Petition for Writ of Certiorari — James A. DeLanis, Petitioner v. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, et al.

No. ______

In the

Supreme Court of the United States

JAMES A. DELANIS,

Petitioner,

v.

BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC; ROBERT J. MENDES, individually and in his

capacity as a member of the Metro Council,

Respondents,

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIOARI

JOHN I. HARRIS, III

SCHULMAN, LEROY & BENNETT, P.C.

3310 West End Avenue,

Suite 460

Nashville, TN 37203

BRETT R. NOLAN

Counsel of Record

ALAN GURA

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave. NW

Suite 801

Washington, D.C. 20036

bnolan@ifs.org

(202) 301-3300

Counsel for Petitioner

i

QUESTIONS PRESENTED

Qualified immunity protects private parties

“working for the government in pursuit of government objectives.” Filarsky v. Delia, 566 U.S. 377, 392

(2012). But it does not extend to those who “pursue[]

purely private ends.” Id.

After the city of Nashville threatened a law firm

over an employee’s constitutionally protected speech,

the firm fired that employee to protect its own financial interests. The Sixth Circuit held that city officials

violated the employee’s clearly established rights. But

it granted the private law firm qualified immunity.

That decision was contrary to decisions from the First,

Fourth, Seventh, and Eleventh Circuits, which have

each held that qualified immunity does not apply to

private parties pursuing their own private interests.

The questions presented are:

1. Whether a private entity is eligible for qualified

immunity when pursuing personal interests outside

the scope of any government function; and

2. Whether a private entity seeking qualified immunity must be treated the same as a public employee

when deciding whether it violated any clearly established rights.

ii

PARTIES TO THE PROCEEDING

Petitioner James A. DeLanis was the plaintiff in

the district court and the appellee in the court of

appeals.

Respondent Baker, Donelson, Bearman, Caldwell

& Berkowitz, PC was a defendant in the district court

and an appellant in the court of appeals (case no. 235948).

Respondent Robert J. Mendes, individually and in

his capacity as a member of the Metro Council, was a

defendant in the district court and an appellant in the

court of appeals (case no. 23-5939).

Metropolitan Government of Nashville & Davidson

County was a defendant in the district court.

CORPORATE DISCLOSURE STATEMENT

Petitioner is a natural person and thus no corporate disclosure is required.

iii

STATEMENT OF RELATED PROCEEDINGS

United States District Court for the Middle District of

Tennessee (M.D. Tenn.):

James A. DeLanis v. Metropolitan Government of

Nashville & Davidson County, Civil No. 3:22-cv469, reported at 697 F. Supp. 3d 748 (order denying

motion to dismiss on qualified immunity grounds

entered Oct. 6, 2023)

United States Court of Appeals for the Sixth Circuit

(6th Cir.):

James A. DeLanis v. Metropolitan Government of

Nashville & Davidson County, Case Nos. 235939/23-5948, reported at 160 F.4th 732 (judgment

entered Nov. 24, 2025)

James A. DeLanis v. Metropolitan Government of

Nashville & Davidson County, Case No. 23-5948

(order denying rehearing en banc entered Jan. 30,

2026)

United States Supreme Court:

James A. DeLanis v. Baker, Donelson, Bearman,

Caldwell & Berkowitz, PC, No. 25A1081 (application

granted by Justice Kavanaugh extending the time to

file petition for writ of certiorari until June 29, 2026,

order entered April 3, 2026)

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED PROCEEDINGS ....... iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ....................................... vi

PETITION FOR A WRIT OF CERTIORARI.............. 1

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 2

JURISDICTION .......................................................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................... 3

STATEMENT OF THE CASE .................................... 4

A. Factual Background .............................................. 4

B. Procedural Background ........................................ 6

REASONS TO GRANT THE PETITION ................... 9

I.

The decision below undermines this Court’s

qualified immunity precedent .............................. 9

II. The decision below creates a circuit split........... 17

III. This case is an ideal vehicle for resolving the

immunity questions ............................................ 20

CONCLUSION .......................................................... 21

v

Appendix A — Opinion of the United States

Court of Appeals for the Sixth Circuit, Filed

November 24, 2025.............................................. 1a

Appendix B — Judgment of the United States

Court of Appeals for the Sixth Circuit, Filed

November 24, 2025............................................ 41a

Appendix C — Memorandum Opinion of the

United States District Court for the Middle

District of Tennessee, Filed October 6,

2023 ................................................................... 42a

Appendix D — Order of the United States

District Court for the Middle District of

Tennessee, Nashville Division, Filed

October 6, 2023................................................ 112a

Appendix E — Order of the United States Court

of Appeals for the Sixth Circuit, Filed

January 30, 2026 ............................................. 116a

Appendix F — First Amended Complaint of the

United States District Court for the Middle

District of Tennessee, Filed September 11,

2022 ................................................................. 118a

vi

TABLE OF AUTHORITIES

Cases

Page

Baxter v. Bracey,

590 U.S. 1011 (2020) ....................................... 2, 14

Blum v. Yarestky,

457 U.S. 991 (1982) ............................................... 6

Burrell v. Bd. of Trustees of Ga. Military College,

970 F.2d 785 (11th Cir. 1992) ....................... 18, 19

City & Cnty. of San Francisco v. Sheehan,

575 U.S. 600 (2015) ............................................. 14

Clinton v. Jones,

520 U.S. 681 (1997) ............................................. 13

Elrod v. Burns,

427 U.S. 347 (1976) ................................. 14, 15, 16

FEC v. Wisc. Right to Life, Inc.,

551 U.S. 449 (2007) ............................................. 10

Felix de Santana v. Velez,

956 F.2d 16 (1st Cir. 1992) ........................... 17, 18

Filarsky v. Delia,

566 U.S. 377 (2012) ...................................... 1, 9-20

Forrester v. White,

484 U.S. 219 (1988) ............................................. 13

Garza v. Idaho,

586 U.S. 232 (2019) ............................................. 14

Gregg v. Ham,

678 F.3d 333 (4th Cir. 2012) ............................... 17

vii

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ......................................... 14

Imbler v. Pachtman,

424 U.S. 409 (1976) ............................................. 13

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ............................................. 13

Richardson v. McKnight,

521 U.S. 399 (1997) ............................................. 12

Rodriques v. Furtado,

950 F.2d 805 (1st Cir. 1991) ............................... 18

Sherman v. Four Cnty. Counseling Ctr.,

987 F.2d 397 (7th Cir. 1993) ......................... 19, 20

Wyatt v. Cole,

504 U.S. 158 (1992) ................. 1, 10, 11, 12, 16, 20

Constitutional Provisions

U.S. Const. amend. I ............................. 1, 3, 4, 6, 8, 14

Statutes and Other Authorities

28 U.S.C. § 1254(1) ...................................................... 2

42 U.S.C. § 1983 ......................... 2, 3, 6, 7, 9, 12-14, 20

Metro. Gov. of Nasvhille & Davidson Cnty. Charter

§ 19.01 .................................................................... 4

Metro. Gov. of Nasvhille & Davidson Cnty. Charter

§ 19.03 .................................................................... 4

Metro. Gov. of Nasvhille & Davidson Cnty. Charter

§ 19.03(f) ................................................................ 4

viii

Metro. Gov. of Nasvhille & Davidson Cnty. Charter

§ 19.04 .................................................................... 4

Metro. Gov. of Nasvhille & Davidson Cnty. Charter

§ 19.04(a) ............................................................... 4

Metro. Gov. of Nasvhille & Davidson Cnty. Charter

§ 19.04(b) ............................................................... 4

Tenn. Code Ann. § 2-12-110(a) .................................... 4

Tenn. Code Ann. § 2-12-110(b) .................................... 4

1

PETITION FOR A WRIT OF CERTIORARI

James A. DeLanis respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit.

INTRODUCTION

Typically, a private law firm’s termination of an

employee raises no constitutional problems. But this

case is not typical. Baker Donelson only fired James

DeLanis after the city of Nashville threatened to punish the firm over DeLanis’s constitutionally protected

speech. A Sixth Circuit panel upheld the denial of the

city official’s qualified immunity claim, but divided

over whether the law firm—motivated only by its financial interests and with ample time and expertise

to weigh the merits of its decision—had qualified immunity from DeLanis’s First Amendment claim. The

majority held that the firm enjoyed qualified immunity.

If qualified immunity stretches that far, this Court

has never said so. Indeed, precedent instructs that

while qualified immunity protects private “individuals

working for the government in pursuit of government

objectives,” it does not yet extend to those like Baker

Donelson who “pursue[] purely private ends.”

Filarsky, 566 U.S. at 392. That’s because qualified immunity only exists to protect the “government’s ability

to perform its traditional functions.” Wyatt v. Cole, 504

U.S. 158, 167 (1992). And private parties that act unlawfully for their own personal benefit perform no government function at all.

2

But the Sixth Circuit saw things differently. It concluded that firing DeLanis in response to the city’s

threats was no different than any other government

function that a private contractor might perform. That

decision is not just wrong—it upends decades of this

Court’s immunity precedent, breaking with four other

circuits along the way.

Qualified immunity has already veered away from

“the common-law backdrop against which Congress

enacted [§ 1983].” Baxter v. Bracey, 590 U.S. 1011,

1013 (2020) (Thomas, J., dissenting from the denial of

certiorari). It should not stray any further. The Sixth

Circuit’s novel expansion of the doctrine to cover private parties who lack any concern for the public good

merits this Court’s review.

OPINIONS BELOW

The Sixth Circuit’s opinion is reported at 160 F.4th

732. The Sixth Circuit’s order denying the petition for

rehearing en banc, App.116a–17a, is not reported. The

district court’s opinion is reported at 697 F. Supp. 3d

748.

JURISDICTION

The court of appeals entered its judgment on November 24, 2025. App.41a–42a. On January 30, 2026,

the court of appeals denied Petitioner’s timely petition

for rehearing en banc. App.116a–17a. On April 3,

2026, Justice Kavanaugh granted Petitioner’s application to extend the time to file a petition for writ of certiorari until June 29, 2026. See DeLanis v. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, No.

25A1081. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the U.S. Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or of the right of the people peaceably to assemble, and to petition the Government for redress of

grievances.”

Title 42 U.S.C. § 1983 provides in pertinent part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .”

4

STATEMENT OF THE CASE

A. Factual Background

Petitioner Jim DeLanis has practiced law in Nashville for over 40 years, mostly at respondent Baker Donelson. That ended in June of 2022, when the city of

Nashville pressured Baker Donelson into firing him

for exercising his First Amendment rights.

1. In 2020, Nashville enacted its largest-ever

property tax increase. A group of citizens promoted a

ballot referendum that would roll back the tax hike

and limit future rate increases, but Nashville deployed

significant resources to stop the issue from reaching

the voters.

The referendum process for Nashville runs

through the Davidson County Election Commission.

See Metro. Gov. of Nasvhille & Davidson Cnty. Charter §§ 19.01, 19.03, 19.04. The commission, comprised

of five commissioners appointed by a state agency, operates independently from Nashville’s government.

See Tenn. Code Ann. § 2-12-110(a), (b). As part of its

responsibilities, the commission must certify that any

referendum petition complies with state law before

adding it to the ballot. Metro. Gov. of Nasvhille & Davidson Cnty. Charter §§ 19.03(f), 19.04(a), (b).

In addition to working at Baker Donelson, DeLanis

served as one of Davidson County’s five election commissioners. App.121a. The job required DeLanis to

take positions on matters of significant public interest,

which are often “contrary to the wishes, and perceived

interests” of the city of Nasvhille. App.122a. That was

the case when Nashville found itself embroiled in the

fight to repeal its property-tax increase.

5

2. The first attempt at rolling back the tax increase was quickly defeated. In response to a dispute

over the referendum petition’s legality, the commission brought a declaratory suit in state court. Nashville successfully urged the court to declare the petition unlawful. App.127a–28a.

But the opponents of Nashville’s tax increase did

not give up. They filed a second petition that corrected

the prior issues and submitted it in early 2021. Id.

Then, on advice from its outside counsel, the commission approved placing the new referendum on the ballot. Id. 130a.

Nashville once again fought back—this time on

several fronts. Leading the charge was city councilman Robert Mendes. He tried to derail the petition by

adding a poison pill to the ballot that would “forever

preclude any public referendum on property tax levies” in the future. Id. at 128a–29a. Then, after the

commission approved the tax referendum for a public

vote, Mendes accused it of engaging in “political theater” at one of the commission’s public meetings. Id. at

130a–31a. He tried to intimidate them into reversing

course, telling the commissioners that they would not

get away with their “sham.” Id. at 131a–32a.

3. Not content with Mendes’s public pressure,

Nashville also turned to Baker Donelson for help. Id.

at 132a. But not in the way one might expect. Nashville did not hire Baker Donelson to work on the referendum effort. App.148a. Rather, the city tried to leverage its unrelated business with Baker Donelson to

pressure the firm into “influencing” DeLanis. Id. at

132a–33a. It asked the firm to “discourage” DeLanis

“from taking action to put the [referendum] on the

6

ballot.” Id. And the city threatened to pull its business

if DeLanis did not change his vote. Id. at 134a.

The intimidation worked. Over a period of several

weeks, Baker Donelson “berated DeLanis” over his activity as a commissioner, telling him about Nashville’s

threats. App.133a–34a. It repeatedly asked him to

change his vote (or refrain from voting) on the referendum. Id. 133a–34a, 138a, 141a. When that didn’t

work, Baker Donelson fired DeLanis to appease the

city and protect the “revenue” it earned from working

for the government on unrelated matters. Id. at 125a,

142a.

B. Procedural Background

1. DeLanis sued Nashville, city councilman Robert Mendes, and Baker Donelson. Among other claims,

DeLanis alleged that Baker Donelson violated the

First Amendment by firing him for his constitutionally

protected speech and activity on the Commission.

App.164a–65a.

Section 1983 imposes liability on private defendants who act in response to government intimidation

and coercion. See Blum v. Yarestky, 457 U.S. 991, 1004

(1982). DeLanis alleged that Nashville intimidated

Baker Donelson into firing him by threatening to withdraw its unrelated business. App.134a, 164a. This

makes Baker Donelson a state actor under § 1983,

even though the firm was not working for the government when it retaliated against DeLanis. Id. at 148a,

164a.

7

2. Baker Donelson (along with city councilman

Mendes) moved to dismiss based on qualified immunity. In doing so, the firm did not dispute that it was a

state actor under § 1983. See App.100a (citing

Dist.Ct.Dkt.44). Nor did it dispute that DeLanis “was

engaged in constitutionally protected speech or activity when he sought to cast his vote as an elected official.” Id. at 77a. Rather, the firm argued only that firing DeLanis to protect its relationship with Nashville

did not violate any clearly established rights. See

Dist.Ct.Dkt.44 at 3–4.

DeLanis objected to the firm’s qualified immunity

defense because the doctrine only protects private parties when they act within their discretionary authority

as agents of the state. Dist.Ct.Dkt.48 at 4–7. The firm,

however, did not represent the city on any matters related to the referendum, App.120, and so it lacked any

government-conferred authority with respect to DeLanis’s termination. DeLanis claimed that Baker Donelson instead fired him to protect its own private, financial interests. Dist.Ct.Dkt.48 at 4–7.

The district court denied qualified immunity to

both Baker Donelson and Mendes. It first held that

Mendes violated DeLanis’s clearly established rights

by intimidating the firm in firing him. App.95–99a. It

then concluded that qualified immunity only applies

to individuals and thus does not protect private entities like Baker Donelson. App.99a–101a. And even if

that were wrong, the court explained, Baker Donelson

violated DeLanis’s clearly established rights for the

same reasons that Mendes did.

3. A split Sixth Circuit panel upheld the denial of

qualified immunity as to Mendes, but it reversed the

8

denial of Baker Donelson’s qualified immunity claim.

That decision rested on three key conclusions.

First, the majority held that Baker Donelson

could assert qualified immunity as a private entity

even though it acted pursuant to its own private interests. App.15a–18a. As the majority saw it, the

firm’s status as Nashville’s outside counsel for unrelated matters meant that any action Baker Donelson

took in response to the city’s threats fell within its

discretionary authority. Id. That Baker Donelson

acted for its personal financial gain (outside the

scope of any work Nashville hired the firm to do) did

not matter. Id.

Second, the Sixth Circuit held that Mendes violated DeLanis’s clearly established constitutional

rights because there is “no doubt that causing an employee’s firing due to his protected speech violates the

First Amendment.” Id. at 20a–21a. The court explained that DeLanis plausibly alleged that Mendes

caused Baker Donelson to fire DeLanis over his conduct on the commission by threatening the firm, and

that doing so clearly violated the First Amendment.

Id. at 22a–23a.

Third, the majority held that Baker Donelson did

not violate DeLanis’s clearly established rights by firing him because the firm “sought to protect its client

base, not to punish DeLanis for his speech.” App.24a.

Rather than treating the firm the same as other public

employees, the court considered Baker Donelson’s status as a private entity pursuing its own interests a material distinction that triggered qualified immunity.

Id.

9

4. Judge Clay dissented. He questioned how the

majority could dismiss Baker Donelson’s private motivation when assessing whether a firm is eligible to assert qualified immunity, yet rely on that same private

interest to hold that the firm did not violate DeLanis’s

clearly established rights. App.39a. As Judge Clay explained, the fact that Baker Donelson’s “own business

interests” drove its decision-making “illustrates that

the firm did not carry out a public function,” and so

the firm cannot raise qualified immunity because it

cannot claim to have worked “in the pursuit of government objectives.” Id. at 39a–40a (quoting Filarsky, 566

U.S. at 392). Unlike the attorney in Filarsky, “Baker

Donelson neither functioned in a public capacity nor

demonstrated any concern regarding the public interest that would warrant extending qualified immunity

to the law firm.” Id. at 40a.

