Last week, in Filarsky v. Delia, the U.S. Supreme Court unanimously ruled that a part-time government employee who is sued for an alleged federal civil rights violation enjoys the same “qualified immunity” that is enjoyed by full-time government employees who perform the same function. Taken by itself, the ruling makes sense. But reading Filarsky alongside another ruling in favor of a civil rights defendant—the high Court’s 8-1 ruling in Minneci v. Pollard earlier this year—leaves a different impression. That juxtaposition reveals a Court that selectively invokes principles of judicial restraint in pursuit of an anti-civil-rights agenda.
In this column, I shall compare and contrast the reasoning of the Filarsky and Minneci cases. Although it is possible to draw fine distinctions in order to reconcile the two rulings, the impression that emerges from reading the two remains the same: The Roberts Court—including nearly all of its supposedly liberal members—is generous towards civil rights defendants and stingy towards civil rights plaintiffs.
The Issue in the Filarsky Case
The Filarsky case began when Rialto, California firefighter Nicholas Delia’s supervisors became suspicious that Delia, who was missing work, ostensibly for medical reasons, was in fact using his time off to work on a construction project at home. The City employed a private firm to investigate whether Delia was shirking. Steve Filarsky, an attorney for that firm, eventually issued an order to Delia to produce building materials from his home. Filarsky wanted to determine whether those materials remained intact, as Delia claimed, or whether they had already been incorporated into home improvements. Delia protested the order but his protest was to no avail, so he complied. He then sued Filarsky and other defendants, alleging that the order violated his constitutional rights.
Last week’s Supreme Court decision in the Filarsky case did not address the question of whether Filarsky violated Delia’s constitutional rights. Instead, the issue before the Justices was what legal standard applies to the case against Filarsky. Under a federal civil rights statute that is codified as Section 1983 of Title 42 of the U.S. Code, any state or local government official who violates another person’s federal constitutional or statutory rights can be sued for damages. There is little doubt that part-time government employees are covered by Section 1983. The question in Filarsky was whether such part-time employees are entitled to the judge-made defense of qualified immunity.
The Meaning and Origin of the Defense of Qualified Immunity
By its terms, Section 1983 provides for liability whenever a state or local official violates federal civil rights. However, for many years the Supreme Court has held that in order to establish civil rights liability for an individual defendant, a plaintiff must do more than just show that the official violated the plaintiff’s rights. Instead, the plaintiff must show that the official violated “clearly established” rights. Thus, even if the courts would now say that an official’s conduct was unlawful, the plaintiff will still lose if a reasonable state official could have thought that the conduct was lawful at the time that it occurred.
Why has the Supreme Court added the qualified immunity defense to Section 1983? The core reason is a policy concern. Federal civil rights law is complicated and evolving. Thus, if government officials can be made to pay damages or even to answer a lawsuit for guessing wrong about how a court will later interpret civil rights law, those officials will be excessively cautious in carrying out their duties. Qualified immunity gives government officials breathing space: so long as their conduct does not clearly violate rights, they will be immune to litigation. This immunity is “qualified” in the sense that it is not absolute, for conversely, clear violations of civil rights will subject officers to litigation and liability.
One might think that the policy behind the qualified immunity defense is sensible, but still wonder whether the Supreme Court had the authority to adopt it. After all, Congress wrote Section 1983 without including any language providing for qualified immunity, and it is normally the job of Congress, not the Court, to take policy considerations into account in setting out the elements of federal claims and defenses.
The Supreme Court has nonetheless justified its creation of the qualified immunity defense on the ground that in 1871, when Congress first enacted the language that is now codified as Section 1983, qualified immunity was generally available as a defense to civil lawsuits against government officials. Thus, the Court concluded in the 1951 case of Tenney v. Brandhove that Section 1983 tacitly preserved that immunity.
Last week’s decision in the Filarsky case cited Tenney and other cases to continue the approach of looking to the defenses that prevailed at the time Section 1983 was adopted to determine whether qualified immunity should extend to part-time government employees. Noting that in the Nineteenth Century, governments routinely accomplished much of their business through part-time employees, Chief Justice Roberts wrote in his majority opinion that there was therefore no reason to deny part-time government employees the same qualified immunity that full-time government employees enjoy when they perform the same functions.
The relatively small step from Tenney and the other qualified immunity cases to the holding in Filarsky was logical and largely uncontroversial. That explains why the decision was unanimous. Nonetheless, the Court’s approach to qualified immunity is more problematic when juxtaposed with its approach to another civil rights issue that it recently decided.
