Petition for Writ of Certiorari — Shannon King, et al., Petitioners v. Lana Foster

Supreme Court briefAug 20, 2026

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No.

In the Supreme Court of the United States

SHANNON KING, ET AL.,

INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,

PETITIONERS,

DR. LANA FOSTER,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

________________

BETH F. MORRIS

BENNETT DAVIS BRYAN

PARKER POE ADAMS &

BERNSTEIN LLP

1075 Peachtree Street N.E.,

Suite 1500

Atlanta, GA 30309

LISA S. BLATT

Counsel of Record

AMY MASON SAHARIA

ERIN M. SIELAFF

CHRISTIAN J. GLADDENSORENSEN

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

QUESTIONS PRESENTED

42 U.S.C. § 1981 protects the right “to make and enforce contracts” from “impairment by nongovernmental

discrimination and impairment under color of State law.”

In Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 47678 (2006), this Court recognized that contractual privity is

the “sine qua non of a § 1981 claim,” meaning that only

parties with rights under a contract may bring such

claims. However, the Court did not decide whether the

contractual-privity principles underlying section 1981 also

require the defendants to be contracting parties. This

open question has divided the circuits.

Independently, the circuits are at odds over how to

analyze the clearly established prong of the qualified-immunity test. Although all courts recognize that the

wrongfulness of an official’s conduct must be clearly established, the circuits are divided over whether an

official’s personal liability must be clearly established at

the time too.

The questions presented are:

1. Whether a plaintiff may bring a claim under 42

U.S.C. § 1981 premised on the “impairment” of the right

“to make and enforce contracts” against a non-contracting

defendant.

2. Whether, to overcome qualified immunity, a plaintiff must show that the official’s personal liability was

clearly established at the time of the alleged misconduct.

(I)

PARTIES TO THE PROCEEDING

Petitioners, Shannon King, Vincent N. Hamm, Rocky

Crosby, Bo Corbett, Patricia Gray, Chad Pafford, and

Mitchell Church, were defendants in the district court and

appellants in the Eleventh Circuit.

Respondent, Dr. Lana Foster, was the plaintiff in the

district court and appellee in the Eleventh Circuit.

III

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:



Foster v. Echols Cnty. Sch. Dist., No. 24-12144

(11th Cir. May 22, 2026) (denying petition for rehearing and petition for rehearing en banc)

 Foster v. Echols Cnty. Sch. Dist., No. 24-12144

(11th Cir. Mar. 18, 2026) (affirming district court)

 Foster v. Echols Cnty. Sch. Dist., No. 7:23-cv-89

(M.D. Ga. June 13, 2024) (granting in part and

denying in part defendants’ motion to dismiss the

complaint)

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly related

to this case within the meaning of this Court’s Rule

14.1(b)(iii).

TABLE OF CONTENTS

Page

OPINIONS BELOW ............................................................ 1

JURISDICTION................................................................... 1

STATUTORY PROVISIONS INVOLVED ..................... 2

STATEMENT ....................................................................... 3

Factual Background ........................................... 5

Procedural History ............................................. 6

REASONS FOR GRANTING THE PETITION............ 9

The Courts of Appeals Are Intractably Split over

Both Questions Presented ..................................... 11

The Circuits Are Sharply Divided over Section

1981’s Applicability To Non-Contracting

Defendants ......................................................... 11

The Circuits Are Squarely Divided over

Whether an Official’s Personal Liability Must

Be Clearly Established To Overcome

Qualified Immunity ........................................... 15

II.

The Questions Presented Are Important,

Recurring, and Squarely Presented ..................... 19

III. The Decision Below Is Incorrect .......................... 25

The Eleventh Circuit Erred by Allowing

Third-Party-Impairment Claims .................... 25

The Eleventh Circuit Erred in Declining To

Require Personal Liability To Be Clearly

Established ........................................................ 27

CONCLUSION ................................................................... 30

TABLE OF AUTHORITIES

Page

Cases:

Al-Khazraji v. St. Francis Coll.,

784 F.2d 505 (3d Cir. 1986),

aff’d, 481 U.S. 604 (1987) .............................................. 13

Anderson v. Creighton, 483 U.S. 635 (1987) .................... 17

Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291 (2006) ....................................... 29

Barnes v. Gorman, 536 U.S. 181 (2002) ........................... 29

Behrens v. Pelletier, 516 U.S. 299 (1996) ......................... 17

Bittner v. United States, 598 U.S. 85 (2023) .............. 28, 29

Brenden v. Castro,

2025 WL 2771834 (N.D.N.Y. Sept. 26, 2025) ............. 22

Bronson v. Ann & Robert H. Lurie Child.’s

Hosp., 69 F.4th 437 (7th Cir. 2023) ............................. 15

Brunson v. Forest Preserve Dist. of Cook Cnty.,

2010 WL 780331 (N.D. Ill. Mar. 3, 2010) .................... 22

Buchanan v. Alexander,

919 F.3d 847 (5th Cir. 2019) ......................................... 16

Carter v. Yazoo City,

2020 WL 13682497 (S.D. Miss. Jan. 28, 2020) ........... 23

Collin v. Rector & Bd. of Visitors of Univ. of Va.,

873 F. Supp. 1008 (W.D. Va. 1995) .............................. 20

Collins v. Christie,

2008 WL 2736418 (E.D. Pa. July 11, 2008) ................ 20

Collins v. Youngblood, 497 U.S. 37 (1990) ....................... 29

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned

Media, 589 U.S. 327 (2020)........................................... 21

Crockett v. Roberts,

2010 WL 1254656 (E.D. La. Mar. 25, 2010) ............... 22

Cummings v. Premier Rehab Keller, P.L.L.C.,

596 U.S. 212 (2022) ........................................................ 29

Page

Cases—continued:

Davis v. Matagorda County,

2019 WL 1015341 (S.D. Tex. Mar. 4, 2019) ................ 23

Davis v. Scherer, 468 U.S. 183 (1984) ................... 27, 28, 30

District of Columbia v. Wesby, 583 U.S. 48 (2018) ......... 24

Dodds v. Richardson,

614 F.3d 1185 (10th Cir. 2010) ..................................... 18

Domino’s Pizza, Inc. v. McDonald,

546 U.S. 470 (2006) ............................. 3, 5, 8, 11-14, 21, 26, 27

Ellingburg v. United States, 607 U.S. 163 (2026) ........... 29

Epps v. Hazlehurst City Sch. Dist.,

2019 WL 1210110 (S.D. Miss. Mar. 14, 2019) ............ 23

Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975) ..... 12, 13

Faulk v. City of St. Louis,

30 F.4th 739 (8th Cir. 2022) .............................. 16, 17, 19

Fields v. Trollinger,

2011 WL 3422689 (W.D.N.C. Mar. 28, 2011),

R&R adopted, 2011 WL 3421489

(W.D.N.C. Aug. 4, 2011) ............................................... 22

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) ............ 17

Gray v. Baker, 399 F.3d 1241 (10th Cir. 2005) ...... 9, 17, 18

Green v. City of St. Louis,

52 F.4th 734 (8th Cir. 2022) .......................................... 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........... 15, 17, 24

Harris v. Allstate Ins. Co.,

300 F.3d 1183 (10th Cir. 2002) ............................... 13, 14

Hibben v. Okla. ex rel. Dep’t of Veterans Affs.,

2017 WL 1239146 (N.D. Okla. Mar. 31, 2017)............ 22

Inner City Contracting, LLC v. Charter

Township of Northville,

87 F.4th 743 (6th Cir. 2023) .......................................... 14

Jackson v. City of Cleveland,

925 F.3d 793 (6th Cir. 2019) ......................................... 19

VII

Page

Cases—continued:

