FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DALE DANIELSON, a Washington
State employee; BENJAMIN RAST, a
Washington State employee;
TAMARA ROBERSON, a Washington
State employee; as individuals, and
on behalf of all others similarly
situated,
Plaintiffs-Appellants,

No. 18-36087
D.C. No.
3:18-cv-05206RJB

OPINION

v.
JAY ROBERT INSLEE, in his official
capacity as Governor of the State of
Washington; DAVID SCHUMACHER,
in his official capacity as Director of
Washington State Office of Financial
Management; AMERICAN
FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES,
COUNCIL 28, AFL-CIO, a labor
organization,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted November 6, 2019
Seattle, Washington

 2

DANIELSON V. INSLEE
Filed December 26, 2019
Before: Ronald M. Gould and Jacqueline H. Nguyen,
Circuit Judges, and Gregory A. Presnell, * District Judge.
Opinion by Judge Nguyen

SUMMARY **

Civil Rights
The panel affirmed the district court’s dismissal of a
claim for monetary relief bought pursuant to 42 U.S.C.
§ 1983 by public sector employees against their union
following the Supreme Court’s decision in Janus v.
American Federation of State, County, & Municipal
Employees, Council 31, 138 S. Ct. 2448 (2018), which held
that the compulsory collection of agency fees by unions
violates the First Amendment.
Prior to the Supreme Court’s decision in Janus, public
sector unions around the country relied on the Supreme
Court’s decision in Abood v. Detroit Board of Education,
431 U.S. 209 (1977), which held that the unions could
collect compulsory agency fees from nonmembers to finance
their collective bargaining activities, without running afoul
of the First and Fourteenth Amendments. State laws and
*

The Honorable Gregory A. Presnell, United States District Judge
for the Middle District of Florida, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

 DANIELSON V. INSLEE

3

regulations further entrenched the union agency shop into
the local legal framework. In 2018, the Supreme Court
uprooted its precedent by overturning Abood. Immediately
thereafter, the defendant Union stopped collecting
mandatory fees from nonmembers. Plaintiffs subsequently
brought suit seeking, among other things, a refund of all
agency fees that were allegedly unlawfully collected from
plaintiffs prior to the Supreme Court’s decision in Janus.
Joining the Seventh Circuit, the panel held 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. See
Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31,
942 F.3d 352 (7th Cir. 2019) (“Janus II”); Mooney v. Ill.
Educ. Ass’n, 942 F.3d 368 (7th Cir. 2019). The panel held
that the good faith affirmative defense applied as a matter of
law, and the district court was right to dismiss plaintiffs’
claim for monetary relief.

COUNSEL
Jonathan F. Mitchell (argued), Mitchell Law PLLC, Austin,
Texas; Talcott J. Franklin, Talcott Franklin PC, Dallas,
Texas; Eric Stahlfeld, Freedom Foundation, Olympia,
Washington; Christopher Hellmich, Hellmich Law Group
P.C., Anaheim Hills, California; for Plaintiffs-Appellants.
P. Casey Pitts (argued), Scott Kronland, and Matthew J.
Murray, Altshuler Berzon LLP, San Francisco, California;
Edward E. Younglove III, Younglove & Coker P.L.L.C.,
Olympia, Washington; for Defendants-Appellees.

 4

DANIELSON V. INSLEE
OPINION

NGUYEN, Circuit Judge:
“Stare decisis—in English, the idea that today’s Court
should stand by yesterday’s decisions—is ‘a foundation
stone of the rule of law.’” Kimble v. Marvel Entm’t, LLC,
135 S. Ct. 2401, 2409 (2015) (quoting Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 798 (2014)). But on rare
occasion, even longstanding precedent can be overruled.
What happens when the Supreme Court reverses course, but
private parties have already acted in reliance on longstanding
bedrock precedent?
This question lies at the center of this appeal. For over
40 years, public sector unions around the country relied on
the Supreme Court’s decision in Abood v. Detroit Board of
Education, 431 U.S. 209 (1977), which held that the unions
could collect compulsory agency fees from nonmembers to
finance their collective bargaining activities, without
running afoul of the First and Fourteenth Amendments.
State laws and regulations further entrenched the union
agency shop into the local legal framework. But in 2018, the
Supreme Court uprooted its precedent by overturning
Abood. In Janus v. American Federation of State, County,
& Municipal Employees, Council 31, 138 S. Ct. 2448 (2018),
the Supreme Court held that unions’ compulsory collection
of agency fees violated the Constitution.
Many public sector unions, including the defendant
union here, immediately stopped collecting agency fees. But
uncertainty remained as to whether they would be
monetarily liable for their pre-Janus conduct—conduct that
was once explicitly authorized under Abood and state law.

