Doughty v. St EE's Ass'n of NH ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1636
PATRICK DOUGHTY; RANDY SEVERANCE,
Plaintiffs, Appellants,
v.
STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE,
SEIU LOCAL 1984, CTW, CLC,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Frank D. Garrison, with whom Milton L. Chappell, National
Right to Work Legal Defense Foundation, Inc., Bryan K. Gould,
Cooley Ann Arroyo, and Cleveland, Waters & Bass, P.A., were on
brief, for appellants.
Leon Dayan, with whom Ramya Ravindran was on brief, for
appellee.
November 30, 2020
BARRON, Circuit Judge. This appeal concerns a suit by
two New Hampshire state employees, Patrick Doughty and Randy
Severance, against the State Employees' Association of New
Hampshire ("the Union") pursuant to 42 U.S.C. § 1983. They seek
retrospective relief for themselves and other state employees who
were not members of the Union but were forced to pay so-called
"agency fees" to it prior to the United States Supreme Court's
decision in Janus v. American Federation of State, County &
Municipal Employees, Council 31, 138 S. Ct. 2448 (2018). There,
the Court overruled its decades-old decision in Abood v. Detroit
Board of Education, 431 U.S. 209 (1977), and held that such "agency
fee" arrangements violate the First Amendment of the United States
Constitution by compelling the speech and association of non-union
governmental employees. The District Court granted the Union's
motion to dismiss Doughty and Severance's complaint, and we affirm,
aligning ourselves with every circuit to have addressed whether
such a backward-looking, Janus-based claim is cognizable under
§ 1983.1
1 See generally Wholean v. CSEA SEIU Loc. 2001, 955 F.3d 332(2d Cir. 2020); Diamond v. Pa. State Educ. Ass'n, 972 F.3d 262 (3d
Cir. 2020); Ogle v. Ohio Civ. Serv. Emps. Ass'n, 951 F.3d 794 (6th
Cir. 2020); Lee v. Ohio Educ. Ass'n, 951 F.3d 386 (6th Cir. 2020);
Janus v. Am. Fed'n of State, Cnty. & Mun. Emps., Council 31, 942
F.3d 352 (7th Cir. 2019); Danielson v. Inslee, 945 F.3d 1096 (9th
Cir. 2019).
- 2 -
I.
A.
New Hampshire state law imposes on unions that serve as
the exclusive representative of a bargaining unit for state or
local government employees a duty of fair representation to the
unit's non-union employees during the collective bargaining
process. See Nashua Tchrs. Union v. Nashua Sch. Dist., 707 A.2d
448, 451 (N.H. 1998) (citing N.H. Rev. Stat. Ann. § 273-A:3).
Prior to Janus's overruling of Abood, the New Hampshire Supreme
Court held that the State's "overall legislative scheme to promote
labor peace" impliedly permitted the negotiation of collective
bargaining agreements between unions and governmental employers
that called for the payment of agency fees. See id. at 450. In
addition, the New Hampshire Supreme Court held that, under Abood,
the First Amendment was not violated if a state or local
governmental employer made the payment of these fees in connection
with such agreements a condition of employment for their employees.
Id.The New Hampshire Supreme Court explained that
collective bargaining agreements are contracts forged between the
employer and the union that serves as the exclusive bargaining
representative for the relevant bargaining unit. Id. at 451. It
further explained that agency fees compensate for the fact that,
although such a union secures benefits through the collective
- 3 -
bargaining process for the bargaining unit's union and non-union
employees alike, only the union employees pay dues to the union.
Id. Thus, until Janus, New Hampshire permitted "agency fees" to
"defray the costs associated with [the union's] exclusive
representation and collective bargaining," and such fees were
regularly a subject of collective bargaining agreements between
unions and public employers in the state. Id. at 449.
B.
On January 14, 2019, following Janus, Doughty and
Severance filed suit in the United States District Court for the
District of New Hampshire against the Union under § 1983. Their
complaint alleged that the Union was the exclusive representative
for their respective bargaining units and that they were not
themselves members of the Union. The complaint further alleged
that, at the time relevant to this suit, they were "forced" to pay
agency fees to the Union "as a condition of employment" in
connection with the Union's collective bargaining agreements with
their respective state employers. Finally, their complaint
claimed that "the State" deducted the agency fees from their
paychecks and remitted them to the Union, although the record
offers no further details about the mechanics of the payment
process.