Johnson v. Clarksdale Pub. Utils. Comm’n,

807 F. Supp. 3d 593 (N.D. Miss. 2025) ........................ 23

Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369 (2004) ........................................................ 21

Kisela v. Hughes, 584 U.S. 100 (2018) .............................. 24

Knellinger v. Young,

2026 WL 411749 (D. Colo. Feb. 13, 2026) ................... 22

Lumry v. State,

427 P.3d 1014 (Kan. Ct. App. 2018)

(unpublished table op.) ................................................. 23

Mason v. Mass. Dep’t of Env. Prot.,

774 F. Supp. 2d 349 (D. Mass. 2011) ........................... 22

McBoyle v. United States, 283 U.S. 25 (1931) ................. 28

Miller v. Maddox, 866 F.3d 386 (6th Cir. 2017) .............. 19

Mitchell v. Forsyth, 472 U.S. 511 (1985) .......................... 17

Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006)..... 9, 16, 18

Moeinpour v. Bd. of Trs. of Univ. of Ala.,

2022 WL 164999 (N.D. Ala. Jan. 18, 2022) ................. 20

Moore v. Grady Mem’l Hosp. Corp.,

834 F.3d 1168 (11th Cir. 2016) ..................................... 14

Morrison v. Am. Bd. of Psychiatry & Neurology,

Inc., 908 F. Supp. 582 (N.D. Ill. 1996) ........................ 20

Muhammad v. Oliver,

547 F.3d 874 (7th Cir. 2008) ......................................... 15

Novak v. Federspiel, 140 F.4th 815 (6th Cir. 2025) ........ 18

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) .............................. 8, 18, 19

Olschefski v. Red Lion Area Sch. Dist.,

2012 WL 6003620 (M.D. Pa. Nov. 30, 2012) ............... 22

Painter’s Mill Grille, LLC v. Brown,

716 F.3d 342 (4th Cir. 2013) ......................................... 14

VIII

Page

Cases—continued:

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ........................................................ 26

Pearson v. Callahan, 555 U.S. 223 (2009) ........................ 17

Perry v. VHS San Antonio Partners, LLC,

142 S. Ct. 563 (2021) ...................................................... 13

Perry v. VHS San Antonio Partners, LLC,

990 F.3d 918 (5th Cir. 2021) ............................. 12, 13, 25

Radeker v. Elbert Cnty. Bd. of Comm’rs,

2016 WL 1586391 (D. Colo. Apr. 19, 2016) ................. 22

Richards v. Schoen,

2018 WL 447731 (D. Kan. Jan. 17, 2018) .................... 22

Rinne v. Camden County,

65 F.4th 378 (8th Cir. 2023) .......................................... 17

Russ v. N. Pike Sch. Dist.,

2020 WL 13682829 (S.D. Miss. Feb. 6, 2020) ............. 23

Sambasivan v. Kadlec Med. Ctr.,

338 P.3d 860 (Wash. Ct. App. 2014) ............................ 20

Shaikh v. City of Chicago,

341 F.3d 627 (7th Cir. 2003) ......................................... 15

Shirkey v. Eastwind Cmty. Dev. Corp.,

941 F. Supp. 567 (D. Md. 1996) .................................... 21

Sims v. City of Madisonville,

894 F.3d 632 (5th Cir. 2018) ......................................... 16

Smith Land Co. v. City of Fairlawn,

2023 WL 6162860 (N.D. Ohio Sept. 21, 2023) ............ 22

Smith v. City of Madison,

364 F. Supp. 3d 656 (S.D. Miss. 2018)................... 22, 23

Sockwell v. Town of Calhoun City,

2019 WL 3558173 (N.D. Miss. Aug. 5, 2019) .............. 23

Sterling Hotels, LLC v. McKay,

71 F.4th 463 (6th Cir. 2023) .................................... 18, 19

Page

Cases—continued:

Taft v. Kamen’s Art Shoppes, Inc.,

2024 WL 1388743 (M.D. Pa. Apr. 1, 2024) ................. 21

Tamayo v. Krimpelbein,

2022 WL 834422 (W.D. Wis. Mar. 21, 2022)............... 22

Taylor v. Ways, 999 F.3d 478 (7th Cir. 2021) ... 8, 9, 17, 19

Torzy v. Gronda,

2026 WL 916114 (E.D. Mich. Mar. 31, 2026) ............. 22

Town of Newton v. Rumery, 480 U.S. 386 (1987) ........... 24

United States v. Lanier, 520 U.S. 259 (1997) .................. 29

Wanamaker v. Westport Bd. of Educ.,

899 F. Supp. 2d 193 (D. Conn. 2012) ........................... 22

Williams v. Aguirre,

965 F.3d 1147 (11th Cir. 2020) ..................................... 18

Wright v. Eugene & Agnes E. Meyer Found.,

68 F.4th 612 (D.C. Cir. 2023) ....................................... 12

Ziglar v. Abbasi, 582 U.S. 120 (2017).............. 16, 17, 28, 30

Statutes:

28 U.S.C. § 1254 ..................................................................... 1

42 U.S.C.

§ 1981 ......................................................... 2-5, 7-15, 18-27

§ 1981a............................................................................. 21

§ 1983 ......................................................... 2, 3, 7, 9, 23, 24

§ 1985 ......................................................................... 16, 28

§ 2000e-5 ......................................................................... 21

Other Authorities:

Elizabeth B. Cooksey, Echols County,

New Ga. Encyclopedia (June 28, 2022),

https://tinyurl.com/48ty9bs6 .......................................... 5

Page

Other Authorities—continued:

Theodore Eisenberg & Stewart Schwab,

The Reality of Constitutional Tort Litigation,

72 Cornell L. Rev. 641 (1987) ................................. 23, 24

In the Beginning, Echols Cnty. Schs.,

https://tinyurl.com/4kzhrmt8; ........................................ 5

Restatement (Second) of Contracts (1981) ...................... 26

Search for Public School Districts, Nat’l Ctr. for

Educ. Stat., https://tinyurl.com/yfvs797m ................... 5

U.S. Courts, Federal Judicial Caseload Statistics

2025, https://tinyurl.com/327637zb.............................. 24

In the Supreme Court of the United States

SHANNON KING, ET AL.,

INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,

PETITIONERS,

DR. LANA FOSTER,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners Shannon King, et al., respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eleventh Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 169

F.4th 1291 (11th Cir. 2026). Pet.App.3a-19a. The opinion

of the district court is unreported but available at 2024

WL 2979543 (M.D. Ga. June 13, 2024). Pet.App.20a-56a.

JURISDICTION

The judgment of the court of appeals was entered on

March 18, 2026. The court of appeals denied rehearing on

May 22, 2026. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1981 provides:

(a) Statement of equal rights

All persons within the jurisdiction of the United

States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of

every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of

the contractual relationship.

The rights protected by this section are protected

against impairment by nongovernmental discrimination

and impairment under color of State law.

42 U.S.C. § 1983 provides:

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, except that in any action brought against

a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of

the District of Columbia.

STATEMENT

This case offers the Court the opportunity to resolve

two entrenched, frequently recurring, and outcome-determinative circuit splits over civil-rights claims brought

under two important and ubiquitously invoked federal

statutes, 42 U.S.C. §§ 1981 and 1983.

First, the courts of appeals are divided over whether

plaintiffs may assert contract-impairment claims under

section 1981 against defendants who are not parties to the

allegedly impaired contracts. This Court held in Domino’s Pizza, Inc. v. McDonald that only plaintiffs with

rights under the contract may bring section 1981 claims,

describing contractual privity as the “sine qua non of a

§ 1981 claim.” 546 U.S. 470, 478-80 (2006). This Court has

not yet decided, however, whether section 1981 claims

may be brought against non-contracting parties.

The circuits have charted divergent approaches in the

wake of this Court’s silence. The D.C. Circuit has disallowed third-party-impairment claims altogether,

including with respect to agents of contracting parties.