 DANIELSON V. INSLEE

5

Throughout the country, public sector employees
brought claims for monetary relief against the unions
pursuant to 42 U.S.C. § 1983. Many unions asserted a good
faith defense in response. Joining a growing consensus, the
district court here ruled in favor of the union. We affirm and
hold 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 presumptivelyvalid state law.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
Plaintiffs are Washington state employees who work
within bargaining units exclusively represented by the
American Federation of State, County, and Municipal
Employees, Council 28, AFL-CIO (the “Union”). Plaintiffs
are not members of the Union and object to financing its
activities. Nonetheless, until recently, they were required to
pay agency fees to the Union. Collection of agency fees
from nonmembers was authorized by the governing
collective bargaining agreement, by Washington law, and by
over four decades of U.S. Supreme Court precedent dating
back to Abood.
On June 27, 2018, the Supreme Court issued its decision
in Janus, reversing course on the constitutionality of the
traditional agency shop regime. Janus overruled Abood and
held that the mandatory collection of agency fees from
objectors violated the First Amendment. 138 S. Ct. at 2486.
It is undisputed that, immediately thereafter, the Union
stopped collecting mandatory fees from nonmembers.

 6

DANIELSON V. INSLEE

B. Procedural Background
On March 15, 2018, Plaintiffs brought a putative class
action pursuant to 42 U.S.C. § 1983 against Jay Inslee, in his
official capacity as Governor of Washington; David
Schumacher, in his official capacity as Director of the
Washington Office of Financial Management; and the
Union. In anticipation of the Supreme Court’s decision in
Janus, Plaintiffs alleged that the imposition of compulsory
agency fees violated their constitutional rights under the
First and Fourteenth Amendments. They sought declaratory
and injunctive relief, a refund of “all agency fees that were
unlawfully collected from Plaintiffs and their fellow class
members,” and an award of attorney’s fees and costs.
In the wake of Janus and changes to the Union’s
practices, the district court determined that the claims
against Inslee and Schumacher (the “State Defendants”) for
declaratory and injunctive relief were moot, and they were
dismissed from the case. 1 Shortly thereafter, the Union filed
a motion for judgment on the pleadings or summary
judgment. The Union argued that the claims for declaratory
and injunctive relief should be dismissed as moot, as the
parallel claims against the State Defendants had been. The
Union further argued that the claim for monetary relief
should be dismissed because it had relied in good faith on
presumptively-valid state law and then-binding Supreme
Court precedent. The district court granted the Union’s
motion as to all claims and dismissed the case. Plaintiffs

1
Plaintiffs sought monetary relief from only the Union, not the State
Defendants.

 DANIELSON V. INSLEE

7

then sought reconsideration of the ruling, which the district
court denied. This appeal timely followed. 2
II. STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo an order granting summary judgment or
judgment on the pleadings. Heliotrope Gen., Inc. v. Ford
Motor Co., 189 F.3d 971, 975, 978 (9th Cir. 1999).
III. DISCUSSION
We hold that the district court properly dismissed
Plaintiffs’ claim for monetary relief against the Union. In so
ruling, we join the Seventh Circuit, the only other circuit to
have addressed the question before us. See Janus v. Am.
Fed’n of State, Cty. & Mun. Emps., Council 31, 942 F.3d 352
(7th Cir. 2019) (“Janus II”); Mooney v. Ill. Educ. Ass’n,
942 F.3d 368 (7th Cir. 2019). We agree with our sister
circuit that a union defendant can invoke an affirmative
defense of good faith to retrospective monetary liability
under section 1983 for the agency fees it collected pre-Janus,
where its conduct was directly authorized under both state
law and decades of Supreme Court jurisprudence. The
Union was not required to forecast changing winds at the
Supreme Court and anticipatorily presume the overturning
of Abood. Instead, we permit private parties to rely on
judicial pronouncements of what the law is, without
exposing themselves to potential liability for doing so.

