                                           PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   ___________

                 Nos. 19-2812 and 19-3906


   ARTHUR DIAMOND, on behalf of himself and others
                       similarly situated;
   JEFFREY SCHAWARTZ; SANDRA H. ZIEGLER, on
                      behalf of themselves
others similar situated; MATTHEW SHIVELY; MATTHEW
                          SIMKINS;
          DOUGLAS R. KASE; JUSTIN BARRY,

                           Appellants in case no. 19-2812

                              v.

 PENNSYLVANIA STATE EDUCATION ASSOCIATION;
    CHESTNUT RIDGE EDUCATION ASSOCIATION,
         as representative of the class of all chapters and
  affiliates of the Pennsylvania State Education Association;
      NATIONAL EDUCATION ASSOCIATION; JOSH
                            SHAPIRO,
 in his official capacity as Attorney General of Pennsylvania;
JAMES M. DARBY; ALBERT MEZZAROBA; ROBERT H.
                           SHOOP, JR.,
  in their official capacities as chairman and members of the
                           Pennsylvania
 Labor Relations Board; LESLEY CHILDER-POTTS, in her
                         official capacity
as district attorney of Bedford County, and as representative
                            of the class
of all district attorneys in Pennsylvania with the authority to
                       prosecute violations
                        of 71 Pa. Stat. 575


    JANINE WENZIG and CATHERINE KIOUSSIS,

                           Appellants in case no. 19-3906

                              v.

  SERVICE EMPLOYEES INTERNATIONAL UNION
                LOCAL 668


     On Appeal from the United States District Court
 for the Western District of Pennsylvania and the Middle
                  District of Pennsylvania
 (District Court Nos.: 3-18-cv-00128 and 1-19-cv-01367)
  District Judges: Honorable Kim Gibson and Honorable
                   Malachy E. Mannion


                   Argued April 24, 2020

             (Opinion Filed: August 28, 2020)

Before: PHIPPS, RENDELL, and FISHER, Circuit Judges




                              2
Joseph F. Canamucio, Esq.
Pennsylvania State Education Association
400 North Third Street
Harrisburg, PA 17101

Leon Dayan, Esq. [ARGUED]
Bredhoff & Kaiser
805 15th Street, N.W.
Suite 1000
Washington, DC 20005

Jacob Karabell, Esq.
Bredhoff & Kaiser
805 15th Street, N.W.
Suite 1000
Washington, DC 20005

John M. West, Esq.
Bredhoff & Kaiser
805 15th Street, N.W.
Suite 1000
Washington, DC 20005

             Counsel for Appellees Pennsylvania State
             Education Association, et al.

Daniel B. Mullen, Esq.
Office of Attorney General of Pennsylvania
1251 Waterfront Place
Mezzanine Level
Pittsburgh, PA 15222




                             3
            Counsel for Appellees Attorney General Joshua
            D. Shapiro, et al.

Jonathan F. Mitchell, Esq. [ARGUED]
Direct: 512-686-3940
Email: jonathan@mitchell.law
Fax: 512-686-3941
[COR NTC Retained]
Suite 400
111 Congress Avenue
Austin, TX 78701

            Counsel for Appellants Arthur Diamond, et al.

Meredith Johnson, Esq.
Altshuler Berzon
177 Post Street
Suite 300
San Francisco, CA 94108

Scott A. Kronland, Esq.
Altshuler Berzon
177 Post Street
Suite 300
San Francisco, CA 94108

P. Casey Pitts, Esq. [ARGUED]
Altshuler Berzon
177 Post Street
Suite 300
San Francisco, CA 94108




                            4
              Counsel for Appellee Service Employees
              International Union Local 668

Charles O. Beckley, II, Esq.
Beckley & Madden
212 North Third Street
Suite 301
Harrisburg, PA 17108

Brian Kelsey, Esq. [ARGUED]
Liberty Justice Center
190 South LaSalle Street
Suite 1500
Chicago, IL 60603

William L. Messenger, Esq.
National Right to Work Legal Defense Foundation
8001 Braddock Road
Suite 600
Springfield, VA 22151

              Counsel for Appellants Janine Wenzig and
              Catherine Kioussis



                      O P I N I O N


RENDELL, Circuit Judge:

      In reliance on a Pennsylvania statute and the Supreme
Court’s decision in Abood v. Detroit Bd. of Educ., 431 U.S. 209
(1977), Appellee Unions, the Service Employees International




                               5
Union Local 668 and the Pennsylvania State Education
Association, collected “fair-share fees” from Appellants over
Appellants’ objections. But the Supreme Court overruled
Abood in Janus v. AFSCME Council 31, holding that state
legislation condoning public-sector fair-share fees was
unconstitutional. 138 S. Ct. 2448 (2018) (“Janus I”). Now,
Appellants bring these § 1983 lawsuits seeking reimbursement
of the sums they were required to pay. The District Courts,
joining a consensus of federal courts across the country,
dismissed Appellants’ claims for monetary relief, ruling that
because the Unions collected the fair-share fees in good faith
reliance on a governing state statute and Supreme Court
precedent, they are entitled to, and have successfully made out,
a good faith defense to monetary liability under § 1983. We
will affirm.

                                I

A.     Legal background

        Labor laws in the United States have long authorized
employers and labor organizations to bargain for an “agency
shop,” an arrangement in which one union is allowed to
exclusively represent an entity’s employees on the condition
that the union represent all the entity’s employees—even those
who do not join the union. See, e.g., Janus I, 138 S. Ct. at 2460;
45 U.S.C. § 152 (Railway Labor Act); 29 U.S.C. § 159
(National Labor Relations Act). Agency shop arrangements
are intended to promote uniform bargaining, streamlined
administration, and other interests, but they also create an
incentive for employees to decline to join their union (and
therefore avoid paying dues) while still accruing the benefits
of union representation. See, e.g., Janus I, 138 S. Ct. at 2465-
69 (describing the intended purpose of agency shops to create




                                6
“labor peace” and describing the hypothetical potential for
“free rider” problems in agency shop arrangements). To
address this incentive, Congress often allowed unions and
employers who opt for an agency shop arrangement to require
all employees either to join the union and pay dues or, if an
employee does not join the union, to nonetheless contribute to
the costs of representation, bargaining, and administration of
bargaining agreements. This requirement that non-members
pay some form of union dues is often referred to as a “fair-
share” fee, and is present in various pieces of federal
legislation, including, for instance, the Railway Labor Act, 45
U.S.C. § 152, and the National Labor Relations Act, 29 U.S.C.
§§ 157, 158(a)(3).

        The Supreme Court has upheld the constitutionality of
these agency shop arrangements, including fair-share fees. For
instance, in Railway Employees’ Dep’t v. Hanson, the Supreme
Court ruled that the Railway Labor Act’s provisions allowing
agency shop arrangements and fair-share fees did not violate
the First Amendment. 351 U.S. 225, 236-38 (1956). Although
the employees in that case argued that the agency shop
“agreement forces men into ide[o]logical and political
associations which violate their right to freedom of conscience,
freedom of association, and freedom of thought protected by
the Bill of Rights,” id. at 236, the Court “h[e]ld that the
requirement for financial support of the collective-bargaining
agency by all who receive the benefits of its work . . . does not
violate” the First Amendment, id. at 238. The Supreme Court
later reaffirmed this ruling. See Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 749 (1961) (affirming the
constitutionality of the Railway Labor Act’s agency shop and
fair-share provisions).




                               7
       Eventually, state legislatures across the country passed
laws authorizing public-sector unions to collect fair-share fees
and bargain for agency shop arrangements with state
government employers. In Abood, the Supreme Court affirmed
the constitutionality of one such law, a Michigan statute
permitting state employers to negotiate for agency shop
arrangements and fair-share fees with the public-sector unions
that represented their employees. 431 U.S. at 224-26. The
Abood Court ruled that the important government interests in
creating functional and peaceful labor relations and preventing
the free rider problem “support the impingement upon
associational freedom created by the agency shop.” Id. at 225.
Although the Court recognized that the “government may not
require an individual to relinquish rights guaranteed [] by the
First Amendment as a condition of public employment,” id.
at 234, the Court held that there was no reason to distinguish
Abood from cases like Hanson that had upheld agency shop
arrangements in the private sector, id. at 232 (holding that the
“differences between public- and private-sector collective
bargaining simply do not translate into differences in First
Amendment rights”).

       But the Abood Court also ruled that—as in the private
sector—non-members’ fair-share fees could only be used to
pay for union activities that were “germane to [the union’s]
duties as collective-bargaining representative,” but not the
union’s political or other work. Id. at 235. In the Abood
Court’s view, this limitation struck an appropriate balance
between the non-members’ speech rights under the First
Amendment and the government’s interests in regulating labor
relations. Id. at 237 (describing the Court’s ruling as
“preventing compulsory subsidization of ideological activity
by employees who object . . . without restricting the [u]nion’s




                               8
ability to require every employee to contribute to the cost of
collective-bargaining activities”). Over the course of the
following four decades, the Supreme Court affirmed its
holding in Abood against similar challenges to the
constitutionality of state laws allowing for agency shop
arrangements between public-sector employers and public-
sector unions. See, e.g., Lehnert v. Ferris Faculty Ass’n, 500
U.S. 507 (1991); Locke v. Karass, 555 U.S. 207 (2009);
Friedrichs v. Cal. Tchrs. Ass’n, 136 S. Ct. 1083 (2016) (per
curiam) (equally divided Court affirming without opinion).

       In light of Abood, Pennsylvania enacted a law allowing
public-sector agency shop arrangements and authorizing
unions that serve as exclusive representatives to collect fair-
share fees. See 71 Pa. Stat. and Cons. Stat. Ann. § 575 (West
2020). Under section 575(b), “[i]f the provisions of a
collective bargaining agreement so provide, each nonmember
of a collective bargaining unit shall be required to pay to the
exclusive representative a [fair-share] fee.” Fair-share fees
could consist of normal dues minus “the cost for the previous
fiscal year of [the union’s] activities or undertakings which
were not reasonably employed to implement or effectuate the
duties of the employe[e] organization as exclusive
representative.” Id. § 575(a). The law also set forth the
procedure by which fair-share fees would be deducted from
non-member employees’ paychecks, see id. § 575(c), and a
procedure through which non-member employees could obtain
information about how their fees were used, see § 575(d). If
this information reflected any improper uses, non-members
could challenge the fair-share fees. See id. § 575(e).

