Petition for Writ of Certiorari — Stacy Penning, Petitioner v. Service Employees International Union, Local 1021, et al.

NO. __________

IN THE

Supreme Court of the United States

STACY PENNING, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,

Petitioner,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL

1021, 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 Petitioner

i

QUESTIONS PRESENTED

Petitioner is a municipal employee in the State of

California who declined to join a public union. He

seeks a refund of the fair-share fees that public-sector

unions forcibly took from him 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 Petitioner’s 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 the proper remedy for the collection of

an illegal fee is refund or restitution, regardless of the

purported good faith of the fee collector.

2. 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.

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

Petitioner is Stacy Penning, individually and on

behalf of all others similarly situated.

Respondents are Service Employees International Union Local 1021 and Service Employees

International Union.

Because Petitioner is not a corporation, Supreme

Court Rule 29.6 does not require a corporatedisclosure statement.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Ninth Circuit, No.

20-15226, Stacy Penning, individually and on behalf

of all others similarly situated v. Service Employees

International Union Local 1021, et al., judgment

entered October 26, 2021.

U.S. District Court for the Northern District of

California, No. 4:19-cv-03624-YGR, Stacy Penning,

individually and on behalf of all others similarly

situated v. Service Employees International Union

Local 1021, et al., final judgment entered January 16,

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 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. ......... 7

II. 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. ...................................... 14

III.This Court should grant review to resolve a

conflict with this Court’s retroactivity

jurisprudence. ..................................................... 15

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. .................................................... 30

CONCLUSION ......................................................... 33

v

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Ninth Circuit Memorandum

in 20-15226, Issued October 26, 2021 ..................... 1a

United States District Court

Northern District of California,

Order Granting Motion to Dismiss;

Granting Leave To File Statements of

Recent Decision in 19-cv-03624-YGR,

Issued January 16, 2020 .......................................... 5a

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) ....................................................... 25

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) ........................................ 16, 17

Davis v. United States, 564 U.S. 229 (2011) ..... 19, 20

Diamond v. Pennsylvania State Education

Association, 972 F.3d 262 (3d Cir. 2020) ...... passim

Downs v. Sawtell, 574 F.2d 1 (1st Cir. 1978) .... 24, 25

Fairfax Covenant Church v. Fairfax Cty.

Sch. Bd., 17 F.3d 703 (4th Cir. 1994) .................. 10

Filarsky v. Delia, 566 U.S. 377 (2012)......... 22, 26, 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) ...................... 32

Howerton v. Gabica, 708 F.2d 380

(9th Cir. 1983) ................................................. 25, 26

Imbler v. Pachtman, 424 U.S. 409 (1976) ... 22, 28, 30

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991) ........................................ 16, 18

Janus v. American Federation of State,

County, and Municipal Employees,

Council 31, 138 S. Ct. 2448 (2018) ................ passim

vii

Jordan v. Fox, Rothschild, O’Brien &

Frankel, 20 F.3d 1250 (3d Cir. 1994) ................... 26

Kelly v. Bemis, 4 Gray 83 (Mass. 1855) ................... 23

Lovell v. One Bancorp, 878 F.2d 10

(1st Cir. 1989) ....................................................... 25

Lowary v. Lexington Local Bd. of

Education, 903 F.2d 422 (6th Cir. 1990) ... 4, 14, 15

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) . 20

Machinists v. Street, 367 U.S. 740 (1961) ....... 8, 9, 11

Marbury v. Madison, 1 Cranch 137 (1803) ............. 18

Mooney v. Ill. Educ.Ass’n,942 F.3d 368

(7th Cir. 2019) ......................................................... 6

Norton v. Shelby Cty., 118 U.S. 425 (1886) ............. 18

Ogle v. Ohio Civil Serv. Emps. Ass’n,

951 F.3d 794 (6th Cir. 2020) ............................ 3, 21

Osmond v. Spence, 359 F. Supp. 124

(D. Del. 1972) ........................................................ 12

Owen v. City of Independence, Mo.,

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

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) .......................................................8, 9, 11, 14

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

(1995) .................................................................... 18

Richardson v. McKnight, 521 U.S. 399 (1997) ........ 20

Richardson v. United States, 465 F.2d 844

(3d Cir. 1972) (en banc), rev’d on other

grds., 418 US. 166 (1974) ..................................... 18

Sniadach v. Family Financial Corporation,

395 U.S. 337 (1969) .............................................. 12

Sumner v. Beeler, 50 Ind. 341 (1875) ...................... 23

Tracy v. Swarthout, 35 U.S. 80 (1836) .................... 23

viii

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) .................................. 3, 14, 15

