19-1563-cv

Wholean v. CSEA SEIU Local 2001

1 In the

2 United States Court of Appeals

3 for the Second Circuit

4

5

6 AUGUST TERM 2019

7

8 No. 19-1563-cv

9

10 KIERNAN J. WHOLEAN AND JAMES A. GRILLO,

11 Plaintiffs-Appellants,

12

13 LAKEISHA CHRISTOPHER,

14 Plaintiff,

15

16 v.

17

18 CSEA SEIU LOCAL 2001; BENJAMIN BARNES, IN HIS OFFICIAL CAPACITY 

19 AS SECRETARY OF THE OFFICE OF POLICY AND MANAGEMENT, STATE OF 

20 CONNECTICUT; SANDRA FAE BROWN-BREWTON, IN HER OFFICIAL 

21 CAPACITY AS UNDERSECRETARY OF LABOR RELATIONS, STATE OF 

22 CONNECTICUT; ROBERT KLEE, IN HIS OFFICIAL CAPACITY AS 

23 COMMISSIONER OF THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL 

24 PROTECTION, STATE OF CONNECTICUT,

25 Defendants-Appellees,

26

27 KEVIN LEMBO, IN HIS OFFICIAL CAPACITY AS COMPTROLLER, STATE OF 

28 CONNECTICUT,

29 Defendant.

30

31
2

1 On Appeal from the United States District Court

2 for the District of Connecticut

3

4

5 ARGUED: DECEMBER 12, 2019

6 DECIDED: APRIL 15, 2020

7

8

9 Before: CABRANES and LOHIER, Circuit Judges, and REISS, District 

Judge.* 10

11

12 In this appeal, Plaintiffs-Appellants Kiernan J. Wholean and 

13 James A. Grillo contend that the United States District Court for the 

14 District of Connecticut (Eginton, J.) improperly dismissed their First 

15 and Fourteenth Amendment claims brought pursuant to 42 U.S.C. 

16 § 1983 to obtain repayment of fair-share union fees collected pursuant 

17 to controlling precedent. Because we hold that a good-faith defense 

18 applies to Appellees’ collection of fair-share union fees, we AFFIRM

19 the District Court’s dismissal of Appellants’ Second Amended 

20 Complaint.

21

22 JEFFREY D. JENNINGS (Milton L. Chappell, on 

23 the brief), National Right to Work Legal 

* Judge Christina Reiss, of the United States District Court for the District of 

Vermont, sitting by designation.
3

1 Defense and Education Foundation, Inc., 

2 Springfield, VA, for Plaintiffs-Appellants.

3 SCOTT A. KRONLAND (P. Casey Pitts, 

4 Altshuler Berzon LLP, San Francisco, CA;

5 Daniel E. Livingston, Livingston, Adler, 

6 Pulda, Meiklejohn & Kelly, P.C., Hartford, 

7 CT, on the brief), Altshuler Berzon LLP, San 

8 Francisco, CA, for Defendant-Appellee CSEA 

9 SEIU Local 2001.

10 CLARE KINDALL, Solicitor General (Philip 

11 Miller, Assistant Attorney General, on the 

12 brief), for William Tong, Connecticut 

13 Attorney General, for State Defendants14 Appellees. 

15

16 CHRISTINA REISS, District Judge:

17 Plaintiffs-Appellants Kiernan J. Wholean and James A. Grillo

18 contend that the United States District Court for the District of 

19 Connecticut (Eginton, J.) improperly dismissed their First and 

20 Fourteenth Amendment claims brought pursuant to 42 U.S.C. § 1983 

21 against Defendants-Appellees CSEA SEIU Local 2001 (“Local 2001”); 

22 Benjamin Barnes, Secretary of the Office of Policy and Management for 

23 the State of Connecticut; Sandra Fae Brown-Brewton, Undersecretary 

24 of Labor Relations for the State of Connecticut; and Robert Klee, 
4

1 Commissioner of the Department of Energy and Environmental 

2 Protection for the State of Connecticut (collectively, “Appellees”). We 

3 hold that a good-faith defense applies to Appellees’ collection of fair4 share union fees from Appellants and therefore AFFIRM the District 