2

On appeal, Plaintiffs argue only that the district court erred in
dismissing their claim for monetary relief against the Union. They do
not contest the dismissal of their claims for declaratory and injunctive
relief.

 8

DANIELSON V. INSLEE
1. We assume the retroactivity of the rule
established in Janus, but that does not answer the
remedial question before this court.

As an initial matter, Plaintiffs urge the retroactive
application of the Supreme Court’s decision in Janus. But,
like the Seventh Circuit, we find it unnecessary to “wrestle
the retroactivity question to the ground.” Janus II, 942 F.3d
at 360. The Supreme Court has made clear that right and
remedy must not be conflated, and that retroactivity of a
right does not guarantee a retroactive remedy. Davis v.
United States, 564 U.S. 229, 243 (2011). Therefore, we will
assume that the right delineated in Janus applies
retroactively and proceed to a review of available remedies.
2. A private entity may avail itself of a good faith
defense in litigation brought pursuant to 42
U.S.C. § 1983.
The Supreme Court has held that private parties sued
under 42 U.S.C. § 1983 cannot claim qualified immunity,
but it has suggested in dicta that such parties might be able
to assert a good faith defense to liability instead. Wyatt v.
Cole, 504 U.S. 158, 168–69 (1992); Lugar v. Edmondson Oil
Co., 457 U.S. 922, 942 n.23 (1982). Although the Supreme
Court has never squarely reached the question, we held in
Clement v. City of Glendale that private parties may invoke
a good faith defense to liability under section 1983. 3
518 F.3d 1090, 1096–97 (9th Cir. 2008).

3
Every other circuit that has considered the issue agrees. Janus II,
942 F.3d at 364; Jarvis v. Cuomo, 660 F. App’x 72, 75 (2d Cir. 2016);
Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d Cir. 1996); Vector Research,
Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 699 (6th Cir.

 DANIELSON V. INSLEE

9

Plaintiffs argue that Clement should be disregarded.
They contend the Ninth Circuit previously reached a
contrary outcome in Howerton v. Gabica, 708 F.2d 380 (9th
Cir. 1983), and a three-judge panel cannot overturn existing
precedent.
Because “we are required to reconcile prior precedents if
we can do so,” we first assess whether Clement and
Howerton are truly at odds. Cisneros-Perez v. Gonzales,
465 F.3d 386, 392 (9th Cir. 2006). We find the two
decisions reconcilable.
Howerton stands for the
unremarkable proposition that private parties cannot avail
themselves of qualified immunity to a section 1983 lawsuit.
708 F.2d at 385 n.10. Both the Supreme Court and later
panels of our court have adopted that reading of Howerton.
See, e.g., Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing
Howerton for the proposition that the Ninth Circuit has held
that private parties acting under color of state law are not
entitled to qualified immunity); F.E. Trotter, Inc. v. Watkins,
869 F.2d 1312, 1318 (9th Cir. 1989) (citing Howerton for
the proposition that “the Ninth Circuit has stated that private
defendants are not entitled to qualified immunity in section
1983 actions”).
Although Howerton used the somewhat less precise
language of a “good faith immunity,” 708 F.2d at 385 n.10,
we do not read the decision to foreclose a good faith
affirmative defense. Indeed, Howerton cited favorably to
Lugar, 457 U.S. at 942 n.23, for the proposition that
“compliance with [a] statute might be raised as an
affirmative defense” to section 1983 liability. 708 F.2d at
385 n.10. As the Supreme Court has explained, “a
1996); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1276 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir. 1993).

 10

DANIELSON V. INSLEE

distinction exists between an ‘immunity from suit’ and other
kinds of legal defenses.” Richardson v. McKnight, 521 U.S.
399, 403 (1997); see also Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) (holding that qualified immunity “is an immunity
from suit rather than a mere defense to liability”). We
assume the Howerton court appreciated that distinction and
grappled only with the former. Thus, the Clement court
acted well within its authority to find that, while private
parties cannot assert an immunity to suit under section 1983,
they can invoke a good faith defense. 4 We are bound by
Clement, which is dispositive as to the threshold question
presented by Plaintiffs.
Plaintiffs also argue that an entity cannot invoke the
good faith defense, just as a municipality cannot invoke
qualified immunity. This argument, however, runs counter
to Clement, in which we applied the good faith defense to an
entity defendant. Plaintiffs’ argument is also at odds with
the purpose underlying the good faith defense: that private
parties should be entitled to rely on binding judicial
pronouncements and state law without concern that they will
be held retroactively liable for changing precedents. This
principle applies equally to a private entity as it does to a
private individual.

