the court morning jonathan metro for appellant sara lee had like to reserve five minutes for a property that has been taken in violation of another's constitutional rights must be returned even if the defendant took the property in good faith even if the defendant took the property in reliance on a statute or court ruling that purported to offer lies it's unconstitutional conduct this court can assume the existence of a good faith offense under section nine hundred and eighty three dollars and it can assume for the sake of argument the private defendants can assert a defense that resembles qualified immunity in section  qualified immunity nor good faith will ever allow a defendant to keep money or property that it took from a plaintive in violation of the plaintiff's constitutional rights good faith can provide a circuit with respect to that panel just griffin did not address the argument they were making either in that case or in this case but the th circuit said was that the claim that we were asserting was not a claim for equitable relief they held that it was a claim for damages but our claim does not hinge the success of our claim does not depend on whether we're seeking a legal remedy or an equitable remedy what matters is that we're seeking restitution of property that was taken from our client in violation of our constitutional rights are asking us in courts that have said you know whatever language you use basically you're trying to do the same thing whether you whether you call it damages or you call it restitution you want money we want a restoration of property that was taken money has been taken from someone in good faith but later a statute is declared unconstitutional united states against windsor is probably the most apt analogy where the i r s for many years collected taxes in good faith reliance on the defense of marriage act later the defense of marriage act was declared unconstitutional the good faith of the i r s would of course shield the individual officers liability for damages but the government was still required to return the taxes that it collected in violation of the constitution from his windsor she's seeking a restitution of the well that was at that was a limited amount of tax the year you're asking for that in effect that only unions to disgorge he said they collected going back for everybody for who knows how many years that doesn't seem analogous to me their start here were only seeking recovery of fees within the statute of limitations and in the windsor situation people who were seeking refunds could only obtain refunds within the three year statute of limitations that is allowed for tax refund claims no one's proposing either and when what is the statute of limitations in this case i believe it's two years it would be borrowed from state law because this is a one thousand nine hundred and three action i believe that should limitations is two years another is case is the search of congressman jefferson's office where the f b i agents relied on a search warrant in good faith but the search warrant was later declared unconstitutional now the reliance on that search warrant would immunize the agents from any liability for money damages but the f b i was still required to return the property that it seized from congressman jefferson in violation of the speech and debate clause once again the distinction h between lawsuits that are trying to recover compensatory damages versus a lawsuit that's merely seeks the return of property that never should have been taken in the st place even though the property was taken in good faith and w against coal one of the th circuit decisions that relies on the good face the defendants had seized property in reliance on a state replevin statute that was later held to be unconstitutional the th circuit held that the good faith reliance on that statute would protect the defendants for money damages but the defendant still had to return the cattle on the tractor that they had seized in reliance on replevin statute but in violation of the plan his constitutional rights good faith never allows the defendant to receive a windfall by keeping the property that he took in admitted good faith but in violation of the constitution where you're flying under this paying the the arrangement to pay these fair share fees didn't receive any didn't have to pay for collective bargaining representation the money sh to compel speech but it wasn't it wasn't as though she didn't get anything at all for the money you wouldn't you wouldn't make that argument no we wouldn't make that claim she may very well have received some type of benefit on account of the unions collective bargaining activities were not were not denying that possibility judge quite but we don't think that's relevant to our claim for recovery because of jackass janice holds the even though there may be a conceivable benefit conferred on the unwilling payers of the union that does not allow either the state or the union to require the nonmembers to contribute financially to support what the union dead and because the holding of genesis retroactive well we don't know if it was i'm sorry i don't think genesis right because harper against virginia department of revenue says that any pronouncement of the supreme court prospective application i think there's a language of the supreme court opinion that talks about from here on out we will no longer allow unions to extract money from their members there's language in there it talks about future actions in it and also it just doesn't make any sense when the supreme court overturns their own precedent which is a little bit of a distinction between the statutes that you cited as analogise and also the search warrant cases when the law of the constitution is actually overturned by the supreme court over over rule in their prior precedent i don't think retroactive to pivot either the policy that makes any sense and i see it as an open question these ducked the issue in the janice remained case but it doesn't mean we have to duck it if there was a time judge griffin when the retroactivity inquiry was more context realized in the one thousand nine hundred and seventy s when the supreme court applied this chevron oil test to determine whether a new supreme court pronouncement would be made retroactive and they looked at three different factors harbor clearly rejects that previous chevron oil regime and it purports to be adopting a rule that says that any pronouncement the supreme court will be retroactive so long as the supreme court is applying the constitutional holding to the parties before it and that case and the court clearly applied its constitutional holding to mr jackson there's another example of that a very recent vintage that i think is analogous here a burger fell against hodges overruled a prior precedent baker against nelson wonder stablished a constitutional right to same sex marriage all the courts have held that a burger photo is retroactive or at least every court opinion of which i'm aware and i haven't been that many maybe four or five i don't have the si with me or damage claims involving those right i mean that's no not in those cases that's correct and part of missouri i mean i think that the damage claims like light might be distinguishable but i know it's a tough  issue that's what they're good and there's still the qualified immunity defense that is available even when