The Sixth Circuit denied rehearing en banc.

App.116a–17a.

REASONS TO GRANT THE PETITION

The question presented is an exceptionally important one that the Sixth Circuit got wrong, the decision breaks with other circuits, and this case is the

perfect vehicle to resolve the circuit split and clarify

the outstanding immunity issues.

I.

The decision below undermines this

Court’s qualified immunity precedent.

Qualified immunity protects private parties “working for the government in pursuit of government objectives” as if they were public employees. Filarsky,

566 U.S. at 392. Liability under § 1983, however, is

not so limited. A private party can engage in state

10

action even when pursuing private interests outside

the scope of any government-conferred authority. See

id. at 392–93. When that happens, qualified immunity

does not apply. See id.

As the Court explained in Filarsky, this rule

strikes an important balance. It protects everyone “engaged in the public’s business” regardless of whether

they do so on a full-time or part-time basis. Id. at 390,

392–94. But it does not shield those motivated by

“purely private ends.” Id. at 392. Immunity, after all,

exists only to “protect[] the government’s ability to

perform its traditional functions.” Wyatt, 504 U.S. at

167. It has no place for defendants doing something

else entirely. Id. at 168.

The Sixth Circuit violated this principle twice over.

It ignored Baker Donelson’s private interest when deciding whether the firm is entitled to assert qualified

immunity. But it relied on the firm’s private interest

to treat it differently than a public employee when

granting immunity. “This ‘heads I win, tails you lose’

approach cannot be correct.” FEC v. Wisc. Right to

Life, Inc., 551 U.S. 449, 471 (2007) (opinion of Roberts,

C.J.). It vastly extends qualified immunity to protect

private parties who have no concern for the “public

good,” Filarsky, 566 U.S. at 390, and incentivizes them

to acquiesce when the government bullies them into

acting unlawfully.

1. Whether private defendants pursuing private

interests are entitled to qualified immunity is plainly

a question of exceptional importance. That this Court

has already endeavored to answer the question confirms the importance of correcting the Sixth Circuit’s

11

error. The lower courts should understand that qualified immunity cannot shield private interests.

Filarsky expanded qualified immunity to cover private “individual[s] hired by the government to assist

in carrying out its work.” 566 U.S. at 393. But this rule

only applies to private parties “retained by the” government to perform an official task. Id. It does not

cover those acting beyond their delegated power to

“pursue[] purely private ends.” Id. at 392–93.

That simple rule should have resolved this case.

Nashville did not hire Baker Donelson to do any work

related to the referendum. App. 148a. Instead, the city

leveraged its unrelated business with the firm to coerce and intimidate Baker Donelson into retaliating

against DeLanis. Id. at 134a. And when Baker Donelson acquiesced, it did so to preserve its own private

interests, id. at 125a, 147a, without concern for “enhancing the public good,” Filarsky, 566 U.S. at 392

(quoting Wyatt, 504 U.S. at 168).

The Sixth Circuit abandoned this Court’s framework by treating Baker Donelson’s decision to fire

DeLanis as a public function that Nashville delegated

to the firm. Not only does that conclusion ignore the

allegations in the complaint, see App.148a, it turns

Filarsky on its head. Firing an employee out of fear

that one might lose work from a government agency is

not a “traditional government function.” Filarsky, 566

U.S. at 389–90. It is a private decision, motivated by

private financial interests, beyond the scope of any

work the firm was “retained by the [c]ity” to do. Id. at

393. Nashville coerced the firm into retaliating

against DeLanis—but that does not mean the firm

12

was “working for the government” when it did so. Id.

at 392.

Nor does extending qualified immunity in these

circumstances further the traditional justifications

“for recognizing immunity under § 1983.” Filarsky,

566 U.S. at 389.

Qualified immunity—like all forms of government

immunity—exists only to “protect[] [the] government’s

ability to perform its traditional functions.” Wyatt, 504

U.S. at 167. It does so in three ways: Immunity discourages public officials from “unwarranted timidity”

in carrying out their duties. Richardson v. McKnight,

521 U.S. 399, 409–11 (1997). It “ensur[es] that talented candidates are not deterred from public service.”

Filarsky, 566 U.S. at 389–90. And it “prevent[s] the

harmful distractions from carrying out the work of

government that can often accompany damages suits.”

Id. at 390.

As Filarsky explained, none of these reasons “counsels against” granting immunity to private parties

who contract with the government for part-time work.

Id. at 389. That’s because part-time government work

is still government work. And so the need for decisive,

talented, and focused public servants does not change

based on how they are hired.

“These rationales,” however, “are not transferable”

when public officials coerce a private entity to act outside of any delegated government authority. See Wyatt, 504 U.S. at 168. There can be no “unwarranted timidity in [the] performance of public duties” when the

private defendant is not exercising a public duty. Richardson, 521 U.S. at 409. Nor is there any reason to

worry about distracting individuals from “carrying out

13

the work of government” when the defendants were

not hired to do the government’s work. Filarsky, 566

U.S. at 390. And there is no need to attract “talented

candidates” to government service when officials use

threats and intimidation to bully private parties into

action. Id. So when a defendant like Baker Donelson

acts out of self-preservation, to advance its own financial interest in the face of government threats, any

concern for protecting the government’s ability to “discharge [its] duties” disappears. Id. at 391.

That conclusion aligns with this Court’s broader

immunity precedent. “[I]mmunities are grounded in

‘the nature of the function performed, not the identity

of the actor who performed it.’” Clinton v. Jones, 520

U.S. 681, 695 (1997) (quoting Forrester v. White, 484

U.S. 219, 229 (1988)). And “the sphere of protected

action must be related closely to the immunity’s justifying purposes.” Nixon v. Fitzgerald, 457 U.S. 731,

755 (1982). 1 If a private party is not performing a government function in pursuit of the public good, its

conduct falls outside “the sphere of protected action.”

Id.

Private parties pursuing private financial interests

are also unlikely to be making the same “split-second

judgments” that animate the stated need for

1 The Sixth Circuit dismissed Clinton and similar precedent as

having “nothing to offer” in a case about qualified immunity.

App.12a. But Filarsky itself drew on absolute immunity precedent throughout its analysis—even citing the “common law protections” of both “absolute [and] qualified immunity” in its third

sentence. See 566 U.S. 380, 385–87. That conforms to this Court’s

long practice of interpreting § 1983 “in harmony with general

principles of tort immunities and defenses.” Imbler v. Pachtman,

424 U.S. 409, 418 (1976).

14

immunity. City & Cnty. of San Francisco v. Sheehan,

575 U.S. 600, 612 (2015) (quotation omitted). It’s not

clear that the common-law tradition Filarsky relied on

even supports extending immunity to defendants “who

have time to make calculated choices” before acting

unlawfully. Hoggard v. Rhodes, 141 S. Ct. 2421, 2422

(2021) (Thomas, J., respecting the denial of certiorari).

But it is clear in such circumstances that fears about

timidity or hesitation dissipate dramatically. By applying qualified immunity here, the decision below

broadens a doctrine that has already strayed far beyond its roots. See Baxter, 590 U.S. at 1013 (Thomas,

J., dissenting from the denial of certiorari). It does not

just “break[] from this Court’s precedent,” it moves the

law “another step further from the original meaning”

of § 1983. See Garza v. Idaho, 586 U.S. 232, 258 (2019)

(Thomas, J., dissenting).

2. The Sixth Circuit’s threshold error in deciding

whether qualified immunity applies would alone be

worthy of this Court’s review. But the lower court’s errors did not stop there.

If qualified immunity applies to a private party, it

must receive “the same immunity” as a public employee. Filarsky, 566 U.S. at 390. Rather than treating Baker Donelson as an ordinary public employee,

however, the court granted qualified immunity solely

because no precedent clearly established that “a law

firm (or private company) violates the First Amendment” when retaliating against an individual in response to the government’s threats of financial harm.

App.24a. So Baker Donelson received the benefits

“enjoyed by” public employees when assessing its eligibility for qualified immunity, Filarsky, 566 U.S. at

390, without the consequence that a public employee

15

would face for engaging in the same retaliatory conduct.

It’s hard to imagine a decision that more thoroughly upends this Court’s immunity precedent. The

whole point of Filarsky is that private defendants engaged in public service must be treated no differently

than “their public employee counterparts.” 566 U.S. at

390. Yet the Sixth Circuit granted Baker Donelson the

“immunity enjoyed by” a government employee, 566

U.S. at 394, while holding that it cannot reasonably

compare the firm’s conduct to other government employees. That conclusion eviscerates Filarsky’s core

and the 200 years of common-law history it drew upon.

See id. 384–91.

To see the problem more starkly, consider how two

cases might turn out under the Sixth Circuit’s reasoning. Both cases involve a defendant who supervises

several employees, two of whom are Republicans. The

defendant learns that his boss, a government official,

will not tolerate Republicans working for his agency.

The defendant does not care about partisan politics.

But to avoid retaliation from his boss, he fires both to

preserve his own interests. See Elrod v. Burns, 427

U.S. 347, 351 (1976).

Now suppose the only difference between these two

cases is that the defendant is a government employee

in one, worried about losing his job, but he’s a private

party in the other, worried about losing his lucrative

government contracts. Does that difference matter?

Under Filarsky (and the common-law tradition it relied on), it should not. See 566 U.S. at 393–94. Yet the

Sixth Circuit held otherwise, granting qualified

16

immunity based solely on the defendant’s status as a

private party.

The decision makes it more difficult to hold private

defendants liable for conduct that would be plainly unconstitutional if done by a government employee. See

Elrod, 427 U.S. 347 at 360, 372–73. And it does so, not

in spite of, but because the defendant showed “no concern regarding the public interest.” App.40a (Clay, J.,

dissenting). That’s a long way adrift from a defense

historically grounded in “enhancing the public good.”

See Filarsky, 566 U.S. at 392 (quoting Wyatt, 504 U.S.

at 168).

Fifteen years ago this Court worried that a private

contractor working alongside a public employee could

“be left holding the bag” despite performing the same

public service. Id. at 391. The decision below creates

the inverse problem. Now public employees can “fac[e]

full liability for actions taken in conjunction with [private parties] who enjoy immunity for the same activity.” Id.

***

Left unaddressed by this Court, the decision below

effectively overrules Filarsky and undermines the

precedent that led to its holding. If qualified immunity

is to receive such a dramatic expansion, it should be

this Court’s prerogative to make that change. Whether

qualified immunity will shield not just governmental

interests, but private pecuniary interests as well, remains a question of exceptional importance warranting this Court’s consideration.

17

II.

The decision below creates a circuit split.

The Sixth Circuit’s decision conflicts with four

other circuits. The First, Fourth, Seventh, and Eleventh Circuits have all denied qualified immunity for

private defendants who acted unlawfully to advance

their own personal interests.

1. After Filarsky, the Fourth Circuit denied qualified immunity to a bail bondsman who “operated in

pursuit of his own financial self-interest.” Gregg v.

Ham, 678 F.3d 333, 341 n.6 (4th Cir. 2012). While bail

bondsmen may act under color of state law, “they are

not entrusted with a public function.” Id. at 340. And

“rather than operating in the interest of public service,” the court explained, “the work of a bail bondsman is fueled primarily by a strong profit motive.” Id.

at 341. This “self-interest,” coupled with the fact that

a bondsman is “not hired by or working on behalf of

the government,” makes the private defendant ineligible for qualified immunity. Id. at 341 & n.6.

2. Other circuits reached a similar conclusion even

before Filarsky.

The First Circuit has long denied qualified immunity to private parties who acted unlawfully “in the advancement of their own self-interests.” Felix de Santana v. Velez, 956 F.2d 16, 20 (1st Cir. 1992). In Felix

de Santana, the court held that qualified immunity

did not protect the private defendants who worked

with a local prosecutor to bring baseless charges

against the plaintiff. Id. at 17, 20. The court explained

that “[e]xtending immunity to defendants” would

“make[] no sense” because “they were not performing

any public function or duty.” Id. at 19. Rather, the

18

defendants participated in the scheme solely for a “private purpose.” Id.

The court in Felix de Santana distinguished its earlier precedent granting qualified immunity to private

parties based on this divide over public and private interests. In Rodriques v. Furtado, 950 F.2d 805 (1st Cir.

1991), several doctors were “pressed into service by

the State” to assist the police in performing body cavity searches. Id. at 815. Unlike Felix de Santana (or

the facts in DeLanis’s case), there were no allegations

that the physicians were “acting out of self interest in

conducting the search.” Id.

The First Circuit’s reasoning in both Rodriques

and Felix de Santana echoed what this Court would

say 20 years later in Filarsky. The court observed that

denying qualified immunity to physicians who had

“accepted the responsibilities of a public official in the

public interest” would “deter them from assisting in

the execution of valid warrants” in the future. 950

F.2d at 815 (citation modified). But that same concern

does not exist for private defendants who act unlawfully to advance “their own self-interests.” Felix de

Santana, 956 F.2d at 20.

The Eleventh Circuit has likewise rejected qualified immunity claims by private parties who, for their

own benefit, worked with the government to violate

someone’s rights. See Burrell v. Bd. of Trustees of Ga.

Military College, 970 F.2d 785, 792, 796 (11th Cir.

1992). In Burrell, a private bank fired the plaintiff

after her criticism of a government agency caused the

bank to lose “around $100,000 in deposits.” Id. at

791–92. Like the defendants in Felix de Santana, the

plaintiff alleged that the private defendants

19

“conspired with public officials to deprive Burrell of

her constitutional rights.” Id. at 796. And like the defendants in Felix de Santana, the defendants did not

do so because of their “duties under a government contract” or an obligation “to assume the responsibilities

of a public official in the public interest.” Id. at 795–96

(citation modified). Rather, the private defendants

sought to protect their own financial interests after

the plaintiffs’ speech cost them significant deposits.

And for that reason, they could not “claim the protection of qualified immunity.” Id. at 796.

Finally, the Seventh Circuit reached a similar conclusion in Sherman v. Four County Counseling Center,

987 F.2d 397 (7th Cir. 1993). There, a plaintiff sued “a

police officer and a private mental institution involved

in [his] emergency involuntary detention.” Id. at 398.

The private party—Four County Counseling Center—

“accepted and treated [the plaintiff] pursuant to court

order,” and “[t]he state directed Four County to give

[the plaintiff]” the disputed treatment. Id. at 405. No

one alleged that Four County “acted to further its own

pecuniary or other interests.” Id. Those circumstances

required extending qualified immunity to the private

defendant.

Like the pre-Filarsky First Circuit decisions, the

Seventh Circuit relied on reasoning that this Court

would later adopt. It explained that Four County

“was fulfilling a public duty”—embodied by both a

court order and state statute. Id. at 406. It also worried that “private hospitals might well refuse to accept

involuntary patients” if doing so could “subject [them]

to suit.” Id. And just as this Court would later do in

20

Filarsky, the Seventh Circuit highlighted the potential incongruity because “a state hospital that acted

precisely as Four County did would be protected by

qualified immunity.” Id. at 405. Yet “[t]hese rationales

are not transferable” when the private defendant acts

outside of any delegated authority in pursuit of its own

personal interests. Wyatt, 504 U.S. at 168.

There is no need for further percolation. The questions and concerns raised by private-interest qualified

immunity have been sufficiently explored though, as

the fact of this petition establishes, not resolved as

clearly as this Court may have believed in Filarsky.

III.

This case is an ideal vehicle for resolving

the immunity questions.

The case is an excellent vehicle for resolving the

immunity questions at issue because it arises on a concise record in which Baker Donelson has forfeited

other potentially complicated arguments.

In this appeal, Baker Donelson has not disputed

that it acted under color of state law under § 1983

when

it

fired

DeLanis.

App.100a

(citing

Dist.Ct.Dkt.44). Nor has it disputed that DeLanis’s

conduct on the commission—how he voted and what

he said—was “constitutionally protected speech or activity.” Id. at 77a. Those concessions give the Court a

clean opportunity to address the issues raised about

the scope of qualified immunity. And because this appeal reaches the Court on a motion to dismiss, it can

resolve those issues without sorting through a complicated factual record.

21

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

JOHN I. HARRIS, III

SCHULMAN, LEROY &

BENNETT, P.C.

3310 West End Avenue,

Suite 460

Nashville, TN 37203

BRETT R. NOLAN

Counsel of Record

ALAN GURA

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave. NW

Suite 801

Washington, D.C. 20036

bnolan@ifs.org

(202) 301-3300

Counsel for Petitioner

APPENDIX

i

APPENDIX TABLE OF CONTENTS

Page

Appendix A — Opinion of the United States

Court of Appeals for the Sixth Circuit, Filed

November 24, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B — Judgment of the United States

Court of Appeals for the Sixth Circuit, Filed

November 24, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . 41a

Appendix C — Memorandum Opinion of the

United States District Court for the Middle

District of Tennessee, Filed October 6, 2023 . . . . . 42a

Appendix D — Order of the United States District

Court for the Middle District of Tennessee,

Nashville Division, Filed October 6, 2023 . . . . . . . 112a

Appendix E — Order of the United States Court

of Appeals for the Si xth Ci rcuit, Filed

January 30, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 116a

Appendix F — First Amended Complaint of the

United States District Court for the Middle

District of Tennessee, Filed September 11, 2022 . . 118a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT,

FILED NOVEMBER 24, 2025

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 23-5939/5948

File Name: 25a0318p.06

Appeal from the United States District Court for

the Middle District of Tennessee at Nashville.