The Fifth Circuit only allows third-party-impairment

claims against a small category of defendants who are alter egos of a contracting entity. In the Third Circuit,

section 1981 claims may be brought against a contract signatory’s officers and agents if they were directly involved

in the alleged impairment. The Fourth and Tenth Circuits, meanwhile, authorize claims against third parties

who possessed and exercised sufficient authority to interfere with the plaintiff’s contract. But in addition to the

Eleventh Circuit’s decision below, the Sixth and Seventh

Circuits recognize section 1981 claims against third parties irrespective of their relationship to the at-issue

contract or contracting parties.

Second, the courts of appeals have fractured 3-2-1

over whether officials are entitled to qualified immunity

when the existence of personal liability for allegedly

wrongful conduct is not clearly established. The Eleventh

Circuit, along with the Seventh and Tenth Circuits, hold

that only the wrongfulness of the challenged conduct must

be clearly established, making the issue of whether the official knew he could be personally liable beside the point.

By contrast, the Fifth and Eighth Circuits grant qualified

immunity where an official could not have known that he

or she faced personal-damages liability at the time of the

alleged wrongdoing, and the Sixth Circuit has done so in

some but not all contexts.

These issues are exceedingly important and call for

this Court’s review to set a uniform rule. Section 1981 applies to both public and private entities, and it provides

none of the safeguards for defendants under other civilrights statutes, including damages caps, administrativeexhaustion requirements, or comparatively short statutes

of limitations. The Eleventh Circuit’s approach therefore

subjects a nearly unbounded universe of defendants to

substantial liability regardless of how tenuous their connection to the allegedly impaired contract may be. And

the Eleventh Circuit’s approach to qualified immunity—

which imposes liability on officials in their personal capacities even when they had no notice they could be held

liable—undermines the purposes of qualified immunity

and threatens to chill officials from taking decisive action

in the course of their public duties.

This case provides an ideal vehicle to decide these

questions. Each question was outcome-determinative;

had this dispute originated in the Fifth Circuit, for instance, petitioners’ non-alter-ego status, and the

uncertainty of whether section 1981 claims are cognizable

against individual government officials, would have

prompted dismissal. The Eleventh Circuit also rejected

petitioners’ qualified-immunity defense at the motion-todismiss stage. This Court therefore need not resolve disputed factual issues to address both questions presented.

The decision below got both issues wrong. The Eleventh Circuit’s sanctioning of third-party-impairment

claims cannot be squared with the text of section 1981—

which requires the existence of a “contractual relationship”—or with Domino’s Pizza—which recognized

section 1981’s focus on contractual obligations and privity.

And under this Court’s precedents, officials must have

fair warning of their potential personal damages liability.

The Court should grant certiorari and reverse.

Factual Background

Echols County School District is located in Statenville, an unincorporated community in rural southern

Georgia. In the Beginning, Echols Cnty. Schs., https://tinyurl.com/4kzhrmt8; Elizabeth B. Cooksey, Echols

County, New Ga. Encyclopedia (June 28, 2022), https://tinyurl.com/48ty9bs6. Echols County serves 917 students

across two schools, a K-8 school and a high school. In the

Beginning, supra; Search for Public School Districts,

Nat’l Ctr. for Educ. Stat., https://tinyurl.com/yfvs797m.

Respondent Dr. Lana Foster “is a 62-year-old African

American woman and resident of Echols County,” who

taught in Echols County for three decades. D. Ct. Dkt. 22

¶¶ 1, 10 (Am. Compl.). Over the past fifteen years, respondent filed multiple lawsuits against the District. She

first sued the District in 2009 after being transferred from

a regular teaching position to an alternative-school position in the 2008-2009 school year and after losing a club

leadership position. Pet.App.21a; Am. Compl. ¶¶ 93-95.

The parties reached a $40,000 settlement in 2011.

Pet.App.21a; D. Ct. Dkt. 22-6 at 4.

The U.S. Department of Education Office of Civil

Rights also filed a complaint against the District, culminating in a 2012 Resolution Agreement. Pet.App.22a.

The Resolution Agreement required the District to “develop a recruitment plan for increasing the number of

qualified black applicants,” create a hiring policy, and conduct anti-discrimination training. D. Ct. Dkt. 22-3 at 2-4;

Pet.App.22a.

In 2018, the District terminated respondent’s employment. Am. Compl. ¶¶ 99-101. Respondent then brought

two lawsuits against the District: one for race discrimination and retaliation, and another for violations of the Open

Records Act. Id. Respondent then filed charges with the

Equal Employment Opportunity Commission (EEOC),

alleging racial discrimination and retaliation. Id. ¶ 103.

In November 2020, respondent, the EEOC, and the

Echols County Board of Education entered into a Negotiated Settlement Agreement. Among other things, the

Agreement required the Board to pay respondent

$137,500, develop a written hiring procedure, and create

“a recruitment plan for increasing the number of qualified

Black applicants for teacher and professional … positions.” D. Ct. Dkt. 22-1 at 2-3. The District developed a

hiring procedure and recruitment plan in January 2022.

Am. Compl. ¶¶ 168-70.

Procedural History

1. In 2023, respondent filed this suit against the District, the Board, and petitioners Shannon King, Vincent

N. Hamm, Rocky Crosby, Bo Corbett, Patricia Gray,

Chad Pafford, and Mitchell Church, who are current or

former superintendents and Board members. Id. ¶¶ 2-7;

Pet.App.20a-21a. Respondent claimed that the Board

breached the 2020 Negotiated Settlement Agreement by

failing to “immediately” perform “[a]ll obligations” under

the Agreement and “fail[ing] to hire an African American

educator” since signing the Agreement. Am. Compl.

¶¶ 12, 83, 106-13, 144-45, 181-82.

Following a motion to dismiss, respondent filed an

amended complaint raising multiple claims under Title

VII of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, and

state law, all premised on the Board’s alleged failure to

fulfill the terms of the 2020 Negotiated Settlement Agreement. Pet.App.7a.

Petitioners, the District, and the Board again moved

to dismiss. The district court granted the motion in part.

Pet.App.20a-56a. The court dismissed all of respondent’s

claims save for the section 1981 claim premised on the impairment of respondent’s contract rights against all

defendants, including petitioners in their individual capacities, and two Title VII claims against the District and

the Board. Pet.App.55a-56a. As to the section 1981 claim,

which respondent raised through section 1983, Pet.App.8a

n.3, the court reasoned that the amended complaint adequately alleged that petitioners had breached the EEOC

Negotiated Settlement Agreement by reason of racial animus even though petitioners had not signed the

Agreement, Pet.App.41a-42a. The court also rejected petitioners’ qualified-immunity defense.

The court

concluded that it violated a clearly established right to

breach “an EEOC Settlement Agreement on the basis of

a former-employee’s race.” Pet.App.52a.

2. Petitioners filed an interlocutory appeal challenging the qualified-immunity ruling.

Pet.App.8a.

Petitioners urged that they were entitled to qualified immunity because it was unclear (1) whether section 1981

claims may be brought against non-contracting parties,

(2) whether individual government officials may be held

personally liable under section 1981, and (3) whether section 1981 requires enforcement of an explicitly raceconscious contract. 11th Cir. Dkt. 17 at 15, 24-25, 37-43.

The Eleventh Circuit affirmed, holding that the complaint alleged a violation of clearly established law.

Pet.App.3a-19a. According to the court of appeals, the

amended complaint adequately alleged that petitioners

had “impaired” the EEOC Negotiated Settlement Agreement by refusing to create “a revised hiring policy” due to

respondent’s race. Pet.App.12a. The court explained

that, under its case law, plaintiffs may base section 1981

claims on third-party contract impairment. Pet.App.13a15a. The court acknowledged that Domino’s Pizza, 546

U.S. at 479-80, held that only contracting plaintiffs can

bring section 1981 claims. But the Eleventh Circuit declined to extend Domino’s Pizza’s reasoning to section

1981 defendants. Pet.App.14a-15a.