4

Clement is not alone in presuming that Ninth Circuit precedent did
not foreclose a good faith defense. For example, in Jensen v. Lane
County, we considered it an open question whether a private party could
invoke “an affirmative good faith defense” to section 1983 liability.
222 F.3d 570, 580 n.5 (9th Cir. 2000).

 DANIELSON V. INSLEE

11

3. The good faith defense is not limited by the
availability of a similar defense to the most closely
analogous common law tort. But, even if it were,
the closest analogue allows a good faith defense.
Plaintiffs contend that any good faith defense must be
confined to claims for which the most closely analogous
common law tort carried a similar immunity. Plaintiffs
argue that conversion is the closest common law analogue to
their claim against the Union, that good faith is no defense
to conversion, and therefore that good faith can provide no
defense to liability here. Plaintiffs derive this argument from
the Supreme Court’s discussion of the history of qualified
immunity in Wyatt v. Cole:
Section 1983 creates a species of tort liability
that on its face admits of no immunities.
Nonetheless, we have accorded certain
government officials either absolute or
qualified immunity from suit if the tradition
of immunity was so firmly rooted in the
common law and was supported by such
strong policy reasons that Congress would
have specifically so provided had it wished to
abolish the doctrine. If parties seeking
immunity were shielded from tort liability
when Congress enacted the Civil Rights Act
of 1871—§ 1 of which is codified at
42 U.S.C. § 1983—we infer from legislative
silence that Congress did not intend to
abrogate such immunities when it imposed
liability for actions taken under color of state
law. . . . In determining whether there was an
immunity at common law that Congress
intended to incorporate in the Civil Rights

 12

DANIELSON V. INSLEE
Act, we look to the most closely analogous
torts . . . .

504 U.S. 158, 163–64 (1992) (internal citations and
quotation marks omitted).
Plaintiffs’ argument fails for several reasons. First, the
above passage applies only to Wyatt’s discussion of qualified
immunity, not to the good faith affirmative defense on which
Wyatt expressly reserved judgment. The rationales behind
the two doctrines, and their limitations, are not
interchangeable. Accord Janus II, 942 F.3d at 365 (“As
several district courts have commented, the Supreme Court
in Wyatt I embarked on the search for the most analogous
tort only for immunity purposes—the Court never said that
the same methodology should be used for the good-faith
defense.”).
Second, even qualified immunity is no longer
constrained by a common law tort analogy. See Wyatt,
504 U.S. at 166 (noting that “Harlow ‘completely
reformulated qualified immunity along principles not at all
embodied in the common law’” (quoting Anderson v.
Creighton, 483 U.S. 635, 645 (1987))); see also Ziglar v.
Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J.,
dissenting) (explaining that contemporary courts no longer
“ask[] whether the common law in 1871 would have
accorded immunity to an officer for a tort analogous to the
plaintiff's claim under § 1983,” but “instead grant immunity
to any officer whose conduct ‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known’” (quoting Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam))). The
Supreme Court itself has emphasized that it “never
suggested that the precise contours of official immunity can

 DANIELSON V. INSLEE

13

and should be slavishly derived from the often arcane rules
of the common law.” Anderson, 483 U.S. at 645.
Third, in Clement, we did not limit the applicability of
the good faith defense to common law analogues. 518 F.3d
at 1096–97 (9th Cir. 2008). Our decision in Clement was
driven not by the strictures of common law, but rather by
principles of equality and fairness—which the Supreme
Court likewise indicated could lay the foundation for a good
faith defense to section 1983 liability. See id. (applying the
good faith defense 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,” and “the
constitutional violation arose from the inactions of the police
rather than from any act or omission by the towing
company”); Wyatt, 504 U.S. at 168 (citing “principles of
equality and fairness” as the basis for a potential good faith
defense).
Fourth, Plaintiffs’ proposed constraints are contrary to
the principles underlying the good faith defense. As noted,
the availability of the defense arises out of general principles
of equality and fairness—values that are inconsistent with
rigid adherence to the oft-arbitrary elements of common law
torts as they stood in 1871. It would be an odd result for an
affirmative defense grounded in concerns for equality and
fairness to hinge upon historical idiosyncrasies and strained
legal analogies for causes of action with no clear parallel in
nineteenth century tort law. We would find it neither
“equal” nor “fair” for a private party’s entitlement to a good
faith defense to turn not on the innocence of its actions but
rather on the elements of an 1871 tort that the party is not
charged with committing.
Finally, even if we adopted the common-law-analogue
rule, Plaintiffs’ position would still fail. Contrary to

