No. 10-1018

~bupreme ~eurt ef the i~nitel~ ~btate~

STEVE A. FILARSKY, ESQ.,

Petitioner,

NICHOLAS B. DELIA,

Respondent.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Ninth Circuit

REPLY BRIEF FORSTEVE A. FILARSKY, ESQ.

JON H. TISDALECounsel of Record

JENNIFER CALDERONGILBERT, KELLY, CROWLEY ~ JENNETT LLP

1055 West Seventh StreetSuite 2000

Los Angeles, California 90017(213) 615-7077

jht@gilbertkelly.comjcalderon@gilbertkelly.com

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. 800,225-6964OR CALL COLLECT (402t 342-2831

Blank P~ge

TABLE OF CONTENTSPage

1INTRODUCTION ...................................................

I. DELIA’S ATTEMPT TO DODGE THEISSUE PRESENTED BY BELATEDLYRE-CHARACTERIZING FILARSKY ASA "PRIVATE INVESTIGATOR" RATHER

¯ THAN A "PRIVATE ATTORNEY" IS FORE,CLOSED BY THE RECORD .......................2

II. THERE IS AN EXPRESS AND DIRECTCIRCUIT SPLIT ..........................................4

III. DELIA’S MERITS ARGUMENTS REGARD-ING ENTITLEMENT TO QUALIFIED IM-MUNITY UNDER THE RICHARDSONMAJORITY AND DISSENT PROVIDE NOREASON TO DENY CERTIORARI ............6

IV. THIS CASE IS AN IDEAL VEHICLE FORNOT ONLY RESOLVING THE CLEAR CIR-CUIT SPLIT, BUT ALSO FOR CLARIFY-ING AN ISSUE OF VITAL IMPORTANCEFOR MUNICIPALITIES IN SEEKINGLEGAL COUNSEL ......................................10

V. CONCLUSION .............................................11

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TABLE OF AUTHORITIES

Page

CASES

Bivens v. Six Unknown Named Agents ofFederal Bureau of Narcotics, 403 U.S. 388(1971) .......................................................................10

Briscoe v. LaHue, 460 U.S. 325 (1983) .........................9

Burns v. Reed, 500 U.S. 478 (1991) ..............................9

Cullinan v. Abramson, 123 F.3d 301 (6th Cir.1997) ......................................................................4, 5

Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.2003) ......................................................................4, 5

Minneci v. Pollard (Case No. 10-1104) ......................11

Pollard v. GEO Group, Inc., 629 F.3d 843 (9thCir. 2010) .................................................................11

Richardson v. McKnight, 521 U.S. 339(1997) .........................................................1, 6, 7, 8, 9

Tower v. Glover, 467 U.S. 914 (1994) ............................7

RULES

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

Supreme Court Rule 10 ..............................................10

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TABLE OF AUTHORITIES - ContinuedPage

OTHER AUTHORITIES

Developments in the Law: State Action and thePublic Private Distinction: Private PartyImmunity from § 1983 Suits, 123 HARVARDLAW REVIEW 1266, 1271 (March 2010) ......................6

J. Bishop, Commentaries on Non-Contract Law§§ 704, 710 (1889) .....................................................7

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REPLY BRIEF FOR PETITIONER

INTRODUCTION

This petition presents a compelling issue forcertiorari: Whether petitioner Filarsky (Filarsky), aprivate lawyer, retained to work with governmentemployees in conducting an internal affairs investiga-tion, is precluded from asserting qualified immunitysolely because of his status as a "private" lawyer,rather than a full time government employee. Recog-nizing the petition’s strength, respondent (Delia)makes an eleventh hour attempt to re-characterizeFilarsky’s role as that of a "private investigator"instead of "private attorney." However, Delia’s belatedshift is totally foreclosed by the Ninth Circuit opinionand by the record.

Moreover, Delia cannot legitimately dispute thatthere is an express, direct circuit split on the veryquestion presented. His attempt to argue that theNinth Circuit decision does not contravene thisCourt’s opinion in Richardson v. McKnight, 521 U.S.339 (1997) also fails. Nor can Delia legitimatelydispute that the question is a vitally important onegiven the prevalence of § 1983 actions and the im-portance of the issue to public entities - as evidencedby the filing of the brief of the Amici Curiae for theLeague of California Cities and the California StateAssociation of Counties in support of the petition.

The petition should be granted because this casepresents an ideal vehicle to determine that private

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attorneys hired by cities and counties enjoy qualifiedimmunity.