The Eleventh Circuit also rejected petitioners’ argument that the clearly established prong turns on whether

government officials knew that they could be held personally liable for the alleged misconduct. Pet.App.16a. An

official’s liability “is completely beside the point” in the

court’s eyes. Pet.App.16a (citing Taylor v. Ways, 999

F.3d 478, 491 (7th Cir. 2021), and O’Connor v. Eubanks,

83 F.4th 1018, 1025 (6th Cir. 2023) (Thapar, J., concurring)). Instead, the Eleventh Circuit reasoned, qualified

immunity asks “whether the wrongfulness of an official’s

conduct was clearly established.” Pet.App.16a.

The court acknowledged that its decision on the conduct-versus-liability issue deepened a circuit split. The

court observed that “at least one court” (the Fifth Circuit)

“has endorsed” petitioners’ argument, but the court

parted ways with that circuit. Pet.App.18a (discussing

Modica v. Taylor, 465 F.3d 174, 188 (5th Cir. 2006)). The

court added that “the Tenth Circuit confronted the same

issue and came out the other way” and concluded that it

“agree[d]” with the Tenth Circuit’s approach.

Pet.App.18a (discussing Gray v. Baker, 399 F.3d 1241,

1245 (10th Cir. 2005)). The Eleventh Circuit also found

“instructive” a Seventh Circuit case holding that personal

liability is irrelevant to the clearly established prong.

Pet.App.17a (discussing Taylor, 999 F.3d 478). Accordingly, “whether government officials can be held

personally liable under § 1981” was “a question” for “the

merits, not immunity,” upon which the court expressed no

opinion. Pet.App.16a-19a & n.8.

The Eleventh Circuit did not address petitioners’ independent argument that there was no clearly established

right under section 1981 to enforcement of a race-conscious agreement. See Pet.App.11a-19a.

The Eleventh Circuit denied rehearing en banc.

Pet.App.1a-2a.

REASONS FOR GRANTING THE PETITION

This petition provides a clean vehicle for resolving

two entrenched and recurring circuit splits on issues of

exceptional importance for section 1981 and section 1983

plaintiffs and defendants alike.

The circuits are split over whether plaintiffs can bring

section 1981 claims against non-contracting defendants.

In the D.C. Circuit, claims against non-contracting defendants premised on alleged interference with a contract

are not cognizable, even when the defendant is the agent

of a contracting entity. The Fifth Circuit similarly disallows most third-party-impairment claims, except when

the defendant is an alter ego of a contract signatory. In

the Third Circuit, such claims may proceed against a contracting party’s officers and agents if they were

responsible for the purported interference, while in the

Fourth and Tenth Circuits, contract-impairment claims

can be brought against non-signatory defendants with

control or authority over the contract. And the Sixth, Seventh, and Eleventh Circuits allow section 1981 claims

against defendants regardless of the defendant’s relationship to the contract. Only this Court can settle the

intractable circuit conflict.

The circuits are likewise divided over whether the

clearly established prong of the qualified-immunity analysis requires officials to know that their conduct would

subject them to personal liability. The Fifth and Eighth

Circuits require that an official’s personal liability be

clearly established, as does the Sixth Circuit in the takings context. But in the decision below, the Eleventh

Circuit expressly parted ways with that approach and

joined the Seventh and Tenth Circuits, which require only

that the illegality of the official’s conduct be clearly established. This circuit split will not resolve itself without this

Court’s guidance.

Both questions are critically important. Third-partyimpairment claims subject defendants with tenuous connections to a contract to section 1981 liability. Yet section

1981 lacks many of the safeguards of other anti-discrimination statutes, making the risk of liability especially

significant. In addition, requiring officials’ personal liability to be clearly established ensures the functioning of the

qualified-immunity defense. The defense requires officials to have fair warning of both the illegality and penalty

associated with their misconduct and ensures that the fear

of damages suits does not deter officials from fulfilling

their duties. This case presents a clean vehicle for resolving both questions, as the Eleventh Circuit rejected

qualified immunity at the motion-to-dismiss stage.

The Courts of Appeals Are Intractably Split over Both

Questions Presented

The Circuits Are Sharply Divided over Section 1981’s

Applicability To Non-Contracting Defendants

Section 1981 guarantees to “[a]ll persons” the “same

right ... to make and enforce contracts” and protects that

right “against impairment.” 42 U.S.C. § 1981(a), (c). In

Domino’s Pizza, this Court settled what the statute demands of plaintiffs: A section 1981 claim must “identify

an impaired ‘contractual relationship’ ... under which the

plaintiff has rights.” 546 U.S. at 476 (citation omitted).

But Domino’s Pizza had no occasion to address the defendant’s side of the analysis, and this Court has never

decided whether section 1981 liability reaches only parties

to the impaired agreement or anyone who allegedly interferes with it.

That question has fallen to the lower courts. Below,

the Eleventh Circuit held that section 1981 reaches noncontracting defendants, joining the Sixth and Seventh

Circuits—and deepening an entrenched conflict with the

D.C. and Fifth Circuits. Three other circuits—the Third,

Fourth, and Tenth—have taken a middle-path, allowing

third-party claims in limited circumstances. The split is

stark and has persisted even after Domino’s Pizza.

1. Two circuits—the D.C. and Fifth Circuits—understand Domino’s Pizza to limit section 1981 claims against

non-contracting defendants, though to slightly different

extents.

The D.C. Circuit, for its part, does not allow thirdparty claims against non-contracting defendants—full

stop. The court rejected a section 1981 claim against a

foundation’s chief executive arising from a severance

agreement that the executive had signed on behalf of the

foundation. The D.C. Circuit disallowed the claim against

the executive because the former-employee plaintiff could

not sue the executive “individually.” Wright v. Eugene &

Agnes E. Meyer Found., 68 F.4th 612, 624 (D.C. Cir.

2023). The parties “did not have a contractual relationship,” so section 1981 did not apply. Id. (citing Domino’s

Pizza, 546 U.S. at 476). By contrast, the plaintiff’s claim

against the foundation could proceed, because the foundation was a party to the severance agreement. See id. at

618, 623-24.

The Fifth Circuit also severely limits section 1981’s

reach. The court allows third-party claims when the defendant is an alter ego of a contract signatory. Perry v.

VHS San Antonio Partners, LLC, 990 F.3d 918 (5th Cir.

2021), shows the circuit’s rule at work. Dr. Melvin Perry,

a Black physician, staffed a hospital’s intensive-care unit

under a contract between the hospital and his physician

group. The hospital demanded his removal; the group

complied; and Perry sued the hospital under section 1981.

Id. at 924-25. The Fifth Circuit rejected Perry’s claim at

the threshold. Because the hospital was not a party to the

agreement it allegedly impaired, it could face liability only

if it and the physician group were “essentially one and the

same.” Id. at 933. They were not, so section 1981 provided

no relief.

In so doing, Perry distinguished Faraca v. Clements,

506 F.2d 956 (5th Cir. 1975). That case involved a state

facility’s refusal to hire the plaintiff because he was in a

mixed-race marriage. Id. at 958. The plaintiff sued the

hiring director under section 1981; his claim succeeded

“despite the fact that the [d]irector was, strictly speaking,

a third party.” Perry, 990 F.3d at 932. The reason? The

director “was only nominally a third party” and was “essentially one and the same” as the State. Id. at 932-33

(citation omitted).

