Petition for Writ of Certiorari — Scott Solomon, Petitioner v. American Federation of State, County, and Municipal Employees, District Council 37, AFL-CIO

Supreme Court briefAug 6, 2021

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No. __________

IN THE

___________

SCOTT SOLOMON,

PETITIONER,

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 37, AFL-CIO,

___________

RESPONDENT.

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Second Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

William W. Messenger

National Right to Work

Foundation

8001 Braddock Rd.

Suite 600

Springfield, VA

22160

(703) 321-8510

wlm@nrtw.org

August 6, 2021

Jeffrey Schwab

Counsel of Record

Stefanie Tripoli

Liberty Justice Center

141 W. Jackson St.

Suite 1065

Chicago IL 60604

(312) 637-2280

jschwab@libertyjusticecenter.org

stripoli@libertyjusticecenter.org

QUESTION PRESENTED

Section 1983 provides that “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives a citizen of a constitutional right “shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983.

Petitioner is a former employee of the State of New

York who was compelled to pay agency fees to AFSCME Council 37, under color of New York state law,

in violation of his First Amendment rights under Janus v. AFSCME, 138 S. Ct. 2448 (2018).

The question presented is whether there is a categorical good-faith defense to 42 U.S.C. § 1983 that

shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional?

iii

PARTIES TO THE PROCEEDING

Petitioner Scott Solomon is a natural person and

citizen of the State of New York. He was, at one time,

an employee of the State of New York.

Respondent AFSCME Council 37 is a union representing public employees of the State of New York.

RULE 29.6 STATEMENT

As Petitioner is a natural person, no corporate disclosure is required under Rule 29.6.

STATEMENT OF RELATED CASES

The proceedings in other courts that are directly

related to this case are:

• Solomon v AFSCME Council 37, No. 20-3878,

United States Court of Appeals for the Second Circuit. Judgment entered March 10, 2021.

• Solomon v AFSCME Council 37, No. 19-cv

6238, United States District Court for the Southern District of New York. Judgment entered October 14, 2020.

TABLE OF CONTENTS

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

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY INVOLVED ......................................... 1

STATEMENT OF THE CASE………………………….2

REASONS FOR GRANTING THE PETITION.…….3

A categorical good-faith defense is not

the claim-specific defense suggested by

this Court in Wyatt v. Cole and relied

upon by the lower courts .................................. 5

II.

A categorical good-faith defense conflicts with the text and purpose of Section 1983 ........................................................... 9

III.

Policy interests in fairness and equality weigh against a good-faith defense. ......... 12

A. Courts cannot create defenses to

Section 1983 based on policy interests in fairness and equality. ........ 13

B. The reliance defense adopted

by the Second Circuit and other

lower courts conflicts with

Reynoldsville Casket. ......................... 16

IV.

This Court should resolve the conflict

among the Circuits as to whether a

good-faith defense exists to Section

1983 claims or whether Petitioner is

entitled to recoup his unconstitutionally seized wages. ........................................... 18

A. This Court, along with the Sixth

and Tenth Circuits, has found restitution appropriate when a union

unconstitutionally charges and

takes a fee without regard to a union’s purported good faith. ....................... 18

B. The lower courts disagree as to the

propriety of the unions’ good-faith

defense to Section 1983 claims ................ 20

It is important that the Court finally

resolve whether Congress provided a

good-faith defense to Section 1983 ................ 22

CONCLUSION .......................................................... 23

APPENDIX

Court of Appeals Opinion ............................ App. 1

District Court Opinion ................................. App. 3

District Court Civil Judgement ................... App. 5

Complaint ..................................................... App. 6

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

431 U.S. 209 (1977)............................ 2, 4, 5, 19, 20

Akers v. Md. State Educ. Ass’n,

No. 19-1524, 2021 U.S. App. LEXIS 6851

(4th Cir. Mar. 8, 2021) ................................... 17, 22

Birdsall v. Smith,

122 N.W. 626 (Mich. 1909) .................................... 7

Carey v. Piphus,

435 U.S. 247 (1978).............................................. 14

Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986).............................................. 11

Crawford-El v. Britton,

523 U.S. 574 (1998).............................................. 16

Daniels v. Williams,

474 U.S. 327 (1986)................................................ 9

Danielson v. Inslee,

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

Diamond v. Pennsylvania State Educ. Ass’n,

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

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

981 F.3d 128 (1st Cir. 2020) ...................... 3, 17, 21

Guidry v. Sheet Metal Workers Nat’l Pension Fund,

493 U.S. 365 (1990).............................................. 13

Imbler v. Pachtman,

424 U.S. 409 (1976)................................................ 9

vii

Janus v. AFSCME Council 31,

138 S. Ct. 2448 ............................................. passim

Janus v. AFSCME,

942 F.3d 352 (7th Cir. 2019), ...................... passim

Lee v. Ohio Educ. Ass’n,

951 F.3d 386 (6th Cir. 2020) ....................... passim

Lowary v. Lexington Local Board of Education,

903 F.2d 422 (6th Cir. 1990) ........... 4, 5, 11, 19, 20

Machinists v. Street,

367 U.S. 740 (1961).............................................. 19

Manuel v. City of Joliet,

137 S. Ct. 911 (2017).............................................. 6

Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299 (1986).............................................. 14