      In 2018, the Supreme Court “overruled” Abood. Janus
I, 138 S. Ct. at 2460. Holding that Abood “was poorly
reasoned” and led to “practical problems and abuse,” the Court




                              9
ruled that Abood was “inconsistent with other First
Amendment cases” and was not entitled to continued
precedential status. Id. The Janus I Court held that Abood had
mischaracterized the government’s interests in promoting
“labor peace” and preventing “free-riders.” Id. at 2465-70.
Whereas the Abood Court had decided that those interests
justified the fair-share fee laws’ impingement on the union
non-members’ speech rights, the Court in Janus I stated that,
instead, “‘labor peace’ can readily be achieved through means
significantly less restrictive of associational freedoms,” and
that “avoiding free riders is not a compelling interest.” Id. at
2466 (internal quotation marks and citations omitted).

        Accordingly, “the First Amendment does not permit the
government to compel a person to pay for another party’s
speech just because the government thinks that the speech
furthers the interests of the person who does not want to pay.”
Id. at 2467. State legislation allowing public-sector employers
and public-sector unions to collect fair-share fees
unconstitutionally forced non-members “to subsidize a union,
even if they choose not to join and strongly object to positions
the union takes in collective bargaining and related activities,”
and thereby compelled non-members “to subsidize private
speech on matters of substantial public concern.” Id. at 2459-
60. On this basis, the Court ruled that “[s]tates and public-
sector unions may no longer extract agency fees from
nonconsenting employees.” Id. at 2486. Therefore, under
Janus I, Pennsylvania’s public sector agency shop law was no
longer constitutional.1


1
 We assume without deciding that the right announced by the
Supreme Court in Janus I is retroactive. Janus v. AFSCME,
Council 31, 942 F.3d 352, 360 (7th Cir. 2019) (“Janus II”)




                               10
B. Factual background

       1.     Diamond facts

        Plaintiff Arthur Diamond and his six co-plaintiffs (the
“Diamond Plaintiffs”) are current or former teachers in
Pennsylvania public schools. They were not members of the
Pennsylvania State Education Association (“PSEA”), the
union that exclusively represented their bargaining unit. But
PSEA’s collective bargaining agreement contained a fair-share
clause that required they pay fair-share fees to either the union
or to a union-approved nonreligious charity. See Diamond
Appellants’ Br. at 5 (citing D.A. 73-74). Only Diamond paid
his fair-share fee to PSEA. Id. at 6. The other six Plaintiffs
directed their fees to be diverted to nonreligious charities,
though Sandra H. Ziegler did not identify a charity. Id. at 5-6.
The fair-share fees were no longer collected after June 27,



(“Rather than wrestle the retroactivity question to the ground,
we think it prudent to assume for the sake of argument that the
right recognized” by the Supreme Court in Janus I is
retroactive.); Danielson v. Inslee, 945 F.3d 1096, 1099 (9th
Cir. 2019) (“[W]e will assume that the right delineated in
[Janus I] applies retroactively and proceed to a review of
available remedies.”); Lee v. Oh. Educ. Ass’n, 951 F.3d 386,
389 (6th Cir. 2020) (“[T]he most prudent course of action is to
assume without deciding that the right recognized in [Janus I]
has retroactive application.”). Even if Janus I is retroactive,
the good faith defense may constitute a “previously existing,
independent legal basis” for denying the Appellants’ claims.
See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759
(1995).




                               11
2018, the date that the Supreme Court issued its decision in
Janus I. A. 74, 93-96.

       The Diamond Plaintiffs originally sued PSEA on the
same theory as the plaintiffs in Janus I, but once the Supreme
Court ruled in that case, the Diamond Plaintiffs amended their
Complaint to seek repayment of the fair-share fees they had
previously paid to their union. See Diamond Appellants’ Br.
at 6. PSEA moved to dismiss the amended complaint, arguing
that because it had collected the fees in good faith reliance on
a Pennsylvania statute and pre-Janus I Supreme Court
precedent authorizing fair-share fees, they could not be held
liable for monetary damages. Id. at 7. The District Court
granted the motion to dismiss, ruling that because PSEA had
relied on a prevailing state statute and federal caselaw, they
were entitled to a good faith defense to § 1983 liability that
barred the Diamond Plaintiffs’ claims. D.A. 50-51. The
Diamond Plaintiffs timely appealed. D.A. 1.

       2.     Wenzig facts

       Janine Wenzig and Catherine Kioussis (the “Wenzig
Plaintiffs”) work for the Commonwealth of Pennsylvania.
W.A. 8. Like the Diamond Plaintiffs, they were forced to pay
fair-share fees to their union, the Service Employees
International Union Local 668, without their consent. Id.
Their bargaining unit’s CBA contained the following
provision:

       The Employer further agrees to deduct a [fair-
       share] fee from all compensation paid to all
       employees in the bargaining unit who are not
       members of the Union. Authorization from non-
       members to deduct [fair-share] fees shall not be




                              12
       required. The amounts to be deducted shall be
       certified to the Employer by the Union and the
       aggregate deductions of all employees shall be
       remitted together with an itemized statement to
       the Union by the last day of the succeeding
       month after such deductions are made.

Wenzig App. 42.

       More than a year after Janus I was issued, the Wenzig
Plaintiffs filed suit on behalf of themselves and a putative class
of similarly situated employees to recover damages under
§ 1983 for the fair-share fees that they had paid to their union.
See Wenzig Appellants’ Br. at 3. They sought a declaratory
judgment that the union’s pre-Janus I collection of fair-share
fees violated the First Amendment and repayment of all fair-
share fees that were collected. W.S.A. 9.

       The SEIU filed a motion to dismiss their claims, which
the District Court granted. The District Court ruled the good
faith defense shielded the union from monetary liability for
collecting fair-share fees in good faith reliance on then-
prevailing Supreme Court precedent. W.A. 16. The Wenzig
Plaintiffs timely appealed, and their case was consolidated for
argument and opinion with the Diamond Plaintiffs’ case.
W.A.1.

                               II

       The District Courts had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343. We have jurisdiction under 28
U.S.C. § 1291. We review the District Courts’ judgments
granting the Defendants’ motions to dismiss de novo. See, e.g.,




                               13
Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1
(3d Cir. 2014).

                              III

         We are not the first court of appeals to rule on this
question, and we join a growing consensus of our sister circuits
who, in virtually identical cases, have held that because the
unions collected the fair-share fees in good faith reliance on a
governing state statute and Supreme Court precedent, they are
entitled to a good faith defense that bars Appellants’ claims for
monetary liability under § 1983. See Janus v. AFSCME,
Council 31, 942 F.3d 352 (7th Cir. 2019) (“Janus II”); Mooney
v. Ill. Educ. Ass’n, 942 F.3d 368 (7th Cir. 2019); Danielson v.
Inslee, 945 F.3d 1096 (9th Cir. 2019); Lee v. Oh. Educ. Ass’n,
951 F.3d 386 (6th Cir. 2020); Ogle v. Ohio Civil Serv. Emps.
Ass’n, AFSCME Local 11, 951 F.3d 794 (6th Cir. 2020);
Wholean v. CSEA SEIU Local 2001, 955 F.3d 332 (2d Cir.
2020).

A.     Private parties may assert a good faith defense to
       § 1983 liability.

        42 U.S.C. § 1983 creates a cause of action for plaintiffs
who are injured by a person who, acting “under color of any
statute . . . of any State,” causes the plaintiff to suffer “the
deprivation of any rights, privileges, or immunities secured by
the Constitution.” Appellants assert that the Unions—acting
under color of a Pennsylvania statute—caused them to be
deprived of their First Amendment rights when the Unions
collected fair-share fees from Appellants’ paychecks.

       In Lugar v. Edmondson Oil Co., the Supreme Court held
that § 1983 allows suits against private parties acting under




                               14
color of state law. 457 U.S. 922, 941 (1982). Under Lugar, a
private party may be liable under § 1983 when the private-
party defendant deprived the plaintiff of a constitutional right
by exercising “a right or privilege having its source in state
authority” and where the private-party defendant may be
“appropriately characterized as [a] ‘state actor[].’” Id. at 939.2
But while the Lugar Court confirmed that private-party
defendants may be subject to suit under § 1983, the Court also
recognized a “concern” that its ruling could unfairly subject
these private entities to liability even though the private parties
had “innocently [made] use of seemingly valid state laws.” Id.
at 942 n.23.

        Despite voicing this “concern,” the Court in Lugar left
open the question of whether private parties may avail
themselves of immunity to suit. Id. In Wyatt v. Cole, the
Supreme Court answered this question, ruling that immunity is
reserved for governmental entities, not private parties subject
to suit under § 1983. 504 U.S. 158, 168 (1992). The Court
nonetheless noted—without explicitly ruling—that “principles
of equality and fairness may suggest . . . that private citizens
who rely unsuspectingly on state laws they did not create and
may have no reason to believe are invalid should have some
protection from liability.” Id. But the Court left the question
of whether private-party defendants are entitled to a “defense
based on good faith” for “another day.” Id. at 169. Later, the


2
   Under Lugar, a private party may be appropriately
characterized as a state actor where the private party “is a state
official, . . . has acted together with or has obtained significant
aid from state officials, or [where its] conduct is otherwise
chargeable to the State.” Lugar, 457 U.S. at 937. Appellants
do not challenge the Unions’ statuses as state actors.




                                15
Supreme Court again alluded to, without adopting, this good
faith defense. See Richardson v. McKnight, 521 U.S. 399, 414
(1997) (“Like the Court in Wyatt, . . . we do not express a view
on [the good faith defense].”).