Wholean v. CSEA SEIU Local 2001,

955 F.3d 332 (2d Cir. 2020) .............................. 3, 21

Wyatt v. Cole, 504 U.S. 158 (1992) ................... passim

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

Other Authorities

2 Jeffrey A. Parness, Moore’s Federal

Practice § 8.08 (3d ed. 2020) ................................ 22

Arthur R. Miller et al., Federal Practice and

Procedure § 1271 (3d ed., Apr. 2020 Update) ...... 22

F. Pollock, The Law of Torts (1887) ......................... 30

Rest. (3d) of Restitution § 19(1) ............................... 12

Rest. (3d) of Restitution § 19, comment e,

illus. 10 .................................................................. 13

Rest. (3d) of Restitution § 40 cmt. b (2011) ....... 11, 30

The Law of Torts (1870) ........................................... 30

Rules

Federal Rule of Civil Procedure 8(c)........................ 22

ix

Codes

Cal. Gov. Code § 3508.5 ................................... 2, 5, 31

1

DECISIONS BELOW

The district court’s opinion and order granting

Respondents’ motion to dismiss is reprinted in the

Appendix (“App.”) at 5a–9a. 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 Petitioner’s 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

municipal employees a so-called “fair-share fee.” Cal.

Gov. Code § 3508.5. 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 non-union 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.

Petitioner Stacy Penning and those similarly

situated to him 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

3

directly authorized under both state law and decades

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 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

“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

4

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.

In addition, 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 Petitioner requests 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.

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 Petitioner’s 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 § 3508.5, 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.” Petitioner Stacy

Penning—and many others like him—was a

municipal employee in California who chose not to

join a public-employee union. Class-Action Compl.

¶ 1. Nonetheless, his employer relied on California’s

law and deducted fair-share fees from his paychecks

on a bi-weekly basis. Id. ¶ 7.

It is undisputed that this taking of publicemployee wages violated Petitioner’s 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 Petitioner’s

wages, precipitating this class-action lawsuit.

II. Proceedings

Petitioner filed his 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 Petitioner’s request for

prospective relief was moot because there was no

threat that the unions would continue collecting fees

in violation of Janus, App. 6a–7a, and Petitioner’s

refund claims were barred by the unions’ good-faith

defense, App. 7a–8a. In rejecting Petitioner’s refund

claim, the district court relied on Danielson. App. 7a–

8a. The district court also held Petitioner’s state-law

claims for conversion and money had and received

were preempted by California law. App. 8a.

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 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.

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

209 (1977), this Court confirmed the remedy to be

applied when a fair-share, 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 has been 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,

8

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 that authorized the fees.

After rejecting that defense and holding the fees

unconstitutional, the Court remanded the case and

outlined 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 expendi-

9

tures 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

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.

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. 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.

10

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 legally

relevant. 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.

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

exists—and Petitioner explains 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—but not from refunding

illegally collected fees.

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

11

clear is that Petitioner bears absolutely no fault. He

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,

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 Petitioner

was 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 a public

servant.

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.

12

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

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,

Petitioner is 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

13

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

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.

So too here. If the State of California had levied

an unlawful tax on Petitioner, and he paid the

unlawful tax under objection and then sued, no court

anywhere would have denied him 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.

14

II. 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

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.

15

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 decision here, 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.

III. This Court should grant review to resolve a

conflict with this Court’s retroactivity

jurisprudence.

Not only does the Ninth Circuit’s decision violate

this Court’s remedial provisions in Abood, it 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 legal language 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).

16

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

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 (unlike California, which,

despite Janus, has not repealed its agency-fee

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

17

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

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.

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 Petitioner requests—to

have Janus applied to the period before it was issued.

That’s exactly what happened in Harper and what

should happen here.

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

18

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)).

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.

19

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. Yet 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 fairshare 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. This is an unsupported conclusion.

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

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;

20

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. Petitioner asks the Court to restore

his property that the Unions unconstitutionally have

taken from him; 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

Petitioner’s paychecks.

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

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.

21

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

inconsistent with the history and the purpose of

§ 1983.” Id. at 289 (Phipps, J., dissenting). (Judge

Fisher nevertheless concurred in the judgment dismissing fair-share-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 Petitioner did not make any payment—

his money was withheld as a payroll deduction—let

alone make the payment voluntarily.)

22

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

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

23

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

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”).

24

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.

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’

25

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

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 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

26

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 that qualified immunity can be

applied to some private defendants, there is no 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).

27

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

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.

28

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

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.

29

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

individual’s reliance on a statute, prior to a judicial

determination of unconstitutionality, is considered

reasonable as a matter of law”). In sum, good faith

cannot insulate the unions from § 1983 liability.

30

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 Petitioner’s 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 Petitioner’s 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 Petitioner’s paychecks

and refuse to give it back. The proper damages

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 Petitioner’s remedy here, too.

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.

31

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 § 3508.5 and Abood required the

dismissal of Petitioner’s 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 favor of Petitioner.

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 Petitioner’s 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.

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.

32

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

Abood’s remedy analysis and Harper’s retroactivity

requirements 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 Petitioner is barred from obtaining a

refund of illegally garnished agency 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

§ 3508.5 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

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.

33

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