including the lights that indicate green yellow in red i will be keeping track of time on my phone and there will be a buzz that you might hear in the background and then when you hit time you will have the ability to finish your response within reason and then hold a panel to see if there is any additional question with that i understand from the oral argument sheets i have before me that mr kelsey made it please the court the defense is arguing in this case really boils down to one word and not one word it's fairness they claim that it's not fair to hold a private party liable for phone state statute that was valid under the cause there is no such thing as a good faith defense against a private party it simply does not exist we asked the court not to create it in this case section one hundred and three it's clear that it applies to every person under color of state law denies a constitutional right it was designed to go after state officials who are following state laws to violate federal constitutional right to then turn around and use that defense was following the state law to deny liability its attorney what was an element of the statute acting under color state law instead into a defense and a court cannot rewrite a federal statute like that there in the opinion of the of the court in the wyatt versus polk case the supreme court rejected an equity argument that was very similar to the one made here today the court said that fairness to a private party who was following a valid state statute might lead to long to give in that case what was unity to the private party but instead the court said no and we rejected that equity argument this court of course also addressed this particular issue in the jordan case and there in the jordan case it does allow for a mind requirements specific to that particular federal right under wine and i section one thousand and eighty three point the particular federal rights underlying the claim to miss case is free speech and free speech violations do not require specific in under janice there is no state of mind required just tell us the constitutional violation the very act of taking agency fees from workers against their will makes it a violation of the st amendment it doesn't matter whether the unions acted with malice or lack of probable you've got to follow state of mind requirement specific to that particular federal right and that case the claim was one of the use of judicial process of the law firms who had was executing the judgment against with the decision in this case where they said there is no common law history before age and seventy one of private parties enjoying a good safe distance the constitutional claims now on the particular question of the cases that were and here's what the collective bargaining agreement says it has a line in there that says quote authorization from nonmembers to deduct fair share fees shall not be required so they did not authorize this in any way shape or form like the taxes where  ali that is a different situation from this one in which my clients simply had their money taken from them directly out of their paychecks with no authorisation what you just can't apply it just based on principle of equity but even if you look at principles of equity they still fall in favor of my clients st of all my clients are entitled to a legal remedy under the statute so there should not  an appeal to equity but even if you do fairness cuts both ways and the stronger argument is decided the victims of the constitutional deprivation and not make them pay for the s c i use unconstitutional conduct a few one thousand dollars might mean  correct ok counsel you are at times are there any any questions for me to panel members now ok i will turn it over to  if that works may it please the court property that has been taken in violation of another's constantly snow white must be a rip current even if the defendant took the property in good faith and none of that is any help to the union because neither qualified in nor good thing will ever permit a defendant to keep money or property that in islands and another is constitutional white good faith and it strikes me that maybe the fairest reading at least the most balanced get might not be the correct reading from your perspective but at least the most balanced reading if it were at a situation really straddles the line between law and equity sometimes restitution is a legal were it is truly legal in its nature and other times it need be equitable what i understand from your argument which is a good intention with if we will only get equity wouldn't you be limited to only those equitable components of restitution which often intend that constructing some sort of remedy as opposed to the unjust impose a construct because the union not contending anyway that the money in its general treasury is insufficient to have a client and to impose an equitable trust we don't need to trace back dollars that will put into the point because it seems to me that really what you're doing is you're basically saying it's a good faith defend it in has some degree of tempo moral component to it in the sense of even if the acquisition i don't want to say taking people up into taking squads but even if the acquisition itself may have been steeped in good faith at the time but continued work tension afterwards may no longer be steeped in good faith and then hope for a period what you're saying probably the statue of limitations period you're saying well that that continued work tension even if there was a good state it was pursuant to state law but it was not voluntary they had no choice i might think pat the money was taken automatically from their paycheck they opposed to paying money but there was nothing they could do about it the employer diverted the money private party which under wyatt said you know we're not foreclosing the fact that private party but be you know could have a good faith defense and here think like maybe in the back of our mind you're saying well the union has the money so they should return it but to strike the concept that you know any private party is not entitled to a good faith defense and it's going to have to repay the money that it might have received when it goes to court would in fact when faced with a private party situation such as this would would not do what it said it might be you know in equality and fairness required and why it what's your right to focus on the fact that this is a section one thousand nine hundred