Petition for Writ of Certiorari — Mark Gabriele, et al., Petitioners v. Service Employees International Union, Local 1000, et al.
Supreme Court briefMar 25, 2022
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NO. __________
IN THE
Supreme Court of the United States
MARK GABRIELE AND JEN-FANG LEE, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Petitioners,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL
1000, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
GREGORY N. LONGWORTH JOHN J. BURSCH
CLARK HILL PLC
Counsel of Record
200 Ottawa Ave. NW
BURSCH LAW PLLC
Suite 500
9339 Cherry Valley
Grand Rapids, MI 49503
Ave. SE, No. 78
(616) 608-1100
Caledonia, MI 49316
glongworth@clarkhill.com (616) 450-4235
jbursch@burschlaw.com
Counsel for Petitioners
i
QUESTIONS PRESENTED
Petitioners are employees of the State of
California who declined to join a public union. They
seek a refund of the fair-share fees that public-sector
unions forcibly took from them and that this Court
invalidated in Janus v. American Federation of State,
County, and Municipal Employees, Council 31, 138 S.
Ct. 2448 (2018). The Ninth Circuit rejected Petitioners’ claims and allowed the Respondent unions to
keep their ill-gotten gains, concluding that 42 U.S.C.
1983 provides the unions with a good-faith defense.
That ruling presents three, distinct questions for this
Court’s review:
1. Whether this Court’s application of a rule of
federal law to the parties before it requires every
court to give retroactive effect to that decision.
2. Whether the proper remedy for the collection of
an illegal fee is refund or restitution, regardless of the
purported good faith of the fee collector.
3. Whether 42 U.S.C. 1983 provides a good-faith
defense for private entities who violate private rights
if the private entities acted under color of a law before
it was held unconstitutional.
ii
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT
Petitioners are Mark Gabriele and Jen-Fang Lee,
individually and on behalf of all others similarly
situated.
Respondents are Service Employees International Union Local 1000 and Service Employees
International Union.
Because Petitioners are not a corporation,
Supreme Court Rule 29.6 does not require a
corporate-disclosure statement.
LIST OF ALL PROCEEDINGS
U.S. Court of Appeals for the Ninth Circuit, No.
20-16353, Mark Gabriele and Jen-Fang Lee,
individually and on behalf of all others similarly
situated v. Service Employees International Union
Local 1000, et al., judgment entered October 26, 2021.
U.S. District Court for the Eastern District of
California, No. 2:19-cv-00292-WBS-KJN, Mark
Gabriele, Jen-Fang Lee, Stacy Penning, and Charles
Friedrichs, individually and on behalf of all others
similarly situated v. Service Employees International
Union Local 1000, et al., final judgment entered June
12, 2020.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT ................................................ ii
LIST OF ALL PROCEEDINGS ................................. ii
TABLE OF AUTHORITIES ..................................... vi
DECISIONS BELOW................................................. 1
STATEMENT OF JURISDICTION .......................... 1
PERTINENT CONSTITUTIONAL PROVISIONS
AND STATUTES .................................................. 1
INTRODUCTION ...................................................... 2
STATEMENT OF THE CASE ................................... 5
I. Background ........................................................... 5
II. Proceedings ........................................................... 5
REASONS FOR GRANTING THE WRIT................. 7
I. This Court should grant review to resolve a
conflict with this Court’s retroactivity
jurisprudence. ....................................................... 7
II. This Court should grant review because the
Ninth Circuit’s decision conflicts with this
Court’s Abood decision, which held that
refund is the proper remedy when a union
unconstitutionally collects a fair-share fee. ....... 12
III.This Court should grant review to resolve a
circuit split over the propriety of a refund
remedy when a union unconstitutionally
collects a fair-share fee. ...................................... 19
iv
IV. This Court should grant review to resolve two
distinct circuit splits and correct an error
regarding the unions’ supposed good-faith
defense to § 1983 liability. .................................. 20
V. This case is an ideal vehicle to resolve the
numerous conflicts presented and to give full
effect to Janus. .................................................... 31
CONCLUSION ......................................................... 33
v
APPENDIX TABLE OF CONTENTS
United States Court of Appeals
for the Ninth Circuit Memorandum
in 20-16353, Issued October 26, 2021 ..................... 1a
United States District Court
Eastern District of California,
Memorandum and Order re:
Motion to Dismiss First Amended Complaint
in 19-cv-00292-WBS-KJN,
Issued June 12, 2020................................................ 5a
United States District Court
Eastern District of California,
Judgment in a Civil Case
in 19-cv-00292-WBS-KJN,
Issued June 12, 2020.............................................. 17a
vi
TABLE OF AUTHORITIES
Cases
Abood v. Detroit Board of Education,
431 U.S. 209 (1977) ........................................ passim
Board of Regents v. Roth,
408 U.S. 564 (1972) ............................................... 27
Chicago Teachers Union v. Hudson,
475 U.S. 292 (1986) ................................................. 4
Clement v. City of Glendale,
518 F.3d 1090 (9th Cir. 2008) ............................... 26
Danielson v. Inslee,
945 F.3d 1096 (9th Cir. 2019),cert. denied
141 S. Ct. 1265 (2021) (Case No. 19-1130) .... passim
Davis v. Michigan Department of Treasury,
489 U.S. 803 (1989) ....................................... 8, 9, 12
Davis v. United States,
564 U.S. 229 (2011) ............................................... 12
Diamond
v.