In Perry, the Fifth Circuit disclaimed “a true thirdparty-interference theory of § 1981 liability,” id. at 933,

and held that claims against non-contracting parties can

succeed only if the defendant and the contract signatory

meet the strict one-and-the-same standard articulated in

Faraca. And unless that standard is met, according to the

Fifth Circuit, Domino’s Pizza forecloses third-party

claims. See id. at 931 (“[A] plausible § 1981 claim” requires “an ‘impaired contractual relationship with [the

defendant] under which [the plaintiff] had rights.’”

(cleaned up) (quoting Domino’s Pizza, 546 U.S. at 476)).1

2. The Third, Fourth, and Tenth Circuits occupy a

middle ground, permitting third-party-impairment claims

against a larger (yet still limited) universe of defendants.

The Third Circuit has said that section 1981 “is in the nature of a tort remedy” under which the corporate officers

and agents of a contracting party “may be liable for injuries suffered by third parties because of [their] torts.” AlKhazraji v. St. Francis Coll., 784 F.2d 505, 518 (3d Cir.

1986), aff’d, 481 U.S. 604 (1987). In the Fourth and Tenth

Circuits, a non-contracting party may be sued, but only if

he or she “possessed sufficient authority to significantly

interfere with the individual’s ability to … contract[] with

third parties” and “actually exercised that authority” to

the plaintiff’s detriment. Harris v. Allstate Ins. Co., 300

F.3d 1183, 1197 (10th Cir. 2002); accord Painter’s Mill

Grille, LLC v. Brown, 716 F.3d 342, 351 (4th Cir. 2013).

This Court denied review in Perry. 142 S. Ct. 563 (2021). But Perry

was a poor vehicle: It arose on summary judgment with fact-bound

disputes over whether the hospital even employed Perry.

3. Three circuits, including the Eleventh Circuit below, reject a privity requirement outright. These courts

read section 1981 to protect contractual rights “against

impairment” no matter who does the impairing. The decision below is the most recent example. The at-issue

settlement agreement was between respondent and the

Echols County Board of Education; petitioners never

signed it in their individual capacities. The Eleventh Circuit nonetheless held that respondent stated a section

1981 claim against petitioners, who allegedly “impaired

[respondent’s] ability to reap the full benefits of her contract with the district.” Pet.App.19a. The court rejected

the notion that Domino’s Pizza limits section 1981 claims

to contracting defendants. Pet.App.14a-15a. And under

the court’s precedents, section 1981 provides for “thirdparty liability.” Pet.App.15a; see Moore v. Grady Mem’l

Hosp. Corp., 834 F.3d 1168, 1172 (11th Cir. 2016) (permitting a section 1981 suit over “a contract with a third

party”).

The Sixth Circuit agrees. In Inner City Contracting,

LLC v. Charter Township of Northville, 87 F.4th 743 (6th

Cir. 2023), a minority-owned demolition contractor lost a

municipal contract after the township’s outside consultant

allegedly disparaged its qualifications, steering the award

to a white-owned bidder with a higher price. Id. at 749.

The contractor and consultant had no contractual relationship. But the Sixth Circuit sustained a section 1981

claim against the consultant anyway. The court explained

that plaintiffs may “vindicate their rights under § 1981

against third parties who interfere with those rights, even

if they were not party to the contract.” Id. at 755 n.7. That

the contractor “did not ... contract with [the consultant]

does not affect the validity of [its] § 1981 claim.” Id.

So too in the Seventh Circuit. There, “tortious interference with contract rights violates section 1981 when

the motivation for the interference is racial.” Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008). That is

so even when the interferer “is not a party to the contracts.” Id. And like the Fifth Circuit’s contrary

approach, the Seventh Circuit’s rule stretches back decades. See Shaikh v. City of Chicago, 341 F.3d 627, 630 (7th

Cir. 2003) (“[A] third party’s interference ... can support

civil-rights claims under §[] 1981 ….”); accord Bronson v.

Ann & Robert H. Lurie Child.’s Hosp., 69 F.4th 437, 452

(7th Cir. 2023) (agreeing that “a defendant’s interference

with a plaintiff’s ... contract with another party can … support a claim under section 1981”).

The Circuits Are Squarely Divided over Whether an

Official’s Personal Liability Must Be Clearly Established To Overcome Qualified Immunity

Qualified immunity shields officials from damages

when “their conduct d[id] not violate clearly established

statutory or constitutional rights.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). This case presents a question

antecedent to every application of that standard: what,

exactly, must be clearly established? In the decision below, the Eleventh Circuit recognized a conflict in the

circuits on the issue while reaffirming its precedent holding that qualified immunity turns only on the lawfulness

of the official’s conduct. But three circuits have embraced

a broader approach that also considers whether the rules

of personal liability are settled.

1. On one side of the split, the Fifth and Eighth Circuits each hold that the qualified-immunity analysis

considers uncertainty about an official’s personal liability.

In other words, if existing law leaves doubt that the underlying statute or constitutional provision exposes

officials to damages, then immunity attaches regardless

of how plainly their conduct allegedly violates the law.

The Fifth Circuit holds that officials are entitled to

qualified immunity unless it was clearly established that

they “could be liable in their individual capacities” for the

challenged conduct. Modica, 465 F.3d at 188. In Modica,

the executive director of a Texas agency fired an inspector

who had requested leave under the Family and Medical

Leave Act (FMLA). Id. at 177-78. The court held that the

FMLA subjects public employees to suit in their individual capacities—and then, in the same opinion, granted the

director qualified immunity because that holding “was not

clearly established” when she acted. Id. at 187-88. The

conduct’s illegality was never in doubt; only the official’s

personal exposure to liability was unsettled.

The Fifth Circuit regularly grants immunity because

of “inconsistency in” or “mixed up principles of … liability.” Buchanan v. Alexander, 919 F.3d 847, 855-56 (5th

Cir. 2019) (alteration in original) (quoting Sims v. City of

Madisonville, 894 F.3d 632, 641 (5th Cir. 2018)).

The Eighth Circuit is in the same camp. After this

Court declined to determine in Ziglar v. Abbasi, 582 U.S.

120 (2017), whether the intracorporate conspiracy doctrine bars 42 U.S.C. § 1985(3) conspiracy claims against

officers of a single entity, the Eighth Circuit held that

commanders who planned the mass “kettling” (or containment) of protestors were immune from conspiracy claims

because personal “liability was not clearly established.”

Faulk v. City of St. Louis, 30 F.4th 739, 750 (8th Cir.

2022). Reasonable officers could not “have known with

any certainty,” id. (quoting Ziglar, 582 U.S. at 155), that

they faced personal “damage liability for a … conspiracy

claim,” id. (emphasis omitted); accord Green v. City of St.

Louis, 52 F.4th 734, 741 (8th Cir. 2022). Indeed, when the

Eighth Circuit denies qualified immunity, it first takes

care to establish officials’ personal liability. See Rinne v.

Camden County, 65 F.4th 378, 385 (8th Cir. 2023) (confirming that “a single member of a governing board can

be liable for voting in favor of an unconstitutional government action”). The Eighth Circuit therefore reads this

Court’s precedents to require consideration of officials’

knowledge of their personal exposure to liability. See

Faulk, 30 F.4th at 750 (discussing cases such as Ziglar,

582 U.S. at 155); infra Part III.B.

2. In direct contrast, the Seventh, Tenth, and Eleventh Circuits each confine the clearly established prong to

whether officials’ conduct violated a clearly established

right.

The Seventh Circuit adopted this rule in Fields v.

Wharrie, 740 F.3d 1107 (7th Cir. 2014), where a prosecutor who fabricated witness testimony insisted that his

exposure to damages was unsettled. “[T]he immunity,”

the court held, “depends on the official’s acts,” not “the

existence of a cause of action.” Id. at 1114. The Seventh

Circuit has since put it bluntly: A defendant who frames

the inquiry around liability “asks the wrong question

about qualified immunity.” Taylor, 999 F.3d at 491. According to the Seventh Circuit, that outcome follows from

this Court’s cases that do not squarely address the question presented but imply that the legality of the official’s

conduct is the proper focus. Id. (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009); Behrens v. Pelletier, 516

U.S. 299, 305 (1996); Anderson v. Creighton, 483 U.S. 635,

638 (1987); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985);

Harlow, 457 U.S. at 818).

