Petition for Writ of Certiorari — Kourosh Kenneth Hamidi, et al., Petitioners v. Service Employees International Union, Local 1000

No. 21-_____

IN THE

Supreme Court of the United States

_______

KOUROSH KENNETH HAMIDI; KIM MCELROY; ET AL.;

ON BEHALF OF THEMSELVES AND THE CLASS THEY

REPRESENT, AND CECILIA STANFIELD,

PETITIONERS,

v.

SERVICE EMPLOYEES INT’L UNION, LOCAL 1000,

RESPONDENT.

_______

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

_______

PETITION FOR WRIT OF CERTIORARI

_______

W. JAMES YOUNG

Counsel of Record

c/o NATIONAL RIGHT TO WORK

LEGAL DEFENSE FOUNDATION, INC.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

wjy@nrtw.org

Attorney for Petitioners

January 2022

-iQUESTIONS PRESENTED

The Civil Rights Act of 1871 provides that “every

person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State” deprives a

citizen of a constitutional right “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.

In Knox v. SEIU, Local 1000, this Court held that

in earlier cases, “we assumed without any focused

analysis that the dicta from Street had authorized the

opt-out requirement as a constitutional matter,” and

that “By authorizing a union to collect fees from

nonmembers and permitting the use of an opt-out

system for the collection of fees levied to cover

nonchargeable expenses, our prior decisions approach,

if they do not cross, the limit of what the First

Amendment can tolerate.” 567 U.S. 298, 313-14

(2012). In the context of a procedure to collect a

“Temporary Special Assessment to Create a Political

Fight-Back Fund” from nonmembers (including those

who previously opted out), this Court declared “This

aggressive use of power... to collect fees from

nonmembers... indefensible.” Id.

In Janus v. AFSCME, Council 31, this Court went

further, stating that “Neither an agency fee nor any

other payment to the union may be deducted from a

nonmember’s wages, nor may any other attempt be

made to collect such a payment, unless the employee

affirmatively consents to pay.” 138 S.Ct. 2448, 2486

(2018).

Nevertheless, notwithstanding these unambiguous

pronouncements, Respondent persisted in imposing an

-ii“opt-out” requirement upon nonmembers, requiring an

affirmative objection in order to avoid the seizure from

their wages of fees exceeding the reduced fee amount

authorized by Abood v. Detroit Bd. of Educ., 431 U.S.

209 (1977), overruled Janus, 138 S.Ct. at 2486.

The questions presented are:

1. May a labor union acting in concert with State

officials, consistent with the First and Fourteenth

Amendments, seize for union political speech payments

from an employee absent clear and compelling evidence

that he knowingly, intelligently, and voluntarily

waived his First Amendment right under the standard

set forth in Johnson v. Zerbst, 304 U.S. 458, 464

(1938)?

2. May a private party who violates constitutional

rights be immunized from liability for damages under

42 U.S.C. § 1983 by a profession of “good faith” reliance

under color of a law before that law or practice was

held unconstitutional?

-iiiPARTIES TO THE PROCEEDINGS

In addition to Petitioners named on the cover,

Kourosh Kenneth Hamidi and Kim McElroy,

Petitioners are Dawn P. Ammons, William L. Blaylock,

Christopher Browne, Ryan Christensen, Kelly Giles,

Madeline L. Lopez; Clint Miller, Gary W. Morrish,

Virginia Ollis, Olayemi Sarumi, Antonia Toledo,

Diane C. Tutt, and the class they represent, and

Cecilia Stanfield, Plaintiffs-Appellants in the courts

below. All are natural persons and citizens of the State

of California and are, or at one time were, employees of

the State of California.

Respondent Service Employees International

Union, Local 1000, was Defendant-Appellee below, and

is a union representing public employees of the State

of California.

Betty T. Yee, Controller of the State of California,

was also a Defendant-Appellee below, but was

dismissed as immune pursuant to the Eleventh

Amendment. Dist. Ct. ECF No. (“ECF No.”) 139 at 12.

Yee’s predecessor, John Chiang, was initially a

Defendant below, and his successor Yee was

substituted as a Defendant by operation of Rule 25(d),

FED. R. CIV. P.

Sandra Kieffer, Angel Lo, and Mozelle Yarbrough,

individuals, were initially Plaintiffs below, but were

voluntarily dismissed from this action by stipulation

pursuant to Rule 41(a)(1)(A)(ii), FED. R. CIV. P.

RULE 29.6 STATEMENT

As Petitioners are natural persons, no corporate

disclosure statement is required under Rule 29.6.

-ivSTATEMENT OF RELATED PROCEEDINGS

This case arises from and is directly related to the

following proceedings:

! Hamidi et al. v. Service Employees Int’l

Union, Local 1000, No. 19-17442, U.S. Court of

Appeals for the Ninth Circuit. Judgment entered

26 October 2021; and

! Hamidi et al. v. Service Employees Int’l

Union, Local 1000, No. 2:14-cv-00319-WBS-KJN,

U.S. District Court for the Eastern District of

California. Final Judgment entered 24 October

2019.

-vTABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . . . iii

RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . v

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 3

A. Legal Background . . . . . . . . . . . . . . . . . . . . 3

B. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Proceedings Below . . . . . . . . . . . . . . . . . . . . 8

1. Initial Proceedings . . . . . . . . . . . . . . . . . 8

2. The First Appeal . . . . . . . . . . . . . . . . . 10

3. Proceedings on Remand . . . . . . . . . . . . 11

4. The Second Appeal . . . . . . . . . . . . . . . . 13

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . 14

I.

The Categorical Good Faith Defense Applied

by the Court of Appeals Differs from the

Claim-Specific Defense Suggested by This

Court in Wyatt v. Cole. . . . . . . . . . . . . . . . . . . . 15

- vi TABLE OF CONTENTS-CONT.

Page

II. The Categorical Good Faith Defense Conflicts

with the Text and Purpose of § 1983 . . . . . . . . 19

III. Policy Interests in “Fairness” and Equality Do

Not Support a Good Faith Defense, But Weigh

Against Recognizing It . . . . . . . . . . . . . . . . . . . 23

A. Courts cannot create defenses to § 1983

based on policy interests in fairness and

equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. The reliance defense adopted by the Ninth

Circuit and other lower courts conflicts

with Reynoldsville Casket . . . . . . . . . . . . . 27

IV. This Court Should Resolve the Conflict

Between the Third Circuit and Several Other

Circuit Courts . . . . . . . . . . . . . . . . . . . . . . . . . . 29

V. It Is Exceptionally Important that This Court

Resolve Whether Congress Created a Good

Faith Defense to § 1983 Claims . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

APPENDICES

A. Opinion of the United States Court of

Appeals for the Ninth Circuit (26 October

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

B. Order of the United States District Court

for the Eastern District of California (24

October 2019) . . . . . . . . . . . . . . . . . . . . . . . 6a

C. United States Const., amend. I . . . . . . . . 16a

- vii TABLE OF CONTENTS-CONT.

Page

D. United States Const., amend. XIV . . . . . 17a

E. Ralph C. Dills Act, CAL. GOV’T. CODE

§ 3512 et seq. (West) . . . . . . . . . . . . . . . . . 18a

- viii TABLE OF AUTHORITIES

Cases

Page

Abood v. Detroit Bd. of Educ.,

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

Air Line Pilots Ass’n v. Miller,

523 U.S. 866 (1998) . . . . . . . . . . . . . . . . . . . . . . 14

Akers v. Md. State Educ. Ass’n,

990 F.3d 375 (4TH CIR. 2021) . . . . . . . . . . . . . . 30

Austin v. Michigan Chamber of Com.,

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . 32-33

Baxter v. Bracey,

140 S.Ct. 1862 (2020) . . . . . . . . . . . . . . . . . . . . 15

Bell v. Hood,

327 U.S. 678 (1946) . . . . . . . . . . . . . . . . . . . . . . 32

Birdsall v. Smith,

122 N.W. 626 (MICH. 1909) . . . . . . . . . . . . . . . 17

Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1971) . . . . . . . . . . . . . . . . . . . . . . 32

Citizens United v. Fed. Election Commn.,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . 33

Clement v. City of Glendale,

518 F.3d 1090 (9TH CIR. 2008) . . . . . . . . . . 13, 15

- ix TABLE OF AUTHORITIES-CONT.

Page

Communications Workers of Am. v. Beck,

487 U.S. 735 (1988) . . . . . . . . . . . . . . . . . . . . . . 14

Cooley v. California Statewide Law Enf’t Ass’n,

385 F.Supp.3d 1077 (E.D.CAL. 2019) . . . . . . . . 12

Crawford v. Bd. of Educ. of City of Los Angeles,

458 U.S. 527 (1982) . . . . . . . . . . . . . . . . . . . . . . 32

Crawford-El v. Britton,

523 U.S. 574 (1998) . . . . . . . . . . . . . . . . . . . . . . 27

Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967) . . . . . . . . . . . . . . . . . . . . . . . 3

Daniels v. Williams,

474 U.S. 327 (1986) . . . . . . . . . . . . . . . . . . . . . . 19

Danielson v. Inslee,

945 F.3d 1096 (9TH CIR. 2019) . . . . . . . . . passim

Davenport v. Wash. Educ. Ass’n,

551 U.S. 177 (2007) . . . . . . . . . . . . . . . . . . . 14, 23

Diamond v. Pa. State Educ. Ass’n,

972 F.3d 262 (3D CIR. 2020) . . . . . . 21, 22, 29, 30

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

981 F.3d 128 (1ST CIR. 2020) . . . . . . . . . . . . . . 30

-xTABLE OF AUTHORITIES-CONT.

Page

Ellis v. Ry. Clerks,

466 U.S. 435 (1984) . . . . . . . . . . . . . . . . . . . . . . 14

Friedrichs v. California Teachers Ass’n,

576 U.S. 1082 (2015) . . . . . . . . . . . . . . . . . . . . . . 9

Friedrichs v. California Teachers Ass’n,

578 U.S. 1 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Grunwald v. San Bernardino Unified School District,

994 F.2d 1370 (9TH CIR. 1993) . . . . . . . . . . . . . 23

Guidry v. Sheet Metal Workers Nat. Pension Fund,

493 U.S. 365 (1990) . . . . . . . . . . . . . . . . . . . . . . 24

Harper v. Virginia Department of Taxation,

509 U.S. 86 (1993) . . . . . . . . . . . . . . . . . . . . . . . 27

Harris v. Quinn,

573 U.S. 616 (2014) . . . . . . . . . . . . . . . . . . . . . . 14

Imbler v. Pachtman,

424 U.S. 409 (1976) . . . . . . . . . . . . . . . . . . . . . . 20

Janus v. AFSCME, Council 31,

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

Janus v. AFSCME Council 31,

138 S.Ct. 54 (2017) . . . . . . . . . . . . . . . . . . . . . . 10

- xi TABLE OF AUTHORITIES-CONT.