No. 3:22-cv-00469—Eli J. Richardson, District Judge.

Argued: October 23, 2025

Decided and Filed: November 24, 2025

Before: SUTTON, Chief Judge; CLAY and

GIBBONS, Circuit Judges.

JAMES A. DELANIS,

Plaintiff-Appellee,

v.

METROPOLITAN GOVERNMENT OF

NASHVILLE & DAVIDSON COUNTY,

Defendant,

ROBERT J. MENDES, INDIVIDUALLY AND IN

HIS CAPACITY AS A MEMBER OF THE METRO

COUNCIL (23-5939); BAKER, DONELSON,

BEARMAN, CALDWELL & BERKOWITZ, PC (23-5948),

Defendants-Appellants.

2a

Appendix A

OPINION

SUTTON, Chief Judge. A Nashville city councilman

threatened to withdraw business from a law firm, which

served as the city’s outside counsel, due to the position

one of its attorneys took as the chair of the county

election commission on a tax referendum. When the

attorney declined the law firm’s request that he oppose

the referendum, the firm fired him. The attorney sued the

council member and the law firm for retaliating against his

federal free-speech rights, namely his support of the taxrepeal referendum in his capacity as the county election

chair. The district court denied qualified immunity to each

defendant in ruling on their motions to dismiss.

The law firm is eligible for qualified immunity in view

of the government work it performed. And it did not violate

any clearly established law. We know of no case in which

the First Amendment prohibited a law firm from firing

one of its lawyers when the business interests of the firm,

including demands from one of its clients, triggered the

firing. We thus reverse that portion of the district court’s

decision. On the other hand, the council member’s alleged

actions violated clearly established law, and we affirm the

district court’s denial of his motion to dismiss.

I.

This case emerges from a debate over taxes in

Nashville, Tennessee. The Metropolitan Government

of Nashville and Davidson County (Nashville for short)

governs the city. Its city council adopted a tax hike in

3a

Appendix A

2020 that would raise property levies by over a third.

Some residents opposed the tax increase. A citizen group

circulated a petition to amend Nashville’s charter by

referendum to unwind the heightened property taxes

and limit future tax increases. Nashville opposed the

referendum because it would repeal the tax increase and

tie Nashville’s fiscal hands in the future.

The referendum required another government entity,

the Davidson County Election Commission, to determine

whether to certify the proposal for a vote. Among other

responsibilities, the Election Commission ensures that a

petition complies with state law before placing it on the

ballot. See Tenn. Code § 2-5-151(c). James DeLanis held

one of the Election Commission’s five seats and served as

its chair. In addition to his role as chair of the Election

Commission, DeLanis worked as an attorney at Baker

Donelson, a law firm based in Tennessee.

In handling the petition, the Election Commission

asked a Tennessee court for a declaratory judgment

over whether it met the criteria to qualify for the ballot.

Nashville entered the fray as well, asking the court to

prevent the Election Commission from certifying the

petition. The Tennessee court concluded that the proposed

referendum violated Tennessee law and that the Election

Commission did not need to place it on the ballot.

The residents who opposed the tax increase did not

give up. They sought to cure the defects identified by the

state court and submitted a new petition to the Election

Commission. Nashville’s city council again opposed the

4a

Appendix A

effort. One of its members, Robert Mendes, proposed a

resolution to combat the renewed petition. His resolution

added a poison pill. If the Election Commission permitted

the second tax referendum to go on the ballot, his

resolution would add a second election option banning any

future tax referendums, thus barring Nashville residents

from ever overturning a property tax increase.

Mendes’s efforts did not deter the Election Commission.

It concluded that the new citizen tax referendum resolved

its previous concerns and voted to certify it for the July

2021 ballot. That decision spurred another legal maneuver.

The next day, the mayor and another Nashville officer

asked a state court to prohibit the Election Commission

from approving the new citizen tax referendum.

The Election Commission held a public meeting a

few days later to discuss the second petition. Mendes

spoke and, according to DeLanis’s complaint, “berated”

the Commission’s members for their role in this “sham,”

accusing them of engaging in “political theater designed

to feed . . . the ambitions of a small percentage of the

county.” R.34 ¶ 53. He concluded by warning the Election

Commission that “you might get away with it tonight, but

we see you, we see what you’re doing and it’s not going to

stand one way or the other.” R.34 ¶ 53. These comments,

to DeLanis’s eyes and ears, sought to “intimidate” the

Election Commission and its members from qualifying

the citizen referendum for a vote. R.34 ¶ 54.

At this point, Nashville “officials” reached out to

partners at Baker Donelson, the city’s outside counsel, to

5a

Appendix A

ask for “aid and assist[ance]” in keeping the new citizen

tax referendum off the ballot. R.34 ¶ 57. The request

extended to “influencing DeLanis as a Commissioner

and as the Chair of the [Election] Commission.” R.34

¶ 57. The firm’s general counsel, John Hicks, emailed

DeLanis that “we need to have a conversation about the

current election commission issues and their impact on

the firm’s representation of [Nashville].” R.34 ¶ 59. Hicks

complained to DeLanis about “the mess I have to clean

up” due to DeLanis’s role on the Election Commission.

R.34 ¶ 61. DeLanis’s actions, Hicks explained, caused

Nashville and its school board—”two major clients of the

firm”—to threaten to “pull their business,” much to the

chagrin of Baker Donelson’s partners. R.34 ¶ 62. Hicks

also raised potential conflict-of-interest concerns created

by DeLanis’s roles on the Election Commission and at a

law firm representing Nashville.

DeLanis stood his ground. He told Hicks that any

attempts to “influence” him or the Election Commission

“could be criminal or illegal acts under Tennessee law.”

R.34 ¶ 68. DeLanis asked Hicks to direct his concerns

to Nashville’s legal department. Two days after their

initial conversation, Hicks told DeLanis that no conflicts

in fact existed between DeLanis’s role on the Election

Commission and his employment with Baker Donelson.

The tax-referendum controversy did not abate. A few

weeks later, a Tennessee court sided with Nashville and

ruled that the second citizen referendum also suffered

from deficiencies that prevented it from appearing on the

ballot. The Election Commission scheduled a meeting to

6a

Appendix A

decide whether to appeal the ruling. Pleased by the trial

court’s decision, Nashville officials opposed an appeal.

Unspecified city officers or employees asked Baker

Donelson to help “ensure” that the Election Commission

did not appeal the decision. R.34 ¶ 79. “[O]ne or more” of

the subsequent “communications,” DeLanis alleges, “were

made by, at the direction of or in concert with Mendes.”

R.34 ¶ 79.

The day before the Election Commission’s scheduled

meeting, Hicks “asked” DeLanis to abstain from voting

on whether to appeal. R.34 ¶ 82. Mendes, that same

day, emailed the Election Commission’s members and

Nashville’s city council, “urg[ing]” the Commission not to

appeal. R.34 ¶ 86. He “accused” DeLanis of “conducting

a pre-baked political circus that was fundamentally

anti-democracy.” R.34 ¶ 87. He asserted that DeLanis’s

“intentions” all along were to “push the referendum onto a

ballot no matter what.” R.34 ¶ 88. The letter also claimed

that, “[f]or reasons that seem hyper-partisan,” R.34 ¶ 88,

DeLanis fired the Election Commission’s attorney because

he did not provide the counsel DeLanis wanted. Mendes

made the letter public and distributed it to media.

Hicks asked to meet DeLanis at the Baker Donelson

office on the morning of the meeting: June 25, 2021.

DeLanis answered that he would not meet with him

without first receiving the meeting’s “purpose” in writing

because “further discussions” of his “vote at the election

commission meeting today” could “put the law firm and

its clients in a questionable legal position.” R.34 ¶ 98.

Hicks responded that DeLanis’s time at the firm was

7a

Appendix A

coming to an end, leaving him two options: (1) “resigning

from the election commission” and staying with the firm

for the rest of the fiscal year or (2) “retiring now” from

the firm and remaining on the Election Commission.

R.34 ¶ 99. When DeLanis asked for more time, Hicks

fired DeLanis effective immediately. Hicks told DeLanis

he had “no choice,” which DeLanis took to mean that

Nashville pressured the firm to “retaliate” against him.

R.34 ¶¶ 106–07.

DeLanis sued Mendes, Baker Donelson, and Nashville

under 42 U.S.C. § 1983 and state law. He brought claims

for retaliating against his First Amendment rights,

conspiring to deny his freedom of speech, and violating

various Tennessee constitutional and statutory provisions.

The defendants moved to dismiss DeLanis’s complaint

based on qualified immunity. The district court rejected

their motions. Of relevance here, the court ruled that

Mendes violated clearly established federal free-speech

law and that the law firm, as a private entity, could not

benefit from qualified immunity. Mendes and Baker

Donelson both appeal.

II.

A brief word or two is in order about jurisdiction. We

have jurisdiction over a district court’s denial of qualified

immunity under the collateral order doctrine. Ashcroft v.

Iqbal, 556 U.S. 662, 671–72, 129 S. Ct. 1937, 173 L. Ed.

2d 868 (2009). Qualified immunity shields officers not

only from money damages but also from the burdens of

8a

Appendix A

litigation and discovery. Mitchell v. Forsyth, 472 U.S. 511,

526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). We thus may

hear an officer’s appeal of a denied motion for qualified

immunity, including at the motion-to-dismiss stage. Iqbal,

556 U.S. at 672.

DeLanis insists that we may not hear this appeal

because Mendes’s and Baker Donelson’s arguments raise

questions of fact under Johnson v. Jones, 515 U.S. 304, 307,

115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995). Whatever the

parameters of that decision, it applies only to cases that

reach summary judgment. “The concerns that animated

the decision in Johnson are absent when an appellate

court considers the disposition of a motion to dismiss a

complaint for insufficient pleadings.” Iqbal, 556 U.S. at

674. Because we must credit all well-pleaded facts at the

pleading stage, no factual disputes exist and Johnson thus

is “not triggered.” Myers v. City of Centerville, 41 F.4th

746, 757 (6th Cir. 2022); see, e.g., Anders v. Cuevas, 984

F.3d 1166 (6th Cir. 2021).

III.

As to the merits, we ask whether Mendes and Baker

Donelson may benefit from qualified immunity and, if so,

whether they violated DeLanis’s clearly established freespeech rights.

A.

Qualified immunity protects public officials and those

serving the public from “the time, expense and risk

9a

Appendix A

of money-damages actions” if they did not violate the

claimant’s clearly established federal constitutional rights.

Moore v. Oakland County, 126 F.4th 1163, 1167 (6th Cir.

2025) (quotation omitted). Lawsuits against “individual

government officials” in their personal capacities,

generally speaking, implicate the defense. Nugent v.

Spectrum Juv. Just. Servs., 72 F.4th 135, 143 (6th Cir.

2023) (quotation omitted). When private attorneys and law

firms provide legal services to a government body, they

also are eligible for qualified immunity in connection with

that work. Cullinan v. Abramson, 128 F.3d 301, 310 (6th

Cir. 1997); see Filarsky v. Delia, 566 U.S. 377, 393–94,

132 S. Ct. 1657, 182 L. Ed. 2d 662 (2012). The defense

extends to actions taken while “performing discretionary

functions” of office. Crawford-El v. Britton, 523 U.S. 574,

588, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998) (quotation

omitted). The defense thus turns on the function of the

individual’s work, not the individual’s job title. So it is

that a city official does not receive qualified immunity

for private actions taken outside that official’s job, while

a private lawyer does receive qualified immunity for

public actions taken in service of a government client. See

generally Filarsky, 566 U.S. at 389–94.

Qualified immunity covers these claims against

Mendes and Baker Donelson. Mendes served as a Nashville

council member and the complaint alleges that he used his

government position to violate DeLanis’s constitutional

rights. See Moore, 126 F.4th at 1166–67. Baker Donelson

served as outside counsel for the Nashville government,

and allegedly fired DeLanis on its behalf. See Cullinan,

128 F.3d at 310. Both Mendes and Baker Donelson thus

may raise the defense.

10a

Appendix A

In seeking to head off this conclusion, DeLanis

argues that his independent requests for a declaratory

judgment and an injunction defeat qualified immunity.

But this misapprehends how qualified immunity works.

The defense, all agree, protects defendants from claims

for money damages. Tolan v. Cotton, 572 U.S. 650, 654,

134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014) (per curiam).

An additional request for declaratory and injunctive

relief does not suddenly remove the qualified-immunity

defense from an existing request for money damages. The

existence of a money-damages claim suffices by itself to

trigger qualified immunity, no matter what other claims

for relief the plaintiff raises.

DeLanis adds that neither defendant acted within the

scope of their discretionary functions, thereby piercing

any qualified-immunity defense. But both defendants

carried out “discretionary functions” within the scope of

their duties when playing their alleged part in DeLanis’s

departure from the law firm. See Poe v. Haydon, 853 F.2d

418, 423 (6th Cir. 1988). One does not have to look far

for evidence of the public functions that each defendant

performed. All of it comes from DeLanis’s own complaint

and the allegations he makes in support of his § 1983

claims.

Start with Mendes. The allegations in the complaint

offer one example after another of Mendes’s serial public

actions in favor of preserving Nashville’s property-tax

increase. Mendes proposed the city budget that initiated

the tax increase. He introduced a poison-pill resolution

to deter the Election Commission from qualifying a

11a

Appendix A

citizen tax referendum that would have repealed the

tax increase. Mendes spoke as a city councilmember to

criticize the Election Commission’s handling of the tax

referendum. He signed a letter as a “[Nashville] Council[]

At Large member” that denounced DeLanis’s work on the

Election Commission. R.34 ¶ 85. All the while, Mendes

sat on Nashville’s city council, which has authority to

support these public functions and authority over the

city’s decision to retain outside counsel. See Metro. Gov.

of Nashville & Davidson County Charter § 8.607; Metro.

Gov. of Nashville & Davidson County Code of Ordinances

§ 4.08.080(A) – (C).

Turn to Baker Donelson. Here, too, the complaint

tells us all we need to know. Nashville retained Baker

Donelson as outside counsel and remained a “client” of

the firm “[d]uring all times relevant to” DeLanis’s claims.

R.34 ¶¶ 26–27. Nashville officials asked Baker Donelson

“to aid and assist” its efforts to preserve the tax increase

“by influencing DeLanis as a Commissioner.” R.34 ¶ 57.

Those officials remained “in contact with Baker Donelson”

about its work implementing the city’s policy of opposing

the citizen tax referendum. R.34 ¶ 94. Baker Donelson

ultimately fired DeLanis “by and pursuant to” Nashville’s

“demands and requests.” R.34 ¶ 114. That decision was

“so intertwined” with Nashville’s policy of opposing the

citizen tax referendum that DeLanis “attributed” it to

Nashville. R.34 ¶¶ 165, 170–71. To the extent the law firm

functioned as a state actor subject to First Amendment

liability when representing Nashville, as DeLanis alleges,

the ability to manage its staff undoubtedly fell within its

discretionary powers as well.

12a

Appendix A

DeLanis separately invokes Clinton v. Jones to show

that qualified immunity does not apply. 520 U.S. 681,

694–95, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997). But that

is a case about absolute immunity for presidents. That

precedent has nothing to offer here.

DeLanis separately insists that Mendes and Baker

Donelson abused their authority. But this allegation—that

the defendants broke the law by firing him—does not

remove qualified immunity from the stage. Otherwise, no

official could benefit from the defense. Every lawsuit that

states a viable claim “alleges a misuse of power, because

no state actor has the authority to deprive someone of a

federal right.” Lindke v. Freed, 601 U.S. 187, 200, 144 S.

Ct. 756, 218 L. Ed. 2d 121 (2024).

DeLanis claims that qualified immunity does not apply

because the defendants knowingly violated the law. But

the Supreme Court abandoned a subjective approach to

qualified immunity decades ago. See Harlow v. Fitzgerald,

457 U.S. 800, 817–18, 102 S. Ct. 2727, 73 L. Ed. 2d 396

(1982). Today, DeLanis faces a different, and in truth

lighter, burden. All he must show is that Mendes and

Baker Donelson violated an objective standard—that they

violated “clearly established law.” See id. at 818.

DeLanis’s last bid for removing qualified immunity

from the case focuses on Baker Donelson. Noting that

the law firm is a private entity, he claims that the defense

necessarily does not apply. In doing so, he points to

a statement in Nugent v. Spectrum Juvenile Justice

Services that qualified immunity is “unavailable” in

13a

Appendix A

this setting, namely when a private entity performs a

government function. 72 F.4th at 144. But Nugent involved

Monell liability. Qualified immunity does not apply in that

setting. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98

S. Ct. 2018, 56 L. Ed. 2d 611 (1978); see Owen v. City of

Independence, 445 U.S. 622, 638, 100 S. Ct. 1398, 63 L.

Ed. 2d 673 (1980).

The words “qualif ied immunity,” notably and

understandably, never appear in the § 1983 section of

Nugent. No surprise, then, the decision never explains

why a private entity could be sued under § 1983 for

performing a public function but could never receive

qualified immunity for that public function. The one time

the words “qualified immunity” appear is when the opinion

“briefly comment[s] on” a few issues that we “remand[ed]

for the district court to address . . . in the first instance.”

See Nugent, 72 F.4th at 143. The decision is not a qualifiedimmunity case and does not purport to be one.

United Pet Supply, Inc. v. City of Chattanooga is of a

piece with Nugent and does not help DeLanis either. 768

F.3d 464 (6th Cir. 2014). It concerned “the unavailability

of qualified immunity as a defense in an official-capacity

suit.” Id. at 484. As with Monell claims, official-capacity

claims never give rise to a qualified immunity defense. See

Kentucky v. Graham, 473 U.S. 159, 166–67, 105 S. Ct. 3099,

87 L. Ed. 2d 114 (1985). United Pet Supply reaffirmed our

cases granting qualified immunity to private entities in

individual-capacity lawsuits. 768 F.3d at 484 n.3.

