

with this unanimous authority and provides no basis

for a grant of review. Indeed, this Court on January

25, 2021, denied six petitions for certiorari that raised

the same question presented here, and there have

been no developments in the short time since then

that would make the question presented worthy of

this Court’s review.1 This petition should also be denied.

STATEMENT OF THE CASE

A. Background

Respondent CSEA SEIU LOCAL 2001 (“CSEA”)

serves as the collective bargaining representative for

certain employees of the State of Connecticut. Pet.

App. 3a; D. Ct. Doc. 54 ¶ 11. Under Connecticut law,

CSEA has a duty to represent all bargaining unit

workers in negotiating and administering its contracts, including workers who are not union members.

Conn. Gen. Stat. § 7-468(c) (exclusive representative

1 Ogle v. Ohio Civ. Serv. Emps. Ass’n, _ S. Ct. _, 2021 WL

231560 (Jan. 25, 2021); Lee v. Ohio Educ. Ass’n, _ S. Ct. _, 2021

WL 231559 (Jan. 25, 2021); Janus v. AFSCME Council 31, _ S.

Ct. _, 2021 WL 231649 (Jan. 25, 2021); Mooney v. Ill. Educ. Ass’n,

_ S. Ct. _, 2021 WL 231650 (Jan. 25, 2021); Casanova v. Int’l Ass’n

of Machinists, _ S. Ct. _, 2021 WL 231651 (Jan. 25, 2021); Danielson v. Inslee, _ S. Ct. _, 2021 WL 231555 (Jan. 25, 2021).

2

“shall be responsible for representing the interests of

all … [bargaining unit members] without discrimination and without regard to employee organization

membership”).

Prior to June 27, 2018, Connecticut state law and

the collective bargaining agreements between the

State of Connecticut and CSEA required individuals

in those bargaining units who had chosen not to join

CSEA to pay “agency fees” to cover their portion of the

costs of collective bargaining representation. Pet. App.

4a. At the time, such agency fee provisions were authorized by Connecticut law (which required the

payment of agency fees), see Conn. Gen. Stat. § 5-280,

and by Abood v. Detroit Board of Education, 431 U.S.

209 (1977), which held that the First Amendment allows public employers to require employees to pay

their proportionate share of the costs of union collective bargaining representation but prohibits requiring

nonmembers to pay for a union’s political or ideological activities. Abood, 431 U.S. at 235–36.

On June 27, 2018, this Court issued its decision in

Janus, 138 S. Ct. 2448. Janus considered the same

First Amendment challenge to agency fees rejected in

Abood. Janus recognized that the lower court had

“correctly” dismissed that challenge as “foreclosed by

Abood.” Id. at 2462. But Janus concluded that Abood

had erred in holding that agency fees are consistent

with the First Amendment, and Janus concluded that

principles of stare decisis did not justify retaining

Abood. Id. at 2478–79.

Janus acknowledged that, in determining whether

stare decisis principles weigh against overruling precedent, “reliance provides a strong reason for adhering

3

to established law.” Id. at 2484. Janus reasoned, however, that unions’ reliance interests—which this Court

identified as those arising from existing collective-bargaining agreements that had been negotiated with the

expectation of receiving ongoing agency fees—were

limited, because such agreements were “generally of

rather short duration” and would include non-severability provisions if their agency fee provisions were

“essential to the overall bargain.” Id. at 2484–85. This

Court did not suggest that overruling Abood would expose unions to potentially massive liability for having

previously received and spent agency fees in accordance with the Court’s controlling precedent.

CSEA and the State of Connecticut immediately

complied with the ruling in Janus by terminating all

collection of agency fees from nonmembers and renegotiating their collective bargaining agreements to

eliminate all agency fee provisions. See Pet. App. 4a;

D. Ct. Doc. 37-2 ¶¶ 5–10.

B. Proceedings below

Petitioners are two workers in a CSEA-represented bargaining unit who are not CSEA members.