        We addressed this open question shortly after Wyatt was
issued. In Jordan v. Fox, Rothschild, O’Brien & Frankel, we
held that a “good faith defense is available” to private parties
who act under color of state law and are sued for monetary
liability under § 1983. 20 F.3d 1250, 1277 (3d Cir. 1994). We
stated our “basic agreement” that “private defendants 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.” Id. at 1276 (citations
omitted). We noted that good faith gives private defendants “a
defense that depends on their subjective state of mind, rather
than the more demanding objective standard of reasonable
belief that governs qualified immunity.” Id. at 1277.3


3
  In his concurrence, JUDGE FISHER suggests that a historical
approach to the issue of good faith requires a complex analysis
based on common law. He asserts that the various opinions in
Wyatt imply “that any limitation on private-party liability must
be grounded in the common-law approach.” Fisher Op. at I.C.
JUDGE PHIPPS similarly urges that the good faith defense
should be available if and only if a “deeply rooted common-
law tradition exists” to support it. See Phipps Op.
   I can find no such implication, let alone any directive to that
effect. Indeed, the point—the very narrow ruling—of the
majority in Wyatt is that qualified immunity is uniquely a
creature of common law to which private parties are not
entitled. And the Wyatt concurrence’s statement (which Judge
Fisher quotes as the basis for this implication), that “[w]e may




                               16
not transform what existed at common law based on our
notions of policy or efficiency,” 504 U.S. at 171-72, did no
more than provide support for the majority’s reasoning
rejecting an expansion of the concept of qualified immunity,
and speaks not at all to the issue of the good faith defense or its
contours.
   JUDGE FISHER also suggests that my reading of Jordan is
“expansive[],” Fisher Op. at II.B., and JUDGE PHIPPS “does not
see a valid basis for recognizing such a defense,” Phipps Op.,
but urges that, instead, our adoption of the good faith defense
in Jordan was a “misnomer,” id.
   I disagree. In Jordan, we embraced the good faith defense
and opined on the contours of its relatively modest
requirements. 20 F.3d at 1275-77. We concluded that good
faith gives private actors a defense that depends on their
“subjective state of mind,” id. at 1277, and looked to whether
the private party acted with “malice” or “either knew or should
have known of the statute’s constitutional infirmity,” id. at
1276. And I note that, importantly, in Jordan, we made no
mention of the common-law approach. Jordan is controlling
precedent as to the legal standard that we apply in this case.
   And let us be clear: we are not talking about an across-the-
board good faith defense to a § 1983 action that is inconsistent
with the common law. Instead, we are talking about
prohibiting monetary liability when a private-party defendant
acted in good faith reliance on a statute enacted in accordance
with binding Supreme Court precedent in a situation that has
no exact analogue at common law. Doesn’t the analogy to
abuse of process in note 4 below—or, in its own way, JUDGE
FISHER’s intensive historical analysis—make that very point?
See also, e.g., Janus II, 942 F.3d at 365 (noting that no common
law tort “is a perfect fit”).




                                17
B.     Appellants’ § 1983 claims are barred by the Unions’
       good faith defense.

        Jordan therefore established that the good faith defense
is available to a private-party defendant in a § 1983 case if,
after considering the defendant’s “subjective state of mind,” id.
at 1277, the court finds no “malice” and no “evidence that [the
defendant] either knew or should have known of the statute’s
constitutional infirmity,” id. at 1276.

There was no such finding of malice or knowledge in Jordan,
and, similarly here, Appellants have not asserted that either of
these disqualifying factors is implicated. Indeed, as noted
above, the Unions’ collection of fair-share fees was authorized
by over four decades of Supreme Court precedent and a
Pennsylvania statute, 71 Pa. Stat. and Cons. Stat. Ann. § 575
(West 2020), that explicitly authorized fair-share fees for
public-sector unions like the Unions. Accordingly, in this case,
Appellants cannot possibly make any “showing of malice” or
demonstrate that the Unions “either knew or should have
known of [§ 575]’s constitutional infirmity.” Jordan, 20 F.3d
at 1276 (citation omitted). The Unions are therefore entitled to
the good faith defense under Jordan.



   This is not the huge jurisprudential leap that my colleagues
urge. This is a reasonable way to afford private parties some
of the protection that government actors are afforded when
they act in a situation in which the existing state and federal
law explicitly condoned their behavior. Do we need to chart a
complex path to ensure that this underlying principle is
recognized? We did not in Jordan, and we do not need to do
so here.




                               18
        Moreover, “principles of equality and fairness,” Wyatt,
504 U.S. at 168, independently weigh in favor of the Unions
being protected from suit. It is fair—and crucial to the
principle of rule of law more generally—that private parties
like the Unions should be able to rely on statutory and judicial
authorization of their actions without hesitation or fear of
future monetary liability. Janus II, 942 F.3d at 366 (“The Rule
of Law requires that parties abide by, and be able to rely on,
what the law is . . . .”); Danielson, 945 F.3d at 1105 (finding
that the defendant unions did “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”); Wholean, 955 F.3d at 336 (noting that unions
“cannot reasonably be deemed to have forecasted whether,
when, and how Abood might be overruled” and holding that
they “were entitled to rely on directly controlling Supreme
Court precedent”).

        Appellants present numerous arguments that the good
faith defense should not bar their claims against the Unions.
First, Appellants urge us to rule that the good faith defense only
applies to § 1983 suits that allege theories of liability for which
the most analogous common law tort requires malice or
probable cause. We decline to do so for several reasons. First,
Wyatt applied this most analogous tort concept in considering
the way courts have analyzed immunity from suit under
§ 1983. The Wyatt Court did not mention this concept in
relation to the good faith defense and there is no reason to think
that it would apply a historical immunity analysis to what it
obviously considered to be a distinct good faith analysis. See
Wyatt, 504 U.S. at 168. Other courts have concurred in this
view. See Danielson, 945 F.3d at 1101 (observing that Wyatt’s
discussion of the most closely analogous common law tort




                                19
“applies only to . . . qualified immunity” and not to the good
faith defense); Janus II, 942 F.3d at 365 (“[T]he Supreme
Court in Wyatt [] 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.”); Lee, 951 F.3d at 392. In any event, because
the legal basis for § 1983 immunity is distinct from the legal
basis for the good faith defense, we see no independent reason
to adopt the most analogous common law tort inquiry here. See
Danielson, 945 F.3d at 1101 (“The rationales behind
[immunity and the good faith defense], and their limitations,
are not interchangeable.”). Instead, as noted above, our
decision is based on the “principles of equality and fairness”
identified in Wyatt. 504 U.S. at 168.4


4
  We note that the Appellants did not urge (or even suggest)
that we delve into the historical “common-law approach” with
the level of historical detail and specificity that JUDGE
FISHER’s concurrence would require, so we need not consider
it. Our sister circuits have construed what JUDGE FISHER refers
to broadly as the “common-law approach” as a narrower most
analogous common law tort approach, and, although they
ultimately reject the idea that this approach should be
incorporated into our analysis, they have uniformly determined
that, even if we were to adopt this mode of analysis, abuse of
process is the most analogous common law tort on these facts.
See Janus II, 942 F.3d at 365; Danielson, 945 F.3d at 1102;
Lee, 951 F.3d at 392 n.2; cf. Ogle, 951 F.3d at 797. Abuse of
process, which provides a “cause[] of action against private
defendants for unjustified harm arising out of the misuse of
governmental processes,” Wyatt, 504 U.S. at 164, corresponds
to the Unions’ use of a Pennsylvania statute to collect fair-share




                               20
        Next, Appellants cite numerous cases in which
defendants who have taken money or property in violation of a
plaintiff’s constitutional rights have been required to disgorge
or return the money or property. First, most of these cases
involved government defendants, not private parties. But in
addition, one of the main considerations in Abood was the
benefit conferred on plaintiffs by the union activities. This has
no role in the various cases cited by Appellants. But it does
play a role when we are considering fairness because
Appellants benefitted from the fair-share fees they paid. Thus,
we are not disputing that a cause of action for return of money
or property exists for Appellants. We are merely saying that
principles of fairness make this situation different.

       Third, Appellants urge that the good faith defense does
not apply to claims for restitution, which they allegedly seek.
But contrary to their urging, Appellants’ claims do not
constitute claims for restitution. “[R]estitution in equity
typically involved enforcement of a constructive trust or an
equitable lien, where money or property identified as
belonging in good conscience to the plaintiff could clearly be
traced to particular funds or property in the defendant’s
possession.” Montanile v. Bd. of Trustees of Nat’l Elevator
Indus. Health Benefit Plan, 136 S. Ct. 651, 657 (2016)


fees through government employer payroll withholding.
Abuse of process also requires a showing of malice and
probable cause, which would support the availability of the
good faith defense here. Id.; see also Jordan, 20 F.3d at 1275-
77. So, although JUDGE FISHER’s opinion goes well beyond an
analogy to abuse of process in its “common-law approach,” see
Fisher Op. at II.B.-III.B., I would not go so far, even if I were
to look to the common law for guidance on this issue.




                               21
(quotation marks and citation omitted). In contrast, where a
plaintiff pursues a “personal claim against the defendant’s
general assets,” then that plaintiff is seeking “a legal remedy,
not an equitable one.” Id. at 658. Appellants have not
demonstrated that their lawsuit seeks recovery from anything
more specific than the Unions’ general assets, and therefore
they fail to persuade us that they are suing for restitution. See
also Mooney, 942 F.3d at 371 (finding that the plaintiff’s claim
was “[i]n substance . . . one for damages”); Danielson, 945
F.3d at 1102-03; Lee, 951 F.3d at 391.

        Appellants next theorize that the Unions can only avoid
liability—even if there is a good faith defense—if they acted
appropriately to benefit Appellants as Abood reasoned. Thus,
they urge that the District Courts should not have dismissed
their claims without allowing discovery as to whether the
Unions’ conduct was consistent with what Abood required.
But because Appellants have pled an entitlement to return of
their money based on Janus I, not on the Unions’ conduct, this
argument falls flat. See Danielson, 945 F.3d at 1105 (noting
that because plaintiffs’ “claims arise from the [u]nion’s
reliance on Abood, not allegations that the [u]nion flouted that
authority, the [u]nion need not show compliance with Abood’s
strictures to assert successfully a good faith defense”); Lee, 951
F.3d at 392 (“[I]f Defendants improperly spent the fair-share
fees, Plaintiff would have an independent Abood claim but it
would not render the exaction of the fee an act in bad faith.”
(citation omitted)).

        Finally, Appellants argue that an “entity”—as opposed
to an “individual”—cannot invoke the good faith defense. But
this argument is plainly contradicted by our ruling in Jordan,
which made the good faith defense available to a law firm.
Jordan, 20 F.3d at 1277; see also Danielson, 945 F.3d at 1100




                               22
(rejecting argument that only individuals may invoke the good
faith defense). Appellants’ argument that the good faith
defense is incompatible with the text of § 1983 falls flat for the
same reason: Jordan involved a § 1983 cause of action.
Jordan, 20 F.3d at 1277.

