Petition for Writ of Certiorari — Scott Wilford, et al., Petitioners v. National Education Association, et al.

NO. __________

IN THE

Supreme Court of the United States

SCOTT WILFORD, BONNIE HAYHURST, REBECCA

FRIEDRICHS, MICHAEL MONGE, HARLAN ELRICH,

JELENA FIGUEROA, AND GENE GRAY, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Petitioners,

v.

NATIONAL EDUCATION ASSOCIATION OF THE UNITED

STATES, 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

440 First Street NW

Grand Rapids, MI 49503 Suite 600

(616) 608-1100

Washington, DC 20001

glongworth@clarkhill.com (616) 450-4235

jbursch@ADFlegal.org

Counsel for Petitioners

i

QUESTIONS PRESENTED

Petitioners are public school teachers in the State

of California who declined to join a public union. They

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

unions forcibly took from them and that this Court

invalidated in Janus v. American Federation of State,

County, and Municipal Employees, Council 31, 138 S.

Ct. 2448 (2018). The Ninth Circuit rejected Petitioners’ claims and allowed the Respondent unions to

keep their ill-gotten gains, concluding that 42 U.S.C.

§ 1983 provides the unions with a good-faith defense.

That ruling presents several, distinct questions for

this Court’s review:

1. Whether the Ninth Circuit erred by basing a

defense to § 1983 on “equality and fairness” rather

than determining whether the common law in 1871

provided a good-faith defense to a private party for

the most analogous tort.

2. Whether the remedy Petitioners seek is

equitable restitution such that a good-faith defense to

money damages, if it exists, does not apply.

3. Whether a good-faith defense, if it exists,

applies only to individuals, not legal entities like the

Respondent unions.

4. Whether the Ninth Circuit erred by failing to

give Janus truly retroactive effect.

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioners are Scott Wilford, Bonnie Hayhurst,

Rebecca Friedrichs, Michael Monge, Harlan Elrich,

Jelena Figueroa, and Gene Gray, individually and on

behalf of all others similarly situated.

Respondents are National Education Association

of the United States; American Federation of

Teachers; California Federation of Teachers;

Community College Association; Saddleback Valley

Educators Association; Exeter Teachers Association;

Savanna District Teachers Association; Certified

Hourly Instructors, Long Beach City College Chapter;

Coast Federation of Educators, Local 1911; South

Orange County Community College District Faculty

Association; Sanger Unified Teachers Association;

Orange Unified Education Association; United

Teachers Los Angeles; and Mt. San Antonio College

Faculty Association, Inc.

Petitioners are not corporations, so 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.

19-55712, Scott Wilford, et al., individually and on

behalf of all others similarly situated v. National

Education Association of the United States, et al.,

judgment entered January 26, 2022. Petitioner’s

Petition for Panel Rehearing and Petition for

Rehearing En Banc filed on February 9, 2022, was

denied on April 19, 2022.

iii

U.S. District Court for the Central District of

California, No. 8:18-cv-1169, Scott Wilford, et al.,

individually and on behalf of all others similarly

situated v. National Education Association of the

United States, et al., final judgment entered May 22,

2019.

iv

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ................................................ ii

LIST OF ALL PROCEEDINGS ................................. ii

TABLE OF AUTHORITIES .................................... vii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES .................................................. 2

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 6

I. Background ........................................................... 6

II. Proceedings ........................................................... 6

REASONS FOR GRANTING THE WRIT................. 8

I. This Court should grant review because the

Ninth Circuit’s decision conflicts with this

Court’s oft-repeated requirement that § 1983

claims, immunities, and defenses be based on

the common law as it existed in 1871. ................. 8

II. Because Petitioners seek equitable relief, a

good-faith defense, if it exists, doesn’t apply in

this case. .............................................................. 14

III.If a good-faith defense exists, it protects only

individuals, not legal entities. ............................ 19

IV. This Court should grant review to address the

Ninth Circuit’s conflict with this Court’s

retroactivity jurisprudence. ................................ 23

v

V. This case is an ideal vehicle to resolve the

numerous conflicts presented and to give full

effect to Janus. .................................................... 28

CONCLUSION ......................................................... 31

vi

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Ninth Circuit, Memorandum

in 19-55712, Filed January 26, 2022 ....................... 1a

United States District Court for the Central

District of California, Order Granting

Defendants’ Motion to Dismiss in 8:18-cv01169-JLS-DFM, Issued May 8, 2019 ..................... 5a