Pet. App. 3a–4a. They filed this lawsuit against Connecticut state officials and CSEA, asserted a single

cause of action under 42 U.S.C. § 1983, and sought two

forms of relief. D. Ct. Doc. 1 ¶¶ 33–47. First, petitioners asked that the Connecticut statute providing for

the collection of agency fees be declared unconstitutional and the practice enjoined. Id. ¶¶ 45–46. Second,

petitioners asked that CSEA be required to repay to

petitioners all of the agency fees the union received

before Janus. Id. ¶45. Petitioners later filed a First

Amended Complaint adding a request that CSEA be

4

required to repay, to a putative class of all nonmembers, all of the agency fees the union received to pay

for collective bargaining representation, D. Ct. Doc. 31

¶¶ 16–27; and a Second Amended Complaint adding a

state law claim for unjust enrichment, D. Ct. Doc. 54

¶¶ 54–65.

The district court dismissed petitioners’ claims for

prospective relief as moot because “defendants ha[d]

demonstrated that collection of [agency] fees has

ceased and is unlikely to recur.” Pet. App. 17a. The

district court also granted CSEA’s motion to dismiss

petitioners’ claim for monetary relief. Pet. App. 18a–

19a. The district court held that CSEA has a good

faith defense to Section 1983 liability for collecting

and spending pre-Janus agency fees because, before

Janus, “the Connecticut General Statutes … authorized the collection of agency fees, which [were]

considered constitutional under United States Supreme Court and Second Circuit precedent.” Pet. App.

18a (citing Conn. Gen. Stat. § 5-280; Abood, 431 U.S.

209; Scheffer v. Civ. Serv. Emp. Ass’n, Local 828, 610

F.3d 782 (2d Cir. 2010)). The district court declined to

exercise supplemental jurisdiction over petitioners’

state law claim. Pet. App. 19a.

Petitioners appealed only the dismissal of their

Section 1983 damages claim against CSEA. See Pet.

App. 3a n.1; 2d Cir. Doc. 30, at 1. The Second Circuit

affirmed. Pet. App. 1a–10a. The Second Circuit held

that, because CSEA “complied with directly controlling Supreme Court precedent in collecting fair-share

fees,” CSEA “cannot be held liable for monetary damages under § 1983.” Pet. App. 6a.

5

REASONS FOR DENYING THE PETITION

In Wyatt v. Cole, 504 U.S. 158 (1992) (“Wyatt”),

this Court held that private party defendants sued for

monetary relief under Section 1983 cannot assert the

same form of qualified immunity available to public

officials, but stated that such defendants “could be entitled to an affirmative defense based on good faith

….” Id. at 168–69. Since Wyatt, every circuit court to

consider the question has recognized this good faith

defense.2 In the decision below, the Second Circuit applied the defense to hold that CSEA was not liable for

receiving and spending agency fees prior to Janus because in doing so the union “complied with directly

controlling Supreme Court precedent.” Pet. App. 6a.

Petitioners provide no good reason for this Court to

review the Second Circuit’s decision. Contrary to petitioners’ contention, there is no circuit split to resolve.

Six circuit courts and more than 30 district courts all

have uniformly rejected indistinguishable claims

against unions seeking recovery of pre-Janus agency

fees. And no court has held that the good-faith defense

does not exist or has refused to apply it in a

2 Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir. 1993), cert. denied, 510 U.S. 977 (1993); Jordan v. Fox, Rothschild, O’Brien &

Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994); Vector Research, Inc.

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

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

Clement v. City of Glendale, 518 F.3d 1090, 1096–97 (9th Cir.

2008); Janus v. AFSCME Council 31, 942 F.3d 352, 367 (7th Cir.

2019) (“Janus II”), cert. denied, _ S. Ct. _, 2021 WL 231649 (Jan.

25, 2021); Doughty v. State Employees’ Ass’n of N.H., SEIU Local

1984, 981 F.3d 128 (1st Cir. 2020).