                               IV

       As Judge Wood noted in Janus II, the good faith defense
to section 1983 liability is “narrow” and “only rarely will a
party successfully claim to have relied substantially and in
good faith on both a state statute and unambiguous Supreme
Court precedent validating that statute.” 942 F.3d at 367. In
this unique circumstance, the good faith defense applies here
to protect the Unions from monetary liability under § 1983.
Accordingly, we will affirm the District Courts’ judgments.




                               23
Diamond v. Pa. State Educ. Ass’n, No. 19-2812
Wenzig v. Serv. Emps. Int’l, No. 19-3906


FISHER, Circuit Judge, concurring in the judgment.
        In April 1871, Congress passed, and President Grant
signed, an extraordinary act, variously called the Ku Klux Klan
Act, Third Force Act, or Civil Rights Act of 1871. On its face,
the first section of that act—what we now know as 42 U.S.C.
§ 1983—provided its violators no immunities from or defenses
to liability. See Act of Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13,
13. Of course, the Supreme Court has since read immunities
and defenses into § 1983, but it has done so principally on the
conceit that they were available at common law in 1871, and
implicitly incorporated into the statute. While this approach
certainly limits the scope of liability, it also constrains judges
from straying too far from the statutory text. In only one
context has the Court invented a freestanding defense: the
qualified immunity of certain state officials. Whatever might
be said for that doctrine—and it is increasingly under
scrutiny—I believe that the precedent of neither the Supreme
Court nor our own Court warrants another divergence from the
common-law approach in the present context. And however
strongly considerations of equality and fairness might
recommend such action, it is beyond our remit to invent
defenses to § 1983 liability based on our views of sound policy.
I must, therefore, respectfully disagree with the reasoning of
JUDGE RENDELL’s opinion announcing the Court’s judgment.
       Nevertheless, I concur in the affirmance of the District
Courts’ orders. There was available in 1871, in both law and
equity, a well-established defense to liability substantially
similar to the liability the unions face here. Courts consistently




                                1
held that judicial decisions invalidating a statute or overruling
a prior decision did not generate retroactive civil liability with
regard to financial transactions or agreements conducted,
without duress or fraud, in reliance on the invalidated statute
or overruled decision. Because this defense comports with the
history and purposes of § 1983, I conclude that it is available
to the unions here and supports the dismissal of the plaintiffs’
complaints.
                                I
                               A
        Section 1983 “cannot be understood in a historical
vacuum.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
258 (1981). Despite the statute’s “general language,” Tenney v.
Brandhove, 341 U.S. 367, 376 (1951), creating a form of
liability in law and equity that seemingly “admits no
immunities,” Tower v. Glover, 467 U.S. 914, 920 (1984), the
Supreme Court has consistently construed § 1983 “in the light
of common-law principles that were well settled at the time of
its enactment,” Kalina v. Fletcher, 522 U.S. 118, 123 (1997).
Those principles “provide the appropriate starting point” for
“defining the elements of damages [under § 1983] and the
prerequisites for their recovery,” Carey v. Piphus, 435 U.S.
247, 257-58 (1978), including any available immunities and
defenses, see Pulliam v. Allen, 466 U.S. 522, 529 (1984).
        The paradigm application of this common-law approach
has been the absolute immunity of legislators, judges, and
certain other state officials. Congress, the Supreme Court has
said, gave “no clear indication” in passing § 1983 that it “meant
to abolish wholesale all common-law immunities.” Pierson v.
Ray, 386 U.S. 547, 554 (1967); see also Bauers v. Heisel, 361
F.2d 581, 587-88 (3d Cir. 1966) (en banc). As a result, when an
official asserts absolute immunity, the Court has demanded “a




                                2
considered inquiry into the immunity historically accorded the
relevant official at common law and the interests behind it.”
Imbler v. Pachtman, 424 U.S. 409, 421 (1976). This inquiry
involves “consult[ing] the common law to identify those
governmental functions that were historically viewed as so
important and vulnerable to interference by means of litigation
that some form of absolute immunity from civil liability was
needed.” Rehberg v. Paulk, 566 U.S. 356, 363 (2012); see also
Burns v. Reed, 500 U.S. 478, 484-86 (1991); Imbler, 424 U.S.
at 422-24; Pierson, 386 U.S. at 553-54; Tenney, 341 U.S. at
376. While the scope of immunity at common law in 1871 does
not exclusively define its scope under § 1983—the statute is
not “simply a federalized amalgamation of pre-existing
common-law claims,” Rehberg, 566 U.S. at 366—the inquiry
nevertheless remains grounded in historical analogy. Judges
“do not have a license to create immunities based solely on
[their] view of sound policy.” Id. at 363.
        Even when absolute immunity does not apply, the Court
has still employed the common law approach. To “defin[e] the
contours and prerequisites of a § 1983 claim,” Manuel v. City
of Joliet, 137 S. Ct. 911, 920 (2017), it has read the statute
“against the background of tort liability that makes a man
responsible for the natural consequences of his actions.”
Monroe v. Pape, 365 U.S. 167, 187 (1961); see also Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06 (1986). In
particular, the Court has looked to “[t]he common-law cause of
action . . . [that] provides the closest analogy to claims of the
type considered” pursuant to § 1983. Heck v. Humphrey, 512
U.S. 477, 484 (1994); see also Nieves v. Bartlett, 139 S. Ct.
1715, 1726 (2019). Yet here too, the elements and limitations
of a § 1983 claim will not necessarily be co-extensive with the
most analogous common-law cause of action. “Common-law
principles are meant to guide rather than to control the




                               3
definition of § 1983 claims,” and so “[i]n applying, selecting
among, or adjusting common-law approaches, courts must
closely attend to the values and purposes of the constitutional
right at issue.” Manuel, 137 S. Ct. at 921.
                                B
        The singular exception to this practice is the doctrine of
qualified immunity. Early on, the Court did refer to the
common law. In Pierson, which concerned common-law and §
1983 claims against police officers, the Court held that because
“the defense of good faith and probable cause” was “[p]art of
the background of tort liability[] in the case of police officers
making an arrest,” it was available to the officers in the § 1983
action as well as the common-law action. 386 U.S. at 556-57
(citing Monroe, 365 U.S. at 187). Soon, however, as it
confronted cases involving other executive officials, the Court
generalized this defense without regard to its common-law
moorings. “[T]he relevant question” became “whether [the
official] ‘knew or reasonably should have known that the
action he took within his sphere of official responsibility would
violate the constitutional rights of [the plaintiff], or if he took
the action with the malicious intention to cause a deprivation
of constitutional rights or other injury to [the plaintiff].’”
O’Connor v. Donaldson, 422 U.S. 563, 577 (1975) (quoting
Wood v. Strickland, 420 U.S. 308, 322 (1975)); see also
Procunier v. Navarette, 434 U.S. 555, 561-62 (1978); Scheuer
v. Rhodes, 416 U.S. 232, 247 (1974).
       This drift culminated in Harlow v. Fitzgerald, 457 U.S.
800 (1982), where “the Court completely reformulated
qualified immunity along principles not at all embodied in the
common law,” Anderson v. Creighton, 483 U.S. 635, 645




                                4
(1987).1 The Court abandoned any reference to a subjective
good-faith standard, noting that such “[i]nquiries . . . can be
peculiarly disruptive of effective government.” Harlow, 457
U.S. at 817. Instead, the question was now purely one of
objective reasonableness, and it would apply “across the
board,” id. at 821 (Brennan, J., concurring) (citation omitted),
to all “government officials performing discretionary
functions,” id. at 818 (majority opinion).
        Yet even as it departed from the common-law model,
the Court indicated its unwillingness to extend Harlow’s
policy-based rationale to other contexts. “We reemphasize,” it
said in 1986, “that our role is to interpret the intent of Congress
in enacting § 1983, not to make a freewheeling policy choice,
and that we are guided in interpreting Congress’ intent by the
common-law tradition.” Malley v. Briggs, 475 U.S. 335, 342
(1986); see also Filarsky v. Delia, 566 U.S. 377, 389 (2012)
(“Nothing about the reasons we have given for recognizing
immunity under § 1983 counsels against carrying forward the
common law rule.”). Outside of qualified immunity, the
“general approach” remained the same: a court first determines
“whether an official claiming immunity under § 1983 can point
to a common-law counterpart to the privilege he asserts”; if a
sufficiently analogous counterpart exists, the court is then to
“consider[] whether § 1983’s history or purposes nonetheless
counsel against recognizing the same immunity in § 1983
actions.” Malley, 475 U.S. at 339-40 (citation omitted).


1
 Although Harlow arose under the cause of action created in
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Court saw no reason to
distinguish between that context and § 1983, see Harlow, 457
U.S. at 818 n.30.




                                5
                                C
        This background informs the context we confront in
these cases—the far less developed area of private-party
liability under § 1983. Any limitation on such liability should,
as with official liability, “be dealt with . . . by establishing an
affirmative defense.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 942 n.23 (1982); see also Adickes v. S.H. Kress & Co.,
398 U.S. 144, 174 n.44 (1970) (citing Pierson, 386 U.S. 547).
The Supreme Court has not, however, definitively stated what
such a defense might be. Rather, in Wyatt v. Cole, 504 U.S. 158
(1992), it refused to apply Harlow-style qualified immunity to
private parties sued under § 1983 for invoking a state replevin
statute later declared unconstitutional. And that is where the
doctrine remains. JUDGE RENDELL’s opinion suggests that in
rejecting the application of qualified immunity, Wyatt opened
the door to another freestanding, judge-made defense. In my
view, however, Wyatt stands for the proposition that the
common-law approach must guide any limitation on private-
party liability under § 1983.
       The Wyatt defendants were private parties who invoked
a Mississippi statutory procedure that obliged state officials,
solely upon the declaration of the applicant, “to issue a writ of
replevin for the seizure of the property described in [the]
declaration.” Wyatt v. Cole, 710 F. Supp. 180, 182 (S.D. Miss.
1989). The plaintiff, whose property had been seized, filed an
action under § 1983 seeking damages and a declaratory
judgment on the statute’s constitutionality. The district court
declared the statute unconstitutional but declined to hold the
private defendants monetarily liable. Id. at 183. The Fifth
Circuit affirmed, finding the defendants entitled to qualified
immunity. Wyatt v. Cole, 928 F.2d 718, 721-22 (5th Cir. 1991)
(per curiam).