DELIA’S ATTEMPT TO DODGE THEISSUE PRESENTED BY BELATEDLY RE-CHARACTERIZING FILARSKY AS A "PRI-VATE INVESTIGATOR" RATHER THAN A"PRIVATE ATTORNEY" IS FORECLOSEDBY THE RECORD

Delia’s sudden attempt to shift the issue fromqualified immunity for a "private attorney" to quali-fied immunity for a "private investigator" contradictshis own previous arguments, the Ninth Circuit’sexpress holding, and the underlying record.

First, Delia has contended all along since thedistrict court level that Filarsky was acting in hiscapacity as a private attorney retained by the City, asevidenced by the Ninth Circuit’s opinion. As thatopinion plainly states "Delia contends that Filarsky,as a private attorney, is not entitled to qualifiedimmunity." Pet. App. 24-25 (emphasis added).

Second, the Ninth Circuit’s opinion describesFilarsky as "... a private attorney, who was retainedby the City to participate in internal affairs investi-gations." Pet. App. 24-25. The Ninth Circuit opinionalso states that "[t]he interview was conducted byFilarsky, a private attorney retained by the City." Pet.App. 6-7 (emphasis added). Moreover, the term usedby the Ninth Circuit at Pet. App. pages 6-7 ("repre-senting") is a term used to describe the function of an

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attorney, not an investigator; it is not being used forany other purpose than to describe the legal relation-ship between Filarsky and the City.1 Even moreimportant, the opinion specifically holds that"Filarsky is not entitled to qualified immunity as aprivate attorney and we reverse the district court’sgrant of summary judgment in his favor and remandfor trial, or further proceedings as determined by thedistrict court." Pet. App. 27 (emphasis added). Thereis therefore no merit whatsoever to Delia’s attempt toreconstruct the Ninth Circuit’s holding by stating the

"error in Filarsky’s argument is that the Ninth Cir-cuit did not hold that private attorneys are neverentitled to qualified immunity; but instead, thatFilarsky as a private investigator conducting aninternal affairs investigation, was not entitled toqualified immunity." Opp. 9. The petition presents theprecise issue raised by the proceedings below -whether qualified immunity should extend to privateattorneys who are not government employees but arehired to perform government functions alongside ofgovernment employees.

Third, the underlying record indisputably con-firms that Filarsky was retained by the City of Rialto(City) to assist in conducting the investigation as an

1 See also Opp. 11, n.4, where Delia attempts to make thesame argument regarding Filarsky’s lack of representation as anattorney for the City; however, again Delia uses the word"represent," which denotes Filarsky’s legal representation of theCity in the setting of an internal affairs investigation.

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attorney. It was only because of Filarsky’s expertiseas an attorney that he was employed by the City formore than a decade, "to participate in internal affairsinvestigations concerning personnel issues," to con-duct interviews of City employees "in connection withthe investigative process of the City’s personnel/internal affairs matters," and to provide legal adviceto the City in connection with disciplinary proceed-ings. Pet. App. 88-89 ~I~I3-4; see also Pet. App. 44-45~I4 ("At the time of the interview, Filarsky had for anumber of years been regularly representing the Cityand providing legal advice to it regarding labor andemployment issues" and "had previously questionedFire Department employees in internal affairs inves-tigations."). In short, there is no confusion or debateas to the fact that Filarsky acted as an attorney onbehalf of the City. Accordingly, Delia’s surprise asser-tion that Filarsky is a "private investigator" and not a"private attorney" fails completely.

II. THERE IS AN EXPRESS AND DIRECTCIRCUIT SPLIT

Delia’s attempts to dispute that there is a circuitconflict are absurd given, that the Ninth Circuitexpressly parts ways with the Sixth Circuit. Opp. 18,19, 20, 21. The Ninth Circuit’s opinion acknowledges(Pet. App. 25) its ruling conflicts with the SixthCircuit’s opinion in Cullinan v. Abramson, 123 F.3d301, 310 (6th Cir. 1997), by stating it was unable tofollow Cullinan because it was bound by the NinthCircuit’s own earlier, per curiam opinion in Gonzalez

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v. Spencer, 336 F.3d 832 (9th Cir. 2003). Pet. App. 25-26, citing Gonzalez, 336 F.3d at 834-35. Accordingly,the law of the Ninth Circuit as reaffirmed in thiscase, is Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.2003), which held that a private attorney represent-ing a county was not entitled to qualified immunitywithout any analysis beyond the mere fact that thedefendant attorney was a private party and not agovernment employee. Id. at 834-835. Pet. App. 25-26.