Further alleviating doubt about the point is our

earlier holding in Cullinan v. Abramson, 128 F.3d at

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310. Cullinan raised this question: Does the “outside

counsel” status of several “lawyers and their firm” make

them “ineligible for qualified immunity,” notwithstanding

their work for the City of Louisville and notwithstanding

the reality that the lawsuit arose from their work for the

City? Id. No, we answered, and permitted the lawyers and

law firm to raise the defense. Id. The Supreme Court, we

reasoned, explained that “the common law ‘did provide a

kind of immunity for certain private defendants, such as

doctors or lawyers who performed services at the behest

of the sovereign.’” Id. (quoting Richardson v. McKnight,

521 U.S. 399, 407, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997)).

As a result, “[t]he rationales for qualified immunity apply

to these lawyers and their firm in about the same way they

apply to” traditional government officers. Id. We saw “no

good reason to hold the city’s in-house counsel eligible for

qualified immunity and not the city’s outside counsel.” Id.

Since Cullinan and Richardson, the Supreme Court

has removed the last vestige of doubt about whether a

private entity is eligible to receive qualified immunity

when it handles public functions that might expose it to

§ 1983 liability. In Filarsky v. Delia, the Court reviewed

a Ninth Circuit decision that expressly rejected Cullinan

and that held that private attorneys are not eligible for

qualified immunity. 566 U.S. at 382–83. The Supreme

Court overruled the Ninth Circuit. It held that qualified

immunity applied to a private attorney working for a city

even though he was not a “full-time employee.” Id. at

393–94. In the process, the Court explained the commonsense principle that private actors generally receive the

bitter and the sweet in defending constitutional torts. If

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a private actor is liable to a lawsuit as a state actor, it

should also benefit from a state actor’s defenses. Id. at

389–91. “[I]mmunity . . . should not vary depending on

whether an individual working for the government does

so as a full-time employee, or on some other basis.” Id.

at 389. That conclusion flowed from the history of officer

immunity. Due to the small size of nineteenth-century

governments, states delegated many public functions to

private parties who received the same defenses as their

public-official counterparts. Id. at 385–89.

DeLanis persists that the law firm in Cullinan

operated as a partnership and that Baker Donelson

operates as a Tennessee professional corporation. But he

provides no authority for the novelty that Cullinan turns

on the law firm’s legal form as opposed to the government

function it performs. We later described the law firm in

Cullinan, at any rate, as a “corporate” defendant that

nonetheless properly received qualified immunity. United

Pet Supply, 768 F.3d at 484 n.3. Regardless of whether this

later characterization listed the entity’s form correctly, it

confirms that a law firm’s form of organization does not

by itself defeat qualified immunity. See id.

DeLanis argues in the alternative that, even if a

private law firm may be eligible for qualified immunity, the

immunity attaches only if outside counsel “act[ed] at the

behest of the state.” Cooper v. Parrish, 203 F.3d 937, 952

(6th Cir. 2000). No record-supported facts, DeLanis adds,

show that Baker Donelson acted as an agent for the city

in firing him. But this argument collides with the words

of his complaint. DeLanis premises his free-speech claim

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Appendix A

against Baker Donelson on its “close relationship” with

Nashville and his allegation that it fired him “pursuant

to” Nashville’s “Anti-Referendum Policy.” R.34 ¶¶ 114, 171.

Nashville officials first asked Baker Donelson, its outside

counsel, to “influenc[e]” DeLanis to side against the citizen

tax referendum on the Commission. R.34 ¶ 57. Once that

failed, the firm fired him on Nashville’s behalf so that his

removal “should be attributed to [the city.]” R.34 ¶ 171.

In Cooper, in marked contrast, “little—if any—

evidence” showed that a private attorney “was acting at

the behest of the state” when filing complaints against

the nightclubs at issue in that dispute. Cooper, 203 F.3d

at 952. Not so for Baker Donelson. It served as the city’s

outside counsel, took marching orders on firing DeLanis

from city officials, carried out Nashville’s policies in the

process, and fired him in a way “attributed” to Nashville.

R.34 ¶ 171.

Nor does this conclusion undermine the reasons we

have qualified immunity. The Supreme Court tells us why.

If qualified immunity protected government employees

but not “private” actors “working alongside them” from

facing “full liability” for the same activities under § 1983,

“any private individual with a choice might think twice

before accepting a government assignment.” Filarsky,

566 U.S. at 391. DeLanis may not claim that Baker

Donelson acted on behalf of Nashville when it helps him

(in providing a premise for suing it under § 1983) and

deny that connection when it hurts him (in denying that

qualified immunity applies).

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Our colleague dissents solely on this ground, arguing

that “the defense of qualified immunity is available only

to government officials.” Dissent at 19. We respectfully

disagree. In no uncertain terms, the Supreme Court held

in Filarksy that a “private individual[],” even “[t]hough not

a public employee,” received qualified immunity. Filarsky,

566 U.S. at 393–94. That explains why the dissent does

not cite any Supreme Court cases for the assertion that

private actors may never invoke qualified immunity.

Richardson does not fill that gap. In that “self-consciously

‘narrow[]’ decision,” in the words of Filarsky, “[t]he Court

made clear that its holding was not meant to foreclose

all claims of immunity by private individuals.” Id. at 393

(quoting Richardson, 521 U.S. at 413.).

Nor are we making the same mistake by creating

a blanket rule in the other direction—by holding that

private actors always receive qualified immunity.

Consistent with prior United States Supreme Court and

Sixth Circuit rulings, we hold only that, on this record,

Baker Donelson is eligible to invoke qualified immunity.

That is all. It is DeLanis’s allegations in his complaint,

notably, that establish this eligibility—that the law firm

served as outside counsel for Nashville, that Nashville

wished to punish DeLanis’s free-speech advocacy for

the tax-repeal referendum, that the law firm acceded to

the government’s request to fire DeLanis, and that the

law firm did so “pursuant to” Nashville’s request, all of

which made it appropriate for the law firm’s actions to “be

attributed” to Nashville. R.34 ¶¶ 114, 171. This application

of existing precedent makes no new law when it comes to

eligibility for qualified immunity.

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But if that is so, the dissent worries, how could we

also conclude that the law firm did not violate clearly

established law? That is a different question. The first

question is whether a private entity serving a public client

may ever be eligible for qualified immunity. It may be,

as many cases make clear and as we explain above. The

second question is whether the law firm’s conduct violated

clearly established free-speech guarantees. That is a

different inquiry—about the meaning of the underlying

constitutional protection—and it is the one to which we

now turn.

B.

That Mendes and Baker Donelson are eligible

for qualified immunity is one thing. It is a separate

matter whether the defense applies to their actions. We

must consider whether they violated DeLanis’s First

Amendment rights and whether they violated clearly

established law in doing so. Moore, 126 F.4th at 1167. To

prove a clearly established violation, the claimant must

show that the right’s contours were “sufficiently clear

that every reasonable official would have understood”

that he was violating it. Reichle v. Howards, 566 U.S.

658, 664–65, 132 S. Ct. 2088, 182 L. Ed. 2d 985 (2012)

(quotation omitted). DeLanis can do so by identifying a

case “with facts similar enough that it squarely governs

this one.” Moore, 126 F.4th at 1167 (quotation omitted). In

assessing the defense, we accept the complaint’s factual

allegations as true and draw all reasonable inferences in

DeLanis’s favor. Hudson v. City of Highland Park, 943

F.3d 792, 798 (6th Cir. 2019).

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DeLanis must make three showings to succeed on

his First Amendment retaliation claims. Cunningham

v. Blackwell, 41 F.4th 530, 541 (6th Cir. 2022). He must

allege that he engaged in protected speech. Id. He must

allege that he suffered an “adverse action” that would

“dissuade individuals of ordinary firmness from doing

what they were doing.” Id. (quotation omitted). And he

must allege a “causal link” between his protected speech

and the adverse action. Id.

Mendes. Mendes does not deny that DeLanis engaged

in protected activity when speaking as chair of the Election

Commission. See R.72 at 25. The First Amendment,

generally speaking, protects public speech, including by

officeholders. See Lindke, 601 U.S. at 196–97. Because

Mendes, and for that matter Baker Donelson, do not deny

that DeLanis engaged in protected speech, we need not

address the free-speech complications that sometimes

arise when an officeholder speaks in his official capacity.

See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 417–26, 126 S.

Ct. 1951, 164 L. Ed. 2d 689 (2006) (The First Amendment

does not protect public employees speaking “pursuant to

their official duties.”); Doe v. Reed, 561 U.S. 186, 220–23,

130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010) (Scalia, J.,

concurring in the judgment) (finding “no precedent from

this Court holding that legislating is protected by the First

Amendment”); Nevada Comm’n on Ethics v. Carrigan,

564 U.S. 117, 125–129, 131 S. Ct. 2343, 180 L. Ed. 2d 150

(2011) (“reject[ing] the notion that the First Amendment

confers a right to use governmental mechanics to convey

a message”).

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DeLanis also alleges that he suffered an “adverse

action.” See Cunningham, 41 F.4th at 541 (quotation

omitted). When a public official warns a law firm that

the city may pull business from it due to the public-office

actions of one of its lawyers, that suffices to deter a

person “of ordinary firmness” from exercising his First

Amendment rights in that office. See id. Nor can Mendes

fairly deny that DeLanis’s firing was a “reasonably

foreseeable consequence” of his threats to the firm. Paige

v. Coyner, 614 F.3d 273, 280 (6th Cir. 2010).

DeLanis also alleges that Mendes took the adverse

action “in response to [his] protected activity.” See

Stockdale v. Helper, 979 F.3d 498, 506 (6th Cir. 2020). The

complaint alleges that Nashville officials “threaten[ed]

to pull business from the firm” and “wanted the firm’s

assistance to make certain that DeLanis would” not harm

their interests in his role on the Election Commission. R.34

¶ 96. Based on these comments, the complaint alleges,

Baker Donelson fired DeLanis. DeLanis connected

Mendes to those threats, alleging that the Nashville

officials who threatened Baker Donelson “includ[ed]”

Mendes. R.34 ¶¶ 95–96. The factual allegations in the

complaint permit the plausible inference that Mendes

was involved in the threats. Mendes strongly opposed the

citizen tax referendum, forcefully rebuked DeLanis for his

work on the Commission, and served as a councilmember

of a city whose “officials” made the threats. R.34 ¶¶ 79,

95–96.

Mendes’s alleged conduct also violated clearly

established law. We have left no doubt that causing an

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employee’s firing due to his protected speech violates

the First Amendment. Kubala v. Smith, 984 F.3d 1132,

1139–40 (6th Cir. 2021). To be “discharge[d]” for speech is

a textbook example of an adverse action. See Thaddeus-X

v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc).

Mendes had ample notice that pressuring an employer to

fire an employee in retaliation for his protected speech

ran afoul of the Free Speech Clause. DeLanis, then, tied

Mendes’s actions to a “specific,” Reichle, 566 U.S. at 665,

adverse action recognized by existing law: causing an

employee to be fired due to his speech.

Case law confirms this conclusion. In Paige v. Coyner,

an accountant drew the ire of a county official by opposing

a new highway project. 614 F.3d at 275–76. The official

retaliated by calling the accountant’s employer and lying

about what the accountant had said “with the intent of

having [her] fired.” Id. at 276–77. The official succeeded;

the accountant’s firm fired her a few days later. Id.

at 277. We concluded that the accountant had alleged

enough in her complaint to proceed to discovery. Id. at

280–83. “Losing one’s job and accompanying benefits,” we

explained, “is certainly severe enough to deter a person

of ordinary firmness” from speaking freely. Id. at 281.

DeLanis likewise alleges that Mendes spoke to Baker

Donelson’s leadership in a way that would foreseeably lead

to his removal from the firm and that the firm pushed him

out as a result.

Mendes’s response that our cases have not dealt with

a public official fired from his private job in retaliation

for his speech does not advance the ball. Our cases plainly

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established that Mendes could not fire DeLanis for his

speech if DeLanis worked for him at the city or if DeLanis

worked only for him through a private business. See

Thaddeus-X, 175 F.3d at 396; Paige, 614 F.3d at 281. This

case parallels Paige. As in that case, DeLanis worked for

a private firm, and Mendes caused him to be fired. The

reality that DeLanis also served as a public officer does not

transform a clearly adverse action into innocent conduct.

Mendes adds that DeLanis did not adequately allege

that he threatened Baker Donelson. He points out that

DeLanis admits that Baker Donelson never told him who

at Nashville made the threats. But DeLanis has done

enough at the pleading stage to connect Mendes to the

threats against Baker Donelson and his removal from

the firm. Based on the statements of Baker Donelson’s

general counsel, DeLanis alleged that the Nashville

“officials” who spoke to Baker Donelson “includ[ed]”

Mendes and that other officials acted “at the direction

of or in concert with Mendes.” R.34 ¶¶ 79, 95–96. That

conclusion plausibly follows from the factual allegations

in the complaint. Mendes spearheaded an effort to defeat

the citizen tax referendum at issue. He “berated” DeLanis

at a Commission meeting for orchestrating “pre-baked,

political theater.” R.34 ¶ 53. He circulated a public letter

accusing DeLanis of firing the Commission’s counsel for

the “hyper-partisan” reason of “push[ing] the referendum

onto a ballot no matter what.” R.34 ¶ 88. He denounced

DeLanis’s work as “fundamentally anti-democracy.” R.34

¶ 87. And Mendes served as a councilmember of the city

government whose “officials” made the threats. R.34

¶¶ 79, 95–96. Mendes’s frustration with DeLanis and

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hearty opposition to his conduct on the Commission make

it plausible that he was one of the Nashville officials, if not

the key Nashville official, who threatened Baker Donelson.

Mendes nonetheless insists that we cannot plausibly

draw this inference. Pointing to Bell Atlantic Corp. v.

Twombly, he notes that an allegation of parallel business

conduct in that case did not support an inference that

telephone companies conspired to fix prices. 550 U.S. 544,

127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). But the singlestep inference required in today’s case looks nothing like

the multi-step inferences the plaintiffs sought to string

together to allege price-fixing in Twombly.

Even i f Mendes pa r t ic ipat ed i n Na shv i l le’s

communications with Baker Donelson, he maintains

that those discussions did not necessarily involve

threats. “What if, for example, Baker Donelson wildly

misinterpreted Councilmember Mendes’s alleged request

for help,” Mendes muses, “or simply overreacted and

terminated [DeLanis’s] employment on its own?” Mendes’s

Reply Br. 16. That is precisely the kind of question that

lends itself to the discovery process. For now, we must

credit DeLanis’s plausible allegations that Nashville

officials, “including” Mendes, told Baker Donelson to

change DeLanis’s tune while “threatening to pull business

from the firm.” R.34 ¶¶ 95–96. After discovery, Mendes is

free to argue at summary judgment that the firing arose

from a misunderstanding.

Baker Donelson. DeLanis, by contrast, has not

shown that Baker Donelson violated clearly established

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law. Whether the law firm’s action violated the First

Amendment need not detain us. So long as its actions did

not violate clearly established law, qualified immunity

applies. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.

Ct. 808, 172 L. Ed. 2d 565 (2009).

The allegations against Baker Donelson present

a unique situation not addressed by our cases to date.

Whether Baker Donelson acted honorably or not in firing

DeLanis, it did not have clear notice that a law firm (or

private company) violates the First Amendment by firing

an employee when a government client threatens to take

its business elsewhere if the employee continues to act

adversely to the government. Baker Donelson, for better

or worse, sought to protect its client base, not to punish

DeLanis for his speech. As DeLanis acknowledges in his

complaint, Baker Donelson’s business interests drove its

conduct. The firm, in his words, “sought to maintain and

increase the client revenue it generated” from Nashville

at “all times relevant to the claims.” R.34 ¶ 31. We know

of no free-speech case that covers this unusual setting,

and DeLanis does not identify one himself.

What he does identify are cases that are several

material steps removed from this one. See Paige, 614 F.3d

at 275–76; MacIntosh v. Clous, 69 F.4th 309, 315 (6th Cir.

2023); Anders, 984 F.3d at 1175; Zilich v. Longo, 34 F.3d

359, 365 (6th Cir. 1994). None of them involves law firms

or companies responding to government threats to their

client base. None of them deals with a for-profit entity

responding to client pressure. And none of them addresses

alleged constitutional violations by a private employer.

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Return to Paige to see the distinction. In that case, a

public official lied to an employer to punish an employee’s

speech. Paige, 614 F.3d at 275–76. That situation does not

tell us what to do when a government client tells a forprofit entity to end an employee’s public opposition to a

key initiative of that government or run the risk of losing

its business. Recall that Baker Donelson, according to

the complaint, fired an employee (DeLanis) to protect its

business interests with that client and never took a public

position on the benefits or not of the tax referendum. That

is an unprecedented situation, one we need not resolve

today.

Anders v. Cuevas does not change things. In that case,

the Michigan State Police removed a towing company from

its rotation of contractors because its owner reported

that he gave sporting tickets to state troopers. 984 F.3d

at 1171–72. Although Anders involved a private business,

the company was the victim rather than the perpetrator.

Opposition to protected speech, moreover, prompted the

public official’s action. Anders does not tell us what to do

when a private business does work for the government and

seeks to preserve that business and support its client’s

(the government’s) interests.