By the time that Doughty and Severance filed their suit,
the Union had ceased collecting agency fees, as deductions from
- 4 -
the employees' paychecks to pay those fees ended in Janus's wake.
Their complaint nevertheless requested, based on Janus's
retroactive application, that the District Court certify a class
of "all individuals employed by the State, and other public
employers, who, as a condition of employment, were forced to pay
union fees to [the Union], which distributed some of the fees to
its affiliates, any time during the limitations period." Doughty
and Severance further claimed that the members of this class were
entitled, pursuant to § 1983, to "compensatory damages, refunds,
or restitution in the amount of compulsory union fees paid to the
Union from their wages without their written consent, and other
amounts as principles of justice and equity require."
C.
On March 18, 2019, the Union moved to dismiss the
plaintiffs' complaint for failure to state a claim on which relief
could be granted under Federal Rule of Civil Procedure 12(b)(6).
The District Court held a hearing on that motion on May 30, 2019
and granted it that same day.
The District Court proceeded on the understanding --
which the Union did not contest -- that, due to Janus's retroactive
application, the state employers' requirement that the agency fees
be paid as a condition of Doughty's and Severance's employment
violated the First Amendment. The District Court also assumed --
and, again, without dispute -- that the Union, although a private
- 5 -
entity, was a proper defendant under § 1983 for this Janus-based
suit, despite the fact that the requirement to pay the agency fees
had been imposed on them by their employer as a condition of their
employment and not by the Union itself.2 Finally, the District
Court implicitly recognized that the doctrine of qualified
immunity, which protects governmental officials from damages
liability when sued in their individual capacities under § 1983 in
the absence of their having violated "clearly established" law,
see District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018),
does not protect private defendants, see Wyatt v. Cole, 504 U.S.
158, 168-69 (1992), and so provided no such immunity to the Union
here.
Nevertheless, the District Court expressed skepticism
that § 1983 permitted Doughty and Severance's claim against the
2 In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the Court
held that a private party who attached the assets of a debtor under
a state attachment statute could be a proper defendant under § 1983
for a claim brought by a property owner based on a violation of
the property owner's right to procedural due process on the ground
that the defendant was acting under color of law in bringing about
the attachment pursuant to that statute's summary attachment
process. Id. at 924, 933-34; see also Wyatt v. Cole, 504 U.S.
158, 159-60 (1992) (same). Here, of course, the Union merely
received the agency fees pursuant to a freely negotiated
contractual provision with the plaintiffs' employer and those fees
were made available to it, in turn, based on the plaintiffs'
contract with their employer. Nevertheless, as we have noted,
there is no dispute on appeal as to whether, on these facts, the
Union is a proper § 1983 defendant for the claimed First Amendment
violation. Thus, like the District Court, we assume that the Union
is, despite the possible reasons to question that assumption.
- 6 -
Union to go forward, given their claim's exclusive focus on agency-
fee payments made prior to Janus. In that connection, the District
Court asked the plaintiffs' counsel at the hearing on the motion
to dismiss to "step back for a second" and explain "how in any
version of the world" it would be "right to require [the Union] to
pay damages for acting consistent with the requirements of state
law and . . . [S]upreme [C]ourt precedent." The District Court
emphasized that the Union's "behavior was entirely constitutional
at the time they engaged in it," and that it is an unusual situation
where the Supreme Court "decides to flatly overturn its prior
precedent." Because, as a general matter, "[o]ne of the reasons
that judges express their views in written opinions is so that
people can rely on" them, the District Court explained, it would
be "arrogant in the extreme" to allow individuals who had so relied
to be "subjected to suits for damages" in the rare cases where
"judges flip 180 degrees on the law." The District Court added
that it was "incomprehensible" that "damage[s] actions [could] be
maintained under" the "unique circumstances" of this case.
The District Court then granted the Union's motion to
dismiss Doughty and Severance's complaint based on two independent
grounds. First, the District Court ruled that "a good faith
defense must be available to protect defendants under these kinds
of circumstances" (emphasis added), and that Doughty and Severance
could not overcome that defense. Second, the District Court held
- 7 -
that Doughty and Severance's § 1983 claim was analogous to the
common-law tort of abuse of process, for which a "good faith
defense has traditionally been recognized."3 For this reason, too,
the District Court held, Doughty and Severance would have to
overcome a "good faith defense" to succeed in obtaining their
requested relief, which they could not do, given that the Union
collected the fees at issue before Janus overruled Abood.