Monroe v. Pape,

365 U.S. 167 (1961).............................................. 11

Ogle v. Ohio Civil Serv. Emps. Ass’n,

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

OSU Student Alliance v. Ray,

699 F.3d 1053 (9th Cir. 2012) ............................... 8

Owen v. United States,

445 U.S. 622 (1980).................................. 11, 14, 15

Railway Clerks v. Allen,

373 U.S. 113 (1963).............................................. 19

Rehberg v. Paulk,

566 U.S. 356, 361 (2012)............................ 9, 11, 13

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995).................................. 16, 17, 18

viii

Richardson v. McKnight,

521 U.S. 399 (1997).............................................. 11

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

842 Fed. Appx. 655 (2nd Cir. 2020) ...... 3, 4, 10, 19

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978).............................................. 13

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 (2nd Cir. 2020) ....................... passim

Wyatt v. Cole,

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

Statutes

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

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

NY Civ Serv L § 208(3) (2016) .................................... 2

Other Authorities

William Baude, Is Qualified Immunity Unlawful?,

106 Cal. L. Rev. 45 (2018) ..................................... 12

OPINIONS BELOW

The United States District Court for the Southern

District of New York’s unreported order of May 26,

2020, dismissing Petitioner’s complaint is reproduced

at App. 3. The United States Court of Appeals for the

Second Circuit summarily affirmed the lower court’s

judgment on March 10, 2021, in an unreported order

reproduced at App. 1.

JURISDICTION

The Second Circuit issued its summary affirmance on March 10, 2021. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 1983, 42 U.S.C. § 1983, states:

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, except

that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

STATEMENT OF THE CASE

Petitioner Scott Solomon, while he worked as a

New York State employee, was forced to pay agency

or “fair-share” fees to AFSCME Council 37 against his

will. App. 7–8. Council 37 seized these payments from

Solomon pursuant to New York’s Public Employees’

Fair Employment Act, which permits state employers

to deduct from the wages of employees who are not

union members union fees in “the amount equivalent

to the dues levied by such employee organization . . .”

NY Civ Serv L § 208(3) (2016).

On June 27, 2018, this Court in Janus v. AFSCME

Council 31, overruled that portion of Abood v. Detroit

Board of Education, 431 U.S. 209 (1977) that held it

constitutional for unions to seize agency fees from

nonmember employees. 138 S. Ct. 2448, 2486. Janus

held that such agency fee arrangements (like NY Civ

Serv L § 208(3)) violate the First Amendment because

they compel employees to subsidize union speech. Id.

In so holding, this Court lamented the “considerable

windfall that unions have received under Abood.” 138

S. Ct. at 2486.

Petitioner, individually and on behalf a class of

employees forced to pay agency fees to AFSCME

Council 37, filed this action under 42 U.S.C. § 1983

seeking to recoup the monies Council 37 wrongfully

seized from these employees in violation of their First

Amendment rights. App. 6. While the Petitioner’s

case was pending in the district court, the Second Circuit issued its decision in Wholean v. CSEA SEIU Local 2001, 955 F.3d 332 (2nd Cir. 2020), cert. denied

No. 20-605 (March 29, 2021). In that case, the Second

Circuit found that a good-faith defense to Section

1983 shielded Local 2001 from paying damages to

plaintiffs for depriving them of their constitutional

rights.

In light of the Second Circuit’s decision in

Wholean, Council 37 moved to dismiss Petitioner’s

complaint on the grounds that the decision controlled

the outcome of Solomon’s case. Solomon v AFSCME,

Council 37, No. 19-cv-6823, Mot. to Dismiss, Dkts.

#23–24 (filed May 26, 2020). On October 13, 2020, the

district court granted AFSCME Council 37’s Motion to

Dismiss. App. 3. On March 10, 2021, the Second Circuit summarily affirmed that decision, stating that

“the issue on appeal was squarely resolved against the

Appellant by this Court’s decision in Wholean . . . .”

App. 1. Petitioner now seek this Court’s review.

REASONS FOR GRANTING THE PETITION

This case is one of many in which employees seek

damages from unions for seizing money from employees’ paychecks in the form of agency fees in violation

of their First Amendment rights recognized in Janus.

Despite the fact that this Court has never recognized

a general good-faith defense to Section 1983, lower

courts are increasingly relying on this new-found defense to bar the employees’ claims. See, e.g., Seidemann v. Prof’l Staff Cong. Local 2334, 842 Fed. Appx.

