Petition for Writ of Certiorari — Eric Brown, et al., Petitioners v. American Federation of State, County, and Municipal Employees, Council 5, AFL-CIO, et al.

No. _________

IN THE

___________

ERIC BROWN et al.

V.

PETITIONERS,

AMERICAN FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES, COUNCIL 5, AFL-CIO et al.

RESPONDENTS.

___________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

William L. Messenger

National Right to Work

Foundation

8001 Braddock Road

Suite 600

Springfield, Virginia

22160

(703) 321-8510

wlm@nrtw.org

Jeffrey M. Schwab

Counsel of Record

Liberty Justice Center

440 N. Wells Street

Suite 200

Chicago, Illinois 60654

312-637-2280

jschwab@libertyjusticecenter.org

October 24, 2022

Counsel for Petitioners

[Additional counsel listed at the end of the brief.]

i

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.

Petitioners are current and former employees of

the State of Minnesota who were compelled to pay

agency fees to AFSCME Council 5 or the Minnesota

Association of Professional Employees, under color of

Minnesota state law, in violation of their First

Amendment rights according to Janus v. AFSCME,

138 S. Ct. 2448 (2018).

The question presented is: does defendants’ goodfaith reliance on a state law before it was held unconstitutional shield them from damages liability for taking agency fees from Petitioners in violation of their

constitutional rights under 42 U.S.C. § 1983?

ii

PARTIES TO THE PROCEEDING

Petitioners Eric Brown, Jody Tuchtenhagen, Debbie Schultz, Mark Fellows, Alicia Bonner, and Catherine Wyatt are natural persons and citizens of the

State of Minnesota. They are, or at one time were, employees of the State of Minnesota.

Respondents AFSCME Council 5 and Minnesota

Association of Professional Employees are unions representing public employees of the State of Minnesota.

RULE 29.6 STATEMENT

As Petitioners are natural persons, 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:

• Brown v. AFSCME Council 5, No. 21-1640,

United States Court of Appeals for the Eighth Circuit. Judgment entered July 25, 2022.

• Fellows v. Minnesota Association of Professional Employees, No. 21-1684, United States

Court of Appeals for the Eighth Circuit. Judgment

entered July 25, 2022.

• Brown v. AFSCME Council 5, No. 20-cv01127, United States District Court for the District

of Minnesota. Judgment entered February 12,

2021.

• Fellows v. Minnesota Association of Professional Employees, No. 20-cv-01128, United States

District Court for the District of Minnesota. Judgment entered February 12, 2021.

iii

TABLE OF CONTENTS

Question Presented ...................................................... i

Parties to the Proceeding ............................................ ii

Rule 29.6 Statement ................................................... ii

Statement of Related Cases........................................ ii

Table of Authorities .................................................... v

Opinions Below ........................................................... 1

Jurisdiction .................................................................. 1

Constitutional and Statutory Provisions Involved.... 1

Statement of the Case ................................................. 2

Reasons for Granting the Petition ............................. 3

I.

A categorical good-faith defense is not the

claim-specific defense suggested by this Court

in Wyatt v. Cole. .................................................4

II.

A categorical good-faith defense conflicts with

the text and purpose of Section 1983. ..............9

III.

Policy interests in fairness and equality do not

support a good-faith defense, but weigh against

recognizing it. ................................................. 12

A.

Courts cannot create defenses to Section

1983 based on policy interests in fairness

and equality............................................... 12

B.

The reliance defense adopted by the Eighth

Circuit and other lower courts conflicts with

Reynoldsville Casket. ................................ 15

iv

IV.

It is important that the Court finally resolve

whether Congress provided a good-faith

defense to Section 1983. ................................. 17

Conclusion ................................................................. 19

Appendix

Order of the Eighth Circuit, dated July 25, 2022.