The Tenth Circuit agrees. In Gray, college officials

fired an employee after she sought FMLA leave and then

claimed immunity because their individual liability was an

open question. 399 F.3d at 1243-44. In other words, the

defendants made the very same argument that carried

the day in Modica in the Fifth Circuit. But the Tenth Circuit refused to treat the unsettled nature of personal

liability as a qualified-immunity defense at all. The officials could not claim “they were unaware that a particular

course of conduct would be violative.” Id. at 1245 (emphasis added). Whether they were “subject to individual

liability under the FMLA” was a “question of … statutory

construction that” the Tenth Circuit thought “had no

bearing on the decisions defendants made.” Id.; see

Dodds v. Richardson, 614 F.3d 1185, 1206 (10th Cir. 2010)

(explaining that immunity “asks [about] … ‘the right,’”

not whether the defendant “could be liable in his individual capacity” (citation and emphasis omitted)).

The Eleventh Circuit sees the issue similarly. In Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020), officers

sought immunity where there was inter- and intra-circuit

conflict over the availability of Fourth Amendment malicious-prosecution claims. The court denied immunity,

holding that “those doctrinal tensions concerned only …

the vehicle ... [for] liability,” not the legality of the conduct. Id. at 1169. The decision below applied the same

logic to petitioners. As the decision below acknowledged,

“uncertainty exists about whether government officials

can be held personally liable under § 1981.” Pet.App.16a.

But the Eleventh Circuit held that this uncertainty is irrelevant to the qualified-immunity analysis, because

immunity looks to the legality of petitioners’ conduct rather than their personal liability. Pet.App.16a-19a.

3. The Sixth Circuit, for its part, straddles the divide

depending on the context. In takings cases, officials are

immune from takings claims as a class because “individual

liability for takings claims is not clearly established.” Novak v. Federspiel, 140 F.4th 815, 821 (6th Cir. 2025)

(quoting O’Connor, 83 F.4th at 1022); see Sterling Hotels,

LLC v. McKay, 71 F.4th 463, 468 (6th Cir. 2023). Because

“no court in th[e] [Sixth] [C]ircuit ha[s] yet decided

whether an officer c[an] be liable for a taking in his individual capacity,” an officer’s “potential individual liability”

is “not clearly established,” conferring qualified immunity. McKay, 71 F.4th at 468.

By contrast, the Sixth Circuit jettisoned the focus on

personal liability from the clearly established analysis in

two malicious-prosecution cases. In that context, the

Sixth Circuit opined that the lack of clarity surrounding

the contours of personal liability for malicious prosecution

“misses the point.” Miller v. Maddox, 866 F.3d 386, 395

(6th Cir. 2017). Instead, the relevant inquiry was whether

the defendant’s “alleged actions … violated [the plaintiff’s] clearly established constitutional rights.” Id.;

accord Jackson v. City of Cleveland, 925 F.3d 793, 826 (6th

Cir. 2019).

The lower courts have acknowledged the divide. Below, the Eleventh Circuit noted the Fifth Circuit’s

contrary rule and characterized that court as “ha[ving]

endorsed the misunderstanding” that unsettled rules of liability confer immunity. Pet.App.18a. And in the Sixth

Circuit, Judge Thapar has acknowledged that his court

applies a liability-focused rule (in the takings context)

while encouraging a different path. See O’Connor, 83

F.4th at 1025 (Thapar, J., concurring). Given that the circuits interpret this Court’s body of qualified-immunity

precedent to require different outcomes, compare, e.g.,

Faulk, 30 F.4th at 750 (holding liability relevant), with,

e.g., Taylor, 999 F.3d at 491 (considering only conduct),

this Court’s intervention is required.

II. The Questions Presented Are Important, Recurring, and

Squarely Presented

1. Section 1981’s applicability to non-contracting defendants presents an issue of crucial importance. The

approach followed below opens the floodgates to section

1981 claims against individuals and entities with only tangential relationships to the contracting parties and

without authority or control over the contract.

The risk of attenuated section 1981 claims proceeding

past dismissal is not merely hypothetical, as examples

from the caselaw confirm. In one case, a nurse sued the

estate of a deceased nursing-home resident under section

1981 after the resident falsely accused the nurse of assault, thereby purportedly interfering with the nurse’s

employment contract with the nursing home. Collins v.

Christie, 2008 WL 2736418, at *9-12 (E.D. Pa. July 11,

2008) (surviving summary judgment). “[F]ellow employee[s]” have been sued under section 1981 for allegedly

impairing another employee’s contract with the employer.

Collin v. Rector & Bd. of Visitors of Univ. of Va., 873 F.

Supp. 1008, 1015 (W.D. Va. 1995). Such claims against employees have survived even when the defendant “had no

supervisory or decisionmaking authority over” the plaintiff. Moeinpour v. Bd. of Trs. of Univ. of Ala., 2022 WL

164999, at *3 (N.D. Ala. Jan. 18, 2022).

Entities also have been subject to tenuous section

1981 claims. A doctor sued a medical licensing board under section 1981 after the doctor failed to pass the boardcertification exam, thereby purportedly impeding the doctor’s ability to contract with future employers. Morrison

v. Am. Bd. of Psychiatry & Neurology, Inc., 908 F. Supp.

582, 589 (N.D. Ill. 1996); see also Sambasivan v. Kadlec

Med. Ctr., 338 P.3d 860, 863, 867, 871 (Wash. Ct. App.

2014) (allowing claim that hospital’s suspension of privileges interfered with doctor’s ability to contract with

prospective patients). A national religious organization

became the subject of a section 1981 suit after it allegedly

interfered with the employment relationship between the

plaintiff and a local charity by attaching strings to a grant

to the local charity. Shirkey v. Eastwind Cmty. Dev.

Corp., 941 F. Supp. 567, 571, 574-75 (D. Md. 1996). And a

plaintiff recently sued an amusement-park kiosk under

section 1981 for interfering with the customer’s contract

with the amusement park. Taft v. Kamen’s Art Shoppes,

Inc., 2024 WL 1388743, at *1, *3-4 (M.D. Pa. Apr. 1, 2024).

The universe of defendants affected by the specter of

third-party liability is substantial, because section 1981

reaches both public and private actors. 42 U.S.C.

§ 1981(c). Section 1981 defendants thus run the gamut

from school-board members to Fortune 50 companies.

E.g., Pet.App.7a; cf. Comcast Corp. v. Nat’l Ass’n of Afr.

Am.-Owned Media, 589 U.S. 327, 330 (2020) (considering

claim among contracting parties).

Unlike other anti-discrimination statutes, such as Title VII, section 1981 offers fewer protections for

defendants. There are no damages caps or administrative-exhaustion requirements for section 1981 claims,

while Title VII defendants enjoy both protections. Compare 42 U.S.C. § 1981 (no guardrails), with id.

§§ 1981a(b)(3) (Title VII damages caps), 2000e-5(e) (Title

VII administrative-exhaustion requirement). And the

four-year statute of limitations that applies to many section 1981 claims, see Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369, 371, 383 (2004), far exceeds the 180-day limitations period to file a charge with the EEOC for a Title

VII claim, see 42 U.S.C. § 2000e-5(e)(1). As a result, section 1981 defendants may be faced with costly litigation

and enormous damages awards for interfering with contracts they never even signed.

At bottom, in most circuits, section 1981 has been distorted into “an omnibus remedy for all racial injustice”—

something this Court has made clear section 1981 was

never intended to be. Domino’s Pizza, 546 U.S. at 479.

