U.S. Supreme Court Hears Arguments On Immunity For Private Attorney Retained By Government

WASHINGTON, D.C. - (Mealey's) When a private attorney is temporarily retained by the government to work with or under government employees, that attorney is entitled to the same qualified immunity that government employees receive, the attorney representing Steve A. Filarsky told the U.S. Supreme Court Jan. 17 (Steve A. Filarsky v. Nicholas B. Delia, No. 10-1018, U.S. Sup.) ( subscribers may access Supreme Court briefs for this case).

(Oral arguments transcript.  Document #73-120210-002T.)


"That rule comports with the history and policy concerns that have animated this Court's [42 U.S. Code] section 1983 and immunity jurisprudence," Patricia A. Millett of Akin, Gump, Strauss, Hauer & Feld in Washington added. 

Multiple Excused Absences

In July 2000, Nicolas Delia was hired by the Fire Department of the City of Rialto, Calif., to work as a firefighter.  He was later promoted to engineer.  But in 2006, as a result of a disciplinary decision, Delia was demoted to firefighter.

On Aug. 10, 2006, Delia began to feel ill while working to control a toxic spill.  He was taken to a hospital emergency room where a doctor gave him an off-duty work order for three work shifts.  The doctor, however, did not place Delia on any activity restrictions.

On Aug. 15, Delia returned to the hospital where the doctor again gave him an off-duty work order.  This time, the order was for eight shifts.  The doctor also scheduled Delia for a medical test.  Once more, Delia was not placed on any activity restrictions. 

Delia went to the hospital again on Aug. 22 and was given an off-duty work order for eight shifts.  Shortly after this visit, Delia underwent a colonoscopy and endoscopy.  He was diagnosed with esophagitis.  On Aug. 29, Delia's doctor issued him an off-duty work order from that day through Sept. 3. 

Internal Investigation

The city was suspicious of Delia's off-work status based on his disciplinary history and hired a private investigation firm to conduct surveillance on Delia.  During this surveillance, Delia was filmed buying building supplies, including several rolls of fiberglass building insulation.  Based on these observations, the city began a formal internal affairs investigation of Delia even though Delia had no activity restrictions placed on him by his treating physician.

As part of the investigation, Delia was ordered to appear Sept. 18 for an administrative investigation interview.  The interview was conducted by Filarksky, a private attorney retained by the city.  Also present at the interview were Delia's attorney Stuart Adams and Battalion Chiefs Mike Peel and Frank Bekker. 

Filarsky questioned Delia about home construction projects he was undertaking in his home.  Delia answered that he had some duct work done and had purchased some rolls of insulation.  Delia claimed that the insulation was still sitting bagged up in his home.  Filarsky then took a break and conferred with Peel and Bekker and with Fire Chief Stephen Wells.  With Wells' permission, Filarksy then asked Delia to allow Peel to follow him to his home and conduct a warrantless search of the insulation there.  Delia refused.

Filarksy then ordered Delia to produce the rolls of insulation from his home.  When Adams questioned Filarsky's authority and requested the order in writing, Delia was presented with a written order to produce the insulation signed by Wells. 

Insulation Produced

Immediately after the interview, Peel and Bekker followed Delia to Delia's home.  When Delia produced the insulation, Peel and Bekker left. 

On May 21, 2008, Delia sued the city, the fire department, Wells, Peel, Bekker and Filarsky in the U.S. District Court for the Central District of California.  The defendants moved for summary judgment.  The District Court granted the motions, finding that Delia had not established municipal liability against the city and that he failed to show that he was injured by an express policy, a longstanding custom or an official with final policymaking authority.  The District Court also found that Wells, Peel and Bekker were entitled to qualified immunity.  As for Filarsky, the District Court found that his conduct did not result in the deprivation of any constitutional right.  Delia appealed.

A Ninth Circuit U.S. Court of Appeals panel opined that Delia's right under the Fourth Amendment to the U.S. Constitution to be protected from a warrantless unreasonable search of his home was violated.  However, because that right was not clearly established at the time, the panel affirmed the order granting qualified immunity to Wells, Peel and Bekker.  The panel also affirmed the grant of summary judgment with regard to the city's liability but reversed the grant of qualified immunity to Filarsky.  Filarsky then petitioned the U.S. Supreme Court.

Government's Arguments

Presenting oral arguments for the United States in support of Filarsky, Assistant to the Solicitor General Nicole A. Saharsky argued, "Petitioner may assert qualified immunity on the same terms as the fire department officials, because he was working side-by-side with them and under their supervision on a personnel investigation.  And this is really exactly the situation that the Court reserved and anticipated in Richardson [v. McKight (521 U.S. 399, 407 [1997])] [enhanced version available to subscribers / unenhanced version available from lexisONE Free Case Law], that when you have a situation where private and government workers work closely together and you deny qualified immunity to the private person, it would directly affect the ability of the government employees to do their jobs." 

Michael A. McGill of Lackie, Dammeier & McGill in Upland, Calif., representing Delia, countered that Filarsky has failed to show a historical basis of common-law immunity for someone in his position.

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