The District Court emphasized that it did not find the
plaintiffs' claim for retrospective relief -- whether for damages
or restitution -- to be "frivolous," but it closed by stating that
it did not "see how it [could] possibly proceed." Instead, the
District Court suggested that the plaintiffs appeal the case
because it "would need guidance from the First Circuit
explaining . . . why the claim is potentially viable" to recognize
it.
D.
Following the District Court's ruling, Doughty and
Severance timely filed this appeal on June 21, 2019, in which they
challenge the District Court's grant of the Union's 12(b)(6)
3Although the District Court referred to the plaintiffs'
§ 1983 claim as being subject to a "good faith defense," it is
clear that it was merely holding that an element of their § 1983
claim was proof of "malice," such that their claim must be
dismissed if they failed to show that the Union had not acted in
"good faith" in collecting the agency fees at issue. See Wyatt,
504 U.S. at 172 (Kennedy, J., concurring).
- 8 -
motion. We have jurisdiction under 28 U.S.C. § 1291. We review
the District Court's dismissal of a case under Federal Rule of
Civil Procedure 12(b)(6) de novo. See Reisman v. Associated
Faculties of Univ. of Me., 939 F.3d 409, 411 (1st Cir. 2019).
II.
As to the claim for damages, Doughty and Severance ask
us to focus on § 1983's text, which expressly provides that
"[e]very person" responsible for depriving another of their
constitutional rights "shall be liable to the party injured in an
action at law," 42 U.S.C. § 1983. They then proceed to argue that,
because Janus applies retroactively and the Union is a proper
defendant for the First Amendment violation resulting from its
collection of agency fees, there is no basis for denying them a
damages remedy against the Union for the federal constitutional
violation that they suffered. For, Doughty and Severance point
out, on its face, § 1983 "is absolute and unqualified; no mention
is made of any privileges, immunities, or defenses that may be
asserted," Owen v. City of Independence, 445 U.S. 622, 635 (1980).
The District Court rightly emphasized, however, that the
plaintiffs are seeking damages for a private party's role in
imposing a payment requirement on them during a period of time in
which the nation's highest court had expressly held that the
requirement did not give rise to the First Amendment violation on
which their damages claim under § 1983 now depends. We thus must
- 9 -
attend to the District Court's concern that the recognition of
such a damages claim under § 1983 would unduly upset the
justifiable reliance interests of the private defendant.
In attending to that concern, we do not embark on a free-
wheeling assessment of whether to import into § 1983 a policy based
on protection of reliance interests. See Malley v. Briggs, 475
U.S. 335, 342 (1986). Rather, we follow the Supreme Court in
recognizing that the text of § 1983 should be read with some
consideration of the background against which the statute was
enacted and thus with an understanding that the common law's rules
"defining the elements of damages and the prerequisites for their
recovery[] provide the appropriate starting point for the inquiry
under § 1983." Carey v. Piphus, 435 U.S. 247, 257-58 (1978); see
also Monroe v. Pape, 365 U.S. 167, 187 (1961) (noting that § 1983
"should be read against the background of tort liability that makes
a man responsible for the natural consequences of his actions");
cf. Heck v. Humphrey, 512 U.S. 477, 483 (1994) (explaining that
"to determine whether there is any bar to the present [§ 1983]
suit, we look first to the common law of torts"). Moreover, in
undertaking that review of the common law to assess the scope of
relief available for a claim for a constitutional violation under
§ 1983, we must keep in mind the Court's observation that if "the
interests protected by a particular branch of the common law of
torts . . . parallel closely the interests protected by a
- 10 -
particular constitutional right," then it may be "appropriate to
apply the tort rules of damages directly," Carey, 435 U.S. at 258,
even if that rule is not favorable to the plaintiff, see, e.g.,
id. at 254-57, 260-62 (relying on principles of common-law damages
to conclude substantial nonpunitive damages were unavailable in
the absence of proof of real injury).
