Respondents Brief — James A. DeLanis, Petitioner v. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, et al.

No. 26-21

In the

Supreme Court of the United States

JAMES A. DELANIS,

Petitioner,

v.

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

BRIEF IN OPPOSITION

Robert E. Boston

Counsel of Record

Michael A. Cottone

Holland & Knight LLP

150 Third Avenue South, Suite 2800

Nashville, TN 37201

(615) 244-6380

Bob.Boston@hklaw.com

Counsel for Respondent Baker, Donelson,

Bearman, Caldwell & Berkowitz, PC

395157

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the Sixth Circuit correctly held a law firm

hired as outside counsel by a local government is entitled

to assert qualified immunity to the same extent as a lawyer

directly employed by a local government.

2. Whether the Sixth Circuit correctly held Petitioner

failed to meet his burden to show his “clearly established

rights” had been violated when he could not point to any

precedent to put a private law firm on notice it would

be liable for First Amendment retaliation by firing an

employee when the firm’s government client threatens to

take its business elsewhere if the employee continues to

act adversely to the government.

3. In the alternative to the previous issue, whether

Petitioner failed to meet his burden to show his “clearly

established rights” had been violated when he could not

point to any precedent where an attorney–employee has

brought a successful First Amendment retaliation claim

for being terminated by a law firm after creating and

refusing to address a conflict of interest with a firm client.

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 19.6, Respondent Baker,

Donelson, Bearman, Caldwell & Berkowitz, PC (“Baker

Donelson”) states there is no parent or publicly held

company owning 10% or more of Baker Donelson’s stock.

Baker Donelson does not have a stock ticker symbol.

iii

TABLE OF CONTENTS

Page

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

CORPORATE DISCLOSURE STATEMENT . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

I.

Factual Background . . . . . . . . . . . . . . . . . . . . . . . 2

A. At all relevant times, Metro was

Baker Donelson’s client and, by

imputation, Petitioner’s own client . . . . . . . . 2

B. Petitioner acted in direct conflict with

Metro’s interests . . . . . . . . . . . . . . . . . . . . . . . 3

C. The Professional Rules of Conduct

required Baker Donelson to address

the conflict Petitioner created . . . . . . . . . . . .6

II. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR DENYING THE PETITION . . . . . 10

I.

The Sixth Circuit faithfully applied this

Court’s precedent and correctly granted

Baker Donelson qualified immunity . . . . . . . . . 11

iv

Table of Contents

Page

A. The Sixth Circuit correctly held Baker

Donelson is entitled to assert qualified

immunity under the circumstances . . . . . . 11

B. The Sixth Circuit correctly held Baker

Donelson did not violate Petitioner’s

“clearly established” rights . . . . . . . . . . . . . 17

II. Petitioner overstates the potential impact

of the Sixth Circuit’s decision . . . . . . . . . . . . . . . 19

III. The Sixth Circuit’s decision does not

create a circuit split . . . . . . . . . . . . . . . . . . . . . . . 21

IV. This case is not an appropriate vehicle

for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

v

TABLE OF CITED AUTHORITIES

Page

Cases

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Burrell v. Board of Trustees

of Georgia Military College,

970 F.2d 785 (11th Cir. 1992) . . . . . . . . . . . . . . . . 25, 26

Cap. Associated Indus., Inc. v. Stein,

922 F.3d 198 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 31

Cullinan v. Abramson,

128 F.3d 301 (6th Cir. 1997), cert. denied,

523 U.S. 1094 (1998) . . . . . . . . . . . . 8, 10, 12-14, 26, 28

Douglas v. DynMcDermott

Petroleum Operations Co.,

144 F.3d 364 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 31

Felix de Santana v. Velez,

956 F.2d 16 (1st Cir. 1992) . . . . . . . . . . . . . . . . . . 23-26

Filarsky v. Delia,

566 U.S. 377 (2012) . . . . . . 1, 8, 10-17, 19, 21-23, 26-30

Gregg v. Ham,

678 F.3d 333 (4th Cir. 2012) . . . . . . . . . . . . . . 22-24, 26

Harlow v. Fitzgerald,

457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vi

Cited Authorities

Page

Hope v. Pelzer,

536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re Palmisano,

70 F.3d 483 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 31

In re Reines,

771 F.3d 1326 (Fed. Cir. 2014) . . . . . . . . . . . . . . . . . . 31

Kisela v. Hughes,

584 U.S. 100 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Lane v. Franks,

573 U.S. 228 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 16, 27

Mitchell v. Forsyth,

472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Mullenix v. Luna,

577 U.S. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Plumhoff v. Rickard,

572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Richardson v. McKnight,

521 U.S. 399 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 12-14

vii

Cited Authorities

Page

Rodriques v. Furtado

950 F.2d 805 (1st Cir. 1991) . . . . . . . . . . . . . . . . . 24-26

Sexton v. Cernuto,

18 F.4th 177 (6th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 9-10

Sherman v. Four County Counseling Center,

987 F.2d 397 (7th Cir. 1993) . . . . . . . . . . . . . . . . . 26, 27

Wyatt v. Cole,

504 U.S. 158 (1992) . . . . . . . . . . . . . . . . . . . . . 12, 13, 15

Ziglar v. Abbasi,

582 U.S. 120 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Statutes & Other Authorities

42 U.S.C. § 1983 . . . . 1, 2, 7, 8, 12-17, 20, 22, 26-28, 30, 31

Tenn. S.Ct. R. 8, RPC 1.7 . . . . . . . . . . . . . . . . . 6, 7, 20, 30

Tenn. S.Ct. R. 8, RPC 1.10, cmt. [2]. . . . . . . . . 2, 6, 20, 30

1

STATEMENT OF THE CASE

This Court has long held “immunity under § 1983

should not vary depending on whether an individual

working for the government does so as a full-time

employee, or on some other basis.” Filarsky v. Delia,

566 U.S. 377, 389 (2012). Petitioner asks this Court to do

precisely what Filarsky forbids: strip qualified immunity

from a law firm serving as outside counsel to a local

government solely because of its status as a private entity.

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

(“Baker Donelson”) terminated Petitioner—one of its

attorneys who also chaired the Davidson County Election

Commission (the “Commission”)—when Petitioner’s

conduct on the Commission repeatedly conflicted with the

interests of the firm’s government client, the Metropolitan

Government of Nashville and Davidson County (“Metro”).

Petitioner sued Baker Donelson as a state actor under

42 U.S.C. § 1983, alleging First Amendment retaliation.

The Sixth Circuit reversed the district court’s denial of

qualified immunity, correctly holding outside counsel

engaged by a local government may invoke qualified

immunity, and Petitioner pointed to no precedent putting

Baker Donelson on notice the First Amendment prohibits

a law firm from terminating one of its own attorneys when

the attorney acts in conflict with the firm’s government

client whose demands (from the government client) trigger

the termination decision.