6

circumstance where, as here, a private party was sued

under Section 1983 simply for following then-valid

state law.

Further, the unique circumstances that gave rise

to post-Janus Section 1983 claims are unlikely to recur. This Court only rarely overrules its prior

precedents, and private parties seldom face monetary

claims under Section 1983 for engaging in conduct

that was authorized by state law and by directly onpoint Supreme Court precedent.

This Court recently denied six petitions for certiorari that raised the same question presented here. See

supra at 1. Several of those petitions were filed by the

same advocacy group that represents petitioners here

and made the same arguments in support of review.

Given the unbroken consensus in the lower courts,

there is still no reason for this Court to intervene at

this time.

I.

The lower courts have unanimously held

that unions are not subject to retrospective monetary liability under Section 1983

for having collected pre-Janus agency

fees.

Petitioners contend that this Court should grant

their petition in order to resolve a purported circuit

split about whether private parties may assert a good

faith defense to claims for monetary relief under Section 1983. But there is no circuit split to resolve. The

circuit courts to have considered the question all have

held that private parties facing claims for monetary

relief under Section 1983 are not liable when they reasonably relied upon then-valid state law that was only

7

subsequently overturned. Far from creating a conflict,

the Third Circuit decision cited by petitioners reaches

the same conclusion about union liability for having

collected pre-Janus agency fees as each of the other

courts to have considered it.

1. In Lugar v. Edmondson Oil Company, 457 U.S.

922 (1982), this Court held that private parties who

invoke state-created laws and processes may, in certain circumstances, be considered state actors subject

to liability under Section 1983. Id. at 936–37. The

Court acknowledged that its construction of Section

1983 created a “problem”—namely, that “private individuals who innocently make use of seemingly valid

state laws” could be sued for damages “if the law is

subsequently held to be unconstitutional.” Id. at 942

n.23. The Court suggested that this problem “should

be dealt with not by changing the character of the

cause of action but by establishing an affirmative defense.” Id.

Ten years later, Wyatt held that private party defendants in Section 1983 litigation cannot assert the

same form of “qualified immunity” available to public

officials. 504 U.S. at 167. The Court acknowledged,

however, that “principles of equality and fairness may

suggest … that private citizens who rely unsuspectingly on state laws they did not create and may have

no reason to believe are invalid should have some protection from liability,” and the Court explained that

its decision did not “foreclose the possibility that private defendants faced with § 1983 liability under

Lugar … could be entitled to an affirmative defense

8

based on good faith and/or probable cause.” Id. at 168–

69.3

Since Wyatt, the seven courts of appeals to consider

the question uniformly have held that private parties

may assert a good faith defense to Section 1983 claims

for monetary relief. The Fifth Circuit considered the

issue on remand from this Court in Wyatt, concluding

that “private defendants sued on the basis of Lugar

may be held liable for damages under § 1983 only if

they failed to act in good faith in invoking the unconstitutional state procedures.” Wyatt v. Cole, 994 F.2d

1113, 1118 (5th Cir. 1993), cert. denied, 510 U.S. 977

(1993). In Jordan v. Fox, Rothschild, O’Brien &

Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994), the Third

Circuit expressed its agreement with the Fifth Circuit’s holding, and the First, Second, Sixth, Seventh,

and Ninth Circuits all reached the same conclusion.

See 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, 698–99 (6th Cir. 1996);

Clement v. City of Glendale, 518 F.3d 1090, 1096–97

(9th Cir. 2008); Janus v. AFSCME Council 31, 942

F.3d 352, 361–64 (7th Cir. 2019); Doughty v. State Employees’ Ass’n of N.H., SEIU Local 1984, 981 F.3d 128

(1st Cir. 2020).

This uniform consensus extends to the specific

claim being pursued by petitioners. Lawsuits similar

3 Wyatt emphasized that its holding applied only to the “type

of objectively determined, immediately appealable immunity”

available to certain public officials under Harlow v. Fitzgerald,

457 U.S. 800 (1982), and distinguished that immunity from “an

affirmative defense based on … good faith and/or probable

cause.” Wyatt, 504 U.S. at 166 & n.2.

