     19-1563-cv
     Wholean v. CSEA SEIU Local 2001




 1                                         In the
 2               United States Court of Appeals
 3                            for the Second Circuit
 4
 5
 6                                     AUGUST TERM 2019
 7
 8                                      No. 19-1563-cv
 9
10                  KIERNAN J. WHOLEAN AND JAMES A. GRILLO,
11                             Plaintiffs-Appellants,
12
13                              LAKEISHA CHRISTOPHER,
14                                     Plaintiff,
15
16                                            v.
17
18   CSEA SEIU LOCAL 2001; BENJAMIN BARNES, IN HIS OFFICIAL CAPACITY
19   AS SECRETARY OF THE OFFICE OF POLICY AND MANAGEMENT, STATE OF
20      CONNECTICUT; SANDRA FAE BROWN-BREWTON, IN HER OFFICIAL
21      CAPACITY AS UNDERSECRETARY OF LABOR RELATIONS, STATE OF
22         CONNECTICUT; ROBERT KLEE, IN HIS OFFICIAL CAPACITY AS
23   COMMISSIONER OF THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL
24                 PROTECTION, STATE OF CONNECTICUT,
25                         Defendants-Appellees,
26
27    KEVIN LEMBO, IN HIS OFFICIAL CAPACITY AS COMPTROLLER, STATE OF
28                             CONNECTICUT,
29                               Defendant.
30
31
 1               On Appeal from the United States District Court
 2                      for the District of Connecticut
 3
 4
 5                            ARGUED: DECEMBER 12, 2019
 6                             DECIDED: APRIL 15, 2020
 7
 8
 9   Before: CABRANES and LOHIER, Circuit Judges, and REISS, District
10   Judge. *
11

12          In this appeal, Plaintiffs-Appellants Kiernan J. Wholean and
13   James A. Grillo contend that the United States District Court for the
14   District of Connecticut (Eginton, J.) improperly dismissed their First
15   and Fourteenth Amendment claims brought pursuant to 42 U.S.C.
16   § 1983 to obtain repayment of fair-share union fees collected pursuant
17   to controlling precedent. Because we hold that a good-faith defense
18   applies to Appellees’ collection of fair-share union fees, we AFFIRM
19   the District Court’s dismissal of Appellants’ Second Amended
20   Complaint.

21

22                                 JEFFREY D. JENNINGS (Milton L. Chappell, on
23                                 the brief), National Right to Work Legal



           Judge Christina Reiss, of the United States District Court for the District of
            *

     Vermont, sitting by designation.




                                              2
 1                             Defense and Education Foundation, Inc.,
 2                             Springfield, VA, for Plaintiffs-Appellants.

 3                             SCOTT A. KRONLAND (P. Casey Pitts,
 4                             Altshuler Berzon LLP, San Francisco, CA;
 5                             Daniel E. Livingston, Livingston, Adler,
 6                             Pulda, Meiklejohn & Kelly, P.C., Hartford,
 7                             CT, on the brief), Altshuler Berzon LLP, San
 8                             Francisco, CA, for Defendant-Appellee CSEA
 9                             SEIU Local 2001.

10                             CLARE KINDALL, Solicitor General (Philip
11                             Miller, Assistant Attorney General, on the
12                             brief), for William Tong, Connecticut
13                             Attorney General, for State Defendants-
14                             Appellees.

15

16   CHRISTINA REISS, District Judge:

17         Plaintiffs-Appellants Kiernan J. Wholean and James A. Grillo
18   contend that the United States District Court for the District of
19   Connecticut (Eginton, J.) improperly dismissed their First and
20   Fourteenth Amendment claims brought pursuant to 42 U.S.C. § 1983
21   against Defendants-Appellees CSEA SEIU Local 2001 (“Local 2001”);
22   Benjamin Barnes, Secretary of the Office of Policy and Management for
23   the State of Connecticut; Sandra Fae Brown-Brewton, Undersecretary
24   of Labor Relations for the State of Connecticut; and Robert Klee,




                                         3
 1   Commissioner of the Department of Energy and Environmental
 2   Protection for the State of Connecticut (collectively, “Appellees”). We
 3   hold that a good-faith defense applies to Appellees’ collection of fair-
 4   share union fees from Appellants and therefore AFFIRM the District
 5   Court’s dismissal of Appellants’ Second Amended Complaint.