Pennsylvania
State
Education
Association,
972 F.3d 262 (3d Cir. 2020) ........................... passim
Downs v. Sawtell,
574 F.2d 1 (1st Cir. 1978) ..................................... 25
Fairfax Covenant Church v. Fairfax Cty. Sch. Bd.,
17 F.3d 703 (4th Cir. 1994) ................................... 16
Filarsky v. Delia,
566 U.S. 377 (2012). .................................. 22, 27, 28
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ............................................... 27
Harper v. Virginia Dep’t of Taxation,
509 U.S. 86 (1993) .......................................... passim
Harris v. Quinn,
573 U.S. 616 (2014) ............................................... 33
vii
Howerton v. Gabica,
708 F.2d 380 (9th Cir. 1983) ................................. 26
Imbler v. Pachtman,
424 U.S. 409 (1976) ................................... 22, 28, 30
James B. Beam Distilling Co. v. Georgia,
501 U.S. 529 (1991) ..................................... 8, 10, 11
Janus v. American Federation of State,
County, and Municipal Employees, Council 31,
138 S. Ct. 2448 (2018) .................................... passim
Jordan v. Fox, Rothschild, O’Brien & Frankel,
20 F.3d 1250 (3d Cir. 1994) .................................. 26
Kelly v. Bemis,
4 Gray 83 (Mass. 1855) ......................................... 24
Lovell v. One Bancorp,
878 F.2d 10 (1st Cir. 1989) ................................... 26
Lowary v. Lexington Local Bd. of Education,
903 F.2d 422 (6th Cir. 1990) ............................. 4, 20
Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982) ............................................... 21
Machinists v. Street,
367 U.S. 740 (1961) ..............................13, 14, 15, 17
Marbury v. Madison,
1 Cranch 137 (1803) ........................................ 10, 11
Mooney v. Ill. Educ.Ass’n,
942 F.3d 368 (7th Cir. 2019) ................................... 6
Norton v. Shelby Cty.,
118 U.S. 425 (1886) ............................................... 10
Ogle v. Ohio Civil Serv. Emps. Ass’n,
951 F.3d 794 (6th Cir. 2020) ............................. 4, 21
Osmond v. Spence,
359 F. Supp. 124 (D. Del. 1972) ............................ 18
Owen v. City of Independence, Mo.,
445 U.S. 622 (1980) ........................................ passim
viii
Perry v. Sindermann,
408 U.S. 593 (1972) ............................................... 27
Pierson v. Ray,
386 U.S. 547 (1967) ......................................... 23, 25
Pinsky v. Duncan,
79 F.3d 306 (2d Cir. 1996) .................................... 26
Railway Clerks v. Allen,
373 U.S. 113 (1963) ..............................13, 14, 15, 20
Reynoldsville Casket Co. v. Hyde,
514 U.S. 749 (1995) ............................................... 10
Richardson v. McKnight,
521 U.S. 399 (1997) ............................................... 21
Richardson v. United States,
465 F.2d 844 (3d Cir. 1972) (en banc), rev’d
on other grds., 418 US. 166 (1974) ....................... 10
Sniadach v. Family Financial Corporation,
395 U.S. 337 (1969) ............................................... 18
Sumner v. Beeler,
50 Ind. 341 (1875) ................................................. 24
Tracy v. Swarthout,
35 U.S. 80 (1836) ................................................... 24
Vector Research, Inc. v. Howard &
Howard Attorneys, P.C.,
76 F.3d 692 (6th Cir. 1996) ................................... 26
Wessel v. City of Albuquerque,
299 F.3d 1186 (10th Cir. 2002) ................... 4, 19, 20
Wholean v. CSEA SEIU Local 2001,
955 F.3d 332 (2d Cir. 2020) .............................. 4, 21
Wyatt v. Cole,
504 U.S. 158 (1992) ........................................ passim
ix
Statutes
28 U.S.C. 1254(1) ....................................................... 1
28 U.S.C. 1331 ............................................................ 1
28 U.S.C. 1343 ............................................................ 1
28 U.S.C. 1367 ............................................................ 1
28 U.S.C. 1983 ........................................................ 1, 4
28 U.S.C. 2201 ............................................................ 1
42 U.S.C. 1983 ................................................... passim
Cal. Gov. Code § 3515 .................................2, 5, 31, 32
Other Authorities
2 Jeffrey A. Parness, Moore’s Federal Practice § 8.08
(3d ed. 2020).......................................................... 23
Arthur R. Miller et al., Federal Practice and
Procedure § 1271 (3d ed., Apr. 2020 Update) ...... 23
F. Pollock, The Law of Torts, 12–13 (1887) ............. 31
Rest. (3d) of Restitution § 19(1) ............................... 18
Rest. (3d) of Restitution § 19, comment e, illus. 10 19
Rest. (3d) of Restitution § 40 cmt. b (2011) ....... 17, 31
The Law of Torts 257 (1870) .................................... 30
Rules
Federal Rule of Civil Procedure 8(c).................. 22, 23
1
DECISIONS BELOW
The district court’s opinion and order granting
Respondents’ motion to dismiss is reprinted in the
Appendix (“App.”) at 5a–16a, and the district court’s
judgment in Respondents’ favor is reprinted at App.
17a. The Ninth Circuit’s affirmance is reprinted at
App.1a–4a.
STATEMENT OF JURISDICTION
On October 26, 2021, the Ninth Circuit issued its
summary order concluding that Respondent unions
were not required to return the illegal fair-share fees
they had taken from Petitioners’ paychecks because
of the unions’ good faith under 28 U.S.C. 1983. The
lower courts had jurisdiction under 28 U.S.C. 1331,
1343, 1367, and 2201. This Court has jurisdiction
under 28 U.S.C. 1254(1).
PERTINENT CONSTITUTIONAL
PROVISIONS AND STATUTES
42 U.S.C. 1983 states, in relevant part:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District
of Columbia, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress.
2
INTRODUCTION
Under California law, public unions had the right
to deduct from the wage or salary of non-union state
employees a so-called “fair-share fee.” Cal. Gov. Code
§ 3515. But in Janus v. American Federation of State,
County, and Municipal Employees, Council 31, 138 S.
Ct. 2448 (2018), this Court concluded that such a
scheme violates free-speech rights by compelling nonunion public employees to subsidize private speech on
matters of substantial public concern. As a result,
“public-sector agency-shop arrangements” like California’s “violate the First Amendment.” Id. at 2478.
The Court overruled Abood v. Detroit Board of
Education, 431 U.S. 209 (1977), a case about which
the Court had long expressed misgivings.
Petitioners Mark Gabriele and Jen-Fang Lee and
those similarly situated to them filed this lawsuit to
recoup the fees that Respondent unions illegally
seized during the relevant, pre-Janus limitations
period. Their theory is simple: when you take
something that does not belong to you, you must give
it back. And it makes no difference whether that
“take” was intentional or inadvertent.
The district court granted the unions’ motion to
dismiss based on the unions’ supposed good-faith
defense to liability under 42 U.S.C. 1983, and the
Ninth Circuit affirmed based on its previous decision
in Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019),
cert. denied 141 S. Ct. 1265 (2021) (Case No. 19-1130).
Danielson held “that a union defendant can invoke an
affirmative defense of good faith to retrospective
monetary liability under section 1983 for the agency
fees it collected pre-Janus, where its conduct was
directly authorized under both state law and decades
3
of Supreme Court jurisprudence.” Id. at 1098–99.
According to Danielson, this is the outcome even if
Janus is given retroactive application, id. at 1099, as
though Janus could be applied retroactively without
that making any difference whatsoever on a remedy.
The Ninth Circuit’s ruling conflicts with decisions
of this Court and those of other circuits in three
distinct ways. To begin, the Ninth Circuit’s
retroactivity holding conflicts with Harper v. Virginia
Dep’t of Taxation, 509 U.S. 86 (1993). Harper
admonished that when “this Court applies a rule of
federal law to the parties before it, that rule is the
controlling interpretation of federal law and must be
given full retroactive effect in all cases still open on
direct review and as to all events, regardless of
whether such events predate or postdate [the Court’s]
announcement of the rule.” Id. at 97 (emphasis
added). And that is precisely the relief Petitioners
request here: to have Janus applied to the period
before it was issued, just as in Harper. Indeed, Harper
shows that lower courts have no option but to apply
Janus retroactively in this manner, yet this is
precisely what the Ninth Circuit refused to do. While
the Ninth Circuit paid lip service to retroactivity, it
didn’t apply Janus retroactively in any way.
In addition, the Ninth Circuit’s decision conflicts
with Abood. There, too, plaintiffs filed claims
challenging agency fees as violating their First
Amendment rights. And while Abood upheld union
collection of fair-share fees—a ruling overturned in
Janus—the Court invalidated agency fees used for
political activities. Critically, Part III of the Court’s
opinion specified the appropriate remedies on
remand: (1) an injunction preventing future use of the
fees for political purposes, and (2) “restitution” or
4
“refund” of the fees collected in violation of the
Constitution. Abood, 431 U.S. at 237–42. This was so
even though Abood undeniably changed the law and
the unions were acting under color of a state law. If
restitution or refund was appropriate in Abood, then
it must be an appropriate remedy here, too.
In reaching the opposite conclusion, the Ninth
Circuit has joined the Second, Sixth, and Seventh
Circuits. E.g., Wholean v. CSEA SEIU Local 2001,
955 F.3d 332 (2d Cir. 2020); Ogle v. Ohio Civil Serv.
Emps. Ass’n, 951 F.3d 794 (6th Cir. 2020); and Janus
v. AFSCME, 942 F.3d 352 (7th Cir. 2019). This has
deepened a circuit conflict with the Tenth Circuit and
a competing Sixth Circuit decision. In Wessel v. City
of Albuquerque, 299 F.3d 1186 (10th Cir. 2002), the
Tenth Circuit ordered a refund of illegal agency fees
in favor of the employees from whom those fees were
collected. And in Lowary v. Lexington Local Bd. of
Education, 903 F.2d 422 (6th Cir. 1990), the Sixth
Circuit ordered a refund of fees illegally collected
before this Court’s decision in Chicago Teachers
Union v. Hudson, 475 U.S. 292 (1986). Only this
Court can resolve these conflicts.