.............................................................................. App. 1

Order of the United States District Court for the

District of Minnesota dismissing complaints, dated

February 12, 2021. ............................................ App. 14

Brown Complaint, dated May 8, 2020. ........... App. 27

Fellows Complaint, dated May 8, 2020. .......... App. 35

v

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

431 U.S. 209 (1977) ................................................. 2

Akers v. Md. State Educ. Ass'n,

No. 19-1524, 2021 U.S. App. LEXIS 6851 (4th Cir.

Mar. 8, 2021) .......................................................... 18

Albright v. Oliver,

510 U.S. 266 (1994)................................................ 4

Baker v. McCollan,

443 U.S. 137 (1979) ................................................. 4

Birdsall v. Smith,

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

Crawford-El v. Britton,

523 U.S. 574 (1998) ............................................... 15

Daniels v. Williams,

474 U.S. 327 (1986) ................................................. 8

Danielson v. Inslee,

945 F.3d 1096 (9th Cir. 2019) ................... 12, 15, 18

Diamond v. Pa. State Educ. Ass’n,

972 F.3d 262 (3d Cir. 2020) ..................... 8, 9, 11, 13

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

981 F.3d 128 (1st Cir. 2020) .................................. 18

Guidry v. Sheet Metal Workers Nat. Pension Fund,

493 U.S. 365 (1990) ............................................... 12

Harper v. Virginia Department of Taxation,

509 U.S. 86 (1993) ................................................. 16

Imbler v. Pachtman,

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

vi

Janus v. AFSCME, Council 31,

138 S.Ct. 2448 (2018) .......................................... 2, 8

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

942 F.3d 352 (7th Cir. 2019) ............... 11, 12, 15, 18

Lee v. Ohio Educ. Ass’n,

951 F.3d 386 (6th Cir. 2020) ..................... 12, 15, 18

Lugar v. Edmondson Oil Co., Inc.,

457 U.S. 922 (1982) ........................................... 3, 17

Manuel v. City of Joliet,

137 S. Ct. 911 (2017) ............................................... 4

Monroe v. Pape,

365 U.S. 167 (1961) ............................................... 10

Ogle v. Ohio Civ. Serv. Emps. Ass’n,

951 F.3d 794 (6th Cir. 2020) ................................. 12

OSU Student Alliance v. Ray,

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

Owen v. United States,

445 U.S. 622 (1980) ............................. 10, 13, 14, 19

Rehberg v. Paulk,

566 U.S. 356 (2012) ................................. 5, 9, 11, 13

Reynoldsville Casket Co. v. Hyde,

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

Richardson v. McKnight,

521 U.S. 399 (1997) ..................................... 3, 11, 17

Tenn. Valley Auth. v. Hill,

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

Tower v. Glover,

467 U.S. 914 (1984) ............................................... 13

vii

Wholean v. CSEA SEIU Local 2001,

955 F.3d 332 (2d Cir. 2020) ....................... 12, 15, 18

Wyatt v. Cole,

504 U.S. 158 (1992) ................... 3, 5, 6, 7, 11, 15, 17

Statutes

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

42 U.S.C. § 1983 ............................ 1, 2, 4, 9, 10, 11, 12

Other Authorities

William Baude, Is Qualified Immunity Unlawful?,

106 Cal. L. Rev. 45 (2018) ..................................... 11

1

OPINIONS BELOW

The United States District Court for the District of

Minnesota’s order of February 12, 2021, dismissing

Petitioners’ complaints is reproduced at App. 14–26.

The United States Court of Appeals for the Eighth

Circuit affirmed the lower court’s judgment on July

25, 2022, in a published opinion, Brown v. AFSCME,

41 F.4th 963 (8th Cir. 2022), and reproduced at App.

1–13.

JURISDICTION

The Eighth Circuit issued its opinion on July 25,

2022. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment provides in relevant part

that “Congress shall make no law . . . abridging the

freedom of speech.”