This case does not warrant certiorari. The Sixth

Circuit expressly confined its holding to the unique factual

record before it, stating: “we hold only that, on this record,

Baker Donelson is eligible to invoke qualified immunity.

2

That is all.” The court declined to announce any blanket

rule, and its analysis turned entirely on Petitioner’s own

pleaded allegations—the firm served as Metro’s outside

counsel, acted at Metro’s direction, and fired him “pursuant

to” an official government policy. Petitioner strategically

pleaded those facts in an attempt to shoehorn Baker

Donelson into being a “state actor” under § 1983. Those

same allegations establish Baker Donelson is entitled to

assert qualified immunity, and they foreclose Petitioner’s

current argument that the firm pursued “purely private

ends” in terminating his employment.

I.

Factual Background.

A.

At all relevant times, Metro was Baker

Donelson’s client a nd , by imput ation ,

Petitioner’s own client.

Baker Donelson is a law firm with an office in Nashville,

Tennessee. (App. F to Pet’r’s Br., at App.119a–20a (¶¶ 4,

8).) During all times relevant to this action, Metro was

a client of Baker Donelson. (Id. at App.124a (¶¶ 26–27).)

Under Tennessee’s Rules of Professional Conduct, Metro

was also the client of every attorney at the firm, including

Petitioner, by imputation. See Tenn. S.Ct. R. 8, RPC 1.10,

cmt. [2].

Baker Donelson formerly employed Petitioner as

an attorney. (App.120a (¶¶ 7–8).) While employed by

Baker Donelson, Petitioner concurrently served as a

state-appointed member of the Commission, which

administers elections in Davidson County, Tennessee.

(Id. at App.120a–21a, 124a (¶¶ 7–9, 22–24).) Petitioner

continues to serve on the Commission to this day. (Id. at

App.124a, 148a (¶¶ 23–24, 121).)

3

B. Petitioner acted in direct conflict with Metro’s

interests.

During Petitioner’s tenure, the Commission took

positions that were, at times, contrary to Metro’s interests.

(Id. at App.122a (¶ 13).) In 2020, Metro approved an

increase in property taxes. (Id. at App.125a (¶ 32).) In

opposition, a group of citizens proposed a referendum to

limit Metro’s authority to raise taxes by more than five

percent without voter approval. (Id. at App.126a (¶ 35).)

Tasked with determining whether that referendum could

be placed on the ballot, the Commission filed a declaratory

judgment action against Metro in the Davidson County

Chancery Court. (Id. at App.127a (¶ 40).) The Chancery

Court ruled the referendum was defective and could not

proceed. (Id. at App.127a–28a (¶ 42).)

Undeterred, a group of citizens proposed a second

referendum that would have stifled Metro’s ability to

raise certain taxes. (Id. at App.127a–28a (¶¶ 42–43).) On

March 26, 2021, Metro filed a resolution providing if the

second referendum were approved and placed on a ballot

before the public, additional amendments would also be

placed on such ballot. (Id. at App.128a–29a (¶ 44).) If

one of the amendments was adopted, referenda like the

second referendum would be considerably restricted. (Id.

at App.129a (¶ 45).) On May 10, 2021, the Commission

voted to place the second referendum on the ballot. (Id.

at App.130a (¶ 48).) Petitioner cast the deciding vote. (See

id. at App.138a, 141a (¶¶ 82, 96).)

In May 2021, Metro filed suit against the Commission

in Davidson County Chancery Court, challenging the

second referendum’s constitutionality. (Id. at App.130a–

31a (¶¶ 50 – 52).) Thus, Metro and the Commission

4

became directly adverse parties in active litigation, while

Petitioner simultaneously served as a Baker Donelson

attorney (and therefore, by imputation, counsel to Metro)

and as Chairperson of the Commission directing the

litigation against Metro’s interests. See, e.g., Letter from

James DeLanis to Hon. Chancellor Ellen Hobbs Lyle1

(Apr. 13, 2021) (filed in 4 Good Gov’t v. Metro. Gov’t of

Nashville & Davidson Cnty., No. 21-0300-III (Davidson

County Ch. Ct. Apr. 16, 2021) as Ex. A to Pl.’s Expedited

Mot. to Continue Hr’g).

On May 25, 2021, John Hicks, a Baker Donelson

attorney who served as one of Baker Donelson’s General

Counsel, emailed Petitioner, advising Petitioner’s positions

on the Commission were “impact[ing]” Baker Donelson’s

“representation of Metro.” (Id. at App.133a (¶ 59).) Hicks

and Petitioner met on May 26, 2021, at which time Hicks

informed him a conflict of interest existed by virtue of

Baker Donelson’s representation of Metro and Petitioner’s

actions on the Commission adverse to Metro. (Id. at

App.133a–34a (¶¶ 60–63, 65).) According to Petitioner,

Hicks also stated Metro and the Metro School Board,

“two major clients of the firm,” had been threatening

to “pull their business” from Baker Donelson because

of Petitioner’s Commission activities. (Id. at App.133a

(¶¶ 62–63).) While Petitioner alleges Hicks, at one point,

said he had determined no conflict of interest existed (App.

A to Pet’r’s Br., at App.5a; see also App. F to Pet’r’s Br., at

1.  As reflected in the Davidson County Chancery Court

docket, on April 13, 2021, Petitioner sent a letter to Chancellor

Lyle of the Davidson County Chancery Court on behalf of the

Commission, signing the letter as “Chair, Davidson County

Election Commission.” He sent the letter on Baker Donelson

letterhead.

5

App.135a (¶ 72)), the conflict did not end. The Commission

voted to place the second referendum on the ballot (App.

F to Pet’r’s Br., at App.130a (¶ 48)), Metro was directly

adverse to the Commission in active litigation (id. at App.

130a–31a (¶¶ 50–52)), and Petitioner continued to lead the

Commission as Chairperson in direct opposition to his

own client’s interests in that active litigation.

Eventually, the Chancery Court ruled the second

referendum was defective and ordered it not to be placed

on the ballot. (Id. at App.136a (¶ 74).) Two days after that

decision, and a day before a Commission meeting at which

the Commission planned to discuss whether to appeal

that ruling, Hicks and Petitioner spoke by telephone and,

according to Petitioner, Hicks “asked” him to abstain and

not to vote on the appeal. (Id. at App.138a (¶ 82).) In other

words, consistent with the ethical standards governing

lawyers, Baker Donelson requested Petitioner not to

participate in a decision directly adverse to a firm client.

Petitioner refused to commit to that course of action.

(Id. at App.138a (¶ 83).) Accordingly, before the Commission

meeting concerning the potential appeal, Hicks emailed

Petitioner and informed him his employment was being

terminated. (Id. at App.142a (¶ 99).) Hicks stated he

had “no choice” but to end Petitioner’s employment,

emphasizing the conflict Petitioner had created: “[A]s a

firm lawyer, Metro Government and the related entities

are your clients, as well as the firm’s clients.” (Id. at

App.144a (¶¶ 106–08).)