Finally, the Ninth Circuit’s decision raises several
conflicts regarding the existence and scope of any
good-faith defense under 28 U.S.C. 1983. As
explained in more detail below, there is a 4-1 circuit
split over whether § 1983 incorporates a good-faith
defense at all, and a 6-1 circuit split over whether
private defendants like the unions may assert such a
defense if it exists. The Ninth Circuit also erred in
concluding that the common-law tort most analogous
to Petitioners’ claim was abuse of process rather than
conversion, where the latter does not allow a goodfaith defense.
5
The bottom line is that Respondent unions
continue to keep monies that do not belong to them.
This Court should grant the petition, resolve the
multiple conflicts, and vindicate the public employees
from whom public-sector unions illegally took fairshare fees until Janus stopped that unconstitutional
conduct.
STATEMENT OF THE CASE
I.
Background
Under Cal. Gov. Code § 3515, a public-employee
union has the right to take wages or salary from
public employees who are not members of the union,
a so-called “fair-share fee.” Petitioners Mark Gabriele
and Jen-Fang Lee—and many others like them—
were state employees in California who chose not to
join a public-employee union. First Am. Class-Action
Compl. ¶¶ 1–2. Nonetheless, their employer relied on
California’s law and deducted fair-share fees from
their paychecks on a bi-weekly basis. Id. ¶ 15.
It is undisputed that this taking of publicemployee wages violated Petitioners’ free-speech
rights; that was the whole point of this Court’s
holding in Janus. Yet post-Janus, the unions have
declined to return their illegal seizure of Petitioners’
wages, precipitating this class-action lawsuit.
II. Proceedings
Petitioners filed their class-action complaint
under 42 U.S.C. 1983, requesting injunctive and
declaratory relief against Respondent unions’ further
assessment of fair-share fees and requesting a refund
for past fees unlawfully withheld or collected.
6
The district court granted the unions’ motion to
dismiss, holding that Petitioners’ request for
prospective relief was moot because there was no
threat that the unions would continue collecting fees
in violation of Janus, App. 7a–11a, and Petitioners’
refund claims were barred by the unions’ good-faith
defense, App. 11a–12a. In rejecting Petitioners’
refund claim, the district court relied on Danielson.
App. 11a–12a. The district court also held California
law preempted Petitioners’ state-law claims for conversion and money had and received. App. 12a–16a.
The Ninth Circuit affirmed in a memorandum
opinion based on its previous decision in Danielson,
which addressed some of the same issues in an
indistinguishable context. App. 2a (discussing
Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019). In
Danielson, the Ninth Circuit held that “a union
defendant can invoke an affirmative defense of good
faith to retrospective monetary liability under section
1983 for the agency fees it collected pre-Janus ….”
Danielson, 945 F.3d 1098–99.
In Danielson, the Ninth Circuit noted that this
Court in Wyatt v. Cole, 504 U.S. 158, 168 (1992), left
open the question of whether private parties may
invoke a good-faith defense in response to § 1983
liability. 945 F.3d at 1099. And it followed the
Seventh Circuit in holding held “that a union
defendant can invoke an affirmative defense of good
faith to retrospective monetary liability under section
1983 for the agency fees it collected pre-Janus, where
its conduct was directly authorized under both state
law and decades of Supreme Court jurisprudence.” Id.
at 1098–99 (citing Janus v. AFSCME, 942 F.3d 352,
366 (7th Cir. 2019), and Mooney v. Ill. Educ.Ass’n,942
F.3d 368 (7th Cir. 2019)).
7
The Danielson opinion further opined that “it is
unnecessary to ‘wrestle the retroactivity [of Janus]
question to the ground.’” 945 F.3d at 1099. While
professing to assume the retroactivity of Janus, id.,
there is nothing suggesting that this had any impact
on the court’s decision.
REASONS FOR GRANTING THE WRIT
I.
This Court should grant review to resolve a
conflict with this Court’s retroactivity
jurisprudence.
The Ninth Circuit’s decision violates this Court’s
retroactivity jurisprudence. Indeed, in Danielson,
incorporated into the decision below, the Ninth
Circuit held “we find it unnecessary to ‘wrestle the
retroactivity question to the ground.’” Danielson, 945
F.3d at 1099 (quoting Janus v. Am. Fed’n of State,
Cty. & Mun. Emps., Council 31, 942 F.3d 352, 360 (7th
Cir. 2019)). That’s a euphemism for: “we aren’t
applying Janus retroactively.”
Under this Court’s precedent, Janus must be
applied retroactively. This point is made crystal clear
by Harper v. Virginia Dep’t of Taxation, 509 U.S. 86
(1993), which held that when “this Court applies a
rule of federal law to the parties before it, that rule is
the controlling interpretation of federal law and must
be given full retroactive effect in all cases still open on
direct review and as to all events, regardless of
whether such events predate or postdate [the Court’s]
announcement of the rule.” Id. at 97 (emphasis
added).
What’s more, Harper involved a plaintiff’s refund
claim and resulted in the plaintiff receiving that
refund for tax assessments taking place for the four
8
years before the governing precedent was reversed.
The decision is on all fours with this case and in direct
conflict with the Ninth Circuit’s retroactivity
analysis.
The Harper litigation’s genesis was this Court’s
decision in Davis v. Michigan Department of
Treasury, 489 U.S. 803 (1989). In Davis, this Court
invalidated a Michigan tax law that taxed federal
pension benefits while exempting state and local
pension benefits. Because the State of Michigan
recognized that a refund was appropriate, this Court
recognized that the federal retirees were entitled to a
refund of taxes paid pursuant to the invalid tax law.
Twenty-three other states, including Virginia,
had similar laws. After Davis, Virginia promptly
repealed its similar statute. While Harper was no
doubt pleased with that development, he was not
satisfied; he sought a refund of taxes he had paid
before the Virginia statute was repealed, specifically,
going back to 1985, four years before this Court issued
its decision in Davis.
The Virginia state courts held that Harper could
recover taxes paid after the Supreme Court decided
Davis, but not for the years before Davis—precisely
the position the Ninth Circuit took here. So, Harper
petitioned for review, and this Court remanded to the
Virginia Supreme Court to reconsider in light of
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529
(1991). On remand, the Virginia Supreme Court
affirmed its previous decision denying Harper a
refund of taxes paid for the four years before Davis.
Harper petitioned for review again, and this time,
this Court granted it. In 1993, the Court issued its
opinion in Harper, reversing the Virginia Supreme
9
Court’s decision that Harper was not entitled to a
refund of the taxes he paid before the issuance of
Davis.
As noted above, Harper held that Davis “must be
given full retroactive effect … as to all events,
regardless of whether such events predate or
postdate” the decision. 509 U.S. at 97. On this basis,
this Court remanded the case to the Virginia Supreme
Court yet again for further proceedings consistent
with the decision. And this time, the Virginia
Supreme Court got it right, ruling that Harper was
entitled to a refund of the taxes he had paid, not only
after the Supreme Court decided Davis but also for
the four years before Davis was decided. This was so
even though Virginia had no reason to know before
Davis that its tax law was unconstitutional.