This Court’s intervention is desperately needed to create

uniformity in section 1981’s liability.

2. Clarifying qualified immunity’s clearly established

prong is also extremely important. The split means that

officials sued for comparable conduct face different outcomes depending on the circuit.

The issue of whether unsettled personal liability affects the clearly established prong has arisen repeatedly

in the FMLA and takings contexts, as discussed above.2

See supra Part I.B. But the issue arises in other contexts

too. For instance, a district court awarded qualified immunity due to uncertainty over “[w]hether a nonfinal

decisionmaker can be individually liable for first amendment retaliation.” Smith v. City of Madison, 364 F. Supp.

See also Tamayo v. Krimpelbein, 2022 WL 834422, at *4 (W.D. Wis.

Mar. 21, 2022) (rejecting qualified-immunity defense premised on unsettled liability in FMLA context); Richards v. Schoen, 2018 WL

447731, at *5-6 (D. Kan. Jan. 17, 2018) (same); Hibben v. Okla. ex rel.

Dep’t of Veterans Affs., 2017 WL 1239146, at *6-7 (N.D. Okla. Mar.

31, 2017) (same); Radeker v. Elbert Cnty. Bd. of Comm’rs, 2016 WL

1586391, at *2-3 (D. Colo. Apr. 19, 2016) (same); Olschefski v. Red

Lion Area Sch. Dist., 2012 WL 6003620, at *13 (M.D. Pa. Nov. 30,

2012) (same); Mason v. Mass. Dep’t of Env. Prot., 774 F. Supp. 2d

349, 371-72 (D. Mass. 2011) (same); Brunson v. Forest Preserve Dist.

of Cook Cnty., 2010 WL 780331, at *8 (N.D. Ill. Mar. 3, 2010) (same);

Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 204 (D.

Conn. 2012) (awarding qualified immunity due to unsettled liability in

FMLA context); Fields v. Trollinger, 2011 WL 3422689, at *9

(W.D.N.C. Mar. 28, 2011), R&R adopted, 2011 WL 3421489

(W.D.N.C. Aug. 4, 2011) (same); Crockett v. Roberts, 2010 WL

1254656, at *6 (E.D. La. Mar. 25, 2010) (same); Knellinger v. Young,

2026 WL 411749, at *10-11 (D. Colo. Feb. 13, 2026) (awarding qualified immunity due to unsettled liability in takings context); Torzy v.

Gronda, 2026 WL 916114, at *5 (E.D. Mich. Mar. 31, 2026) (same);

Brenden v. Castro, 2025 WL 2771834, at *6 (N.D.N.Y. Sept. 26, 2025)

(same); Smith Land Co. v. City of Fairlawn, 2023 WL 6162860, at *10

(N.D. Ohio Sept. 21, 2023) (same).

3d 656, 661-62 (S.D. Miss. 2018).3 Similarly, qualified immunity resulted in dismissal because it was unsettled that

“individual commissioners serving on a multi-member

board could be held personally liable for the collective decision of the board” to terminate the plaintiff. Johnson v.

Clarksdale Pub. Utils. Comm’n, 807 F. Supp. 3d 593, 611

(N.D. Miss. 2025). So too a superintendent, principal, and

teacher were entitled to qualified immunity when “the

‘scope of individual liability under § 1981 remain[ed] unclear’”—essentially the same context as this case, but with

the opposite outcome. See Russ v. N. Pike Sch. Dist., 2020

WL 13682829, at *4 (S.D. Miss. Feb. 6, 2020) (citation

omitted).4

The guardrails imposed by qualified immunity matter

because unbounded section 1983 litigation poses “a serious threat to the fiscal health of cities and counties.”

Theodore Eisenberg & Stewart Schwab, The Reality of

Constitutional Tort Litigation, 72 Cornell L. Rev. 641,

650 (1987). In addition to the “inordinate amounts of

money [needed] to satisfy judgments” (including by indemnifying local officials like petitioners), local

governments may also need to reimburse plaintiffs’ attorney fees and pay sky-high liability-insurance premiums.

Id. at 650-51.

Accord Carter v. Yazoo City, 2020 WL 13682497, at *4 (S.D. Miss.

Jan. 28, 2020); Sockwell v. Town of Calhoun City, 2019 WL 3558173,

at *3 (N.D. Miss. Aug. 5, 2019); Epps v. Hazlehurst City Sch. Dist.,

2019 WL 1210110, at *2 (S.D. Miss. Mar. 14, 2019); Davis v. Matagorda County, 2019 WL 1015341, at *12 (S.D. Tex. Mar. 4, 2019).

See also Lumry v. State, 427 P.3d 1014, at *8 (Kan. Ct. App. 2018)

(unpublished table op.) (rejecting qualified-immunity argument

premised on uncertainty over personal liability for Fair Labor Standards Act claims).

And the number of civil-rights cases is only growing.

See U.S. Courts, Federal Judicial Caseload Statistics

2025, https://tinyurl.com/327637zb. “Many [of these suits]

are marginal and some are frivolous.” Town of Newton v.

Rumery, 480 U.S. 386, 395 (1987). Yet even if a section

1983 lawsuit ultimately fails, “the burden of defending

such lawsuits is substantial.” Id.

Additionally, the possibility of liability can affect how

officials perform their duties. See id. at 396. Officials may

“refrain from acting,” “delay their actions,” or “substitute

safe actions for riskier, but socially more desirable, actions.” Eisenberg & Schwab, supra, at 652 (cleaned up).

And “able citizens” may decline to take up public office.

Harlow, 457 U.S. at 814.

These dynamics underscore the importance of maintaining qualified immunity’s scope.

The Eleventh

Circuit’s approach “undermine[s] the values qualified immunity seeks to promote,” see District of Columbia v.

Wesby, 583 U.S. 48, 62 (2018) (citation omitted), which include “giving fair and clear warning to officers,” Kisela v.

Hughes, 584 U.S. 100, 105 (2018) (citation omitted). Eliminating the availability of qualified immunity in this case

and others like it threatens municipal budgets and officials’ efficacy alike.

3. This case presents an ideal vehicle for resolving

both questions presented. The Eleventh Circuit addressed each issue head on, Pet.App.11a-19a, and rejected

petitioners’ arguments that they were entitled to qualified

immunity as non-contracting parties and because their individual liability under section 1981 was not clearly

established, making the questions outcome-determinative.

As to the first question presented, had this case arisen

in the D.C. or Fifth Circuits, it would have ended at the

pleadings. Petitioners never signed the Negotiated Settlement Agreement as individuals, which would have

stopped respondent’s section 1981 claim in its tracks in

the D.C. Circuit. And the amended complaint provides no

non-conclusory factual allegations indicating that petitioners “are ‘essentially one and the same’” as the Board,

which did sign the agreement, knocking out respondent’s

claim in the Fifth Circuit, too. See Perry, 990 F.3d at 933

(citation omitted).

The split on qualified immunity also was outcome-determinative. There is no dispute that it is an open

question in the Eleventh Circuit whether public individuals are liable under section 1981. See Pet.App.16a-19a &

n.8 (declining to decide personal-liability issue). And because petitioners’ personal liability as government

officials under section 1981 was not clearly established,

they would have been entitled to qualified immunity had

this case arisen in the Fifth or Eighth Circuits. But in the

Eleventh Circuit, petitioners face liability for allegedly

impairing a contract they had no power to breach even

though their susceptibility to a section 1981 suit was unclear. And because this case sits at the motion-to-dismiss

stage, the Court need not wade into a messy factual record to decide these questions.

III. The Decision Below Is Incorrect

The Eleventh Circuit Erred by Allowing Third-PartyImpairment Claims

Section 1981’s text and Domino’s Pizza require reversal on the first question presented.

