Wholean v. CSEA SEIU Local 2001 In the 1

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

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

2
On Appeal from the United States District Court
1
for the District of Connecticut 2
3
4
ARGUED: DECEMBER 12, 2019 5
DECIDED: APRIL 15, 2020 6
7
8
Before: CABRANES and LOHIER, Circuit Judges, and REISS, District 9
Judge.
*
10
11
In this appeal, Plaintiffs-Appellants Kiernan J. Wholean and 12
James A. Grillo contend that the United States District Court for the 13
District of Connecticut (Eginton, J.) improperly dismissed their First 14
and Fourteenth Amendment claims brought pursuant to 42 U.S.C. 15
§ 1983 to obtain repayment of fair-share union fees collected pursuant 16
to controlling precedent. Because we hold that a good-faith defense 17
applies to Appellees’ collection of fair-share union fees, we AFFIRM 18
the District Court’s dismissal of Appellants’ Second Amended 19
Complaint. 20
21
JEFFREY D. JENNINGS (Milton L. Chappell, on 22
the brief), National Right to Work Legal 23

*
Judge Christina Reiss, of the United States District Court for the District of
Vermont, sitting by designation.

3
Defense and Education Foundation, Inc.,
1
Springfield, VA, for Plaintiffs-Appellants. 2
SCOTT A. KRONLAND (P. Casey Pitts, 3
Altshuler Berzon LLP, San Francisco, CA; 4
Daniel E. Livingston, Livingston, Adler, 5
Pulda, Meiklejohn & Kelly, P.C., Hartford, 6
CT, on the brief), Altshuler Berzon LLP, San 7
Francisco, CA, for Defendant-Appellee CSEA 8
SEIU Local 2001. 9
CLARE KINDALL, Solicitor General (Philip 10
Miller, Assistant Attorney General, on the 11
brief), for William Tong, Connecticut 12
Attorney General, for State Defendants-13
Appellees. 14
15
CHRISTINA REISS, District Judge: 16
Plaintiffs-Appellants Kiernan J. Wholean and James A. Grillo 17
contend that the United States District Court for the District of 18
Connecticut (Eginton, J.) improperly dismissed their First and 19
Fourteenth Amendment claims brought pursuant to 42 U.S.C. § 1983 20
against Defendants- Appellees CSEA SEIU Local 2001 (“Local 2001”); 21
Benjamin Barnes, Secretary of the Office of Policy and Management for 22
the State of Connecticut; Sandra Fae Brown-Brewton, Undersecretary 23
of Labor Relations for the State of Connecticut; and Robert Klee, 24

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Commissioner of the Department of Energy and Environmental
1
Protection for the State of Connecticut (collectively, “Appellees”). We 2
hold that a good-faith defense applies to Appellees’ collection of fair-3
share union fees from Appellants and therefore AFFIRM the District 4
Court’s dismissal of Appellants’ Second Amended Complaint. 5
I. BACKGROUND 6
Appellants Kiernan J. Wholean and James A. Grillo are 7
employees of the State of Connecticut. Appellee Local 2001 is a union 8
that represents State of Connecticut employees. The remaining 9
Appellees are State of Connecticut officials.
1
10
On June 13, 2018, Appellants, who are not members of Local 11
2001, filed a Complaint against Appellees, asserting that they were 12
forced to pay fair-share union fees to Local 2001 as a condition of their 13
employment in violation of the First Amendment to the United States 14
Constitution. Appellees admit that they collected fair-share fees from 15
Appellants, but contend they were entitled to do so under applicable 16
law. During the pendency of Appellants’ lawsuit, the United States 17
Supreme Court decided Janus v. American Federation of State, County, 18
and Municipal Employees (“AFSCME”), Council 31, 138 S. Ct. 2448 (2018) 19
wherein it overruled Abood v. Detroit Board of Education, 431 U.S. 209 20