and three lawsuit against private party is not a lawsuit against a government entity in luger the supreme court held for the st time that private party that forgo self suggested that there be recognition of an affirmative good faith that there's now a broad and unbroken consent that that private party may have certain that this court itself held in jordan and every court to consider the issue it held including four other circuit court now that the facts here which involved public employee unions good reliance on then binding to putting court precedents in accepting and then expending agency fees for ongoing collective bargaining present the part the strongest possible circumstances replication of the good faith that well let me out let me push back a little bit on these two things one you say that their union him to be among the  other affirmative defenses that are very narrow they apply only to certain causes of action for instance assumption of the risk in certain states may be an affirmative defense of the tort claims but not contract quite direct might be on and on it strikes me that in order for you to really be able to assert a good faith that then you have to show one of two things you either have to show that good faith gets into the cover the waterfront sort of up from the defense like statute of limitations or according to out of action or you have to prove that that good faith is a defense but if it constitutional violation it poorly here that compelled beach i don't see how good faith work if it doesn't meet one of those two so can you talk to me about pushed in the cases before the circuit they actually involve the same counsel on the on that call and the same argument has been made in the court to reach the same decision in considering those but to answer your question jordan makes invoking for instance in jordan a confession of judgment cause but wow this is the application of the state and they statute to a negotiated contract in which the state was a part of that there's much union which had an obligation to represent all of the big members of the bargaining unit regardless of their membership or not how they had to determine how it would fund that collective bargaining representation and reliance on state law don't think it is staying for purposes of the good faith defense which which protects the ability of private parties whether it is kind of party seeking to acquire another entity property or private party thinking to fund an obligation that they have under state law to provide collective bargaining to all bargaining unit labor to rely on state law and then binding supreme court precedent in this case and jordan made it clear jordan was very clear about what it was deciding when it said to question as to whether this good faith the fund is tailored to a specific constitutional claim or is kind of i'm calling to covering the waterfront type i'm inferring that your answer is that it covers the water front based on federal right under a line section nine hundred and eighty three claims but to the particular federal right underlying affection and keith requiring so it strikes me that if you want to have a good faith defense there have to be and that's because if the court moved beyond thinking about jordan itself to the other relevant consideration which include both the common law background and the other principles that have been that guy the construction expression of activity how they bargain for health insurance premiums or other caught the process would be the same but it would have been put towards an end permissible and that is exactly the nature of an abusive process toward a common law in which torah rows where a otherwise permissible process was put towards an impermissible and that's why it is so recognised the common law principle of extremely strong that parties private parties who engaged  that sort of use of the process were not liable unless there was a showing of malice and lack of probable cause so judge button got it just right in the ogle opinion and realizing that looking to that common law background  please so in the st place there are two sets of you as this court recognized i think in the opening argument the core principle that set forth in those cases is that point it could not undo prior transactions on the basis of a shared mistaken understanding of law which is really what the issue here the private party cases are perhaps the most relevant because it is a case involving private parties rather than the government itself in those cases make it clear that a prior transaction will not be  done on the basis of a subsequent judicial decision making it clear that their understanding of the law at that time was wrong but even the cases involving gov the government which are under the legal analytically to think because they don't involve private part support a recognition here that the town of the burnett case out of the supreme court of alabama particularly illustrative of that principle the court basically held that when the dealer the liquor dealer chose to go into business and a threat expected and remained in public employment with the understanding that that they would be required to pay the fee that the condition of employment and the common law was crystal clear that that decision to to support that in this case just a column famously said about public employment that the common law that a an individual may have a constitutional right to talk politics but you have no constitutional right to be a policeman so from the brief of our colleague in the un think case and the submission just made that this court jordan decision is broad enough and is written in terms broadly enough that it does control but because of the questions here i would like to show that it's correct independently of that and that it would apply and that the proper principles would cover a case like this and i think the easiest way to conceive of that and to understand it is to go back to the enterprise you know in y if self and the concurring opinion by justice kennedy which is joined by justice scalia and the defending opinion of the chief justice with two others joining him where they both said in that five vote that there would be a common law good faith the common law would support the the importation of a good faith defense into section one thousand nine hundred and three just as the court conduct of the type issues stripping away the labels to be conduct that considered subject the defendant to liability without