655, 657 (2nd Cir. 2020) (non-precedential opinion),

petition for cert. filed, No. 20-1725 (June 10, 2021);

Doughty v. State Employees’ Ass’n of N.H., 981 F.3d

128 (1st Cir. 2020), cert. denied, No. 30-1534 (June 14,

2021); Ogle v. Ohio Civil Serv. Emps. Ass’n, 951 F.3d

794 (6th Cir. 2020), cert. denied, No. 20-486 (Jan. 25,

2021); Lee v. Ohio Educ. Ass’n, 951 F.3d 386, 392 n.2

(6th Cir. 2020); Janus v. AFSCME, 942 F.3d 352 (7th

Cir. 2019), cert. denied, No. 19-1104 (Jan. 25, 2021);

and Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019),

cert. denied, No. 19-1130 (Jan. 25, 2021).

The Court raised, but then stopped short of deciding, whether there exists a good-faith defense to Section 1983 in Wyatt v. Cole, 504 U.S. 158, 169 (1992).

The Court should grant this petition, or one like it (see

also Seidemann, supra, petition for cert. filed, No. 201725 (June 10, 2021)), to finally decide this important

issue. The categorical good-faith defense lower courts

have recognized is not the claim-specific defense this

Court suggested in Wyatt.

In addition, the categorical good-faith defense recognized by the Second Circuit and other lower courts

conflicts with this Court’s remedy in Abood for plaintiffs who had money withheld from their paychecks

for political activities. Although the Court in Abood

permitted agency fees to be taken from a nonmember

(which this Court overturned in Janus), it changed

the law by prohibiting fee seizures used for political

activities. Thus, this Court remanded the Abood case

for an order of “restitution” or “refund” of the fees collected and used for political activities in violation of

the Constitution. 431 U.S. at 237–42. The Sixth and

Tenth Circuits followed course when they ordered a

refund of such fees in Lowary v. Lexington Local

Board of Education, 903 F.2d 422 (6th Cir. 1990) (refund of unconstitutionally withheld fees), and Wessel

v. City of Albuquerque, 299 F.3d 1186 (10th Cir. 2002)

(refund of excess fees not used to benefit plaintiffs).

Thus, after Abood, plaintiffs who had fees taken from

their paychecks on behalf of a union that were used

for political activities were entitled to receive those

fees back in the form of damages in Section 1983

cases, regardless of whether the union had taken

them in good faith reliance of existing law.

Yet, after this Court declared all agency fees taken

without affirmative consent to be unconstitutional,

the First, Second, Seventh, Ninth Circuits—and even

the Sixth Circuit—despite its earlier decision in

Lowary—have found a good-faith defense for labor

unions who relied on existing law when taking agency

fees. These lower court decisions conflict with this

Court’s order in Abood requiring restitution to employees who had fees withheld from their paychecks

that were used for political purposes.

Finally, this Court should grant this petition because the lower courts are not unanimous on whether

a categorical good-faith defense to Section 1983 liability exists. A Third Circuit panel was divided on

whether to recognize a good-faith defense in Section

1983 claims in Diamond v. Pennsylvania State Educ.

Ass’n, 972 F.3d 262 (3d Cir. 2020), with the majority

refusing to recognize the defense, through ultimately

dismissing the claim for refund. This Court should

grant this petition to resolve these conflicts.

A categorical good-faith defense is not

the claim-specific defense suggested by

this Court in Wyatt v. Cole and relied

upon by the lower courts.

Section 1983 provides a cause of action for the

“deprivation of any rights, privileges, or immunities

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

1983. The elements of different constitutional deprivations vary considerably. “In defining the contours

and prerequisites of a § 1983 claim . . . courts are to

look first to the common law of torts.” Manuel v. City

of Joliet, 137 S. Ct. 911, 920 (2017). “Sometimes, that

review of common law will lead a court to adopt wholesale the rules that would apply in a suit involving the

most analogous tort.” Id. “But not always. Commonlaw principles are meant to guide rather than to control the definition of § 1983 claims.” Id. at 921.

The issue in Wyatt was whether a private defendant who used an ex parte replevin statute to seize the

plaintiff’s property without due process of law was entitled to qualified immunity in a Section 1983 claim.

504 U.S. at 161. The Court recognized that the plaintiffs’ claims were analogous to “malicious prosecution

and abuse of process,” and that at common law, “private defendants could defeat a malicious prosecution

or abuse of process action if they acted without malice

and with probable cause.” Id. at 164–65; see id. at

172–73 (Kennedy, J., concurring) (similar). However,

the Wyatt Court determined that “[e]ven if there were

sufficient common law support to conclude that respondents . . . should be entitled to a good[-]faith defense, that would still not entitle them to what they

sought and obtained in the courts below: the qualified

immunity from suit accorded government officials

. . . .” 504 U.S. at 165. This was so because the “rationales mandating qualified immunity for public officials

are not applicable to private parties.” Id. at 167.

