NOT FOR PUBLICATION FILED

APR 27 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUSTIN CAREY; et al., No. 19-35290

Plaintiffs-Appellants, D.C. No. 3:18-cv-05208-RBL

v.

MEMORANDUM*

WASHINGTON EDUCATION

ASSOCIATION,

Defendant-Appellee,

and

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.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Submitted April 20, 2021** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellants’ request for oral argument, set forth in the opening brief, is denied. Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

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, 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, 138 S. Ct. 2448 (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.”).

2 19-35290 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.

3 19-35290