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

Supreme Court briefSep 22, 2026

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No. 26-21

In the

Supreme Court of the United States

JAMES A. DELANIS,

Petitioner,

BAKER, DONELSON, BEARMAN, CALDWELL &

BERKOWITZ, PC, et al.,

Respondents,

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR THE PETITIONER

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

ARGUMENT ............................................................... 1

The Sixth Circuit upended this Court’s

precedent .......................................................... 2

II.

No other circuit has extended Filarsky in

this way ............................................................ 5

III. Baker Donelson’s vehicle problems are

imagined........................................................... 8

CONCLUSION ......................................................... 10

TABLE OF AUTHORITIES

Page(s)

Cases

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

970 F.2d 785 (11th Cir. 1992) ............................. 6, 7

Felix de Santana v. Velez,

956 F.2d 16 (1st Cir. 1992) ...................................... 6

Filarsky v. Delia,

566 U.S. 377 (2012) .............................................. 2-7

Gregg v. Ham,

678 F.3d 333 (4th Cir. 2012) ............................... 5, 6

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................................. 3

Mallory v. Norfolk S. Ry.,

600 U.S. 122 (2023) ................................................. 9

Nat’l Republican Senatorial Comm. v. FEC,

No. 24-621, Pet. (Dec. 4, 2024),

cert. granted, 145 S. Ct. 2843 (2025) ...................... 8

Richardson v. McKnight,

521 U.S. 399 (1997) ........................................... 9, 10

Sherman v. Four Cnty. Counseling Ctr.,

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

Stanley v. City of Sanford,

606 U.S. 46 (2025) ............................................... 1, 8

Wyatt v. Cole,

504 U.S. 158 (1992) ................................................. 4

iii

Statutes

42 U.S.C. § 1983 ..................................................... 1, 9

ARGUMENT

Baker Donelson makes a compelling argument for

denying certiorari—in another, hypothetical case,

with a different record. But “this dispute comes to [the

Court] on a motion to dismiss,” which means this

Court “cannot look beyond the pleadings.” Stanley v.

City of Sanford, 606 U.S. 46, 63 (2025). And Baker Donelson’s opposition brief does more than look beyond

the pleadings—it contradicts them every step of the

way.

The upside is that Baker Donelson inadvertently

shows why the petition is a perfect vehicle to resolve

the questions presented. It does not matter, for example, that the firm now claims (at 6) that it fired DeLanis because he created a conflict of interest—the complaint alleges that the firm disclaimed any conflict, see

App.122a–23a (¶¶15–16), 135a (¶72), a fact that the

Sixth Circuit acknowledged, see App.5a. And it does

not matter that the firm now suggests (at 15–16) that

the city hired it to work on the referendum issue—the

complaint alleges the opposite. See id. at 148a (¶120).

So while Baker Donelson would be free to raise these

issues on remand, they have nothing to do with

whether the firm is entitled to qualified immunity at

the pleading stage of this case.

All the more reason to grant this petition. The

scope of qualified immunity for private parties under

§ 1983 is an important issue that this Court has repeatedly weighed in on before. And the specific questions here are squarely presented in a way that might

not be true at a later stage or in another case. The

Court should grant certiorari.

The Sixth Circuit upended this Court’s

precedent.

Everyone agrees that “private attorneys engaged by

local governments are entitled to assert qualified immunity just as if they were employed directly by the

government.” BIO 11. Yet the decision below cuts

against that rule in two ways. It applied qualified immunity to Baker Donelson even though the firm acted

outside the scope of any government engagement. And

it treated Baker Donelson differently than other government employees when deciding that the firm did not

violate DeLanis’s clearly established rights.

1. Baker Donelson dismisses the first problem

with misdirection. It contends that the Sixth Circuit’s

decision was a “straightforward application of

[Filarsky v. Delia, 566 U.S. 377 (2012)]” because the

firm was Nashville’s “outside counsel during all relevant periods” in which it “acted in concert with [the

city].” Id. at 14–15. But notice the sleight of hand: The

fact that Baker Donelson worked as the city’s outside

counsel does not mean that everything it did “in concert with [the city]” was part of that engagement. And

DeLanis alleges that Nashville never retained Baker

Donelson for any work related to the referendum.

App.148 (¶120). So applying qualified immunity here

means extending Filarsky to cover outside counsel

even when they act beyond the scope of their official

duties.

This is why the decision below is so problematic.

Like Baker Donelson, the Sixth Circuit relied on the

fact that Nashville “retained Baker Doneslon as outside counsel . . . [d]uring all times relevant to DeLanis’s claims” to conclude that everything the firm did

at Nashville’s request fell within the scope of its engagement. App.11a (citation modified). But qualified

immunity does not extend that far for even full-time

government employees, who must show that the unlawful action fell within the scope of their duties. See

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The

Sixth Circuit upended this basic framework by extending qualified immunity to private parties hired by the

government regardless of the scope of their engagement.

