CHE' COOK V. KATE BROWN, No. 19-35191 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 27 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT CHE’ S. COOK; et al., U.S. COURT OF APPEALS No. 19-35191 Plaintiffs-Appellants, v. D.C. No. 6:18-cv-01085-AA MEMORANDUM* KATE BROWN, in her official capacity as Governor of the State of Oregon; KATY COBA, in her official capacity as Director of the Oregon Department of Administrative Services, Defendants, and OREGON AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES COUNCIL 75, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, 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. Che’ S. Cook, Clifford H. Elliott, Bethany Harrington, William Lehner, Carmen Lewis, and Trudy Metzger appeal from the district court’s summary judgment in their 42 U.S.C. § 1983 action alleging a First Amendment claim arising out of compulsory agency fees (also known as fair share fees) paid to Oregon American Federation of State, County, and Municipal Employees (“AFSCME”) Council 75. 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.”). 2 19-35191 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 19-35191

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