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

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(1977), to hold that the collection of fair-share fees from public-sector
1
employees violated the First Amendment because they “forced [non-2
members] to subsidize a union, even if they choose not to join and 3
strongly object to the positions the union takes in collective bargaining 4
and related activities,” thereby “compelling them to subsidize private 5
speech on matters of substantial public concern.” Id. at 2459-60. 6
After Janus was decided, Appellees ceased deducting fair-share 7
fees from Appellants’ pay and refunded any such fees collected post-8
Janus. Thereafter, Appellants amended their Complaint to seek the 9
return pursuant to 42 U.S.C. § 1983 of all fair-share fees collected by 10
Appellees pre-Janus allegedly in violation of the First and Fourteenth 11
Amendments to the United States Constitution. 12
On October 1, 2018, Appellees moved to dismiss the First 13
Amended Complaint, asserting a good-faith defense based upon their 14
compliance with Conn. Gen. Stat. § 5-280 (authorizing, among other 15
things, the collection of fair-share fees from non-members) and 16
directly controlling Supreme Court precedent that rendered the 17
collection of fair-share fees from non-consenting, non-waiving, non-18
member public-sector employees lawful. See Abood, 431 U.S. at 235-36. 19
While the motion to dismiss was pending, Appellants filed a Second 20
Amended Complaint. 21
On April 26, 2019, the District Court dismissed the Second 22
Amended Complaint, finding Appellants’ claims for declaratory 23
judgment and injunctive relief were moot based on Janus. With regard 24
to Appellants’ assertion that Local 2001 continued to violate the First 25

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and Fourteenth Amendments by retaining pre-Janus fees, the District
1
Court concluded those claims were barred by the defense of good-faith 2
adherence to existing precedent. 3
II. DISCUSSION 4
The Second Circuit reviews a district court’s dismissal of a 5
complaint de novo using the same standard employed by the district 6
court. See Purcell v. N.Y. Inst. of Tech. – Coll. of Osteopathic Med., 931 7
F.3d 59, 62 (2d Cir. 2019). Appellants urge this court to reverse on two 8
grounds. 9
First, Appellants contend that 42 U.S.C. § 1983 does not 10
recognize a good-faith defense beyond qualified immunity. They 11
assert one cannot be implied because a First Amendment violation 12
does not turn on a violator’s motive and there is no analogous common 13
law tort from which a good-faith defense may be extrapolated. 14
Second, Appellants urge this court to find that Appellees should have 15
anticipated Janus and ceased collecting fair-share fees on that basis. 16
We hold that a party who complied with directly controlling 17
Supreme Court precedent in collecting fair-share fees cannot be held 18
liable for monetary damages under § 1983. In so holding, we do not 19
write on a blank slate. The Supreme Court in Wyatt v. Cole, 504 U.S. 20
158, 168 (1992), observed that “principles of equality and fairness may 21
suggest . . . that private citizens who rely unsuspectingly on state laws 22
they did not create and may have no reason to believe are invalid 23
should have some protection from liability, as do their government 24
counterparts.” Although the Court ultimately held that private 25

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defendants are not entitled to qualified immunity, the Court refused
1
to “foreclose the possibility that private defendants faced with § 1983 2
liability . . . could be entitled to an affirmative defense based on good 3
faith and/or probable cause.” Id. at 169; see also id. at 168 (noting that 4
the interests underlying a good-faith defense “are not sufficiently 5
similar to the traditional purposes of qualified immunity to justify 6
such an expansion” of immunity to private parties). Indeed, in Wyatt, 7
several Justices opined that a good-faith defense for private 8
individuals who rely on precedent has always existed. See id. at 174 9
(Kennedy, J., concurring) (joined by Justice Scalia in finding “support 10
in the common law for the proposition that a private individual’s 11
reliance on a statute, prior to a judicial determination of 12
unconstitutionality, is considered reasonable as a matter of law”); id. 13
at 176 (Rehnquist, J., dissenting) (joined by Justices Souter and Thomas 14
in stating “it is clear that at the time § 1983 was adopted, there 15
generally was available to private parties a good-faith defense to the 16
torts of malicious prosecution and abuse of process”) (footnote 17
omitted). 18
Since Wyatt, every Circuit Court of Appeals to have considered 19
the question has held that a good-faith defense exists under § 1983 for 20
private individuals and entities acting under the color of state law who 21
comply with applicable law, including three circuits who have 22
concluded that a good-faith defense is available to unions that relied 23
on Abood and applicable state law in collecting fair-share fees prior to 24

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Janus.
2
1
Consistent with Wyatt, a 2016 panel of this court found “a good 2
faith defense was available to a private defendant sued under § 1983 3
for a First Amendment violation.” Jarvis v. Cuomo, 660 F. App’x 72, 75 4