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

2

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

STATEMENT OF THE CASE

Petitioners are or were Minnesota state employees

who were forced to pay agency fees to AFSCME Council 5 or Minnesota Association of Professional Employees against their will. App. 2. On June 27, 2018, this

Court in Janus v. AFSCME Council 31, held agency

fee seizures violated employees’ First Amendment

rights. 138 S. Ct. 2448, 2486 (2018). The Court overruled its precedent that allowed unions to seize

agency fees from employees—Abood v. Detroit Board

of Education, 431 U.S. 209 (1977)—and held Illinois’

agency fee statute to be unconstitutional. Janus, 138

S. Ct. at 2486. This Court also lamented the “considerable windfall that unions have received under

Abood.” 138 S. Ct. at 2486.

Petitioners, individually and on behalf a class of

employees forced to pay agency fees to AFSCME

Council 5 or Minnesota Association of Professional

Employees, filed two separate actions—one against

each union—under 42 U.S.C. § 1983, seeking the return of the monies that were seized from them in violation of their First Amendment rights. App. 3. The

unions moved to dismiss the Petitioners’ complaints,

asserting that for deductions taken until Janus was

decided, the unions were entitled to rely “in good faith

upon then-valid Minnesota law and then-binding Supreme Court precedent in receiving Plaintiffs’ fairshare fees payments.” App. 4. On February 12, 2021,

the district court granted the unions’ motions to dismiss, concluding “that private actors who act in good

faith reliance on a state statute and Supreme Court

case law holding that statute constitutional have an

3

affirmative defense to § 1983 liability.” App. 4, 22. On

July 25, 2022, the Eighth Circuit affirmed, stating

that “a plaintiff who sues a private-party defendant

based on the defendant’s employment of a state law

that has been declared unconstitutional must show

that the defendant was not acting in good-faith reliance on that law.” App. 9. The Eighth Circuit held that

“[b]y requiring the plaintiff to negate a private-party

defendant’s good faith as an element of his or her

claim” the good-faith defense protects parties who unwittingly cross the line into unconstitutionality while

acting in reliance on a presumptively valid state law.

App. 10. Petitioners now seek this Court’s review.

REASONS FOR GRANTING THE PETITION

This case is one of many in which employees who

had agency fees seized from them in violation of their

First Amendment rights seek damages for their injuries. Every circuit court of appeals that will likely hear

these claims has now denied victims of agency-fee seizures relief for their injuries based on a general goodfaith defense to Section 1983 liability.

This Court has never recognized a good-faith defense under Section 1983. But three times this Court

has raised, but then not decided, the question of

whether such a defense exists. See Richardson v.

McKnight, 521 U.S. 399, 413 (1997); Wyatt v. Cole, 504

U.S. 158, 169 (1992); Lugar v. Edmondson Oil Co.,

Inc., 457 U.S. 922, 942 n.23 (1982). The Court should

finally resolve this important question to disabuse the

lower courts of the rapidly spreading notion that a defendant acting under color of a statute before it is held

unconstitutional has a defense under Section 1983.

4

I.

A categorical good-faith defense is not the

claim-specific defense suggested by this

Court in Wyatt v. Cole.

Section 1983 provides a cause of action for the

“deprivation of any rights, privileges, or immunities

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

§ 1983. Because Section 1983 “is not itself a source of

substantive rights,” but merely provides “a method for

vindicating federal rights elsewhere conferred,” Baker

v. McCollan, 443 U.S. 137, 144, n.3 (1979), the elements of a Section 1983 claim vary considerably. The

threshold inquiry in a Section 1983 suit “is to identify

the specific constitutional right allegedly infringed.”