Zilich v. Longo is further afield. It involved an elected

official’s actions, not personnel decisions by a private

company, and it addressed retaliation against disfavored

speech, not a response to client pressure. See 34 F.3d at

360–61.

Acknowledging the “novel factual circumstances”

of this case, DeLanis’s Br. 48, DeLanis invokes Hope v.

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Pelzer, claiming that the illegality of Baker Donelson’s

actions was “so obvious” that no case needed to establish

it. 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666

(2002). He likewise invokes Sexton v. Cernuto, where

we held that a work-release program facilitating sexual

assault violated clearly established law “even without

materially similar cases.” 18 F.4th 177, 182–83, 192–93

(6th Cir. 2021).

Neither case saves DeLanis’s claims against Baker

Donelson. The facts of both cases far outstrip what

DeLanis suffered here. Hope, an Eighth Amendment case

about handcuffing a prisoner to an outdoor post under the

Alabama summer sun for hours on end, is a “rare” outlier.

536 U.S. at 733–34, 741; Dist. of Columbia v. Wesby, 583

U.S. 48, 64, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018). And

Sexton involved egregious sexual misconduct. 18 F.4th

at 192–93. Neither case remotely shows that a law firm

seeking to protect an existing client must continue to

work with an employee whose public actions undermine

that client’s interests.

We affirm the denial of qualified immunity for Mendes

on DeLanis’s retaliation claims, reverse the denial of

qualified immunity to Baker Donelson, and remand.

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Appendix A

DISSENT

CLAY, Circuit Judge, dissenting. The majority’s

extension of qualified immunity to the law firm in this

case, Baker Donelson, marks a significant departure in

our longstanding jurisprudence. I therefore respectfully

dissent on the issue of whether Baker Donelson is entitled

to qualified immunity.

We have long recognized that the defense of qualified

immunity is available only to government officials and

only where those government officials are sued in their

individual capacities. Scott v. Clay Cnty., Tenn., 205

F.3d 867, 879 (6th Cir. 2000) (“[T]he doctrine of qualified

immunity safeguards only certain natural person

defendants in their individual capacities.”); Benison v.

Ross, 765 F.3d 649, 665 (6th Cir. 2014) (citation omitted)

(“Qualified immunity is a personal defense that applies only

to government officials in their individual capacities.”);

Ermold v. Davis, 936 F.3d 429, 436 (6th Cir. 2019)

(“Qualified immunity protects government officials from

lawsuits against them in their individual capacities.”)

(citing McCloud v. Testa, 97 F.3d 1536, 1539 n.1 (6th Cir.

1996) (holding that “qualified immunity applies only to an

official’s liability in his individual capacity)); United Pet

Supply, Inc. v. City of Chattanooga, Tenn., 768 F.3d 464,

484 (6th Cir. 2014) (“We have always understood qualified

immunity to be a defense available only to individual

government officials sued in their personal capacity.”).

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This Court also re-affirmed this rule in Nugent v.

Spectrum Juvenile Justice Services, 72 F.4th 135 (6th Cir.

2023), wherein this Court “briefly comment[ed]” that the

private entity plaintiff “invoked qualified immunity, but

that defense ‘is available only to individual government

officials sued in their personal capacity.’” Id. at 143 (quoting

United Pet Supply, Inc., 768 F.3d at 484). The majority

avoids this caselaw by remarking that the Court mentions

qualified immunity only when briefly commenting on

the issue, and the decision “is not a qualified-immunity

case.” Majority Op. at 9. But a published decision need not

discuss an issue at length, nor resolve an issue in the first

instance, to recognize a governing standard in an area of

law. The majority recognizes this notion, as it still relies

on Nugent in their rule statement on qualified immunity.

See id. at 6. In any event, we need not rely on Nugent to

illustrate that this Circuit has consistently recognized that

“[q]ualified immunity is a personal defense that applies

only to government officials in their individual capacities.”

See, e.g., Benison, 765 F.3d at 665.

Following our longstanding rule that qualified

immunity is available only to individual government

officials, we have consistently held that the defense is

not available to public entities or governmental bodies.

Marsh v. Arn, 937 F.2d 1056, 1071 (6th Cir. 1991) (“[W]e

recognize that the doctrine of qualified immunity extends

its protection only to individuals and not to state or for that

matter local government.”); Everson v. Leis, 556 F.3d 484,

501 n.7 (6th Cir. 2009) (“As qualified immunity protects a

29a

Appendix A

public official in his individual capacity from civil damages,

such immunity is unavailable to the public entity itself.”);

Smith v. Leis, 407 F. App’x 918, 928 (6th Cir. 2011) (“A

government entity cannot claim any personal immunities,

such as . . . qualified immunity.”); Harrill v. Blount Cnty.,

Tenn., 55 F.3d 1123, 1126 (6th Cir. 1995) (“Qualified

immunity is not available to municipal governments.”);

see Hidden Village, LLC v. City of Lakewood, Ohio, 734

F.3d 519, 523 (6th Cir. 2013) (“Lakewood is not eligible for

qualified immunity because it is a city, not an individual.”).

In deciding whether to extend qualified immunity

in a given case, the Supreme Court has instructed us

to consider “the special policy concerns involved in

suing government officials,” and explained that the

defense protects “the government’s ability to perform its

traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167, 112

S. Ct. 1827, 118 L. Ed. 2d 504 (1992) (citations omitted).

The “special policy concerns” that mandate qualified

immunity include preserving their “ability to serve the

public good,” ensuring “that talented candidates were

not deterred” from entering public service because of the

threat of a damages suit, and preventing “the distraction

of officials from their governmental duties.” Id. (citations

omitted). In other words, qualified immunity “acts to

safeguard government, and thereby protect the public

at large, not to benefit its agents.” Id. at 168. Thus, in

Wyatt, the Supreme Court declined to extend qualified

immunity to private defendants because, unlike school

board members, police officers, or presidential aides,

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“private parties hold no office requiring them to exercise

discretion,” nor “are they principally concerned with

enhancing the public good,” so the “rationales mandating

qualified immunity for public officials are not applicable

to private parties.” Id. at 167–68.

Following that Supreme Court precedent, we have

thus recognized that the defense of qualified immunity

is generally unavailable to private parties. Derfiny v.

Pontiac Osteopathic Hospital, 106 F. App’x 929, 937 (6th

Cir. 2004) (“[S]ince qualified immunity is reserved for

state actors, private litigants are generally not eligible to

receive qualified immunity . . . .”); Stack v. Killian, 96 F.3d

159, 163 (6th Cir. 1996) (“Qualified immunity is generally

not available to private parties.”). Even where a private

entity is “acting in a governmental capacity,” we have

recognized that qualified immunity is unavailable to that

private entity. United Pet Supply, Inc., 768 F.3d at 484.

For example, in Richardson v. McKnight, the

Supreme Court held that a privately run, for-profit prison

that contracted with the state to provide services could not

assert qualified immunity in a lawsuit involving that work

on behalf of the state. 521 U.S. 399, 412, 117 S. Ct. 2100, 138

L. Ed. 2d 540 (1997). In holding that the private defendants

were not entitled to qualified immunity, the Court

emphasized that qualified immunity is not appropriate

where “a private firm, systematically organized to assume

a major lengthy administrative task . . . with limited direct

supervision by the government, undertakes that task for

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Appendix A

profit and potentially in competition with other firms.”

Id. at 413.

Under this governing case law, Baker Donelson is not

entitled to qualified immunity. Baker Donelson is a law

firm, not a “natural person defendant,” Scott, 205 F.3d

at 879, or a “government[] official,” Benison, 765 F.3d at

665. Rather, Baker Donelson is a private party for which

“[q]ualified immunity is generally not available.” Stack, 96

F.3d at 163; Derfiny, 106 F. App’x at 937. Similar to the

“private firm” in Richardson, Baker Donelson is private

law firm that, in representing its government client,

Nashville, is “systematically organized to assume . . .

[legal] task[s]” and undertakes those tasks “for profit and

potentially in competition with other firms.” Richardson,

521 U.S. at 413. Even if Baker Donelson’s representation

of a government client qualifies the firm as “acting in a

governmental capacity,” the law firm is still a “private

entity” that cannot assert qualified immunity. United Pet

Supply, Inc., 768 F.3d at 484.

The majority contends that qualified immunity

extends to not only public officials, but also anyone serving

the public from the time, expense, and risk of moneydamages actions if they did not violate the claimant’s

clearly established federal constitutional rights. Majority

Op. at 6. To support this proposition, the majority cites

Moore v. Oakland County, wherein we stated, “Qualified

immunity spares officers from the time, expense and risk

of money-damages actions unless they violate clearly

32a

Appendix A

established constitutional rights.” 126 F.4th 1163, 1167

(6th Cir. 2025) (emphasis added) (citation and quotation

removed). We further stated that, to overcome the defense,

a plaintiff must show that “the officers” violated a clearly

established constitutional right. Id. (emphasis added).

Moore, therefore, provides no support for the majority’s

contention that any party besides a public officer or official

can assert qualified immunity.

The majority creates a new legal rule, never before

held by the Supreme Court or this Circuit: “When

private attorneys and law firms provide legal services

to a government body, they also are eligible for qualified

immunity in connection with that work.” Majority Op.

at 6. The majority cites Filarsky v. Delia, 566 U.S. 377,

132 S. Ct. 1657, 182 L. Ed. 2d 662 (2012) and Cullinan

v. Abramson, 128 F.3d 301 (6th Cir. 1997) in support

of this statement. But neither Filarsky nor Cullinan

support such a broad holding or the extension of qualified

immunity to Baker Donelson in this case.

In Filarsky, the city hired a private attorney to assist

in an official investigation into the plaintiff’s potential

wrongdoing. 566 U.S. at 380–81. Based on actions that took

place in the investigation, the plaintiff brought a § 1983

action against the private attorney, in addition to the city

and other defendants. Id. at 382. The Supreme Court

held that “there is no dispute that qualified immunity is

available for the sort of investigative activities at issue.”

Id. at 384 (citation omitted). The Court reasoned that the

33a

Appendix A

“common law did not draw a distinction between public

servants and private individuals engaged in public service

in according protection to those carrying out government

responsibilities.” Id. at 387. The Court distinguished the

case from Wyatt because, “[u]nlike the [private] defendants

in Wyatt, who were using the mechanisms of government

to achieve their own ends, individuals working for the

government in the pursuit of government objectives are

‘principally concerned with enhancing the public good.’”

Id. at 392 (quoting Wyatt, 504 U.S. at 168). The Court also

distinguished the case from Richardson because none

of the particular circumstances of that case—”a private

firm, systematically organized to assume a major lengthy

administrative task . . . with limited direct supervision

by the government, undertak[ing] that task for profit

and potentially in competition with other firms”—were

present. Id. at 393 (quoting Richardson, 521 U.S. at

413). The Court thus extended qualified immunity to the

private attorney. Id. at 394. Justice Sotomayor stated in

concurrence: “I add only that it does not follow that every

private individual who works for the government in some

capacity necessarily may claim qualified immunity when

sued under 42 U.S.C. § 1983. Such individuals must satisfy

our usual test for conferring immunity. As the Court

explains, that test looks to the general principles of tort

immunities and defenses applicable at common law, and

the reasons we have afforded protection from suit under

§ 1983.” Id. at 397 (citations and quotations omitted)

(citation modified).

34a

Appendix A

Filarsky does not support extending qualified

immunity to Baker Donelson in this case. The events

“at issue” in this case involve Plaintiff’s employment

and termination at his own law firm, not any particular

investigative or legal work that Baker Donelson carried

out in coordination with the government. See Filarsky,

566 U.S. at 384. At oral argument, Baker Donelson

stated that its only motivation for terminating Plaintiff’s

employment was its own business interests. Under the

facts of this case, Baker Donelson functioned neither as

a “public servant[]” nor a “private individual[]” that is

“engaged in public service” or “carrying out government

responsibilities.” See id. at 387. Although the Court found

Wyatt and Richardson distinguishable in Filarsky, those

cases are not distinguishable here. Like the defendants

in Wyatt, Baker Donelson used its representation of

the government to achieve its own ends and was not

“principally concerned with enhancing the public good.”

See 504 U.S. at 168. As already stated, like the defendants

in Richardson, Baker Donelson is “a private firm” that,

in representing its government client, Nashville, is

“systematically organized to assume . . . [legal] task[s]”

and undertakes those tasks “for profit and potentially

in competition with other firms.” 521 U.S. at 413. Thus,

Filarsky’s extension of qualified immunity to a single

attorney in a lawsuit involving actions taken in the course

of an investigation with the government does not support

an extension of qualified immunity to an entire law firm

in this lawsuit involving the alleged wrongful termination

of its own employee.

35a

Appendix A

Nor does Cullinan support an extension of qualified

immunity to Baker Donelson in this case. In Cullinan,

the plaintiffs brought claims under RICO and § 1983

for wrongful use of civil proceedings, abuse of process,

and other related issues against city government actors

based on actions that took place during the plaintiffs’

prior litigation against the city. 128 F.3d at 305–07. The

plaintiffs also named a law firm as a defendant because

that law firm had represented the city in the course of the

prior litigation and had filed the initial lawsuit on behalf

of the city. Id. at 306, 310. In considering whether the

law firm was entitled to assert qualified immunity, this

Court acknowledged that “private litigants are not eligible

for immunity from suit under § 1983 . . . in most factual

contexts.” Id. at 310 (citing Duncan v. Peck, 844 F.2d 1261

(6th Cir. 1988)). Given the factual circumstances of the

case, however, this Court held that in filing a lawsuit on

behalf of the city and acting “[a]s attorneys for the city” in

the prior litigation that gave rise to the plaintiff’s claims,

the law firm was acting at “the behest of the sovereign,”

and therefore this Court saw “no good reason” to find

city government actors eligible for qualified immunity

and not the law firm. Id. at 310 (quoting Richardson, 521

U.S. at 407).

It is true that, under Cullinan, Baker Donelson may

act at “the behest of the sovereign” in filing a lawsuit on

behalf of their government client or otherwise carrying out

legal work for their government client. See id. But Baker

Donelson does not perform a public function in managing

36a

Appendix A

internal, human-resources affairs at the law firm, such

as making employment decisions. The government may

have been a client of the firm, and Baker Donelson may

have considered that client relationship in choosing to fire

Plaintiff. But Baker Donelson does not perform a public

duty or act “at the behest of the sovereign” by firing

Plaintiff, especially since Baker Donelson’s sole motivation

for Plaintiff’s termination was its own private business

interests. See id. Again, this lawsuit does not arise out of

any particular legal work that Baker Donelson carried

out on behalf of the government, as in Cullinan. This

lawsuit arises out of an employment relationship between

an attorney and his own law firm, and Cullinan does not

empower the extension of qualified immunity to a law firm

in a case involving its internal employment decision that

was motivated by its own business interests.

Since Filarsky and Cullinan, we have held that “when

a private party—including a private person working

for the government part-time, Filarsky v. Delia, 566

U.S. 377, 393–94, 132 S. Ct. 1657, 182 L. Ed. 2d 662

(2012)—seeks qualified immunity from a § 1983 suit, we

determine whether (1) there was a firmly rooted history

of immunity for similarly situated parties at common law;

and (2) whether granting immunity would be consistent

with the history and purpose of § 1983.” McCullum v.

Tepe, 693 F.3d 696, 700 (6th Cir. 2012). Justice Sotomayor

clarified in Filarsky that individual private parties must

still “satisfy our usual test for conferring immunity” in a

given case. 566 U.S. at 397 (Sotomayor, J., concurring). In

37a

Appendix A

extending qualified immunity to Baker Donelson, however,

the majority has not carried out this required analysis

as it relates to Baker Donelson and the circumstances of

this case. And although the majority purports to confine

its decision to the facts of this case, the majority creates

confusion for future cases in broadly stating that “[w]hen

private attorneys and law firms provide legal services

to a government body,” they are “eligible for qualified

immunity in connection with that work.” Majority Op. at 6.

Nor would the required analysis compel an extension

of qualified immunity to Baker Donelson in this case, let

alone all private attorneys and law firms representing

the government, as the majority opinion indicates.

Just because a court departed from our longstanding

jurisprudence in extending qualified immunity to a

specific attorney in Filarsky and a specific law firm in

Cullinan does not mean that Baker Donelson is now

entitled to the defense or that all private attorneys and

law firms are. For example, in Cooper v. Parrish, we held

that an attorney was not entitled to qualified immunity

in a lawsuit involving the attorney’s legal work with

state prosecutors because “the circumstances . . . do not

implicate the policy concerns that underlie the qualified

immunity doctrine.” 203 F.3d 937, 953 (6th Cir. 2000).

We reasoned that the attorney “was not acting at the

behest of the state when he participated in” the legal

work with the government and “was not performing any

unique government functions when he allegedly engaged

in the unconstitutional conduct at issue in this case.” Id.

38a

Appendix A

at 953. Similarly here, in firing Plaintiff solely because

of its own business motivations as a for-profit private law

firm, Baker Donelson did not perform any governmental

objective, duty, or function for which the public interest

would support extending qualified immunity. Allowing

this wrongful termination lawsuit to proceed against

Baker Donelson would not implicate any of the concerns

that mandate qualified immunity for government officials,

such as preserving their “ability to serve the public good,”

ensuring “that talented candidates were not deterred”

from entering public service because of the threat of a

damages suit, and preventing “the distraction of officials

from their governmental duties.” Wyatt, 504 U.S. at 167.

And shielding Baker Donelson from liability for a decision

that the law firm made based on its own private business

interests does not “act to safeguard the government” or

“protect the public at large.” Id. at 168.