Nor is there any merit to Baker Donelson’s claim

that DeLanis has “[r]efram[ed]” his position from below by focusing on the firm pursuing its own private

interests. BIO 15–16. DeLanis has consistently

claimed that Baker Donelson acted outside of any official duties when it fired him to protect its “revenue”

from unrelated city matters unrelated to the referendum. App. 125a, 132a–33a, 148a.

That’s also why Baker Donelson’s analogy to a government employee who is worried about losing his job

fails. See BIO 16. Unlike a government supervisor, not

all personnel decisions that Baker Donelson makes

fall within the scope of the governmental duties that

Nashville hired the firm to perform. When the government retains parties to perform a public function, they

only receive qualified immunity when acting pursuant

to that job. Filarsky, 566 U.S. at 393–94. Not everything that Baker Doneslon does to make the city

happy becomes part of the firm’s official duties as a

government contractor.

The Sixth Circuit’s contrary conclusion expands

qualified immunity’s protection to cover private parties acting in their self-interest outside the scope of

any government engagement. It upends Filarsky and

the centuries of common-law precedent that came before.

2. Baker Donelson’s defense of the Sixth Circuit’s

holding under prong two of the qualified immunity

test is even more perplexing. After insisting that its

financial interest is no different than that of any other

government supervisor who is pressured to fire an employee, id. at 16, the firm goes on to claim that its status as a private law firm means it is in a “materially

different position[]” than a government employee who

acted the same way. BIO 19.

How can that be? If private parties receive “the

same immunity enjoyed by their public counterparts,”

Filarsky, 566 U.S. at 390, the firm’s status as a private

party must be immaterial. Otherwise, the immunity

would not be “the same.”

Even still, this inconsistency is not the real problem. This Court has extended qualified immunity to

private parties only when doing so “enhanc[es] the

public good.” See Filarsky, 566 U.S. at 392 (quoting

Wyatt v. Cole, 504 U.S. 158, 168 (1992)). Yet by drawing the distinction that the Sixth Circuit did here, a

private party who acts pursuant to its own interest

rather than the public good benefits from a greater

claim to immunity than its public employee counterpart. And “[t]his approach is particularly damaging

because courts will always be able to point to the

profit motive of private individuals retained by the

government as a unique factor not present in the

clearly established law governing public officials.” IJ

Amicus Br. at 23.

This is also why Baker Donelson errs when it

claims that the Sixth Circuit’s decision will somehow

be limited to its unique facts. BIO 20. The only thing

that’s “unique” here is the defendant is a private party

who acted unlawfully to protect its financial interests.

App.24. Because that was materially significant under

the second prong of the qualified-immunity test, every

private defendant in the Sixth Circuit who acts unlawfully to protect its business relationship with the government will receive the same protection. If it’s not

clearly established for Baker Donelson, it’s not clearly

established for anyone else.1

II.

No other circuit has extended Filarsky in

this way.

Baker Donelson tries to harmonize the Sixth Circuit’s decision with those from other courts—but to no

avail. The problem is the same one discussed above:

Baker Donelson relies on the false premise that Nashville hired it to work on the referendum issue. But

DeLanis alleges that Nashville never retained Baker

Donelson for any matters related to the referendum or

DeLanis’s work on the commission. See Pet.5;

App.148a. That fact is unassailable on a motion to dismiss, and it alone negates Baker Donelson’s primary

basis for downplaying the circuit split.

Consider Gregg v. Ham, 678 F.3d 333 (4th Cir.

2012), the Fourth Circuit case holding that bail

1 Baker Donelson tries to smuggle its conflict-of-interest argument

here as well. BIO 20. But as explained above, DeLanis alleges that

the firm disclaimed any conflict of interest, App.122a–23a (¶¶15–

16), 135a (¶72), which the Sixth Circuit and the city itself both

acknowledged, see App.5a; Dist.Ct.Dkt.40 at 8.

bondsmen are not entitled to qualified immunity. Id.

340–41 & n.6. Baker Donelson dismisses Gregg because the court there concluded that bail bondsmen

were not historically afforded immunity, while

Filarsky already held that the same is not true for outside counsel. BIO 23. But the Fourth Circuit also relied on the fact that the defendant in Gregg was not

operating pursuant to a government contract when

acting unlawfully. Gregg, 678 F.3d at 341 n.6. That is

true here as well. App.148a; see also Felix de Santana

v. Velez, 956 F.2d 16, 20 (1st Cir. 1992) (explaining

that “[e]xtending immunity to defendants” would

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

any public function”).

Baker Donelson likewise misses the significance

of Burrell v. Board of Trustees of Georgia Military

College, 970 F.2d 785 (11th Cir. 1992), claiming that

it’s distinguishable because it involved “no allegation

[that] the private defendants acted at the direction or

behest of government officials or even in response to

government pressure.” BIO 26. That is immaterial.