 6                                   I. BACKGROUND

 7           Appellants Kiernan J. Wholean and James A. Grillo are
 8   employees of the State of Connecticut. Appellee Local 2001 is a union
 9   that represents State of Connecticut employees.                      The remaining
10   Appellees are State of Connecticut officials. 1

11           On June 13, 2018, Appellants, who are not members of Local
12   2001, filed a Complaint against Appellees, asserting that they were
13   forced to pay fair-share union fees to Local 2001 as a condition of their
14   employment in violation of the First Amendment to the United States
15   Constitution. Appellees admit that they collected fair-share fees from
16   Appellants, but contend they were entitled to do so under applicable
17   law. During the pendency of Appellants’ lawsuit, the United States
18   Supreme Court decided Janus v. American Federation of State, County,
19   and Municipal Employees (“AFSCME”), Council 31, 138 S. Ct. 2448 (2018)
20   wherein it overruled Abood v. Detroit Board of Education, 431 U.S. 209

             1 Although Appellants appealed the entirety of the District Court’s decision
     and judgment in their notice of appeal, in their brief they abandon their appeal of
     the District Court’s dismissal of their claims against the State of Connecticut
     officials. See Appellants’ Br. at 3 n.1 (“[Appellants] also sued certain officials of the
     Connecticut state government but they do not appeal the [D]istrict [C]ourt’s
     dismissal of their claims against the State Defendants.”).




                                                4
 1   (1977), to hold that the collection of fair-share fees from public-sector
 2   employees violated the First Amendment because they “forced [non-
 3   members] to subsidize a union, even if they choose not to join and
 4   strongly object to the positions the union takes in collective bargaining
 5   and related activities,” thereby “compelling them to subsidize private
 6   speech on matters of substantial public concern.” Id. at 2459-60.

 7         After Janus was decided, Appellees ceased deducting fair-share
 8   fees from Appellants’ pay and refunded any such fees collected post-
 9   Janus. Thereafter, Appellants amended their Complaint to seek the
10   return pursuant to 42 U.S.C. § 1983 of all fair-share fees collected by
11   Appellees pre-Janus allegedly in violation of the First and Fourteenth
12   Amendments to the United States Constitution.

13         On October 1, 2018, Appellees moved to dismiss the First
14   Amended Complaint, asserting a good-faith defense based upon their
15   compliance with Conn. Gen. Stat. § 5-280 (authorizing, among other
16   things, the collection of fair-share fees from non-members) and
17   directly controlling Supreme Court precedent that rendered the
18   collection of fair-share fees from non-consenting, non-waiving, non-
19   member public-sector employees lawful. See Abood, 431 U.S. at 235-36.
20   While the motion to dismiss was pending, Appellants filed a Second
21   Amended Complaint.

22         On April 26, 2019, the District Court dismissed the Second
23   Amended Complaint, finding Appellants’ claims for declaratory
24   judgment and injunctive relief were moot based on Janus. With regard
25   to Appellants’ assertion that Local 2001 continued to violate the First




                                        5
 1   and Fourteenth Amendments by retaining pre-Janus fees, the District
 2   Court concluded those claims were barred by the defense of good-faith
 3   adherence to existing precedent.

 4                              II. DISCUSSION

 5         The Second Circuit reviews a district court’s dismissal of a
 6   complaint de novo using the same standard employed by the district
 7   court. See Purcell v. N.Y. Inst. of Tech. – Coll. of Osteopathic Med., 931
 8   F.3d 59, 62 (2d Cir. 2019). Appellants urge this court to reverse on two
 9   grounds.