Page

Janus v. AFSCME Council 31 (“Janus II”),

942 F.3d 352 (7TH CIR. 2019) . . . . . . . . . . passim

Jensen v. Lane County,

222 F.3d 570 (9TH CIR. 2000) . . . . . . . . . . . . . . 15

Johnson v. Zerbst,

304 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . ii

Knox v. Service Employees Intern’l Union,

Local 1000,

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

Knox v. Service Employees Intern’l Union,

Local 1000,

628 F.3d 1115 (9TH CIR. 2010),

rev’d, 567 U.S. 298 (2012) . . . . . . . . . . . . . . . . . 23

Lee v. Ohio Educ. Ass’n,

951 F.3d 386 (6TH CIR. 2020) . . . . . . . . 23, 26, 30

Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507 (1991) . . . . . . . . . . . . . . . . . . . . . . 14

Locke v. Karass,

555 U.S. 207 (2009) . . . . . . . . . . . . . . . . . . . . . . 14

Lugar v. Edmondson Oil Co., Inc.,

457 U.S. 922 (1982) . . . . . . . . . . . . . . . . . . . 15, 31

- xii TABLE OF AUTHORITIES-CONT.

Page

McConnell v. Fed. Election Commn.,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . 33

Machinists v. Street,

367 U.S. 740 (1961) . . . . . . . . . . . . . . . . . . . . . i, 4

Manuel v. City of Joliet,

137 S.Ct. 911 (2017) . . . . . . . . . . . . . . . . . . . . . 16

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . 32, 33

Marquez v. Screen Actors Guild,

525 U.S. 33 (1998) . . . . . . . . . . . . . . . . . . . . . . . 14

Mitchell v. Los Angeles Unified Sch. Dist.,

963 F.2d 258 (9TH CIR.),

cert. denied, 506 U.S. 940 (1992) . . . . . . . passim

Monroe v. Pape,

365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . . . . 21

OSU Student Alliance v. Ray,

699 F.3d 1053 (9TH CIR. 2012) . . . . . . . . . . . . . 19

Owen v. City of Independence, Mo.,

445 U.S. 622 (1980) . . . . . . . . . . . . . . . . 21, 24, 25

Rehberg v. Paulk,

566 U.S. 356 (2012) . . . . . . . . . . . . . . . . 19, 22, 24

- xiii TABLE OF AUTHORITIES-CONT.

Page

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995) . . . . . . . . . . . . . . . . 27, 28, 29

Richardson v. McKnight,

521 U.S. 399 (1997) . . . . . . . . . . . . . 12, 15, 22, 31

Teachers Local No. 1 v. Hudson,

475 U.S. 292 (1986) . . . . . . . . . . . . . . 4, 10, 13, 14

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . . . 24

Tower v. Glover,

467 U.S. 914 (1984) . . . . . . . . . . . . . . . . . . . . . . 24

United States v. United Foods, Inc.,

533 U.S. 405 (2001) . . . . . . . . . . . . . . . . . . . . . . . 3

Wholean v. CSEA SEIU Local 2001,

955 F.3d 332 (2D CIR. 2020) . . . . . . . . . 23, 26, 30

Wyatt v. Cole,

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

Ziglar v. Abbasi,

137 S.Ct. 1843 (2017) . . . . . . . . . . . . . . . . . . . . 32

- xiv TABLE OF AUTHORITIES-CONT.

Federal Constitutions, Statutes, & Rules

Page

United States Constitution,

amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . passim

amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

amend XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

amend. XIV . . . . . . . . . . . . . . . . . . . . . . ii, 2, 8, 21

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

Supreme Court Rules,

Rule 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 29.4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rule 29.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

FED. R. CIV. P.

Rule 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rule 25(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Rule 41(a)(1)(A)(ii) . . . . . . . . . . . . . . . . . . . . . . iii

California Statutes

Ralph C. Dills Act, CAL. GOV’T. CODE § 3512 et seq.

(West)

§ 3512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6

§ 3513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

§ 3515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6

- xv TABLE OF AUTHORITIES-CONT.

Other Authorities

Page

William Baude, Is Qualified Immunity Unlawful?,

106 Cal.L.Rev. 45, 55 (2018) . . . . . . . . . . . . . . 22

Gordon Tullock, “The Origin Rent-Seeking Concept,”

2 Int’l J. of Bus. and Econ. 1 (2003) . . . . . . . . . 26

IN THE

Supreme Court of the United States

________

NO. 21-_______

________

KOUROSH KENNETH HAMIDI; KIM MCELROY; DAWN P.

AMMONS; WILLIAM L. BLAYLOCK; CHRISTOPHER

BROWNE; RYAN CHRISTENSEN; KELLI GILES;

MADELINE L. LOPEZ; CLINT MILLER; GARY W.

MORRISH; VIRGINIA OLLIS; OLAYEMI SARUMI;

ANTONIA TOLEDO; AND DIANE C. TUTT; ON BEHALF OF

THEMSELVES AND THE CLASS THEY REPRESENT,

AND CECILIA STANFIELD,

Petitioners,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL

1000; AND BETTY T. YEE, CONTROLLER, STATE OF

CALIFORNIA,

Respondents.

________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

________

Petitioners Kourosh Kenneth Hamidi, Kim

McElroy, Dawn P. Ammons, William L. Blaylock,

Christopher Browne, Ryan Christensen, Kelly Giles,

Madeline L. Lopez; Clint Miller, Gary W. Morrish,

Virginia Ollis, Olayemi Sarumi, Antonia Toledo,

Diane C. Tutt, on behalf of themselves and the class

they represent, and Cecilia Stanfield, individually,

-2respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered on 26

October 2021.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit, Appendix (“App.”) A, infra 1a, is

unreported and designated as “not for publication,” but

appears at 2021 WL 4958855 (9TH CIR. 2021). The

decision of the United States District Court for the

Eastern District of California, App. B, infra 6a,

granting Defendants’ Motion for Summary Judgment

and denying Plaintiffs’ Motion for Summary Judgment,

is unreported but appears at 2019 WL 5536324 (E.D.

CAL. 2019).

JURISDICTION

The United States Court of Appeals for the Ninth

Circuit entered its per curiam Memorandum Order on

26 October 2021. This petition is timely under

Supreme Court Rule 13.1. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1). The notifications

required by Rule 29.4(b) have been made.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the First and Fourteenth

Amendments to the United States Constitution. See

Apps. C & D, infra 16a &17a. This case also involves

provisions of the Ralph C. Dills Act, CAL. GOVT. CODE

-3ANN. § 3512 et seq., and specifically § 3515 thereof. See

App. E, infra 18a.

STATEMENT OF THE CASE

A. Legal Background

This Court’s decision in Knox v. Serv. Emp. Int’l

Union, Local 1000, held that schemes to extract

“agency fees” from nonunion public employees are

subject to “exacting First Amendment scrutiny.” 567

U.S. 298, 310 (2012); see also United States v. United

Foods, Inc., 533 U.S. 405, 414 (2001).

Subsequently, in Janus, this Court held that

seizing from public employees’ wages payments for

union speech without their affirmative consent

likewise violates their constitutional rights. 138 S.Ct.

at 2486. This Court recognized that, “[b]y agreeing to

pay, nonmembers are waiving their First Amendment

rights, and such a waiver cannot be presumed.” Id.

Thus, an employee’s consent to supporting financially

a union must be demonstrated by a “waiver ... freely

given and shown by ‘clear and compelling’ evidence.”

Id. (quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130,

145 (1967) (plurality opinion)).

As with many unions exercising their authority to

extract forced dues from represented public employees

under the now-unconstitutional Abood regime (even

though it was long recognized as “imping[ing] seriously

upon interests in free speech and association protected

by the First Amendment,” 431 U.S. at 255 (Powell, J.,

concurring)), Respondent Service Employees

International Union, Local 1000 (“Local 1000”) long

required that individuals subject to its forced-dues

-4scheme with the State of California — even though

they had remained nonmembers — additionally object

annually to the seizure of full union dues from their

wages. They did so pursuant to this Court’s comment

in Machinists v. Street, 367 U.S. 740, 774 (1961), where

this Court stated that “dissent is not to be presumed —

it must affirmatively be made known to the union by

the dissenting employee,” which was recognized in

Knox to be “dicta.” 567 U.S. at 313.

Employment relations between California and its

agencies and labor unions representing their

employees is governed by the Ralph C. Dills Act (“Dills

Act”), CAL. GOV’T. CODE § 3512 et seq.; App. E at 18a19a, which grants to labor unions certified by the State

monopoly-bargaining powers over bargaining units of

State employees. The Dills Act also authorizes forcedunionism (or “fair share fee” agreements). CAL. GOV’T.

CODE §§ 3513(k) & 3515; App. E at 18a-19a.1 Such

agreements were entered into governing Petitioners’

employment.

In Janus, this Court held that “States and

public-sector unions may no longer extract agency fees

from nonconsenting employees,” and that “Neither an

agency fee nor any other payment to the union may be

deducted from a nonmember’s wages, nor may any

other attempt be made to collect such a payment,

unless the employee affirmatively consents to pay. By

1

“Under an ‘agency shop’ arrangement‚ a union that acts

as exclusive bargaining representative may charge non-union

members ... a fee for acting as their bargaining representative.”

Teachers Local No. 1 v. Hudson‚ 475 U.S. 292, 303 n.10 (1986); see

also Abood‚ 431 U.S. at 232. Such schemes in public-sector

employment were declared unlawful in Janus, 138 S.Ct. at 2486,

as a violation of the First Amendment.

-5agreeing to pay, nonmembers are waiving their First

Amendment rights, and such a waiver cannot be

presumed.” 138 S.Ct. at 2486 (citations omitted).

However, the Court went on to specify that “to be

effective, the waiver must be freely given and shown by

‘clear and compelling’ evidence.... Unless employees

clearly and affirmatively consent before any money is

taken from them, this standard cannot be met.” Id.

(citations omitted).

Nevertheless, relying solely upon this dicta, the

United States Court of Appeals for the Ninth Circuit

long ago held in a challenge to this impediment to

employees’ exercise of their First Amendment rights

that “There is ... no support for the plaintiffs' position

in this case that affirmative consent to deduction of full

fees is required in order to protect their First

Amendment rights.” Mitchell v. Los Angeles Unified

Sch. Dist., 963 F.2d 258, 260-61 (9TH CIR.), cert. denied,

506 U.S. 940 (1992).

The Questions Presented address whether Knox

and Janus permit a public employer and a union to

rely upon language that this Court has declared “dicta”

and creating the “risk that the fees paid by

nonmembers will be used to further political and

ideological ends with which they do not agree,” 567

U.S. at 312, survived Knox particularly where — as

here — that recognition was made abundantly clear to

Local 1000, respondent in that case.

