of another's constitutional rights must be returned even if the defendant took the property in good faith and even if the defendant took the property in reliance on a statute or court decision that is only later held unconstitutional his court can assume the existence of a good faith defense under section one thousand nine hundred and three and this court can assume for the sake of argument that private defendants can assert a defense that resembles qualified immunity consistent with the holdings of other courts of appeals that have recognized the good faith of the fans and section one hundred and eighty three litigation but none of that is any help to the union because neither qualified immunity nor good faith will ever allow a defendant to keep the money or property that he took in good faith but in violation of another cause constitutional rights good faith can provide a defense to liability for damages that are inflicted by the collateral harms that accompany an unconstitutional but innocent taking of property but it does not shield a defendant from a restitution or a remedy that simply asks for the innocently but wrongfully taken property to be returned and united states against windsor for example the i r s had collected taxes in good faith reliance on the defense of marriage act before that statute was declared unconstitutional the good faith would shield employees of the i r s from liability for damages if a same sex couple were to sue for emotional distress or other harms that may have been inflicted unconstitutional tax collection but under no circumstance would the good faith of the i r s allow it to keep those taxes that it collected in reliance on a statute it believed to be constitutional but that was later pronounced unconstitutional by the supreme court those unconstitutionally collected taxes had to be returned notwithstanding the good faith of the i r s we now have the benefit as the parties alerted us to in the a twenty eight day letter of a thorough reasoned decision from the th circuit and a portion of that opinion really analyzed the nature of the constitutional harm that the supreme opinion judge when with respect the seven circuits opinion doesn't address the argument we're advancing before this court you know our claim is that there's a distinction between a claim for damages that are derived from collateral harms that arise from the unconstitutional seizure of another's property and a simple request to return the money or property that was taken in good faith mr janice did not raise the argument in his brief that we are making to this court and the th circuit had no occasion to address this argument in the janice opinion now in candor to the court ms mooney who had an accompanying case alongside mr janice did raise this argument that there's a distinction to be drawn between a restitution ery remedy any claim for damages that arise out of other harms that may accompany the unconstitutional seizure of property but the  address any of this in the janice opinion in the moonie opinion which is a shorter five to six page pandan that came out the same day as janice in which was also included in the union's twenty a j letter the th circuit addresses this point by trying to say that the remedy that we're seeking isn't really an equitable remedy it is in the seven circuits you are a quest for damages even the seven circuits right to call this a damages claim it does not in any way change the fact that we're seeking restitution restitution of the money that the union thug in good faith admittedly in reliance on a statute in reliance on a supreme court decision that at the time was believed to be constitutional but nevertheless was taken in violation of our client's constitutional rights and in no area of law a judge when do the courts allow a defendant who takes property your money in good faith but in violation of his constitutional rights to keep that property if the owner says for its return not in windsor not in the search of congressman jefferson's office which was done in good faith reliance on a search warrant that was later declared unconstitutional not in criminal law if fines are collected in reliance on a statute that is later declared unconstitutional the fines must be returned not in victims restitution law even victim restitution awards that are based on statutes that are later declared unconstitutional those have to be repaid when the person who paid the victims restitution six it's recovery there's no example anywhere that we have been able to find there's no example of the th circuit  cite and there's no example the union can cite or any other defendant is made out of my point is that the analysis laid out by that opinion really i think fairly correctly characterized the nature of the injury that the supreme court was talking about is a st amendment injury so whether it's characterized as restitution very clean doesn't change the fact that it's really by nature of damages that you're seeking but even assuming it's res detention the money in the sense that that services really were rendered yes i think it's quite possible that our clients may have very well received some type of benefit from the union representation despite the fact that they paid this money unwillingly but we don't think that should in a way affect the remedy in this case and judge when the hypothetical i would pose is let's suppose the union decided to ignore janice and kept on taking agency fees from her clients paychecks i know they haven't done that they have complied with janice but if a union were to fire janice and continue taking agency fees they couldn't try to defend themselves in a lawsuit for restitution by claiming that they conferred some benefit on the victims who had their money taken even if they in fact had conferred such a benefit because the supreme court held in janice that that's not sufficient justification to take money or property without the nonunion members consent and no different result can obtain in this situation because the supreme court's ruling in genesis retroactive based on what the supreme court said in harper that any decision issued by the supreme court and troubling the constitution will have retroactive effect as long as supreme court applies that constitutional rule to the parties before it which it did in janice now to get back your earlier question judge when there is some discussion at the beginning of the seven circuits opinion about the nature of the constitutional injury and your honor suggests that i think this is the passenger referring to were judge wood says this is not a takings violation it's a st amendment violation in our view that doesn't change in any way the type of relief for requesting money was taken in violation of the constitution whether that was taken in violation of the speech clause or the takings clause or some other provision of the constitution doesn't matter for purposes