6

C.

The Professional Rules of Conduct required

Baker Donelson to address the conf lict

Petitioner created.

Under the circumstances, Baker Donelson had no

choice but to act as it did. Petitioner’s ongoing, active

adversity to Metro, Baker Donelson’s client, violated

Rule 1.7, and his refusal to resolve the conflict left Baker

Donelson with no option but to terminate him.

Tennessee attorneys, including Petitioner, are

governed by the Rules of Professional Conduct (the

“Professional Rules”). Rule 1.10 provides a firm of lawyers

is essentially one lawyer for purposes of loyalty rules,

and each lawyer is vicariously bound by the obligation

of loyalty owed by each lawyer with whom the lawyer is

associated. Tenn. S.Ct. R. 8, RPC 1.10, cmt. [2]. Rule 1.7

prohibits a lawyer from representing a client where a

concurrent conflict of interest exists, including where the

representation of one client will be “directly adverse to

another client” or where “there is a significant risk that

the representation of one or more clients will be materially

limited by . . . a personal interest of the lawyer.” Tenn.

S.Ct. R. 8, RPC 1.7 (emphasis added).

Petitioner’s own allegations confirm the conflict.

He admits Metro was Baker Donelson’s client during

all relevant times. (App. F to Pet’r’s Br., at App.124a

(¶ 27).) He admits Metro opposed the referendum at

issue. (See, e.g., id. at App.130a–31a (¶¶ 49–52).) And he

admits he took positions on the Commission adverse to

Metro’s interests while employed at Baker Donelson.

(Id. at App.124a, 126a–28a, 130a–31a, 146a (¶¶ 27, 38,

40–43, 48–52, 113).) Indeed, Metro and the Commission

engaged in active litigation against one another for

7

multiple months, rendering them directly adverse. (Id.

at App.127a–28a, 130a (¶¶ 40–43, 50–51).) Petitioner’s

personal interests (Rule 1.7(a)(2)) caused a conflict of

interest with Metro, Baker Donelson’s client, which the

firm was required to address to satisfy its own ethical

requirements. (Id. at App.134a, 144a–45a (¶¶ 65, 108).) In

other words, Baker Donelson terminated Petitioner

because the conflict he created, if left unaddressed, would

have caused both him and Baker Donelson to violate the

Rules of Professional Conduct. (Id.)2

II. Procedural History.

Petitioner filed this action against Baker Donelson,

Metro, and an individual Metro councilmember, alleging,

among other claims, Baker Donelson violated his First

Amendment rights under 42 U.S.C. § 1983 by terminating

him in retaliation for his activities on the Commission.

(Id. at App.150a– 54a.) Critically, in an attempt to

establish Baker Donelson as a “state actor” subject to

§ 1983 liability, Petitioner specifically alleged Baker

2.  Citing the dissent’s characterization of oral argument

below, amici curiae rest their argument on the premise Baker

Donelson “conceded” it terminated Petitioner “solely for its own

private business interests.” (Amici Br. at 4, 12 (citing App. A

to Pet’r’s Br. at 39a (Clay, J., dissenting)).) To be clear, Baker

Donelson never made such concession. At oral argument, Baker

Donelson’s counsel was questioned on whether the firm acted

based on ethical or business considerations and stated it could

be both, and reaffirmed Baker Donelson terminated Petitioner’s

employment for ethical reasons. (Oral Argument of Baker

Donelson at 41:35–42:32, DeLanis v. Metro. Gov’t of Nashville

& Davidson Cnty. (Nos. 23-5939/5948), https://www.opn.ca6.

uscourts.gov/internet/court_audio/audio/10-23-2025%20-%20

Thursday/23-5948%20James%20DeLanis%20v%20Metro%20

Govt%20of%20Nashville.mp3.

8

Donelson acted at Metro’s direction and “pursuant to”

Metro’s “demands and requests” and an alleged official

government policy he coined the “Anti-Referendum

Policy.” (Id. at App.146a, 163a–64a (¶¶ 114, 165, 170–71).)

Petitioner further alleged Baker Donelson’s conduct was

“so intertwined” with Metro’s policy the decision to fire

him “should be attributed” to Metro. (Id. at App.163a–64a

(¶¶ 165, 170–71).)

Baker Donelson moved to dismiss Petitioner’s § 1983

claims against it, pointing out, to the extent the firm could

be considered a “state actor” based on Petitioner’s own

allegations, it was entitled to qualified immunity as outside

legal counsel to Metro under precedent from this Court

and the Sixth Circuit, specifically Filarsky v. Delia, 566

U.S. 377 (2012) and Cullinan v. Abramson, 128 F.3d 301

(6th Cir. 1997), cert. denied, 523 U.S. 1094 (1998). (App. C

to Pet’r’s Br., at App.100a; see also Dist.Ct.Dkt. 43 at 1–2

(PageID # 461–62); Dist.Ct.Dkt. 44 at 2 (PageID # 465).)

The district court denied Baker Donelson’s motion—but

failed to address Filarsky or Cullinan. (App. C to Pet’r’s

Br., at App.43a–111a.)

After Baker Donelson immediately appealed pursuant

to Mitchell v. Forsyth, 472 U.S. 511 (1985), the majority

of the Sixth Circuit’s merits panel reversed the denial of

qualified immunity as to Baker Donelson. (App. A to Pet’r’s

Br., at App.8a–26a; App. B to Pet’r’s Br., at App.42a.)

Applying Filarsky and Cullinan, the panel recognized

“[w]hen private attorneys and law firms provide legal

services to a government body, they also are eligible for

qualified immunity in connection with that work.” (App.

A to Pet’r’s Br., at App.9a (citing Filarsky, 566 U.S. at

393–94; Cullinan, 128 F.3d at 310).) Furthermore, Judge

Sutton reasoned Petitioner’s own complaint established

9

Baker Donelson’s eligibility for qualified immunity,

as Petitioner’s allegations confirmed Baker Donelson

“served as outside counsel for Nashville, that Nashville

wished to punish [Petitioner]’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.” (Id. at App.17a–18a.)

Applying the familiar qualified immunity standard, the

Sixth Circuit held Petitioner failed to demonstrate Baker

Donelson violated his clearly established First Amendment

rights. Notably, Petitioner himself acknowledged this case

presents “novel factual circumstances.” (App. A to Pet’r’s

Br., at App.25a.) The panel agreed, noting “[t]he allegations

against Baker Donelson present a unique situation not

addressed by our cases to date,” and Baker Donelson “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.” (Id. at App.24a.) Judge Sutton recognized

none of the cases Petitioner cited “involves law firms or

companies responding to government threats to their

client base,” “deals with a for-profit entity responding

to client pressure,” or “addresses alleged constitutional

violations by a private employer.” (Id. at App.24a–25a.)

