DALE DANIELSON, a Washington State employee; BENJAMIN RAST, a Washington State employee; TAMARA ROBERSON, a Washington State employee; as individuals, and on behalf of all others similarly situated v. JAY ROBERT INSLEE, in his official capacity as Governor of the State of Washington; DAVID SCHUMACHER, in his official capacity as Director of Washington State Office of Financial Management; AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 28, AFL-CIO, a labor organization
No. 18-36087
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 26, 2019
D.C. No. 3:18-cv-05206-RJB
Plaintiffs-Appellants,
v.
OPINION
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding
Argued and Submitted November 6, 2019 Seattle, Washington
Before: Ronald M. Gould and Jacqueline H. Nguyen, Circuit Judges, and Gregory A. Presnell,* District Judge.
Opinion by Judge Nguyen
SUMMARY**
Civil Rights
The panel affirmed the district court‘s dismissal of a claim for monetary relief bought pursuant to
Prior to the Supreme Court‘s decision in Janus, public sector unions around the country relied on the Supreme Court‘s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that the unions could collect compulsory agency fees from nonmembers to finance their collective bargaining activities, without running afoul of the First and Fourteenth Amendments. State laws and
Joining the Seventh Circuit, the panel held that private parties may invoke an affirmative defense of good faith to retrospective monetary liability under
COUNSEL
Jonathan F. Mitchell (argued), Mitchell Law PLLC, Austin, Texas; Talcott J. Franklin, Talcott Franklin PC, Dallas, Texas; Eric Stahlfeld, Freedom Foundation, Olympia, Washington; Christopher Hellmich, Hellmich Law Group P.C., Anaheim Hills, California; for Plaintiffs-Appellants.
P. Casey Pitts (argued), Scott Kronland, and Matthew J. Murray, Altshuler Berzon LLP, San Francisco, California; Edward E. Younglove III, Younglove & Coker P.L.L.C., Olympia, Washington; for Defendants-Appellees.
NGUYEN, Circuit Judge:
“Stare decisis—in English, the idea that today‘s Court should stand by yesterday‘s decisions—is ‘a foundation stone of the rule of law.‘” Kimble v. Marvel Entm‘t, LLC, 135 S. Ct. 2401, 2409 (2015) (quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014)). But on rare occasion, even longstanding precedent can be overruled. What happens when the Supreme Court reverses course, but private parties have already acted in reliance on longstanding bedrock precedent?
This question lies at the center of this appeal. For over 40 years, public sector unions around the country relied on the Supreme Court‘s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that the unions could collect compulsory agency fees from nonmembers to finance their collective bargaining activities, without running afoul of the First and Fourteenth Amendments. State laws and regulations further entrenched the union agency shop into the local legal framework. But in 2018, the Supreme Court uprooted its precedent by overturning Abood. In Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), the Supreme Court held that unions’ compulsory collection of agency fees violated the Constitution.
Many public sector unions, including the defendant union here, immediately stopped collecting agency fees. But uncertainty remained as to whether they would be monetarily liable for their pre-Janus conduct—conduct that was once explicitly authorized under Abood and state law.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
Plaintiffs are Washington state employees who work within bargaining units exclusively represented by the American Federation of State, County, and Municipal Employees, Council 28, AFL-CIO (the “Union“). Plaintiffs are not members of the Union and object to financing its activities. Nonetheless, until recently, they were required to pay agency fees to the Union. Collection of agency fees from nonmembers was authorized by the governing collective bargaining agreement, by Washington law, and by over four decades of U.S. Supreme Court precedent dating back to Abood.
On June 27, 2018, the Supreme Court issued its decision in Janus, reversing course on the constitutionality of the traditional agency shop regime. Janus overruled Abood and held that the mandatory collection of agency fees from objectors violated the First Amendment. 138 S. Ct. at 2486. It is undisputed that, immediately thereafter, the Union stopped collecting mandatory fees from nonmembers.
On March 15, 2018, Plaintiffs brought a putative class action pursuant to
In the wake of Janus and changes to the Union‘s practices, the district court determined that the claims against Inslee and Schumacher (the “State Defendants“) for declaratory and injunctive relief were moot, and they were dismissed from the case.1 Shortly thereafter, the Union filed a motion for judgment on the pleadings or summary judgment. The Union argued that the claims for declaratory and injunctive relief should be dismissed as moot, as the parallel claims against the State Defendants had been. The Union further argued that the claim for monetary relief should be dismissed because it had relied in good faith on presumptively-valid state law and then-binding Supreme Court precedent. The district court granted the Union‘s motion as to all claims and dismissed the case. Plaintiffs
II. STANDARD OF REVIEW
We have jurisdiction pursuant to
III. DISCUSSION
We hold that the district court properly dismissed Plaintiffs’ claim for monetary relief against the Union. In so ruling, we join the Seventh Circuit, the only other circuit to have addressed the question before us. See Janus v. Am. Fed‘n of State, Cty. & Mun. Emps., Council 31, 942 F.3d 352 (7th Cir. 2019) (“Janus II“); Mooney v. Ill. Educ. Ass‘n, 942 F.3d 368 (7th Cir. 2019). We agree with our sister circuit 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. The Union was not required to forecast changing winds at the Supreme Court and anticipatorily presume the overturning of Abood. Instead, we permit private parties to rely on judicial pronouncements of what the law is, without exposing themselves to potential liability for doing so.