 14

DANIELSON V. INSLEE

Plaintiffs’ contention, conversion is not the closest common
law analogue to the First Amendment violation alleged in
this case. Plaintiffs’ First Amendment claim arises not from
the taking of their property, but from their compelled speech
on behalf of a cause they do not endorse. The unprivileged
confiscation of funds from employees’ paychecks, on its
own, would yield no cognizable First Amendment violation.
Moreover, unlike in a traditional conversion case, the Union
did not collect agency fees in contravention of state law; the
key theme underlying Plaintiffs’ section 1983 cause of
action is that the Union collected agency fees in accord with
state law. For these reasons, conversion bears little
substantive similarity to Plaintiffs’ claim.
Rather, we agree with our sister circuit that abuse of
process provides the best analogy to Plaintiffs’ claim. 5
Janus II, 942 F.3d at 365. At common law, abuse of process
“provided [a] cause[] of action against private defendants for
unjustified harm arising out of the misuse of governmental
processes.” Wyatt, 504 U.S. at 164. Although the
prototypical abuse of process claim involves the abuse of
judicial process, the tort is not clearly so confined. Here, the
fundamental premise for section 1983 liability against the
Union is its alleged abuse of processes authorized by
Washington law—the agency shop regime and its
concomitant agency fee collection protocol—toward
unconstitutional ends. Indeed, it is the use of governmental
processes by the Union that supplies the “color of law”
element required to state a claim under section 1983.

5

We agree with the Seventh Circuit that “[n]one of these torts is a
perfect fit, but they need not be,” as the search for a common law
analogue is “inherently inexact.” Janus II, 942 F.3d at 365.

 DANIELSON V. INSLEE

15

Adopting abuse of process as the appropriate commonlaw analogue poses no barrier to the Union’s invocation of a
good faith defense. This is because, at common law, a
private party could avoid liability for abuse of process if it
acted in good faith. Id. at 164; id. at 172 (Kennedy, J.,
concurring); id. at 176 (Rehnquist, C.J., dissenting).
4. Plaintiffs’ labeling of their claim as restitutionary
does not preclude application of the good faith
defense.
Plaintiffs argue that any good faith defense is limited to
liability for damages, whereas they seek restitution from the
Union for agency fees collected in contravention of Janus.
They contend that “a defendant’s good faith will never allow
it to keep the property or money that it took in violation of
another’s constitutional rights,” even if good faith might
provide a shield to liability for additional damages.
As an initial matter, Plaintiffs’ restitutionary premise is
flawed. Plaintiffs’ constitutionally cognizable injury is the
intangible dignitary harm suffered from being compelled to
subsidize speech they did not endorse. It is not the
diminution in their assets from the payment of compulsory
agency fees. Accordingly, Plaintiffs seek compensatory
damages, not true restitution, when they pray for a monetary
award in the amount of the agency fees they paid to the
Union. The labeling of the relief sought in restitutionary
terms does not change the underlying nature of Plaintiffs’
claim.
Even accepting Plaintiffs’ restitutionary premise, the
equities do not weigh in favor of requiring a refund of all
agency fees collected pre-Janus. The Union bears no fault
for acting in reliance on state law and Supreme Court
precedent.
It collected and spent fees under the