B. Facts

Kourish Kenneth Hamidi et al., and the class they

represent (“the Employees”), as well as Cecilia

-6Stanfield, are among tens of thousands of employees in

nine bargaining units who are not union members, and

are (or were) employed by various instrumentalities of

the State of California (“State”). As such, they are

“state employees” within the meaning of the Dills Act,

CAL. GOV’T. CODE, § 3513(c). By statute (the Dills Act,

CAL. GOV’T. CODE § 3512 et seq.; see App. E, infra, at

18a-19a), the State recognizes Local 1000 — an

“employee organization,” CAL. GOV’T. CODE, § 3513(a)

— as the monopoly bargaining representative of all

State employees in those nine bargaining units

representing nine different classes of State employees.

Local 1000 and the State have entered into a series of

Memoranda of Understanding (“MOUs”) controlling

the terms and conditions of employment for all

employees in these bargaining units. These MOUs

include forced-unionism (or “fair share fee”) provisions,

authorized by the Dills Act, CAL. GOV’T. CODE § 3515

(App. E at 18a-19a), subjecting State employees who

fail or refuse to join Local 1000 to agency fee seizures

by the State Controller as a condition of continued

public employment.

In June 2013, Local 1000 sent to each Employee a

notice, informing them of their right to object to the

seizure of fees equal to full union dues. Through the

vicissitudes of changing their residences and/or the

United States Postal system, not every Employee

received these notices. Dist. Ct. ECF No. (“ECF No.”)

149-2, ¶¶ 14 & 15. Because, as a result, they missed

Local 1000’s deadline for “opting out,” many were

subject to fee seizures for admittedly chargeable

political and other non-bargaining expenditures.

-7The Employees’ Complaint, ECF No. 1, alleges that

the “choice architecture” of Respondents’ procedure

burdens and impedes nonmembers, making it more

difficult for employees who have already rejected union

membership to retain their political and associational

autonomy than it is to forfeit that autonomy to Local

1000. The procedure and statute do this, in part, by

setting the nonmembers “default” position as

supporting union political and other non-bargaining

activities. More specifically, Local 1000’s notice and

the statute propel employee choice towards forfeiture

of their political and associational rights as detailed in

the Complaint. ECF No. 1 at 8-10, ¶ 26.2

Notwithstanding the fact that each Employee was

and remains a nonmember of Local 1000, on or about

1 July 2013, the State Controller commenced:

(1) automatic deductions of agency fees equal to 99.5%

of full union dues from the wages of Employees

previously objecting to the seizure of full union dues

from their wages, but failing to renew their objections

for whatever reason, or transmitting their objections to

Local 1000 absent strict compliance with Local 1000’s

onerous requirements, or whose objections were sent

regular mail, and somehow were “lost” or simply

ignored; and (2) from Employees who successfully

2

On the other hand, for Employees desiring to give to

Local 1000 the political and non-bargaining portion of the agency

fee, nothing is required. Employees joining Local 1000 are

subsidized, with a union-provided single-page, easy-to-complete

form, and a postage-paid envelope. ECF No. 1 at 31-32. There is

no deadline for filing this form. Once the employee joins Local

1000, the matter is final. The employee is not required

affirmatively to join or re-join annually.

-8navigated Local 1000’s process and its various

impediments and pitfalls, deductions of agency fees

equal to 55.3% of full union dues from their wages, and

forwarded such deductions to Local 1000.

C. Proceedings Below

1. Initial Proceedings

The Employees’ action was filed on 31 January

2014‚ alleging that the Employees had suffered and

would continue to suffer loss of their First‚ Fifth‚ and

Fourteenth Amendment rights because the California

State Controller (John Chiang, succeeded by Betty T.

Yee), and Local 1000 were requiring nonunion State

employees to object and/or annually renew their

objections to avoid the seizure of agency fees exceeding

their pro rata share of Local 1000’s costs of collective

bargaining, contract administration, and grievance

adjustment (“chargeable costs”).

Petitioners sought and obtained class certification,

with their counsel certified as class counsel. ECF No.

53 at 20-21 as amended upon stipulation by ECF No.

55. The Court limited class certification (pursuant to

Rule 23(b)(2), FED.R.CIV.P.), to Petitioners’ first claim,

i.e., “the theory that a union is not permitted to seize

from any ‘potential objector’ fees exceeding those which

serve a compelling state interest — i.e., those for

constitutionally-chargeable costs — absent their

affirmative consent.” ECF No. 53 at 8.3

3

Their second claim was ultimately dismissed upon

settlement. ECF No. 91.

-9Approximately five weeks after class certification,

this Court granted certiorari in Friedrichs v. California

Teachers Ass’n, 576 U.S. 1082 (2015). Recognizing that

the Court’s adjudication of both questions presented in

that case could determine the outcome of this case, the

District Court stayed further proceedings pending its

outcome. ECF No. 57. Upon the passing of Justice

Antonin Scalia, the Supreme Court affirmed this Court

by an equally-divided Court on 29 March 2016, 578

U.S. 1 (2016), and the stay was lifted.

Thereafter, the parties moved forward to resolve

the Employees’ remaining claim on Cross-Motions for

Summary Judgment. On 8 February 2017, the Court

issued its Memorandum and Order, granting

Defendants’ Motions for Summary Judgment. ECF

No. 94.

In its decision, the District Court recognized that

“Plaintiffs’ sole cause of action, brought under 42

U.S.C. § 1983, alleges that Local 1000’s fee collection

system violates the First Amendment by ‘requir[ing]

that individuals pay agency fees ... [that] subsidiz[e

Local 1000’s] political and other non-bargaining

activities, absent their affirmative consent.’” ECF No.

94 at 4. While acknowledging the light that Knox shed

on Street’s “dicta,” and that Knox’s reasoning mandated

examination anew of the constitutionality of the optout regime, i.e., whether it satisfied the “exacting

scrutiny” required by Knox, the District Court

considered but rejected the Employees’ argument that

it was free in light of Knox to declare Local 1000’s optout system unconstitutional, distinguishing between

Knox’s consideration of “‘a special assessment or dues

- 10 increase that is levied to meet expenses that were not

disclosed when the amount of the regular assessment

was set,’” and this case’s concern for “fees collected

pursuant to annual Hudson notices.” ECF No. 94 at

12, quoting Knox, 567 U.S. at 321-22.

Instead, the District Court concluded that “Knox is

not ‘clearly irreconcilable’ with Mitchell,” and that

Mitchell remained controlling law. ECF No. 94 at 13,

citing 963 F.2d at 260-61. The District Court therefore

concluded that, “Because Mitchell remains good law

after Knox, the court must deny plaintiffs’ challenge to

the constitutionality of Local 1000’s opt-out

requirement.” ECF No. 94 at 14.

Upon these findings, the District Court entered

judgment in favor of Defendants. ECF No. 95. The

Employees timely noticed their appeal on 6 March

2017. ECF No. 102.

2. The First Appeal

Shortly before briefing on the first appeal was

completed before the Ninth Circuit, this Court granted

certiorari in Janus v. AFSCME Council 31, 138 S.Ct.

54 (2017), addressing whether an agency shop

requirement — previously found constitutionally

permissible in Abood, supra — violates the First

Amendment rights of nonunion employees. On 27

June 2018, this Court answered that question in the

affirmative, and inter alia, overruled Abood. Janus,

138 S.Ct. at 2460, 2486.

Subsequent to this Court’s decision in Janus —

after which Local 1000 and the State Controller ceased

- 11 all fee seizures from nonmember State employees —

oral argument was conducted on the first appeal on 18

December 2018. In a per curiam decision, the panel

vacated the District Court’s judgment, acknowledged

the termination of fee seizures by the State after the

decision in Janus, and remanded the case “for further

proceedings in light of Janus.” On remand, the panel

noted that “the district court may determine in the

first instance whether any of Hamidi’s claims are

moot.” Dkt. Ent. 63 at 2.

3. Proceedings on Remand

On remand, the District Court addressed

Respondents’ assertion of mootness, dismissing the

Employees claims for prospective relief, holding that

“the Supreme Court’s decision in Janus and

subsequent actions taken by the state and the union

have mooted plaintiffs’ claims for prospective relief.”

ECF No. 139 at 5. Determining that “All available

evidence indicates that defendants changed their

position, not because of this lawsuit, but because the

Supreme Court’s decision in Janus rendered the

collection of union dues from nonconsenting employees

unconstitutional,” id. at 7, the District Court rejected

the Employees’ argument that the “voluntary

cessation” exception to the mootness doctrine applies

here, as Local 1000’s and the State Controller’s actions

were adequate to sustain their burden. Id. at 8-9.

However, the District Court declined to dismiss the

Employees’ claim for retrospective monetary relief

against Local 1000. Id. at 16. The parties’ subsequent

cross-Motions for Summary Judgment were decided on

- 12 25 October 2019, when the District Court issued its

Memorandum and Order (App. B at 6a-15a), and

entered judgment in favor of Respondents.

In its Memorandum, the District Court focused on

Local 1000’s invocation of “a good faith defense to

§ 1983 liability because the law at the time of Local

1000’s collection of agency fees permitted such a

system,” App. B at 9a-13a,4 because this Court had

implied but not conclusively held that such a defense

might be available. Id. at 9a-10a, citing Wyatt v. Cole,

504 U.S. 158, 169 (1992) (noting “possibility” of such a

defense); see also Richardson v. McKnight, 521 U.S.

399, 413-14 (1997) (declining to decide availability

again). Further noting that Janus “‘did not specify

whether the plaintiff was entitled to retrospective

monetary relief for conduct the Supreme Court had

authorized for the previous forty years,” id., citing

Cooley v. California Statewide Law Enf’t Ass’n, 385

F.Supp.3d 1077, 1081 (E.D.CAL. 2019), the District

Court concluded that the Ninth Circuit’s recognition of

a “good faith defense in shielding private defendants

from liability in § 1983 actions” was both available in

4

Because their claim for relief sought “compensatory

damages for the injuries sustained as a result of Defendants’

unlawful interference with and deprivation of their constitutional

and civil rights including, but not limited to, the amount of agency

fees improperly deducted from their wages, nominal damages, and

such other amounts as principles of justice and compensation

warrant,” ECF No. 1 at 14, ¶ C, and in light of Janus’ declaration

that all fee seizures were unlawful, 138 S.Ct. at 2486, the

Employees sought a full refund of their fees seized from their

wages during the limitations period, plus interest. ECF No. 149-1

at 46.