United States District Court for the

Central District of California,

Judgment in 8:18-cv-01169-JLS-DFM,

Issued May 22, 2019 .............................................. 55a

United States Court of Appeals for the Ninth

Circuit, Order Denying Petition for Panel

Rehearing and Petition for Rehearing En

Banc in 19-55712, Filed April 19, 2022 ................. 57a

vii

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education, 431 U.S. 209

(1977) ............................................................. passim

Allen v. Santa Clara County Corr. Peace Officers

Ass’n, 38 F.4th 68 (9th Cir. 2022) ........................ 10

Board of Regents v. Roth, 408 U.S. 564 (1972) ....... 20

Chauffeurs, Teamsters and Helpers, Local No. 391 v.

Terry, 494 U.S. 558 (1974) ................................... 14

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

cert. denied 141 S. Ct. 1265 (2021) (Case No. 191130) ............................................................... passim

Davis v. Michigan Department of Treasury, 489 U.S.

803 (1989)........................................................ 24, 25

Davis v. United States, 564 U.S. 229 (2011) ..... 27, 28

Diamond

v.

Pennsylvania

State

Education

Association, 972 F.3d 262 (3d Cir. 2020) . 11, 12, 13

Fairfax Covenant Church v. Fairfax Cty. Sch. Bd., 17

F.3d 703 (4th Cir. 1994) ................................. 15, 16

Filarsky v. Delia, 566 U.S. 377 (2012)............. 4, 9, 30

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .............. 19

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86

(1993) ............................................................. passim

Hopkins v. Saunders, 199 F.3d 968 (8th Cir. 1999) . 14

Imbler v. Pachtman, 424 U.S. 409 (1976) ....... 8, 9, 20

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529

(1991) .............................................................. 24, 26

Janus v. American Federation of State, County, and

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

(2018) ............................................................. passim

Kelly v. Bemis, 4 Gray 83 (Mass. 1855) ................... 12

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407

(2022) ...................................................................... 9

viii

Machinists v. Street, 367 U.S. 740 (1961) ... 17, 18, 19

Marbury v. Madison, 1 Cranch 137 (1803) ............. 26

Mooney v. Ill. Educ.Ass’n,942 F.3d 368 (7th Cir. 2019)

................................................................................. 7

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142

S. Ct. 2111 (2022) ............................................. 9, 10

Norton v. Shelby Cty., 118 U.S. 425 (1886) ............. 26

Owen v. City of Independence, Mo., 445 U.S. 622

(1980) ............................................................. passim

Perry v. Sindermann, 408 U.S. 593 (1972).............. 20

Pierson v. Ray, 386 U.S. 547 (1967) ........................ 12

Porter v. Warner Holding Co., 328 U.S. 395 (1946) 14

Railway Clerks v. Allen, 373 U.S. 113 (1963)17, 18,

19

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995)

............................................................................... 26

Richardson v. United States, 465 F.2d 844 (3d Cir.

1972) (en banc), rev’d on other grds., 418 US. 166

(1974) .................................................................... 26

Salerno v. Corzine, 449 Fed. Appx. 118 (3d Cir. 2011)

............................................................................... 14

Schad v. Arizona, 501 U.S. 624 (1991) .................... 10

Sumner v. Beeler, 50 Ind. 341 (1875) ...................... 13

Thompson v. Clark, 142 S. Ct. 1332 (2022) .... 4, 8, 30

Tower v. Glover, 467 U.S. 914, 920 (1984) ................ 9

Tracy v. Swarthout, 35 U.S. 80 (1836) .................... 12

Wood v. Strickland, 420 U.S. 308 (1975) ............ 4, 14

Wyatt v. Cole, 504 U.S. 158 (1992) ................ 7, 13, 22

Statutes

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

28 U.S.C. 1331 ............................................................ 1

28 U.S.C. 1343 ............................................................ 1

ix

28 U.S.C. 1367 ............................................................ 1

28 U.S.C. 1983 ............................................................ 1

28 U.S.C. 2201 ............................................................ 1

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

Other Authorities

1 D. Dobbs, Law of Remedies § 4.1(2), p. 557 (2d ed.

1993) ...................................................................... 15

2 Jeffrey A. Parness, Moore’s Federal Practice § 8.08

(3d ed. 2020).......................................................... 11

Arthur R. Miller et al., Federal Practice and

Procedure § 1271 (3d ed., Apr. 2020 Update) ...... 11

Rest. (3d) of Restitution § 40 cmt. b (2011) ............. 15

Rules

Federal Rule of Civil Procedure 8(c).................. 11, 12

Codes

Cal. Gov. Code § 3546 ............................................ 3, 6

DECISIONS BELOW

The district court’s order granting Respondents’

motion to dismiss is reprinted in the Appendix

(“App.”) at 5a–54a and its judgment is reprinted at

App. 55a–56a. The Ninth Circuit’s affirmance is

reprinted at App. 1a–4a, and its denial of Petitioners’

motion for panel rehearing and petition for rehearing

en banc is reprinted at App. 57a–58a.