9

to petitioners’ were filed throughout the country following issuance of the Janus decision. Pet. at 24. The

outcome of each of those lawsuits has been the same:

Every court has concluded that unions’ reliance on

then-valid state laws and then-binding precedent of

this Court precludes monetary relief under Section

1983. That consensus now includes eight decisions

from six different courts of appeals.4 It also includes

more than 30 district court decisions.5

4 Doughty, 981 F.3d 128 (1st Cir. 2020); Wholean v. CSEA

SEIU Local 2001, 955 F.3d 332 (2d Cir. 2020); Diamond v. Pa.

State Educ. Ass’n, 972 F.3d 262 (3d Cir. 2020); Ogle v. Ohio Civ.

Serv. Emps. Ass’n, 951 F.3d 794 (6th Cir. 2020), cert. denied, _ S.

Ct. _, 2021 WL 231560 (Jan. 25, 2021); Lee v. Ohio Educ. Ass’n,

951 F.3d 386 (6th Cir. 2020), cert. denied, _ S. Ct. _, 2021 WL

231559 (Jan. 25, 2021); Danielson v. Inslee, 945 F.3d 1096 (9th

Cir. 2019), cert. denied, _ S. Ct. _, 2021 WL 231555 (Jan. 25,

2021); Janus II, 942 F.3d 352 (7th Cir. 2019), cert. denied, 2021

WL 231649 (Jan. 25, 2021); Mooney v. Ill. Educ. Ass’n, 942 F.3d

368 (7th Cir. 2019), cert. denied, _ S. Ct. _, 2021 WL 231650 (Jan.

25, 2021).

5 Danielson v. AFSCME Council 28, 340 F. Supp. 3d 1083

(W.D. Wash. 2018), aff’d, 945 F.3d 1096 (9th Cir. 2019), cert. denied, _ S. Ct. _, 2021 WL 231555 (Jan. 25, 2021); Cook v. Brown,

364 F. Supp. 3d 1184 (D. Or. 2019), appeal pending, No. 19-35191

(9th Cir.); Carey v. Inslee, 364 F. Supp. 3d 1220 (W.D. Wash.

2019), appeal pending, No. 19-35290 (9th Cir.); Crockett v. NEAAlaska, 367 F. Supp. 3d 996 (D. Alaska 2019), appeal pending,

No. 19-35299 (9th Cir.); Janus v. AFSCME Council 31, 2019 WL

1239780 (N.D. Ill. Mar. 18, 2019), aff’d, 942 F.3d 352 (7th Cir.

2019), cert. denied, 2021 WL 231649 (Jan. 25, 2021); Hough v.

SEIU Local 521, 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), aff’d, 951 F.3d 386 (6th

Cir. 2020), cert. denied, _ S. Ct. _, 2021 WL 231559 (Jan. 25,

2021); Mooney v. Ill. Educ. Ass’n, 372 F. Supp. 3d 690 (C.D. Ill.),

aff’d, 942 F.3d 368 (7th Cir. 2019), cert. denied, _ S. Ct. _, 2021

WL 231650 (Jan. 25, 2021); Bermudez v. SEIU Local 521, 2019

10

WL 1615414 (N.D. Cal. Apr. 16, 2019); Akers v. Md. State Educ.

Ass’n, 376 F. Supp. 3d 563 (D. Md. 2019), appeal pending, No. 191524 (4th Cir.); Wholean v. CSEA SEIU Local 2001, 2019 WL

1873021 (D. Conn. Apr. 26, 2019), aff’d, 955 F.3d 332 (2d Cir.

2020); Babb v. Cal. Teachers Ass’n, 378 F. Supp. 3d 857 (C.D. Cal.