- 13 and applicable to this case. Id., citing Clement v. City

of Glendale, 518 F.3d 1090, 1097 (9TH CIR. 2008).

Noting that a series of district courts, as well as the

Second Circuit, had applied the defense to deny relief

to similarly-situated nonmembers for virtually

identical violations of their constitutional rights, the

District Court denied relief, holding that “compliance

with previously valid law suffices to grant a good faith

defense to § 1983 liability.” App. B at 12a (citations

omitted).

The Employees timely noticed their appeal on 18

November 2019. ECF No. 162.

4. The Second Appeal

On 26 October 2021, the United States Court of

Appeals affirmed the District Court’s judgment based

upon its prior decision in Danielson v. Inslee, 945 F.3d

1096 (9TH CIR. 2020), cert. denied 141 S.Ct. 1265

(2021), in a Memorandum Opinion formulaically and

perfunctorily holding that: (a) “unions are entitled to a

good-faith defense under § 1983 and are not liable to

pay back the agency fees collected before Janus,” citing

Danielson, 945 F.3d at 1103-05 (App. A at 5a); and

(b) “the Union’s use of the opt-out system still complied

with then-existing Supreme Court and Ninth Circuit

law,” citing Abood, 431 U.S. at 239; Hudson, 475 U.S.

at 306; Mitchell, 963 F.2d at 260-61, and addressing

Knox’s declaration that all of those cases relied upon

dicta with the conclusion that “the Union was entitled

to rely on Mitchell’s pronouncement of the law in good

faith.” App. B at 5a. Notably, the Ninth Circuit failed

- 14 to comment upon Mitchell’s continued viability, or lack

thereof.

REASONS FOR GRANTING THE WRIT

This Court has regularly granted review to

consider various questions related to forced-unionism

provisions pursuant to monopoly bargaining statutes

in both the private and public sectors. See Janus,

supra; Ellis v. Ry. Clerks, 466 U.S. 435 (1984); Hudson,

supra; Communications Workers of Am. v. Beck, 487

U.S. 735 (1988); Lehnert v. Ferris Faculty Ass’n, 500

U.S. 507 (1991); Air Line Pilots Ass’n v. Miller, 523

U.S. 866 (1998); Marquez v. Screen Actors Guild, 525

U.S. 33 (1998); Davenport v. Wash. Educ. Ass’n, 551

U.S. 177 (2007); Locke v. Karass, 555 U.S. 207 (2009);

Knox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S.

298 (2012); Harris v. Quinn, 573 U.S. 616 (2014).

This case is among many in which employees who

had agency fees seized from them in violation of their

First Amendment rights seek damages for their

injuries. Nevertheless, a number of lower courts have

now denied victims of unconstitutional agency fees

seizures relief for their injuries on the grounds that

there exists a general good faith defense to liability for

Federal civil rights violations.

This “good faith” defense to Section 1983 has never

been recognized by this Court.5 However, three times

5

Indeed, it seems to have been rarely applied outside of

the context presented by this case. The Ninth Circuit had

(continued...)

- 15 this Court has discussed, and declined to decide,

whether such a defense exists. See Richardson, 521

U.S. at 413; Wyatt, 504 U.S. at 169; Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 942 n.23

(1982).6

The Court should finally resolve this

important question to disabuse the lower courts of the

rapidly spreading notion that a defendant acting under

color of a statute before it is held unconstitutional

and/or prior judicial decision overtaken by controlling

authority is a defense to § 1983, contrary to its explicit

creation of remedies for Federal civil rights violations.

I.

The Categorical Good Faith Defense Applied

by the Court of Appeals Differs from the

Claim-Specific Defense Suggested by This

Court in Wyatt v. Cole.

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 elements of different constitutional

deprivations vary considerably. “In defining the

contours and prerequisites of a § 1983 claim . . . courts

5

(...continued)

recognized it outside of this context in Clement, supra, and merely

suggested its availability in the context of contract services

provided by private physician to a public entity. See Jensen v.

Lane County, 222 F.3d 570, 580 n.5 (9TH CIR. 2000).

6

Indeed, Justice Thomas has expressed grave “doubts

about our qualified immunity jurisprudence” accorded to public

officials. Baxter v. Bracey, 140 S.Ct. 1862 (2020) (Thomas, J.,

dissenting from the denial of certiorari).

- 16 are to look first to the common law of torts.” Manuel v.

City of Joliet, 137 S.Ct. 911, 920 (2017). “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.”

Id. at 921.

Wyatt considered whether a private defendant who

used an ex parte replevin statute to seize the plaintiff’s

property without due process of law was entitled to

qualified immunity in a § 1983 claim. 504 U.S. at 161.

The Court recognized that the plaintiffs’ claims were

analogous to “malicious prosecution and abuse of

process,” and 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). The Wyatt Court determined

that “[e]ven if there were sufficient common law

support to conclude that respondents ... should be

entitled to a good faith defense, that would still not

entitle them to what they sought and obtained in the

courts below: the qualified immunity from suit

accorded government officials....” 504 U.S. at 165.

This was so because the “rationales mandating

qualified immunity for public officials are not

applicable to private parties.” Id. at 167.

Wyatt left open the question of whether the

defendants could raise “an affirmative defense based

on good faith and/or probable cause.” Id. at 168-69.

But, contrary to the conclusions of the Ninth Circuit

- 17 and a growing number of lower courts, this potential

defense was not a categorical defense to all Section

1983 damages claims. Rather, the good faith defense

to which the Wyatt Court was referring was a defense

to the malice and probable cause elements of the

specific due process claim at issue in that case. All

three opinions in Wyatt make this clear.

First, Chief Justice Rehnquist, dissenting (joined

by Justices Thomas and Souter), explained it was a

“misnomer” to even call it a defense because “under the

common law, it was plaintiff’s burden to establish as

elements of the tort both that the defendant acted with

malice and without probable cause.” 504 U.S. at 176

n.1 (Rehnquist, C.J., dissenting). “Referring to the

defendant as having a good faith defense is a useful

shorthand for capturing plaintiff’s burden and the

related notion that a defendant could avoid liability by

establishing either a lack of malice or the presence of

probable cause.” Id.

Second, Justice Kennedy, concurring (joined by

Justice Scalia), agreed that “it is something of a

misnomer to describe the common law as creating a

good faith defense; we are in fact concerned with the

essence of the wrong itself, with the essential elements

of the tort.” 504 U.S. at 172. Justice Kennedy further

explained that “if the plaintiff could prove subjective

bad faith on the part of the defendant, he had gone far

towards proving both malice and lack of probable

cause.” Id. at 173. Indeed, often “lack of probable

cause can only be shown through proof of subjective

bad faith.” Id. at 174 (emphasis in original) (citing

Birdsall v. Smith, 122 N.W. 626 (MICH. 1909) (holding

- 18 that a plaintiff alleging malicious prosecution failed to

prove the prosecution lacked probable cause)).

Third, Justice O’Connor’s majority opinion in

Wyatt recognized that the dissenting and concurring

opinions were referring to a defense to the malice and

probable cause elements of claims analogous to

malicious prosecution cases. The majority opinion

found that “[o]ne could reasonably infer from the fact

that a plaintiff’s malicious prosecution or abuse of

process action failed if she could not affirmatively

establish both malice and want of probable cause that

plaintiffs bringing an analogous suit under § 1983

should be required to make a similar showing to

sustain a § 1983 cause of action.” 504 U.S. at 167 n.2

(emphasis added).

In short, the Wyatt Court suggested that there may

be a claim-specific “good faith” defense to § 1983

actions in which malice and lack of probable cause are

elements of the alleged constitutional deprivation.

Contrary to the Ninth Circuit and other lower courts,

the Wyatt Court was not suggesting that there exists a

categorical “good faith” defense in which a defendant’s

good faith reliance on state law is a defense to all

constitutional claims for damages brought under

§ 1983. There is no basis for such a sweeping defense

to § 1983.

The claim-specific “good faith” defense suggested

in Wyatt is no bar to Petitioners’ cause of action

because, quite simply, malice and lack of probable

cause are not elements of, or a defense to, a First

Amendment deprivation. Generally, “free speech

- 19 violations do not require specific intent.” OSU Student

Alliance v. Ray, 699 F.3d 1053, 1074 (9TH CIR. 2012).

In particular, a compelled speech violation does not

require any specific intent. Under Janus, a union

deprives public employees of their First Amendment

rights by taking their money without affirmative

consent. 138 S.Ct. at 2486. A union’s intent when so

doing is immaterial. Daniels v. Williams, 474 U.S. 327,

328 (1986) (holding that § 1983 “contains no

independent state-of-mind requirement”).

The limited good faith defense members of this

Court actually suggested in Wyatt offers no protection

to unions violating nonunion employees’ First

Amendment rights by seizing agency fees from them.

The Court should grant review to clarify what it

intended in Wyatt.

II. The Categorical Good Faith Defense Conflicts

with the Text and Purpose of § 1983.

Section 1983 states, in relevant part, that “[e]very

person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State” deprives a

citizen of a constitutional right “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

(emphasis added). Section 1983 means what it says:

“Under the terms of the statute, ‘[e]very person who

acts under color of state law to deprive another of a

constitutional right [is] answerable to that person in a

suit for damages.’” Rehberg v. Paulk, 566 U.S. 356,

- 20 361 (2012), quoting Imbler v. Pachtman, 424 U.S. 409,

417 (1976).

The proposition that a defendant’s good faith

reliance on a state statute exempts it from § 1983

damages liability has no basis in § 1983’s text. In fact,

the proposition conflicts with the statute in at least two

serious ways. First, it cannot be reconciled with the

statute’s mandate that “every person” — not some

persons, or persons who acted in bad faith, but “every

person” — who deprives a party of constitutional rights

under color of law “shall be liable to the party injured

in an action at law....” 42 U.S.C. § 1983. The term

“shall” is mandatory, not permissive.

Second, an element of § 1983 is that a defendant

must act “under color of any statute, ordinance,

regulation, custom, or usage, of any State.” 42 U.S.C.

§ 1983. By creating a “safe harbor” in reliance upon a

statute or intermediate appellate court decisionmaking, the Ninth Circuit and other lower courts have

turned § 1983 on its head by holding that persons who

act under color of a not yet invalidated state law to

deprive others of a constitutional right are not liable to

the injured parties in an action for damages. Janus v.

AFSCME Council 31 (“Janus II”), 942 F.3d 352, 362

(7TH CIR. 2019). The courts have effectively declared

a statutory element of § 1983 — that defendants must

act under color of state law — to be a defense to § 1983.

Under the decisions of the Ninth Circuit and other

lower courts, acting under color of a state law yet to be

held unconstitutional is now a potential defense to all

§ 1983 damages claims.