                                6
        In reversing, the Supreme Court distinguished between
post-Harlow qualified immunity and a good-faith defense. The
basic approach, the Court said, is the one grounded in the
common law: whether the “parties seeking immunity were
shielded from tort liability when Congress enacted the Civil
Rights Act of 1871”; and, if so, whether “§ 1983’s history or
purpose counsel against applying [the immunity] in §
1983 actions.” Wyatt, 504 U.S. at 164. The defendants in fact
argued along these lines, claiming a defense under Pierson
because they acted without malice and with probable cause. Id.
at 165. The Court’s response was telling: “Even if there were
sufficient common law support to conclude that [the
defendants] . . . should be entitled to a good faith defense, that
would still not entitle them to what they sought and obtained
in the courts below: the qualified immunity from suit accorded
government officials under Harlow.” Id. As to that issue, the
Court concluded that the “special policy concerns,” articulated
in Harlow, that “mandat[e] qualified immunity for public
officials are not applicable to private parties.” Id. at 167.
       For present purposes, this holding has two relevant
implications. First, contrary to what some of our sister circuits
have said, the Court in Wyatt made no suggestion that the
common-law approach applies only in the context of immunity
and not in the context of a good-faith defense. See Janus v. Am.
Fed’n of State, Cnty. & Mun. Emps., Council 31, 942 F.3d 352,
365-66 (7th Cir. 2019) (Janus II); Danielson v. Inslee, 945 F.3d
1096, 1101 (9th Cir. 2019); Lee v. Ohio Educ. Ass’n, 951 F.3d
386, 391-92 (6th Cir. 2020). In fact, the implication was
precisely the opposite: “we do not foreclose the possibility,”
the Court wrote, “that private defendants . . . could be entitled
to an affirmative defense based on good faith and/or probable
cause.” Wyatt, 504 U.S. at 169. That is the same defense
Pierson recognized, explicitly deriving it by analogy from the




                                7
common law. It was also the argument that the defendants in
Wyatt made before the Court, but which was “of no avail”
because it was neither sought nor ruled upon in the lower
courts. Id. at 165. And, accordingly, it was the basis of the Fifth
Circuit’s recognition of a good-faith defense on remand. See
Wyatt v. Cole, 994 F.2d 1113, 1120 (5th Cir. 1993) (Wyatt II).2
       Second, in declining to extend qualified immunity to
private-party defendants, the Court did not imply, as today’s
opinion announcing our judgment holds, see Rendell Op. at
III.B, that alternative policy grounds might supply an
affirmative defense.
       Although principles of equality and fairness may
       suggest . . . that private citizens who rely
       unsuspectingly on state laws they did not create
       and may have no reason to believe are invalid
       should have some protection from liability, as do
       their government counterparts, such interests are
       not sufficiently similar to the traditional
       purposes of qualified immunity to justify such an
       expansion.
Wyatt, 504 U.S. at 168. Rather than open the door to an
independent defense based on “principles of equality and
fairness,” this statement asserts that, at least in the context of
private-party § 1983 defendants, equality and fairness

2
  Moreover, the distinction between immunities and defenses
is potentially misleading because qualified immunity is itself
“an affirmative defense that must be pleaded by a defendant
official.” Harlow, 457 U.S. at 815 (citing Gomez v. Toledo, 446
U.S. 635 (1980)). As I note above, the relevant distinction in
Wyatt is between Harlow-style qualified immunity and a good-
faith defense based on the common-law approach.




                                8
considerations are not significant enough in themselves to
warrant divergence from the common-law model in the manner
of Harlow. Those concerns “may be well founded,” but courts
“do not have a license to establish immunities from § 1983
actions in the interests of what [they] judge to be sound public
policy.” Tower, 467 U.S. at 922-23.
        Justice Kennedy’s concurrence in Wyatt, joined by
Justice Scalia, underlines both of these points. “Our immunity
doctrine,” he wrote, “is rooted in historical analogy, based on
the existence of common-law rules in 1871, rather than in
‘freewheeling policy choices.’” Wyatt, 504 U.S. at 170
(Kennedy, J., concurring) (alteration omitted) (quoting Malley,
475 U.S. at 342). Although Harlow “depart[ed] from history in
the name of public policy,” Justice Kennedy joined the Court’s
opinion in resisting “exten[sion] [of] that approach to other
contexts.” Id. at 171. “[W]e may not transform what existed at
common law based on our notions of policy or efficiency.” Id.
at 171-72. The implication is that any limitation on private-
party liability must be grounded in the common-law approach.
       Justice Kennedy then went further than the Court in
laying out what such an inquiry, at least on the Wyatt facts,
should look like. All of the Justices, including those in dissent,
accepted that at common law in 1871 the tort actions “most
closely analogous” to the Wyatt action were “malicious
prosecution and abuse of process.” Id. at 164 (majority
opinion); see id. at 172 (Kennedy, J., concurring); id. at 176
(Rehnquist, C.J., dissenting). Both torts required the plaintiff
to prove that the defendant acted with malice and without
probable cause. Id. at 166 n.2 (majority opinion); id. at 172
(Kennedy, J., concurring); id. at 176 n.1 (Rehnquist, C.J.,
dissenting). For Justice Kennedy, proof of “subjective bad faith
on the part of the defendant”—rather than an objective
standard—went “far towards proving” both elements. Id. at




                                9
173 (Kennedy, J., concurring). “[T]here is support in the
common law,” he observed, “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; and therefore under the circumstances of
this case, lack of probable cause can only be shown through
proof of subjective bad faith.” Id. at 174 (citing Birdsall v.
Smith, 122 N.W. 626, 627 (Mich. 1909)). Further, five Justices
agreed that a “good-faith defense” in this context represented
both the plaintiff’s burden to prove the elements of the offense
and, relatedly, the defendant’s opportunity to avoid liability by
showing good faith. See id. at 175; id. at 176 n.1 (Rehnquist,
C.J., dissenting).
                               II
       Under Wyatt, then, any defense to private-party liability
under § 1983 must derive from the common-law approach and
may not rest on freestanding policy grounds. The next question
is whether the defense suggested there—whether the defendant
acted with malice and without probable cause—is context
dependent or applies categorically to all cases involving
private-party defendants. Only the former view is faithful to
the common-law approach; the latter, like the Supreme Court’s
qualified-immunity standard in cases such as Procunier,
O’Connor, and Wood, generalizes a subjective good-faith
defense, unmooring it from its common-law origins. JUDGE
RENDELL’s opinion, in addition to its policy-based holding,
takes this latter view, relying upon our decision in Jordan v.
Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir.
1994). See Rendell Op. at III.A-B. On my reading, however,
Jordan did not announce a categorical rule, and so we must
conduct an independent inquiry based on the common-law
approach. And on that score, I think that instead of determining
whether a pre-1871 tort is sufficiently analogous, resolution on




                               10
an alternative ground, also based in the common-law approach,
is preferable.
                               A
        Lugar and Wyatt both concerned “private defendants
charged with 42 U.S.C. § 1983 liability for invoking state
replevin, garnishment, and attachment statutes later declared
unconstitutional.” Wyatt, 504 U.S. at 159. So too did Jordan.
Pursuant to a cognovit clause in a commercial real estate lease,
the defendants obtained and executed a confessed judgment
against the plaintiffs in state court. Jordan, 20 F.3d at 1258.
Along with their complaint, the defendants invoked a
Pennsylvania procedure that required the prothonotary of the
court to issue a writ ordering the court’s sheriff to garnish the
plaintiffs’ bank account. Jordan v. Fox, Rothschild, O’Brien &
Frankel, 787 F. Supp. 471, 473-74 (E.D. Pa. 1992) (Fox
Rothschild). The law required neither pre-deprivation notice
nor issuance of a writ of service, and indeed the plaintiffs
received notice only after the seizure. Id. Unsurprisingly
aggrieved, the plaintiffs thereafter sought, among other things,
a declaratory judgment that the Pennsylvania procedure was
unconstitutional and damages under § 1983.
       The district court held that the post-judgment
garnishment phase of the procedure violated due process, id. at
477-78, but it dismissed the § 1983 action, determining that the
defendants were entitled to qualified immunity, id. at 479-80.
While the case was pending on appeal, however, the Supreme
Court decided Wyatt. Our question, then, was whether the
defendants were entitled to a good-faith defense. Jordan, 20
F.3d at 1276. We held that they were, declaring ourselves “in
basic agreement” with the Fifth Circuit’s holding on remand in
Wyatt that “[p]rivate defendants should not be held liable under
§ 1983 absent a showing of malice and evidence that they




                               11
either knew or should have known of the statute’s
constitutional infirmity.” Id. (quoting Wyatt II, 994 F.2d at
1120).
        In my view, Jordan’s holding is best read as limited to
the context before it. Immediately after announcing our
agreement with the Fifth Circuit, we clarified that by “malice”
we had in mind “a creditor’s subjective appreciation that its act
deprives the debtor of his constitutional right to due process.”
Id. To support this standard, we cited Justice Kennedy’s
reference, in his Wyatt concurrence, to Birdsall v. Smith. Id. at
1276 n.30. That case concerned a malicious-prosecution action
brought by a milk vendor who had been charged, solely on the
basis of a report filed with state officials, under a state statute
later declared unconstitutional. See 122 N.W. at 626-27. We
also referred to “Pennsylvania cases that place state law
limitations on the use of judgment by confession” because we
thought they may “sometimes be relevant on the good faith
issue.” Jordan, 20 F.3d at 1277. This all suggests that we had
in mind the factual circumstances of the immediate case—
circumstances essentially similar to those of Lugar and Wyatt.
                                B
        Because Jordan cannot be read as expansively as JUDGE
RENDELL’s opinion suggests, the proper question is whether
the abuse-of-process and malicious-prosecution torts, from
which the Wyatt defense is derived, are sufficiently analogous
to the present action, such that our recognition of that defense
in Jordan is applicable here. For their part, our sister circuits
that have confronted the question have so far uniformly
concluded that those torts do provide the best analogy. See,
e.g., Janus II, 942 F.3d at 365; Danielson, 945 F.3d at 1102;
Lee, 951 F.3d at 392 n.2. I think that view is worth questioning,