The majority instead emphasizes that the following

allegations in Delanis’ complaint establish Baker Donelson’s

eligibility for qualified immunity: Baker Donelson served

as counsel for the government, the government wished to

punish DeLanis’ speech, the government demanded and

requested that the Baker Donelson fire DeLanis, and

Baker Donelson fired DeLanis pursuant to these demands

and requests from the government. See Majority Op. at

12 (citing Compl., R. 34, ¶¶ 114, 171). But merely following

the government’s demand or request does not justify the

extension of qualified immunity to a law firm, even where

the government is a client of the firm. Although DeLanis’

39a

Appendix A

allegations indicate that Baker Donelson “was motivated”

by the government’s request, Compl., R. 34, ¶ 114, Baker

Donelson retained its own agency, separate from the

government, in terminating DeLanis’ employment; with

regard to firing its own employee at the law firm, Baker

Donelson made its own decision and did so solely for its

own private business interests, as conceded by Baker

Donelson at oral argument. In this case featuring a law

firm’s private business decision to fire its own employee,

Baker Donelson is not eligible for qualified immunity.

In concluding that Baker Donelson may assert

qualified immunity, the majority contends that Baker

Donelson was performing a public function in firing

Plaintiff, Majority Op. at 7, but in concluding that Baker

Donelson did not violate a clearly established right, the

majority emphasizes that Baker Donelson’s business

interests drove its conduct and Baker Donelson sought

merely to maintain and increase the client revenue that

it generated at all times relevant to these claims, id. at

16–17. Both cannot be true. Rather, Baker Donelson’s

focus on its own business interests illustrates that

the firm did not carry out a public function during the

relevant times of this case. In protecting its client base,

allowing its business interests to drive its conduct, and

seeking to maintain and increase the client revenue it

generated—all facts recognized by the majority—Baker

Donelson cannot be said to have worked “in the pursuit

of government objectives” or be “principally concerned

with enhancing the public good.” See Filarsky, 566 U.S.

40a

Appendix A

at 392. In the events at issue in this case, Baker Donelson

neither functioned in a public capacity nor demonstrated

any concern regarding the public interest that would

warrant extending qualified immunity to the law firm.

For these reasons, I would affirm the district court’s

denial of qualified immunity to Baker Donelson. Although

there may be a circumstance where a private actor

is entitled to qualified immunity, this case is not one.

Accordingly, I respectfully dissent.

41a

B

APPENDIX BAppendix

— JUDGMENT

OF THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT,

FILED NOVEMBER 24, 2025

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 23-5939/5948

JAMES A. DELANIS,

Plaintiff-Appellee,

v.

METROPOLITAN GOVERNMENT OF

NASHVILLE & DAVIDSON COUNTY,

Defendant,

ROBERT J. MENDES, INDIVIDUALLY AND IN

HIS CAPACITY AS A MEMBER OF THE METRO

COUNCIL (23-5939); BAKER, DONELSON,

BEARMAN, CALDWELL & BERKOWITZ, PC (23-5948),

Defendants-Appellants.

Before: SUTTON, Chief Judge; CLAY and GIBBONS,

Circuit Judges.

42a

Appendix B

JUDGMENT

On Appeal from the United States District Court for

the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED

that the district court’s denial of qualified immunity for

Robert J. Mendes on James A. DeLanis’s retaliation

claims is AFFIRMED. IT IS FURTHER ORDERED

that the district court’s denial of qualified immunity for

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC is

REVERSED, and the case is REMANDED for further

proceedings consistent with the opinion of this court.

ENTERED BY ORDER

OF THE COURT

/s/ Kelly L. Stephens, Clerk

Kelly L. Stephens, Clerk

43a

Appendix C

APPENDIX C — MEMORANDUM

OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF TENNESSEE,

FILED OCTOBER 6, 2023

IN THE UNITED STATES

DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NO. 3:22-cv-00469

JUDGE RICHARDSON

JAMES A. DELANIS,

Plaintiff,

v.

METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, et al.,

Defendants.

Filed October 6, 2023

MEMORANDUM OPINION

Pending before the Court is the joint motion of

Defendant Metropolitan Government of Nashville and

Davidson County (“Metro”) and Defendant Robert J.

Mendes (“Mendes”) (collectively, “Metro Defendants”)

to dismiss the amended complaint in part under Federal

44a

Appendix C

Rule of Civil Procedure 12(b)(6).1 (Doc. No. 39). The motion

is accompanied by a supporting memorandum. (Doc. No.

40). Plaintiff filed a response (Doc. No. 47), and Metro

Defendants filed a reply (Doc. No. 53).

Defendant Baker, Donelson, Bearman, Caldwell &

Berkowitz, P.C. (“Baker”) also has filed a motion to dismiss

the amended complaint in part pursuant to Rule 12(b)(6),

and this motion is likewise accompanied by a supporting

memorandum. 2 (Doc. Nos. 43, 44). Baker’s motion to

dismiss adopts and incorporates the arguments set forth

in Metro Defendants’ motion to dismiss (Doc. No. 44), and

it additionally asserts that Baker is entitled to qualified

immunity. (Id.). Plaintiff filed a response (Doc. No. 48),

and Baker filed a reply (Doc. No. 56).

For the reasons set forth below, Metro Defendants’

motion to dismiss at Doc. No. 39 will be granted in part

and denied in part, and Baker’s motion to dismiss at Doc.

No. 43 will be granted in part and denied in part.

1. Metro Defendants moved to dismiss all counts in the

amended complaint as pled against them but appropriately do

not move to dismiss the counts pled solely against Baker. The

Court therefore treats Metro Defendants’ motion to dismiss as

requesting dismissal of the amended complaint only in part.

2. Although Baker’s motion ostensibly suggests that it seeks

dismissal of the amended complaint in its entirety, the motion

does not address Count V (retaliatory discharge in violation of

Tennessee Code Annotated § 50-1-304 alleged against Baker)

or Count VI (injurious falsehood and interference with business

opportunity alleged against Baker). The Court therefore treats

the motion as a motion to dismiss the amended complaint in part.

45a

Appendix C

FACTS3 AND PROCEDURAL HISTORY

As the below (alleged) facts reflect, this case is

about the alleged abuse of power intended to unlawfully

influence the vote of an appointed state official.

1.

THE PARTIES4

During the relevant time periods, Plaintiff was

employed as an attorney by Baker, a national law firm with

an office in Nashville, Tennessee. (Doc. No. 34 at 3). During

these time periods, Plaintiff was a member, and the Chair,

of the Davidson County (Tennessee) Election Commission

(“Commission”). (Id. at 3–5). Pursuant to Tennessee

Code Annotated § 2-12-101, the Commission comprises

five members, each of whom is appointed by the State of

Tennessee Election Commission. (Id. at 5). Commission

members are state (not local) officials, with duties set forth

by Tennessee law related to the administration of elections

in Davidson County, Tennessee. (Id. at 4).

3. Because the instant motion seeks dismissal under Federal

Rule of Civil Procedure 12(b)(6), the Court takes the facts alleged

in the amended complaint (Doc. No. 34) as true. For the reasons

discussed further below, this applies even to facts alleged based

on “information and belief.” At times (but not always) herein,

the Court refers to these facts as (merely) alleged, as occasional

reminders to the reader that the Court is not pronouncing these

facts as the established facts.

4. The amended complaint uses the present tense to state

many of these facts (in particular the ones about various public

officials and offices at issue), but when it does so the clear implication

is that these facts were also true in the past, in particular at the

time of the events alleged in the amended complaint.

46a

Appendix C

Du r ing the relevant time per iods, Metro — a

municipality organized under Tennessee state law—was

a client of Baker. (Id. at 6). And during the relevant times

periods, Metro’s chief executive officer was its mayor, who

was John Cooper, and its chief legislative body was the

Metro Council. And finally, Mendes was a member of the

Metro Council during the relevant time periods.

2.

A DOPTION OF T H E 3 4 -PERCEN T

PROPERTY TAX INCREASE AND THE

FIRST TAX REFERENDUM

On June 12, 2020, the Council for the Metropolitan

Government of Nashville and Davidson County (“Metro

Council”) adopted a 34-percent property tax increase

(“Tax Increase”). (Doc. No. 34 at 6). Mendes proposed

the budget in which the Tax Increase was included. (Id.).

Following the adoption of the Tax Increase, a group

of citizens in Davidson County proposed a referendum

(“First Tax Referendum”) to limit the authority of the

Metro Council to raise taxes by more than 5 percent

without voter approval. (Id. at 7). The Commission had the

duty of determining whether the First Tax Referendum

met the legal requirements to be placed on the ballot for

a public vote. (Id.). Given that the First Tax Referendum

would have limited Metro Council’s authority to increase

the property tax by 34 percent, Metro Council was

fervently opposed to the First Tax Referendum. 5 (Id.).

5. It is not clear from the amended complaint why the First

Tax Referendum would have a retroactive effect on the 34-percent

tax increase. Nonetheless, this ambiguity is not material to the

Court’s analysis on the instant motions.

47a

Appendix C

In early October of 2020, the Commission filed

an action in the Chancery Court of Davidson County

requesting a declaratory judgment as to whether the

First Tax Referendum should be placed on the ballot for

public vote. (Id. at 7–8). The Chancery Court then ruled

that the First Tax Referendum should not be placed on

the ballot. (Id. at 8). Upon receiving this ruling, a group

of citizens began a campaign to have a second referendum

placed on the ballot (“Second Tax Referendum”)—this

time attempting to avoid the problems identified by the

Chancery Court in its ruling regarding the First Tax

Referendum. (Id.).

3.

SEC ON D TA X R EF ER EN DU M , A N D

JOHN HICKS’S MAY 25, 2021, EMAIL TO

PLAINTIFF

On March 26, 2021, several months after the Chancery

Court issued its ruling on the First Tax Referendum,

Mendes filed Resolution 2021-837 (“Resolution”) in his

capacity as a Metro Council member. (Id. at 8–9). The

Resolution stated that additional amendments to the

Charter of the Metropolitan Government of Nashville

and Davidson County, Tennessee would be placed on the

ballot if (and only if) the Second Tax Referendum were

to be placed on the ballot. (Id.). The potential charter

amendments described in the Resolution, were they to

be placed on the ballot and adopted, would serve to ban

public referendums on property tax levies. (See id. at

9). The adoption of any such charter amendments would

stymie the efforts of citizens to vote on a referendum

48a

Appendix C

regarding Metro Council’s authority to raise taxes.6 Soon

after Mendes proposed the Resolution, the Commission

voted to place the Second Tax Referendum on the ballot.7

(Id. at 10).

On May 13, 2021, the Commission held a public

meeting on the Second Tax Referendum (then set to go to a

vote in July). (Id. at 10). At the meeting, Mendes, speaking

in his capacity as a Metro Council member, remarked that

As the only county-wide elected person in the

room, I want to say clearly that’s what’s been

going on at the last couple of meetings, what you

guys are doing is pre-baked, political theater

designed to feed apparently the ambitions of a

small percentage of the county. . . . Y’all know

it’s a sham and I’m here to tell you guys, you

might get away with it tonight, but we see you,

we see what you’re doing and it’s not going to

stand one way or the other. . . . We see what’s

going on and you shouldn’t do it.

6. This fact is not expressly set forth in the amended

complaint, but it is easily inferable from what is in the amended

complaint.

7. Though the amended complaint does not specifically state

that Plaintiff voted in favor of placing the Second Tax Referendum

on the ballot, the Court infers from facts alleged in the amended

complaint that Plaintiff did so vote in favor of the referendum.

Herein, where the Court notes that the “Commission” voted in a

particular way, the Court likewise infers that the “Commission’s”

vote is reflective of the individual vote of Plaintiff as a member of

the Commission.

49a

Appendix C

(Id. at 10–11). On May 25, 2021, the week following

the public meeting, John Hicks (“Hicks”), a principal

of Baker as well as Baker’s general counsel, emailed

Plaintiff saying, “we need to have a conversation about

the current election commission issues and their impact

on the firm’s representation of Metro.” (Id. at 12). Hicks

and Plaintiff then met the next day in the Baker offices.

(Id.). During the meeting, Hicks told Plaintiff that other

principals and shareholders of Baker were upset because

Metro City Council and the Metro School Board8 were

threatening to pull their business from the firm because

of Plaintiff’s activity on the Commission. (Id.). In response,

Plaintiff told Hicks that Hicks’s attempts to influence

the Commission and Plaintiff could be criminal or illegal

under Tennessee law. (Id. at 13).

4.

APPEAL OF THE CHANCERY COURT’S

RU LING ON T H E SECON D TA X

REFERENDUM, AND TERMINATION OF

PLAINTIFF’S EMPLOYMENT WITH BAKER

In late June 2021, following litigation regarding the

Second Tax Referendum, the Davidson County Chancery

8. There is a slight discrepancy in the amended complaint

as to what entity was the client of Baker during the relevant time

periods. The amended complaint states that Metro was the client,

whereas other parts of the amended complaint indicate that Baker

viewed “Metro City Council” and the “Metro School Board” as

distinct clients. Based on the amended complaint as a whole, it

is reasonable to infer that Metro (which would encompass Metro

City Council and Metro School Board) was a client of Baker’s,

regardless of whether attorneys at Baker treated or referred to

the sub-divisions of Metro as individual clients.

50a

Appendix C

Court ruled that the Second Tax Referendum was

defective and should not be placed on the ballot. (Id. at

14). The Commission then scheduled a public meeting for

June 25, 2021 to vote on whether to appeal the Chancery

Court ruling. (Id.). The day before the meeting, Hicks

emailed Plaintiff requesting that Plaintiff call him. (Id.

at 15). During the phone call, Hicks asked Plaintiff not to

vote to appeal the ruling on the Second Tax Referendum.

(Id.). Plaintiff refused to tell Hicks what his vote would

be, at which point Hicks said that he wanted to meet with

Plaintiff the following morning (the day of the vote). (Id.

at 16).

Hicks was not the only person who was busy the day

before the vote. On June 24, 2021, Mendes sent a letter

(“Mendes Letter”) to the entire Commission and Metro

Council. (Id. at 16). The Mendes Letter explicitly called

out Plaintiff for his decisions relating to the various tax

referendums:

I do not need to tell any of you how pre-baked

the Commission’s process was. You lived

through it. I believe that you already know that

Chair DeLanis’s intentions from the start were

to push the referendum onto a ballot no matter

what. I believe you know that instead of letting

unbiased legal advice dictate the conclusion,

Chair DeLanis’s preferred conclusion dictated

what the legal advice was going to be. . . For

reasons that seem hyper-partisan, Chair

DeLanis didn’t like the answers he was getting

from Bill Koch, Bob Cooper, or Chancellor Lyle.

So Chair DeLanis decided instead to have the

51a

Appendix C

Commission fire Bill Koch and get the answers

he wanted from Jim Blumstein[.]

(Id. at 16).9 Per their phone call the day prior, Hicks and

Plaintiff were set to meet the morning of the vote. That

9. Jim Blumstein is a professor at Vanderbilt Law School.

(Doc. No. 34 at 9). The amended complaint mentions Professor

Blumstein in three other places, but any particular relationship of

his to the matters at issue herein is unspecified and is immaterial

for present purposes.

The Court takes judicial notice of the fact that Bob Cooper,

not to be confused with Mayor Cooper (to whom he is unrelated),

had served as the Attorney General and Reporter for the State of

Tennessee from 2006 to 2014 and was at the time in question in the

private practice of law. The amended complaint does not mention

Bob Cooper anywhere else; thus, any particular relationship of

relationship of his to the matters at issue herein is unspecified and

is immaterial for present purposes.

The Court takes judicial notice that Bill Koch is a former justice

of the Tennessee Supreme Court, and the amended complaint

implies that he served as legal counsel for the Commission before

being fired for reasons the amended complaint does not address

other than to state that such firing was not dictated by Plaintiff.

(Doc. No. 34 at 17). The amended complaint does not otherwise

mention Bill Koch, and any particular relationship of his to the

matters at issue herein is unspecified in the amended complaint

and is immaterial for present purposes.

Finally, the Court takes judicial notice of the fact that

Davidson Chancellor Ellen Lyle is the judicial official who ruled

that the First Tax Referendum should not be placed on the ballot.

The amended complaint does not otherwise mention Chancellor

Lyle except in this single quotation, and any particular relationship

of hers (beyond the ramifications of her decision regarding the

First Tax Referendum) to the matters at issue herein is unspecified

in the amended complaint and is immaterial for present purposes.

52a

Appendix C

morning, Hicks emailed Plaintiff, “be in the office by 8

or 8:15 at the latest . . . We should talk as early as we can

after that.” (Id. at 18). Apparently concerned about the

subject matter of the meeting, Plaintiff responded in part:

Dear John, Please inform me in writing of the

purpose of the meeting. If this meeting is to

speak to me again about my vote at the election

commission meeting today, I am not comfortable

with that. As I have expressed to you before,

further discussions of that nature may put the

law firm and its clients in a questionable legal

position.

(Id. at 18). Approximately an hour after sending this email,

Hicks emailed Plaintiff to notify Plaintiff that Plaintiff’s

employment with Baker was going to be terminated. (Id.

at 18). Hicks gave Plaintiff a choice on how to proceed:

work the balance of the fiscal year and resign from the

Commission or leave Baker immediately. (Id. at 18–19).