STATEMENT OF JURISDICTION

On January 26, 2022, the Ninth Circuit issued its

memorandum concluding that Respondent unions

were not required to return the illegal fair-share fees

they had taken from Petitioners’ paychecks because

the unions enjoyed a good-faith defense to liability

under 28 U.S.C. § 1983. The Ninth Circuit denied

Petitioners’ motion for panel rehearing and petition

for rehearing en banc on April 19, 2022. 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).

2

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.

3

INTRODUCTION

Under California law, public unions had the right

to deduct from the wage or salary of non-union publicschool employees a so-called “fair share service fee.”

Cal. Gov. Code § 3546. But in Janus v. American

Fed’n of State, County, and Mun. 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 Bd. of

Educ., 431 U.S. 209 (1977), a case about which the

Court had long expressed misgivings.

Petitioners Scott Wilford, Bonnie Hayhurst,

Rebecca Friedrichs, Michael Monge, Harlan Elrich,

Jelena Figueroa, and Gene Gray, and those similarly

situated to them filed this lawsuit to recoup the fees

that Respondent unions illegally seized during the

relevant, pre-Janus limitations period and postJanus.1 Their theory is simple: when you take

something that does not belong to you, you must give

it back. It makes no difference whether that “take”

was intentional or inadvertent.

1 Petitioners refer to fees illegally seized “post-Janus”

because Wilford, Monge, and Figueroa had fair-share

fees deducted after this Court decided Janus, and only

4/30th of the post-Janus deductions were returned to

them. The unions rationalized that they should be

allowed to keep the fees for the first 26 days of June

2018 because the Janus opinion issued June 27, 2018.

4

The district court granted the unions’ motion to

dismiss based on the unions’ supposed good-faith

defense to liability under 42 U.S.C. § 1983, and the

Ninth Circuit affirmed based on its previous decision

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

cert. denied 141 S. Ct. 1265 (2021) (Case No. 19-1130).

Danielson held “that a union defendant can

invoke an affirmative defense of good faith to retrospective monetary liability under section 1983 for the

agency fees it collected pre-Janus, where its conduct

was directly authorized under both state law and

decades of Supreme Court jurisprudence.” Id. at

1098–99. According to Danielson, this is so even if

Janus is given retroactive application, id. at 1099, as

though Janus could be applied retroactively without

that making any difference whatsoever to the remedy.

The Ninth Circuit applied a good-faith defense

based on “principles of equality and fairness—values

that are inconsistent with rigid adherence to the oftarbitrary elements of common law torts as they stood

in 1871.” Id. at 1101. Yet this Court has repeatedly

held that it is precisely the common law in 1871 that

determines the elements of, and immunities and

defenses to, a § 1983 claim. Thompson v. Clark, 142

S. Ct. 1332, 1340 (2022); Filarsky v. Delia, 566 U.S.

377, 384 (2012). The Ninth Circuit ignored this

Court’s rule, infusing its own sense of what it thinks

fair with no regard for the common law.

Further, even if a good-faith defense exists, it

wouldn’t apply in this case because the remedy

Petitioners seek is equitable in nature. Just as

qualified immunity doesn’t protect a government

employee from equitable relief, Wood v. Strickland,

420 U.S. 308, 314 n.6 (1975), a so-called good-faith

5

defense would likewise not apply to equitable relief.

This conclusion is consistent with this Court’s

precedents requiring illegal fair-share fees to be

refunded to an employee from whom they were

illegally (even if innocently) taken.

There’s another reason a good-faith defense

wouldn’t apply in this case: Even if good faith may

protect an individual actor from § 1983 liability, it

doesn’t protect a legal entity for whom the individual

works. Owen v. City of Independence, Mo., 445 U.S.

622, 625 (1980).