                                12
at least to the extent that it supplies the unions a good-faith
defense here.
       In both Wyatt and Jordan, the private-party defendants
invoked a generally available state procedure. Upon the
defendants’ independent initiative, state officials were
compelled to seize or garnish property of the plaintiffs. That
mandate was what rendered the state laws unconstitutional in
each case. See Fox Rothschild, 787 F. Supp. at 477-78; Cole,
710 F. Supp. at 183. Here, Pennsylvania law required the public
employer to deduct the fair-share fee from the nonmembers’
paychecks, if the collective-bargaining agreement so provided.
Yet (and this is the key difference) the agreements triggering
collection of the fees were not the fruit of the unions’
independent initiative—the relevant public employer was a
party to them and necessarily had to agree to them. See 71 Pa.
Stat. § 575(b)-(c); see also 43 Pa. Stat. § 1101.901 (the
collective-bargaining      agreement     is   “between      the
representatives of the public employes and the public
employer”). And the collection of the fees—the compelled
subsidization of speech—was the constitutional violation. See
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31,
138 S. Ct. 2448, 2464, 2478 (2018).
       Thus, the relevant state action in our cases stems not
merely from the involvement of state officials in
unconstitutional conduct, see Lugar, 457 U.S. at 941, but also,
to some extent, from the command or express authorization of
the state to engage in that conduct, see Blum v. Yaretsky, 457
U.S. 991, 1004 (1982). From this perspective, the torts of abuse
of process and malicious prosecution provide at best attenuated
analogies. It seems apparent that we are not dealing here
simply with a civil “process . . . willfully made use of for a
purpose not justified by the law,” Thomas M. Cooley, A
Treatise on the Law of Torts 189 (1876), let alone “the




                              13
malicious institution of a civil suit,” id. at 187. Insofar as the
state establishes a law’s justified purposes, we confront the use
of a procedure for a purpose that the state in part set.3
        It may be, as the Seventh Circuit observed in Janus II,
that abuse of process and malicious prosecution are the most
analogous torts, however imperfect the analogy. See 942 F.3d
at 365. But it does not necessarily follow that they therefore
supply the basis of a defense. By that logic, a defense is
potentially always available, no matter how attenuated the
connection between the common-law cause of action and the
injury alleged. We must remember that “[c]ommon-law
principles are meant to guide rather than to control the
definition of § 1983 claims.” Manuel, 137 S. Ct. at 921. True
commitment to the common-law approach may eventually
require deciding where to draw the line between analogous and
non-analogous causes of action. But at least in this case, I find
it unnecessary to do so.
       In what follows, I describe an alternative basis for a
defense, well established at both common law and equity in
1871, and providing a closer similarity to the facts that we
confront. Resolving these cases on this ground would both
avoid the knotty problems raised by a most-analogous-tort test
and preserve the notion, accepted by six Justices in Wyatt, that
Harlow was an exception that should not swallow the
common-law rule. Indeed, in my view, that latter benefit is
especially compelling, given the recent cogent critiques of

3
  It follows from this argument that the parties’ other proposed
torts—conversion, defamation, tortious interference with
contract, and intentional infliction of emotional distress—are
also insufficiently analogous. Their elements are even further
afield than those of abuse of process and malicious
prosecution.




                               14
qualified immunity as incongruent with the principles of
statutory interpretation. See, e.g., Ziglar v. Abbasi, 137 S. Ct.
1843, 1871-72 (2017) (Thomas, J., concurring in part and
concurring in the judgment); Baxter v. Bracey, 140 S. Ct. 1862,
1864 (2020) (Thomas, J., dissenting from the denial of
certiorari); William Baude, Is Qualified Immunity Unlawful?,
106 Calif. L. Rev. 45 (2018).
                                 III
         “An unconstitutional act is not a law; . . . it is, in legal
contemplation, as inoperative as though it had never been
passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886).
Derived from the common law, see Robinson v. Neil, 409 U.S.
505, 507 (1973), this principle from the late nineteenth century
was premised on the then-prevalent legal theory that judges
“find” or “declare” rather than “make” law, see Linkletter v.
Walker, 381 U.S. 618, 622-23 (1965); Kuhn v. Fairmont Coal
Co., 215 U.S. 349, 370 (1910) (Holmes, J., dissenting). That
theory fell out of fashion in the early twentieth century, but the
Norton principle nevertheless proved remarkably influential.
See, e.g., Ex Parte Young, 209 U.S. 123, 159 (1908). Most
notably, it underlies the Supreme Court’s more recent
retroactivity jurisprudence—and thus the plaintiffs’ theory of
liability in the present cases. See Harper v. Va. Dep’t of Tax’n,
509 U.S. 86, 95-97 (1993); James B. Beam Distilling Co. v.
Georgia, 501 U.S. 529, 540 (1991) (opinion of Souter, J.);
Griffith v. Kentucky, 479 U.S. 314, 326-29 (1987).
       Yet there was a contemporaneous exception to this
general view, in which a judicial decision either voiding a
statute or overruling a prior decision does not generate
retroactive civil liability with regard to financial transactions
or agreements conducted, without duress or fraud, in reliance
on the invalidated statute or overruled decision. See, e.g.,




                                 15
Benjamin N. Cardozo, The Nature of the Judicial Process 146-
47 (1921); Oliver P. Field, The Effect of an Unconstitutional
Statute 221-28 (1935); Note, The Effect of Overruled and
Overruling Decisions on Intervening Transactions, 47 Harv. L.
Rev. 1403 (1934). An assessment of the cases applying this
exception demonstrates its applicability in the present context.
        The exception appears to have developed as a sort of
corollary to originally English legal and equitable doctrines.
One such doctrine is that voluntary payments made upon an
illegal demand are not recoverable except where the payments
were made under an immediate and urgent necessity. See, e.g.,
Valpy v. Manley (1845), 135 Eng. Rep. 673, 677; 1 C. B. 594,
602-03 (Tindal, C.J.) (citing and quoting Fulham v. Down
(1798), 170 Eng. Rep. 820 n.; 6 Esp. 26 n. (Kenyon, C.J.));
Brisbane v. Dacres (1813), 128 Eng. Rep. 641, 645; 5 Taunt.
143, 152 (Gibbs, J.). Another is that money paid pursuant to a
contract may not be recovered if the contract was formed under
a mutual mistake of law. See, e.g., Bilbie v. Lumley (1802) 102
Eng. Rep. 448, 449-50; 2 East 469, 472. Although nineteenth-
century American courts straightforwardly applied these
doctrines in the contexts in which they originated, see, e.g.,
Bank of U.S. v. Daniel, 37 U.S. (12 Pet.) 32, 55-56 (1838); Hunt
v. Rhodes, 26 U.S. (1 Pet.) 1, 15 (1828); Sprague v. Birdsall, 2
Cow. 419, 421 (N.Y. Sup. Ct. 1823), they also invoked them
when confronting the effects of the practice of judicial review.
Two lines of cases—one at law, the other in equity—are
especially notable.
                               A
       At common law, money extracted illegally by taxes or
fees could be recovered through an action of assumpsit. See,
e.g., 3 William Blackstone, Commentaries on the Laws of
England *158-59 (describing as a form of assumpsit an action




                              16
to recover tax or fee payments to a government or other body
of which one is a member).4 As noted, in Janus the
unconstitutional act was the compelled subsidization of speech
through the payment of the fair-share fees. The plaintiffs here
seek a repayment of the fees they paid prior to Janus and whose
extraction only became illegal as a result of that decision.
Several pre-1871 state cases address a similar situation, where
repayment of a tax, fee, or other expenditure is sought when
the law or court decision under which it was made is declared
unconstitutional or overruled. The courts in these cases
developed a limitation on such liability, uniformly barring
repayment where the initial expenditure was made voluntarily
and without duress.
      The most succinct formulation of this doctrine came in
an 1846 decision of the Maryland high court:
       It is now established, by an unbroken series of
       adjudications in the English and American

4
 Although the Supreme Court has often referred specifically to
tort law when enunciating the common-law approach to § 1983
immunities and defenses, it has never suggested that
application of that approach is limited to tort, rather than
contract, law where the latter is most applicable. Moreover, the
assumpsit action was in fact a form of the writ of trespass on
the case—the fountainhead of modern tort law—that officially
came to supplant actions in debt due to the institutional rivalry
of the Courts of Common Pleas and King’s Bench. See David
Ibbetson, Sixteenth Century Contract Law: Slade’s Case in
Context, 4 Oxford J. Legal Stud. 295 (1984). Assumpsit treats
misperformance or nonperformance of an implied agreement
as a tort-like wrong. See John H. Langbein et al., History of the
Common Law: The Development of Anglo-American Legal
Institutions 252 (2009).




                               17
       courts, that where money is voluntarily and fairly
       paid, with a full knowledge of the facts and
       circumstances under which it is demanded, it
       cannot be recovered back in a court of law, upon
       the ground, that the payment was made under a
       misapprehension of the legal rights and
       obligations of the party.
City of Baltimore v. Lefferman, 4 Gill 425, 431 (Md. 1846). The
operative legal fiction—consistent with the Supreme Court’s
later statement in Norton—is that a statute or ordinance
subsequently declared unconstitutional is void even at the time
the money is transacted pursuant to it, thus creating the
“misapprehension.” The burden, however, is on the payor to
establish more than mere reliance on the law’s presumptive
validity. As the California Supreme Court put it: “The illegality
of the demand paid constitutes of itself no ground for relief.
There must be in addition some compulsion or coercion
attending its assertion, which controls the conduct of the party
making the payment.” Brumagim v. Tillinghast, 18 Cal. 265,
266 (1861). The payment, according to the Ohio Supreme
Court, “can only be considered involuntary when it is made to
procure the release of the person or property of the party from
detention, or when the other party is armed with apparent
authority to seize upon either, and the payment is made to
prevent it.” Mays v. City of Cincinnati, 1 Ohio St. 268, 278
(1853). Simply because the law was assumed valid at the time
of the payment, and therefore that non-payment might result in
legal enforcement proceedings, was not enough. See Town
Council of Cahaba v. Burnett, 34 Ala. 400, 404 (1859); see also
Town of Ligonier v. Ackerman, 46 Ind. 552, 559 (1874),
overruled in part on other grounds by Jennings v. Fisher, 2
N.E. 285, 288 (Ind. 1885).