The Decision in the Minneci Case
To understand what the Court decided in the Minneci case earlier this year, one first needs to note that Section 1983 provides for civil rights lawsuits against state and local officials, but not against federal officials. Given the history of its adoption as part of the Ku Klux Klan Act of 1871, that makes sense. Congress, at the time, was primarily concerned about state and local officials in the former Confederacy violating the civil rights of the freedmen and women, as well as their political allies. Congress viewed federal officials as more likely to protect civil rights.
But if Section 1983’s selective focus on state and local officials was justifiable during Reconstruction, subsequent events demonstrated that federal officials could also violate civil rights. Accordingly, in the 1971 case of Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that a plaintiff can sue federal officials for violating the plaintiff’s civil rights. Although Section 1983 only authorizes suits against state and local officials, the Justices ruled in Bivens that the Constitution itself provides for a right to sue federal officials, at least absent a Congressional determination that some other remedy should be available instead.
The Bivens case involved alleged violations of the Fourth Amendment, but early post-Bivens cases suggested that the ruling would apply to just about all federal violations of constitutional rights. For example, in the 1980 case of Carlson v. Green, the Court ruled that the surviving family members of a prisoner could bring a Bivens lawsuit on the grounds that federal prison officials violated the prisoner’s Eighth Amendment right against cruel and unusual punishment when they denied him medical treatment for his asthma, leading to his death.
Despite Carlson, in recent years the Court has been stingier in finding a Bivens right to sue federal officials. Thus, in January the Court ruled 8-1 in the Minneci case that a prisoner could not bring a Bivens action based on the Eighth Amendment against officials in a privately-run federal prison.
As a formal matter, the Minneci Court distinguished rather than overruled Carlson. In Minneci, the Court said that a Bivens action was unnecessary because the prisoner could bring a state tort action instead. Yet this distinction was dubious. As Justice Ginsburg noted in her solo dissent in Minneci, in both Carlson and Bivens itself the plaintiff could have brought a common-law tort action, but in those cases the Court said that such an action was not an adequate substitute for a federal civil rights suit.
To be sure, Justice Breyer’s majority opinion in Minneci cited other supposed differences between that case and Carlson, but it is hard to read Minecci without noting that the Court’s entire attitude towards Bivens actions has changed over the last three decades. Justice Scalia, in a concurrence in Minecci, made the point unabashedly: He called Bivens a “relic” of a time when the Court was much more willing to permit federal lawsuits without express Congressional authorization than it is today. He thus invoked his philosophy of “textualism” in statutory interpretation, under which a court’s job is to implement the text that the legislature actually enacted, rather than to speculate about what other policies the legislature might have favored.
The Justices’ Apparent Hostility to Civil Rights Cases
Accordingly, one could read the result in Minecci as carrying out a principle of judicial restraint, under which the Court leaves to Congress the decision whether to authorize civil lawsuits. But that reading is very difficult to sustain when one views Minecci alongside Filarsky.
The whole premise of the qualified immunity doctrine is that the Court can presume that Congress meant to preserve common law immunities of government officials—even though Congress included no language to that effect in Section 1983. To be a consistent textualist, one would have to regard qualified immunity as just as much a “relic” as Justice Scalia regards Bivens.
On one hand, in Minecci, the Justices nearly unanimously refused to find an implied right of a plaintiff to bring a lawsuit against privately-employed government officials. On the other hand, in Filarsky, the Justices unanimously found an implied immunity for a part-time government official who was sued for alleged civil rights violations. The difference between the two cases cannot be what Congress said or did—because Congress did not expressly authorize either Bivens actions or qualified immunity. The Court was willing to go beyond the text that Congress enacted in order to aid civil rights defendants, but not to aid civil rights plaintiffs.
Thus, the most straightforward explanation for the results in Minecci and Filarsky is also the most troubling: The Supreme Court is not so much interested in respecting the policy prerogatives of Congress, as it is in shielding government officials from civil rights lawsuits.
We live in an era when commentators frequently characterize the Court as divided 5-4 on ideological grounds, and on some issues, that characterization is accurate. Yet on other issues, including civil rights litigation, the Court often speaks with nearly one voice. Thus far, this Term’s decisions confirm that on such matters, the entire legal landscape has shifted dramatically rightward over the last generation.