And finally, the Ninth Circuit’s retroactivity

holding conflicts with Harper v. Virginia Dep’t of

Taxation, 509 U.S. 86 (1993). Harper admonished

that when “this Court applies a rule of federal law to

the parties before it, that rule is the controlling

interpretation of federal law and must be given full

retroactive effect in all cases still open on direct

review and as to all events, regardless of whether such

events predate or postdate [the Court’s] announcement of the rule.” Id. at 97 (emphasis added). And

that is precisely the relief Petitioners request here: to

have Janus applied to the period before it was issued,

just as in Harper. Indeed, Harper shows that lower

courts have no option but to apply Janus retroactively

in this manner, yet this is precisely what the Ninth

Circuit refused to do.

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

Ninth Circuit’s conflicts with this Court’s precedents,

and vindicate the public employees from whom

public-sector unions illegally took fair-share fees until

Janus stopped that unconstitutional conduct.

6

STATEMENT OF THE CASE

I.

Background

Under Cal. Gov. Code § 3546, a public-employee

union has the right to take wages or salary from

public school employees who are not members of the

union, a so-called “fair-share service fee.” Petitioners—and many others like them—were public school

employees in California who chose not to join a publicemployee union. Class-Action Compl. ¶¶ 1-7 and 27.

Nonetheless, their employers relied on California’s

law and deducted fair-share fees from their

paychecks. Id. ¶ 27.

It is undisputed that this taking of publicemployee wages violated Petitioners’ free-speech

rights; that was the whole point of this Court’s

holding in Janus. Yet post-Janus, the unions refused

to return their illegal seizure of Petitioners’ wages,

precipitating this class-action lawsuit.

II. Proceedings

Petitioners filed their first amended 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. But the district court granted the unions’ motion

to dismiss, holding Petitioners’ request for prospective relief was moot because there was no threat the

unions would continue collecting fees in violation of

Janus, App. 16a–17a, and Petitioners’ refund claims

were barred by the good-faith defense, App. 17a–28a.

The district court also held the California law preempted Petitioners’ state-law claims for conversion

and money had and received. App. 29a–41a.

7

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–4a (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. The court followed the

Seventh Circuit in holding “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)).

Ignoring this Court’s repeated holding that § 1983

claims, immunities, and defenses must be grounded

in the common law as it existed in 1871—when § 1983

was first enacted—the Ninth Circuit applied a goodfaith defense based on “principles of equality and

fairness,” despite recognizing that doing so was

“inconsistent with rigid adherence to the oft-arbitrary

elements of common law torts as they stood in 1871.”

Id. at 1101.

8

Danielson 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 oft-repeated requirement that § 1983

claims, immunities, and defenses be based

on the common law as it existed in 1871.

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.

Earlier this year, in Thompson, this Court held

that in determining the elements of a claim under

§ 1983, “[t]he status of American law as of 1871 is the

relevant inquiry for our purposes.” Thompson, 142 S.

Ct. at 1340. The respondent in that case relied on the

1976 Restatement in support of its position. This

Court held such reliance was “flawed because the

Restatement did not purport to describe the consensus of American law as of 1871, at least on that

question.” Id.

9

The same rule applies to determining whether an

immunity or defense applies to a § 1983 claim. In the

unanimous decision in Filarsky v. Delia, 566 U.S. 377

(2012), the Court held that whether a private party

was entitled to immunity under § 1983 turns on “the

‘general principles of tort immunities and defenses’

applicable at common law[.]” Id. at 384 (quoting

Imbler, 424 U.S. at 418). “Under our precedent, the

inquiry begins with the common law as it existed

when Congress passed § 1983 in 1871.” Id. (citing

Tower v. Glover, 467 U.S. 914, 920 (1984)). Under

Tower, there could be no immunity under § 1983

unless “an official was accorded immunity from tort

actions at common law when the Civil Rights Act was

enacted in 1871[.]” Tower, 467 U.S. at 920.2 But

rather than conduct a historical review of the common

law, the Ninth Circuit determined what was, in its

view, “fair”: “We would find it neither ‘equal’ nor ‘fair’

for a private party’s entitlement to a good faith

defense to turn not on the innocence of its actions but

rather on the elements of an 1871 tort that the party

is not charged with committing.” Id. at 1101–02.

