NOT FOR PUBLICATION FILED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
CHE’ S. COOK; et al., No. 19-35191
Plaintiffs-Appellants, D.C. No. 6:18-cv-01085-AA
v.
MEMORANDUM*
KATE BROWN, in her official capacity as
Governor of the State of Oregon; KATY
COBA, in her official capacity as Director of
the Oregon Department of Administrative
Services,
Defendants,
and
OREGON AMERICAN FEDERATION OF
STATE, COUNTY, AND MUNICIPAL
EMPLOYEES COUNCIL 75,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, 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.
Che’ S. Cook, Clifford H. Elliott, Bethany Harrington, William Lehner,
Carmen Lewis, and Trudy Metzger appeal from the district court’s summary
judgment in their 42 U.S.C. § 1983 action alleging a First Amendment claim
arising out of compulsory agency fees (also known as fair share fees) paid to
Oregon American Federation of State, County, and Municipal Employees
(“AFSCME”) Council 75. 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.”).
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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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