5 Court’s dismissal of Appellants’ Second Amended Complaint.

6 I. BACKGROUND

7 Appellants Kiernan J. Wholean and James A. Grillo are 

8 employees of the State of Connecticut. Appellee Local 2001 is a union 

9 that represents State of Connecticut employees. The remaining 

Appellees are State of Connecticut officials.1 10

11 On June 13, 2018, Appellants, who are not members of Local 

12 2001, filed a Complaint against Appellees, asserting that they were 

13 forced to pay fair-share union fees to Local 2001 as a condition of their 

14 employment in violation of the First Amendment to the United States 

15 Constitution. Appellees admit that they collected fair-share fees from 

16 Appellants, but contend they were entitled to do so under applicable 

17 law. During the pendency of Appellants’ lawsuit, the United States 

18 Supreme Court decided Janus v. American Federation of State, County, 

19 and Municipal Employees (“AFSCME”), Council 31, 138 S. Ct. 2448 (2018) 

20 wherein it overruled Abood v. Detroit Board of Education, 431 U.S. 209 

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.”).
5

1 (1977), to hold that the collection of fair-share fees from public-sector 

2 employees violated the First Amendment because they “forced [non3 members] to subsidize a union, even if they choose not to join and 

4 strongly object to the positions the union takes in collective bargaining 

5 and related activities,” thereby “compelling them to subsidize private 

6 speech on matters of substantial public concern.” Id. at 2459-60. 

7 After Janus was decided, Appellees ceased deducting fair-share 

8 fees from Appellants’ pay and refunded any such fees collected post9 Janus. Thereafter, Appellants amended their Complaint to seek the 

10 return pursuant to 42 U.S.C. § 1983 of all fair-share fees collected by 

11 Appellees pre-Janus allegedly in violation of the First and Fourteenth 

12 Amendments to the United States Constitution. 

13 On October 1, 2018, Appellees moved to dismiss the First 

14 Amended Complaint, asserting a good-faith defense based upon their 

15 compliance with Conn. Gen. Stat. § 5-280 (authorizing, among other 

16 things, the collection of fair-share fees from non-members) and 

17 directly controlling Supreme Court precedent that rendered the 

18 collection of fair-share fees from non-consenting, non-waiving, non19 member public-sector employees lawful. See Abood, 431 U.S. at 235-36. 

20 While the motion to dismiss was pending, Appellants filed a Second

21 Amended Complaint. 

22 On April 26, 2019, the District Court dismissed the Second 

23 Amended Complaint, finding Appellants’ claims for declaratory 

24 judgment and injunctive relief were moot based on Janus. With regard 

25 to Appellants’ assertion that Local 2001 continued to violate the First 
6

1 and Fourteenth Amendments by retaining pre-Janus fees, the District 

2 Court concluded those claims were barred by the defense of good-faith 

3 adherence to existing precedent.

4 II. DISCUSSION

5 The Second Circuit reviews a district court’s dismissal of a 

6 complaint de novo using the same standard employed by the district 

7 court. See Purcell v. N.Y. Inst. of Tech. – Coll. of Osteopathic Med., 931 

8 F.3d 59, 62 (2d Cir. 2019). Appellants urge this court to reverse on two 

9 grounds.

10 First, Appellants contend that 42 U.S.C. § 1983 does not 

11 recognize a good-faith defense beyond qualified immunity. They 

12 assert one cannot be implied because a First Amendment violation 

13 does not turn on a violator’s motive and there is no analogous common 

14 law tort from which a good-faith defense may be extrapolated. 

15 Second, Appellants urge this court to find that Appellees should have 

16 anticipated Janus and ceased collecting fair-share fees on that basis. 

17 We hold that a party who complied with directly controlling 

18 Supreme Court precedent in collecting fair-share fees cannot be held 

19 liable for monetary damages under § 1983. In so holding, we do not 

20 write on a blank slate. The Supreme Court in Wyatt v. Cole, 504 U.S. 