There is no merit to Delia’s suggestion thatFilarsky "attempt[s] to marry this case to" Gonzalez.It was not Filarsky that linked Gonzalez with thiscase; it was the Ninth Circuit itself that did so. TheNinth Circuit’s opinion in this case unequivocallystates that "the court is bound by Gonzalez ’unless anen banc decision, Supreme Court decision or subse-quent legislation undermines’" it. Pet. App. 26. Ac-cordingly, the law of the circuit as affirmed in thiscase is the ruling of Gonzalez that qualified immunityis not available to private attorneys. While Deliacriticized "Filarsky’s perception that the holdings ofGonzalez and Cullinan are incompatible" (Opp. 21),Delia ignores that the Ninth Circuit in this case de-clined to factually distinguish Gonzalez and Cullinanand chose instead to categorically part company withthe Sixth Circuit, without so much as mention of theanalysis mandated by this Court.

Further, even beyond this direct circuit conflict,Delia completely ignores the petition’s showing ofconfusion in the lower courts on the availability of

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qualified immunity to private parties, which furtherwarrants this Court’s review. See Pet. at 34-35 (ex-plaining that lower courts have varied widely inapplying Richardson as a test and that this Courtshould grant certiorari to re-examine and clarify theRichardson factors and finally explain how theyrelate, how they are to be applied, and which aredispositive for extending the protection of qualifiedimmunity to government retained private lawyers, asexpressly left open in Richardson); see also Develop-ments in the Law: State Action and the Public PrivateDistinction: Private Party Immunity from § 1983Suits, 123 HARVARD LAW RE,flEW 1266, 1271 (March2010).

III. DELIA’S MERITS ARGUMENTS REGARD-ING ENTITLEMENT TO QUALIFIED IM-MUNITY UNDER THE RICHARDSONMAJORITY AND DISSENT PROVIDE NOREASON TO DENY CERTIORARI

The important question for this Court is thesame one decided by the Ninth Circuit: WhetherFilarsky, retained as a private lawyer to work withgovernment employees in conducting an internalaffairs investigation, is precluded from assertingqualified immunity solely because of his status as a"private" lawyer rather than a government employee.In fact, this Court left open the opportunity of extend-ing qualified immunity to private individuals, includ-ing by specific example lawyers, working "at thebehest of the sovereign" when "special circumstances"

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were present. Richardson v. McKnight, 521 U.S. at 407,citing Tower v. Glover, 467 U.S. 914, 914-21 (1994),and J. Bishop, Commentaries on Non-Contract Law§§ 704, 710 (1889). This Court should therefore grantcertiorari to decide this important question overwhich the lower courts are irreconcilably divided.

Most of Delia’s argument regarding Richardsonis premised - falsely - on his newly minted "privateinvestigator" characterization of Filarsky’s role. Inapparent recognition that there is tremendous histor-ical precedent for the extension of qualified immunityto lawyers, Delia employs the tactic of "reinventing"Filarsky as an investigator to divert attention fromsuch precedent and to suggest there is no historicalprecedent for affording immunity to investigatorsand, therefore, the Ninth Circuit’s opinion does notcontravene the Richardson principles but rather is inaccord with them. Opp. 2. But, the Ninth Circuit’sholding directly forecloses Delia’s "private investiga-tor" characterization of Filarsky. See Pet. App. 6-7,and 24-25. Consequently, this shell game engaged inby respondent is factually inaccurate and is a falselegal conclusion. Delia’s contentions, premised on thisfalse notion that we are not dealing with a privateattorney hired "at the behest of the sovereign," failunder the test of the Richardson majority decision.

In any event, even under Delia’s blatant mis-characterization of Filarsky as a "private investiga-tor," Filarsky would still meet the Richardsonmajority’s criteria that he be "briefly associated witha government body" (the City), acting ,’adjunct to

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government in an essential governmental activity"(conducting internal affairs investigations, which areprototypically government functions), and "actingunder close official supervision." Richardson, at 413.As such, the Ninth Circuit’s categorical rule contra-venes the Richardson majority, which expressly didnot preclude qualified immunity for an individualworking with the government in an essential gov-ernment activity, and under close supervision.

Moreover, Delia’s attempt to rely on the Richard-son majority rationale that competitive market forceswould serve some of the same purposes that qualifiedimmunity serves (Opp. 13) fails. As explained by theAmici Curiae brief, that rationale does not apply here:

Unlike private prison companies, whose onlypotential clients are government units, pri-vate attorneys can take their business else-where - namely to private clients. Nor willmechanisms such as indemnity and insur-ance, see id. at 410-411, cure the problem. Ifprivate attorneys cannot avail themselves ofqualified immunity, then the costs to indem-nify and insure their services will increaseand will ultimately be borne by the cities andgovernment units that utilize their services.As Justice Scalia pointed out in Richardson,there is no "free lunch"; "as civil-rightsclaims increase, the cost of civil-rights insur-ance increases." Id. at 419 n.3 (Scalia, J.,dissenting). Amici Curiae 16.