- 21 But a defendant acting under color of a state

statute cannot simultaneously be both an element of

and a defense to § 1983. That would render the statute

self-defeating: any private defendant that acted “under

color of any statute,” as § 1983 requires, would be

shielded from liability because it acted under color of a

state statute. The “sword” placed in the hands of

victims of civil rights violations will have been turned

into an impenetrable “shield” against liability if the

Ninth Circuit’s decision is allowed to stand.

Here, the fact that Local 1000 acted under color of

California’s forced-unionism law and Mitchell when it

deprived Petitioners of their constitutional rights is not

exculpatory, but a necessary element of their claim for

damages under § 1983. This conclusion is consistent

with the purpose of § 1983, which is to provide a

federal remedy to persons deprived of constitutional

rights by parties acting under color of state law. “By

creating an express federal remedy, Congress sought to

‘enforce provisions of the Fourteenth Amendment

against those who carry a badge of authority of a State

and represent it in some capacity, whether they act in

accordance with their authority or misuse it.’” Owen v.

City of Independence, Mo., 445 U.S. 622, 650-51 (1980),

quoting Monroe v. Pape, 365 U.S. 167, 172 (1961). The

proposition that a defendant acting under authority of

an existing state law is exculpatory under § 1983

inverts the purposes of the statute, rendering it selfdefeating by its own terms. See Diamond v. Pa. State

Educ. Ass’n, 972 F.3d 262, 288-89 (3D CIR. 2020)

(Phipps, J., dissenting).

- 22 The lack of any basis in § 1983’s text and history

for a good-faith defense distinguishes it from other

recognized, statutorily-based immunities or defenses to

a § 1983 claim. Courts “do not have a license to create

immunities based solely on [the court’s] view of sound

policy.” Rehberg, 566 U.S. at 363. Courts accord an

immunity only when a “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 when it enacted Section 1983.” Richardson,

521 U.S. at 403 (cleaned up).

Unlike with immunities, “there is no common-law

history before 1871 of private parties enjoying a goodfaith defense to constitutional claims.” Janus II, 942

F.3d at 364; see Diamond, 972 F.3d at 288 (finding “[a]

good faith defense is inconsistent with the history of

the Civil Rights Act of 1871”) (Phipps, J., dissenting);

see also William Baude, Is Qualified Immunity

Unlawful?, 106 Cal.L.Rev. 45, 55 (2018) (finding

“[t]here was no well-established, good faith defense in

suits about constitutional violations when Section 1983

was enacted, nor in Section 1983 suits early after its

enactment”). The policy justifications for immunities

generally are not applicable to private defendants.

Wyatt, 504 U.S. at 164-167. Thus, unlike with

recognized immunities, there is no justification for

recognizing a good-faith defense that defies § 1983’s

statutory mandate that “[e]very person who, under

color of any statute” deprives a citizen of a

constitutional right “shall be liable to the party injured

in an action at law.” 42 U.S.C. § 1983.

- 23 III.

Policy Interests in “Fairness” and

Equality Do Not Support a Good Faith

Defense, But Weigh Against Recognizing

It.

A. Courts cannot create defenses to § 1983

based on policy interests in fairness and

equality.

Most circuit courts recognizing a categorical goodfaith defense to § Section 1983 assert that policy

interests in equality and fairness justify recognizing

this defense. See Danielson, 945 F.3d at 1101; Janus

II, 942 F.3d at 366; Lee v. Ohio Educ. Ass’n, 951 F.3d

386, 392 n.2 (6TH CIR. 2020); Wholean v. CSEA SEIU

Local 2001, 955 F.3d 332, 333 (2D CIR. 2020).7 This

rationale is inadequate, even by its own terms, because

courts cannot create defenses to federal statutes when

they believe it is unfair to enforce the statute.

“As a general matter, courts should be loath to

announce equitable exceptions to legislative

requirements or prohibitions that are unqualified by

7

Some, like the Ninth Circuit here, have a long history of

substituting their notions of “fairness and equality” to frustrate

the decisions of this Court. The Ninth Circuit’s conclusion

hearkens back to Knox v. Service Employees Intern’l Union, Local

1000, 628 F.3d 1115, 1119-20 (9TH CIR. 2010) (applying balancing

and reasonable accommodation test pitting union’s interest in

seizing fees against nonmembers’ First Amendment rights), rev’d,

567 U.S. 298, 313 (2012); see also Davenport, 551 U.S. at 185; see

also Grunwald v. San Bernardino Unified School District, 994

F.2d 1370, 1376 n.7 (9TH CIR. 1993). Nevertheless, like a bad

penny, this balancing test keeps turning up in Ninth Circuit

decisionmaking.

- 24 the statutory text.” Guidry v. Sheet Metal Workers

Nat. Pension Fund, 493 U.S. 365, 376 (1990). Statutes

must be enforced as Congress wrote them. “[I]n our

constitutional system[,] the commitment to the

separation of powers is too fundamental for [courts] to

preempt congressional action by judicially decreeing

what accords with ‘common sense and the public

weal.’” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 195

(1978).

This principle applies to Section 1983. “It is for

Congress to determine whether § 1983 litigation has

become too burdensome ... and if so, what remedial

action is appropriate.” Tower v. Glover, 467 U.S. 914,

922–23 (1984). Thus, courts “do not have a license to

create immunities based solely on [the court’s] view of

sound policy.” Rehberg, 566 U.S. at 363. So too with

the “fairness” justification for a “good faith” defense:

courts cannot just invent defenses to § 1983 liability

based on their views of sound policy.

Even if a policy interest in fairness could justify

creating a defense to a federal statute like § 1983 —

which it cannot — fairness to victims of constitutional

deprivations would require enforcing § 1983 as written.

It is not fair to make victims of constitutional

deprivations pay for their antagonists’ unconstitutional

conduct. Nor is it fair to let wrongdoers keep ill-gotten

gains. “[E]lemental notions of fairness dictate that one

who causes a loss should bear the loss.” Owen, 445

U.S. at 654.

The Supreme Court in Owen wrote those words

when holding that municipalities are not entitled to a

- 25 good faith immunity to § 1983. The Court’s equitable

justifications for so holding are equally applicable here.

First, the Owen Court reasoned that “many victims

of municipal malfeasance would be left remediless if

the city were also allowed to assert a good faith

defense,” and that “[u]nless countervailing

considerations counsel otherwise, the injustice of such

a result should not be tolerated.” Id. at 651. That

injustice also should not be tolerated here. Countless

victims of constitutional deprivations — not just

Petitioners and other employees who had agency fees

seized from them — will be left remediless if

defendants to § 1983 suits can escape liability by

showing they had a good faith, but mistaken, belief

their conduct was lawful.

Second, the Owen Court recognized that § 1983

“was intended not only to provide compensation to the

victims of past abuses, but to serve as a deterrent

against future constitutional deprivations, as well.”

445 U.S. at 651. “The knowledge that a municipality

will be liable for all of its injurious conduct, whether

committed in good faith or not, should create an

incentive for officials who may harbor doubts about the

lawfulness of their intended actions to err on the side

of protecting citizens’ constitutional rights.” Id. at 65152 (emphasis added). The same rationale weighs

against a “good faith” defense to § 1983.

Third, the Owen Court held that “even where some

constitutional development could not have been

foreseen by municipal officials, it is fairer to allocate

the resulting loss” to the entity that caused the harm

- 26 rather “than to allow its impact to be felt solely by

those whose rights, albeit newly recognized, have been

violated.” Id. at 654. So too here, when Petitioners’

and Local 1000’s interests are weighed together, the

balance of equities favors requiring Local 1000 to

return the monies unconstitutionally seized from

workers who chose not to join the union.

The same reasoning applies to the notion that

principles of “equality” justify creating a defense for

private defendants that is similar to the immunities

enjoyed by some public defendants. Danielson, 945

F.3d, 1101; see also Janus II, 942 F.3d at 366; Lee, 951

F.3d at 392 n.2; Wholean, 955 F.3d at 333. Courts do

not award defenses to parties as consolation prizes for

failing to meet the criteria for qualified immunity.

Individual public servants enjoy qualified

immunity for reasons not applicable to rent-seeking8

unions and most other private entities: to ensure that

the threat of personal liability does not dissuade

individuals from acting as public servants. See Wyatt,

504 U.S. at 168. The fact that this interest does not

apply to the unions is not grounds for creating an

equivalent defense for them. “Fairness alone is not . .

. a sufficient reason for the immunity defense, and thus

8

Rent-seeking, according to public choice theory, “refer[s]

to actions aimed at obtaining special government privilege,” and

is aimed at securing profits through the political process rather

than the market process of exchange. Gordon Tullock, “The

Origin Rent-Seeking Concept,” 2 Int’l J. of Bus. and Econ. 1, 5

(2003). An example of rent-seeking is when a firm, union, or

special-interest group lobbies political actors (e.g., politicians or

bureaucrats) to influence legislation in a beneficial manner.

- 27 does not justify its extension to private parties.”

Crawford-El v. Britton, 523 U.S. 574, 590 n.13 (1998).

Neither fairness nor equality justify the reliance

defense the Ninth Circuit and other lower courts have

recognized. Rather, both principles weigh against

carving out this exemption in Section 1983’s remedial

framework.

B. The reliance defense adopted by the

Ninth Circuit and other lower courts

conflicts with Reynoldsville Casket.

This Court’s retroactivity jurisprudence makes

clear that both Knox and Janus have retroactive effect,

and undermines Local 1000’s asserted good faith

defense. The reliance defense the Ninth Circuit and

other lower courts have fashioned to defeat their

retroactive effect is indistinguishable from the reliance

defense this Court held invalid for violating

retroactivity principles in Reynoldsville Casket.

In Harper v. Virginia Department of Taxation, 509

U.S. 86, 97 (1993), the Court held that its decisions in

civil cases were presumptively retroactive unless the

Court specifically states that its decision is not to be

applied retroactively. Nothing in Knox or Janus

specifically states that the decisions are not

retroactive.

Two years later, in Reynoldsville Casket Co. v.

Hyde, the Court held that courts cannot create

equitable remedies based on a party’s reliance on a

statute before it was held unconstitutional by the

Supreme Court.

514 U.S. 749, 759 (1995).

- 28 Reynoldsville Casket concerned an Ohio statute that

effectively granted plaintiffs a longer statute of

limitations for suing out-of-state defendants. 514 U.S.

at 751. This Court had earlier held the statute

unconstitutional. Id. The Ohio state court, however,

permitted a plaintiff to proceed with a lawsuit that was

filed under the statute before the Court invalidated it.