A number of our sister circuits have followed this
approach to assessing the viability of similar retroactive Janus-
based damages claims under § 1983, and they have found that such
claims closely parallel common-law torts that provide relief for
a defendant's misuse of official governmental processes. See
Diamond v. Pa. State Educ. Ass'n, 972 F.3d 262, 280 (3d Cir. 2020)
(Fisher, J., concurring in the judgment) (collecting cases). They
have also recognized that those common-law torts -- abuse of
process and malicious prosecution -- require a plaintiff to show
malicious or improper use of the process by the defendant. See,
e.g., Janus v. Am. Fed. of State, Cnty. & Mun. Emps., 942 F.3d
352, 365 (7th Cir. 2019); see also 54 C.J.S. Malicious Prosecution
§ 2 (2020) ("The wrongful use of a civil proceeding is a tort which
arises when a party institutes a lawsuit with a malicious motive
and lacking probable cause."); Pinsky v. Duncan, 79 F.3d 306, 312
(2d Cir. 1996) ("[A]buse of process tort has but two elements:
'first, an ulterior purpose, and second, a willful act in the use
of the process not proper in the regular conduct of the
- 11 -
proceeding.'" (quoting W. Page Keeton et al., Prosser and Keeton
on the Law of Torts § 121, at 898 (5th ed. 1984))). Accordingly,
they have rejected retroactive Janus-based claims for damages
under § 1983, precisely because Janus had not overruled Abood at
the time that the agency fees at issue in them were collected and
thus the malicious- or improper-use-of-process element, which the
analogy to those common-law torts suggests that Congress intended
to be imported into those plaintiffs' § 1983 claims, could not be
satisfied. See Diamond, 972 F.3d at 280 (Fisher, J., concurring
in the judgment) (collecting cases); see also Wyatt, 504 U.S. at
174 (Kennedy, J., concurring) ("[T]here is support in the common
law for the proposition that a private individual's reliance on a
statute, prior to a judicial determination of unconstitutionality,
is considered reasonable as a matter of law . . . ."); San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 60 (1973) (Stewart,
J., concurring) (noting that "one of the first principles of
constitutional adjudication" is "the basic presumption of the
constitutional validity of a duly enacted state or federal law"
(citing James B. Thayer, The Origin and Scope of the American
Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893))).
The Union urges us to follow that same logic here, and
thus to find that the District Court correctly held that Doughty
and Severance's damages claim fails. In support of our doing so,
moreover, the Union points to a substantial body of § 1983
- 12 -
precedent that they contend is directly analogous here. In it,
circuits have consistently treated the common-law torts concerning
misuse of state processes -- whether the tort of abuse of process
or malicious prosecution -- as closely analogous to § 1983 claims
for violations of procedural due process that have been brought
against private defendants who have availed themselves of state
summary process statutes for effecting the seizure of property,
whether through attachment or replevin or the like. See, e.g.,
Pinsky, 79 F.3d at 312; Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1276 & n.31 (3d Cir. 1994); Wyatt v. Cole,
994 F.2d 1113, 1119 (5th Cir. 1993); see also Duncan v. Peck, 844
F.2d 1261, 1267-68 (6th Cir. 1988). To be sure, the constitutional
violation that grounds those § 1983 claims is a product of the
flawed design of the state-backed summary process that the private
defendant relied upon to acquire the plaintiff's property, Wyatt,
504 U.S. at 161-62, and not of the defendant's use of that process
for other than its intended purpose. And, in that respect, there
is not a perfect match between the interests protected by those
common-law torts and the interests protected by the constitutional
right to procedural due process that underlies the § 1983 claim in
those cases. Nonetheless, that line of authority still holds that
such § 1983 claims are properly analogized to these common-law
torts, and thus courts consistently have held those claims to be
unavailing when they seek damages for a defendant's use of a
- 13 -
summary process statute that was entirely lawful when invoked but
that was then retroactively held to violate procedural due process
only due to a subsequent change in the law. See, e.g., Wyatt, 994
F.2d at 1120-21.
Notably, Doughty and Severance do not argue that we must
reject this line of § 1983 authority concerning challenges to
summary process statutes to rule for them in this case. They
contend only that this substantial body of § 1983 precedent is
distinguishable due to the type of claim that they are bringing
under § 1983, such that this line of precedent that is seemingly
problematic for them in fact provides no support for the Union's
position. That is so, Doughty and Severance contend, both because
their § 1983 claim seeks to vindicate a violation of the First
Amendment, not the right to procedural due process, and because
the Union did not invoke any court-like process in collecting the
agency fees, as the plaintiffs in the summary-process-focused
§ 1983 cases did in acquiring the property at issue in them.
Additionally, Doughty and Severance assert that, given the nature
of their § 1983 claim, the common-law backdrop of § 1983 in fact
cuts in their favor, because if any common-law tort is analogous
to the one that they are bringing under that statute, it is the
common-law tort of conversion, which permits a plaintiff to recover
damages without showing the defendant's malicious or improper use
- 14 -
of any legal process. But, we are not persuaded by these
arguments.