As the panel concluded, the “unprecedented situation”

surrounding Petitioner’s allegations prevented Baker

Donelson from having fair notice its conduct could give rise

to First Amendment retaliation liability. (Id. at App.25a. 3)

3.  The panel further rejected DeLanis’s attempts to invoke

Hope v. Pelzer, 536 U.S. 730 (2002), and Sexton v. Cernuto, 18 F.4th

10

Having decided the case on these grounds, the Sixth

Circuit did not reach the implications of the Rules of

Professional Conduct on Petitioner’s claims against Baker

Donelson.

The Sixth Circuit denied Petitioner’s request for

rehearing en banc (App. E to Pet’r’s Br., at App.116a–17a),

and Petitioner’s request for a writ of certiorari followed.

REASONS FOR DENYING THE PETITION

This case does not warrant this Court’s review. The

Sixth Circuit faithfully applied Filarsky v. Delia and its

own longstanding precedent in Cullinan v. Abramson to

hold Baker Donelson, as outside counsel engaged by a local

government, was entitled to assert qualified immunity

under these allegations, and Petitioner failed to show his

clearly established rights were violated.

Ultimately, Petitioner’s own allegations defeat him.

He specifically pleaded Baker Donelson acted at Metro’s

direction and pursuant to an official government policy, yet

he now contends the firm pursued “purely private ends.”

These positions are irreconcilable, and Judge Sutton was

right to say Petitioner’s argument “collides with the words

of his complaint.” (App. A to Pet’r’s Br., at App.15a.) If

Baker Donelson is a state actor as alleged, the firm is

entitled to a qualified immunity defense.

177 (6th Cir. 2021), noting that “[t]he facts of both cases far outstrip

what DeLanis suffered here” and that “[n]either 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.” (App. A to Pet’r’s Br., at App.25a–27a.)

11

No circuit split exists. The handful of decisions

Petitioner cites involve materially different facts—private

parties with no formal government relationship acting

solely for personal ends—and are readily harmonized

with the decision below. Moreover, the Sixth Circuit

expressly limited its holding to the unique facts of this

case, declining to announce any blanket rule.

Contrary to Petitioner’s characterization of the Sixth

Circuit’s decision as undermining Filarsky, to reverse

here would require this Court to substantially curtail

Filarsky and depart from its core insight that private

parties engaged by the government should be entitled

to qualified immunity to the same extent as full-time

employees. The petition should be denied.

I.

The Sixth Circuit faithfully applied this Court’s

precedent and correctly granted Baker Donelson

qualified immunity.

A.

The Sixth Circuit correctly held Baker

Donelson is entitled to assert qualified

immunity under the circumstances.

Petitioner claims the Sixth Circuit’s decision in this

case somehow “undermines” this Court’s decision in

Filarsky by reaching the exact same conclusion. Filarsky

stands for the proposition that private attorneys engaged

by local governments are entitled to assert qualified

immunity just as if they were employed directly by the

government. The Sixth Circuit did nothing more than

apply this holding and the reasoning supporting it and

allow Baker Donelson to assert qualified immunity. In

contrast, Petitioner advocates for a far more limited scope

12

of qualified immunity than this Court contemplated in

Filarsky.

Starting from the beginning, this Court held private

individuals facing Section 1983 claims for “invoking

state replevin, garnishment, and attachment statutes”

were not entitled to assert qualified immunity in Wyatt

v. Cole, 504 U.S. 158, 168–69 (1992). Likewise, this Court

held private prison guards were not entitled to assert

qualified immunity in response to a Section 1983 claim

in Richardson v. McKnight, 521 U.S. 399, 401–02 (1997).

In reaching those conclusions, this Court—consistent

with its overall Section 1983 jurisprudence—analyzed

whether immunity was available for similarly situated

defendants at common law. See Richardson, 521 U.S. at

403–07; Wyatt, 504 U.S. at 163–67. In Richardson, this

Court explained, while there was no “general immunity

that might have applied to private individuals working

for profit” at common law, “the 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.” Richardson, 521 U.S. at 407 (emphasis in

original).

Shortly thereafter, the Sixth Circuit decided Cullinan

v. Abramson, 128 F.3d 301, 310–11 (6th Cir. 1997), cert.

denied, 523 U.S. 1094 (1998). In Cullinan, the court held

qualified immunity applies to lawyers and law firms serving

as outside counsel for a city, finding “[t]he rationales for

qualified immunity apply to these lawyers and their firm

in about the same way they apply to” attorneys employed

directly by the government. Id. at 310. In reaching this

conclusion, the Sixth Circuit “saw no good reason to hold

the city’s in-house counsel eligible for qualified immunity

13

and not the city’s outside counsel.” Id. Moreover, the court

relied on Richardson’s determination that, at common

law, immunity existed for private lawyers acting “at the

behest of the sovereign.” Id. (quoting Richardson, 521

U.S. at 407).

This Court subsequently considered the same issue in

Filarsky. In the midst of an ongoing debate on whether

private entities could ever assert qualified immunity,

the Ninth Circuit explicitly rejected Cullinan and found

a lawyer could not assert qualified immunity “because

he was a private attorney and not a City employee.”

Filarsky, 566 U.S. at 383. This Court reviewed the history

of private individuals working on behalf of the public in

the legal system—for example, private attorneys acting

as prosecutors, attorneys general maintaining private

law practices, justices of the peace who did not receive

government salaries and were instead paid by the parties

before them, privately employed patrol personnel appointed

as “special policemen,” and private individuals enlisted in

the “posse comitatus” by sheriffs. Id. at 384–89. With

the lines between public service and private employment

blurred, “the 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. Because

of this common-law history, this Court determined

“immunity under § 1983 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.

This Court also explained how Filarsky’s holding was

consistent with Wyatt and Richardson. Wyatt presented

a far different situation because it concerned “individuals

14

who had no connection to government and pursued purely

private ends.” Filarsky, 566 U.S. at 392. And Richardson

was a “narrow” decision limited to “the particular

circumstances of that case—‘a private firm, systematically

organized to assume a major lengthy administrative task

(managing an institution) with limited direct supervision

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

potentially in competition with other firms.’” Id. at 393.

Ultimately, this Court found the outside lawyer engaged

by a local government should not be any less entitled to

qualified immunity than a lawyer employed directly by a

city. See id. at 393–94.

In a straightfor ward application of Filarsky’s

principles, the Sixth Circuit correctly held Baker

Donelson was entitled to assert qualified immunity in

response to Petitioner’s Section 1983 claims. Addressing

Petitioner’s argument Baker Donelson was not entitled

to assert qualified immunity because “the law firm is a

private entity,” the court explained, following Cullinan,

Filarsky “removed the last vestige of doubt” on this

question by explicitly extending qualified immunity to

outside attorneys hired by local governments. (App. A to

Pet’r’s Br., at App.14a.) As Judge Sutton put it, Filarsky

stands for “the common-sense principle that private actors

generally receive the bitter and the sweet in defending

constitutional torts.” (Id.) Simply put, as this Court

explicitly held in Filarsky, qualified immunity “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 App.15a (quoting Filarsky, 566

U.S. at 389).) Baker Donelson’s status as outside counsel

for Metro does not strip it of the ability to claim qualified

immunity under this Court’s jurisprudence, and the Sixth

Circuit was correct to reach this conclusion.