Virginia and its taxing officials undoubtedly acted
in good faith in collecting the taxes from Harper prior
to this Court’s decision in Davis. That didn’t matter.
The illegal taxes—whether taken in good faith or
bad—had to be returned. This demonstrates that good
faith simply does not allow illegally collected money
to be retained. If the collection was illegal, the money
must be returned.
This Court’s Harper decision shows that
retroactivity entitles a plaintiff to obtain relief for the
period before the relevant statute was determined to be
unconstitutional—that is, for the period when the
unconstitutional statute was presumptively valid.
This is precisely the relief Petitioners request—to
have Janus applied to the period before it was issued.
That’s exactly what happened in Harper and what
should happen here.
10
It doesn’t matter that Janus overruled Abood. As
the concurring and dissenting opinions in Harper
recognized, Harper retroactivity applies even though
the new decision “overrule[es] clear past precedent on
which litigants may have relied”—as here—or
“decid[es] an issue of first impression whose
resolution was not clearly foreshadowed.” 509 U.S. at
110–11 (Kennedy, J., concurring); id. at 123
(O’Connor, J., dissenting).
Similarly, retroactive application of Janus
precludes a good-faith defense here. California’s fairshare-fee statutes are “void,” Marbury v. Madison, 1
Cranch 137, 177–80 (1803), they “afford[ ] no
protection,” Norton v. Shelby Cty., 118 U.S. 425, 442
(1886), and no defense may be premised on them,
Richardson v. United States, 465 F.2d 844, 850 (3d
Cir. 1972) (en banc), rev’d on other grds., 418 US. 166
(1974). “[W]hat a court does with regards to an
unconstitutional law is simply to ignore it” and
“provide[ ] a remedy.” Reynoldsville Casket Co. v.
Hyde, 514 U.S. 749, 760 (1995) (Scalia, J.,
concurring). Accordingly, Danielson is wrong and in
irreconcilable conflict with this Court’s view of
retroactivity in the context of refunds.
What Harper requires is consistent with what is
required under the declaratory theory of law. In
James B. Beam, Justice Souter opined that full
retroactivity “reflects the declaratory theory of law,
according to which courts are understood only to find
the law, not to make it.” 501 U.S. at 535–36 (Souter,
J.) (citation omitted). Justice Scalia expounded on
this theory in his concurring opinion. The Court, he
said, has “the power ‘to say what the law is,’ not the
power to change it.” Id. (Scalia, J., concurring) (citing
Marbury v. Madison, 1 Cranch 137, 177 (1803)).
11
Judges “make” law but only “as judges make it, which
is to say as though they were ‘finding’ it—discerning
what the law is, rather than decreeing what it is today
changed to, or what it will tomorrow be.” Id.
The declaratory theory of law applies here. Per
Janus, the Constitution does not allow—and thus
never did allow—California to force a public-sector
employee to pay agency fees. Such fees were always
invalid. And because Abood was mistaken in its
construction of the Constitution, it is as though Abood
never existed. So, the California fair-share-fee statute
at issue here did not become invalid on June 27, 2018;
rather, it was void ab initio.
The Ninth Circuit ignored the declaratory theory
of law. In so doing, the Ninth Circuit effectively said
that, up to the time this Court overruled in Janus, a
union is protected from paying back illegally collected
fair-share fees because it relied on a statute premised
on Abood. That is not a retroactive application of
Janus. As just explained, retroactive application of
Janus requires the Court to treat Abood as though it
never existed. Harper, 509 U.S. at 97.
In Danielson, the Ninth Circuit suggested that
retroactivity and remedy are separate questions and
that, as a question of remedy, the good-faith defense
protects the unions from damages. Danielson, 945
F.3d at 1099. It’s true that “retroactivity of a right
does not guarantee a retroactive remedy.” Danielson,
945 F.3d at 1099. But Danielson misapplies this
principle.
The case Danielson cites—Davis v. United States,
564 U.S. 229 (2011) (a different Davis case from the
one discussed in connection with Harper)—has no
12
application here. Davis involved whether to apply the
exclusionary rule in a criminal case when the police
had relied on federal caselaw that the Supreme Court
later overruled. Suppression of evidence is not required to remedy a Fourth Amendment violation;
rather, the exclusionary rule is a “prudential”
doctrine, whose “sole purpose is to deter future Fourth
Amendment violations.” Id. at 236–37. So “real deterrent value is a necessary condition for exclusion.” Id.
at 237 (cleaned up). Thus, “when the police act with
an objectively ‘reasonable good faith belief’ that their
conduct is lawful, … the deterrence rationale loses
much of its force, and exclusion cannot pay its way.”
Id. at 238 (cleaned up). Because Davis applies only in
criminal cases involving the exclusionary rule, it is
inapposite here. More importantly, the principles
underlying Davis don’t resonate here. Petitioners ask
the Court to restore their property that the Unions
unconstitutionally have taken from their; deterrence
of future bad acts is not the purpose.
This Court should grant review, correct the Ninth
Circuit’s retroactivity analysis, and direct the unions
to refund the monies they illegally collected from
Petitioners’ paychecks.
II. This Court should grant review because the
Ninth Circuit’s decision conflicts with this
Court’s Abood decision, which held that
refund is the proper remedy when a union
unconstitutionally collects a fair-share fee.
Not only does the Ninth Circuit’s decision violate
this Court’s retroactivity jurisprudence, it also
violates the remedial provisions in Abood. In Abood v.
Detroit Board of Education, 431 U.S. 209 (1977), this
13
Court confirmed the remedy to be applied when a fairshare, or agency, fee is found to be unconstitutional.
The Court held that all unconstitutional fees must be
refunded to the employee from whom the fees were
collected. This remedy obviously was retroactive; the
very nature of refund is that what was wrongfully
taken in the past is being restored in the present.
Refund, in this context, is a form of restitution.
The Abood plaintiffs were public-school teachers
who filed suit to challenge a service fee “equal in
amount to union dues.” 431 U.S. at 211. The issue was
whether the fees “violate[d] the constitutional rights
of government employees who object to public-sector
unions as such or to various union activities financed
by the compulsory service fees.” Id. This Court
concluded that the Constitution prohibits publicemployee unions from advancing political views,
candidates, or other ideological causes not germane to
the collective-bargaining process using “charges,
dues, or assessments paid by employees who” object
to doing so and are coerced into paying “by the threat
of loss of governmental employment.” Id. at 235–36.
Part III of the opinion gave the lower courts
guidance about “determining what remedy will be
appropriate.” 431 U.S. at 237. In so doing, the Court
turned to its decisions in Machinists v. Street, 367
U.S. 740 (1961), and Railway Clerks v. Allen, 373 U.S.
113 (1963). Abood, 431 US. at 237–40.
In Street, this Court ruled in favor of plaintiffs
who objected to the use of union fees for certain
political purposes, in violation of the Railway Labor
Act. The union there defended its agency-fee practices
by relying on a Michigan law authorizing the fees.
After rejecting that defense and holding the fees
14
unconstitutional, the Court remanded the case,
outlining two possible remedies: (1) an injunction
prohibiting the unions from using the fees of objecting
employees for political purposes, and (2) “restitution
of a fraction of union dues paid equal to the fraction
of total union expenditures that were made for
political purposes opposed by the employee.” Abood,
431 U.S. at 238 (discussing Street, 367 U.S. at 774–
75).