Wyatt left open the question of whether the defendants could raise a defense based on good faith

and/or probable cause. Id. at 168–69. Contrary to the

conclusions of the Second Circuit in Wholean, the

Court in Wyatt was not suggesting that there exists a

categorical good-faith defense to all Section 1983

damages claims. Rather, as is clear from all three

opinions in Wyatt, the good-faith defense to which the

Court was referring was a defense to the malice and

probable elements of the specific due process claim at

issue in the case.

First, Chief Justice Rehnquist, in his dissenting

opinion joined by Justices Thomas and Souter, explained it was a “misnomer” to even call a good-faith

defense a “defense” because “under the common law,

it was plaintiff’s burden to establish as elements of

the tort both that the defendant acted with malice and

without probable cause.” 504 U.S. at 176 n.1

(Rehnquist, C.J., dissenting). “Referring to the defendant as having a good[-]faith defense is a useful

shorthand for capturing plaintiff’s burden and the related notion that a defendant could avoid liability by

establishing either a lack of malice or the presence of

probable cause.” Id.

Second, Justice Kennedy, in his concurring opinion joined by Justice Scalia, agreed that “it is something of a misnomer to describe the common law as

creating a good[-]faith defense; we are in fact concerned with the essence of the wrong itself, with the

essential elements of the tort.” 504 U.S. at 172. Justice Kennedy further explained that “if the plaintiff

could prove subjective bad faith on the part of the defendant, he had gone far towards proving both malice

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

“lack of probable cause can only be shown through

proof of subjective bad faith.” Id. at 174 (emphasis in

original) (citing Birdsall v. Smith, 122 N.W. 626

(Mich. 1909) (holding that a plaintiff alleging malicious prosecution failed to prove the prosecution

lacked probable cause)).

Third, Justice O’Connor’s majority opinion in Wyatt recognized that the dissenting and concurring

opinions were referring to a defense to the malice and

probable cause elements of claims analogous to malicious prosecution cases. The majority opinion found

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

plaintiff’s malicious prosecution or abuse of process

action failed if she could not affirmatively establish

both malice and want of probable cause that plaintiffs

bringing an analogous suit under § 1983 should be required to make a similar showing to sustain a § 1983

cause of action.” 504 U.S. at 167 n.2 (emphasis

added).

In short, the Wyatt Court suggested that there

may be a claim-specific good-faith defense to Section

1983 actions in which malice and lack of probable

cause are elements of the alleged constitutional deprivation. Contrary to the Second Circuit’s decision in

Wholean, 955 F.3d at 334, the Wyatt Court was not

suggesting that there exists a categorical good-faith

defense in which a defendant’s good faith reliance on

state law is a defense to all constitutional claims for

damages brought under Section 1983. There is no basis for such a sweeping defense to Section 1983.

The claim-specific good-faith defense suggested in

Wyatt is no bar to Petitioner’s cause of action because,

quite simply, malice and lack of probable cause are

not elements of, or a defense to, a First Amendment

deprivation. In general, “free speech violations do not

require specific intent.” OSU Student Alliance v. Ray,

699 F.3d 1053, 1074 (9th Cir. 2012). In particular, a

compelled speech violation does not require any specific intent. Under Janus, a union deprives public employees of their First Amendment rights by taking

their money without affirmative consent. 138 S. Ct. at

2486. A union’s intent when so doing is immaterial.

Cf. Daniels v. Williams, 474 U.S. 327, 328 (1986)

(holding that Section 1983 “contains no independent

state-of mind requirement.”)

The limited good-faith defense that members of

this Court suggested in Wyatt offers no protection to

unions that violated dissenting employees’ First

Amendment rights by seizing agency fees from them.

The Court should grant review to clarify what it intended in Wyatt.

II.

A categorical good-faith defense conflicts with the text and purpose of Section 1983.

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

person who, under color of any statute, ordinance,

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

a citizen of a constitutional right “shall be liable to

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

or other proper proceeding for redress.” 42 U.S.C. §

1983 (emphasis added). Section 1983 means what it

says: “Under the terms of the statute, ‘[e]very person who acts under color of state law to deprive another of a constitutional right [is] answerable to that

person in a suit for damages.’” Rehberg v. Paulk, 566

U.S. 356, 361 (2012) (quoting Imbler v. Pachtman,

424 U.S. 409, 417 (1976)).

The proposition that a defendant’s good faith reliance on a state statute exempts it from Section 1983

damages liability has no basis in Section 1983’s text.

In fact, the proposition conflicts with the statute in at

least two ways. First, it cannot be reconciled with the

statute’s mandate that “every person”—not some persons, or persons who acted in bad faith, but “every person”—who deprives a party of constitutional rights

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

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

“shall” is not a permissive term, but a mandatory

one.