2019), appeal pending, No. 19-55692 (9th Cir.); Doughty v. State

Emps. Ass’n of N.H., No. 1:19-cv-00053-PB (D.N.H. May 30,

2019), aff’d, 981 F.3d 128 (1st Cir. 2020); Hernandez v. AFSCME

Cal., 386 F. Supp. 3d 1300 (E.D. Cal. 2019), appeal pending, No.

20-15076 (9th Cir.); Imhoff v. Cal. Teachers Ass’n, No. 2:19-cv01841 (C.D. Cal. July 1, 2019); Diamond v. Pa. State Educ. Ass’n,

399 F. Supp. 3d 361 (W.D. Pa. 2019), aff’d, 972 F.3d 262 (3d Cir.

2020); Ogle v. Ohio Civ. Serv. Emps. Ass’n, 397 F. Supp. 3d 1076

(S.D. Ohio 2019), aff’d, 951 F.3d 794 (6th Cir. 2020), cert. denied,

_ S. Ct. _, 2021 WL 231560 (Jan. 25, 2021); Brice v. Cal. Faculty

Ass’n, No. 19-cv-04095 (C.D. Cal. Sept. 10, 2019), appeal pending,

No. 19-56164 (9th Cir.); Allen v. Santa Clara Cty. Corr. Peace Officers Ass’n, 400 F. Supp. 3d 998 (E.D. Cal. 2019), appeal pending,

No. 19-17217 (9th Cir.); Casanova v. Machinists Local 701, No.

1:19-cv-00428 (N.D. Ill. Sept. 11, 2019), aff’d, No. 19-2987 (7th

Cir. Feb. 11, 2020), cert. denied, _ S. Ct. _, 2021 WL 231651 (Jan.

25, 2021); O’Callaghan v. Regents of the Univ. of Cal., 2019 WL

6330686 (C.D. Cal. Sept. 30, 2019), appeal pending, No. 19-56271

(9th Cir.); Smith v. N.J. Educ. Ass’n, 2019 WL 6337991 (D.N.J.

Nov. 27, 2019), aff’d sub nom, _ F. App’x _, 2021 WL 141609 (3d

Cir. Jan. 15, 2021); Wenzig v. SEIU Local 668, 2019 WL 6715741

(M.D. Pa. Dec. 10, 2019), aff’d, 972 F.3d 262 (3d Cir. 2020); Seidemann v. Prof’l Staff Cong. Local 2334, 432 F. Supp. 3d 367

(S.D.N.Y. Jan. 10, 2020), appeal pending, No. 20-460 (2d Cir.);

Penning v. SEIU Local 1021, 424 F. Supp. 3d 684 (N.D. Cal.

2020), appeal pending, No. 20-15226 (9th Cir.); Leitch v. AFSCME Council 31, No. 1:19-cv-02921 (N.D. Ill. Jan. 30, 2020),

appeal pending, No. 20-1379 (7th Cir.); Ocol v. Chi. Teachers Union, 2020 WL 1467404 (N.D. Ill. Mar. 26, 2020); Chambers v.

AFSCME Int’l, 450 F. Supp. 3d 1108 (D. Or. 2020), appeal pending, No. 20-35355 (9th Cir.); Mattos v. AFSCME Council 3, 2020

WL 2027365 (D. Md. Apr. 27, 2020); Hoekman v. Ed. Minn., _ F.

Supp. 3d _, 2021 WL 533683 (D. Minn. Feb. 12, 2021); Brown v.

AFSCME Council No. 5, _ F. Supp. 3d. _, 2021 WL 533690 (D.

Minn. Feb. 12, 2021).

11

This consensus in the lower courts is entirely consistent with what this Court contemplated in Janus.

After determining that Abood was wrongly decided,

this Court considered whether reliance interests

nonetheless justified retaining Abood as matter of

stare decisis. 138 S. Ct. at 2478–86. The Court

acknowledged that unions had entered into existing

collective bargaining agreements with the understanding that agency fees would help pay for collective

bargaining representation, but concluded that unions’

reliance interests in the continued enforcement of

those agreements were not weighty. Id. at 2484–85.