Id. at 751-52. The plaintiff asserted this was a

permissible equitable remedy because she relied on the

statute before it was held unconstitutional. Id. at 753

(describing the state court’s remedy “as a state law

‘equitable’ device [based] on reasons of reliance and

fairness”). This Court rejected that contention, holding

the state court could not evade retroactivity by creating

an equitable remedy based on a party’s reliance on a

statute before it was held unconstitutional. 514 U.S.

at 759.

The Ninth Circuit and other lower courts have

engaged in just such an evasion, creating a “union

exception” to the standards set by this Court for the

retroactive application of its decisions. They created

an equitable defense based on a defendant’s reliance on

a practice this Court deemed unconstitutional. The

reliance defense the Ninth Circuit created conflicts

with this Court’s Reynoldsville Casket precedent.9

9

A “good faith” defense is unlike an immunity, which does

not conflict with this Court’s retroactivity doctrine because an

immunity is a well-established legal rule grounded in “special

federal policy considerations.” Reynoldsville Casket, 514 U.S. at

759. A categorical good faith defense to § 1983 is not well

established. This Court has never recognized such a defense.

Moreover, the good faith defense is an equitable defense

(continued...)

- 29 IV. This Court Should Resolve the Conflict

Between the Third Circuit and Several Other

Circuit Courts.

In three separate opinions, a majority of a Third

Circuit panel in Diamond, supra, rejected the good

faith defense now recognized by the First, Second,

Fourth, Sixth, Seventh, and Ninth Circuits. Judge

Rendell, writing for herself, recognized the affirmative

good faith defense that several other circuit courts had

recently adopted. Id. at 271. Judge Fisher, concurring

in the judgment, rejected the categorical good faith

defense that Judge Rendell and some other circuits had

recognized. Id. at 274 (Fisher, J., concurring in the

judgment). Judge Fisher found that policy interests in

fairness or equality could not justify creating this

defense. Id. He also found that “the torts of abuse of

process and malicious prosecution provide at best

attenuated analogies” to First Amendment claims for

compelled speech. Id. at 280.10

9

(...continued)

predicated on a defendants’ reliance interests. The equitable

remedy at issue in Reynoldsville Casket was similarly based on “a

concern about reliance [that] alone has led the Ohio court to create

to what amounts to an ad hoc exemption to retroactivity.” Id.

This Court rejected that equitable remedy as inconsistent with its

retroactivity doctrine.

10

While he rejected a good faith defense, Judge Fisher

found an alternative limit to Section 1983 liability. According to

Judge Fisher, prior to 1871, “[c]ourts consistently held that

judicial decisions invalidating a statute or overruling a prior

decision did not generate retroactive civil liability with regard to

financial transactions or agreements conducted, without duress or

fraud, in reliance on the invalidated statute or overruled decision.”

(continued...)

- 30 Judge Phipps, dissenting, agreed with Judge

Fisher that there is no good faith defense to Section

1983. Id. at 285 (Phipps, J. dissenting). According to

Judge Phipps, “[g]ood faith was not firmly rooted as an

affirmative defense in the common law in 1871, and

treating it as one is inconsistent with the history and

the purpose of § 1983.” Id. at 289. Judge Phipps

continued, “Nor does our precedent or even principles

of equality and fairness favor recognition of good faith

as an affirmative defense to a compelled speech claim

for wage garnishments.” Id.

Taking the three opinions together, a majority of

the Third Circuit rejected the good faith defense

recognized by the First, Second, Fourth, Sixth,

Seventh, and Ninth Circuits. See Doughty v. State

Emples. Ass’n of N.H., 981 F.3d 128 (1ST CIR. 2020);

Wholean, 955 F.3d 332 (2D CIR. 2020); Akers v. Md.

State Educ. Ass’n, 990 F.3d 375 (4TH CIR. 2021); Lee,

951 F.3d at 392 n.2; Janus II, 942 F.3d 365 (7TH CIR.

2019); Danielson, 945 F.3d at 1101. The Court should

resolve this conflict amongst the circuit courts. This is

especially true given that a good faith defense lacks

any cognizable legal basis, just as Judges Fisher and

Phipps recognized.

10

(...continued)

Id. at 281. Judge Fisher concluded that Section 1983 incorporates

this ostensible liability exception. Id. at 284. This view is

idiosyncratic. To Petitioners’ knowledge, no court has adopted it.

- 31 V. It Is Exceptionally Important that This Court

Resolve Whether Congress Created a Good

Faith Defense to § 1983 Claims.

In at least three prior cases the Court questioned,

but opted not to decide, whether Congress has provided

private defendants with a “good-faith” defense. See

Richardson, 521 U.S. at 413; Wyatt, 504 U.S. at 169;

Lugar, 457 U.S. at 942 n.23. It is time for the Court to

finally resolve the matter.

The Court should end the growing misconception

among lower courts that this Court in Wyatt signaled

that private defendants should be granted a broad

reliance defense to Section 1983 liability akin to

qualified immunity. In the wake of Janus, a chorus of

lower courts have interpreted Wyatt in that way. See

Danielson, 945 F.3d at 1104 n.7 (collecting most cases).

Yet Wyatt did not suggest such a defense, but merely

suggested that reliance on a statute could defeat the

malice and lack-of-probable cause elements of claims

analogous to malicious prosecution and abuse of

process claims. See supra at 16-18. The Court should

explain what it meant in Wyatt.

It is important that the Court do so quickly

because whether tens of thousands of victims of forcedunionism schemes can receive compensation hangs in

the balance. District courts in roughly two dozen cases

— most filed as class actions — have held that a

“good-faith” defense exempts unions from having to

pay damages to employees whose First Amendment

rights the unions violated. See Danielson, 945 F.3d at

1104 n.7 (collecting most cases). Absent review, such

- 32 cases are likely doomed to failure and employees will

be left without a remedy, a serious deviation from

bedrock American law.

From its earliest decisions, this Court has held fast

to the proposition that “It is a settled and invariable

principle, that every right, when withheld, must have

a remedy, and every injury its proper redress.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803)

(Marshall, C.J.); see id. at 163; Bell v. Hood, 327 U.S.

678, 684 (1946); Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388, 392 (1971); see also Ziglar v.

Abbasi, 137 S.Ct. 1843, 1874 (2017) (Breyer, J.,

dissenting). The Court should grant review so the

employees in these suits can recover a portion of the

“windfall,” Janus, 138 S. Ct. at 2486, of compulsory

fees enjoyed by unions wrongfully seizing it from them.

The importance of the question presented extends

beyond victims of agency fee seizures to victims of

other constitutional deprivations. Unless rejected by

this Court, defendants could raise this defense against

any constitutional claim actionable under § 1983,

including discrimination based on race, religious faith,

or political affiliation. Courts would have to adjudicate

this defense, lest it become a “union exception” to

normal principles of law, the “damnum absque injuria

— a loss without an injury” against which the Great

Chief Justice warned. Marbury, 5 U.S. at 163-64.11

11

Of course, even this remedy has its limitations, as

nothing will remedy the “distortions of the political process,”

Crawford v. Bd. of Educ. of City of Los Angeles, 458 U.S. 527, 546

(1982) (Blackmun, J., concurring); see also Austin v. Michigan

(continued...)

- 33 More importantly, plaintiffs who would otherwise

receive damages for their injuries will be remediless

unless this Court rejects this new, judicially-created

defense to § 1983 liability.

The Court should grant review to clarify that

immunities and defenses to § 1983 must rest on a firm

statutory basis, and that the new reliance defense

recognized below lacks any such basis. Chief Justice

Marshall warned that “The government of the United

States has been emphatically termed a government of

laws, and not of men. It will certainly cease to deserve

this high appellation, if the laws furnish no remedy for

the violation of a vested legal right.” Marbury, 5 U.S.

at 163-64.

The Court should grant certiorari to vindicate its

clear holdings in Knox and Janus: governments and

unions cannot seize payments for union speech from

employees unless those employees knowingly,

intelligently, and voluntarily waive their right not to

subsidize that speech. 138 S.Ct. at 2486. This holding

11

(...continued)

Chamber of Com., 494 U.S. 652, 663 n.2 (1990), overruled on other

grounds by Citizens United v. Fed. Election Commn., 558 U.S. 310

(2010); McConnell v. Fed. Election Commn., 540 U.S. 93, 333

(2003) (Scalia, J., concurring), overruled on other grounds by

Citizens United, supra, occasioned by the unions’ utilization of

millions of dollars of “other people’s money,” Davenport, 551 U.S.

177, 187 (2007), forcibly extracted from nonunion public

employees. Refunding illegally extracted monies ameliorates the

harm only to its direct victims. It does not remedy the harm to the

body politic arising from and caused by the practice, which is

almost certainly beyond meaningful measure, and almost

certainly beyond the power of the courts to remedy.

- 34 has particular force when, as here, the Respondent was

on notice that the juridical basis for their “opt-out”

scheme was derived from nothing but this Court’s

dicta, conveyed in a decision against it specifically.

Any doubts with regard to Knox’s significance were

removed when this Court restored public employees’

full free choice in Janus. Unless the Employees had

knowingly, intelligently, and voluntarily waived their

First Amendment right to stop subsidizing union

political speech, 138 S.Ct. at 2486, it certainly was

unconstitutional for the government and union to

compel them to pay for union speech in the absence of

an objection.

CONCLUSION

For the reasons stated above, certiorari should be

granted, and the case set for plenary briefing and

argument on the important questions presented.

Respectfully submitted,

W. JAMES YOUNG

Counsel of Record

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

E-MAIL — wjy@nrtw.org

ATTORNEY FOR PETITIONERS

January 2022

APPENDIX

-1aAPPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KOUROSH KENNETH

HAMIDI; et al.,

Plaintiffs-Appellants,

and

CECILIA STANFIELD;

MOZELLE

YARBROUGH,

No. 19-17442

D.C. No.2:14-cv-00319WBS-KJN

MEMORANDUM*

Plaintiffs,

v.

SERVICE EMPLOYEES

INTERNATIONAL

UNION, LOCAL 1000;

BETTY T. YEE, State of

California,

Defendants-Appellees,

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3

-2aSubmitted October 22, 2021**

San Francisco, California

Before:

BADE and BUMATAY, Circuit Judges,

and SESSIONS,*** District Judge.

Kourosh Hamidi and over a dozen other public

sector employees (“Employees”) appeal from the

district court’s dismissal of their class action lawsuit

against the Service Employees International Union,

Local 1000 (“Union”) and California State Controller.

The Employees seek declaratory and monetary relief

under 42 U.S.C.§ 1983 for agency fees collected from

their paychecks in violation of the First Amendment.

We review both the dismissal of a complaint for

failure to state a claim and the grant of summary

judgment de novo. Telesaurus VPC, LLC v. Power, 623

F.3d.998, 1003 (9th Cir. 2010); United States v.

