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Unanimous High Court: Private Attorney Hired By Government Entitled To Immunity

WASHINGTON, D.C. - (Mealey's) A private attorney who is temporarily retained by the government to carry out the government's work may seek qualified immunity from a lawsuit under 42 U.S. Code Section 1983, a unanimous U.S. Supreme Court ruled April 17 (Steve A. Filarsky v. Nicholas B. Delia, No. 10-1018, U.S. Sup.). 

(Opinion. Document #73-120511-001Z.) 

Chief Justice John G. Roberts Jr. wrote for the court that when the U.S. Congress passed Section 1983 in 1871, the government was smaller and private citizens were actively involved in government work.  "Given all this, it should come as no surprise that 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," he wrote.   

With that history in place, Chief Justice Roberts wrote that a straightforward application of the rule resolves the case.  "Though not a public employee [attorney Steve] Filarsky was retained by the City to assist in conducting an official investigation into potential wrongdoing.  There is no dispute that government employees performing such work are entitled to seek the protection of qualified immunity.  The Court of Appeals rejected Filarsky's claim to the protection accorded [Fire Chief Stephen] Wells, [Frank] Bekker and [Mike] Peel solely because he was not a permanent, full-time employee of the City.  The common law, however, did not draw such distinctions, and we see no justification for doing so under §1983," he wrote.  

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 of him.  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 Filarsky, a private attorney retained by the city.  Also present were Delia's attorney Stuart Adams and battalion chiefs Peel and Bekker.   

Filarsky questioned Delia about 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, Bekker and Wells.  With Wells' permission, Filarsky asked Delia to allow Peel to follow him to his home and conduct a warrantless search of the insulation there.  Delia refused. 

Filarsky 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. 

Concurring Opinion 

Justice Ruth Bader Ginsburg filed a concurring opinion in which she agreed with her colleagues that private attorneys such as Filarsky are entitled to qualified immunity.  However, she opined that that immunity may be overcome if the defendant knew or should have known his or her conduct violated a right "clearly established" at the time of the episode in suit.  "Because the Ninth Circuit did not consider the application of that standard to Filarsky, the matter, as I see it, may be pursued on remand," Judge Ginsburg wrote. 

Justice Sonia Sotomayor also filed a concurring opinion.  She wrote separately to add "that it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983.  Such individuals must satisfy our usual test for conferring immunity." 


Patricia A. Millett of Akin, Gump, Strauss, Hauer & Feld in Washington and Jon H. Tisdale of Gilbert, Kelly, Crowley & Jennett in Los Angeles represent Filarsky.  Michael McGill of Lackie, Dammeier & McGill in Upland, Calif., represents Delia. 

Kent J. Bullard of Greines, Martin, Stein & Richiland in Los Angeles filed an amicus curiae brief on behalf of DRI-The Voice of the Defense Bar.  Geoffrey P. Eaton of Winston & Strawn in Washington filed an amicus brief on behalf of the National School Boards Association, the National Association of Counties, National League of Cities, United States Conference of Mayors, the International City/County Management Association, International Municipal Lawyers Association and the National Conference of State Legislatures.  Solicitor General Stephen R. McAllister in Topeka, Kan., filed an amicus brief on behalf of Kansas and other states.  William T. Robinson III of the American Bar Association in Chicago filed an amicus brief on behalf of the American Bar Association.  Solicitor General Donald B. Verrilli Jr. in Washington filed an amicus brief on behalf of the United States.  Jeffrey R. White of Washington filed an amicus brief on behalf of The American Association for Justice. 

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