Second, an element of Section 1983 is that a defendant must act “under color of any statute, ordinance, regulation, custom, or usage, of any State.” 42

U.S.C. § 1983. The Second Circuit and other lower

courts have turned Section 1983 on its head by holding that persons who act under color of a not-yet-invalidated state law to deprive others of a constitutional right are not liable to the injured parties in an

action for damages. Wholean, 955 F.3d at 334, Solomon, 2021 WL 1964773; Seidemann, 842 Fed. Appx.

655, 657. The courts have effectively declared a statutory element of Section 1983—that a defendant must

act under color of state law—to be a defense to Section

1983.

A defendant acting under color of a state statute

cannot be both an element of and a defense to Section

1983. That would render the statute self-defeating: almost any private defendant that acts “under color of

any statute,” as Section 1983 requires to establish liability, would then be shielded from liability for the

same reason—i.e., because the defendant acted under

color of an existing state statute.

The proposition that a defendant acting under authority of an existing state law is exculpatory under

Section 1983 also inverts the purposes of the statute.

See Diamond v. Pa. State Educ. Ass’n, 972 F.3d 262,

288–89 (3d Cir. 2020) (Phipps, J., dissenting). The

purpose of Section 1983 is to provide a federal remedy

to persons deprived of constitutional rights by parties

that act under color of state law. See Owen v. United

States, 445 U.S. 622, 650–51 (1980). “By creating an

express federal remedy, Congress sought to ‘enforce

provisions of the Fourteenth Amendment against

those who carry a badge of authority of a State and

represent it in some capacity, whether they act in accordance with their authority or misuse it.’” Id. (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)).

Here, the fact that AFSCME Council 37 acted under color of New York’s agency fee law when it deprived Petitioner and employees like him of his constitutional rights is only a reason why the unions

must be found liable for damages under Section 1983.

See Lowary v. Lexington Local Bd. Of Educ., 903 F.2d

422 (6th Cir. 1990) (ordering a refund of fees illegally

collected before this Court’s decision in Chicago

Teachers Union v. Hudson, 475 U.S. 292 (1986), which

rendered such recoupments unconstitutional). The

fact cannot be deemed exculpatory.

The lack of any basis in Section 1983’s text and history for a good-faith defense distinguishes it from

other recognized immunities or defenses to Section

1983, which have a statutory basis. Courts “do not

have a license to create immunities based solely on

[the court’s] view of sound policy.” Rehberg, 566 U.S.

at 363. Courts accord an immunity only when a “tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine when it

enacted Section 1983.” Richardson v. McKnight, 521

U.S. 399, 403 (1997) (cleaned up).

Unlike the case of immunities, “there is no common-law history before 1871 of private parties enjoying a good-faith defense to constitutional claims.” Janus II, 942 F.3d 352, 365 (7th Cir. Nov. 5, 2019); see

Diamond, 972 F.3d at 288 (finding “[a] good[-]faith defense is inconsistent with the history of the Civil

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

Baude, Is Qualified Immunity Unlawful?, 106 Cal. L.

Rev. 45, 55 (2018) (finding “[t]here was no well-established, good[-]faith defense in suits about constitutional violations when Section 1983 was enacted, nor

in Section 1983 suits early after its enactment.”). The

policy justifications for immunities generally are not

applicable to private defendants. Wyatt, 504 U.S. at

164–167. Thus, unlike with recognized immunities,

there is no justification for recognizing a good-faith

defense that defies Section 1983’s statutory mandate

that “[e]very person who, under color of any statute”

deprives a citizen of a constitutional right “shall be

liable to the party injured in an action at law.” 42

U.S.C. § 1983.

III.

Policy interests in fairness and equality

weigh against a good-faith defense.

Most circuit courts that have recognized a categorical good-faith defense to Section 1983 assert that policy interests in equality and fairness justify recognizing this defense. See Danielson, 945 F.3d at 1101; Janus II, 942 F.3d at 366; Lee, 951 F.3d at 392 n.2;

Wholean, 955 F.3d at 333. Neither fairness nor equality justify the reliance defense the Second Circuit and

other lower courts have recognized to shield labor unions from their unconstitutional wage seizures pre-Janus. Rather, both principles weigh against carving out

this exemption in Section 1983’s remedial framework.

Courts cannot create defenses to

Section 1983 based on policy interests in fairness and equality.

1. The “fairness” rationale for a good-faith defense

is inadequate, even on its own terms, because courts

cannot create defenses to federal statutes if they believe it is unfair to enforce the statute. “As a general

matter, courts should be loath to announce equitable

exceptions to legislative requirements or prohibitions

that are unqualified by the statutory text.” Guidry v.

Sheet Metal Workers Nat’l Pension Fund, 493 U.S.

365, 376 (1990). Statutes must be enforced as Congress wrote them. “[I]n our constitutional system[,]

the commitment to the separation of powers is too

fundamental for [courts] to preempt congressional action by judicially decreeing what accords with ‘common sense and the public weal.’” Tenn. Valley Auth. v.