As an initial matter, Plaintiffs urge the retroactive application of the Supreme Court‘s decision in Janus. But, like the Seventh Circuit, we find it unnecessary to “wrestle the retroactivity question to the ground.” Janus II, 942 F.3d at 360. The Supreme Court has made clear that right and remedy must not be conflated, and that retroactivity of a right does not guarantee a retroactive remedy. Davis v. United States, 564 U.S. 229, 243 (2011). Therefore, we will assume that the right delineated in Janus applies retroactively and proceed to a review of available remedies.
2. A private entity may avail itself of a good faith defense in litigation brought pursuant to 42 U.S.C. § 1983 .
The Supreme Court has held that private parties sued under
Because “we are required to reconcile prior precedents if we can do so,” we first assess whether Clement and Howerton are truly at odds. Cisneros-Perez v. Gonzales, 465 F.3d 386, 392 (9th Cir. 2006). We find the two decisions reconcilable. Howerton stands for the unremarkable proposition that private parties cannot avail themselves of qualified immunity to a section 1983 lawsuit. 708 F.2d at 385 n.10. Both the Supreme Court and later panels of our court have adopted that reading of Howerton. See, e.g., Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Howerton for the proposition that the Ninth Circuit has held that private parties acting under color of state law are not entitled to qualified immunity); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989) (citing Howerton for the proposition that “the Ninth Circuit has stated that private defendants are not entitled to qualified immunity in section 1983 actions“).
Although Howerton used the somewhat less precise language of a “good faith immunity,” 708 F.2d at 385 n.10, we do not read the decision to foreclose a good faith affirmative defense. Indeed, Howerton cited favorably to Lugar, 457 U.S. at 942 n.23, for the proposition that “compliance with [a] statute might be raised as an affirmative defense” to section 1983 liability. 708 F.2d at 385 n.10. As the Supreme Court has explained, “a
Plaintiffs also argue that an entity cannot invoke the good faith defense, just as a municipality cannot invoke qualified immunity. This argument, however, runs counter to Clement, in which we applied the good faith defense to an entity defendant. Plaintiffs’ argument is also at odds with the purpose underlying the good faith defense: that private parties should be entitled to rely on binding judicial pronouncements and state law without concern that they will be held retroactively liable for changing precedents. This principle applies equally to a private entity as it does to a private individual.
Plaintiffs contend that any good faith defense must be confined to claims for which the most closely analogous common law tort carried a similar immunity. Plaintiffs argue that conversion is the closest common law analogue to their claim against the Union, that good faith is no defense to conversion, and therefore that good faith can provide no defense to liability here. Plaintiffs derive this argument from the Supreme Court‘s discussion of the history of qualified immunity in Wyatt v. Cole:
Section 1983 creates a species of tort liability that on its face admits of no immunities. Nonetheless, we have accorded certain government officials either absolute or qualified immunity from suit if the 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. If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871—§ 1 of which is codified at
42 U.S.C. § 1983 —we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law.... In determining whether there was an immunity at common law that Congress intended to incorporate in the Civil Rights
Act, we look to the most closely analogous torts....
504 U.S. 158, 163–64 (1992) (internal citations and quotation marks omitted).
Plaintiffs’ argument fails for several reasons. First, the above passage applies only to Wyatt‘s discussion of qualified immunity, not to the good faith affirmative defense on which Wyatt expressly reserved judgment. The rationales behind the two doctrines, and their limitations, are not interchangeable. Accord Janus II, 942 F.3d at 365 (“As several district courts have commented, the Supreme Court in Wyatt I embarked on the search for the most analogous tort only for immunity purposes—the Court never said that the same methodology should be used for the good-faith defense.“).
Second, even qualified immunity is no longer constrained by a common law tort analogy. See Wyatt, 504 U.S. at 166 (noting that ”Harlow ‘completely reformulated qualified immunity along principles not at all embodied in the common law‘” (quoting Anderson v. Creighton, 483 U.S. 635, 645 (1987))); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., dissenting) (explaining that contemporary courts no longer “ask[] whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff‘s claim under § 1983,” but “instead grant immunity to any officer whose conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known‘” (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam))). The Supreme Court itself has emphasized that it “never suggested that the precise contours of official immunity can
Third, in Clement, we did not limit the applicability of the good faith defense to common law analogues. 518 F.3d at 1096-97 (9th Cir. 2008). Our decision in Clement was driven not by the strictures of common law, but rather by principles of equality and fairness—which the Supreme Court likewise indicated could lay the foundation for a good faith defense to section 1983 liability. See id. (applying the good faith defense because “[t]he company did its best to follow the law and had no reason to suspect that there would be a constitutional challenge to its actions,” and “the constitutional violation arose from the inactions of the police rather than from any act or omission by the towing company“); Wyatt, 504 U.S. at 168 (citing “principles of equality and fairness” as the basis for a potential good faith defense).