15

Petitioner argues the Sixth Circuit erred because

Baker Donelson was “pursuing private interests” when it

fired him. But Petitioner is wrong on at least two counts.

First, unlike Wyatt, this is not a case where Baker

Donelson “had no connection to government and pursued

purely private ends.” Filarsky, 566 U.S. at 392. Instead,

Baker Donelson was Metro’s outside counsel during all

relevant periods, and Petitioner specifically alleged the

firm acted in concert with Metro and in furtherance of a

specific Metro policy regarding preserving tax revenues

he termed the “Anti-Referendum Policy.” (App. F to

Pet’r’s Br., at App.124a, 146a, 163a–64a (¶¶ 27, 114, 165,

170–71).) That is a far cry from a case like Wyatt, where

the defendants have no relationship with the government

at all.

Second, as the Sixth Circuit recognized, Petitioner’s

argument “collides with the words of his complaint.” (App.

A to Pet’r’s Br., at App.15a.) Below, Petitioner contended

Baker Donelson did not act “at the behest of the state”

because, according to him, “[n]o record-supported facts

. . . show that Baker Donelson acted as an agent for the

city in firing him.” (Id.) The Sixth Circuit rejected this

argument as inconsistent with Petitioner’s own allegations

that Baker Donelson “served as the city’s outside counsel,

took marching orders on firing [him] from city officials,

carried out Nashville’s policies in the process, and fired

him in a way ‘attributed’ to Nashville.” (Id. at App.16a.)

Petitioner may disagree with the “Anti-Referendum

Policy”—but he alleged its existence and claimed Baker

Donelson acted pursuant to the governmental policy at

Metro’s direction.

16

Reframing his position following the Sixth Circuit’s

decision, Petitioner now claims Baker Donelson should

be barred from claiming qualified immunity because of

its “private financial interests,” presumably referring to

a risk of losing work from Metro. (Pet’r’s Br. at 7, 11.) If

accepted, however, this argument would swallow Filarsky

whole. Every private party who receives compensation for

working for a government is motivated, at least in part, by

private financial interests. What is more, even individuals

employed directly by the government can take actions

motivated by retaining their salaries—and no one would

suggest this is a basis to prohibit them from asserting

qualified immunity.

Imagine, for example, a situation where the director

of a municipal law department serves at the pleasure of

the mayor and fires a subordinate lawyer after receiving

pressure from the mayor’s office to do so. Whether

qualified immunity ultimately barred a subsequent

Section 1983 retaliation claim against the director would

depend on the specific circumstances and whether a

“clearly established” right had been violated. But it is

beyond debate that the director would be entitled to

assert qualified immunity as a defense. See, e.g., Lane v.

Franks, 573 U.S. 228, 243–46 (2014) (applying qualified

immunity to a First Amendment retaliation claim under

Section 1983). That result would not change just because

the director chose a course of action based on a concern

about being replaced by the mayor. The only difference

between the hypothetical and this case is Baker Donelson’s

status as Metro’s outside legal counsel. Under Filarsky,

that difference is not meaningful.

17

Petitioner claims the Sixth Circuit has “effectively

overrule[d]” Filarsky, but the inverse is actually true.

To reverse, this Court would be required to overrule

Filarsky—or, at a minimum, to substantially depart from

its reasoning and create a new exception to Filarsky’s

holding that private lawyers engaged by local governments

are entitled to qualified immunity to the same extent as

government-employed lawyers.

B. The Sixth Circuit correctly held Baker

Donelson did not violate Petitioner’s “clearly

established” rights.

Petitioner also takes umbrage with the Sixth Circuit’s

consideration of the particular circumstances of this case

in determining Baker Donelson did not violate his “clearly

established” rights. The thrust of Petitioner’s argument

is that the Sixth Circuit should have put on blinders and

pretended Baker Donelson was a hypothetical government

agency instead of a private law firm facing unique

circumstances. The problem is Petitioner’s argument

ignores this Court’s clear guidance on how the “clearly

established” analysis must be performed.

Even assuming a constitutional violation occurred,

qualified immunity nonetheless bars a Section 1983 claim

unless the “right” the defendant violated was “‘clearly

established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This Court

has repeatedly directed lower courts “not to define clearly

established law at a high level of generality.” Id. at 742

(citations omitted). Broad propositions and statements

of the law are not enough. See id. Instead, “existing

18

precedent must have placed the statutory or constitutional

question beyond debate,” meaning the “contours” of the

right were “sufficiently clear” to notify a “reasonable

official” “what he is doing violates that right.” Id. at 741

(citations omitted).

These principles necessarily require evaluation of

the particular facts and circumstances of a case in two

distinct, but related, ways. First, while a strictly identical

case is not required, “the specific facts at issue”—or,

in other words, the particular scenario the defendant

faced—must be considered. Kisela v. Hughes, 584 U.S.

100, 104 (2018) (citing Mullenix v. Luna, 577 U.S. 7, 13

(per curiam)). Second, the circumstances of the particular

defendant must also be considered because “[a]n officer

‘cannot be said to have violated a clearly established right

unless the right’s contours were sufficiently definite that

any reasonable official in the defendant’s shoes would

have understood that he was violating it.’” Id. at 105

(emphasis added) (quoting Plumhoff v. Rickard, 572 U.S.

765, 778–779 (2014)).

Under this standard, the Sixth Circuit correctly

framed the “clearly established” inquiry as whether

Baker Donelson had “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.” (App. A to Pet’r’s Br., at

App.24a.) The Sixth Circuit’s formulation comports with

the necessarily circumstance-dependent analysis this

Court has long and repeatedly required. The relevant

question is whether someone in Baker Donelson’s shoes

would have been able to tell, at the time the decisions

19

were made, it was beyond debate taking employment

action against Petitioner under the circumstances at issue

would give rise to a valid First Amendment retaliation

claim. The Sixth Circuit’s approach to that question took

account of the particular “contours” of Petitioner’s claim

without crossing the line by requiring the proverbial “red

cow” precedent.

Instead of looking to the actual facts and circumstances

at issue here, Petitioner claims the Sixth Circuit should

have instead considered whether Baker Donelson could

have known it violated Petitioner’s rights had the firm been

in a materially distinct position. Petitioner’s argument

fails to acknowledge the particular situation a defendant

faces is critically important to the “clearly established”

analysis. As a result, when defendants are in materially

different positions, one may be sufficiently on notice,

and another may not. That is not an inconsistency or a

logical fallacy—it is the natural result of the fact-specific

standard developed by this Court.

II. Petitioner overstates the potential impact of the

Sixth Circuit’s decision.