Hill, 437 U.S. 153, 195 (1978).

This same principle applies to Section 1983. “It is

for Congress to determine whether § 1983 litigation

has become too burdensome . . . and if so, what remedial action is appropriate.” Tower v. Glover, 467 U.S.

914, 922–23 (1984). Thus, courts “do not have a license to create immunities based solely on [the

court’s] view of sound policy.” Rehberg, 566 U.S. at

363. So too with the fairness justification for a goodfaith defense: courts cannot just invent defenses to

§ 1983 liability based on their views of sound policy.

Even if a policy interest in fairness could justify

creating a defense to a federal statute like Section

1983—which it cannot—fairness to victims of constitutional deprivations would require enforcing Section

1983 as written. Equity favors righting the wrong for

those whose constitutional rights were violated, even

if the violator acted without malice. The Court has

held that “to the extent . . . Congress intended [that]

the awards under § 1983 should deter the deprivation

of constitutional rights, there is no evidence that it

meant to establish a deterrent more formidable than

that inherent in the award of compensatory damages.” Carey v. Piphus, 435 U.S. 247, 256–57 (1978)

(citation omitted); see also Memphis Cmty. Sch. Dist.

v. Stachura, 477 U.S. 299, 310 (1986). Indeed, “elemental notions of fairness dictate that one who causes

a loss should bear the loss.” Owen, 445 U.S. at 654.

The Supreme Court in Owen wrote those words—

that the one who causes a loss should bear the loss—

when holding that municipalities are not entitled to a

good faith immunity to Section 1983. The Court’s equitable justifications for so holding are equally applicable here. First, the Owen Court reasoned that

“many victims of municipal malfeasance would be left

remediless if the city were also allowed to assert a

good[-]faith defense,” and that “[u]nless countervailing considerations counsel otherwise, the injustice of

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

injustice also should not be tolerated here. Countless

victims of constitutional deprivations—not just Petitioner and other employees who had agency fees

seized from them—will be left remediless if defendants to Section 1983 suits can escape liability by

showing they had a good faith, but mistaken, belief

their conduct was lawful.

Second, the Owen Court recognized that Section

1983 “was intended not only to provide compensation

to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as

well.” 445 U.S. at 651. “The knowledge that a municipality will be liable for all of its injurious conduct,

whether committed in good faith or not, should create

an incentive for officials who may harbor doubts about

the lawfulness of their intended actions to err on the

side of protecting citizens’ constitutional rights.” Id.

at 651–52 (emphasis added). The same rationale

weighs against a good-faith defense to Section 1983.

Third, the Owen Court held that “even where some

constitutional development could not have been foreseen by municipal officials, it is fairer to allocate the

resulting loss” to the entity that caused the harm rather “than to allow its impact to be felt solely by those

whose rights, albeit newly recognized, have been violated.” Id. at 654. So too here, when Petitioner’s (and

employees like him) and Council 37’s interests are

weighed together, the balance of equities favors requiring the unions to return the monies they unconstitutionally seized from workers who chose not to join

the union.

2. Equally untenable is the notion that principles

of “equality” justify creating a defense for private defendants that is similar to the immunities enjoyed by

some public defendants. Danielson, 945 F.3d, 1101;

see also Janus II, 942 F.3d at 366; Lee, 951 F.3d at 392

n.2; Wholean, 955 F.3d at 333. Courts do not award

defenses to parties as consolation prizes for failing to

meet the criteria for qualified immunity.

Individual public servants enjoy qualified immunity for reasons not applicable to unions and most other

private entities: to ensure that the threat of personal

liability does not dissuade individuals from acting as

public servants. See Wyatt, 504 U.S. at 168. The fact

that this interest does not apply to the unions is not

grounds for creating an equivalent defense for them.

Rather, “[f]airness alone is not . . . a sufficient reason

for the immunity defense, and thus does not justify its

extension to private parties.” Crawford-El v. Britton,

523 U.S. 574, 590 n.13 (1998).

The reliance defense adopted by

the Second Circuit and other lower

courts conflicts with Reynoldsville

Casket.

This Court’s retroactivity jurisprudence makes

clear that Janus has retroactive effect, and undermines the unions’ asserted good-faith defense. The

reliance defense the Second Circuit and other lower

courts have fashioned to defeat the retroactive effect

of Janus is indistinguishable from the reliance defense this Court held invalid for violating retroactivity principles in Reynoldsville Casket.

In Harper v. Virginia Department of Taxation, 509

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

civil cases were presumptively retroactive unless the

Court specifically states that its decision is not to be

applied retroactively. Nothing in Janus specifically

states that the decision is not retroactive.