Similarly, the Court in Allen was required to
address the remedy question after ruling in favor of
public employees “who had refused to pay union-shop
dues” but “had not notified the union prior to bringing
the lawsuit of their opposition to political
expenditures.” Abood, 431 U.S. at 239 (discussing
Allen, 431 U.S. at 118–19). The Court reiterated the
appropriateness of the injunction and restitution
remedies, and it “remanded for determination [and
calculation of refund payments] of which expenditures were properly to be characterized as political
and what percentage of total union expenditures they
constituted.” Id. (summarizing Allen, 431 U.S. at
122). Specifically, the Court outlined a “practical
decree” that would provide for “(1) the refund of a
portion of the exacted funds in the proportion that
union political expenditures bear to total union
expenditures, and (2) the reduction of future
exactions by the same proportion.” Id. at 240
(analyzing Allen, 373 U.S. at 122).
Following the holdings of Street and Allen, the
Abood Court reversed the Michigan Court of Appeals’
ruling “that the plaintiffs were entitled to no relief,”
because that decision deprived the plaintiffs of their
opportunity to establish their right to restitution or a
refund. 431 U.S. at 241–42. And it did so in a context
15
where the Court changed the law by addressing an
issue that had not previously been resolved—the
validity of a state-approved collective bargaining
agreement’s agency-shop provision under the U.S.
Constitution.
Abood, Street, and Allen establish that a two-part
remedy is required to adequately address illegal fairshare fees: an injunction to prevent future illegal fees
and a refund to restore past illegal fees to the
employee who is the rightful owner of that money.
There is no daylight between the circumstances in
Abood and those here other than the fact that Janus
overruled a previous Supreme Court precedent. So, if
restitution or refund was appropriate in Abood—
where the unions similarly relied on a state law
authorizing them to assess agency fees—the same
remedy should be available here after Janus. Yet
here, the Ninth Circuit, like other post-Janus
opinions denying refunds, ignored Abood. The Ninth
Circuit refused to order a refund, with no explanation
at all for refusing to follow Abood. The Ninth Circuit
did not even acknowledge this Court’s prior decisions
establishing refund/restitution as the appropriate
remedy for an illegal agency fee. This Court should
grant the petition, reverse, and reaffirm that portion
of Abood that held unions must refund illegally
collected agency fees from public employees.
The Ninth Circuit based its denial of a refund on
a supposed good-faith defense. But nothing in Abood
suggests that the unions’ good faith is relevant in any
way. Once fees turn out to be illegal, they must be
returned. If a § 1983 defendant “was wrong, even
innocently, it should not be allowed to retain” money
unlawfully collected. Fairfax Covenant Church v.
16
Fairfax Cty. Sch. Bd., 17 F.3d 703, 710 (4th Cir. 1994).
In Fairfax, the school district violated the church’s
first amendment rights by charging it higher rent
than non-religious lessees paid. The district court
held that retroactive application of the decision was
not warranted because the school district had acted in
good faith. Id. at 709. The Fourth Circuit disagreed:
“The good faith of a defendant … may be relevant
when the elements of a cause of action, or where a
defense to it, depend on the defendant’s state of
mind.” Id. at 710. “But in the circumstances here,
whether the defendant acted in good faith is
irrelevant ….” Id. So, even if a good-faith defense were
to exist—and Petitioners explain below why such a
defense should not be allowed—it would not apply to
the refund of illegally collected fees. At most, such a
defense would protect a defendant acting in good faith
from collateral harms or consequential damages—but
not from refunding illegally collected fees themselves.
In Danielson, the Ninth Circuit held that
restitution was unwarranted because the union
“bears no fault ….” Danielson, 945 F.3d at 1103. The
unions’ supposed innocence is not a basis to deny
refund. (“Supposed” is warranted because, as Janus
held, “public-sector unions have been on notice for
years regarding this Court’s misgivings about Abood”
and have received a “considerable windfall” under
Abood. Janus, 138 S. Ct. at 2484, 2486.) But what is
clear is that Petitioners bear absolutely no fault. They
objected to the fee deductions, and this Court has
determined those deductions were unconstitutional.
Equity favors the party whose constitutional rights
have been violated, not the violator—even if the
violator has acted innocently. Owen v. City of
Independence, Mo., 445 U.S. 622, 655 (1980). Indeed,
17
it is precisely where a defendant is not at fault that
restitution or refund is most appropriate. E.g., Rest.
(3d) of Restitution § 40 cmt. b (2011) (“[I]nnocent
trespassers and converters are liable in restitution for
the value of what they have acquired … but not for
consequential gains.”).
The unions have never suggested that Petitioners
were somehow at fault here. The unions’ best-case
scenario is that neither side was at fault—though
Janus calls the unions’ good faith into serious
question. There is no reason that the unions should
get to keep monies that rightfully belong to public
servants.
Several post-Janus courts refused to grant a
refund on the ground that restitution/refund is
available only if the amounts collected from a plaintiff
can be traced to particular money in the unions’
coffers. Wrong. As Abood explained, in “proposing a
restitution remedy, the Street opinion made clear that
‘[t]here should be no necessity … for the employee to
trace his money up to and including its expenditure.’”
431 U.S. at 238 n.38 (quoting Street, 367 U.S. at 775).
The inability to trace the money is not a valid basis to
refuse a refund—this Court has eliminated that
argument.
Not only is a refund required under Abood, it is
consistent with how other, similar claims involving
unconstitutional statutes are remedied. For example,
in Sniadach v. Family Financial Corporation, 395
U.S. 337 (1969), this Court held unconstitutional
state statutes allowing prejudgment garnishment or
replevin. Later, in Osmond v. Spence, 359 F. Supp.
124 (D. Del. 1972), the court addressed “a form of the
prejudgment garnishment procedure declared
18
unconstitutional in [Sniadach].” Id. at 128. What was
the appropriate remedy? “Under the authority and
rationale of Sniadach, the Court concluded that the
monies must be returned to the debtors from whose
wages they were deducted.” Id. at 128. Indeed,
Petitioners are unaware of any case holding that
property seized through an unconstitutional prejudgment remedial statute does not need to be returned.
It is unimaginable that a prejudgment creditor
would be able to keep wages garnished from an
alleged debtor’s paycheck in reliance on an
unconstitutional statute. It would make no difference
that the creditor relied “in good faith” on the statute,
which was struck down only after the garnishment
had been accomplished. Yet the unions’ position here,
which the lower courts accepted, is no different. That
result should be equally unimaginable.
Section 19 of the Third Restatement of
Restitution provides another analogy. That provision
addresses the recovery of tax payments. Under that
section, “the payment of a tax that is erroneously or
illegally assessed or collected, gives the taxpayer a
claim in restitution against the taxing authority as
necessary to prevent unjust enrichment.” Rest. (3d) of
Restitution § 19(1). Comment a explains that “[t]he
rule in this section recognizes a prima facie claim in
restitution to recover any payment of taxes, fees, or
other governmental charges in excess of the
taxpayer’s true legal obligation.” Comment c adds:
“Any payment of tax in excess of the taxpayer’s legal
liability, correctly determined, gives rise to a prima
facie claim in restitution.” Finally, comment d
explains that it makes no difference that the
assessment was incorrectly determined based on a
legal statute or was correctly determined based on an
19
unconstitutional or illegal statute. No matter the
circumstances, the government must refund the
improperly assessed tax or fee. Thus, Illustration 10
in Section 19 provides: “Taxpayer makes payments to
State under a tax that is subsequently held to violate
the federal Constitution. Taxpayer has a claim
against State to recover the amount of the illegal tax.”
Rest. (3d) of Restitution § 19, comment e, illus. 10. The
illustration is based on this Court’s holding in Harper.