Albright v. Oliver, 510 U.S. 266, 271 (1994). “After

pinpointing that right, courts still must determine the

elements of, and rules associated with, an action seeking damages for its violation.” Manuel v. City of Joliet,

580 U.S. 357, 370 (2017).

“In defining the contours and prerequisites of a

§ 1983 claim . . . courts are to look first to the common

law of torts.” Id. “Sometimes, that review of common

law will lead a court to adopt wholesale the rules that

would apply in a suit involving the most analogous

tort.” Id. “But not always. Common-law principles are

meant to guide rather than to control the definition of

§ 1983 claims.” Id. “[T]he Court has not suggested

that § 1983 is simply a federalized amalgamation of

pre-existing common-law claims . . . . [Section] 1983

differs . . . from . . . pre-existing torts. It is broader in

that it reaches constitutional and statutory violations

5

that do not correspond to any previously known tort.”

Rehberg v. Paulk, 566 U.S. 356, 366 (2012).

In Wyatt v. Cole, the Court considered whether a

private defendant who used an ex parte replevin statute to seize the plaintiff’s property without due process of law was entitled to qualified immunity in a

Section 1983 claim. 504 U.S. at 161. The Court held

that private parties sued under Section 1983 are not

entitled to the same qualified immunity from suit accorded government officials because the “rationales

mandating qualified immunity for public officials are

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

Wyatt left open the question whether the defendants could raise “an affirmative defense based on good

faith and/or probable cause.” Id. at 168-69. That potential defense was based on the Court’s recognition

that the plaintiffs’ claims in Wyatt 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 also id. at 172-73 (Kennedy, J., concurring)

(similar).

But, contrary to the conclusions of the Eighth Circuit and a growing number of lower courts, this potential affirmative defense based on good faith that the

Wyatt Court referenced was not a categorical defense

to all Section 1983 damages claims. Rather, the goodfaith defense to which the Wyatt Court was referring

was a defense to the malice and probable cause elements of the specific due process claim at issue in that

case—the claim that the defendants’ use of the ex

parte replevin statute to seize the plaintiff’s property

without due process violated the plaintiff’s rights. The

6

Court found that claim was most analogous to the

torts of malicious prosecution and abuse of process,

which provided causes of action against private defendants for unjustified harms arising out of the misuse of government processes. Id. at 164. The torts of

malicious prosecution and abuse of process require

plaintiff to show the defendant acted with malice and

with probable cause. Id. Thus, the Court left open the

possibility that defendants could prevail on the specific claim by raising a claim-specific defense that they

acted in good faith.

This is clear from all three opinions in Wyatt.

First, Chief Justice Rehnquist, in his dissenting

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

because “under the common law it was plaintiff’s burden to establish as elements of the tort both that the

defendant acted with malice and without probable

cause.” 504 U.S. at 176 n.1 (Rehnquist, C.J., dissenting). “Referring to the defendant as having a goodfaith 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.

(emphasis in original).

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 (emphasis in original). 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

7

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 stated

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.

Malicious prosecution and abuse of process actions

were the most analogous torts at common law to the

misuse of an ex parte replevin statute, so the Wyatt

Court concluded that a court might hold that malice

and lack of probable cause are required elements of

the underlying constitutional claim—that the use of

an ex parte replevin statute by defendants to seize

plaintiff’s property without due process is unconstitutional. Contrary to the Eighth Circuit and other lower

courts, the Wyatt Court was not suggesting, let alone

establishing, a categorical good-faith defense under

8

which a defendant’s good-faith reliance on state law is

a defense to all constitutional claims for damages

brought under Section 1983. See Diamond v. Pa. State

Educ. Ass’n, 972 F.3d 262, 279-80 (3d Cir. 2020)

(Fisher, J., concurring in the judgment); id. at 287

(Phipps, J., dissenting). 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 Petitioners’ cause of action because

malice and lack of probable cause are not elements of,

or a defense to, a First Amendment deprivation. That

is because the malicious prosecution and abuse of process torts are not analogous to First Amendment

claims. 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.