Petitioner claims the Sixth Circuit’s decision in this

case will have far-reaching impacts because the decision,

in Petitioner’s estimation, “effectively overrules Filarsky”

and would result in private parties regularly receiving

immunity where public officials would not. (Pet’r’s Br. at

16.) As explained above, the Sixth Circuit’s decision in no

way contradicts or undermines Filarsky. Nonetheless,

Petitioner’s arguments regarding the potential impact of

the Sixth Circuit’s decision ignore both the unique nature

of this case and the explicit limitations the Sixth Circuit

placed on its holding.

20

This case is, in the Sixth Circuit’s words, “a unique

situation not addressed by our cases to date.” (App. A

to Pet’r’s Br., at App.24a.) In fact, Petitioner has agreed

this case presents “novel factual circumstances.” (Id. at

App.25a.) When arguing Baker Donelson had violated his

“clearly established rights,” Petitioner could not point to

even a single decision where a law firm was alleged to have

violated Section 1983 by taking employment action against

a firm lawyer who had created a conflict—personal,

business, professional, ethical, or otherwise—by engaging

in activities adverse to the interests of the firm’s client.

Baker Donelson is also not aware of any such case.

What is more, Petitioner alleges Baker Donelson fired

him in response to pressure from the firm’s government

client when Petitioner, by his own admission, acted directly

in conflict with the interests of Baker Donelson’s—and,

indeed, Petitioner’s own—client. (App. F to Pet’r’s Br.,

at App.124a, 134a, 141a, 144a–45a, 163a (¶¶ 27, 65, 96,

107–08, 165).) Again, Baker Donelson is unaware of any

similar case. This unique issue is exceedingly unlikely to

arise again, especially because the ethical rules governing

lawyers prohibit Petitioner’s conduct here. Petitioner was

a lawyer at Baker Donelson, and Metro was a firm client.

Thus, Metro was also Petitioner’s client by imputation.

See Tenn. S.Ct. R. 8, RPC 1.10, cmt. [2]. Accordingly, the

ethical rules governing lawyers barred Petitioner from

acting directly adverse to Metro’s interests. See Tenn.

S.Ct. R. 8, RPC 1.7. Petitioner’s own allegations make clear

he engaged in activities adverse to and in conflict with the

interests of Metro while still a Baker Donelson attorney.

(App. F to Pet’r’s Br., at App.124a, 126a–28a, 130a–31a,

146a (¶¶ 27, 38, 40–43, 48–52, 113); Dist.Ct.Dkt. 44, at 3

(PageID # 466).) Fortunately, with these principles in

place, circumstances similar to this case are very rare.

21

Though Petitioner contends the Sixth Circuit’s decision

will open the floodgates to private parties claiming

qualified immunity where they could not previously, the

Sixth Circuit’s own words show otherwise. The Sixth

Circuit specifically declined to make a “blanket rule”

and refused to “hold[] that private actors always receive

qualified immunity.” (App. A to Pet’r’s Br. at App.17a

(emphasis in original).) Instead, the court expressly

limited its holding to the particular facts before it and

clarified, “[c]onsistent 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.” (Id. (emphasis added).)

Because of the unique factual circumstances present

in this case, and because the Sixth Circuit specifically

limited its decision to these unique facts, the decision in

this case will not have the widespread impact Petitioner

suggests.

III. The Sixth Circuit’s decision does not create a circuit

split.

Despite Petitioner’s claims the Sixth Circuit’s decision

in this case “creates a circuit split,” examining the cases

Petitioner cites demonstrates no actual split between the

circuits exists. The Sixth Circuit’s decision relies on and

applies the principles this Court articulated in Filarsky to

address what the Sixth Circuit correctly recognized as “a

unique situation not addressed by our cases to date.” (Id.

at App.24a.) Petitioner points to only one circuit decision

in the fourteen years following Filarsky as allegedly

inconsistent with the Sixth Circuit’s opinion in this case.

Even so, no conflict between the decisions actually exists.

While the handful of pre-Filarsky decisions Petitioner

22

relies on differ from the Sixth Circuit’s opinion in their

framing—understandably, given they were each decided

more than thirty years ago and roughly twenty years

before Filarsky—their holdings are easily harmonized.

The only post-Filarsky decision Petitioner relies on

to show the alleged circuit split is the Fourth Circuit’s

decision in Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012).

Despite Petitioner’s claim to the contrary, Gregg is not

inconsistent with the Sixth Circuit’s decision in this case.

In Gregg, the Fourth Circuit held a bail bondsman was

not entitled to assert qualified immunity because “there

is no evidence that bail bondsmen have historically been

afforded immunity for their actions.” Id. at 340. While

bail bondsmen may receive “significant aid from state

officials,” such that they may be acting “under color of

state law” for purposes of Section 1983, the bail bondsman

in Gregg “was not hired by or working on behalf of the

government in any capacity.” Id. at 340 n. 3, 341 n. 6.

For these reasons, Gregg is entirely distinguishable

from this case. The bail bondsman in Gregg was never

an agent of the government acting at the request of the

government. See id. at 337, 340–41. Instead, he operated

a private business that happened to intersect with state

law enforcement when he sought police assistance for an

apprehension. See id. at 337–38. By contrast, Petitioner

specifically alleged Baker Donelson was retained as

Metro’s outside legal counsel and acted at the specific

request of Metro and “pursuant to” a stated government

policy. (App. F to Pet’r’s Br., at App.124a, 128a, 146a

(¶¶ 27, 44, 113–14).) Moreover, the court in Gregg—

applying a very truncated analysis—concluded “there

is no evidence that bail bondsmen have historically

23

been afforded immunity for their actions.” Gregg, 678

F.3d at 340. In contrast, in Filarsky, this Court already

determined there is ample historical basis for applying

immunity to lawyers engaged as outside counsel by local

governments. See Filarsky, 566 U.S. at 384–89. The

difference in result between Gregg and the Sixth Circuit’s

ruling in this case is not a product of a conflict over what

controlling law is—it is a natural result of applying

Filarsky’s rationale and the law of qualified immunity to

materially different factual circumstances. The two cases

are entirely compatible.

Beyond Gregg, Petitioner points to a handful of cases

decided before Filarsky to support an alleged circuit split.

Naturally, the reasoning in these decisions does not always

strictly follow the formulation in Filarsky. Nonetheless,

the holdings in these cases can all be squared with the

Sixth Circuit’s decision in this case.

The First Circuit’s decision in Felix de Santana v.

Velez is distinguishable from this case on essentially the

same grounds as in Gregg. 956 F.2d 16 (1st Cir. 1992). In

Felix de Santana, private defendants allegedly conspired

with a local prosecutor to bring baseless criminal charges

against the plaintiff to remove her from her position at

a cooperative organization. Id. at 17–18. The defendants

were private individuals that had not been hired or

officially engaged by the government and were acting

solely for their own purposes. See id. As in Gregg, the

defendants in Felix de Santana were not acting at the

direction of a government entity. Instead, they acted

purely on their own initiative in enlisting law enforcement

to serve a private grudge. See id. There was no allegation

of prior formal engagement by any government entity,

24

no contract, and no request from a government official

directing the defendants to do anything. The defendants

originated the wrongful scheme themselves and merely

recruited a prosecutor’s cooperation. See id.

