Sort of like a qualified immunity for private defendants

In 2018, a divided Supreme Court said that non-union public employees can withhold their "fair share" union dues if the union activity, including the act of negotiating a new labor contract, violated the First Amendment. Under this interpretation of the free speech clause, forcing employees to pay union dues constitutes coerced speech. This was an expansive interpretation of the First Amendment, to say the least. It also encouraged public employees to withhold their union dues even as they continued to benefit from the union's advocacy. That ruling raises a new issue, addressed in this case.

The case is Wholean v. CSEA SEIU Local 2001, issued on April 15. That Supreme Court ruling was called Janus, which overruled a 1977 Supreme Court ruling called Abood. After Janus came down, plaintiffs asked that the union pay back the union fees they paid out before the Supreme Court issued Janus. So they wanted a retroactive reimbursement of fees that the Supreme Court said in Janus violated the First Amendment.

Is the union required to make this reimbursement? In 1991, the Supreme Court said in Wyatt v. Cole, 504 U.S. 158 (1992), that private citizens who rely unsuspectingly on state laws they have no reason to believe were invalid should have some protection from liability. This is sort of like a qualified immunity doctrine for non-governmental actors. In Wyatt, several Justices believed that a good-faith defense for private individuals who rely on precedent has always existed in our legal system. The Court of Appeals (Cabranes, Lohier and Reiss [D.J.]), writes:

Since Wyatt, every Circuit Court of Appeals to have considered the question has held that a good-faith defense exists under § 1983 for private individuals and entities acting under the color of state law who comply with applicable law, including three circuits who have concluded that a good-faith defense is available to unions that relied on Abood and applicable state law in collecting fair-share fees prior to Janus.

I must say, I was not aware of this good-faith defense to lawsuits in the private context. But it was there all along. The defendant union in this case can invoke the good-faith defense, the Second Circuit says, because noting in Janus suggests the ruling was retroactive, and the unions collected union dues in reliance on Supreme Court precedent that was controlling at the time, the Abood case.