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

that Section 1983 “contains no independent state-ofmind 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 unions’ actions deprived Petitioners of their First

Amendment rights, and they are due a return of their

unconstitutionally seized fees. As Judge Phipps put it

in Diamond, a claim-specific defense “is of no moment

here because a claim for compelled speech does not

have a mens rea requirement.” 972 F.3d at 289

9

(Phipps, J., dissenting). 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, 566 U.S. at 361 (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 Eighth Circuit and other lower

courts have turned Section 1983 on its head by holding that persons who act under color of a not-yet-in-

10

validated state law to deprive others of a constitutional right are not liable to the injured parties in an

action for damages. App. 9. The courts have effectively

declared a statutory element of Section 1983—that defendants must act under color of state law—to be a

defense to Section 1983. Under the decisions of the

Eighth Circuit and other lower courts, acting under

color of a state law yet to be held unconstitutional is

now a potential defense to all Section 1983 damages

claims.

But 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: any private

defendant that acted “under color of any statute,” as

Section 1983 requires, would be shielded from liability

because it acted under color of a state statute. Here,

the fact that AFSCME Council 5 and Minnesota Association of Professional Employees acted under color of

Minnesota’s agency fee law when they deprived Petitioners of their constitutional rights is not exculpatory, but a reason why the unions are liable for damages under Section 1983.

This conclusion is consistent with the purpose of

Section 1983, which is to provide a federal remedy to

persons deprived of constitutional rights by parties

that act under color of state law. See Owen v. Independence, 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)). The

proposition that acting under authority of an existing

state law is exculpatory under Section 1983 inverts

11

the purposes of the statute. See Diamond, 972 F.3d at

288-89 (Phipps, J., dissenting). “Good 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.

The lack of any basis for a good-faith defense in

Section 1983’s text and history distinguishes that supposed defense from other recognized immunities or defenses under Section 1983, which have a statutory or

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

Unlike with immunities, “there is no common-law

history before 1871 of private parties enjoying a goodfaith defense to constitutional claims.” See Janus v.

AFSCME Council 31, 942 F.3d 352, 364 (7th Cir.

2019) (“Janus II”); 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”). As discussed below, infra at 12–17, policy

justifications for immunities generally are not applicable to private defendants. Wyatt, 504 U.S. at 164-67.

Thus, unlike with recognized immunities, there is no

justification for recognizing a good-faith defense that

12

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 do

not support a good-faith defense, but weigh

against recognizing it.

A. Courts cannot create defenses to

Section 1983 based on policy interests

in fairness and equality.

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 v. Inslee, 945 F.3d

1096, 1101 (9th Cir. 2019); Janus II, 942 F.3d at 366;

Lee v. Ohio Educ. Ass’n, 951 F.3d 386, 392 n.2 (6th Cir.

2020); Wholean v. CSEA SEIU Local 2001, 955 F.3d

332, 334-35 (2d Cir. 2020); see also App. 10 (the goodfaith defense “protects parties who ‘unwittingly cross

[the] line’ into unconstitutionality while acting ‘in reliance on a presumptively valid state law—those who

had good cause in other words to call on the governmental process in the first instance.’”) (citing Ogle v.

Ohio Civ. Serv. Emps. Ass’n, 951 F.3d 794, 797 (6th

Cir. 2020)). This rationale is inadequate, even on its

own terms, because courts cannot create defenses to

federal statutes when they believe it is unfair to enforce the statute.

“As a general matter, courts should be loath to announce equitable exceptions to legislative requirements or prohibitions that are unqualified by the statutory text.” Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 376 (1990). Statutes must be

13

enforced as Congress wrote them. “[I]n our constitutional system[,] the commitment to the separation of

powers is too fundamental for [courts] to preempt congressional action by judicially decreeing what accords

with ‘common sense and the public weal.’” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 195 (1978).

