Allen v. Santa Clara Cnty. Corr. Peace Officers Ass'n

• Decision Date: 23 June 2022
• Docket Number: 19-17217
• Citation: 38 F.4th 68
• Parties: Sean ALLEN; Stanley Graham; Bradley Taylor; Juanita Wiggins; James Kirkland; Eric Liddle; Antonio Richardson, Plaintiffs-Appellants, v. SANTA CLARA COUNTY CORRECTIONAL PEACE OFFICERS ASSOCIATION; County of Santa Clara; Rob Bonta, Defendants-Appellees, and Mark Gregersen ; Eric Banks ; Priscilla Winslow; Erich Shiners; Arthur A. Krantz, Defendants, v. William D. Brice, Movant.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.4th 68

Sean ALLEN; Stanley Graham; Bradley Taylor; Juanita Wiggins; James Kirkland; Eric Liddle; Antonio Richardson, Plaintiffs-Appellants,

v.SANTA CLARA COUNTY CORRECTIONAL PEACE OFFICERS ASSOCIATION; County of Santa Clara; Rob Bonta,^* Defendants-Appellees,andMark Gregersen ; Eric Banks ; Priscilla Winslow; Erich Shiners; Arthur A. Krantz, Defendants,

v.William D. Brice, Movant.

No. 19-17217

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 22, 2021 San Francisco, California

Filed June 23, 2022

Jonathan F. Mitchell (argued), Mitchell Law PLLC, Austin, Texas; Talcott J. Franklin, Talcott Franklin PC, Dallas, Texas; for Plaintiffs-Appellants.

Grant A. Winter (argued), Mastagni Holstedt APC, Sacramento, California, for Defendant-Appellee Santa Clara County Correctional Peace Officers Association.

P. Casey Pitts (argued), Altshuler Berzon LLP, San Francisco, California; James R. Williams, County Counsel; Nancy J. Clark, Deputy County Counsel, Office of the County Counsel, County of Santa Clara, San Jose, California, for Defendant-Appellee County of Santa Clara.

Anthony P. O'Brien (argued), Deputy Attorney General; Benjamin M. Glickman, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Sacramento, California; for Defendant-Appellee Rob Bonta.

Before: Bridget S. Bade and Patrick J. Bumatay, Circuit Judges, and William K. Sessions III,^** District Judge.

Per Curiam Opinion; Concurrence by Judge Bumatay

PER CURIAM:

Several years ago, the Supreme Court overruled its own precedent on the free speech rights of public-sector employees. Overturning more than forty years of caselaw, the Court held that public-sector unions may not collect compulsory "agency fees" from non-union public employees because the practice violates the employees' First Amendment rights. See Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). Before Janus , the Court permitted such mandatory collection in Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). In California, state law also authorized the compulsory collection of agency fees from public employees. See Cal. Gov't Code § 3502.5.

In light of Janus , several public-sector employees including Sean Allen, Stanley Graham, Bradley Taylor, and Juanita Wiggins (collectively, "Employees") filed a class action lawsuit under 42 U.S.C. § 1983 seeking to retroactively recover any agency fees taken from their salaries by the Santa Clara County Correctional Peace Officers Association ("Union") and Santa Clara County ("County"). After Janus , the Union stopped collecting mandatory agency fees from nonconsenting public employees. But in this case, the Employees want a refund for the fees that were previously taken. The Employees seek to hold the County jointly and severally liable with the Union for compelling them to pay the pre- Janus agency fees taken in violation of their First Amendment rights.

The Union moved to dismiss the action, claiming that it was entitled to a good faith defense against § 1983 liability because its actions were expressly authorized by Abood and state law. The County joined the Union's motion to dismiss. The district court dismissed the action against both parties, holding that their "good faith" reliance on pre- Janus law meant that they need not return the agency fees.

Following dismissal in the district court, we addressed whether unions are entitled to a good faith defense for the pre- Janus compulsory collection of agency fees. We held that private parties, including unions, "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." Danielson v. Inslee , 945 F.3d 1096, 1097 (9th Cir. 2019).

As they must, the Employees concede that Danielson resolves their claim against the Union. So, all that's left for us to decide is whether the County is also entitled to the good faith affirmative defense that we addressed in Danielson. ¹ We review this question de novo. Dougherty v. City of Covina , 654 F.3d 892, 897 (9th Cir. 2011). Based on binding precedent, we affirm.

I.