The Court did not suggest that its holding also would

expose public employee unions to massive retrospective monetary liability for having followed thengoverning precedent. See id. at 2486 (holding that

agency fees “cannot be allowed to continue” and that

public-sector unions “may no longer extract agency

fees from nonconsenting employees”) (emphases

added); see also Pet. App. 9a (noting purely prospective nature of decision’s language); Lee, 951 F.3d at

389 (same).

2. No circuit court has held that private party defendants sued on the basis of Lugar are not entitled to

assert a good faith defense to Section 1983 monetary

Courts considering similar claims in the wake of Harris v.

Quinn, 134 S. Ct. 2618 (2014), also uniformly applied the good

faith defense to defeat claims for retrospective liability. See Jarvis v. Cuomo, 660 F.App’x 72, 75–76 (2d Cir. 2016), cert. denied,

137 S. Ct. 1204 (2017); Hoffman v. Inslee, 2016 WL 6126016, at

*4 (W.D. Wash. Oct. 20, 2016); Winner v. Rauner, 2016 WL

7374258, at *5–6 (N.D. Ill. Dec. 20, 2016).

12

liability. Indeed, CSEA is not aware of any decision by

any court to that effect.

Petitioners attempt to create a conflict between the

Third Circuit and other circuit courts on the basis of

the concurring opinion authored by Judge Fisher in

Diamond. See Diamond, 972 F.3d at 273–285 (Fisher,

J., concurring). But Judge Fisher agreed that unions

that relied on state law and Abood in accepting agency

fees prior to Janus cannot be held monetarily liable

under Section 1983 for having done so, and merely

identified an “alternative basis” for that outcome. Id.

at 274, 281. Judge Fisher explained that, under the

common law, “a judicial decision either voiding a statute or overruling a prior decision does not generate

retroactive civil liability with regard to financial

transactions or agreements conducted, without duress

of fraud, in reliance on the invalidated statute or overruled decision.” Id. Because this robust body of

common-law authority amply supported a defense to

the plaintiffs’ Section 1983 claims for monetary relief,

Judge Fisher found it “unnecessary” to consider

whether an analogy to the common-law tort of abuse

of process also supported the existence of a defense or

how such a defense might apply in other cases. Id. at

281.

As this Court has often stated, it “reviews judgments, not statements in opinions.” California v.

Rooney, 483 U.S. 307, 311 (1987) (per curiam) (citation

omitted). That judges have taken somewhat different

paths to reach a uniform result does not amount to a

conflict warranting a grant of certiorari.6 Nor does

See generally Stephen M. Shapiro et al., Supreme Court

Practice § 4.3, at 4–11 (11th ed. 2019) (“A genuine conflict …

arises when it may be said with confidence that two courts have

6

13

this Court sit to resolve differences in nomenclature

used by lower-court judges who reach the same conclusion.7

II.

Petitioners’ merits arguments have already been found insufficient to justify

granting review.

This Court generally does not grant review solely

to correct purported errors in a decision below. Nonetheless, petitioners devote the bulk of their petition to

arguing that the Second Circuit erred on the merits by

applying a good-faith defense to Section 1983 monetary liability. Pet. at 12–23. The same merits

arguments were raised by the substantively identical

petition for certiorari in Ogle v. Ohio Civil Service Employees Association, No. 20-486, and those arguments

are fully addressed by the Ogle Brief in Opposition, at

decided the same legal issue in opposite ways, based on their

holdings in different cases with very similar facts.”).

7 The dissent in Diamond misses the mark by narrowly framing the question as whether there was an affirmative defense of

good faith available to defendants at common law. See 972 F.3d

at 285–86 (Phipps, J., dissenting) (relying, inter alia, on fact that

“good faith” does not appear in the non-exhaustive list of affirmative defenses enumerated in Fed. R. Civ. P. 8(c)). The pertinent

question is not whether good faith was technically considered an

“affirmative defense” at common law, but rather, as a more general matter, whether “parties [like the union] were shielded from

tort liability when Congress enacted the Civil Rights Act of

1871.” Wyatt, 504 U.S. at 164. As every court of appeals to address this properly framed question has held, the answer is “yes.”