This principle applies to Section 1983. “It is for

Congress to determine whether § 1983 litigation has

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

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

923 (1984). Thus, courts “do not have a license to create immunities based solely on [their] view of sound

policy.” Rehberg, 566 U.S. at 363. So too with the “fairness” justification for a good-faith defense: courts cannot just invent defenses to § 1983 liability based on

their views of sound policy. See Diamond, 972 F.3d at

274 (Fisher, J., concurring in the judgment); see id. at

289 (Phipps, J., dissenting) (finding that fairness and

equality cannot justify creation of a good-faith defense).

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. It is not fair to make victims of constitutional deprivations pay for the unions’ unconstitutional conduct. Nor is it fair to let wrongdoers keep

ill-gotten gains. “[E]lemental notions of fairness dictate that one who causes a loss should bear the loss.”

Owen, 445 U.S. at 654.

This Court wrote those words in Owen 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.

14

First, Owen reasoned that “many victims of municipal malfeasance would be left remediless if the city

were also allowed to assert a good faith defense,” and

that “[u]nless countervailing considerations counsel

otherwise, the injustice of such a result should not be

tolerated.” Id. at 651. That injustice also should not be

tolerated here. Countless victims of constitutional

deprivations—not just Petitioners and other employees who had agency fees seized from them—will be left

remediless if defendants to Section 1983 suits can escape liability by showing they had a good-faith, but

mistaken, belief their conduct was lawful.

Second, Owen 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 goodfaith 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 Petitioners’ and

the unions’ interests are weighed, the balance of equities favors requiring the unions to return the monies

they unconstitutionally seized from workers who

chose not to join the union.

15

The same reasoning applies to the notion that

principles of “equality” justify creating a defense for

private defendants that is similar to the immunities

enjoyed by some public defendants. Danielson, 945

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

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

not award defenses to parties as consolation prizes for

failing to meet the criteria for qualified immunity.

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

other private entities: to ensure that the threat of personal liability does not dissuade individuals from acting as public servants. See Wyatt, 504 U.S. at 168. The

fact that this interest does not apply to the unions is

not grounds for creating an equivalent defense for

them. “Fairness alone is not . . . a sufficient reason for

the immunity defense, and thus does not justify its extension to private parties.” Crawford-El v. Britton,

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

Neither fairness nor equality justify the reliance

defense the Eighth Circuit and other lower courts

have recognized. Rather, both principles weigh

against carving out this exemption in Section 1983’s

remedial framework.

B. The reliance defense adopted by the

Eighth Circuit and other lower courts

conflicts with Reynoldsville Casket.

This Court’s retroactivity jurisprudence makes

clear that Janus has retroactive effect, and it undermines the unions’ asserted good-faith defense. The reliance defense the Eighth Circuit and other lower

courts have fashioned to defeat Janus’s retroactive effect is indistinguishable from the reliance defense this

16

Court held invalid for violating retroactivity principles in Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

(1995).

In Harper v. Virginia Department of Taxation, 509

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

civil cases are 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 after Harper, in Reynoldsville Casket,

the Court held that courts may not create equitable

remedies based on a party’s reliance on a statute before this Court has held the statute to be unconstitutional. 514 U.S. at 759. Reynoldsville Casket concerned an Ohio statute that effectively granted plaintiffs a longer statute of limitations for suing out-ofstate defendants. 514 U.S. at 751. This Court had earlier held the statute unconstitutional. Id. The Ohio

state court, however, permitted a plaintiff to proceed

with a lawsuit that was filed under the statute before

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

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

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

reasons of reliance and fairness”). The Court rejected

that contention, holding that the state court could not

do an end run around 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 Eighth Circuit and other lower courts have engaged in just such an end run. They have created an

equitable defense based on a defendant’s reliance on a

statute this Court later deemed unconstitutional. The

reliance defense the Eighth Circuit has created thus

17

conflicts with this Court’s Reynoldsville Casket precedent.

A good-faith defense is unlike an immunity, which

does not conflict with this Court’s retroactivity doctrine because an immunity is a well-established legal

rule grounded in “special federal policy considerations.” Reynoldsville Casket, 514 U.S. at 759. A categorical good-faith defense to 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 defendant’s 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.