                               18
        The Pennsylvania Supreme Court at midcentury also
adopted this general doctrine. See Taylor v. Phila. Bd. of
Health, 31 Pa. 73, 75 (1855); Borough of Allentown v. Saeger,
20 Pa. 421 (1853). In Saeger, the Court stated in dictum that
“[i]f [the money] had been paid under protest, that is, with
notice that [the payor] would claim it back, this would repel the
implication of an assent, and give rise to the right of
reclamation.” 20 Pa. at 421. It is unclear, however, if this
standard required the payor actually to bring the threatened
legal action. Other courts were more explicit in imposing this
requirement. See, e.g., Burnett, 34 Ala. at 405 (“[T]he case is
not altered by the fact, that the party so paying protests that he
is not answerable, and gives a notice that he shall bring an
action to recover the money back. He has an opportunity in the
first instance to contest th[e] claim at law.” (quoting Benson v.
Monroe, 61 Mass. (7 Cush.) 125, 131 (1851))).5
       Finally, although the United States Supreme Court did
not, during this period, have a factually similar case, it did
approvingly recite this doctrine in analogous situations. For
example, in an 1877 case involving payments to Confederate

5
   The Alabama Supreme Court’s adoption of Benson’s
language is significant. Benson, also an assumpsit action, more
nearly approximates abuse of process because the plaintiffs,
who were ship owners, only paid after their vessel was
attached. Nevertheless, the Massachusetts Supreme Judicial
Court still denied recovery. The plaintiffs had the choice of
either paying or litigating. Benson, 61 Mass. at 131. Burnett’s
importation of Benson’s standard suggests the similarity
between the sort of cases described here and abuse-of-process
situations (though still litigated in assumpsit). It suggests the
closeness of this rule to the one Wyatt suggested and our Court
adopted in Jordan.




                               19
officials for the right to export cotton, the Court said that to
“justify an action against [the payees], either for the return of
the money paid . . . or for damages of any kind,” “the doctrine
established by the authorities is[] that ‘a payment is not to be
regarded as compulsory, unless made to emancipate the person
or property from an actual and existing duress imposed upon it
by the party to whom the money is paid.’” Radich v. Hutchins,
95 U.S. 210, 212-13 (1877) (quoting Lefferman, 4 Gill. at 436,
and citing Brumagim, 18 Cal. at 265; and Mays, 1 Ohio St. at
268); see also Elliott v. Swartwout, 35 U.S. (10 Pet.) 137, 153-
55 (1836). This voluntariness rule remains the applicable
standard. See McKesson Corp. v. Div. of Alcoholic Beverages
& Tobacco, 496 U.S. 18, 38 n.21 (1990).
                               B
       The doctrine was also applied in equitable actions,
usually involving not the payment of a tax or fee, but rather a
financial transaction between private parties. Its most well-
known enunciation was by Chancellor Kent in 1815: “A
subsequent decision of a higher Court, in a different case,
giving a different exposition of a point of law from the one
declared and known when a settlement between parties takes
place, cannot have a retrospective effect, and overturn such
settlement.” Lyon v. Richmond, 2 Johns. Ch. 51, 60 (N.Y. Ch.
1815), rev’d on other grounds, Lyon v. Tallmadge, 14 Johns.
501 (N.Y. 1817). In addition to general policy grounds, the key
principle was, again, that parties may not be relieved of “acts
and deeds fairly done on a full knowledge of facts, though
under a mistake of the law.” Id.; see also Shotwell v. Murray, 1
Johns. Ch. 512, 515-16 (N.Y. Ch. 1815). Later state equity
courts adopted or followed this doctrine, see, e.g., Doll v.
Earle, 59 N.Y. 638, 638 (1874); Hardigree v. Mitchum, 51 Ala.
151, 155-56 (1874); Harris v. Jex, 55 N.Y. 421, 424 (1874);
Kenyon v. Welty, 20 Cal. 637, 642 (1862), as did at least one




                               20
federal court, see In re Dunham, 8 F. Cas. 37, 38-39 (D.N.J.
1872).
                              ***
        When Congress in 1871 enacted the law that became §
1983, it was well established at both law and equity that court
decisions that invalidated a statute or overruled a prior
decision, and thereby affected transactional relationships—
between private parties and government officials or
representatives, or between private parties alone—established
in reliance on that statute or decision, did not generate civil
liability for repayment except where duress or fraud was
present. Whatever the nature of the state action in the present
cases—whether the state “act[ed] jointly with” the unions or
“compel[led] the [unions] to” collect the fees, Manhattan
Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019)—
the factual circumstances underlying this doctrine bear a
substantial similarity to those we confront here. Therefore, in
my view the doctrine constitutes “a previously existing,
independent legal basis” sufficient to limit the unions’ liability
under § 1983. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,
759 (1995).6 I know of no authority on “§ 1983’s history or
purposes” that might “counsel against” recognition of this
defense, Tower, 467 U.S. at 920, and the consistency of its
application in law and equity safely permits the conclusion that
Congress did not wish to “impinge” on it “by covert inclusion


6
 The Diamond appellants argue strenuously that this is a case
of restitution. Even if it is, every case upon which they rely can
be explained according this doctrine. Moreover, they cite cases
only from the mid-twentieth century or later. There is no
suggestion that the principle they claim was established in
1871. The reverse, in fact, seems to be the case.




                               21
in the general language” of § 1983, Tenney, 341 U.S. at 376.
                               IV
       It may be tempting, in cases like the present, to read
precedent broadly, or appeal to freestanding principles such as
the rule of law and basic notions of fairness. But we must
interpret and apply § 1983 as we would any other statute,
always prepared for the faithful execution of that duty to result
in a seemingly extreme outcome. For even when that does not
occur, there is value in adhering to the well-established
principles of interpretation.
        Because the plaintiffs in these cases have not pleaded
any facts, suggesting that their payments were either
sufficiently involuntary or exacted on a fraudulent basis,7 to
permit a reasonable person to infer that the unions might be
liable, I concur in the affirmance of the orders granting the
unions’ motions to dismiss.




7
  JUDGE PHIPPS asserts that, even accepting the standard I adopt
here, the plaintiffs’ payments were not voluntary. I think it
apparent that none of the plaintiffs have pleaded anything
approaching the kind of involuntariness or duress articulated in
the cases I discuss.




                               22
Diamond v. Pa. State Educ. Ass’n, No. 19-2812
Wenzig v. Serv. Emps. Int’l, No. 19-3906

PHIPPS, Circuit Judge, dissenting.

       The central question presented in these consolidated
cases, which seek recovery of agency fees garnished from the
wages of non-union members, is whether a good faith
affirmative defense exists to a First Amendment compelled
speech claim under 42 U.S.C. § 1983. I do not see a valid basis
for recognizing such a defense. A good faith affirmative
defense was not firmly rooted in the common law in 1871 when
§ 1983 was enacted, and nothing else compels recognition of
such a defense today. For that reason, I would reverse the
orders dismissing these cases and remand them for further
proceedings.

        My colleagues see it differently. Judge Rendell
recognizes such a defense from precedent and out of
consideration of “principles of equality and fairness.” Rendell
Op. at III.B. In concurring in the judgment only, Judge Fisher
does not rely on a good faith defense. Instead, from an
examination of pre-1871 common law, he identifies another
limitation on the § 1983 cause of action: it may not be used to
collect voluntary payments. See Fisher Op. at III.A. I disagree
with these perspectives and respectfully dissent.

        The Supreme Court has articulated standards for
supplementing the plain text of § 1983, which itself identifies
no immunities or defenses. Such supplementation requires a
tradition “so firmly rooted in the common law and . . .
supported by such strong policy reasons that ‘Congress would
have specifically so provided had it wished to abolish the
doctrine.’” Owen v. City of Independence, 445 U.S. 622, 637
(1980) (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)).
Even if such a deeply rooted common-law tradition exists, that
will still not permit supplementation of § 1983 in a manner
inconsistent with the statute’s history or purpose. See Wyatt v.
Cole, 504 U.S. 158, 164 (1992) (“[I]rrespective of the common
law support, we will not recognize an immunity available at
common law if § 1983’s history or purpose counsel against
applying it in § 1983 actions.”).

I.     A GOOD FAITH DEFENSE WAS NOT FIRMLY ROOTED IN
       THE COMMON LAW IN 1871 WHEN CONGRESS ENACTED
       § 1983.

       The specific inquiry here focuses on whether a good
faith defense was firmly rooted in the common law in 1871.
But as an initial point of reference, the good faith affirmative
defense is not firmly rooted in the common law today – either
generally or for any specific cause of action.

        In articulating 18 affirmative defenses that must be
raised in a responsive pleading, Rule 8(c) of the Federal Rules
of Civil Procedure does not include good faith. See Fed. R.
Civ. P. 8(c). The rule’s listing is not exhaustive, and leading
treatises supplement those 18 listed defenses, but those
treatises do not identify a common-law good faith affirmative
defense. See, e.g., Arthur R. Miller et al., Federal Practice and
Procedure § 1271 (3d ed., Apr. 2020 Update) (recognizing no
common-law good faith affirmative defense); 2 Jeffrey A.
Parness, Moore’s Federal Practice § 8.08 (3d ed. 2020) (listing
affirmative defenses, such as immunities, but not including
good faith). If a good faith affirmative defense were deeply
rooted in the common law, such as defenses like statute of




                               2
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.

       Similarly, 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. Rather, when Congress
wants to include good faith as an affirmative defense, it does
so expressly.1 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? Pierson, 386 U.S. at
555.

       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.


1
  See, e.g., 15 U.S.C. § 78r (providing a good faith defense to
securities fraud); 15 U.S.C. § 1115(b) (providing a good faith
defense to trademark infringement); 15 U.S.C. §§ 1640,
1691e(e), 1692k(e), 1693m(d) (providing a good faith defense
to claims related to consumer credit protection); 16 U.S.C
§ 1540(a)(3), (c)(3) (providing a good faith defense to certain
claims under the Endangered Species Act); 29 U.S.C. § 259(a)
(providing a good faith defense to certain claims under the Fair
Labors Standards Act); 29 U.S.C. § 2617(a)(1)(iii) (providing
a good faith defense to a liquidated damages claim under the
Family Medical Leave Act).




                               3
        That conclusion, of course, is not dispositive – it could
be that a good faith affirmative defense was deeply entrenched
in the common law in 1871 but has lost traction over time. But
cf. Fed. R. Civ. P. 8(c) (continuing to identify the virtually
obsolete affirmative defense of injury to fellow servant). To
make such a showing would require proof similar to that
adduced in Tenney v. Brandhove, 341 U.S. 367 (1951),
wherein the Supreme Court determined that legislative
immunity applied to § 1983 claims. See id. at 377-78. In
reaching that conclusion, the Supreme Court relied on evidence
of that immunity dating back to sixteenth and seventeenth
century English law, provisions of the Articles of
Confederation and the Constitution, as well as protections
specifically articulated in 41 of the then 48 admitted States.
See id. at 372-76.