any fault that the common law or whether instead only a party and gauged in conduct with a case no matter the activity by proving the constitutional violation acutely that it might have been a secure damages simply by proving the violation and this is a critical point the point of absolutely can't secure it goes to the taking but then it goes to the continued recantation i mean and so you know i'd like to hear thoughts on that but also let me ask this question about the common law common law there was a judgment entered against you know  defendant and the defendant maybe not on the best advice of counsel paid the judgment right away and then that judgment was reversed you know on appeal when a common law that defendant have a right to get that money that they paid back or would be have to be well you should have paid it then and we evaluated only at the time you paid and let me take the two questions pattern that makes an even stronger application for the good they have been than some of the earlier generation of cases and that is that in these cases it is undisputed that the union didn't just collect the money and as one dollar court said put it in a vault somewhere same thing and went that the question here is is that the union didn't just collect these fees they spent them for the benefit of the very class that the plaintiff belonged to they were required under state law in their duty a fair representation which is the type duty to him to take the money received and then spend it for the benefit of everyone whether or not they were a member of the union so everyone whether or not their member of the union got the benefit of course of wage increases and grieving family and any number of rendered and if you look at this through a common law when and we cited provisions of the repayment on restitution in our brief if you look at it through even the per land you know mr mitchell in this case he lived through that and we cite you know various provisions of multiple restatement on this so that common was not the party change their position in reliance on a good faith mistake of law i would not have to return the money taken it perhaps they had as i said before put it in a vault and have not changed their position and rewind there'd be a different you know depending on you know the court case in the court you might have a different outcome but none of that matters here because there's no dispute as to what's happening in the union cases and the court the th circuit could have decided this at least some of those decisions if not all of the make this very point so you know so so going back to that broader framework starting from st principles private party who did not resort and it's interesting that my colleague in explaining conversion did give an architectural conversion case that the person resorting to self help to take a wallet off the podium or into you know process of government statute or process to secure property was protected and wasn't strictly liable to the other side so you know that that be a crucial point and that is why all four court have said that the closest analogy is abuse of process because the central you know when you when you look at it the correct inquiry is that well you know when a private  party you know we've the government out of the equation and resort to self help there's no constitutional wrong at all because there's no state action once they're state action it's because under lugar the private party didn't resort to self help but followed and did what every private citizen is supposed to do you know normally a private citizen is protected by the constitution and not regulated so in a private party follows the process here is the defense and i make one last punch i think is really composed of the root of it  know he's barking up the wrong tree that's the way the cookie crumbles they specifically addressed an infant no twenty three and they said there is a problem here but it should be addressed through a good faith the family so i think i he believed that jordan has control here would we have to read man for terminations of subject you could say i don't believe so because the plaintiffs have not a legend that the unions here acted without good objective good faith and if you look at the way that the good faith defense kind of formed out of justice kennedy's concurrence which was then adopted in both the th circuit remain a case in white and this court decision in jordan where there is objective where where there's an objective leave valid basis for for you know the conduct that is sufficient in jordan good faith came into play because the court wasn't prepared to say there have been a previous case and i don't think where we are here there have been a previous case that had called into doubt the legality of the pennsylvania process of the law firms good case became very relevant in jordan but it's not relevant here that can be decided as a matter of la they're not really retaining anything that they spent the money it really in damages you you want to get the money back but they're not that retaining that they've actually spent it so isn't it really a claim that that even the union had no well look i mean i mean at one level i mean that i believe in the diamond point in who you represent that kind of have to subclass and he got this class of people who actually paid money to the union and then the religious objectors who said we don't want to pay the money to you yeah and sarah i am so so so let's just say you've got a restitution beyond constructive cross approach money can be spent but we don't money but but they never paid the money to the union so i mean maybe they maybe under your theory they would have a claim against the charity that they donated the money that they directed the money to but but how did that nd class ever have a restitution ery claim against the union that now you know maybe have a damage and claim you know assuming a good faith of the defense that applied but restitution aren't what is the basis for their restitution direction came from your client and the direction and then any other hypothetical that we want thank the cattle and then give it to charity it come from our clients your honor but they were still compelled by law with the union who claim to survive a motion to dismiss and it strikes on your head that really your st redress is against those those you know on the same restitution arre theory it would be against those other entities it were the alternate recipients of the