IV. It is important that the Court finally

resolve whether Congress provided a goodfaith defense to Section 1983.

In at least three decisions this Court has questioned, but then opted not to decide, whether Congress

has provided private defendants with a good-faith defense. See Richardson, 521 U.S. at 413; Wyatt, 504

U.S. at 169; Lugar, 457 U.S. at 942 n.23. It is time for

the Court to finally resolve the matter.

The Court should end the misconception among

lower courts that Wyatt signaled that private defendants should be granted a broad reliance defense to

Section 1983 liability akin to qualified immunity. In

the wake of Janus, a chorus of lower courts has interpreted Wyatt in that way. See App. 6 (collecting cases).

Yet Wyatt did not suggest such a defense, but merely

suggested that reliance on a statute could defeat the

18

malice and lack-of-probable cause elements of claims

analogous to malicious prosecution and abuse of process claims. See supra 4–9. The Court should explain

what it meant in Wyatt.

And now is the time for this Court to act. Every

circuit court that is likely to address this issue—the

First, Second, Third, Fourth, Sixth, Seventh, Eighth,

and Ninth Circuits—has recognized the good-faith defense in the context of agency fees. See Doughty v.

State Emples. Ass’n of N.H., 981 F.3d 128 (1st Cir.

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

Schaszberger v. AFSCME Council 13, No. 21-2172,

2022 U.S. App. LEXIS 19972 (3d Cir. July 20, 2022);

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

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

(7th Cir. Nov. 5, 2019); Danielson, 945 F.3d 1096, 1101

(9th Cir. 2019). Given that the states in the Fifth and

Eleventh Circuits did not require public-sector employees to pay agency fees, those circuits will almost

certainly not have the opportunity to address the issue.

The importance of the question presented extends

beyond victims of agency fee seizures to victims of

other constitutional deprivations. Unless this Court

rejects the good-faith defense for Section 1983 actions,

defendants could raise that defense for any Section

1983 claim, including claims based on 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.

19

Further, once one accepts that a general good-faith

defense may apply to private party defendants in Section 1983 cases, there is no logical or legal basis to

deny applying the good-faith defense to other Section

1983 defendants, such as municipalities. While this

Court has rejected the application of immunity to municipalities found to violate Section 1983, Owen, 445

U.S. at 657, the application of the good-faith defense

to municipalities will have the same effect: to provide

immunity from damage claims. Indeed, the Ninth Circuit has already extended the good-faith defense to

municipalities. See Allen v. Santa Clara Cty. Corr.

Peace Officers Ass'n, 38 F.4th 68, 75 (9th Cir. 2022)

(“Because . . . unions get a good faith defense to a

claim for a refund of pre-ˆagency fees . . . and municipalities' tort liability for proprietary actions is the

same as private parties . . . the County is also entitled

to a good faith defense to retrospective § 1983 liability

for collecting pre-Janus agency fees.”) (citations omitted).

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.

20

Respectfully submitted,

William L. Messenger

National Right to Work

Foundation

8001 Braddock Road

Suite 600

Springfield, Virginia

22160

(703) 321-8510

wlm@nrtw.org

Douglas P. Seaton

James Dickey

Upper Midwest Law

Center

8421 Wayzata Blvd.

Suite 300

Golden Valley, Minnesota

55426

612-428-7000

Doug.Seaton@UMWLC.org

October 24, 2022

Jeffrey M. Schwab

Counsel of Record

Liberty Justice Center

440 N. Wells Street

Suite 200

Chicago, Illinois 60654

312-637-2280

jschwab@libertyjusticecenter.org

Craig S. Krummen

Greenberg Traurig, LLP

90 South 7th St.

Suite 3500

Minneapolis, Minnesota

55402

(612) 259-9719

krummenc@gtlaw.com

Counsel for Petitioners