What Burrell establishes is that qualified immunity

is unavailable to private parties who conspire with

the government outside of their official duties to protect their own financial interests. Burrell, 970 F.2d at

795–96. That personal, financial interest, which the

Eleventh Circuit held is disqualifying for qualified

immunity, is what the Sixth Circuit held entitles

Baker Donelson to immunity.

Baker Donelson also questions whether Burrell remains good law because the court there—several decades before Filarsky—doubted whether qualified immunity would continue applying to private parties at

all. But Baker Donelson does not explain what part of

Burrell is wrong or even inconsistent with Filarsky.

For good reason: The Eleventh Circuit’s pre-Filarsky

decision, which limited qualified immunity to private

parties operating pursuant to a government contract

or court order, matches the rationale this Court

adopted two decades later. See Filarsky, 533 U.S. at

392–94. That the Eleventh Circuit got the issue right

before this Court weighed in is hardly a reason to

question it today.

Finally, Baker Donelson’s attempt to harmonize

the Sixth Circuit’s decision with Sherman v. Four

County Counseling Center, 987 F.2d 397 (7th Cir.

1993), only further illustrates the problem. As Baker

Donelson correctly explains, the Seventh Circuit held

that qualified immunity protected a private hospital

that treated individuals pursuant to a “government

mandate.” BIO at 26–27. But the “government mandate” in Sherman was a court order. 987 F.2d at 405–

06. Here, by contrast, there was no court order or

even a contract—just a threat to pull unrelated business and cause Baker Donelson financial harm. Those

two categories are not the same—particularly in light

of Filarsky’s later focus on the scope of a private

party’s public duty.

The Sixth Circuit’s decision below breaks entirely

new ground by extending qualified immunity to cover

acts taken outside of any government contract or mandate, so long as the private party has an existing but

unrelated contractual relationship with the public

agency. Baker Donelson cannot identify any other circuit to have extended qualified immunity in a similar

way. And its only basis for distinguishing the other

contrary decisions is to ignore the complaint’s controlling allegations, and invent an alternative universe in

which Nashville hired the firm for a purpose that

could support its qualified immunity theory.

III.

Baker Donelson’s vehicle problems are

imagined.

Baker Donelson makes several arguments as to

why this petition is a bad vehicle for resolving the immunity questions—but each argument only reinforces

the opposite conclusion.

The firm first contends that this case is a bad vehicle because whether private parties can assert qualified immunity is an issue that “arises infrequently.”

BIO 28. Even if that’s true, it counsels in favor of

granting the petition because it is an important matter that the Court may not get an opportunity to address again soon. See, e.g., Nat’l Republican Senatorial

Comm. v. FEC, No. 24-621, Pet. at 33 (Dec. 4, 2024),

cert. granted 145 S. Ct. 2843 (2025) (explaining that

the “Court is unlikely to encounter another vehicle anytime soon”).

Likewise, Baker Donelson argues that this case

“presents the particularly fraught embedded issue of

whether the First Amendment can trump the professional conduct rules governing lawyers.” BIO 30.

While that might be true for this case, it’s not true for

this petition. As DeLanis has explained, the complaint

alleges that Baker Donelson disclaimed any conflict of

interest and fired him instead to protect its revenue

with the city from unrelated matters. See supra at 2–

3. And because this petition reaches the Court on a

motion to dismiss, it “cannot look beyond the pleadings.” Stanley, 606 U.S. at 63. That likely explains why

the Sixth Circuit did not address this issue, despite

Baker Donelson’s urging. And it also makes this

petition an even better vehicle for resolving the immunity question because it can do so while avoiding

“fraught” issues like this, BIO 30, that may come up

later. See, e.g., Mallory v. Norfolk S. Ry., 600 U.S.

122, 150 (2023) (Alito, J., concurring) (voting to resolve a personal jurisdiction issue against the defendant while explaining that the defendant is free to pursue other dispositive defenses on remand).

Finally, Baker Donelson contends that DeLanis’s

“theory for why Baker Donelson is a ‘state actor’ is in

severe—and irreconcilable—tension with his theory

that Baker Donelson cannot assert qualified immunity.” BIO 31–32. But any tension is imaginary. Contrary to Baker Donelson’s claim, DeLanis does not allege that the firm is liable under § 1983 because it

acted as the government’s agent and outside counsel.

Rather, he alleges that the city intimidated the firm

into firing DeLanis by threatening it with financial

harm. App. 134a, 164a. No case has extended qualified immunity to a private party in such circumstances.

Even still, Baker Donelson has never disputed

whether it qualifies for state action under § 1983, so

any “tension” is immaterial. Rather, it is one more

potentially complicated issue that this Court need not

consider to resolve the immunity questions presented. That is, in fact, what this Court already did

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

when it held that the private defendants there were

not entitled to qualified immunity without “address[ing] whether the defendants are liable under

§ 1983.” Id. at 413. The Court there resolved the immunity question and sent the case back to “the District Court to determine whether . . . defendants

actually acted ‘under color of state law.’” Id. The

Court can do the same here.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,