The Ninth Circuit’s categorical rule as to privateattorneys also contravenes the "functional approach"

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analysis discussed in the petition. Delia’s argumentthat Filarsky’s representation of the City in inter-nal investigations should not be considered a "proto-typically governmental function" makes no sense.Opp. 17. Internal affairs investigations are at theircore solely government activities. Indeed, as pointedout in the petition, the Ninth Circuit found that, forthe same acts (conducting an internal affairs investi-gation), those who had the power to issue the Order(the City) were qualifiedly immune but Filarsky wasnot. Pet. App. 4-5, 12-24. It is clear that policy ration-ales previously noted in Richardson, 521 U.S. at 417-18 (Scalia, J., dissenting) dictate that qualified im-munity apply to private attorneys in these circum-stances. The Ninth Circuit’s opinion categoricallytakes away this protection for private attorneysworking for public entities throughout the NinthCircuit.

Finally, Delia attempts to bolster his positionwith irrelevant absolute immunity principles. Opp.17, citing Briscoe v. LaHue, 460 U.S. 325, 335 (1983).While this Court has been "quite sparing" in recogniz-ing absolute immunity, such as in Burns v. Reed, 500U.S. at 478, 486 (1991), Filarsky has never contendedthat he is entitled to absolute immunity. Accordingly,Delia’s arguments relating to Filarsky not completinga "quasi-judicial function" (Opp. 18) are irrelevant tothe application of qualified immunity. Burns, 500U.S. at 486.

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IV. THIS CASE IS AN IDEAL VEHICLE FORNOT ONLY RESOLVING THE CLEAR CIR-CUIT SPLIT, BUT ALSO FOR CLARIFYINGAN ISSUE OF VITAL IMPORTANCE FORMUNICIPALITIES IN SEEKING LEGALCOUNSEL

The use of private attorneys as exemplified bythe City’s employment of Filarsky is a common andvital component of municipal, county, and other formsof local governance and even the federal government.Amici Curiae 10. There is no merit to Delia’s argu-ment that the "amici curiae brief only addresses thegeneral argument, framed around hypothetical facts,that municipalities should be able to contract forlegal services and that some of those legal serviceproviders should be entitled to qualified immunity."Opp. 12. On the contrary, the Amici Curiae briefdetails the myriad of ways that private attorneys are,in fact, being used by public entities. Amici Curiae 6,9. To that end, most counties bring in outside counselfor the specific purpose of conducting personnel inves-tigations, as in this case. Amici Curiae 9. Even apartfrom the Circuit conflict, this is another groundwarranting certiorari. Supreme Court Rule 10.

The importance of issues involving private partyliability for alleged constitutional violations is furtherunderscored by the recent grant of certiorari in

Minneci v. Pollard (Case No. 10-1104) on the issueof whether the Court should imply a cause of actionunder Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971),

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against individual employees of private companiesthat contract with the federal government to provideprison services. In fact, the Amici Curiae brief in thiscase cites the underlying Ninth Circuit opinion in theMinneci case (Pollard v. GEO Group, Inc., 629 F.3d843 (9th Cir. 2010)) in making the point that theissue raised in this matter - whether qualified im-munity extends to private attorneys who are notgovernment employees but are hired to performgovernment functions alongside government employ-ees - is important not only to local government enti-ties but also potentially to federal governmentagencies, which also commonly utilize such privateattorneys. See Amici Curiae 11, n.2.

A number of special reasons favor qualifiedimmunity for attorneys, such as Filarsky, who arehired by city and county officials to work for and withthem in representing cities and counties performinggovernment functions, as demonstrated above. WhileDelia would have this Court believe that Filarsky’scase is unique and does not present a compellingissue for review, the Amici Curiae brief demonstratesthat this case presents an important issue that has awide-impact on a variety of public entities across theUnited States.

V. CONCLUSION

This Court should grant certiorari, reverse theNinth Circuit’s judgment, and bring clarity once andfor all to the application of qualified immunity to

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private attorneys, such as Filarsky,juncts to government agencies.

*Counsel of Record

who act as ad-

Respectfully submitted,

GILBERT KELLY CROWLEY ~JENNETT LLP

JON H. TISDALE*JENNIFER CALDERON1055 West Seventh StreetSuite 2000Los Angeles, California 90017(213) 615-7077

Counsel for Petitioner