of what we're seeking we're just asking for that money to be returned nothing more than that if we work seeking damages for emotional distress if we were seeking punitive damages the union would have a good faith defense undoubtedly under the president of this court and under the rulings from other that is the relevant decision from this court this is where a car was towed in good faith alliance on a police officer's instructions and this court held that the plaintiffs who had her car towed could not recover damages from the towing company under section one thousand and eighty three because the towing company acted in good faith reliance on the police officers instructions but under no circumstance would towing company be allowed to keep the car that was towed even if it acted in good faith no one gets a windfall for violating another person's constitutional rights even if the violation occurred in good faith reliance on the statute or a good faith reliance on a supreme court decision the wrongfully taken property still has to be returned another relevant case is white against kohl on remand of the th circuit this is a case that the th circuit relies on heavily in establishing a good faith defense for  the st time in the th circuit but it's crucial to note in why it the property that was seized in good faith reliance on the reply been statute the cattle in the tractor that had to be returned the state court ordered the return of the cattle on the tractor no one argued in why it and no one i think could reasonably argue that the good faith reliance on the replevin statute should not only immunize independent from damages but also permit the defendant to keep the cattle in the tractor  the wrongfully taken property has to be returned even if there's an immunity for damages for other harms that may have been afflicted while the seizure occurred and i see i'm starting to get into my rebuttal time so if i could i'd like to court my name is casey pitts and i represent the appellee washington federation of state employees asked me telcel twenty eight in this matter plaintiff's counsel has conceded that there is a good face defense to section and three liability that's available to private parties in this circuit so the only question presented here is whether that defense applies where a private party relied not only on it presumptively valid state law but on then binding united states supreme court precedents in the conduct at issue as the district court properly recognized those facts present the the strongest possible circumstances for application of the good faith defense when the unions received fair share fees to pay for their ongoing collective bargaining on behalf of all individuals in the bargaining units they represented collective bargaining they had a league representation they had a legal obligation to provide to all members of the bargain those fees were authorized by state law and constitutional under abood vs detroit board of education as every court to consider the issue has recognized including the court below in this case and the th circuit yesterday in the janice in m cases private parties cannot be held liable under section one thousand nine hundred and three for having followed the law in this fashion how do you deal with this restitution argument that's what we're talking about here that's true and quite simply the th circuit properly recognized in the janice and moonie decisions that plaintiffs here are not seeking the equitable return of property no matter what what they contend before this court plaintiffs are seeking a legal remedy namely they're seeking damages for the violation of their st amendment  rights as judge and when recognized the claim here is premised on the st amendment it's premised on the use of plaintiff's funds to support expressive activities with which they disagree that is the right against compelled association and compel the speech that it was recognized in janice and that's an issue in this case if plaintiffs money had been taken and held by their public employer or by the union and not used in a manner that implicated their expressive activities to which they objected there would be no  amendment issue but we in this case we are here on a st amendment claim not a property claim and that's to say that so they are pursuing a damages ready remedy for that st amendment right furthermore would you also contend that of that that i want to point out that make the claim that they're making about the relief they're seeking an opposite the st is that the money that that was paid the fees that were paid has already been spent it was spent by the union in the providing ongoing representation to all members of the bargaining unit this is not a case where there is property either intangible or tangible that belongs to the you notice that is in the defendant's possession that they're seeking to retake the money is has been spent and what they are seeking is a general award of damages or money from the general assets of the union and the court at this quote recognize just this term in the depo incorporated person carrying montana caring for montanans decision and the supreme court has emphasized that that kind of monetary relief against a defendant's general assets is a legal remedy it's not an equitable form of it's not an equitable remedy of any kind but as your honor points out even if they were seeking an equitable remedy the equities here would not support the kind of rel that they're seeking because because for the reason you pointed out the union did provide representation to the people who are now seeking the repayment here the union can't take that payment back at the time fair share fees were lawful under binding supreme court precedent the union made a choice about how to allocate its costs of collective bargaining across the entire bargaining unit and did so consistent with the law the time and then it provided representation using those funds the funds are gone the representation has been provided and egg can't be unscrambled retrospectively in the supreme court in the davis case and the lemon to case if emphasized how important those reliance interests are in thinking about thinking about whether the equities would support relief i think in that respect a case that the court could give particular attention to is the supreme court's decision in ellis st as railway clerks that was a case about what a union under the pre janise of bood regime could properly charge its members for what would be chargeable meaning that they were germane to collective bargaining and what would not be chargeable meaning they weren't and and that fair share fee payers could not be required to pay for those and one dollar of the things  issue in that case was death benefits and the union that service exclusive represented had require all members of the park and unit to pay a certain amount for death benefit that benefits