So too here. If the State of California had levied
an unlawful tax on Petitioners, and they paid the
unlawful tax under objection and then sued, no court
anywhere would have denied them a refund based on
the State’s supposed “good faith.” It makes no
difference here that “the State” was a public-employee
union acting under color of state law or that the
unlawful “tax” was an unlawful agency fee. Just like
a state taxing authority, the unions must refund the
money.
III. This Court should grant review to resolve a
circuit split over the propriety of a refund
remedy when a union unconstitutionally
collects a fair-share fee.
Post-Abood circuit-court decisions confirm that
the remedy for an unconstitutional fair-share fee is
refund/restitution. In Wessel v. City of Albuquerque,
299 F.3d 1186 (10th Cir. 2002), union nonmembers
sued their city employer, alleging that the union’s
process for compulsory deduction of fair-share fees
violated their First Amendment rights. After agreeing
that the union’s notice of expenses for political
activities was insufficient, the Tenth Circuit
unequivocally ordered “a refund of the portion of the
amounts collected that exceed what could be properly
20
charged.” Id. at 1194–95. In other words, “the proper
remedy for an unconstitutional fee collection … is the
refund of the portion of the exacted fees proportionate
to the union’s nonchargeable expenditures.” Id. at
1195 (quoting Allen, 373 U.S. at 122). There was no
question that the unions had to pay back or refund
the illegal fees.
Likewise, in Lowary v. Lexington Local Bd. of
Education, 903 F.2d 422 (6th Cir. 1990), nonunion
teachers challenged a fair-share fee collection plan,
including a “local union presumption” for determining
what percentage of union expenditures were
chargeable to nonmembers. The Sixth Circuit held
the scheme unconstitutional and concluded that the
plaintiffs were entitled to recover “the nonchargeable
portion of the unconstitutionally collected fees.” Id. at
433.
The Ninth Circuit’s decision here—as well as
several other circuits’ post-Janus decisions—cannot
be reconciled with Abood, Wessel, and Lowary. Either
the post-Janus decisions, including the Ninth
Circuit’s decisions here and in Danielson, are correct
that an agency-fee refund is never available if a union
unconstitutionally collects the fee under color of a law
later deemed invalid, or this Court and the Sixth and
Tenth Circuits were correct that a refund or
restitution is always the appropriate remedy.
IV. This Court should grant review to resolve
two distinct circuit splits and correct an
error regarding the unions’ supposed goodfaith defense to § 1983 liability.
The Ninth Circuit’s Danielson precedent also
creates two distinct circuit conflicts and an unforced
21
error regarding § 1983 liability and a good-faith
defense. Each will be described briefly here.
1. Three times this Court has considered but not
decided whether a good-faith defense to § 1983
liability even exists. See Richardson v. McKnight, 521
U.S. 399, 413–14 (1997); Wyatt v. Cole, 504 U.S. 158,
169 (1992); Lugar v. Edmondson Oil Co., 457 U.S.
922, 942 n.23 (1982). And there has developed a 4-1
circuit split over that very question.
Four circuits—the Second, Sixth, Seventh, and
Ninth—have held that there is a good-faith defense to
§ 1983 liability for unions who supposedly acted in
good faith when taking fair-share fees from objecting
public employee paychecks. Wholean v. CSEA SEIU
Local 2001, 955 F.3d 332 (2d Cir. 2020) ; Ogle v. Ohio
Civ. Serv. Emps. Ass’n, 951 F.3d 794 (6th Cir. 2020);
Janus v. AFSCME, Council 31, 942 F.3d 352 (7th Cir.
2019); Danielson v. Inslee, 945 F.3d 1096 (9th Cir.
2019). Even among these circuits, there is no agreement why. The Ninth Circuit points to equality and
fairness. Danielson, 945 F.3d at 1101. The Sixth analogizes the defense to the common-law abuse-of-process tort. Ogle, 951 F.3d at 797. The Seventh Circuit
did, too, but questioned whether such a justification
was necessary. Janus, 942 F.3d at 365–66.
The Third Circuit panel majority disagreed in
Diamond v. Pennsylvania State Education Association, 972 F.3d 262 (3d Cir. 2020). Judge Fischer
recognized that it was “beyond our remit to invent
defenses to § 1983 liability based on our views of
sound policy.” Id. at 274 (Fischer, J., concurring in the
judgment). And Judge Phipps concluded that “[g]ood
faith was not firmly rooted as an affirmative defense
in the common law in 1871, and treating it as one is
22
inconsistent with the history and the purpose of
§ 1983.” Id. at 289 (Phipps, J., dissenting). (Judge
Fisher nevertheless concurred in the judgment dismissing agency-fee-refund claims because he believed
that the common law in 1871 allowed a defense for a
voluntary payment made before a statute requiring
the payment was declared unconstitutional. But
Petitioners did not make any payment—their money
was withheld as a payroll deduction—let alone make
the payment voluntarily.)
The Third Circuit got it right because good faith
is not now, and never was, a common-law defense.
Section 1983 creates liability but is silent about
whether any immunity or defense tempers that
liability. See Imbler v. Pachtman, 424 U.S. 409, 417
(1976). Of course, when Congress created the law in
1871, it could have expressly provided that no
immunities or defenses applied, but Congress didn’t
do that. So Ҥ 1983 is to be read in harmony with
general principles of tort immunities and defenses
rather than in derogation of them.” Id. at 418; accord
Filarsky v. Delia, 566 U.S. 377, 389 (2012).
Judge Phipps’s opinion in Diamond explains
exactly why good faith cannot be considered an
affirmative defense at common law. He starts by
noting that none of the 18 affirmative defenses listed
in Federal Rule of Civil Procedure 8(c) mentions “good
faith.” 972 F.3d at 285 (3d Cir. 2020) (Phipps, J.,
dissenting). Moreover, leading treatises supplement
those 18 defenses but do not identify a common-law
good-faith affirmative defense either. Id. at 285–86
(citing Arthur R. Miller et al., Federal Practice and
Procedure § 1271 (3d ed., Apr. 2020 Update), and
2 Jeffrey A. Parness, Moore’s Federal Practice § 8.08
(3d ed. 2020)). “If a good faith affirmative defense
23
were deeply rooted in the common law, such as
defenses like statute of limitations, laches, or accord
and satisfaction, then one would expect to find it
listed in Rule 8(c)—or at least to make a showing in a
leading treatise.” Id. at 286.
“Similarly,” notes Judge Phipps, “a review of
other statutory causes of action reveals that Congress
has not understood good faith to be so deeply rooted
as to go unspoken.” 972 F.3d at 286 (Phipps, J.,
dissenting). “Rather, when Congress wants to include
good faith as an affirmative defense, it does so
expressly.” Id. at 286 & n.1 (numerous examples
omitted). “And that begs the question: if the good faith
defense were so well established that it could be
assumed ‘that Congress [in enacting § 1983] would
have specifically so provided had it wished to abolish
the doctrine,’ then why did Congress find the need to
expressly provide for the defense in many other
statutes but not in § 1983?” Id. at 286 (quoting
Pierson v. Ray, 386 U.S. 547, 555 (1967)). “In sum, the
absence of a good faith affirmative defense from Rule
8(c) along with its presence as a defense in other
federal statutes suggests that today the good faith
affirmative defense is not firmly rooted in the common
law.” Id.
Unsurprisingly, Petitioner, like the parties in
Diamond, is unaware of any “pre-1871 case
recognizing a common-law good faith affirmative
defense—either as a general matter or in the context
of any particular cause of action.” 972 F.3d at 286
(Phipps, J., dissenting). There is simply no evidence
that good faith was a common-law defense in 1871.