Three days after Plaintiff was notified that he was

going to be terminated, Hicks directed Plaintiff to meet

with him at 9:00 A.M. on June 28, 2021. (Id. at 19). Early

that morning, Plaintiff emailed Hicks, copying the senior

management of Baker:

You have told me several times now that two

firm clients (Metro Nashville and the Metro

School Board) have been pressuring you, and

the firm, to take action against me because of

my role on the Election Commission. In my

53a

Appendix C

opinion, that implicates serious legal and ethical

issues. I should not have to consider those issues

is [sic] a rushed fashion without the opportunity

to consult counsel. Why don’t we postpone all

this until sometime after the upcoming fourth

of July holiday?

(Id.). Contrary to Plaintiff’s requests, Hicks refused to

postpone the meeting until after July 4, 2021 and did

not allow Plaintiff to bring an attorney with him to the

meeting. (Id.). Hicks sent an email to DeLanis at 4:06

PM on June 28, 2021, in which he stated: “The meeting

will occur at 8:00 tomorrow. You are still employed by the

firm, so please come in to discuss that employment with

me, your practice group chair and the office managing

shareholder. If you have counsel, he or she is not invited

to attend and would not be if the meeting occurred at any

other time.” (Id.).

Hicks and Plaintiff then met on June 29, 2021.

(Id.). During the meeting, Hicks terminated Plaintiff’s

employment and gave him until July 2, 2021 (three days

hence) to leave the firm. (Id. at 19–20). During the meeting,

Hicks stated that had “no choice” but to terminate

Plaintiff’s employment. (Id.). Following the meeting, Hicks

emailed Plaintiff stating the following

Please remember that, as a firm lawyer, Metro

Government and the related entities are your

clients, as well as the firm’s clients. None of us

can discuss or comment to third parties on any

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communications the firm may have had with

any of our clients. To do otherwise would be an

ethical violation.

(Id. at 20).

On July 2, 2021, the day that Plaintiff was slated

to leave Baker, but prior to the termination becoming

public, Tennessee State Senator Ferrell Haile met with

Mayor John Cooper. (Id. at 21). During the meeting,

Senator Haile expressed his concerns to Mayor Cooper

that a private employer of an election commissioner had

been pressured by Metro on how to vote on the appeal

of the Chancery Court’s ruling. (Id.). Although Mayor

Cooper told Senator Haile that Plaintiff’s termination

of employment had not come from the mayor’s office, the

mayor did not otherwise appear concerned about the

issues raised by Senator Haile. (Id. at 21–22).10 A few

days later, on July 7, 2021, Plaintiff spoke with a member

of Baker’s Board of Directors (“Baker Board Member”),

with whom he had been in touch a few months prior. (Id.).

The Baker Board Member told Plaintiff that the Baker

Board Member had told Hicks that Hicks could not tell an

employee how to vote on an issue pending before a board

or commission. (Id. at 22).

10. The amended complaint does not specifically allege that

Mayor Cooper was involved in the decision to terminate Plaintiff,

and the Court does not find that what is alleged in the amended

complaint is sufficient to support an inference that Mayor Cooper

was involved.

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5.

PLAINTIFF FILES THE INSTANT ACTION

On June 22, 2022, Plaintiff filed the instant action.

(Doc. No. 1). Several months later, Plaintiff filed an

amended complaint (Doc. No. 34), which is now the

operative complaint in this action. The amended complaint

names as Defendants Metro, Mendes in his individual

capacity and official capacity, and Baker (collectively,

“Defendants”). (Id.). The amended complaint contains

six counts:

• Count I: Violation of the Plaintiff ’s First

A mendment (as incorporated through the

Fourteenth Amendment) rights of free speech

and freedom of association and due process rights

and equal protection rights under the Fourteenth

Amendment alleged against Metro and Mendes

in his individual capacity and official capacity.

• Count II: Violation of Plaintiff’s First Amendment

(as incorporated through the Four teenth

Amendment) rights of free speech and freedom

of association and due process rights and

equal protection rights under the Fourteenth

Amendment, and violation of Tennessee Code

Annotated §§ 39-14-112, 2-19-202 alleged against

Metro and Mendes in his individual capacity and

official capacity

• Count III: Joint Action and Civil Conspiracy to

violate Plaintiff’s constitutional rights alleged

against Metro, Mendes in his individual capacity

and official capacity, and Baker

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• Count IV: Violation of Plaintiff’s First Amendment

(as made applicable to the States via the

Fourteenth Amendment) rights of free speech

and freedom of association and Plaintiff’s due

process rights under the Fourteenth Amendment

alleged against Baker as a state actor

• Count V: Retaliatory discharge in violation of

Tennessee Code Annotated § 50-1-304 alleged

against Baker

• Count VI: Injurious falsehood and interference

with business opportunity alleged against Baker

(Id. at 34–38). In light of these allegations, Plaintiff

requests temporary and permanent injunctions against

Metro, Mendes, and Baker (though Plaintiff has not

filed a motion for a preliminary injunction or temporary

restraining order, as would be necessary to obtain

preliminary relief). (Id. at 38). He also requests an

award of compensatory damages of at $1,000,000, as well

as punitive damages. (Id.). Finally, Plaintiff requests

attorneys’ fees and costs as permitted by law. (Id.).

On October 6, 2022, Metro and Mendes filed a joint

motion to dismiss (Doc. No. 39), accompanied by a

supporting memorandum (Doc. No. 40), seeking dismissal

in part the amended complaint under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which

relief can be granted. Baker also filed a motion to dismiss

(Doc. No. 43), accompanied by a supporting memorandum

(Doc. No. 44), seeking dismissal in part of the amended

complaint in part under Rule 12(b)(6). Responses and

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replies have been filed with respect to each of these

respective motions, which are ripe for decision.

DISCUSSION

The instant motions to dismiss raise several arguments

as to why dismissal of the amended complaint in part is

warranted under Rule 12(b)(6). The Court addresses each

argument in turn. In broad strokes, the memorandum

opinion proceeds as follows. First, the Court addresses

Plaintiff’s First Amendment-retaliation claim as pled

against Metro, Mendes in his official capacity, and Mendes

in his individual capacity. The Court also determines

whether Mendes is entitled to qualified immunity as to the

First Amendment-retaliation claim pled against him in his

individual capacity. The Court next turns to whether the

amended complaint states a First Amendment-retaliation

claim against Baker.

The Court then addresses whether the amended

complaint states a claim for a violation of Plaintiff’s rights

under the Due Process Clause (meaning, here, of the

Fourteenth Amendment) and whether Plaintiff has stated

a claim for civil conspiracy. Finally, the Court briefly

addresses the state-law claims contained in Counts V and

VI, which no Defendant has moved to dismiss.

1.

FI R ST A M EN DM EN T-R ETA LI AT ION

CLAIM AGAINST METRO, MENDES, AND

BAKER

The amended complaint sets forth a First Amendmentretaliation claim against Metro, Mendes in his individual

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capacity and official capacity, and Baker.11 Specifically, the

amended complaint alleges that Plaintiff was retaliated

against in violation of the First Amendment for exercising

his First Amendment rights of free speech and freedom

of association. Defendants have all moved to dismiss the

First Amendment-retaliation claim pled against them

respectively. The Court addresses the arguments of

Defendants in turn below.

A.

Facts Pled Based on “Information and

Belief”

Before addressing the merits of the Defendants’

motions to dismiss, the Court must first resolve a dispute

as to what facts contained in the amended complaint can

be treated as true. Metro Defendants argue12 that facts

11. This claim is variously alleged against the various

Defendants across Counts I, II, III and IV. Counts I and II

assert liability only as to Metro and Mendes; Baker’s liability

is asserted only via Counts III and IV. Notably, Counts III and

IV respectively assert separate theories for rendering Baker,

presumptively a private party rather than a state actor, liable for

a violation of the First Amendment. Herein, although treating

the claim as a single claim in certain respects, the Court also

includes Defendant-specific analyses regarding the extent to

which Plaintiff has plausibly alleged that particular Defendants

are liable on such claim.

12. Although Baker incorporates the arguments of Metro

Defendants in its motion to dismiss, for the sake of conciseness

the Court will refer to arguments that are substantively discussed

only in Metro Defendants’ motion as argued by Metro Defendants.

However, where a discussion of an argument made only by Metro

Defendants (and incorporated by Baker) applies to all Defendants,

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alleged in the amended complaint based on “information

and belief” are not well-pled, and the Court should not

take such facts as true in resolving the instant Motion.

(Doc. No. 40 at 19).13 The Court disagrees.

The Court does not dispute that facts based on sheer

speculation are not well-pled. But the Sixth Circuit has

said that pleading facts on “information and belief” may

be permissible where a plaintiff “may lack personal

knowledge” and therefore must “rely on information

furnished by others.” Starkey v. JPMorgan Chase Bank,

NA, 573 F. App’x 444, 447–48 (6th Cir. 2014). As Starkey

explained, even while holding that the particular plaintiff

had made allegations “on information and belief that was

improper under the particular circumstances at issue,

sometimes pleading on information and belief is proper:14

It is true that pleading on information and belief

may be permissible in certain circumstances.

then the discussion applies to both Metro Defendants’ motion to

dismiss and Baker’s motion to dismiss.

13. The Court does not begrudge Metro Defendants for

making this argument, especially given that some of the most

concerning allegations contained in the amended complaint are

alleged based on “information and belief.”

14. Interestingly, the problem with those allegations actually

was not they that were too speculative, but rather, to the contrary,

that they were especially non-speculative. That is, they were

within the personal knowledge of the plaintiffs and thus were not

in fact based on mere “information and belief.” See Starkey, 573

F. App’x at 447–48.

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For example, sometimes a plaintiff may lack

personal knowledge of a fact, but have “sufficient

data to justify interposing an allegation on the

subject” or be required to “rely on information

furnished by others.”

Id. at 447–48 (6th Cir. 2014) (quoting Wright & Miller,

5 Fed. Prac. & Proc. Civ. § 1224 (3d ed. 2012)). Starkey

itself is not precedential, but the Court has no doubt that

it accurately states the law in this regard. As the Second

Circuit put it, “allegations may be based on information

and belief when facts are peculiarly within the opposing

party’s knowledge.” Boykin v. KeyCorp 521 F.3d 202,

215 (2d Cir.2008).15 One district court in the Second

Circuit has suggested, and the undersigned agrees, that

authority for allowing allegations “on information and

belief” is provided by Rule 11(b)(3), which “states that ‘[b]

y presenting to the court a pleading, written motion, or

other paper-whether by signing, filing, submitting, or later

advocating it-an attorney or unrepresented party certifies

that to the best of the person’s knowledge, information,

and belief, formed after an inquiry reasonable under the

circumstances . . . the factual contentions have evidentiary

support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for

15. By the undersigned’s count, allegations are made in the

amended complaint “on information and belief” twenty-five times,

and in each case the alleged facts indeed likely would be peculiarly

within the knowledge of one or more of the Defendants. And in

ten of those instances, Plaintiff identities statements of Hicks

(of which Plaintiff had personal knowledge) as the “information”

supporting his belief.

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further investigation or discovery.’ (emphasis added).”

Lovell v. GEICO Gen. Ins. Co., No. 12-CV-00546 A M,

2013 U.S. Dist. LEXIS 185908, 2013 WL 7871497, at *9

(W.D.N.Y. Mar. 29, 2013), report and recommendation

adopted in part, No. 12-CV-546-A, 2014 U.S. Dist.

LEXIS 30880, 2014 WL 917303 (W.D.N.Y. Mar. 10, 2014).

As another opinion in this same district court put it,

“[t]he phrase ‘specifically so identified’ refers to allegations

‘upon information and belief’”. Bellavia v. Orleans Cnty.,

No. 1:22-CV-842-JLS-JJM, 2023 U.S. Dist. LEXIS

13082, 2023 WL 2587681, at *2 (W.D.N.Y. Jan. 25, 2023)

(citing 2 M atthew Bender, Moore’s Federal Practice,

§ 8.04[4] (3d ed. 2022)), report and recommendation

adopted, No. 22-CV-842 (JLS)(JJM), 2023 U.S. Dist.

LEXIS 47647, 2023 WL 2586267 (W.D.N.Y. Mar. 21, 2023).

As the undersigned would summarize it, under certain

circumstances, factual allegations in a complaint may be

made on information and belief (even without using the

longer terminology set forth in Rule 11(b)(3)), albeit with

the caveat that the signer of the complaint (counsel or a

pro se plaintiff) is certifying compliance with Rule 11(b)(3)

when making factual allegations on information and belief.

As the undersigned sees it, there may well be relevant

(alleged) facts of which the plaintiff lacks firsthand

knowledge but has good reason to believe are true (exist).

Often, the plaintiff’s good reason to believe that facts exist

is the plaintiff’s firsthand knowledge of those facts. Other

times, however, the plaintiff’s good reason is information

furnished by other persons on which it is reasonable for

the plaintiff to rely; under these circumstances, as Starkey

put it, the plaintiff will have “sufficient data to justify

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interposing an allegation on the subject.” 573 F. App’x at

448. Where such circumstances exist, factual allegations

may be made on “information and belief.” Alternatively,

even absent such circumstances, under certain conditions

allegations may be made of alleged facts that would be

peculiarly within the knowledge of one or more opposing

parties.

The undersigned would summarize the relevant

principles in the following way. A fact of which a plaintiff

lacks personal knowledge nevertheless in some situations

can be well-pleaded even if alleged only on “information

and belief.” Those situations include when the “belief”

is reasonable based on the “information,” meaning facts

known personally to the plaintiff or facts suggested

(directly or by inference) by information from others upon

which it is reasonable to rely. The alleging of a fact based

on this kind of belief is not mere speculation, but rather

one based on—in particular, the kind of (firsthand and

secondhand) information on which the plaintiff properly

may rely for purposes of pleading claims. These situations

also include when the alleged fact would be peculiarly within

the knowledge of one or more opposing parties, although

the undersigned must add that he will countenance this

alternative only where the allegation (even if not supported

as per the first alternative identified immediately above)

is not inconsistent with the other alleged facts and not

facially implausible. The undersigned’s approach here

is entirely consistent with the approach of the Second

Circuit, except that the undersigned has taken pains to

announce a pro-defendant limitation on the propriety as

accepted alleged facts on information and belief on the

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specific ground that the alleged fact would be peculiarly

within the knowledge of one or more defendants. See

Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.

2010) (“The Twombly plausibility standard, which

applies to all civil actions, does not prevent a plaintiff

from pleading facts alleged upon information and belief

where the facts are peculiarly within the possession and

control of the defendant or where the belief is based on

factual information that makes the inference of culpability

plausible.”) (emphasis added).

Asserting contrary principles, Metro Defendant

misrepresents 16630 Southfield Ltd. P’ship v. Flagstar

Bank, 727 F.3d 502 (6th Cir. 2013)). According to Metro

Defendants, “[t]he Sixth Circuit held in 16630 Southfield

Limited that by alleging facts ‘upon information and

belief,’ a plaintiff has ‘merely alleged their ‘belief,’ which

fails to satisfy Iqbal.” (Doc. No. 40 at 19) (quoting 16630

Southfield Ltd. P’ship v. Flagstar Bank, 727 F.3d at 506).

Notably, by characterizing the Sixth Circuit’s statement

as referring to what “a” plaintiff—a clear connotation

that the reference is to any and all plaintiffs generally—

and not what the plaintiff in that case had done, and by

omitting a reference to anything case-specific about the

Sixth Circuit’s holding, Metro suggests incorrectly that

the Sixth Circuit there was announcing a (precedential)

rule generally applicable to all cases. In fact, the Sixth

Circuit was merely stating that the particular allegations

made on information and belief particular plaintiff in that

case were improper.

And as for the general rule that Metro suggests was

announced in 16630 Southfield Ltd. P’ship, it is a very

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consequential one: that if facts are alleged based “[up]on

information and belief,” that “fails to satisfy Iqbal.” (Doc.

No. 40 at 19). That is of course, tantamount to suggesting

that under Iqbal (and Twombly), allegations of fact based

“on information and belief” have no proper place in

complaints filed in federal civil cases. But as discussed

above, this is simply not the law as the undersigned sees

it, Setting aside the misleading citation of 16630 Southfield

Ltd. P’ship, Metro Defendants cite no authority to

support the existence of such a rule, and cases (including

cases, albeit non-precedential ones thus far as far as the

undersigned can tell, from this circuit) consistently reject

it. E.g., GlobalTranz Enters. Inc. v. Shipper’s Choice

Glob. LLC, No. CV-16-04038-PHX-ROS, 2017 U.S. Dist.

LEXIS 234215, 2017 WL 11609546, at *3 (D. Ariz. Feb.

23, 2017) (“[D]istrict courts have squarely rejected the

argument that the Twombly/Iqbal standard does not allow

pleading matters on information and belief. One court

noted: ‘Even after Iqbal and Twombly, numerous courts

have held that facts may be pleaded on information and

belief—especially where, as here, the underlying evidence

is peculiarly within the defendant’s possession.’”) (quoting

GCIU-EMployer Ret. Fund v. Quad/Graphics, Inc., No.

216CV00100ODWAFMX, 2016 U.S. Dist. LEXIS 69396,

2016 WL 3027336, at *3 (C.D. Cal. May 26, 2016); Modern

Holdings v. Corning Inc., 2015 U.S. Dist. LEXIS 41134 at

*12, 2015 WL 1481457 (E.D. Ky. 2015) (“While pleading

on information and belief cannot insulate a plaintiff

at the 12(b)(6) stage, Iqbal did not render pleading on

information entirely ineffectual.”)

The undersigned has found a few cases stating that

“conclusory allegations” based on information and belief

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are not cognizable under Iqbal and Twombly. E.g., Menzel

v. Scholastic, Inc., No. 17-CV-05499-EMC, 2018 U.S. Dist.

LEXIS 44833, 2018 WL 1400386, at *2 (N.D. Cal. Mar.

