CAREY v. 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. (2021)

MEMORANDUM **

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, ––– U.S. ––––, 141 S.Ct. 1265, ––– L.Ed.2d ––––, 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, ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (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.”).

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.