 16

DANIELSON V. INSLEE

assumption—sanctioned by the nation’s highest court—that
its conduct was constitutional. And the Union provided a
service to contributing employees in exchange for the
agency fees it received. Indeed, under Abood, the Union was
required to use those fees for collective bargaining activities
that inured to the benefit of all employees it represented—an
exchange that cannot be unwound. It is true that, under
current law, the employees suffered a constitutional wrong
for which they may have no viable means of compensation
if the good faith defense prevails. Nonetheless, it would not
be equitable to order the transfer of funds from one innocent
actor to another, particularly where the latter received a
benefit from the exchange. Accord Ellis v. Bhd. of Ry.,
Airline & S.S. Clerks, Freight Handlers, Exp. & Station
Emps., 466 U.S. 435, 454–55 (1984) (expressing “doubt that
the equities call for a refund” of compulsory payments made
by employees to their union, even if the practice ran afoul of
the law, because objecting employees received a service in
exchange for their money); Janus II, 942 F.3d at 367
(“[T]hough [plaintiff] contends that he did not want any of
the benefits of [the union’s] collective bargaining and other
representative activities over the years, he received them.
Putting the First Amendment issues . . . to one side, there
was no unjust ‘windfall’ to the union . . . but rather an
exchange of money for services.”). Under the circumstances
here, the most equitable outcome is a prospective change in
the Union’s policy and practice (which undisputedly
occurred), without retrospective monetary liability.

 DANIELSON V. INSLEE

17

5. The good faith defense applies to the Union as a
matter of law, because the Union was not required
to anticipate the overturning of then-binding
precedent.
The Union’s assertion of a good faith affirmative defense
is sound, but that does not fully answer the question before
this court. We must next determine whether the district court
correctly found that the good faith defense shielded the
Union from retrospective monetary liability as a matter of
law.
In collecting compulsory agency fees, the Union relied
on presumptively-valid state law and then-binding Supreme
Court precedent. The Union now faces an assertion of
monetary liability not for flouting that law or misinterpreting
its bounds, but for adhering to it. Although some justices
had signaled their disagreement with Abood in the years
leading up to Janus, Abood remained binding authority until
it was overruled. 6 We agree with our sister circuit that “[t]he
Rule of Law requires that parties abide by, and be able to
rely on, what the law is, rather than what the readers of tealeaves predict that it might be in the future.” Janus II,
942 F.3d at 366.
The Supreme Court has admonished the circuit courts
not to presume the overruling of its precedents, irrespective
of hints in its decisions that a shift may be on the horizon.
See Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,
490 U.S. 477, 484 (1989) (“If a precedent of this Court has
6

Indeed, not long before Janus, the Supreme Court affirmed the
judgment of this court on the same question presented—albeit by an
equally divided court. Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083
(2016). Although the outcome in Janus may have been the writing on
the wall, it was not a foregone conclusion.

 18

DANIELSON V. INSLEE

direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.”);
Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir. 2011)
(“As a circuit court, even if recent Supreme Court
jurisprudence has perhaps called into question the
continuing viability of its precedent, we are bound to follow
a controlling Supreme Court precedent until it is explicitly
overruled by that Court.” (internal quotation marks and
brackets omitted)). We decline to hold private parties to a
different standard. It would be paradoxical for the circuit
courts to be required to follow Abood until its overruling in
Janus, while private parties incur liability for doing the
same.
The ability of the public to rely on the courts’
pronouncements of law is integral to the functioning of our
judicial system. After all, “[i]t is emphatically the province
and duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). If
private parties could no longer rely on the pronouncements
of even the nation’s highest court to steer clear of liability, it
could have a destabilizing impact on the judicial system.
Because the Union’s action was sanctioned not only by
state law, but also by directly on-point Supreme Court
precedent, we hold that the good faith defense shields the
Union from retrospective monetary liability as a matter of
law. In so ruling, we join a growing consensus of courts
across the nation. 7

7

See Janus II, 942 F.3d 352; Mooney, 942 F.3d 368; Aliser v. SEIU
Cal., No. 19-CV-00426-VC, 2019 WL 6711470, at *1 (N.D. Cal. Dec.