Quite the opposite, in 1836, this Court expressly
rejected a good-faith defense. Tracy v. Swarthout, 35
U.S. 80, 95 (1836). And state courts in the mid- to late
24
1800s did not appear to recognize such a defense
either. E.g., Kelly v. Bemis, 4 Gray 83, 84 (Mass. 1855)
(holding that a justice of the peace, who issues a
warrant under an unconstitutional statute, is liable
in damages to the person arrested); Sumner v. Beeler,
50 Ind. 341, 342 (1875) (holding that “ministerial
officers and other persons are liable for acts done
under an act of the legislature which is unconstitutional and void”).
Perhaps the “strongest case for such a defense,”
Judge Phipps explains, “comes from Chief Justice
Rehnquist’s dissenting opinion in Wyatt v. Cole.”
Diamond, 972 F.3d at 287 (Phipps, J., dissenting).
But even Chief Justice Rehnquist “viewed the good
faith defense as ‘something of a misnomer’ because it
actually referred to elements of the common-law torts
of malicious prosecution and abuse of process.” Id.
(quoting Wyatt, 504 U.S. at 176 & n.1 (Rehnquist,
C.J., dissenting)). Chief Justice Rehnquist provided
no authority suggesting good faith was a defense;
rather he showed only that “the elements of two
common-law tort claims could be defeated by proof of
subjective good faith.” Id.
Given § 1983’s status as the nation’s preeminent
civil rights statute, whether the statute includes a
common-law good-faith defense is no small matter.
The issue is of critical importance to many, particularly to the public employees represented who should
get refunds from unions for fair-share fees that the
unions took from worker paychecks in violation of the
First Amendment. It is long past time for this Court
to decide the question left open in Wyatt and
determine whether good faith was a defense at
common law and is therefore a defense today to a
§ 1983 claim.
25
2. Assuming a good-faith defense to § 1983
liability exists, there is also a 6-1 circuit split over
whether private defendants like the unions may
invoke it.
In Downs v. Sawtell, 574 F.2d 1 (1st Cir. 1978),
the First Circuit emphatically rejected a good-faith
defense for private entities. The court observed that
while this Court has “reasoned that a ‘good faith’
qualified immunity is an integral part” of § 1983’s
background, “the Court has never held that private
individuals are in any way shielded from damage
liability in a comparable fashion.” Id. at 15 (quoting
Pierson v. Ray, 386 U.S. 547, 556–57 (1967)). The
First Circuit declined to recognize such a defense
because private-party immunity “could in many
instances work to eviscerate the fragile protections of
individual liberties.” Id. Unlike public actors,
“[p]rivate parties simply are not confronted with the
pressure of office, the often split-second decisionmaking or the constant threat of liability facing police
officers, governors and other public officials.” Id.
“Whatever factors of policy and fairness militate in
favor of extending some immunity to private parties
acting in concert with state officials were resolved by
Congress in favor of those who claim a deprivation of
constitutional rights.” Id. at 15–16. Accordingly, the
First Circuit held that the private defendant’s
liability was “to be determined by the jury without
regard to any claim of good faith.” Id. at 16. The First
Circuit later reaffirmed this decision in Lovell v. One
Bancorp, 878 F.2d 10, 13 (1st Cir. 1989).
The Ninth Circuit initially reached the same
conclusion. Acting five years after Downs, that court
held that “there is no good faith immunity under
section 1983 for private parties who act under color of
26
state law to deprive an individual of his or her
constitutional rights.” Howerton v. Gabica, 708 F.2d
380, 385 n.10 (9th Cir. 1983). But later, the Ninth
Circuit allowed a private defendant to assert a goodfaith defense to § 1983 liability without even acknowledging Howerton. Clement v. City of Glendale, 518
F.3d 1090 (9th Cir. 2008). And when confronted with
this conflict in the context of unions illegally taking
fair-share fees from objecting public employees’
paychecks, the Ninth Circuit later characterized
Howerton as denying only qualified immunity to
private defendants, even though that’s not what
Howerton did or said. See Danielson, 945 F.3d at
1099.
If one takes the Ninth Circuit’s latest word on the
good-faith defense’s availability to private defendants, then the Ninth Circuit falls in the same camp
as the Second, Third, Fifth, Sixth, and Seventh
Circuits. Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d
Cir. 1996); Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994); Wyatt v.
Cole, 994 F.2d 1113 (5th Cir. 1993), Vector Research,
Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d
692, 698–99 (6th Cir. 1996); Janus v. AFSCME,
Council 31, 942 F.3d 352, 361–64 (7th Cir. 2019).
Otherwise, it is in the First Circuit’s camp.
All these later-decided cases post-date Wyatt v.
Cole, 504 U.S. 158, 169 (1992), which left open
whether private defendants could assert a good-faith
defense. Presumably, the Court did so because, prior
to Filarsky v. Delia, 566 U.S. 377, 392–94 (2012), a
private actor was foreclosed from asserting qualified
immunity. Wyatt, 504 U.S. at 167. But now that this
Court has held in Filarsky that qualified immunity
can be applied to some private defendants, there is no
27
legal justification for a good-faith defense for a private
union based on the good faith of its individual
officials, as explained in an analogous context in
Owen v. City of Independence, Mo., 445 U.S. 622
(1980).
At the time this Court decided Owen in 1980,
qualified immunity and good-faith immunity (or
defense) were one and the same. It was not until two
years later, in Harlow v. Fitzgerald, 457 U.S. 800
(1982), that the Court untethered qualified immunity
from its historical, good-faith roots. But the modifications Harlow made to qualified immunity did not
change the preexisting good-faith defense. And, as the
holding in Owen shows, that defense does not protect
the unions here. In fact, Owen reversed the Eighth
Circuit’s ruling that the city “‘is entitled to qualified
immunity from liability’ based on the good faith of its
officials.” Owen, 445 U.S. at 625.
In April of 1972, Owen, the city’s former police
chief, was fired for alleged wrongdoing without first
being provided notice of the reasons for the firing and
an opportunity for a pre-termination hearing. Id. at
629. Two months later, this Court decided Board of
Regents v. Roth, 408 U.S. 564 (1972), and Perry v.
Sindermann, 408 U.S. 593 (1972), holding that a
public employee was entitled to notice and an
opportunity for a hearing before being fired. Because
these rights were not crystalized until after the city
fired Owen, the Eighth Circuit held that (a) the
individual defendants involved in firing him acted in
good faith and therefore were entitled to good-faith
immunity, and (b) the city was “‘not liable for actions
it could not reasonably have known violated [Owen’s]
constitutional rights.’” Owen, 445 U.S. at 634 (quoting
Owen v. City of Independence, Mo., 560 F.2d 925 (8th
28
Cir. 1978)). While this Court did not object to granting
good-faith immunity to the individuals, the Court
refused to allow the city to ride the coattails of its
employees’ good faith.
Explaining why, this Court began with the fact
that, “[b]y its terms, § 1983 ‘created a species of tort
that on its face admits of no immunities.’” Id. at 635
(quoting Imbler v. Pachtman, 424 U.S. 409, 417
(1976)). So any immunity (or defense, as Imbler and
Filarsky show) that would be applied against a § 1983
claim must be “‘predicated upon a considered inquiry
into the immunity historically accorded the relevant
official at common law and the interests behind it.’”
Id. at 638 (quoting Imbler, 424 U.S. at 421). Not only
that, public-policy justifications must also support the
application of an immunity before it can be apply
against a § 1983 claim. Id. The Court held that
neither of these requirements protected the city based
on its employees’ good faith. Id.