and the plaintiffs in that case contended that that violated the constitution and that they should not have been required to pay for those benefits the supreme court in the ellis case ultimately said we don't have to resolve this issue because the union and beast been decertified so the people were no longer paying for the death benefits just as the individuals here are no longer paying their f and the court said and the equities certainly would not support a remedy requiring that these people get the money they paid for those that benefits back the court recognize they could receive those benefits and the equitable equity would not support an order requiring their i want to make it clear the scope of the claims that they're making you know they claim there is some free standing principle that property even intangible property entirely intangible property like the one that issue here  three for example they rely upon the windsor case but of course the windsor was case was a case that was brought pursuant to the proper tax refund mechanism that congress has established for seeking a refund of taxes after their payment under plaintiff position in fact every taxpayer who had paid increased taxes prior to the invalidation of doma could have after that gone in and brought in my section one thousand nine hundred and three lawsuit against the united states government seeking an order requiring the return of all those payments not withstanding that there is an entire separate body of law that says you need to pay your taxes under protest and go through this proceeding so similarly they rely on cases about the return of funds but the cases they rely on even acknowledge that in the absence of the talker x waiver of sovereign immunity that that would not be and entitle them to the return of those funds so the cases they're relying on simply don't support the point they're making even this court's case in clemente vs city of glendale doesn't support the point they're making if you listen to the oral argument in that case or you read the briefing in that case it's a clear it's clear that the car at issue was never returned to the plaintiff in that case the towing company retained the car went to small claims court to get an authorization to sell the car to pay off the fees that had accrued as a result of its towing and the plaintiff never got the car back what was actually at issue was the damages resulting from their retention of the car it plaintiffs have raised a number of other arguments against application of the good faith defense we have explained in our briefing why those arguments are without merit and we think they're adequately addressed in the briefing and in the decisions that were issued yesterday by the th circuit in the janice in many cases so unless the court has other questions they would like me to address today i will sit down yes no question thank you no questions here thank you thank we all agree the union took this property in good faith and in reliance on statutes and reliance on court decisions that were at the time believed to be constitutional but none of that can defeat our client's claims for a restitution or a remedy in this case and nothing that mr pitts has said for closes the claim or seeking for restitution mr pitts begins by again relying on what the th circuit rationale was in the movie decision from yesterday by denying that we're seeking an equitable west to touche unary claim but it doesn't matter whether this claim is characterized as legal or equitable what matters is that we're seeking the return of property that was taken minutely in good faith but in violation of our client's constitutional rights of a hypothetical might be again going back to why it against coal the catalan tractor that were seized under the unconstitutional plopping statute had to be returned it wouldn't matter if the plaintiff who was seeking the return of the cattle instructor called that an equitable remedy or a legal remedy and it wouldn't matter if the cattle and the tractor had already been sold or destroyed by the defendant before the planet could sue for the return if that would happen but then it would have to pay the fair market value in the same way you would have to pay in an action for conversion our claim doesn't depend on whether this is that quotable or legal contract of the th circuit suggestion from yesterday mr pitts also mentions that the money has been spent but in all the cases that we've cited where money has been taken that was equally true the tax proceeds that were collected in windsor were mingled in the us treasury and spent money that was taken with respect to the fines and victims restitution awards in the cases that we cite throughout our brief that money was spent as well no one dollar actually traces the specific dollar bills that were initially taken in the gun the question is whether the property was taken in violation of one's constitutional rights and is the plan of seeking nothing more than the return of that property rather than additional damages i'm not sure i understand your argument that it makes no difference to characterize the remedy as legal or equitable if it is a remedy that sought pursuant to equitable principles and how would how would it be equitable to now ordered the return of the funds the reason it would be equitable is because the supreme court held in janice that it was unconstitutional for this money to be taken in the st place certainly under abood it would seem an equitable because a buddha prove the idea of forced payment in return for union representation once janice held that that system was unconstitutional and because the holding of genesis retroactive that defeats any equitable objection to the remedy because the supreme court in its holding in janice had said that not only was the prior regime an equitable it was actually a violation the st amendment and perhaps the supreme court was wrong to reach the holding that it did and it was a fifty four dollars decision of strong dissent by justice kagan but given the holding of janice and also given the retroactive requirement from harper that janice has to be given retroactive a fact and courts must act as though the st amendment has always opposed this requirement it's logically incompatible with janice to then say it's an equitable to have a refund remedy for money that the union should not have been allowed to take in the st place and mr pitts cited else during his argument but ellis was litigated as he admitted in a prejean regime when it was still the governing precedent so of course it was logical for the supreme court to say in alice that benefits were obtained by the plaintiffs despite the compulsory payment and would be an equitable toward a refund of that makes perfect sense when abood is the governing precedent mr mitchell and as you the clock is running on the clock wasn't running through so much i was really keeping