10         First, Appellants contend that 42 U.S.C. § 1983 does not
11   recognize a good-faith defense beyond qualified immunity. They
12   assert one cannot be implied because a First Amendment violation
13   does not turn on a violator’s motive and there is no analogous common
14   law tort from which a good-faith defense may be extrapolated.
15   Second, Appellants urge this court to find that Appellees should have
16   anticipated Janus and ceased collecting fair-share fees on that basis.

17         We hold that a party who complied with directly controlling
18   Supreme Court precedent in collecting fair-share fees cannot be held
19   liable for monetary damages under § 1983. In so holding, we do not
20   write on a blank slate. The Supreme Court in Wyatt v. Cole, 504 U.S.
21   158, 168 (1992), observed that “principles of equality and fairness may
22   suggest . . . that private citizens who rely unsuspectingly on state laws
23   they did not create and may have no reason to believe are invalid
24   should have some protection from liability, as do their government
25   counterparts.”    Although the Court ultimately held that private




                                         6
 1   defendants are not entitled to qualified immunity, the Court refused
 2   to “foreclose the possibility that private defendants faced with § 1983
 3   liability . . . could be entitled to an affirmative defense based on good
 4   faith and/or probable cause.” Id. at 169; see also id. at 168 (noting that
 5   the interests underlying a good-faith defense “are not sufficiently
 6   similar to the traditional purposes of qualified immunity to justify
 7   such an expansion” of immunity to private parties). Indeed, in Wyatt,
 8   several Justices opined that a good-faith defense for private
 9   individuals who rely on precedent has always existed. See id. at 174
10   (Kennedy, J., concurring) (joined by Justice Scalia in finding “support
11   in the common law for the proposition that a private individual’s
12   reliance on a statute, prior to a judicial determination of
13   unconstitutionality, is considered reasonable as a matter of law”); id.
14   at 176 (Rehnquist, J., dissenting) (joined by Justices Souter and Thomas
15   in stating “it is clear that at the time § 1983 was adopted, there
16   generally was available to private parties a good-faith defense to the
17   torts of malicious prosecution and abuse of process”) (footnote
18   omitted).

19         Since Wyatt, every Circuit Court of Appeals to have considered
20   the question has held that a good-faith defense exists under § 1983 for
21   private individuals and entities acting under the color of state law who
22   comply with applicable law, including three circuits who have
23   concluded that a good-faith defense is available to unions that relied
24   on Abood and applicable state law in collecting fair-share fees prior to




                                         7
1   Janus. 2

2           Consistent with Wyatt, a 2016 panel of this court found “a good
3   faith defense was available to a private defendant sued under § 1983
4   for a First Amendment violation.” Jarvis v. Cuomo, 660 F. App’x 72, 75