21 158, 168 (1992), observed that “principles of equality and fairness may 

22 suggest . . . that private citizens who rely unsuspectingly on state laws 

23 they did not create and may have no reason to believe are invalid 

24 should have some protection from liability, as do their government 

25 counterparts.” Although the Court ultimately held that private 
7

1 defendants are not entitled to qualified immunity, the Court refused 

2 to “foreclose the possibility that private defendants faced with § 1983 

3 liability . . . could be entitled to an affirmative defense based on good 

4 faith and/or probable cause.” Id. at 169; see also id. at 168 (noting that 

5 the interests underlying a good-faith defense “are not sufficiently 

6 similar to the traditional purposes of qualified immunity to justify 

7 such an expansion” of immunity to private parties). Indeed, in Wyatt, 

8 several Justices opined that a good-faith defense for private 

9 individuals who rely on precedent has always existed. See id. at 174 

10 (Kennedy, J., concurring) (joined by Justice Scalia in finding “support 

11 in the common law for the proposition that a private individual’s 

12 reliance on a statute, prior to a judicial determination of 

13 unconstitutionality, is considered reasonable as a matter of law”); id.

14 at 176 (Rehnquist, J., dissenting) (joined by Justices Souter and Thomas 

15 in stating “it is clear that at the time § 1983 was adopted, there 

16 generally was available to private parties a good-faith defense to the 

17 torts of malicious prosecution and abuse of process”) (footnote 

18 omitted). 

19 Since Wyatt, every Circuit Court of Appeals to have considered 

20 the question has held that a good-faith defense exists under § 1983 for 

21 private individuals and entities acting under the color of state law who 

22 comply with applicable law, including three circuits who have 

23 concluded that a good-faith defense is available to unions that relied 

24 on Abood and applicable state law in collecting fair-share fees prior to 
8

Janus.2 1

2 Consistent with Wyatt, a 2016 panel of this court found “a good 

3 faith defense was available to a private defendant sued under § 1983 

4 for a First Amendment violation.” Jarvis v. Cuomo, 660 F. App’x 72, 75 

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”).
9

1 (2d Cir. 2016), cert. denied, 137 S. Ct. 1204 (2017). In Jarvis, the lack of a 

2 scienter element for a First Amendment violation did not defeat the 

3 recognition of a good-faith defense because “unlike standard defenses, 

4 affirmative defenses need not relate to or rebut specific elements of an 

5 underlying claim.” Id. (citing Black’s Law Dictionary 482 (9th ed. 

6 2009)). We find Jarvis well-reasoned. Because Appellees collected fair7 share fees in reliance on directly controlling Supreme Court precedent 

8 and then-valid state statutes, their reliance was objectively reasonable, 

9 and they are entitled to a “good-faith” defense as a matter of law. See 

10 Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (“There is common 

11 law authority that it is objectively reasonable to act on the basis of a 

12 statute not yet held invalid.”); Jarvis, 660 F. App’x at 76 (affirming the 

13 district court’s application of the good-faith defense because “CSEA 

14 relied on a validly enacted state law and the controlling weight of 

15 Supreme Court precedent,” and thus it was “objectively reasonable for 

16 CSEA ‘to act on the basis of a statute not yet held invalid’”) (quoting 

17 Pinsky, 79 F.3d at 313). 

18 In finding a good-faith defense, we note that nothing in Janus

19 suggests that the Supreme Court intended its ruling to be retroactive. 

20 Indeed, the Janus Court held that “States and public-sector unions may 

21 no longer extract agency fees from nonconsenting employees,” Janus, 

22 138 S. Ct. at 2486 (emphasis supplied), and the Supreme Court 

23 reversed and remanded for further proceedings rather than apply its 

24 new rule to the parties before it. Cf. Harper v. Va. Dep’t of Taxation, 509 

25 U.S. 86, 90 (1993) (holding that the Supreme Court’s “application of a 

26 rule of federal law to the parties before the Court requires every court 
10

1 to give retroactive effect to that decision”). Even if the retroactivity of 

2 Janus is presumed, no different outcome is warranted. A good-faith 

3 defense would still preclude the relief Appellants seek. 

4 Contrary to Appellants’ second argument on appeal, Appellees 

5 cannot reasonably be deemed to have forecasted whether, when, and 

6 how Abood might be overruled. Instead, they were entitled to rely on 

7 directly controlling Supreme Court precedent, and in good faith, they 

8 did so. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (holding that 

9 courts, and by extension citizens, should “follow the case which 

10 directly controls, leaving to [the Supreme] Court the prerogative of 

11 overruling its own decisions”).

12 III. CONCLUSION

13 We have reviewed all of the remaining arguments raised by 

14 Appellants on appeal and find them without merit. For the foregoing 

15 reasons, we AFFIRM the April 29, 2019 judgment of the District Court.