We do not dispute that Doughty and Severance are right
that their claim under § 1983 protects against the harm caused by
governmentally forced speech and association. In that respect, it
does protect interests quite different from those protected by the
common-law torts of malicious prosecution and abuse of process.
But, as we have just explained, the constitutional right to
procedural due process that underlies the § 1983 claims targeting
summary process statutes discussed above protects against a
failure of the state to provide enough process, not against the
misuse of a process that the state has otherwise properly provided.
Yet, it is that latter type of misuse that constitutes the harm
against which the common-law torts of abuse of process and
malicious prosecution provide protection. So, there is little
force to this asserted point of distinction between Doughty and
Severance's § 1983 claim and the body of § 1983 case law concerning
summary process statutes. Rather, their § 1983 claim, like the
plaintiffs' § 1983 claims in those cases, is similar to claims for
those common-law torts in that it seeks to compensate them for a
private party having used a lawful-when-invoked, state-backed
process to acquire their property, even though that process was
subsequently held to be unlawful due to a change in the law. See
Ogle v. Ohio Civ. Serv. Emps. Ass'n, 951 F.3d 794, 797 (6th Cir.
- 15 -
2020) ("Think about the problem this way. Public-sector unions
may enlist the State's help (and its ability to coerce unwilling
employees) to carry out everyday functions. But a union that
misuses this help, say because the state-assisted action would
violate the U.S. Constitution, may face liability under § 1983.").
Finally, while Doughty and Severance are right that
their Janus-based § 1983 claim seeks recompense for the invocation
of a state-backed process for collecting payments that is distinct
from the use of a court process to effect a seizure, we do not see
why that distinction is a salient one. Some divergence is to be
expected even between a § 1983 claim and a common-law tort that it
closely parallels. See Rehberg v. Paulk, 566 U.S. 356, 366 (2012)
(explaining that § 1983 is not "simply a federalized amalgamation
of pre-existing common-law claims, an all-in-one federal claim
encompassing the torts of assault, trespass, false arrest,
defamation, malicious prosecution, and more"). Doughty and
Severance, however, do not explain -- nor does any explanation
occur to us -- why the distinction between the use of an
adjudicative process and an administrative one supports the
conclusion that the Union should receive less protection for its
good-faith reliance on the lawful-when-invoked, state-backed
process than the defendants in the summary-process § 1983 cases
received for theirs.
- 16 -
We suppose the distinctions that Doughty and Severance
point to between their § 1983 claim and the common-law torts of
abuse of process and malicious prosecution might have force if
there were any indication that the common law was as indifferent
to reliance interests in a circumstance like the one at issue here
as they impliedly suggest is the case. For, in that event, there
would be no reason to be concerned that, in permitting their
damages claim to lie, we would be anachronistically reading § 1983
without regard for the common-law understandings that the Supreme
Court has made clear informed Congress in enacting that measure.
But, Doughty and Severance's attempt to make that case with
reference to the common-law tort of conversion -- which does not
require a showing of malice and which they contend supplies a more
apt analogy to their Janus-based claim -- is not convincing.
As an initial matter, Doughty and Severance provide no
support for their implicit premise that a claim for conversion
could have been brought at common law for the recovery of a
plaintiff's payment of a required fee when the funds used to pay
it were comingled with the defendant's other funds following its
collection. See 7 Am. Law of Torts § 24:7 (explaining that "before
there can be a conversion" of money, there is a "requirement that
there be 'ear-marked money or specific money capable of
identification'"); 44 A.L.R.2d 927 (1955) ("Money can be the
subject of conversion and a conversion action only when it can be
- 17 -
described, identified, or segregated in the manner that a specific
chattel can be . . . ."). Nor do they identify a single case in
which a claim for conversion was successfully brought at common
law for damages arising from the defendant's collection of money
payments revealed to have been made pursuant to an illegal
requirement only in retrospect, and then only due to the subsequent
overruling of a prior Supreme Court precedent under which the
requirement was lawful at the time that it was imposed. Their
failure on that score is especially conspicuous given how common-
law claims for recovering licensing fees and taxes based on the
retroactive application of such a sharp change in the law fared.