the decision is made retroactive the there can be other defensive statute of limitations as one defense of the mentioned earlier of a good defense i'm still not quite sure why you think this is distinguishable from what did you argue the th circuit guess ok i thought you did so you're saying that this is different from the th circuit case in what way but there's no difference really between the legal are gay says there's no difference in the legal argument that we're making in response to the seven circuits panel opinion which admittedly went against us they didn't answer the argument that we're making with respect to the restitution area nature opinion was that we're not seeking equitable relief that was their holding but that's not what our claim hinges on we're not saying that we have to show this is an equitable claim in order to prevail  good morning may please the court there's a reason why there is such an extraordinarily broad consensus among the circuit and the district court's going back thirty years actually to this court's duncan versus pect decision and then continuing through the pair of seven circuit cases that came down just last month for the proposition that private parties who invoke presumptively valid state laws are not subject to monetary damages remedies under section  three i think the core reason is this is that before the supreme court's nine hundred and eighty two decision in the lugar case it was an open question whether the section one hundred and eighty three under color of state law cause even applied or is broad enough to reach private parties where the private parties only conduct was invoking a presumptively valid state statute to secure the assistance of state officials and when the court decided luger and held that nine hundred and eighty three dollars covered that kind of private action it immediately in the same breath said that there were it recognized that point that the dissented made and gave in and agreed with the senate that there was a problem and  and a basic an equity could arise from you know from from application of section one thousand nine hundred and three to private parties in cases where the plaintiffs seeking damages and the court said this problem which it conceded should be dealt with not by changing the character of the one thousand nine hundred and eighty three cause of action but by establishing an affirmative defense to damages liability so the court flagged the issue then this court peck took that statement to heart and it recognized the good faith defense to section one hundred and eighty three damages liability for private party defendants rely on presumptively valid statutes and the duncan court this court did so based on the recognition that the prospect of holding innocent private parties liable for following presumptively valid was doesn't just offend modern sensibilities the court said it's an injustice that the common law did not tolerate either so because the supreme court has repeatedly said in interpreting section one hundred and eighty three dollars that the statute shouldn't be read to have silently rejected basic common law his concurrence in the later case of wide versus coal sided common law precedent for that point so that's an i start with that even though it is conceded by my opponent that the good faith defense applies but i think it's important to start  foundation because once you realize that that's the foundation there's no reason why it shouldn't apply and the courts have not made the distinction counsel for the other side has made between whether something is whether in monetary retrospective monetary award you know how it's technically labeled so the real question is whether the good faith defense applies here or not whether there is a good faith the fence and there are two features of this case that make this is the strongest possible candidate for application of the defense and the  that here the union was not simply relying on a presumptively valid state statute it was relying on state law that had been tested in court of course in the abboud case and found to be constitutional by the highest court in the land so most of the good faith affect all of the good faith defense cases until the the post janice cases found the defense even where there wasn't a clear precedent it was sufficient that there wasn't  and then the nd feature of this case that makes this one particularly strong was alluded to i think in one of judge clay's questions which is that the unions collected the fees here for the purpose of benefiting all of the employees who it represented whether they were members or non members so the union had a statutory obligation to take these monies the union didn't put them in a vault somewhere or you know sequester the funds the union immediately and it's undisputed was spending the funds to provide services and i think council very candidly acknowledged in his opening remarks here that services were provided to everyone including non members like the plaintiff so those two features make this case actually stronger than the duncan versus pack case which is you know this court's lead case and there's a feature of duncan that i think deserves more attention then than it has been given the briefs and so i'd like to highlight that and that is if you look at the facts of duncan what happened there is that the defendant who is a gentleman in pack used in ohio attachment statute that was later held to be unconstitutional so he used that statute to you know get a government official sheriff you know a government agent to seize shares of stock that were owned by the plaintiff duncan and he used the attachment statute in advance of serving a breach of contract complaint duncan so he seized property sort of shares of stock as security for his contract action without notice under a statute that allowed after that attachment statute was declared unconstitutional duncan then sued under section one thousand nine hundred and three and sort of the plaintiffs in defendants reversed and duncan sued seeking as a remedy only the return of the unconstitutional shares of stock and on those facts this court held that peck had a good faith defense and could keep the shares of stock so i bring that up here because this is so argument has really been reduced now to this supposedly universal principle that unlike you know that unlike in all of the other cases where the nature of the wrong involves a transfer of property that there's no good faith defense but the leading his duncan is inconsistent with that theory with the plaintiff's theory of how section one hundred and eighty three in the good faith defense work on the plaintiff's theory pac would have had to return the stock no questions asked but the courts really meant that he could keep the stock so i think that's really  sufficient i think to respond to the plaintiff's argument but the reality is that there are numerous decisions and authorities that are inconsistent with the plaintiffs in a sort of sweeping statement that without exception until the until the recent round i think there's been a little bit of a switch of theory with all respect to my adversary since the janice decision the theory presented in both the janice briefs and in this brief is that a plaintive seeking the return of property or fees in this circumstance is bringing a claim in equity and not a claim that would be an action of law and therefore