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Petitioner, V No. 19-___ IN THE Supreme Court of the United States _________ MARK JANUS, Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL., Respondents. _________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit _________ PETITION FOR WRIT OF CERTIORARI _________ JEFFREY M. SCHWAB WILLIAM L. MESSENGER LIBERTY JUSTICE CENTER Counsel of Record 190 South LaSalle Street AARON B. SOLEM Suite 1500 c/o NATIONAL RIGHT TO Chicago, IL 60603 WORK LEGAL DEFENSE (312) 263-7668 FOUNDATION, INC. 8001 Braddock Road Suite 600 Springfield, VA 22160 (703) 321-8510 [email protected] Counsel for Petitioner QUESTION PRESENTED Is there a “good faith defense” to 42 U.S.C. § 1983 that shields a defendant from damages liability for de- priving citizens of their constitutional rights if the de- fendant acted under color of a law before it was held unconstitutional? (i) ii PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioner, a Plaintiff-Appellant in the court below, is Mark Janus. Respondents, Defendants-Appellees in the court be- low, are American Federation of State, County, and Municipal Employees, Council 31; Simone McNeil, in her official capacity as the Acting Director of the Illi- nois Department of Central Management Services; and Illinois Attorney General Kwame Raoul. Other parties to the original proceedings below who are not Petitioners or Respondents include plaintiffs Illinois Governor Bruce Rauner, Brian Trygg, and Ma- rie Quigley, and defendant General Teamsters/Profes- sional & Technical Employees Local Union No. 916. Because no Petitioner is a corporation, a corporate disclosure statement is not required under Supreme Court Rule 29.6. TABLE OF CONTENTS Page QUESTION PRESENTED.......................................... i PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT ......................................... ii TABLE OF AUTHORITIES ........................................ v OPINIONS BELOW ................................................... 1 JURISDICTION ......................................................... 1 STATUTES INVOLVED ............................................ 1 STATEMENT OF THE CASE ................................... 2 REASONS FOR GRANTING THE PETITION ......... 5 A. The Seventh and Ninth Circuits Misconstrue This Court’s Decision in Wyatt .............................. 7 B. The Seventh and Ninth Circuits’ Reliance Defense Conflicts with Section 1983’s Text, Retroactivity Law, and Equitable Principles ...... 11 1. A Statutory Reliance Defense Is Incompatible with Section 1983’s Text and History ............ 11 2. The Seventh and Ninth Circuits’ Reliance Defense Conflicts with Reynoldsville Casket. 13 3. The Seventh and Ninth Circuits’ Reliance Defense Is Inequitable and Inconsistent with Section 1983’s Legislative Purposes ...... 15 C. It Is Important That the Court Finally Resolve Whether Congress Provided a Good Faith Defense to Section 1983 .................................... 18 CONCLUSION .......................................................... 21 (iii) iv TABLE OF CONTENTS—Continued Page APPENDIX Opinion of the U.S. Court of Appeals for the Seventh Circuit, 942 F.3d 352 (Nov. 5, 2019) ........ 1a Opinion and Judgment of the U.S. District Court for the Northern District of Illinois (Mar. 18, 2019) ...................................................... 31a Order of the U.S. Court of Appeals for the Seventh Circuit (Sept. 24, 2018) ......................................... 40a Opinion of the Supreme Court of the United States, 138 S. Ct. 2448 (June 27, 2018) ........................... 42a Opinion of the U.S. Court of Appeals for the Seventh Circuit (Mar. 21, 2017) ....................................... 131a Decision of the U.S. District Court for the Northern District of Illinois (Sept. 13, 2016) ..................... 136a Order of the U.S. Court of Appeals for the Seventh Circuit Denying Rehearing En Banc (Dec. 12, 2019) .................................................................... 138a TABLE OF AUTHORITIES Page(s) CASES Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) .............................................. 2, 4 Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019) ....................... passim Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365 (1990) ................................................ 15 Harper v. Va. Dep't of Taxation, 509 U.S. 86 (1993) .................................................. 13 Imbler v. Pachtman, 424 U.S. 409 (1976) ................................................ 