Looking first at the state of the law in 1871, the
Court observed that, “by 1871, municipalities—like
private corporations—were treated as natural
persons for virtually all purposes of constitutional
and statutory analysis.” Owen, 445 U.S. at 638–39.
“[I]t is clear that at the time § 1983 was enacted, local
governmental bodies did not enjoy the sort of ‘goodfaith’ qualified immunity extended to them by the
Court of Appeals.” Id. at 640. Indeed, “one searches in
vain for much mention of a qualified immunity based
on the good faith of municipal officers,” such that “the
courts had rejected the proposition that a municipality should be privileged where it reasonably
believed its actions to be lawful.” Id. at 641. “In sum,
we can discern no ‘tradition so well grounded in
history and reason’ that would warrant the conclusion
29
that in enacting § 1 of the Civil Rights Act [now
codified at § 1983], the 42d Congress sub silentio
extended to municipalities a qualified immunity
based on the good faith of their officers.” Id. at 650.
Further, this Court held that public policy
considerations did not support extending good-faith
protection to the employer even if the employees were
so protected. Central to this conclusion was the rule
that “[a] damages remedy against the offending party
is a vital component of any scheme for vindicating
cherished constitutional guarantees[.]” Id. at 651.
While it may be unjust to hold individual employees
liable for their good-faith violations, it is not unjust to
hold the employer liable for those violations. Id. at
654-55. Specifically, the public policy of ensuring that
government employees not be deterred from carrying
out their duties does not come into play if only the
employer is liable. Id. at 655–56. Thus, under Owen,
even if an employee’s good-faith protects that employee against § 1983 liability, it does not protect the
employer: “We hold … that the municipality may not
assert the good faith of its officers or agents as a
defense to liability under § 1983.” Id. at 638.
While Owen addressed the extent of municipal
liability in 1871, the case shows that private
entities—like the unions here—were also liable in tort
despite the good faith of their employees. Thus, the
Court observed that, in 1871, “a municipality’s tort
liability in damages was identical to that of private
corporations[.]” Id. at 640 (emphasis added). From
this, one deduces that, in 1871, a private employer
would not have been protected from liability because
its employee acted in good faith. Cf. Wyatt, 594 U.S.
at 174 (Kennedy, J., concurring) (“there is support in
the common law for the proposition that a private
30
individual’s reliance on a statute, prior to a judicial
determination of unconstitutionality, is considered
reasonable as a matter of law”). Thus, Owen implicitly
rejects the very possibility that the unions could have
a good-faith defense here. In sum, good faith cannot
insulate the unions from § 1983 liability.
3. To the extent a good-faith defense to § 1983
liability exists and is available to private parties, then
it must be analyzed in terms of the common-law tort
most analogous to Petitioners’ claim. Imbler, 424 U.S.
at 418 (§ 1983 must “be read in harmony with general
principles of tort immunities and defenses”)
(emphasis added). And contrary to the Ninth Circuit’s
analysis here, App. 2a (relying on Danielson) and in
Danielson itself, 945 F.3d at 1102, the tort most
analogous to Petitioners’ claim is conversion, not
abuse of process.
The common-law tort of abuse of process applied
when a person “ma[de] use of the process of the court
for some private purpose of his own, not warranted by
the exigency of the writ or the order of the court.” C.G.
Addison, The Law of Torts 257 (1870). That tort is
nothing like what happened here, where the unions
unlawfully took money from Petitioners’ paychecks
and refuse to give it back. The proper remedy for a
tort-like conversion is restitution or reparation—
compelling the defendant to put the plaintiff back in
the position where the plaintiff would have been had
the conversion not been committed, regardless of good
faith. F. Pollock, The Law of Torts, 12–13 (1887); Rest.
(3d) of Restitution § 40 cmt. b (2011). That should be
Petitioners’ remedy here, too.
31
V. This case is an ideal vehicle to resolve the
numerous conflicts presented and to give
full effect to Janus.
For five reasons, this petition provides an ideal
vehicle for this Court to resolve the glaring conflicts
that have arisen as circuit courts have persistently
blocked plaintiffs from vindicating their rights postJanus.
First, the validity of the union’s good-faith
defense was dispositive and outcome-determinative.
The Ninth Circuit held that the unions’ reliance on
Cal. Gov. Code § 3515 and Abood required the
dismissal of Petitioners’ federal claims. App. 2a
(quoting Danielson). If this Court concludes that the
unions cannot assert a good-faith defense—whether
based on Abood’s remedies analysis, a proper
retroactive application of Janus, or a determination
that a good-faith defense is not available under
§ 1983, is not available to private-party § 1983
defendants, or is not available to a § 1983 claim
analogous to conversion—then dismissal must be
reversed and judgment entered in Petitioners’ favor.
All that would remain is class certification.
Second, the record provides a clean vehicle for
deciding the questions presented. The district court
ruled on a motion to dismiss, and both it and the
Ninth Circuit rejected Petitioners’ claims entirely
because of the unions’ assertion of their supposed
good faith. There are no disputes of any material facts
or jurisdictional defects that will prevent this Court
from squarely deciding the questions presented.
Third, there is a gross inequity here and in the
numerous other pending class actions seeking a
refund of unlawful fair-share fees paid before Janus.
32
As discussed in more detail above, there is no court in
the country that would bar a plaintiff from receiving
a refund for taxes paid under an unconstitutional
taxing scheme, no matter the good faith of state tax
officials. Nor is there a court in the country that would
prevent a plaintiff from recovering wages garnished
from a paycheck notwithstanding the purported
creditor’s good-faith reliance on an unconstitutional
statute. The result should be the same here.
Fourth, while this Court has recently declined to
grant public-employee petitions asserting similar
claims and raising variations on the final question
presented here, this petition addresses squarely
Harper’s retroactivity requirements and Abood’s
remedy analysis to a circuit-court decision that has
badly botched both. These issues have played a minor
or nonexistent role in nearly every other petition
involving the issue of refund of pre-Janus fair-share
fees. It is inconceivable that the plaintiffs were
entitled to a refund of illegally garnished agency fees
in Abood while Petitioners are barred from obtaining
a refund of illegally collected fair-share fees here. And
it makes no sense to speak of the unions’ “good faith”
given Harper’s clear instruction that, properly
applying Janus, it is as though Cal. Gov. Code § 3515
and Abood’s remedial holding never existed.
Finally, while this Court has allowed the circuit
splits framed by the final question presented to
percolate, it is long past time to resolve them. The
initial circuit rulings upholding the unions’ keeping of
ill-gotten fair-share fees have had a domino effect,
and aside from the partial vindication announced by
the Third Circuit in Diamond, millions of public
employees are being barred from recouping their
hard-earned dollars that the unions illegally took. If
33
the Court does not act here, for example, no municipal
employees in California will have a remedy for the
unlawful taking of their salaries by public-sector
unions. After Harris v. Quinn, 573 U.S. 616 (2014),
put public-sector unions on notice that fair-share fees
were unconstitutional, those unions managed to effect
one of the largest (non-tax) transfers of wealth in this
country’s history at the expense of public servants.
The petition should be granted.
CONCLUSION
The Court should grant the petition for writ of
certiorari.
Respectfully submitted,
JOHN J. BURSCH
Counsel of Record
BURSCH LAW PLLC
440 First Street NW
Suite 600
Washington, DC 20001
(616) 450-4235
jbursch@ADFlegal.org
GREGORY N. LONGWORTH
CLARK HILL PLC
200 Ottawa Ave. NW
Suite 500
Grand Rapids, MI 49503
(616) 608-1100
glongworth@clarkhill.com
MARCH 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.