Phattey, 943 F.3d 1277, 1280 (9th Cir. 2019).

** The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P.

34(a)(2).

** The Honorable William K. Sessions III, United States

District Judge for the District of Vermont, sitting by

designation.

-3a1.

The Employees’ claim for prospective

declaratory relief is moot.1 “It is an inexorable

command of the United States Constitution that the

federal courts confine themselves to deciding actual

cases and controversies.” Gator.com Corp. v. L.L.

Bean, Inc., 398 F.3d 1125, 1128 (9th Cir. 2005) (en

banc). “The limitations that Article III impose upon

federal court jurisdiction are not relaxed in the

declaratory judment context.” Id. at 1129. Thus, “an

actual controversy must be extant at all states of

review, not merely at the time the complaint is filed.”

Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974).

The Union stopped collecting agency fees in light

of Janus v. American Federation of State, County &

Municipal Employees, Council 31, 138 S. Ct. 2448

(2018). Thus, the challenged opt-out system has not

been used for more than a year. The day after Janus

was decided, the State Controller cancelled the

deduction of agency fees from all nonconsenting public

employees. Over a month later, the California

Attorney General issued an advisory opinion

concerning Janus, explaining that the state “may no

longer automatically deduct a mandatory agency fee

from the salary or wages of a non-member public

employee who does not affirmatively choose to

financially support the union.” Similarly, in-house

counsel for the Union filed an affidavit stating that the

Union stopped collecting agency fees and using the optout procedure following Janus. Union counsel also

conceded that the collecting agency fees from nonunion members is unconstitutional under Janus and

1 The Employees concede that their claim for injunctive relief

is moot.

-4athat this determination binds the Union. Based on

these facts, the district court found the Employees’

claim for prospective relief moot.

We agree that “subsequent events made it

absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Friends of

the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 189 (2000) (emphasis added) (citation

omitted). The Attorney General’s and the Union’s

acceptance of the unconstitutionality of mandatory

agency fee collection, along with the termination of the

opt-out system itself, make it clear that their “allegedly

wrongful behavior [is not] likely [to] occur or continue

and that [there is no] threatened injury...certainly

impending.” Id. at 190 (simplified). There is no

reasonable likelihood that the Union or the State

Controller will resume collecting fees or using the

challenged opt-out procedure.

That the California statutes about agency fees,

such as Cal. Gov’t Code §§ 3513(I) & (k), 3515, 3515.7,

and 3515.8, have not been repealed does not give

standing to the Employees. Unconstitutional statutes,

without more, give no one a right to sue. See, e.g.,

Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d

1134, 1129 (9th Cir. 2000) (en banc) (“[T]he mere

existence of a...statute...[does not] satisf[y] a ‘case or

controversy’ requirement..Rather, there must be a

‘genuine threat of imminent prosecution.’”) (citations

omitted). Thus, we hold that Employees’ allegations

do not “plausibly give rise to an entitlement to relief,”

Telesaurus, 623 F.3d at 1003 (simplified), and affirm.

2. The Employees’ claim for retroactive relief is

-5aforeclosed by Danielson v. Inslee, 945 F.3d 1096 (9th

Cir. 2019). The Employees ask the Union for a refund

of all agency fees collected from their paychecks after

July 2013. Danielson ruled that unions are entitled to

a good-faith defense under § 1983 and are not liable to

pay back the agency fees collected before Janus. Id. at

1103-05. Danielson also held that “private parties” are

entitled “to rely on judicial pronouncements of what

the law is, without exposing themselves to potential

liability for doing so.” Id. at 1099.

Even though the Employees’ claim here is

slightly different from Danielson, the Union’s use of

the opt-out system still complied with then-existing

Supreme Court and Ninth Circuit law. See, e.g., Abood

v. Detroit Bd. of Educ., 431 U.S. 2019, 239 (1977);

Chicago Teachers Union, Loc. No. 1, AFT, AFL-CIO v.

Hudson, 475 U.S. 292, 306 (1986); Mitchell v. Los

Angeles Unified Sch. Dist., 963 F.2d 258, 260-61 (9th

Cir. 1992), cert. denied, 506 U.S. 940 (1992). Even

with the Supreme Court’s decision in Knox v. Service

Employees International Union, Local 1000, 567 U.S.

298 (2012), the Union was entitled to rely on Mitchell’s

pronouncement of the law in good faith. Because the

Union’s collection of agency fees through the opt-out

system was “sanctioned not only by state law, but also

by directly on-point” Ninth Circuit precedent, we hold

that the Union is entitled to a good-faith defense to

“retrospective monetary liability under section 1983 for

the agency fees it collected pre-Janus.” Danielson, 945

F.3d at 1104, 1099. Thus, Danielson precludes the

Employees’ recovery of agency fees.

AFFIRMED.

-6aAPPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

KOUROSH KENNETH

HAMIDI; et al., and the

CLASS THEY SEEK

TO REPRESENT,

Plaintiffs,

v.

SERVICE

EMPLOYEES

INTERNATIONAL

UNION, LOCAL 1000;

BETTY T. YEE, State of

California,

Case No. 2:14-cv-00319

WBS KJN

MEMORANDUM AND

ORDER: CROSSMOTIONS FOR

SUMMARY

JUDGMENT, MOTION

TO DECERTIFY THE

CLASS, AND MOTION

TO AMEND CLASS

CERTIFICATION

ORDER

Defendants,

----oo0oo---Plaintiffs Kourosh Kenneth Hamidi et al., and

the class they represent (“the Employees”), brought

this class action against defendants Service Employees

International Union Local 1000 (“Local 1000") and the

California state controller,1 alleging that Local 1000’s

1 After this court dismissed plaintiffs’ claims for declaratory

and injunctive relief, plaintiffs had no claims remaining

-7a‘opt-out’ system for collecting optional union fees

violates the Employees’ First Amendment rights. In

light of the Supreme Court’s recent decision in Janus

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

requiring employees’ affirmative consent prior to any

collection of union fees, the court is now presented with

the parties’ cross-motions for summary judgment,

defendant’s motion to decertify the class, and plaintiffs’

motion to amend the class certification order.

I. Factual and Procedural Background

On June 27, 2018, the Supreme Court decided

Janus and held that payment to union may not be

collected from an employee without the employee’s

affirmative consent. 138 S. Ct. at 2486. The decision

overruled Abood v. Detroit Board of Education, 431

U.S. 209 (1977), and its progeny, which established

that unions may require nonmembers to pay a fee to

the union that would be used to fund expenditures

germane to collective bargaining.

Plaintiffs are employees of the State of

California.

(Local 1000 Resp. to Statement of

Undisputed Material Facts (“SUMF”) at 7, ¶ 6 (Docket

No. 152-1).) Local 1000 is the exclusive representative

for collective bargaining purposes of plaintiffs and

other state employees. (Id. at 8, ¶ 8).

Before Janus, employees represented by Local

1000 could either join the union as dues-paying

against the state controller. The court thus dismissed the

party from this lawsuit. (See June 18, 2019 Order at 16

(Docket No. 139).)

-8amembers (id. at 11, ¶ 12) or remaining nonmembers

and pay Local 1000 a ‘fair share’ fee. (Id. at 11, ¶ 12).

Nonmembers could choose to pay the “full” fair share

fee, which local 1000 used to fund expenditures both

germane and not germane to collective bargaining, or

a “reduced” fair share fee, which defendant used to

fund only expenditures that were germane to collective

bargaining. (See Decl. of Brian Calderia (“Caldeira

Decl.” ¶ 3 (Docket No. 37).)

Non-germane

expenditures, also known as non-chargeable

expenditures, included, for example, contributions to

“political or ideological causes only incidentally related

to the terms and conditions of employment.” (Local

1000 Resp. to SUMF at 12, ¶ 13 (Docket No. 152-1)).

Under the pre-Janus system, in deciding

whether to charge a nonmember the full or reduced

fair share fee, Local 1000 had, with the state’s

authorization and assistance, implemented an ‘opt-out’

system. (Id. at 3-4, ¶ 1). Prior to each annual fee

cycle, Local 1000 sent nonmembers, a notice (“Hudson

notice”) informing them that they will be charged the

full fair share fee for the upcoming cycle unless they

opt out by sending back a written statement stating

that they wish to be charged only the reduced fair

share fee. (Local 1000 Resp. to SUMF at 11-12, ¶ 13.)

Employees who did not object were charged the full fair

share fee. (Pls.’ Mot. in Supp. Summ. J. at 3-4 (Docket

No. 149-1).) The day after Janus was decided, the

California State Controller’s Office cancelled the

deduction of agency fees from all nonconsenting public

employees. (See June 18, 2019 Order at 5 (Docket No.

139).)

On January 31, 2014, plaintiffs brought this

-9aaction under 42 U.S.C. § 1983 alleging that Local

1000’s fee collection system violated nonmembers’ First

and Fourteenth Amendment rights. (Compl. at 1-2, ¶

1 (Docket No. 1).) This court first certified plaintiff’s

cause of action for class treatment to the extent it is

brought as a facial challenge to the constitutionality of

Local 1000's opt-out requirement. (See Feb. 8, 2017

Order at 14, 18 (Docket No. 94).) After the Court

decided Janus, this court dismissed as moot plaintiff’s

claims for declaratory and injunctive relief. (See June

18, 2019 Order at 16 (Docket No. 139).) Plaintiff’s “sole

remaining claim” is “for retrospective monetary relief.”

(Joint Status Report at 1 (Docket No. 143).)

II. Defendant’s Motion for Summary Judgment

Plaintiff seeks repayment of all fees – both

germane and non-germane to collective bargaining –

collected from nonmembers prior to the Court’s

decision in Janus. (Pls.’ Mot. in Supp. Summ. J. at 46

(Docket No. 149-1).) Defendant does not contest that

Local 1000’s opt-out system to collect agency fees from

nonmembers violates nonmembers’ First Amendment

rights under Janus. Defendant instead asserts a good

faith defense to § 1983 liability because the law at the

time of Local 1000’s collection of agency fees permitted

such a system. This court agrees that such a defense

applies here.

A. Section 1983 Good-Faith Defense

In Wyatt v. Cole, the Supreme Court did not

foreclose “the possibility that private defendants faced

with § 1983 liability ... could be entitled to an

affirmative defense based on good faith.” Wyatt v.

-10aCole, 504 U.S. 158, 169 (1992); see also Richardson v.

McKnight, 521 U.S. 399, 413-14 (1977) (“Wyatt

explicitly stated that it did not decide whether or not

the private defendants before it might assert, not

immunity, but a special ‘good-faith’ defense ... we do

not express a view on this last-mentioned question.”)