Recently, this Court endorsed this “historical

approach” outside the § 1983 context, as well. See

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142

S. Ct. 2111, 2126 (2022) (conduct covered by the

Second Amendment’s text is presumptively protected

and may be abridged only by government regulation

that “is consistent with this Nation’s historical tradition of firearm regulation.”); Kennedy v. Bremerton

Sch. Dist., 142 S. Ct. 2407, 2427 (2022) ( “Establishment Clause must be interpreted by reference to historical practices and understandings.”) (cleaned up).

2

10

Thus, having disregarded the standard this Court

requires, the Ninth Circuit turned instead to “general

principles of equality and fairness[.]” Id. at 1101.

These latter principles, the court held, “are

inconsistent with rigid adherence to the oft-arbitrary

elements of common law torts as they stood in 1871.”

Danielson, 945 F.3d at 1101.

The Ninth Circuit’s decision cannot be reconciled

with this Court’s controlling law. And the decision

adopts an unreliable and subjective standard of

“equality and fairness.” As Justice Scalia opined,

“when judges test their individual notions of ‘fairness’

against an American tradition that is deep and broad

and continuing, it is not the tradition that is on trial,

but the judges.” Schad v. Arizona, 501 U.S. 624, 650

(1991) (Scalia, J., concurring).3 That’s why Judge

Bumatay opines in his concurring opinion in Allen v.

Santa Clara County Corr. Peace Officers Ass’n, 38

F.4th 68, 75 (9th Cir. 2022), that “in any case

breaking new ground on § 1983 defenses, the first

place we turn is our history and common law.”

Danielson’s ignoring of our history and common law

in favor of “equality and fairness” was “wrongheaded.” Id. (Bumatay, J., concurring).

3 Similarly, in New York State Rifle, the Court held

that “reliance on history to inform the meaning of

constitutional text … is, in our view, more legitimate,

and more administrable, than asking judges to ‘make

difficult empirical judgments’ about ‘the costs and

benefits of firearms restrictions,’ especially given

their ‘lack [of[ expertise’ in the field.” 142 S. Ct. at

2130.

11

Two of the three judges in Diamond v.

Pennsylvania State Educ. Ass’n, 972 F.3d 262 (3d Cir.

2020), reached the same conclusion as Judge

Bumatay. 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).4 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 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 Fed. R. of Civ. Proc. 8(c) mentions “good faith.” 972

F.3d at 285 (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

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 Petitioners did not make any

payment—their money was withheld as a payroll

deduction—let alone make the payment voluntarily.

4

12

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.” Id. at 286. “Rather, when

Congress wants to include good faith as an

affirmative defense, it does so expressly.” Id. at 286 &

n.1 (numerous examples omitted). “And that begs the

question: if the good faith defense were so well

established that it could be assumed ‘that Congress

[in enacting § 1983] would have specifically so

provided had it wished to abolish the doctrine,’ then

why did Congress find the need to expressly provide

for the defense in many other statutes but not in

§ 1983?” Id. at 286 (quoting Pierson v. Ray, 386 U.S.

547, 555 (1967)). “In sum, the absence of a good faith

affirmative defense from Rule 8(c) along with its

presence as a defense in other federal statutes

suggests that today the good faith affirmative defense

is not firmly rooted in the common law.” Id.

Petitioners, like the parties in Diamond, are

unaware of any “pre-1871 case recognizing a commonlaw 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

13

that a justice of the peace, who issues a warrant under

an unconstitutional statute, is liable in damages to

the person arrested); Sumner v. Beeler, 50 Ind. 341,

342 (1875) (holding that “ministerial officers and

other persons are liable for acts done under an act of

the legislature which is unconstitutional and void”).

Perhaps the “strongest case for such a defense,”

Judge Phipps explains, “comes from Chief Justice

Rehnquist’s dissenting opinion in Wyatt v. Cole.”

Diamond, 972 F.3d at 287 (Phipps, J., dissenting).

But even Chief Justice Rehnquist “viewed the good

faith defense as ‘something of a misnomer’ because it

actually referred to elements of the common-law torts

of malicious prosecution and abuse of process.” Id.

(quoting Wyatt, 504 U.S. at 176 & n.1 (Rehnquist,

C.J., dissenting)). Chief Justice Rehnquist provided

no authority suggesting good faith was a defense;

rather he showed only that “the elements of two

common-law tort claims could be defeated by proof of

subjective good faith.” Id.

Given § 1983’s status as the nation’s preeminent

civil rights statute, whether the statute includes a

common-law good-faith defense is no small matter.

The issue is of critical importance to many, including

public employees 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.