            2 See, e.g., Ogle v. Ohio Civil Serv. Emps. Ass’n, 951 F.3d 794, 797 (6th Cir. 2020)
    (“A narrow good-faith defense protects those who unwittingly cross that line 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.”); Lee v. Ohio Educ.
    Ass’n, 951 F.3d 386, 390-91 (6th Cir. 2020) (“[A] consensus has emerged among the
    lower courts that while a private party acting under color of state law does not
    enjoy qualified immunity from suit, it is entitled to raise a good-faith defense to
    liability under section 1983 [including for pre-Janus collection of fair-share fees.] . . .
    We now add our voice to that chorus.”) (citations and internal quotation marks
    omitted); Danielson v. Inslee, 945 F.3d 1096, 1097 (9th Cir. 2019) (“[j]oining a growing
    consensus” following Janus in holding that “private parties may invoke an
    affirmative defense of good faith to retrospective monetary liability under 42 U.S.C.
    § 1983, where they acted in direct reliance on then-binding Supreme Court
    precedent and presumptively-valid state law”); Janus v. AFSCME, 942 F.3d 352, 366
    (7th Cir. 2019) (holding on remand that until the Supreme Court “said otherwise,
    AFSCME had a legal right to receive and spend fair-share fees collected from
    nonmembers as long as it complied with state law and the Abood line of cases. It
    did not demonstrate bad faith when it followed these rules”); Clement v. City of
    Glendale, 518 F.3d 1090, 1097 (9th Cir. 2008) (holding that a towing company was
    entitled to assert a good-faith defense to a Fourteenth Amendment due process
    claim based on the lack of notice to a towed vehicle’s owner 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”); Jordan v. Fox, Rothschild, O’Brien
    & Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994) (recognizing a good-faith defense under
    § 1983 for due process deprivations); Wyatt v. Cole, 994 F.2d 1113, 1120 (5th Cir.
    1993), cert. denied, 510 U.S. 977 (1993) (on remand from the Supreme Court, holding
    that “private defendants, at least those invoking ex parte prejudgment statutes,
    should not be held liable under § 1983 absent a showing of malice and evidence
    that they either knew or should have known of the statute’s constitutional
    infirmity”).




                                                 8
 1   (2d Cir. 2016), cert. denied, 137 S. Ct. 1204 (2017). In Jarvis, the lack of a
 2   scienter element for a First Amendment violation did not defeat the
 3   recognition of a good-faith defense because “unlike standard defenses,
 4   affirmative defenses need not relate to or rebut specific elements of an
 5   underlying claim.” Id. (citing Black’s Law Dictionary 482 (9th ed.
 6   2009)). We find Jarvis well-reasoned. Because Appellees collected fair-
 7   share fees in reliance on directly controlling Supreme Court precedent
 8   and then-valid state statutes, their reliance was objectively reasonable,
 9   and they are entitled to a “good-faith” defense as a matter of law. See
10   Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (“There is common
11   law authority that it is objectively reasonable to act on the basis of a
12   statute not yet held invalid.”); Jarvis, 660 F. App’x at 76 (affirming the
13   district court’s application of the good-faith defense because “CSEA
14   relied on a validly enacted state law and the controlling weight of
15   Supreme Court precedent,” and thus it was “objectively reasonable for
16   CSEA ‘to act on the basis of a statute not yet held invalid’”) (quoting
17   Pinsky, 79 F.3d at 313).

18          In finding a good-faith defense, we note that nothing in Janus
19   suggests that the Supreme Court intended its ruling to be retroactive.
20   Indeed, the Janus Court held that “States and public-sector unions may
21   no longer extract agency fees from nonconsenting employees,” Janus,
22   138 S. Ct. at 2486 (emphasis supplied), and the Supreme Court
23   reversed and remanded for further proceedings rather than apply its
24   new rule to the parties before it. Cf. Harper v. Va. Dep’t of Taxation, 509
25   U.S. 86, 90 (1993) (holding that the Supreme Court’s “application of a
26   rule of federal law to the parties before the Court requires every court




                                           9
 1   to give retroactive effect to that decision”). Even if the retroactivity of
 2   Janus is presumed, no different outcome is warranted. A good-faith
 3   defense would still preclude the relief Appellants seek.

 4         Contrary to Appellants’ second argument on appeal, Appellees
 5   cannot reasonably be deemed to have forecasted whether, when, and
 6   how Abood might be overruled. Instead, they were entitled to rely on
 7   directly controlling Supreme Court precedent, and in good faith, they
 8   did so. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (holding that
 9   courts, and by extension citizens, should “follow the case which
10   directly controls, leaving to [the Supreme] Court the prerogative of
11   overruling its own decisions”).

12                             III. CONCLUSION

13         We have reviewed all of the remaining arguments raised by
14   Appellants on appeal and find them without merit. For the foregoing
15   reasons, we AFFIRM the April 29, 2019 judgment of the District Court.




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