Notably, the Diamond dissent did not even consider whether, as

the First, Sixth, Seventh, and Ninth Circuits have reasoned, an

analogy to the common-law tort of abuse of process supported the

recognition of a defense for unions that relied on state law to invoke the government’s process for collecting agency fees.

14

14–24. This Court denied the Ogle petition on January

25, 2021, and there have been no relevant legal developments since that time that would support a

different outcome here.8

III.

There is no other justification for this

Court’s intervention at this time.

Petitioners contend that review of the decision below is justified because “over 37 class action lawsuits

are pending that seek refunds from unions for agency

fees” paid prior to Janus. Pet. at 24. As stated already,

however, every court to consider such a claim has held

that the union defendants are not subject to Section

1983 monetary liability. Far from suggesting this

Court’s guidance is required, the broad consensus that

petitioners’ claim is meritless demonstrates that this

Court’s involvement is unnecessary. That other cases

are still pending in the lower courts suggests, if anything, that this Court should wait to see whether a

conflict develops.

8 Each of petitioners’ merits arguments also has been thoroughly considered and correctly rejected by the lower courts,

most recently in Judge Barron’s careful opinion for the First Circuit. See Doughty, 981 F.3d at 134–38 (explaining why Wyatt and

the numerous post-Wyatt decisions recognizing a good-faith defense cannot be distinguished on the ground that they involved

procedural due process rather than the First Amendment, why

the abuse-of-process analogy is apt, and why the purported retroactivity of Janus does not preclude application of the good-faith

defense to claims for monetary relief); see also, e.g., Ogle, 951

F.3d at 796–97 (explaining why recognition of a good-faith defense is consistent with this Court’s methodology for interpreting

Section 1983, and why abuse of process provides an appropriate

common law analogy).

15

The unique circumstances presented by a case

seeking pre-Janus monetary liability also do not provide a suitable vehicle for this Court to provide

guidance on Section 1983’s application in more typical

cases. See Pet. at 23–25 (arguing that this Court

should grant review to consider whether a good-faith

defense is available in cases not premised upon Janus’s overruling of prior precedent). The Second

Circuit held only that “a party who complied with directly controlling Supreme Court precedent in

collecting fair-share fees cannot be held liable for monetary damages under § 1983.” Pet. App. 6a (emphasis

supplied). Such situations are likely to be rare.

Stare decisis is “a ‘foundation stone of the rule of

law.’” Allen v. Cooper, 140 S. Ct. 994, 1003 (2020)

(quoting Michigan v. Bay Mills Indian Cmty., 572 U.S.

782, 798 (2014)). This Court seldom overrules its precedents. Moreover, this Court has held that when a

precedent of this Court is directly on point, that precedent is the law of the land binding on all lower courts,

even if subsequent decisions have criticized that precedent. Agostini v. Felton, 521 U.S. 203, 237 (1997).

Accordingly, this case—in which a private defendant

was acting in accordance not only with the requirements of state law but also with this Court’s governing

precedent—would not provide a suitable vehicle for

this Court to consider the potential application of a

good faith defense to more typical situations.

CONCLUSION

The petition for certiorari should be denied.

16

Respectfully submitted,

DAN LIVINGSTON

SCOTT A. KRONLAND

LIVINGSTON, ADLER,

Counsel of Record

PULDA, MEIKLEJOHN & P. CASEY PITTS

KELLY PC

ALTSHULER BERZON LLP

557 Prospect Avenue

177 Post Street, Suite 300

Hartford, CT 06105-2922 San Francisco, CA 94108

(860) 233-9821

(415) 421-7151

skronland@altber.com

Counsel for Respondent CSEA SEIU LOCAL 2001

February 22, 2021