Cf. Diamond, 972 F.3d at 281 (Fisher, J., concurring in the
judgment) (describing the "contemporaneous" rule that "a judicial
decision either voiding a statute or overruling a prior decision
does not generate retroactive civil liability with regard to
financial transactions or agreements conducted, without duress or
fraud, in reliance on the invalidated statute or overruled
decision"); Note, The Effect of Overruled and Overruling Decisions
on Intervening Transactions, 47 Harv. L. Rev. 1403, 1404 (1934).
From this review, then, we see no support for concluding
that the common law was as indifferent as Doughty and Severance
impliedly suggest that it was to the threat to reliance interests
posed by affording a damages remedy for a private defendant's
acquisition of payments via the invocation of then-lawful state
- 18 -
processes that -- due only to a subsequent change in the law --
retroactively are revealed to have been unlawful. And, because
the Court has reminded us in connection with § 1983 that "[r]ights,
constitutional and otherwise, do not exist in a vacuum," Carey,
435 U.S. at 254, we are wary of attributing to the Congress that
enacted § 1983 an intent to permit a damages claim to go forward
in these most unusual circumstances, just because § 1983 provides
that a remedy "at law" "shall be" available for a constitutional
violation.
That said, we do recognize that "[t]he purpose of § 1983
would be defeated if injuries caused by the deprivation of
constitutional rights went uncompensated simply because the common
law does not recognize an analogous cause of action." See Carey,
435 U.S. at 258. For that reason, we are mindful that "[i]n
applying, selecting among, or adjusting common-law approaches" to
the new setting of § 1983, we "must closely attend to the values
and purposes of the constitutional right at issue." Manuel v.
City of Joliet, 137 S. Ct. 911, 921 (2017).
But, although Doughty and Severance assert that their
claim for damages seeks to vindicate their First Amendment right
against compelled speech and association and that this right
provides protection from harm that the common law itself did not,
they ignore the unusual nature of their attempt to secure relief
for the violation of that constitutional right. They thus develop
- 19 -
no argument -- nor does any occur to us -- why close attention to
the values and purposes of the First Amendment right against
compelled speech and association supports the conclusion that the
Congress that enacted § 1983 must have meant to create a claim for
damages for its retroactive violation when the violation results
in payments made pursuant to a lawful-when-invoked, state-backed
process.
Nor are we persuaded by Doughty and Severance's
contention that we must rule in their favor based on Harper v.
Virginia Department of Taxation, 509 U.S. 86 (1993), in which the
Court held that when it applies a rule of federal law to the
parties before it that rule "must be given full retroactive effect
in all cases still . . . on direct review." Id. at 97. Insofar
as the agency fees at issue here may be analogized to the taxes
collected in Harper -- itself a debatable proposition -- Doughty
and Severance make no argument that they were precluded from
bringing a pre-collection claim challenging the lawfulness of the
required payment of agency fees on the ground that Abood should be
overruled. As a result, they do not explain how the Supreme
Court's retroactivity jurisprudence provides any support for the
conclusion that § 1983 provides a remedy for the First Amendment
violation that grounds their claim under that statute. See
McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S.
18, 38 n.21 (1990) (explaining that the "availability of a
- 20 -
predeprivation hearing" can also "constitute[] a procedural
safeguard . . . sufficient by itself to satisfy the Due Process
Clause, and taxpayers cannot complain if they fail to avail
themselves of this procedure"); see also Nat'l Private Truck
Council, Inc. v. Okla. Tax. Comm'n, 515 U.S. 582, 587 (1995) ("As
long as state law provides a 'clear and certain remedy,' the States
may determine whether to provide predeprivation process (e.g., an
injunction) or instead to afford postdeprivation relief (e.g., a
refund)." (internal citations omitted) (quoting McKesson Corp.,
496 U.S. at 51)).
III.
Doughty and Severance do separately make a demand for
restitution, which is an equitable rather than a legal remedy.
And it is true that § 1983 empowers courts to hold a party that
violated another's federal rights "liable" in a "suit in equity."
42 U.S.C. § 1983. But, as Doughty and Severance do not plead that
the specific agency fees they paid can "clearly be traced to
particular funds or property in the [Union's] possession," see
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213
(2002), their claim is necessarily "one against the union's
treasury generally, not one against an identifiable fund or asset,"
which makes it inherently legal in nature, Mooney v. Ill. Educ.
Ass'n, 942 F.3d 368, 371 (7th Cir. 2019). Accordingly, their
restitution claim fails, too.
- 21 -
IV.
The judgment of the District Court is affirmed.
- 22 -