The Supreme Court in Janus “itself did not

specify whether the plaintiff was entitled to

retrospective monetary relief for conduct the Supreme

Court has authorized for the previous forty years.”

Cooley v. California Statewide Law Enf’t Ass’n, 385 F.

Supp. 3d 1077, 1081 (E.D. Cal. 2019) (citing Janus, 138

S. Ct. at 2486). The controlling law in the Ninth

Circuit, however, recognizes a good faith defense in

shielding private defendants from liability in § 1983

actions. In Clement v. City of Glendale, the Ninth

Circuit granted summary judgment in favor of

defendant – a towing company – as to the plaintiff’s §

1983 claim because the defendant “did its best to follow

the law” in that “the tow was authorized by the police

department, conducted under close police supervision

and appeared to be permissible under both local

ordinance and sate law.” 518 F. 3d 1090, 1097 (9th Cir.

2008). Since Clement, “[t]he threshold question of

whether the good faith defense is available to private

parties in § 1983 actions has been answered

affirmatively by the Ninth Circuit.” Cook v. Brown, 364

F. Supp. 3d 1184, 1190 (D. Or. 2019).

B. Application of Good-Faith Defense

1. Legal Standard

Plaintiffs construct a five-element good-faith test

-11aout of the Ninth Circuit’s decision in Clement to argue

that defendant’s actions do not qualify for the defense.

No court, however, as read Clement so rigidly. “[T]he

[good faith] defense has been applied by the Ninth

Circuit without a precise articulation of its contour.”

Cook v. Brown, 364 F. Supp. 3d 1184, 1192 (D. Or.

2019) (“The Ninth Circuit has thus far expressed no

position regarding the proper standard.”). Courts

instead apply “traditional principles of equity and

fairness.” Cook 364 F. Supp. 3d at 1192. Because

union defendants relied on 40-year precedent, and

because unions cannot retract the bargaining they

carried out on plaintiffs’ behalf, district courts have

concluded that requiring the union to refund the

collected fees would be inequitable. See, e.g., Babb, 378

F. Supp. 3d at 876; Cook, 364 F. Supp. 3d at 1192;

Crockett v. NEA-Alaska, 367 F. Supp. 3d 996, 1008 (D.

Alaska 2019).

In the fair share fee context, “every district court

to consider whether union that collected agency fees

prior to Janus have a good-faith defense to § 1983

liability have answered in the affirmative.” Babb v.

California Teachers Ass’n, 378 F. Supp. 3d 857, 872

(C.D. Cal. 2019) (collecting cases). Most recently, this

court found that, because unions enjoyed Supreme

Court and statutory authorization, the unions that

followed then-valid law were “entitled to the good-faith

defense as a matter of law.” Hernandez v. AFSCME

California, 2019 WL 2546196, at *2 (E.D. Cal. June 20,

2019).

Although courts have not articulated a standard

to evaluate good faith after Janus, the district courts

that have considered the issue having found good faith

-12awhere the union complied with then-existing Supreme

Court precedent and state law. See, e.g., Babb, 378

F. Supp. 3d 876 (finding good faith where union

defendant relied “on a presumptively valid state

statute” and “the 40-year-precedent of Abood”);

Danielson v. Am. Fed’n of State, Cty., * Mun.

Employees, Council 28, AFL-CIO, 340 F. Supp. 3d

1083, 1086 (finding good faith where “the Union

Defendant followed the then-applicable laws”); Cook,

364 F. Supp. 3d at 1192 (finding that “[i]t would be

highly inequitable to hold [the union defendant]

retroactively liable” where the union collected fees in

accordance with state law and Supreme Court

precedent); Crockett, 367 F. Supp. 3d 996, 1006 (same).

Moreover, the limited circuit-level guidance

available concludes that a union’s compliance with

previously valid law suffices to grant a good faith

defense to § 1983 liability. In Jarvis v. Cuomo, 660

F. App’x 72, (2d Cir. 2016), the Second Circuit

considered a union’s § 1983 liability for fair share fees

collected before the Supreme Court ruled in Harris v.

Quinn, 573 U.S. 616 (2014), that unions may not

compel personal care providers to pay fair share fees.

The Janus court found that the union was “not liable

for damages stemming from the pre-Harris collection

of fair share fees,” because the union “relied on a

validly enacted state law and the controlling weight of

Supreme Court precedent,” such that “it was

objectively reasonable for [the union] ‘to act on the

basis of a statute not yet held invalid.’” Jarvis v.

Cuomo, 660 F. App’x 72, 76 (2d Cir. 2016) (citing

Pinksy v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996)).

This court previously “express[ed] skepticism

-13athat the good faith defense depends on more than the

union’s actual compliance with then-existing law.”

Hamidi v. Serv. Employees Int’l Union Local 1000, 386

F. Supp. 3d 1289, 1300 (E.D. Cal. 2019). Today, in

reliance on the guidance above, this court makes the

standard clear: in the agency fee context, a union’s

compliance with then existing law indeed suffices to

find good faith.

2. Application to Local 1000's OptOut System

Local 1000 is entitled to the good-faith defense

because its opt-out system complied with then-valid

Supreme Court precedent. Prior to Janus, this court

specifically found that Local 1000’s opt-out procedure

was consistent with both Ninth Circuit and Supreme

Court decisions on agency fee collection. (Feb. 8, 2017

Order at 14, 18 (Docket No. 94).) When Plaintiffs filed

suit, it was well established that unions may require

nonmembers to pay the portion of the fair share fees

that are used to fund expenditures germane to

collective bargaining.

Abood, 431 U.S. at 235.

Further, this court found that the Ninth Circuit’s

finding in Mitchell v. Los Angeles Unified Sch. Dist.,

namely “that the Constitution does not mandate a

system under which nonmembers...’opt-in,’” 963 F.2d

258, 260 (9th Cir. 1992), was consistent with Supreme

Court juris-prudence and was therefore the controlling

law in the circuit. (See Feb. 8, 2017 Order at 12-13

(Docket No. 94).) Defendants “are entitled to rely”

upon the Supreme Court’s binding precedent and Local

1000 did so here. See Lee v. Ohio Educ. Ass’n, 366 F.

Supp. 3d 980, 983 (N.D. Ohio 2019).

-14aLocal 1000 also complied with then-valid state

law. The Dills Act (“The Act”) expressly permitted the

collection of fair share fees. See Cal. Gov’t Code § 3513

(k). Specifically, the Act permitted Local 1000 to

establish procedures for a nonmember employee to

object to paying the full fair share fee. Cal. Gov’t Code

§ 3515.8. Moreover, the Public Employment Relations

Board issued a regulation requiring exclusive

representatives like Local 1000 to “provide an annual

written notice to each nonmember who will be required

t o p a y a n a g ency fee ” t ha t i n c l u d e s

“procedures...objecting to the payment of an agency fee

amount that includes nonchargeable expenditures.”

8 C.C.R. § 32992. Both Supreme Court precedent and

then-valid state law authorized Local 1000 to require

nonmembers to opt out of payment of non-chargeable

fees. Local 1000’s compliance with then-valid law

therefore entitles defendant to good-faith defense as a

matter of law.

3. Local 1000's Subjective Belief

Plaintiffs contend that defendant did not in fact

act in good faith because they should have known that

the Court would overturn Abood. Plaintiffs are correct

that “union have been on notice for years regarding

[the] Court’s misgivings about Abood.” Janus, 138 S.

Ct. at 2484. But “reading the tea leaves of Supreme

Court Dicta has never been precondition to good faith

reliance on governing law.” Cook, 364 F. Supp. 3d at

1192. To find otherwise would force defendants to

engage in “constitutional gambling” and “decid[e] if

they truly agree with the Supreme Court’s reasoning to

avoid future liability.” Carey, 364 F. Supp. 3d at 1231.

-15aMore importantly, evaluating defendant’s

October Term predictions in a good-faith determination

would “imperil the rule of law.” Cook, 364 F. Supp. 3d

at 1193. Unions that followed what was then the law

– Abood – would not be entitled to the defense, while

those that questioned the Supreme Court’s binding

interpretation of the Constitution would walk away

unscathed. See also Danielson, 340 F. Supp. 3d at

1086 (concluding that consideration of a union’s

“subjective anticipation of an unpredictable shift in the

law undermines the importance of observing existing

precedent”). Defendant need not engage in telepathy

to avail itself of the good faith defense to § 1983

liability. See Winner v. Rauner, No. 15-cv-7213, 2016

WL 7374258, at *5 (N.D. Ill. 2016). Instead, as state

above, Local 1000’s compliance with what was then the

law is sufficient for a finding of good faith.

IT IS THEREFORE ORDERED that defendant’s

Motion for Summary Judgment (Docket No. 148) be,

and the same hereby is, GRANTED.2

Dated: October 24, 2019

2

The court’s ruling here resolves plaintiffs’

“sole remaining claim.” (Joint Status Report

at 1 (Docket No. 143).) Defendant’s motion

to decertify the class and plaintiffs’ motion to

amend the class certification order are

therefore moot.

-16a__________________________

WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

APPENDIX C

UNITED STATES CONSTITUTION

First Amendment

The First Amendment provides in pertinent part:

Congress shall make no law . . .

abridging the freedom of speech, . . . or

the right of the people peaceably to

assemble, and to petition the Government

for a redress of grievances.

-17aAPPENDIX D

UNITED STATES CONSTITUTION

Fourteenth Amendment

The Fourteenth Amendment provides in pertinent

part:

Section 1. .... No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

-18aAPPENDIX E

RALPH C. DILLS ACT,

CAL. GOV’T CODE § 3512 ET SEQ.

§ 3513. Definitions

As used in this chapter:

(k) “Fair share fee” means the fee deducted by

the state employer from the salary or wages of

a state employer from the salary or wages of a

state employee in an appropriate unit who does

not become a member of and financially support

the recognized employee organization. The fair

share fee shall be used to defray the costs

incurred by the recognized employee

organization in fulfilling its duty to represent

with the state, and shall not exceed the

standard initiation fee, membership dues, and

general assessments of the recognized employee

organization.

§ 3515.

Employee organizational rights,

maintenance of membership; fair share fee; self

representation

Except as otherwise provided by the Legislature,

state employees shall have the right to form, join, and

participate in the activities of employee organizations

of their own choosing for the purpose of representation

on all matters of employer-employee relations. State

employees also shall have the right to refuse to join or

participate in the activities of employee organizations,

except that nothing shall preclude the parties from

agreeing to a maintenance of membership provisions,

as defined in subdivision (I) of Section 3513, or a fair

share fee provision, as defined in subdivision (k) of

-19aSection 3513, pursuant to a memorandum of

understanding. In any event, state employees shall

have the right to represent themselves individually in

their employment relations with the state.