While Petitioner claims Felix de Santana is at odds

with the Sixth Circuit’s decision in this case, the two

opinions are entirely compatible. In Felix de Santana, the

First Circuit’s denial of qualified immunity turned on the

absence of any government mandate or delegation. See

id. at 19–20. Under the reasoning in the opinion below,

the Sixth Circuit majority would almost certainly reach

the same result on those facts, as it expressly grounded

its decision that Baker Donelson was entitled to assert

qualified immunity in Petitioner’s own allegations showing

the firm “act[ed] at the behest of the state.” (App. A to

Pet’r’s Br., at App.15a–16a.) If Petitioner had pleaded

Baker Donelson acted on its own initiative and enlisted

Metro assistance to achieve its own ends, the Sixth Circuit

may have reached the same result as the First Circuit in

Felix de Santana. The difference in result between the two

cases arises from differences in the facts, not incongruity

in the governing legal principles.

The First Circuit’s decision in Rodriques v. Furtado

underscores the lack of a circuit split. 950 F.2d 805 (1st

Cir. 1991). Rodriques involved private physicians who

performed a body-cavity search on the plaintiff pursuant

to a search warrant, at the request of police officers

investigating a crime. Id. at 807–08. The First Circuit

granted qualified immunity to the physicians, reasoning

they had accepted “the responsibilities of a public official

in the public interest” by assisting in the execution of a

valid warrant. Id. at 815. In reaching that conclusion, the

25

First Circuit relied on the fact the defendant “did not act

on his own initiative” and instead acted at the request of

the government. Id.

The same is true of Baker Donelson here. As the

Sixth Circuit recognized, Petitioner’s pleadings claim

Baker Donelson acted at Metro’s request and direction

and “pursuant to” an official government policy. (App. A

to Pet’r’s Br., at App.16a.) While Petitioner may believe the

circumstances of this case are closer to those in Felix de

Santana than Rodriques, his own allegations undermine

that argument. Moreover, nothing in the Sixth Circuit’s

opinion is at odds with the holdings in either Felix de

Santana or Rodriques, and, therefore, no circuit split

exists.

In Burrell v. Board of Trustees of Georgia Military

College, the Eleventh Circuit considered whether a group

of bank executives and public officials were entitled to

qualified immunity from the plaintiff’s claim that they

conspired to retaliate against her for publicly criticizing

a local state college. 970 F.2d 785, 786–96 (11th Cir. 1992),

abrogated on other grounds by Ziglar v. Abbasi, 582

U.S. 120 (2017). Ultimately, the court granted qualified

immunity to the public officials but did not grant qualified

immunity to the private defendants, finding the private

defendants were “not alleged simply to have fulfilled their

duties under a government contract, or to have assumed

under court order the responsibilities of a public official,

but [were] alleged to have acted in concert with public

officials for the sole purpose of depriving another of her

constitutional rights.” Id. at 796.

26

It is hard to draw any conclusions from Burrell. The

Eleventh Circuit decided the case twenty years before

Filarsky, and its decision was explicitly based on a concern

that this Court’s pre-Filarsky jurisprudence “does not

bode well for the continued vitality” of private parties

claiming qualified immunity. Id. at 795. In Filarsky,

however, this Court squarely held private parties are, in

some circumstances, entitled to assert qualified immunity

in response to a Section 1983 claim. Filarsky, 566 U.S.

at 384–95.

Nonetheless, to the extent Burrell remains good law

at all, its holding does not conflict with the Sixth Circuit’s

decision. Unlike Baker Donelson, the private defendants

in Burrell did not have any formal contract or relationship

with the relevant government entities, and there was no

allegation the private defendants acted at the direction

or behest of government officials or even in response to

government pressure. See Burrell, 970 F.2d at 790–92.

And, in contrast to Petitioner’s allegations in this case, the

plaintiff in Burrell did not claim the private defendants

acted pursuant to an official government policy. See id.

In the ways that matter, Burrell is far closer to Gregg

and Felix de Santana than it is to Filarsky, Cullinan,

Rodriques, or this case.

Finally, the Seventh Circuit’s decision in Sherman

v. Four County Counseling Center also shows no circuit

split exists. 987 F.2d 397 (7th Cir. 1993). At issue in

Sherman was whether a private mental health facility

had qualified immunity when it detained the plaintiff

and provided government-directed treatment. Id. at 399,

401–10. The Seventh Circuit distinguished between cases

where private defendants acting pursuant to a government

27

mandate received qualified immunity and cases where

“private parties invok[ing] state law in pursuit of private

ends” did not. Id. at 405. The court found, under the

circumstances, the private mental health facility fit into

the first category and was entitled to qualified immunity.

Id. at 405–06. In addition, the Seventh Circuit reasoned,

because a state hospital would be entitled to assert

qualified immunity, the private mental health facility

acting at the government’s direction should be able to as

well. Id.

The Sixth Circuit’s decision is consistent with

Sherman’s holding. Petitioner has alleged Baker Donelson

acted at Metro’s request and direction, and he claims his

termination was a result of Baker Donelson following

an official government policy. (App. F to Pet’r’s Br.,

at App.124a, 128a, 146a (¶¶ 27, 44, 113–14).) What is

more, as discussed above, a lawyer employed directly

by a local government would be fully entitled to assert

qualified immunity in response to a Section 1983 claim

for retaliatory discharge. See Lane, 573 U.S. at 243–46.

Whether the lawyer violated a “clearly established”

right would depend on the particular circumstances,

but the defense would be available. Under Sherman’s

reasoning—and Filarsky’s—Baker Donelson’s status as

outside counsel should not change this result.

In sum, the qualified immunity cases Petitioner cites

can be grouped into two categories. The first category

concerns private parties acting at the direction of the

government, pursuant to a government contract, or under

an existing relationship with a public entity—what the

Sixth Circuit has described as acting “at the behest” of the

government. The second category includes, as this Court

28

put it in Filarsky, private actors “who had no connection

to government and pursued purely private ends,” for

example, where a private party enlists government

assistance for its own purposes or acts in concert with

a government agency in an informal, ad hoc capacity.

Filarsky, 566 U.S. at 392. The Sixth Circuit’s decision

fits comfortably into this framework based on Petitioner’s

own allegations that Baker Donelson acted at the request

and direction of Metro and pursuant to an official Metro

policy. No circuit split exists.

IV. This case is not an appropriate vehicle for review.

Additionally, this Court should deny the Petition

because this case is not an appropriate vehicle to review

the issues Petitioner has raised.