Section 1981 protects the right “to make and enforce

contracts,” which includes “the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of

the contractual relationship.” 42 U.S.C. § 1981(a)-(b).

Only contracting parties have any role in making, performing under, modifying, or terminating their contracts.

See, e.g., Restatement (Second) of Contracts §§ 9, 89, 318,

368 (1981) (discussing making, modification, performance,

and termination by parties or their delegees). Likewise,

only contracting parties and, potentially, intended beneficiaries enjoy a contractual relationship’s “benefits,

privileges, terms, and conditions.” See, e.g., id. § 302 (discussing intended versus incidental beneficiaries). That

section 1981(b)’s protected activities are generally taken

only by contracting parties in a “contractual relationship”

demonstrates that section 1981 claims must be brought

against contracting parties, not third parties.

The decision below also is inconsistent with Domino’s

Pizza. There, this Court explained that “[a]ny claim

brought under § 1981 … must initially identify an impaired ‘contractual relationship,’ under which the

plaintiff has rights.” 546 U.S. at 476 (emphasis added) (citation omitted). As a result, “contractual privity” is “a

sine qua non of a § 1981 claim.” Id. at 478. The Court also

pointed to Congress’ amendment of section 1981 in 1991,

which added subsection (b)’s list of contract rights; the

Court explained that the “reference to a ‘contractual relationship’” in subsection (b) “positively reinforced”

section 1981’s “focus upon contract obligations.” Id. at 477

(citing Patterson v. McLean Credit Union, 491 U.S. 164,

176 (1989)). And the Court clarified that section 1981

serves to protect a limited universe of parties with clear

ties to the at-issue contract, i.e., “those who already have

made contracts,” “the would-be contractor,” and, “possib[ly], … a third-party intended beneficiary of a

contract.” Id. at 476 & n.3.

The Eleventh Circuit, however, reasoned that because “Domino’s did not consider th[e] question” of

whether “a defendant must be a party to the contract for

a § 1981 claim to follow,” the court was bound by preDomino’s Pizza precedent. Pet.App.14a-15a. The decision below therefore did not consider whether the

Eleventh Circuit’s prior authorization of third-party-impairment claims is consistent with either section 1981’s

text (including subsection (b), which postdates the Eleventh Circuit’s prior precedent) or this Court’s emphasis in

Domino’s Pizza of the centrality of “contractual relationship,” “contract obligations,” and “privity” to section 1981

claims. 546 U.S. at 477-78. By permitting third-party-impairment claims, the Eleventh Circuit has effectively

transformed section 1981 into “a strange remedial provision designed to fight racial animus in all of its noxious

forms” so long as a plaintiff can “somehow connect[]” her

contract to the non-contracting third party’s alleged “animus and the hurt it produced,” regardless of how

attenuated that connection may be. See id. at 476.

The Eleventh Circuit Erred in Declining To Require

Personal Liability To Be Clearly Established

The Eleventh Circuit’s holding that the qualified-immunity analysis does not consider whether the

defendant’s personal liability was clearly established is

likewise at odds with this Court’s qualified-immunity

precedents and the purpose of qualified immunity.

This Court has repeatedly characterized officials’

awareness of their potential exposure to damages liability

as relevant to qualified immunity. In Davis v. Scherer, for

example, the Court explained that “officials can act without fear of harassing litigation only if they reasonably can

anticipate when their conduct may give rise to liability for

damages.” 468 U.S. 183, 195 (1984). The Court therefore

rejected the notion “that a defendant official’s violation of

a clear statute or regulation, although not itself the basis

of suit, should deprive the official of qualified immunity,”

because such an approach would make it “more difficult

… for officials to anticipate the possible legal consequences of their conduct.” Id. at 193, 196. Additionally,

the Court opined that “officials sued for violations of

rights conferred by a statute … forfeit their immunity …

[and] become liable for damages only to the extent that

there is a clear violation of the statutory rights that give

rise to the cause of action for damages.” Id. at 194 n.12.

Similarly, in Ziglar, the Court held that the petitioners were entitled to qualified immunity because their

“potential liability for this statutory offense would not

have been known or anticipated by reasonable officials in

their position.” 582 U.S. at 152. That outcome stemmed

in part from confusion in the lower courts over whether

the challenged conduct violated the statute at issue, i.e.,

“whether or not a [42 U.S.C.] § 1985(3) conspiracy can

arise from official discussions between or among agents of

the same entity.” Id. at 153-54. As the Court saw things,

“[w]hen the [lower] courts are divided on an issue so central to the cause of action alleged, a reasonable official

lacks the notice required before imposing liability.” Id. at

154.

Qualified immunity must therefore account for government officials’ ability to forecast their exposure to

damages liability. Officials thus must know both what conduct is unlawful and whether they may be liable in their

personal capacities for engaging in such conduct.

The same principle applies across analogous contexts.

In the criminal-law context, the Due Process Clause requires that “a fair warning … be given to the world in

language that the common world will understand, of what

the law intends to do if a certain line is passed.” McBoyle

v. United States, 283 U.S. 25, 27 (1931). That requirement

includes “fair notice” with respect to the “penalties for …

violations” of a particular statute. Bittner v. United

States, 598 U.S. 85, 102-03 (2023). For example, where tax

professionals were “seemingly warned of per-report, not

per-account, penalties for non-willful violations,” it would

be a “a serious fair-notice problem” to impose “per-account penalties.” Id. at 102.

The same is true under the Ex Post Facto Clause,

which requires notice of the amount and nature of the

punishment and not just the illegality of the defendant’s

conduct. See Collins v. Youngblood, 497 U.S. 37, 43 (1990);

Ellingburg v. United States, 607 U.S. 163, 176 (2026)

(Thomas, J., concurring).

So too, in the Spending Clause context, this Court has

required “fair” and “clear notice regarding the liability” a

recipient of federal funds may face. Arlington Cent. Sch.

Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, 304

(2006). Specifically, funding recipients must be “on notice” of not only “the scope of conduct” that may give rise

to damages liability but also their “expos[ure] … to liability of [a particular] nature,” like punitive damages.

Barnes v. Gorman, 536 U.S. 181, 186-87 (2002); see also

Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S.

212, 220 (2022).

Those principles apply with equal force to the clearly

established inquiry. After all, qualified immunity “in effect … is simply the adaptation of the fair warning

standard to give officials (and, ultimately, governments)

the same protection from civil liability and its consequences that individuals have traditionally possessed in

the face of vague criminal statutes.” United States v. Lanier, 520 U.S. 259, 270-71 (1997). As a result, for purposes

of qualified immunity, fair warning is required as to both

the conduct that violates federal rights and the potential

penalties (e.g., personal-damages liability) that may be

imposed for such violations.

The Eleventh Circuit’s approach also weakens the

protections qualified immunity affords to government officials. Qualified immunity protects officials tasked with

“mak[ing] close decisions in the exercise of the broad authority that necessarily is delegated to them” and with

“act[ing] swiftly and firmly at the risk that action deferred

will be futile or constitute virtual abdication of office.”

Davis, 468 U.S. at 196 (citation omitted). By refusing to

consider officials’ ability to reasonably anticipate their exposure to personal-damages liability, the Eleventh

Circuit’s rule risks discouraging officials from taking swift

and firm action, as well as chilling their decision-making.

See id.; Ziglar, 582 U.S. at 154.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

BETH F. MORRIS

BENNETT DAVIS BRYAN

PARKER POE ADAMS &

BERNSTEIN LLP

1075 Peachtree Street N.E.,

Suite 1500

Atlanta, GA 30309

AUGUST 20, 2026

LISA S. BLATT

Counsel of Record

AMY MASON SAHARIA

ERIN M. SIELAFF

CHRISTIAN J. GLADDENSORENSEN

WILLIAMS & CONNOLLY

LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.