Advocates for Labor and Progressive Institutions

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First Circuit is the latest appellate court to recognize the good-faith defense in post-Janus litigation

November 30, 2020

In Doughty v. State Employees’ Association of New Hampshire, SEIU Local 1984, 981 F.3d 128 (1st Cir. 2020), the United States Court of Appeals for the First Circuit held that a public-sector union could not be compelled to refund mandatory fair-share fees from nonmembers where the union had collected those fees in compliance with then-binding Supreme Court precedent.

That case was filed under 42 U.S.C. § 1983 in the wake of Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), seeking a refund for fees collected before that decision issued. Janus overruled a 41-year-old precedent, Abood v. Detroit Board of Education, 432 U.S. 209 (1977), which had upheld a state law authorizing the assessment of mandatory fair-share fees. Reading Section 1983 “with some consideration of the background against which the statute was enacted and thus with an understanding . . . [of the] common law’s rules,” the First Circuit analogized the plaintiffs’ claims to abuse of process and malicious prosecution. Because such common-law claims required the malicious or improper use of government process, the First Circuit concluded that good-faith reliance on a Supreme Court precedent precluded liability for fees collected before that precedent was overruled. In recognizing this good-faith defense, the First Circuit explained that it “align[ed] [it]self with every circuit to have addressed whether such a backward-looking, Janus-based claim is cognizable under § 1983.” Bredhoff & Kaiser represented the State Employees’ Association before the First Circuit, just as it has successfully represented other union defendants in similar appeals before the Third, Sixth, and Seventh Circuits.