Two years later, the Court held in Reynoldsville

Casket Co. v. Hyde that courts cannot create equitable

remedies based on a party’s reliance on a statute before it was held unconstitutional by the Supreme

Court. 514 U.S. 749, 759 (1995). Reynoldsville Casket

concerned an Ohio statute that effectively granted

plaintiffs a longer statute of limitations for suing outof-state defendants. 514 U.S. at 751. This Court had

earlier held the statute unconstitutional. Id. The Ohio

state court, however, permitted a plaintiff to proceed

with a lawsuit that was filed under the statute before

the Court invalidated it. Id. at 751–52. The plaintiff

asserted this was a permissible equitable remedy because she relied on the statute before it was held constitutional. Id. at 753 (describing the state court’s

remedy “as a state law ‘equitable’ device [based] on

reasons of reliance and fairness.”). The Court rejected

that contention, holding the state court could not endrun retroactivity by creating an equitable remedy

based on a party’s reliance on a statute before it was

held unconstitutional. 514 U.S. at 759.

The Second Circuit, along with the First, Fourth,

Sixth, Seventh, and Ninth Circuits, have engaged in

such an end-run by creating an equitable defense

based on a defendant’s reliance on a statute this Court

later deemed unconstitutional. See Doughty, 981 F.3d

128; Wholean, 955 F.3d 332; Akers v. Md. State Educ.

Ass’n, No. 19-1524, 2021 U.S. App. LEXIS 6851 (4th

Cir. Mar. 8, 2021); Lee, 951 F.3d at 392 n.2; Janus II,

942 F.3d at 365; Danielson, 945 F.3d at 1101. The re-

liance defense these lower courts have created conflicts with this Court’s Reynoldsville Casket precedent.1

IV.

This Court should resolve the conflict

among the Circuits as to whether a goodfaith defense exists to Section 1983 claims

or whether Petitioner is entitled to recoup his unconstitutionally seized wages.

A. This Court, along with the Sixth and

Tenth Circuits, has found restitution

appropriate when a union unconstitutionally charges and takes a fee without regard to a union’s purported good

faith.

The Court previously recognized the right of plaintiffs to recoup unconstitutional wage seizures in Section 1983 claims against unions. In addition to the

portion of its holding overturned by Janus allowing

fair-share fee seizures, Abood also invalidated mandatory agency fees used for political activities. 431 U.S.

1 A good-faith defense is unlike an immunity, which does not con-

flict with this Court’s retroactivity doctrine because an immunity

is a well-established legal rule grounded in “special federal policy

considerations.” Reynoldsville Casket, 514 U.S. at 759. A categorical good-faith defense to Section 1983 is not well established.

This Court has never recognized such a defense. Moreover, the

good-faith defense is an equitable defense predicated on a defendants’ reliance interests. The equitable remedy at issue in

Reynoldsville Casket was similarly based on “a concern about reliance [that] alone has led the Ohio court to create to what

amounts to an ad hoc exemption to retroactivity.” Id. This Court

rejected that equitable remedy as inconsistent with its retroactivity doctrine.

at 211. Notably, in so holding, the Abood Court directed the lower courts to determine the appropriate

remedy for those plaintiffs who had financed the union’s political activities with their compulsory fair

share fees—without any reference or concern for the

union’s intent or reliance on prior (valid) law. Id. at

235–37.

Abood laid the roadmap for the lower courts to

fashion a remedy for the plaintiffs who unwillingly financed political activities of the union by looking to

prior Court precedent in Machinists v. Street, 367 U.S.

740 (1961), and Railway Clerks v. Allen, 373 U.S. 113

(1963). Abood, 431 U.S. at 237–40. See Seidemann’s

Petition for a Writ of Cert., No. 20-1725, at 8-14 (June

10, 2021) for complete discussion. In both Street and

Allen, the Court remanded the cases to determine, inter alia, the manner in which employees would receive

a “refund” or “restitution” for the portion of union dues

used by the unions for political purposes opposed by

the employee. Abood, 431 U.S. at 238 (discussing

Street, 367 U.S. at 774– 75 and Allen, 373 U.S. at 122).

Relying on this portion of Abood, the Tenth Circuit

in Wessel v. City of Albuquerque, 299 F.3d 1186, 1194

(10th Cir. 2002), ordered plaintiff employees “a refund

of the portion of the amounts collected that exceed

what could be properly charged” following their lawsuit alleging the union’s process for compulsory deduction of fair-share fees violated their First Amendment rights. 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). The Sixth Circuit reached

the same conclusion in Lowary v. Lexington Local

Board of Education, 903 F.2d 422 (6th Cir. 1990),

when it held that nonunion teachers challenging a

fair-share fee collection plan, including a “local union

presumption” for determining what percentage of union expenditures were chargeable to nonmembers,

were entitled to recover the “nonchargeable” portion

of the unconstitutionally collected fees. Id. at 433.