        By contrast no such evidence is present here. No party
identifies a pre-1871 case recognizing a common-law good
faith affirmative defense – either as a general matter or in the
context of any particular cause of action. Judge Rendell’s
opinion does not identify any common-law basis for such a
defense. Nor do any of the other courts applying a good faith
defense to agency fee cases identify any grounding in common
law for such an affirmative defense.2


2
 See Wholean v. CSEA SEIU Local 2001, 955 F.3d 332, 334-
36 (2d Cir. 2020); Lee v. Ohio Educ. Ass’n, 951 F.3d 386, 392
n.2 (6th Cir. 2020); Ogle v. Ohio Civil Serv. Emps. Ass’n,
AFSCME Local 11, 951 F.3d 794, 797 (6th Cir. 2020) (per
curiam); Danielson v. Inslee, 945 F.3d 1096, 1102 (9th Cir.
2019); Janus v. Am. Fed. of State, Cty. & Mun. Emps., Council
31, 942 F.3d 352, 364 (7th Cir. 2019) (finding “no common-




                               4
       The strongest case for such a defense comes from Chief
Justice Rehnquist’s dissenting opinion in Wyatt v. Cole. There,
he 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. 504 U.S. 158, 176 & n.1. That perspective is telling.
Chief Justice Rehnquist identified no authority for the
proposition that good faith functions as a transsubstantive
affirmative defense – applicable across a broad class of claims,
such as the defenses of accord and satisfaction, laches, and res
judicata. See id. at 175-80. Nor did his dissenting opinion
recognize good faith as a claim-specific affirmative defense,
such as the defenses of assumption of risk, contributory
negligence, or duress. See id. At most, Chief Justice Rehnquist
determined that the elements of two common-law tort claims
could be defeated by proof of subjective good faith. See id. at
176 & n.1.

       Judge Fisher picks up on that theme. From an
examination of the common law, he concludes that in 1871 no
cause of action allowed for later recovery of voluntary
payments. See Fisher Op. at III.A. But unlike the cases he
relies upon, the agency fee payments at issue here were not
voluntary – they were wage garnishments that were paid to
unions.3 More fundamentally, Judge Fisher’s approach is


law history before 1871 of private parties enjoying a good-faith
defense to constitutional claims”).
3
  See 71 Pa. Stat. and Cons. Stat. Ann. § 575(c) (West 1988)
(requiring employers to garnish wages for fair-share agency
fees for transmittal to unions); see also Wenzig Compl. ¶¶ 9-
10 (Wenzig App. 42) (alleging that non-union members were




                               5
analogous to the one that the Supreme Court did not adopt in
Wyatt – which prompted Chief Justice Rehnquist’s dissent.
Section 1983 created a new statutory cause of action, not one
pre-defined by the common law. Thus, it is immaterial that no
pre-1871 cause of action permitted recovery for voluntary
payments that were subsequently declared unconstitutional:
the Civil Rights Act of 1871 established a new cause of action
in part to provide “a remedy where state law was inadequate.”
Monroe v. Pape, 365 U.S. 167, 173 (1961), overruled on other
grounds by Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658
(1977).

       For these reasons, I do not see the common law as
limiting the scope of a § 1983 claim for compelled speech –
either through a good faith affirmative defense or through a
separate limitation on the statutory cause of action.

II.    BOTH THE HISTORY AND THE PURPOSE OF § 1983
       COUNSEL AGAINST RECOGNITION OF A GOOD FAITH
       AFFIRMATIVE DEFENSE.

       For completeness, even supposing that the common law
did recognize good faith as an affirmative defense in 1871,
more would be required. Before a deeply rooted affirmative


“forced to pay” fair-share agency fees and that those fees were
deducted from nonmembers’ wages “without their consent”);
Diamond Second Am. Compl. ¶ 24 (Diamond App. 74)
(alleging that the class representatives were “compelled . . . to
pay a financial penalty for exercising their constitutional right
to not join a union”), ¶ 39 (Diamond App. 77) (defining the
putative class as persons who were “compelled to pay money .
. . as a condition of employment”).




                               6
defense can apply to a § 1983 action, it must also be “supported
by such strong policy reasons that Congress would have
specifically so provided had it wished to abolish the doctrine.”
Owen, 445 U.S. at 637 (internal quotation marks omitted). Put
differently, a common-law defense will not be read into § 1983
when it is inconsistent with the history or the purpose of
§ 1983. See Wyatt, 504 U.S. at 164. And neither the history
nor the purpose of § 1983 supports the recognition of good
faith as an affirmative defense for violations of every
constitutional right.

       A good faith defense is inconsistent with the history of
the Civil Rights Act of 1871. As the Supreme Court has
explained, that statute is predicated on the understanding that
“Congress has the power 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.”
Monroe, 365 U.S. at 171-72 (emphasis added). As this
statement makes clear, the history behind the Civil Rights Act,
which Congress enacted pursuant to the Enabling Clause of the
Fourteenth Amendment,4 demonstrates the need to remedy
actions taken in accordance with state law. And thus a good
faith affirmative defense – that a state actor was merely
following state law – is an especially bad fit as an atextual
addition to § 1983.




4
  See Civil Rights Act of 1871, Pub. L. 42-22, 17 Stat. 13, 13
(Apr. 20, 1871) (entitling the legislation as “[a]n Act to enforce
the [p]rovisions of the Fourteenth Amendment . . . and for other
[p]urposes”).




                                7
        Nor can a good faith affirmative defense be reconciled
with the purpose of the Civil Rights Act of 1871. The Supreme
Court has identified “three main aims” for § 1983. Monroe,
365 U.S. at 173. Those were (i) “to override certain kinds of
state laws”; (ii) to provide “a remedy where state law was
inadequate”; and (iii) “to provide a federal remedy where the
state remedy, though adequate in theory, was not available in
practice.” Id. at 173-74. Each of those purposes reflects a
dissatisfaction with the redress provided by state law for
constitutional violations. It would seem, then, that state law
would be the last place to look for limitations on the redress
§ 1983 allows – the whole point of the statute was to overcome
the limitations of state law. Thus, absent some foundation in
federal law, incorporating a defense rooted only in state
common law into § 1983 is inconsistent with the purpose of
that statute.

       The later enactment of § 1988 also supports this
conclusion. There, Congress allowed for consideration of state
common law, but only to supplement “deficienc[ies] in the
provisions necessary to furnish suitable remedies and punish
offenses against law.” 42 U.S.C. § 1988. That is quite
different than looking to state common law to limit the
remedies permitted by § 1983.

        Thus, even if it were firmly entrenched in the common
law, a good faith affirmative defense should not be grafted onto
the text of § 1983 – either as a transsubstantive defense (such
as accord and satisfaction or res judicata) or a cause-of-action
specific defense (such as assumption of the risk or duress).




                               8
III.   THE ROLE OF GOOD FAITH IN § 1983 LITIGATION DOES
       NOT RISE TO THE LEVEL OF AN AFFIRMATIVE DEFENSE.

        Although good faith does not operate as an affirmative
defense, it still may have a role in § 1983 litigation. As this
Circuit recognized, proof of good faith may negate an element
of a § 1983 claim. See Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250, 1277-78 (3d Cir. 1994). Specifically,
the gross negligence mental state element required for a
procedural due process claim can be rebutted by a showing of
subjective good faith through adherence to then-existing law.
See id. at 1278. That holding was context specific, and it
recognized good faith as a means to disprove a mental state
requirement. See id. at 1277-78. Consistent with Chief Justice
Rehnquist’s observation, the Jordan decision used the term
‘good faith defense’ as a misnomer – it was actually applying
good faith to negate a specific element of a cause of action, as
opposed to asserting it as an affirmative defense. See id.; see
generally Affirmative Defense, Black’s Law Dictionary (11th
ed. 2019) ( “A defendant’s assertion of facts and arguments
that, if true, will defeat the plaintiff’s or prosecution’s claim,
even if all the allegations in the complaint are true.”). Thus, I
do not read our precedent as recognizing good faith as an
across-the-board affirmative defense, or even as cause-of-
action specific affirmative defense. At most, a showing of
good faith can negate a mental state element of a claim – such
as gross negligence required for a procedural due process
claim. See Jordan, 20 F.3d at 1277-78. But that is of no
moment here because a claim for compelled speech does not
have a mens rea requirement. See Janus v. Am. Fed’n of State,
Cty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018)
(“[T]he compelled subsidization of private speech seriously




                                9
impinges on First Amendment rights[.]”); see also United
States v. United Foods, Inc., 533 U.S. 405, 408, 416 (2001);
Wooley v Maynard, 430 U.S. 705, 717 (1977); W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

       Beyond Jordan, Judge Rendell relies on “principles of
equality and fairness” to justify a good faith defense. Rendell
Op. at III.B. But in full context, the Supreme Court made clear
that “principles of equality and fairness” were insufficient to
establish immunity:

       Although principles of equality and fairness may
       suggest . . . that private citizens who rely
       unsuspectingly on state laws they did not create
       and may have no reason to believe are invalid
       should have some protection from liability, as do
       their government counterparts, such interests are
       not sufficiently similar to the traditional
       purposes of qualified immunity to justify such an
       expansion.

Wyatt, 504 U.S. at 168. Nothing about that quotation validates
“principles of equality and fairness” as standards for evaluating
potential affirmative defenses. As explained above, the
appropriate inquiry looks instead to the common law.

       But even still, principles of equality and fairness would
not carry the day here. Neither equality nor fairness
overwhelmingly favors the reliance interests of the unions in
pre-existing law over the free speech rights of non-members
who were compelled to support the unions. The Supreme
Court in Janus already accounted for those reliance interests in
overturning Abood. See Janus, 138 S. Ct. at 2484-86; see also




                               10
Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). Those
considerations need not be double-counted under the guise of
a good faith affirmative defense. And that is to say nothing of
the text, history, and purpose § 1983, which make it
particularly ill-suited to a construction that elevates reliance
interests over the vindication of constitutional rights.

                             ***

       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. Nor
does our precedent or even principles of equality and fairness
favor recognition of good faith as an affirmative defense to a
compelled speech claim for wage garnishments. I respectfully
dissent and vote to reverse the orders dismissing the complaints
and to remand these cases.




                              11