12 Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) .................................... passim Janus v. AFSCME, Council 31, 942 F.3d 352 (7th Cir. 2019) ................................... 1 Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994) ................................... 10 Lee v. Ohio Educ. Ass'n, 2020 WL 881265 (6th Cir., Feb. 24, 2020) .............. 5 Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) ........................................ 4, 5, 18 Manuel v. City of Joliet, 137 S. Ct. 911 (2017)................................................ 7 (v) vi TABLE OF AUTHORITIES—Continued Page(s) Olge v. Ohio Civ. Serv. Emps. Ass'n, No. 19-3701 (6th Cir., Mar. 5, 2020) ....................... 5 Owen v. City of Indep., 445 U.S. 622 (1980) .................................... 15, 16, 17 Pinsky v. Duncan, 79 F.3d 306 (2d Cir. 1996) ..................................... 10 Rehberg v. Paulk, 566 U.S. 356 (2012) .......................................... 12, 13 Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) ...................................... 6, 13, 14 Richardson v. McKnight, 521 U.S. 399 (1997) .................................. 5, 8, 13, 18 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ................................................ 21 Tower v. Glover, 467 U.S. 914 (1984) ................................................ 15 Wyatt v. Cole, 504 U.S. 158 (1992) ........................................ passim Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993) ............................... 10 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............................................ 20 vii TABLE OF AUTHORITIES—Continued Page(s) Constitution & Statutes U.S. Const. amend. I ......................................................... passim Federal Statutes 28 U.S.C. § 1254(1) .................................................. 1 42 U.S.C. § 1983 ............................................. passim Other Authorities Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018) .... 20 William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018) ..................................... 20 OPINIONS BELOW The opinion of the United States Court of Appeals for the Seventh Circuit review of which is sought is reported at 942 F.3d 352 (2019) and reproduced at Pet.App. 1a. The Seventh Circuit’s order denying re- hearing en banc is reproduced at Pet.App. 138a. The Seventh Circuit’s opinion affirmed the United States District Court for the Northern District of Illinois’ un- reported order granting defendants summary judg- ment. Pet.App. 31a. This Court’s earlier opinion is reported as Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) (Pet.App. 42a). It reversed the Seventh Circuit’s opinion re- ported at 851 F.3d 746 (2017) (Pet.App. 131a), which had affirmed the district court’s order dismissing the complaint (Pet.App. 136a). JURISDICTION The Seventh Circuit entered judgment on November 5, 2019 (Pet.App. 1a), and denied a petition for rehear- ing en banc on December 12, 2019 (Pet.App. 138a). This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTES INVOLVED Section 1983, 42 U.S.C. § 1983, states: Every person who, under color of any statute, or- dinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the ju- risdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Consti- tution and laws, shall be liable to the party in- jured in an action at law, suit in equity, or other 2 proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capac- ity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory re- lief was unavailable. STATEMENT OF THE CASE Petitioner Mark Janus was an Illinois state em- ployee who was forced to pay agency fees to AFSCME Council 31 against his will. Pet.App. 47a. On June 27, 2018, this Court in Janus held these fee seizures vio- lated Janus’ First Amendment rights. Id. at 48a. The Court overruled its precedent that allowed unions to seize agency fees from employees—Abood v. Detroit Board of Education, 431 U.S. 209 (1977)—and found Illinois’ agency fee statute unconstitutional. Pet.App. 97a. In Janus, this Court recognized that “unions have been on notice for years regarding this Court’s misgiv- ing about Abood” and that, since at least 2012, “any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have under- stood that the constitutionality of such a provision was uncertain.” Id. at 94a. The Court also lamented the “considerable windfall” that unions wrongfully re- ceived from employees during prior decades: “[i]t is hard to estimate how many billions of dollars have 3 been taken from nonmembers
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