14

But what’s perfectly clear is that the Ninth

Circuit’s skirting of history and the common law in

favor of “equality and fairness” cannot be allowed.

This Court should set the record straight, reject the

Ninth Circuit’s subjective test, and provide the

historical analysis this Court’s precedents require—

the analysis the Ninth Circuit refused to perform.

II. Because Petitioners seek equitable relief, a

good-faith defense, if it exists, doesn’t apply

in this case.

The defense of qualified immunity protects a

defendant from monetary damages, but not from

equitable relief. Wood v. Strickland, 420 U.S. 308, 314

n.6 (1975). This is not controversial. And, if qualified

immunity doesn’t protect a defendant from equitable

relief, neither does a good-faith defense (if such a

defense exists).

Further, Danielson seems to think that, simply

because Petitioners seek a monetary award, the relief

they seek is legal, not equitable. Not so. As this Court

held in Chauffeurs, Teamsters and Helpers, Local No.

391 v. Terry, 494 U.S. 558, 370 (1974), “we have

characterized damages as equitable where they are

restitutionary ….” Further, the Court has held that

restitution encompasses a decree “ordering the return

of that which rightfully belongs to” the plaintiff.

Porter v. Warner Holding Co., 328 U.S. 395, 402

(1946). See also Salerno v. Corzine, 449 Fed. Appx.

118, 123 (3d Cir. 2011) (no qualified immunity for a

claim seeking money to restore the plaintiff back to

the position occupied before the claimed violations);

Hopkins v. Saunders, 199 F.3d 968, 977 (8th Cir. 1999)

(no qualified immunity for a monetary award that is

“restitutionary” in nature). “The fundamental

15

substantive basis for restitution is that the defendant

has been unjustly enriched by receiving something,

tangible or intangible, that properly belongs to the

plaintiff.” 1 D. Dobbs, Law of Remedies § 4.1(2), p. 557

(2d ed. 1993).

Danielson also held that restitution can’t apply in

this case because “[t]he Union bears no fault for

acting in reliance on state law and Supreme Court

precedent.” 945 F.3d at 1103. The unions’ supposed

innocence is not a basis to deny refund. (“Supposed”

is warranted because, as Janus held, “public-sector

unions have been on notice for years regarding this

Court’s misgivings about Abood” and have received a

“considerable windfall” under Abood. Janus, 138 S.

Ct. at 2484, 2486.) But what is clear is that

Petitioners bear absolutely no fault. They objected to

the fee deductions, and this Court has determined

those deductions were unconstitutional. Equity favors

the party whose constitutional rights have been

violated, not the violator—even if the violator has

acted innocently. Owen v. City of Independence, Mo.,

445 U.S. 622, 655 (1980). Indeed, 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.”).

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).

16

In Fairfax, for example, 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.

Anyway, the unions have never suggested that

Petitioners were somehow at fault here. The unions’

best-case scenario is that neither side was at fault—

though Janus calls the unions’ good faith into serious

question. This is no reason that the unions should get

to keep monies that rightfully belong to public

servants.

That restitution in the form of a refund is the

appropriate relief in this case is clear from the Court’s

prior fee cases. In the portion of Abood v. Detroit

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

did not overrule, 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.

17

The Abood plaintiffs were public-school teachers

who filed suit to challenge a service fee “equal in

amount to union dues.” 431 U.S. at 211. The issue was

whether the fees “violate[d] the constitutional rights

of government employees who object to public-sector

unions as such or to various union activities financed

by the compulsory service fees.” Id. This Court

concluded that the Constitution prohibits publicemployee unions from advancing political views,

candidates, or other ideological causes not germane to

the collective-bargaining process using “charges,

dues, or assessments paid by employees who” object

to doing so and are coerced into paying “by the threat

of loss of governmental employment.” Id. at 235–36.

Part III of the opinion gave the lower courts

guidance about “determining what remedy will be

appropriate.” 431 U.S. at 237. In so doing, the Court

turned to its decisions in Machinists v. Street, 367

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

113 (1963). Abood, 431 U.S. 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).