the argument was you could have either a good faith defense or a qualified immunity defense to an equitable and trying to distinguish all of the damages case on that basis well you know the truth is that this really is properly characterized as a damages claim but at the end of the day it really doesn't matter because i think the defense would prevail under either theory good why it would apply and in fact like an equitable doctrine well that's right and it would apply circus if you were to root for the plaintiffs absolutely you would have to create a conflict i mean they try to distinguish this case from janet's case on remand i mean is there a distinction here there is no distinction cases that this case is on all fours with janice we're we're all always i mean we can create interest circuit conflicts but we're always reluctant to do it you know when you're one of your better argument well sure i mean i would say the janice came down think this would not be a circumstance where where there should be a circuit split and i do think you'd even risk creating an intra circuit conflict given how the duncan case unfolded so little bit of attention again to the supreme court's decision in the women two case that's the nd women case the st woman case and found it was a constitutional violation for the state of new york to provide funds to a  religious school even for a to provide a secular program when then the court the case came back to the court because the district court had said well the the school couldn't even receive continue to receive payments for services already rendered and then justice rehnquist wrote lemond him and he said that there's no need to apply that remedy those funds can be expended because the plot private party relied in good faith on a presumptively valid new york statute so we lay that out in our brief the ellis case which is a union case where one element in that case the question is whether agency this was in the abboud era but even in the abboud era of course there were certain expenses expenses that were not consistent with the st amendment if it if the expense was not germane to collective bargaining so there was an item in alice about and this is also discussed in our briefs about a death benefit program that the court said you know just said was of questionable validity and said but we don't have to resolve the validity of that because it wouldn't be equitable to make the union refund those monies because the program on which that the union expended the monies for did provide a benefit to the even to the nonmember objector protested so there's no universal principle against applying equity in these kinds of circumstances the restatement rd restitution which is obviously the definitive compilation of the common law in this area an illustration that we cite in our brief it was traced in seventeen to section nineteen it involves the following fact pattern where the city assesses a property tax in a nondescript to tory basis the tax is subsequently determined to be improperly authorized an invalid and void and then the illustration says that if the revenues illegally collected were spent exclusively on ordinary municipal services benefiting taxpayers among other residents the court may find that neither the city its residents have been unjustly enriched and therefore there is no restitution a remedy in that case so that it was striation duncan lemon there's all sorts of authority that refutes the notion that there some sort of universal written rule in cases like this and then i'll wrap up but i do want to address one of the arguments made in the amicus brief by amicus go and that argument is that the good faith defen may be applied only when the underlying constitutional violation on which the one hundred and eighty three action is predicated requires proof of malice or bad faith or some other kind of see enter and the amicus is argument is the no says that no c enter is necessary to show a st amendment violation under janice and therefore there should be no good faith defense and that argument also does not line up with the cases and in fact the lead case is that recognizing allow a private good faith defense including again this court decision in duncan the th circuit's decision and why and the other kind of leading circuit court cases all of them that st generation of cases all involve procedural due process violations and no showing of c enter is required to establish that kind of violation either the th circuit said it well in the dodd versus richardson case which we said in our brief the th circuit said procedural due process violations focus on the sufficiency of the procedural protections afforded the plaintiff not the state of mind of the officials who establish or apply the duncan was seeking to quote enjoin execution of the default judgment and seek damages for deprivation of his property interest in the stock he was not asking for a return of the stock he was seeking damages same dollar bills that she paid into the u s treasury but she did get the money back and we also have cited cases in our briefs where criminal fines are paid off and in reliance on the statute that is years later held to be unconstitutional and have held uniformly that those fines have to be returned so there isn't any case that we can find or that mr diane has cited outside the context of public sector unions where money that has been taken in the middle good faith reliance on a statute that is later declared unconstitutional gets to be capped the money or the property that's taken has to be returned even when the defendant has an immunity from damages there's one of the case of this court dealing with good faith and that specter research and vector research involved in unconstitutional impoundment of property that was done in good faith reliance on the statute the defend it was held in new and from damages but the impounded property was still returned so again neither in duncan against pak or infective research is there any holding from this court saying that the defendant who takes property in good faith gets to keep it even when he has an immunity from damages so it's griffin you ask mr deland whether good faith should apply to equitable claims and there's a whol from this court in dean against which we cite on page nine of a reply brief that says a qualified immunity is an act local to claims for equitable relief so although that's not a holding on the good faith the fence we can't see why there should be any different treatment between qualified immunity and good faith in that respect especially when so much of the union's argument hinges on creating a defense of good faith that essentially resembles qualified immunity just given you also asked about the issue of a circuit split would it create a circuit split to rule in my client's favor and this case there are two different th circuit cases just to clarify mr dance response there's janice and there's a new me this case is in our view characterization because mr janice did not make before the th circuit the argument that we're trying to make which is that claims that are seeking restitution of property that was taken in good faith are different from claims for duck like you told us that you did make that argument in money that's correct there are two different seven circuit cases i'm sorry than that but i thought that the original case in the th circuit included both claims