Although left undecided in Danielson , that case preordains our decision here. In Danielson , we held that a union may assert a good faith defense in an action to recover retroactive agency fees if the union relied on binding Supreme Court precedent and state law in assessing the fees. 945 F.3d at 1097. Private parties may "rely on judicial pronouncements of what the law is, without exposing themselves to potential liability for doing so." Id. And precedent recognizes that municipalities are generally liable in the same way as private corporations in § 1983 actions. See Owen v. City of Independence , 445 U.S. 622, 645–47, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). It therefore follows that the rule announced in Danielson for unions also applies to municipalities. We thus hold that municipalities are entitled to a good faith defense to a suit for a refund of mandatory agency fees under § 1983.

1.

Before turning to the merits, however, we first consider whether the Employees forfeited their argument that a municipality cannot assert a good faith defense. The County argues that the Employees failed to make that precise argument before the district court, so we cannot consider it now. We disagree.

The district court dismissed the Employees' claim against both the Union and the County based on the good faith defense. Although the Employees did not argue that a separate good faith analysis applies to municipalities, the Employees argued that a good faith defense was categorically unavailable in a § 1983 action premised on a return of property or funds taken in violation of constitutional rights. "As the Supreme Court has made clear, it is claims that are deemed waived or forfeited, not arguments." United States v. Pallares-Galan , 359 F.3d 1088, 1095 (9th Cir. 2004). Appellants can make any argument in support of their claim on appeal—they are "not limited to the precise arguments they made below." Yee v. City of Escondido , 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). The Employees' argument that municipalities are not entitled to a good faith defense is not a new claim but is, instead, a new argument in support of their consistent claim that good faith is not a defense to a claim for return of property that was unconstitutionally taken. See Lebron v. Nat'l R.R. Passenger Corp. , 513 U.S. 374, 378–79, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). The Employees thus did not forfeit their argument against a municipality's good faith defense, and we may proceed to the merits.

2.

We next address whether municipalities, like the County, may invoke the affirmative defense of good faith in a § 1983 action seeking the return of compulsory agency fees collected before Janus. In Danielson , we concluded that a union may do so when the "conduct was directly authorized under both state law and decades of Supreme Court jurisprudence." 945 F.3d at 1098–99. In reaching that conclusion, we relied on (1) precedent, id. at 1099–1100, and (2) "principles of equality and fairness," id. at 1101. Looking to those same considerations here, we conclude that Danielson 's reasoning applies with equal force to municipalities.

A.

To begin, Danielson looked to precedent to determine whether private parties, such as unions, may assert a good faith defense to § 1983 liability. Id. at 1099–1100. Although the Supreme Court never answered the question, we noted that the Court left open the possibility of private-party good faith in dicta. Id. (citing Wyatt v. Cole , 504 U.S. 158, 168–69, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) and Lugar v. Edmondson Oil Co. , 457 U.S. 922, 942 n.23, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) ). For example, in Wyatt , while ruling against qualified immunity for private parties, the Court expressly did "not foreclose the possibility that private defendants faced with § 1983 liability ... could be entitled to an affirmative defense based on good faith." 504 U.S. at 168–69, 112 S.Ct. 1827 (citation omitted).

Examining our own precedent, Danielson observed that we had already recognized that private parties may invoke a good faith defense to § 1983 liability. 945 F.3d at 1099. In Clement v. City of Glendale , we said, "courts have previously held open the possibility that private defendants may assert a ‘good faith’ defense to a section 1983 claim" and held that the facts of the case justified such a defense. 518 F.3d 1090, 1097 (9th Cir. 2008).

In Danielson , we then rejected the contention that we should depart from Clement based on an apparent conflict with another precedent. Danielson , 945 F.3d at 1099 (noting tensions between Clement and Howerton v. Gabica , 708 F.2d 380 (9th Cir. 1983) ). Because we read Howerton to only foreclose qualified immunity for private parties, we concluded we were "bound" by Clement and found it "dispositive" on whether a private party could assert a good faith defense. Id. at 1099–1100.

Turning to this case, precedent also supports a municipality's ability to invoke a good faith defense in a § 1983 action. Contrary to the Employees' contention, the Supreme Court did not rule out such a defense for municipalities in Owen. In Owen , the Court rejected "a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations." 445 U.S. at 650, 100 S.Ct. 1398. In explaining its rationale, the Court stated that the "municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983." Id. at 638, 100 S.Ct. 1398. The Employees take this statement to mean that a municipality may not assert a good faith defense.

We do not read Owen so...