18

Similarly, the Court in Allen was required to

address the remedy question after ruling in favor of

public employees “who had refused to pay union-shop

dues” but “had not notified the union prior to bringing

the lawsuit of their opposition to political

expenditures.” Abood, 431 U.S. at 239 (discussing

Allen, 431 U.S. at 118–19). The Court reiterated the

appropriateness of the injunction and restitution

remedies, and it “remanded for determination [and

calculation of refund payments] of which expenditures were properly to be characterized as political

and what percentage of total union expenditures they

constituted.” Id. (summarizing Allen, 431 U.S. at

122). Specifically, the Court outlined a “practical

decree” that would provide for “(1) the refund of a

portion of the exacted funds in the proportion that

union political expenditures bear to total union

expenditures, and (2) the reduction of future

exactions by the same proportion.” Id. at 240

(analyzing Allen, 373 U.S. at 122).

Following the holdings of Street and Allen, the

Abood Court reversed the Michigan Court of Appeals’

ruling “that the plaintiffs were entitled to no relief,”

because that decision deprived the plaintiffs of their

opportunity to establish their right to restitution or a

refund. 431 U.S. at 241–42. And it did so in a context

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—

19

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.

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.

III. If a good-faith defense exists, it protects

only individuals, not legal entities.

At the time this Court decided Owen v. City of

Independence, Mo., 445 U.S. 622 (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, if such a defense

continued to exist. And, as the holding in Owen shows,

that defense would not protect the unions here. In

Owen, this Court 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.

20

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)). Because Owen didn’t challenge the award

of good-faith immunity to the individuals, the Court

didn’t address it. What the Court did address was the

question whether the city could to ride the coattails of

its employees’ good faith. The Court’s answer was no.

Explaining why, this Court focused on the fact

that defenses apply to § 1983 claims only if (1) “a

considered inquiry into the immunity historically

accorded the relevant official at common law and the

interests behind it’”; and (2) public-policy justifications also support the application of the defense. Id.

at 638 (quoting Imbler, 424 U.S. at 421). The Court

held that neither of these requirements protected the

city based on its employees’ good faith. Id.

21

Looking first at the state of the law when

Congress enacted the Civil Rights Act, 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 ‘good-faith’ 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.

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.

22

Thus, under Owen, even if an employee’s goodfaith 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 legal

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 when 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, even if good faith might insulate an

individual union official from § 1983 liability, it

cannot insulate the unions from liability. Of course,

the Ninth Circuit’s refusal to address in any kind of

meaningful way how the common law dealt with good

faith allowed that court to ignore this issue. But it is

an independent basis for denying a good-faith defense

to the unions, even if such a defense exists.

23

IV. This Court should grant review to address

the Ninth Circuit’s conflict with this Court’s

retroactivity jurisprudence.

The Ninth Circuit’s decision violates this Court’s

requirement that § 1983 claims and defenses be

framed by an historical analysis of tort law as of 1871

and ignores this Court’s holding in Abood that the

refund of fees is equitable relief to which a good-faith

defense would not apply. But it also violates this

Court’s retroactivity jurisprudence. Indeed, in Danielson, incorporated into the decision below, the Ninth

Circuit found “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 precedents, Janus must be

applied retroactively. This point is made clear in

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86

(1993), which held that when “this Court applies a

rule of federal law to the parties before it, that rule is

the controlling interpretation of federal law and must

be given full retroactive effect in all cases still open on

direct review and as to all events, regardless of

whether such events predate or postdate [the Court’s]

announcement of the rule.” Id. at 97 (emphasis

added).

What’s more, Harper involved a plaintiff’s refund

claim and resulted in the plaintiff receiving that

refund for tax assessments taking place for the four

years before the governing precedent was reversed.

The decision is on all fours and in direct conflict with

the Ninth Circuit’s retroactivity analysis.

24

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

acknowledged 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 because such

prospective relief didn’t make him whole; he sought a

refund of taxes he had paid before the Virginia statute

was repealed, specifically, going back to 1985, four

years before this Court issued its decision in Davis.

The Virginia state courts held that Harper could

recover taxes paid after the Supreme Court decided

Davis, but not for the years before Davis—precisely

the position the Ninth Circuit took here. So, Harper

petitioned for review, and this Court remanded to the

Virginia Supreme Court to reconsider in light of

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529

(1991). On remand, the Virginia Supreme Court

affirmed its previous decision denying Harper a

refund of taxes paid for the four years before Davis.

Harper petitioned for review again, and this time,

this Court granted it. In 1993, the Court issued its

opinion in Harper, reversing the Virginia Supreme

Court’s decision that Harper was not entitled to a

25

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 Petitioners request—to

have Janus applied to the period before it was issued.

That’s exactly what happened in Harper and what

should happen here.

