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Argument recap: A likely expansion of qualified immunity

Tuesday’s oral argument in Filarsky v. Delia veered in several directions, even discussing matters well outside the question presented. By the time the dust had settled, though, a majority of the Justices seemed inclined to hold that Mr. Filarsky – a private attorney who had provided services to a city government – was entitled to the protection of qualified immunity. More difficult to discern was the Court’s preferred rationale.

Arguing on behalf of Filarsky, Patricia Millett contended that a private attorney who is “temporarily retained by the government to work in coordination with or under the direct supervision of government employees in fulfilling the government’s business” should receive “the same immunity that a government employee performing that same function for that same government would receive.” Some Justices found this proposed standard too uncertain, at least from the perspective of the private attorney who is trying to assess his potential liability. It “doesn’t give this private attorney much assurance by itself,” commented Chief Justice Roberts; “the test itself undermines the asserted purpose” of giving the attorney “sufficient breathing room so he doesn’t stop” in his pursuit of the public interest. But this line of questioning was hardly discouraging for the petitioner. If anything, it pointed towards an even broader scope of immunity than Filarsky was seeking – one that would not require the private contractor to work in close coordination with, or under the direct supervision of, government employees.

This broader scope of immunity had been embraced by Justice Scalia in his dissent in Richardson v. McKnight – a dissent joined by Justices Kennedy and Thomas. And it became clear during Tuesday’s argument that Justice Scalia had in no way abandoned his prior view. “Don’t you think,” he asked Ms. Millett, that “the two should go pari passu, as we say, that if you can be sued for acting under color of law you ought to have the defenses that people who were acting with legal authority have?” Justice Scalia was thus suggesting that an actor’s status – as private contractor, part-time government employee, at-will government employee, or government employee with civil service protections – should be immaterial to the immunity inquiry. Instead, the only question should be what function the individual performed.

At times, the entire discussion was somewhat awkward. No doubt, this was largely because only a minority of the Justices (at most) seemed to think that the Court’s governing precedent –Richardson and Wyatt v. Cole – had created a workable rule. Yet the attorneys – understandably reticent to ask the Court to expressly overrule two rather recent decisions – needed to present arguments within this governing framework. Ms. Millett thus emphasized Mr. Filarsky’s role as a lawyer, stating that “attorneys can never be an independent contractor in relationship to their client in the way the prison was in Richardson.”

The approach of the United States, arguing as amicus curiae, was a shade different. Assistant to the Solicitor General Nicole Saharsky effectively attempted to distinguish Richardson into oblivion. The situation presented by Tennessee’s privately run prisons in Richardson, she argued, was practically sui generis, “a fairly unique case” in which “Tennessee was doing something really out on the forefront in terms of giving the day-to-day decisionmaking to the folks in that situation in the private prison.” To the United States, Richardson was the odd exception that proves the general rule: All persons performing governmental work should presumptively be entitled to qualified immunity, and only when the individuals are acting well outside the customary circumstances of ongoing governmental supervision should the outcome potentially be different.

Michael McGill, arguing on behalf of respondent Nicholas Delia, quickly ran into a wall of problems. At the outset, he emphasized the fundamental difference between private contractors and government employees. Justice Alito asked whether the critical difference “is between an employee and an independent contractor.” “Absolutely,” McGill responded. But when pressed on the point, McGill soon seemed to abandon it. If the government hired an attorney “for a year, exclusive employment, no other clients,” Justice Scalia asked, would that attorney be entitled to qualified immunity? “No,” said McGill. “He gets no immunity in that situation.”

McGill then tried to argue – drawing from a critical paragraph in Richardson – that the real question was whether the individual was subject to “market forces” that would sufficiently encourage a vigorous pursuit of the public interest, rendering the protection of qualified immunity unnecessary. A private contractor who is “subject to the market pressures and the competition” will correct his behavior, thereby “satisfy[ing] the same purposes that immunity provides.” The problem with that argument, though, is that all persons in the labor market – including government employees – are subject to such “market forces” to some degree. As several Justices pointed out, McGill’s argument – framed as broadly as he was sketching it – would effectively scrap qualified immunity doctrine in its entirety.

The key point in the argument came midway through McGill’s time at the podium, when Chief Justice Roberts rather forthrightly laid his cards on the table. “Your case,” said the Chief Justice, “is a very good example of why the lawyer ought to have qualified immunity.” We want attorneys like Filarsky to “do what he thinks is the right thing in this situation,” continued Roberts. “We don’t want him to be worried about the fact that he might be sued.” To the Chief Justice, Delia’s lawyer appeared to be “threatening and bullying” Filarsky. “So Filarsky naturally, or some lawyer in that situation is going to think, wow, do I really want to run that risk.”

It spoke volumes that, as Mr. McGill struggled through these interactions, none of the Justices potentially inclined to side with him chose to intervene. Instead, when Justice Ginsburg finally re-entered the fray, it was to raise an issue well beyond the question on which the Court had granted certiorari – namely, to inquire as to whether the relevant, underlying Fourth Amendment principle was “clearly established.” (She did so while conceding that the question was actually “not teed up in this case.”) Ginsburg’s interest in exploring this point was as sure a sign as any that the Court was largely unconvinced by Mr. McGill’s principal submissions.

Again, Justices Scalia, Kennedy, and Thomas have already taken the position that a person’s status (as private individual or public employee) is immaterial to the question of qualified immunity. Thus, a big question going into Filarsky was whether either the Chief Justice or Justice Alito concur in that view. The oral argument seemed to suggest that they do. But that does not mean the Court will necessarily use Filarsky to move the law that far. The Court could just take an intermediate step and narrow Richardson’s scope, rather than overrule it outright.

Regardless, oral argument only reaffirmed the view that the Court is likely to reverse the Ninth Circuit and hold that private attorneys in circumstances like Filarsky’s are entitled to the protection of qualified immunity. The real question is on what grounds the Court will so hold.

Recommended Citation: Bradley Joondeph, Argument recap: A likely expansion of qualified immunity, SCOTUSblog (Jan. 19, 2012, 3:05 PM),