19, 2018). But that is merely an application of the general

rule of Iqbal and Twombly that conclusory allegations are

not cognizable; non-conclusory factual allegations based

on information and belief are proper under Iqbal and

Twombly. See id. (“The Ninth Circuit has held that the

Iqbal/Twombly plausibility standard does not prevent a

plaintiff from pleading facts alleged upon information and

belief. But while facts may be alleged upon information and

belief, that does not mean that conclusory allegations are

permitted. A conclusory allegation based on information

and belief remains insufficient under Iqbal/Twombly.”)

(citation omitted).

The undersigned’s approach ref lects this: to be

properly alleged based on “information and belief,” facts

must be non-conclusory, i.e., (a) inferable from information

(i) of which Plaintiff has personal knowledge or (ii) of which

Plaintiff has knowledge and on which he can reasonably

rely, or (b) indicated directly (rather than by inference)

from information of which Plaintiff has knowledge and

on which he can reasonably rely. Floyd v. Buffalo Trace

Distillery Inc., No. 320CV00073GFVTEBA, 2021 U.S.

Dist. LEXIS 54540, 2021 WL 1113143, at *2 (E.D. Ky.

Mar. 23, 2021) (“Under limited circumstances, a claim may

be rendered plausible if a plaintiff pleads its “information

and belief” with supporting facts.”).

As for the facts alleged in the amended complaint

challenged by Metro Defendants on the grounds that

they were pled merely on “information and belief,” as

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suggested in a footnote above, they are the kinds of facts

that would be peculiarly within the knowledge of one or

more Defendants and not of Plaintiff. For example, Metro

Defendants seek to make hay out of the fact that the

amended complaint alleges only on information and belief

that there were Metro officials (including Mendes, but

otherwise unnamed) that allegedly attempted to influence

Baker’s actions by threatening to pull business from the

firm. (Doc. No. 40 at 19). These key alleged facts (that

there were some persons, and the identity of the specific

persons and whether Mendes was one of them) are plainly

ones of which two or more Defendants, but not Plaintiffs,

would have firsthand knowledge. The Court therefore

finds it appropriate to treat this allegation as true, despite

it being pled on “information and belief.”

The Court likewise treats as true allegations in the

amended complaint pled on “information and belief.” It

does so because each factual allegation satisfies either

or both of the alternative bases for properly pleading an

allegation based on information and belief.

Because Baker incorporates this argument of Metro

Defendants (without providing any further basis to reject

Plaintiff’s allegations made on information and belief),

the Court likewise treats the other allegations pled on

“information and belief” as true for the purposes of

resolving Baker’s motion. With these findings in mind, the

Court now turns to whether Plaintiff has stated a First

Amendment-retaliation claim against Metro, Mendes in

his official and individual capacities, and Baker.

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B. The Amended Complaint Does Not State a

Claim Against Metro or Against Mendes in

His Official Capacity

In the amended complaint, Plaintiff seeks to hold

Metro and Mendes, in his official capacity, liable for

various alleged constitutional violations. (Doc. No. 34).

Because the claim against Mendes in his official capacity

is “essentially a claim against [Metro]” and is based on

the same set of facts as the claim against Metro, the

same analysis governs the claim as pled against Metro

and Mendes in his official capacity. See Peatross v. City

of Memphis, 818 F.3d 233, 241 (6th Cir. 2016).

To plead a § 1983 claim against a municipality, a

litigant must do more than what is required to plead a

claim against an individual (typically an official in his

or her individual capacity). To succeed on a municipal

liability claim, Plaintiff must demonstrate both: “(1) the

deprivation of a constitutional right, and (2) [that the

municipal entity] is responsible for that violation.” See Ellis

ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d

690, 700 (6th Cir. 2006). Regarding the bases for finding a

municipality liable, The Sixth Circuit has explained with

respect to § 1983 claims pled against a municipality,

[t]o establish municipal liability under Monell

v. Department of Social Services, a plaintiff

has four ways to show that a municipality had

a “policy or custom” that caused the violation

of his rights. The plaintiff can prove: “(1) the

existence of an illegal official policy or legislative

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enactment; (2) that an official with final decision

making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or

supervision; or (4) the existence of a custom

of tolerance or acquiescence of federal rights

violations.” Burgess v. Fischer, 735 F.3d 462,

478 (6th Cir. 2013).

Barrow v. City of Hillview, Ky., 775 F. App’x 801,

814–15 (6th Cir. 2019). But there is another way to

establish municipal liability. Perhaps this way—though

it involves the taking or causing of actions rather than

the “ratif[ication]” (after-the-fact) of actions—is properly

considered encompassed within option (2), i.e., as a kind

(or slight variation of) a ratification of illegal actions by

an official with “final decision making authority.” As the

Sixth Circuit has explained, “a municipality may be held

liable under § 1983 for a rights violation when either the

municipality had an unlawful policy or practice that caused

the rights violation, or a municipal ‘policymaker’ directly

caused the rights violation.” Jorg v. City of Cincinnati,

145 F. App’x 143, 146 (6th Cir. 2005) (citing Pembaur v.

City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 89

L. Ed. 2d 452 (1986)).

Metro Defendants argue that the amended complaint

fails to state a § 1983 claim against them. (Doc. No. 40 at 34).

In their view, the amended complaint neither alleges the

existence of an illegal official policy nor that an official with

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final decision-making authority ratified illegal actions.161716

(Id.). In his response, Plaintiff appears to pursue only

the argument that an official with final decision-making

authority ratified (or, under the alternative embraced by

Jorg, caused) the First Amendment violation,” relying on

Paige v. Coyner, 614 F.3d 273 (6th Cir. 2010). (Doc. No.

47 at 44–45).

The amended complaint is devoid of facts plausibly

suggesting that anyone responsible for causing the First

Amendment violation was exercising policymaking

authority bestowed by Metro. The Court keeps in mind

that the violation at issue is the adverse action visited

upon Plaintiff for exercising his First Amendment

rights, meaning Metro’s action (either directly by way

of conspiracy17 or indirectly by applying pressure to

Baker) resulting in Plaintiff’s’ termination for refusing to

buckle to pressure regarding the upcoming vote.18 So the

16. Reasonably enough, Metro Defendants did not address

whether the amended complaint sets forth a basis for municipal

liability based on the third and fourth options for such liability as

described in Barrow. The amended complaint does not suggest, and

Plaintiff does not otherwise contend, that Plaintiff’s allegations

against Metro Defendants rest on the third or fourth grounds.

17. The mention here of conspiracy is not intended as a

comment on the applicability, if any, of Monell’s requirements when

a municipality’s liability under § 1983 is pursued via a theory of civilconspiracy liability. See infra note 24.

18. Notably, the violation is not creating or aggressively

pursuing an Anti-Tax Referendum Policy or putting pressure

on Plaintiff to change his vote. To the extent that any party has

characterized such conduct as constituting an adverse action

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theory has to be that (i) at least one person (associated

with Metro) communicated with Baker in a manner that

resulted in Baker terminating Plaintiff; and (ii) in so doing,

such person was exercising “authority [under state or

local law] to establish municipal policy with respect to the

action ordered,” and such authority is “final.” Pembaur,

475 U.S. at 481.

“The Sixth Circuit has held that municipal liability

may only be imposed [based on the theory that that an

official with final decision making authority ratified illegal

actions] where the city official was ‘acting in a policymaking

capacity’ at the time the alleged constitutional violation

occurred and whose conduct could be characterized as

‘exercising a power to set policy.’” Stone v. City of Grand

Junction, 765 F. Supp. 2d 1060, 1074 (W.D. Tenn. 2011)

(quoting Wooten v. Logan, 92 Fed. Appx. 143, 146–47 (6th

Cir. 2004)). The Sixth Circuit in Jorg explained in detail

what makes a person a policymaker for the purposes of

municipal liability:

Whether a municipal official is a policymaker

depends on the conduct in question; the same

official may be a policymaker in some situations

but not in others. Pembaur, 475 U.S. at 483, 106

S. Ct. 1292. “[N]ot every decision by municipal

officers automatically subjects the municipality

to § 1983 liability.” Id. at 481, 106 S. Ct. 1292.

Otherwise, the municipal liability standard

against Plaintiff, the Court does not find that it rises to the level of

an adverse action under the standards applicable to public officials.

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would be nothing more than a respondeat

superior standard—a move which has been

expressly forbidden by the Supreme Court.

Id. Accordingly, an official is a “policymaker”

only when state or local law vests in him the

“authority to establish municipal policy with

respect to the action ordered,” and such

authority is “final.” Id. See also Feliciano v. City

of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993).

“[T]he word ‘policy’ generally implies a course

of action consciously chosen from among various

alternatives.” Oklahoma City v. Tuttle, 471

U.S. 808, 823, 105 S. Ct. 2427, 85 L.Ed.2d 791

(1985). Thus, in order for a particular decision

by a municipal official to be a “policy” decision,

state or local law must give the official the

authority to choose from various alternatives

when making that particular decision.

Jorg, 45 F. App’x at 146–147.

The allegations in the amended complaint—even

considering those made only on information and belief—

are devoid of any factual matter to plausibly suggest

that any such policymaker was responsible for Plaintiff’s

termination. Even accepting Plaintiff’s argument that the

Anti-Tax Referendum Policy is a “policy” as contemplated

under the municipal liability case law, Plaintiff failed to

identify a policymaker upon whom to center his claim.

However, the Anti-Referendum Policy actually is not

the relevant policy; the policy at issue is the “policy” of

communicating with Baker in such a way as to pressure

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Baker into terminating Plaintiff’s employment. To begin

with, the amended complaint is ambiguous as to who

such a person may have been. It does not squarely allege

that Mendes was such a final policymaker, even if it does

suggest that Mendes was someone who (actual under color

of law if not actual legal authority) contributed to causing

Plaintiff’s firing and supported the Anti-Referendum

Policy. But supporting a policy and setting that policy are

not equivalent. And the Court does not deem it plausible

that a single member of Metro’s City Council (which,

the Court judicially notices, included thirty-nine other

members) had such authority or even would have been

cloaked with such authority; there is no reason whatsoever

that a decision of this kind—to get an employee of a private

employer fired in pursuit of Metro’s political goals—would

have been actually or even ostensibly outsourced to a

single council member, let alone outsourced in a manner

that reflected that Mendes’s decision to do this was final.

The amended complaint leaves open the possibility

that some unnamed person (other than Mendes) was a

final policymaker in this regard. It is sheer speculation

to say that in contacting Baker to cause the termination

of Plaintiff, such caller amounted to a final policymaker

without knowing who this person was, what his or her

association with (or position at) Metro was, what authority

he or she may actually or even ostensibly had based on

the or association or position or anything else. Even if

this background information was deemed to be a fact

particularly within Defendants’ knowledge so as to render

it potentially appropriate to be pled on information and

belief, in the Court’s view it is ultimate not appropriately

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pled on information and belief because it implausible that

state or local law gave the caller “the authority to choose

from various alternatives when making that particular

decision,” inasmuch as the Court has been provided no

reason (i) to believe that state or local law would give

anyone the authority to choose between pressuring a

private employer to fire its employee and not pressuring a

private employer to fire its employee; or (ii) to believe that

if there is such a person, it was the person who actually

contacted Baker to get Plaintiff terminated; or, relatedly,

(iii) that the caller was a final decision-maker with respect

to the decision to cause Baker to terminate Plaintiff,

rather than merely someone of some influence at Metro.

The Court therefore agrees that Plaintiff has failed to

state a claim of municipal liability for First Amendment

retaliation against Metro and Mendes in his official

capacity. Plaintiff’s First Amendment-retaliation claim

against Metro and Mendes in his official capacity will be

dismissed.19

The Court now turns to whether the amended

complaint states a claim of First Amendment retaliation

against Mendes in his individual capacity.

19. In light of this finding, Court need not address Metro

Defendants’ argument that Mendes is entitled to legislative

immunity as to the claims pled against him in his official capacity or

that the official-capacity claim against Mendes should be dismissed

at this early juncture as redundant of the claim against Metro.

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Appendix C

C.

The Amended Complaint States a Claim

for First Amendment Retaliation against

Mendes in his Individual Capacity

i.

Applicable Test

Before the Court can determine whether Plaintiff has

stated a First Amendment-retaliation claim, the Court

must first determine what test applies when the conduct

prompting the alleged retaliation was undertaken by an

appointed official. Generally, to state a claim for First

Amendment retaliation, a plaintiff must plead that

(1) he engaged in constitutionally protected

speech or conduct; (2) an adverse action was

taken against him that would deter a person of

ordinary firmness from continuing to engage

in that conduct; [and] (3) there is a causal

connection between elements one and two—

that is, the adverse action was motivated at

least in part by his protected conduct.

Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017).

Metro Defendants argue that the Court should

eschew the above-stated three-prong test and should

instead take the approach adopted by some out-of-circuit

district courts. (Doc. No. 40 at 17–18). Specifically, Metro

Defendants urge the Court to follow the rule set forth in

King v. City of New York, 20-CV-8283, 581 F. Supp. 3d 559,

2022 WL 138009, at *6 (S.D.N.Y. 2022), which requires an

elected official pursuing a First Amendment-retaliation

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Appendix C

claim to demonstrate that the retaliation “strip[ped] them

of their office, or their fundamental ability to function in

that office.” King is distinguishable from the present case,

however, because there the plaintiff was an elected rather

than an appointed official like Plaintiff. Whether this

distinction is sufficiently material by itself to disregard

King in the present case is something the Court need not

decide, however. More to the point, contrary to Metro

Defendants’ suggestion, the Court need not turn to out-ofcircuit cases specific to elected officials to determine the

applicable test for Plaintiff’s claim when the Sixth Circuit

has analyzed First Amendment claims similar to the one

at issue in the instant motions. These cases also involve

elected officials, but the Sixth Circuit characterized them

as “public officials,” making their reasoning applicable to

both public and elected officials alike. Accordingly, the

Court need not adopt a facially narrower test from out-ofcircuit when it can instead rely on Sixth Circuit precedent.

As far as the Court is aware, the Sixth Circuit has on

three occasions confronted First Amendment-retaliation

claims of public officials for conduct perpetuated at least

in part by other public officials. See Zilich v. Longo, 34

F.3d 359 (6th Cir. 1994); Mattox v. City of Forest Park, 183

F.3d 515 (6th Cir. 1999); Perkins v. Township of Clayton,

411 F. App’x 810 (6th Cir. 2011). 20 In each of these cases,

20. Although these cases all were on appeal from a ruling

on summary judgment, the Court finds no reason to stray from

the test applied by the Sixth Circuit in these cases. Indeed, the

procedural posture of the cases did not affect the test that the

Sixth Circuit employed, and the test is perfectly adaptable to the

motion-to-dismiss context.

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Appendix C

the plaintiff-elected official claimed that he or she was

subject to adverse actions in response to his or her conduct

undertaken as an elected official.

In Mattox and Perkins, respectively, the Sixth Circuit

applied the three-prong test set forth above to determine

whether the First Amendment-retaliation claim of the

plaintiff, in each case an elected official, could survive

summary judgment. In applying the three-prong test

in these cases, however, the Sixth Circuit departed

slightly from the traditional standards applied to First

Amendment-retaliation claims of private individuals.

As will be explained in greater detail below, the Sixth

Circuit’s reasoning focused on the second prong of the

test. As to the second prong, the Sixth Circuit emphasized

that the test is context-specific and explained that “public

officials may need to have a thicker skin than the ordinary

citizen when it comes to attacks on their views.” Mattox,

183 F.3d at 522.

In light of the Sixth Circuit’s approach to First

Amendment-retaliation claims of public officials, the Court

is satisfied that the three-prong test applies to Plaintiff’s

First Amendment-retaliation claim and that, contrary to

Metro Defendants’ assertion, it need not resort to out-ofcircuit cases to find the applicable standard. As done so

by the Sixth Circuit, the Court will focus on the second

prong given that Plaintiff’s conduct against which he was

allegedly retaliated was undertaken in his capacity as an

elected official.

As for the Sixth Circuit’s analysis in Zilich, although

the court did not provide a clear framework for its analysis

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Appendix C

(i.e., such as the three-prong test), nothing in the court’s

analysis contradicts its approaches taken in Mattox and

Perkins. Furthermore, as will be explained in detail

below, in Zilich, the Sixth Circuit focused on issues similar

to those upon which it focused in Mattox and Perkins,

despite not using the neatly delineated prongs that were

employed in the other two cases. Therefore, by following

the analytical framework provided in Mattox and Perkins,

the Court is not taking an approach that conflicts with the

Sixth Circuit’s analysis in Zilich.

As for the issues in dispute under the three-prong

test in this case, Metro Defendants appear to agree that

the amended complaint alleges that Plaintiff was engaged

in constitutionally protected speech or activity when

he sought to cast his vote as an elected official. Metro

Defendants also appear to agree that if the amended

complaint alleges an adverse action sufficient to meet

the second prong, that the third prong (causation) would

also be met. So with respect to the three-pronged test,

Metro Defendants put all of their metaphorical eggs in one

metaphorical basket, relying exclusively on the argument

that the second prong is not satisfied because the amended

complaint fails to alleged that Plaintiff was subjected

to an adverse action that would deter a person (or more

accurately, an elected official) of ordinary firmness from

continuing to engage in that conduct (i.e., casting his

vote). And because Baker does not make any arguments

as to the three-prongs beyond what is offered by Metro

Defendants, Baker has also put all of its eggs in that same

single basket. Therefore, the Court addresses only the

second-prong of the three-prong test.

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Appendix C

ii.

Relevant Sixth Circuit Case law:

Zilich, Mattox and Perkins

Zi

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