It doesn’t matter that Janus overruled Abood. As

the concurring and dissenting opinions in Harper

recognized, Harper retroactivity applies even though

the new decision “overrule[es] clear past precedent on

which litigants may have relied”—as here—or

“decid[es] an issue of first impression whose

resolution was not clearly foreshadowed.” Id. at 110–

11 (Kennedy, J., concurring); id. at 123 (O’Connor, J.,

dissenting).

26

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 precedents

about 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.

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

27

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

was protected from paying back illegally collected

fair-share fees because it relied on a statute premised

on Abood. That is not a retroactive application of

Janus. As just explained, retroactive application of

Janus requires the Court to treat Abood as though it

never existed. Harper, 509 U.S. at 97.

In Danielson, the Ninth Circuit suggested that

retroactivity and remedy are separate questions and

that, as a question of remedy, the good-faith defense

protects the unions from damages. Danielson, 945

F.3d at 1099. This is an unsupported conclusion.

It’s true that “retroactivity of a right does not

guarantee a retroactive remedy.” Id. 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; 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

28

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. Petitioners ask the Court to restore

their property that the Unions unconstitutionally

have taken from them; 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.

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 Danielson and other circuit courts

have persistently blocked plaintiffs from vindicating

their rights post-Janus.

First, the validity of the unions’ good-faith

defense was dispositive and outcome-determinative.

The Ninth Circuit held that the unions’ reliance on

Cal. Gov. Code § 3546 and Abood required the

dismissal of Petitioners’ federal claims. App. 2a–3a

(quoting Danielson). If this Court concludes that the

unions cannot assert a good-faith defense—whether

based on (a) a determination that a good-faith defense

is not available under § 1983, (b) Abood’s application

of an equitable remedy to which a good-faith defense

would not apply, (c) unavailability of good-faith

defense to legal entity, or (d) a proper retroactive

29

application of Janus—then the Court should reverse

the dismissal of Petitioners’ claim and enter judgment

in favor of Petitioners. All that would remain is class

certification.

Second, the record provides a clean vehicle for

deciding the questions presented. The district court

ruled on a motion to dismiss, and both it and the

Ninth Circuit rejected Petitioners’ claims entirely

because of the unions’ assertion of their supposed

good faith. There are no disputes of any material facts

or jurisdictional defects that will prevent this Court

from squarely deciding the questions presented.

Third, there is a gross inequity here and in the

numerous other pending class actions seeking a

refund of unlawful fair-share fees paid before Janus.

There is no court in the country that would bar a

plaintiff from receiving a refund for taxes paid under

an unconstitutional taxing scheme, no matter the

good faith of state tax officials. Nor is there a court in

the country that would prevent a plaintiff from

recovering wages garnished from a paycheck

notwithstanding the purported creditor’s good-faith

reliance on an unconstitutional statute. The result

should be the same here.

Fourth, while this Court has recently declined to

grant public-employee petitions asserting similar

claims and raising variations on the final question

presented here, this petition addresses squarely

issues not as directly or clearly raised in those prior

petitions.

Finally, the Ninth Circuit has ignored several,

distinct lines of this Court’s precedents. This Court

should make clear that such flouting of the Court’s

precedents will not be tolerated.

30

***

As this Court reiterated in New York State Rifle,

“[h]istorical analysis can be difficult; it sometimes

requires resolving threshold questions, and making

nuanced judgments about what which evidence to

consult and how to interpret it.” 142 S. Ct. at 2130

(citation omitted). “But reliance on history to inform

the meaning of” constitutional provisions and

statutes is “more legitimate, and more administrable,

than asking judges to ‘make difficult empirical

judgments’ about ‘the costs and benefits’” of government action or inaction. Id. It is for these very reasons

that this Court defines § 1983 defenses with respect

to the common law as it existed in 1871. Thompson,

142 S. Ct. at 1340; Filarsky, 566 U.S. at 384.

Leaving the Ninth Circuit’s ruling in place here

would work a tremendous injustice on Petitioners and

those like them, all of whom are hard working public

servants who have been pick-pocketed by the

defendant Unions.

Far worse, doing so would rubber stamp the Ninth

Circuit’s refusal to follow this Court’s command of

interpreting § 1983 consistent with the common law

as it existed in 1871 and instead imposing its own,

“Ninth Circuit brand” of justice and fairness. The

Court should emphatically rebuke such behavior and

restore § 1983’s proper, historical meaning, one that

does not include a good-faith defense.

31

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

SEPTEMBER 2022