 DANIELSON V. INSLEE

19

Finally, we reject Plaintiffs’ contention that the Union
must prove that it “fully complied with the pre-Janus
constitutional strictures on agency shops” to avail itself of a
good faith defense.
Plaintiffs’ argument lacks any
grounding in the claims presented in this action. Plaintiffs
alleged in their complaint only that the Union’s collection of
compulsory agency fees, as a general matter, violated their
10, 2019); Wenzig v. Serv. Emps. Int’l Union Local 668, No. CV 1:191367, 2019 WL 6715741, at *10 (M.D. Pa. Dec. 10, 2019); Hamidi v.
SEIU Local 1000, No. 2:14-CV-00319, 2019 WL 5536324 (E.D. Cal.
Oct. 25, 2019); LaSpina v. SEIU Pa. State Council, No. 3:18-2018, 2019
WL 4750423 (M.D. Pa. Sept. 30, 2019); Allen v. Santa Clara Cty. Corr.
Peace Officers Ass’n, No. 18-CV-02230, 2019 WL 4302744 (E.D. Cal.
Sept. 11, 2019); Casanova v. Int’l Ass’n of Machinists, Local 701, No.
19-CV-00428 (N.D. Ill. Sept. 11, 2019); Ogle v. Ohio Civil Serv. Emp.
Ass’n, No. 18-CV-1227, 2019 WL 3227936 (S.D. Ohio July 17, 2019),
appeal pending, No. 19-3701 (6th Cir.); Diamond v. Pa. State Educ.
Ass’n, No. 18-CV-128, 2019 WL 2929875 (W.D. Pa. July 8, 2019),
appeal pending, No. 19-2812 (3d Cir.); Hernandez v. AFSCME Cal., No.
18-CV-2419, 2019 WL 2546195 (E.D. Cal. June 20, 2019); Doughty v.
State Emp. Ass’n of N.H., No. 19-CV-53 (D.N.H. May 30, 2019), appeal
pending, No. 19-1636 (1st Cir.); Babb v. Cal. Teachers Ass’n, 378 F.
Supp. 3d 857 (C.D. Cal. 2019), appeal pending, No. 19-55692 (9th Cir.);
Wholean v. CSEA SEIU Local 2001, No. 18-CV-1008, 2019 WL
1873021 (D. Conn. Apr. 26, 2019), appeal pending, No. 19-1563 (2d
Cir.); Akers v. Md. Educ. Ass’n, 376 F. Supp. 3d 563 (D. Md. 2019),
appeal pending, No. 19-1524 (4th Cir.); Bermudez v. SEIU Local 521,
No. 18-CV-4312, 2019 WL 1615414 (N.D. Cal. Apr. 16, 2019); Hough
v. SEIU Local 521, No. 18-CV-4902, 2019 WL 1785414 (N.D. Cal. Apr.
16, 2019), appeal pending, No. 19-15792 (9th Cir.); Lee v. Ohio Educ.
Ass’n, 366 F. Supp. 3d 980 (N.D. Ohio 2019), appeal pending, No. 193250 (6th Cir.); Crockett v. NEA-Alaska, 367 F. Supp. 3d 996 (D. Alaska
2019), appeal pending, No. 19-35299 (9th Cir.); Carey v. Inslee, 364 F.
Supp. 3d 1220 (W.D. Wash. 2019), appeal pending, No. 19-35290 (9th
Cir.); Cook v. Brown, 364 F. Supp. 3d 1184 (D. Or. 2019), appeal
pending, No. 19-35191 (9th Cir.). See also Jarvis v. Cuomo, 660 F.
App’x 72 (2d Cir. 2016); Winner v. Rauner, No. 15-CV-7213, 2016 WL
7374258 (N.D. Ill. Dec. 20, 2016); Hoffman v. Inslee, No. 14-CV-200,
2016 WL 6126016 (W.D. Wash. Oct. 20, 2016).

 20

DANIELSON V. INSLEE

rights under the First and Fourteenth Amendments.
Plaintiffs did not allege that the Union violated their rights
under Abood or any similar pre-Janus authority. In fact,
Plaintiffs devoted several paragraphs of their complaint to
an effort to discredit Abood as controlling authority, so that
their claims might prevail.
Because Plaintiffs’ claims arise from the Union’s
reliance on Abood, not allegations that the Union flouted that
authority, the Union need not show compliance with
Abood’s strictures to assert successfully a good faith
defense. Such a requirement would be entirely divorced
from the allegations in this action.
IV. CONCLUSION
When the Supreme Court delivered its decision in Janus,
the Union was required to change its policies to conform to
the newly-announced law of the land. And it did. But the
shift in precedent only carries the plaintiff employees so far.
We hold that the Union is not retrospectively liable for doing
exactly what we expect of private parties: adhering to the
governing law of its state and deferring to the Supreme
Court’s interpretations of the Constitution. A contrary result
would upend the very principles upon which our legal
system depends. The good faith affirmative defense applies
as a matter of law, and the district court was right to dismiss
Plaintiffs’ claim for monetary relief.
AFFIRMED.