2
See, e.g., Ogle v. Ohio Civil Serv. Emps. Ass’n, 951 F.3d 794, 797 (6th Cir. 2020)
(“A narrow good-faith defense protects those who unwittingly cross that line in
reliance on a presumptively valid state law—those who had good cause in other
words to call on the governmental process in the first instance.”); Lee v. Ohio Educ.
Ass’n, 951 F.3d 386, 390-91 (6th Cir. 2020) (“[A] consensus has emerged among the
lower courts that while a private party acting under color of state law does not
enjoy qualified immunity from suit, it is entitled to raise a good-faith defense to
liability under section 1983 [including for pre-Janus collection of fair-share fees.] . . .
We now add our voice to that chorus.”) (citations and internal quotation marks
omitted); Danielson v. Inslee, 945 F.3d 1096, 1097 (9th Cir. 2019) (“[j]oining a growing
consensus” following Janus in holding that “private parties may invoke an
affirmative defense of good faith to retrospective monetary liability under 42 U.S.C.
§ 1983, where they acted in direct reliance on then-binding Supreme Court
precedent and presumptively-valid state law”); Janus v. AFSCME, 942 F.3d 352, 366
(7th Cir. 2019) (holding on remand that until the Supreme Court “said otherwise,
AFSCME had a legal right to receive and spend fair-share fees collected from
nonmembers as long as it complied with state law and the Abood line of cases. It
did not demonstrate bad faith when it followed these rules”); Clement v. City of
Glendale, 518 F.3d 1090, 1097 (9th Cir. 2008) (holding that a towing company was
entitled to assert a good-faith defense to a Fourteenth Amendment due process
claim based on the lack of notice to a towed vehicle’s owner because “[t]he
company did its best to follow the law and had no reason to suspect that there
would be a constitutional challenge to its actions”); Jordan v. Fox, Rothschild, O’Brien
& Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994) (recognizing a good-faith defense under
§ 1983 for due process deprivations); Wyatt v. Cole, 994 F.2d 1113, 1120 (5th Cir.
1993), cert. denied, 510 U.S. 977 (1993) (on remand from the Supreme Court, holding
that “private defendants, at least those invoking ex parte prejudgment statutes,
should not be held liable under § 1983 absent a showing of malice and evidence
that they either knew or should have known of the statute’s constitutional
infirmity”).

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(2d Cir. 2016), cert. denied, 137 S. Ct. 1204 (2017). In Jarvis, the lack of a
1
scienter element for a First Amendment violation did not defeat the 2
recognition of a good-faith defense because “unlike standard defenses, 3
affirmative defenses need not relate to or rebut specific elements of an 4
underlying claim.” Id. (citing Black’s Law Dictionary 482 (9th ed. 5
2009)). We find Jarvis well-reasoned. Because Appellees collected fair-6
share fees in reliance on directly controlling Supreme Court precedent 7
and then-valid state statutes, their reliance was objectively reasonable, 8
and they are entitled to a “good-faith” defense as a matter of law. See 9
Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (“There is common 10
law authority that it is objectively reasonable to act on the basis of a 11
statute not yet held invalid.”); Jarvis, 660 F. App’x at 76 (affirming the 12
district court’s application of the good-faith defense because “CSEA 13
relied on a validly enacted state law and the controlling weight of 14
Supreme Court precedent,” and thus it was “objectively reasonable for 15
CSEA ‘to act on the basis of a statute not yet held invalid’”) (quoting 16
Pinsky, 79 F.3d at 313). 17
In finding a good-faith defense, we note that nothing in Janus 18
suggests that the Supreme Court intended its ruling to be retroactive. 19
Indeed, the Janus Court held that “States and public-sector unions may 20
no longer extract agency fees from nonconsenting employees,” Janus, 21
138 S. Ct. at 2486 (emphasis supplied), and the Supreme Court 22
reversed and remanded for further proceedings rather than apply its 23
new rule to the parties before it. Cf. Harper v. Va. Dep’t of Taxation, 509 24
U.S. 86, 90 (1993) (holding that the Supreme Court’s “application of a 25
rule of federal law to the parties before the Court requires every court 26

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to give retroactive effect to that decision”). Even if the retroactivity of
1
Janus is presumed, no different outcome is warranted. A good-faith 2
defense would still preclude the relief Appellants seek. 3
Contrary to Appellants’ second argument on appeal, Appellees 4
cannot reasonably be deemed to have forecasted whether, when, and 5
how Abood might be overruled. Instead, they were entitled to rely on 6
directly controlling Supreme Court precedent, and in good faith, they 7
did so. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (holding that 8
courts, and by extension citizens, should “follow the case which 9
directly controls, leaving to [the Supreme] Court the prerogative of 10
overruling its own decisions”). 11
III. CONCLUSION 12
We have reviewed all of the remaining arguments raised by 13
Appellants on appeal and find them without merit. For the foregoing 14
reasons, we AFFIRM the April 29, 2019 judgment of the District Court. 15