NOT FOR PUBLICATION FILED
APR 27 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTIN CAREY; et al., No. 19-35290
Plaintiffs-Appellants, D.C. No. 3:18-cv-05208-RBL
v.
MEMORANDUM*
WASHINGTON EDUCATION
ASSOCIATION,
Defendant-Appellee,
and
JAY ROBERT INSLEE, in his official
capacity of Governor of the State of
Washington; DAVID SCHUMACHER, in
his official capacity as Director of
Washington State Office of Financial
Management,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted April 20, 2021**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Appellants’ request for oral
argument, set forth in the opening brief, is denied.
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Justin Carey, JoBeth Deibel, David Gaston, Roger Kinney, and Keith
Sanborn appeal from the district court’s summary judgment in their 42 U.S.C.
§ 1983 putative class action alleging a First Amendment claim arising out of
compulsory agency fees (also known as fair share fees) paid to Washington
Education Association. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Danielson v. Inslee, 945 F.3d 1096, 1098 (9th Cir. 2019), cert. denied,
No. 19-1130, 2021 WL 231555 (Jan. 25, 2021). We affirm.
The district court properly granted summary judgment because a public
sector union can, as a matter of law, “invoke an affirmative defense of good faith
to retrospective monetary liability under section 1983 for the agency fees it
collected” prior to the Supreme Court’s decision in Janus v. American Federation
of State, County & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018).
Danielson, 945 F.3d at 1097-99 (“[P]rivate 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.”); see also id. at 1102-03 (finding plaintiffs’ claim
for monetary relief as damages, not restitution; “Even accepting Plaintiffs’
restitutionary premise, the equities do not weigh in favor of requiring a refund of
all agency fees collected pre-Janus.”).
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We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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