Fourth, Plaintiffs’ proposed constraints are contrary to the principles underlying the good faith defense. As noted, the availability of the defense arises out of general principles of equality and fairness—values that are inconsistent with rigid adherence to the oft-arbitrary elements of common law torts as they stood in 1871. It would be an odd result for an affirmative defense grounded in concerns for equality and fairness to hinge upon historical idiosyncrasies and strained legal analogies for causes of action with no clear parallel in nineteenth century tort law. 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.
Finally, even if we adopted the common-law-analogue rule, Plaintiffs’ position would still fail. Contrary to
Rather, we agree with our sister circuit that abuse of process provides the best analogy to Plaintiffs’ claim.5 Janus II, 942 F.3d at 365. At common law, abuse of process “provided [a] cause[] of action against private defendants for unjustified harm arising out of the misuse of governmental processes.” Wyatt, 504 U.S. at 164. Although the prototypical abuse of process claim involves the abuse of judicial process, the tort is not clearly so confined. Here, the fundamental premise for section 1983 liability against the Union is its alleged abuse of processes authorized by Washington law—the agency shop regime and its concomitant agency fee collection protocol—toward unconstitutional ends. Indeed, it is the use of governmental processes by the Union that supplies the “color of law” element required to state a claim under section 1983.
4. Plaintiffs’ labeling of their claim as restitutionary does not preclude application of the good faith defense.
Plaintiffs argue that any good faith defense is limited to liability for damages, whereas they seek restitution from the Union for agency fees collected in contravention of Janus. They contend that “a defendant‘s good faith will never allow it to keep the property or money that it took in violation of another‘s constitutional rights,” even if good faith might provide a shield to liability for additional damages.
As an initial matter, Plaintiffs’ restitutionary premise is flawed. Plaintiffs’ constitutionally cognizable injury is the intangible dignitary harm suffered from being compelled to subsidize speech they did not endorse. It is not the diminution in their assets from the payment of compulsory agency fees. Accordingly, Plaintiffs seek compensatory damages, not true restitution, when they pray for a monetary award in the amount of the agency fees they paid to the Union. The labeling of the relief sought in restitutionary terms does not change the underlying nature of Plaintiffs’ claim.
Even accepting Plaintiffs’ restitutionary premise, the equities do not weigh in favor of requiring a refund of all agency fees collected pre-Janus. The Union bears no fault for acting in reliance on state law and Supreme Court precedent. It collected and spent fees under the
The Union‘s assertion of a good faith affirmative defense is sound, but that does not fully answer the question before this court. We must next determine whether the district court correctly found that the good faith defense shielded the Union from retrospective monetary liability as a matter of law.
In collecting compulsory agency fees, the Union relied on presumptively-valid state law and then-binding Supreme Court precedent. The Union now faces an assertion of monetary liability not for flouting that law or misinterpreting its bounds, but for adhering to it. Although some justices had signaled their disagreement with Abood in the years leading up to Janus, Abood remained binding authority until it was overruled.6 We agree with our sister circuit that “[t]he Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future.” Janus II, 942 F.3d at 366.
The Supreme Court has admonished the circuit courts not to presume the overruling of its precedents, irrespective of hints in its decisions that a shift may be on the horizon. See Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has
The ability of the public to rely on the courts’ pronouncements of law is integral to the functioning of our judicial system. After all, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). If private parties could no longer rely on the pronouncements of even the nation‘s highest court to steer clear of liability, it could have a destabilizing impact on the judicial system.
Because the Union‘s action was sanctioned not only by state law, but also by directly on-point Supreme Court precedent, we hold that the good faith defense shields the Union from retrospective monetary liability as a matter of law. In so ruling, we join a growing consensus of courts across the nation.7
Because Plaintiffs’ claims arise from the Union‘s reliance on Abood, not allegations that the Union flouted that authority, the Union need not show compliance with Abood‘s strictures to assert successfully a good faith defense. Such a requirement would be entirely divorced from the allegations in this action.
IV. CONCLUSION
When the Supreme Court delivered its decision in Janus, the Union was required to change its policies to conform to the newly-announced law of the land. And it did. But the shift in precedent only carries the plaintiff employees so far. We hold that the Union is not retrospectively liable for doing exactly what we expect of private parties: adhering to the governing law of its state and deferring to the Supreme Court‘s interpretations of the Constitution. A contrary result would upend the very principles upon which our legal system depends. The good faith affirmative defense applies as a matter of law, and the district court was right to dismiss Plaintiffs’ claim for monetary relief.
AFFIRMED.