The issue of whether a private party can assert

qualified immunity arises infrequently because private

parties are generally not “state actors” subject to liability

under Section 1983 in the first instance. In an attempt

to clear this initial “state actor” hurdle, Petitioner

alleged the very facts the Sixth Circuit correctly found

entitled Baker Donelson to assert qualified immunity

under Filarsky and Cullinan. Seeking to prevent Baker

Donelson from arguing it was not a state actor at the

pleadings stage, Petitioner alleged (A) Metro retained

Baker Donelson as outside counsel and remained the

firm’s client at all relevant times, (B) Metro officials

asked Baker Donelson “to aid and assist” Metro’s efforts

to preserve a tax increase by “influencing” Petitioner,

(C) Baker Donelson ultimately fired Petitioner “by and

pursuant to” Metro’s “demands and requests,” and

(D) the firm’s decision to fire Petitioner was “so

29

intertwined” with Metro’s official policy of opposing the

citizen tax referendum that the termination “should be

attributed” to Metro. (App. F to Pet’r’s Br., at App.124a,

132a, 146a, 163a–64a (¶¶ 26–27, 57, 114, 165, 170–71).) In

the Sixth Circuit’s words, Petitioner’s argument Baker

Donelson cannot assert qualified immunity “collides

with the words of his complaint.” (App. A to Pet’r’s Br.,

at App.15a.)

As previously explained, the cases considering

whether a private party is entitled to qualified immunity

generally fall into two distinct groups. First, there are

cases where a private party acts “at the behest” of the

government, meaning at the direction of the government,

pursuant to a government contract, or under an existing

relationship with a public entity. Second, there are cases

where a private party enlists government assistance for

its own purposes or acts in concert with a government

agency in an informal, ad hoc capacity—or as this Court

explained in Filarsky, private actors “who ha[ve] no

connection to government and pursue[] purely private

ends.” Filarsky, 566 U.S. at 392. The first group of private

actors are generally entitled to qualified immunity, and

the second are not.

While Petitioner urges this Court to accept review to

provide further clarification following Filarsky, he chose

to allege Baker Donelson acted at the direction of Metro

and pursuant to a Metro policy—facts that, accepted as

true, show Baker Donelson could not have “pursued purely

private ends” within the meaning of Filarsky. Judge

Sutton put it succinctly: “Private actors generally receive

the bitter and the sweet in defending constitutional torts.

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

30

should also benefit from a state actor’s defenses.” (App. A

to Pet’r’s Br., at App.14a–15a (citing Filarsky, 566 U.S. at

389–91).) The very facts Petitioner alleged to make Baker

Donelson a state actor for purposes of Section 1983 are the

same facts entitling the firm to assert qualified immunity.

While this may not be true in every case, it is true under

the circumstances here. Either Baker Donelson is entitled

to assert qualified immunity, or it is not a state actor at all.4

Though Petitioner fails to mention it, this case also

presents the particularly fraught embedded issue of

whether the First Amendment can trump the professional

conduct rules governing lawyers. As explained above,

Petitioner pleaded facts showing he violated ethical

standards by acting directly adverse to the interests of his

own imputed client. See Tenn. S.Ct. R. 8, RPC 1.7; Tenn.

S.Ct. R. 8, RPC 1.10, cmt. [2]. The facts also show Baker

Donelson terminated Petitioner’s employment in the face

of his refusal to resolve a conflict of interest he created

with a client. Baker Donelson extensively briefed this

issue before the Sixth Circuit. (6th.Cir.Dkt. 32 at 41–52.)

4. To be clear, Baker Donelson has not “forfeited” this

argument as Petitioner incorrectly claims. Instead, Baker

Donelson “assum[ed] it was a state actor” based on Petitioner’s

allegations in his pleadings, but only for purposes of the motion

to dismiss and the subsequent appeal. (App. C to Pet’r’s Br. at

App.100a; Dist.Ct.Dkt. 43 at 1–2 (PageID # 461–62); Dist.Ct.Dkt.

44 at 2 (PageID # 465).) This is because the very facts Petitioner

alleged to paint Baker Donelson as a “state actor” to be able to

bring a Section 1983 claim against it in the first instance are the

very same allegations showing Baker Donelson is entitled to assert

qualified immunity. If Petitioner retreats from those allegations,

as he has attempted to do now, then he has no viable Section 1983

claim against Baker Donelson at all.

31

In short, the First Amendment does not shield attorneys

from employment consequences arising out of their failure

to abide by ethical rules. See, e.g., Ohralik v. Ohio State

Bar Ass’n, 436 U.S. 447, 455–68 (1978); Cap. Associated

Indus., Inc. v. Stein, 922 F.3d 198, 207–12 (4th Cir. 2019);

In re Reines, 771 F.3d 1326, 1328–33 (Fed. Cir. 2014);

Douglas v. DynMcDermott Petroleum Operations Co.,

144 F.3d 364, 366–77 (5th Cir. 1998); In re Palmisano, 70

F.3d 483, 483–88 (7th Cir. 1995).

The Sixth Circuit did not directly address ethical

implications and instead found there was no clearly

established law providing Baker Donelson with “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.”

(App. A to Pet’r’s Br. at App.24a.) Petitioner urges this

Court to reject the Sixth Circuit reasoning on the “clearly

established” prong. (Pet’r’s Br. at 14–16.) Doing so would

not end the inquiry. Instead, the Court would be called

upon to decide the embedded issue of whether a law firm

in Baker Donelson’s position could have known it would

face Section 1983 liability for terminating a lawyer who

created a conflict of interest in violation of ethical rules.

Throughout the proceedings in this case, Petitioner has

never cited any case in which a lawyer has succeeded on

a First Amendment retaliation claim based on an adverse

employment action following the lawyer creating a conflict

of interest—or anything remotely similar.

This case is far from an “excellent vehicle” for review

as Petitioner claims. (Pet’r’s Br. at 20.) Petitioner’s

theory for why Baker Donelson is a “state actor” is in

32

severe—and irreconcilable—tension with his theory

Baker Donelson cannot assert qualified immunity. Beyond

that, the arguments Petitioner raises with regard to the

Sixth Circuit’s “clearly established” analysis ignore this

Court’s clear precedent requiring a fact-specific analysis.

Ruling in Petitioner’s favor would require this Court to

(A) take the entirely unprecedented step of deciding a

lawyer can bring a First Amendment retaliation claim

when terminated after creating a conflict of interest

with a firm client in violation of the Rules of Professional

Conduct and (B) find—in the absence of any controlling

precedent—such a result is “clearly established” and

beyond reasonable debate.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Robert E. Boston

Counsel of Record

Michael A. Cottone

Holland & Knight LLP

150 Third Avenue South, Suite 2800

Nashville, TN 37201

(615) 244-6380

Bob.Boston@hklaw.com

Counsel for Respondent Baker, Donelson,

Bearman, Caldwell & Berkowitz, PC