Wessel and Lowary are consistent with this Court’s

conclusions in Abood, Allen and Street that restitution

is appropriate to make employees whole after they

sustain unconstitutional union fee seizures. Indeed,

the conclusion is common sense: unions should have

to return monies unlawfully seized from employees.

This Court should resolve the discrepancy between

the line of cases finding restitution appropriate for

union fee seizures and the decisions of the First, Second, Fourth, Sixth, Seventh, and Ninth Circuits exempting unions from returning their windfall to victimized employees.

The lower courts disagree as to the

propriety of the unions’ good-faith

defense to Section 1983 claims.

A majority of a Third Circuit panel in Diamond,

972 F.3d 262 rejected the good-faith defense now recognized by the First, Second, Fourth, Sixth, Seventh,

and Ninth Circuits. There were three separate opinions in Diamond.

Judge Rendell, writing only for herself, recognized

the affirmative good-faith defense that several other

circuit courts had recently adopted. Id. at 271.

Judge Fisher, concurring in the judgment, rejected

the categorical good-faith defense that Judge Rendell

and some other circuits had recognized. Id. at 274

(Fisher, J., concurring in the judgment). Judge Fisher

found that policy interests in fairness or equality

could not justify creating this defense. Id. He also

found that “the torts of abuse of process and malicious

prosecution provide at best attenuated analogies” to

First Amendment claims for compelled speech. Id. at

280.2

Judge Phipps, dissenting, agreed with Judge

Fisher that there is no good-faith defense to Section

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

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

an affirmative defense in the common law in 1871 and

treating it as one is inconsistent with the history and

the purpose of § 1983.” Id. at 289. Judge Phipps continued, “Nor does our precedent or even principles of

equality and fairness favor recognition of good faith

as an affirmative defense to a compelled speech claim

for wage garnishments.” Id.

Taking the opinions together, a majority of the

Third Circuit in Diamond rejected the good-faith defense recognized by the First, Second, Fourth, Sixth,

Seventh, and Ninth Circuits. See Doughty, 981 F.3d

2 While he rejected a good-faith defense, Judge Fisher found an

alternative limit to Section 1983 liability. According to Judge

Fisher, prior to 1871, “[c]ourts consistently held that judicial decisions invalidating a statute or overruling a prior decision did

not generate retroactive civil liability with regard to financial

transactions or agreements conducted, without duress or fraud,

in reliance on the invalidated statute or overruled decision.” Id.

at 281. Judge Fisher concluded that Section 1983 incorporates

this ostensible liability exception. Id. at 284. Judge Fisher’s view

is idiosyncratic. To Petitioner’s knowledge, no court has adopted

it.

128; Wholean, 955 F.3d 332 (2d Cir. 2020); Akers, No.

19-1524, 2021 U.S. App. LEXIS 6851; Lee, 951 F.3d

386, 392 n.2 (6th Cir. 2020); Janus II, 942 F.3d at 365;

Danielson, 945 F.3d at 1101.

This Court should resolve this conflict amongst the

circuit courts. This is especially true given that a

good-faith defense lacks any cognizable legal basis,

just as Judges Fisher and Phipps recognized.

It is important that the Court finally resolve whether Congress provided a goodfaith defense to Section 1983.

The Court should end the growing misconception

among lower courts that this Court signaled in Wyatt

that private defendants should be granted a broad reliance defense to Section 1983 liability akin to qualified immunity. As set forth above, Wyatt did not suggest such a defense, but merely suggested that reliance on a statute could defeat the malice and lack-ofprobable cause elements of claims analogous to malicious prosecution and abuse of process claims. The

Court should explain what it meant in Wyatt.

It is important that the Court resolve this issue

quickly because tens of thousands of victims of past

agency fee seizures weigh in the balance. District

courts in roughly two dozen cases, most of which were

filed as class actions, have held that a good-faith defense exempts unions from having to pay damages to

employees whose First Amendment rights the unions

violated. See Danielson, 945 F.3d at 1104 n.7 (collecting most cases). Without this Court’s review, such

cases are likely doomed to failure and employees will

be left without a remedy. The Court should grant re-

view so the employees in these suits can recover a portion of the “windfall,” Janus, 138 S. Ct. at 2486, of

compulsory fees unions wrongfully seized from them.

The importance of the question presented extends

beyond victims of agency fee seizures to victims of

other constitutional deprivations. Unless rejected by

this Court, defendants could raise a good-faith defense against any constitutional claim actionable under Section 1983, including discrimination based on

race, faith, or political affiliation. Courts would have

to adjudicate this defense. More importantly, plaintiffs who would otherwise receive damages for their

injuries will be remediless unless this Court rejects

this new judicially created defense to Section 1983 liability.

The Court should grant review to clarify that immunities and defenses to Section 1983 must rest on a

firm statutory basis, and that the new reliance defense recognized below lacks any such basis.

CONCLUSION

For the reasons stated above, this Court

should grant the petition for writ of certiorari.

Respectfully submitted,