Sixth Circuit holds that chief disciplinary attorney not protected by immunity from suit by fired subordinate

The US Court of Appeals for the Sixth Circuit, in a March 20 decision, reversed the dismissal of a case brought by an attorney fired from the Tennessee Supreme Court’s Board of Professional Responsibility against his ex-employer, holding that the Board’s chief disciplinary counsel was not protected from suit by quasi-judicial immunity because the decision to fire the attorney was not a part of his disciplinary case.

In 2020, an attorney appealing a suspension issued by the Board filed to have disciplinary attorney Gerald Morgan disqualified from his case, citing anti-Muslim posts Morgan made on social media. The Board withdrew Morgan as its attorney in that case and then fired him and initiated a professional discipline case against Morgan, himself, although that was later dismissed.

In April 2021, Morgan filed suit against the Board and its chief disciplinary counsel, Sandra Garrett, claiming they had violated his constitutional rights and seeking an order both to prohibit the board from pursuing a disciplinary case against him and to remove any record of his being terminated for cause, as well as monetary damages. A federal district court dismissed the case on the grounds that the defendants were protected by sovereign immunity, for the Board, and quasi-judicial immunity, for Garrett. Morgan appealed, and the case rose up to the Sixth Circuit.

The Court, hearing the appeal, agreed with the district court’s decision to dismiss Morgan’s claims against the Board, but it disagreed on the reason. The lower court held that Morgan had failed to allege an ongoing violation of federal law and was thus barred by sovereign immunity from bringing suit. But the Court of Appeals, in an opinion by Judge John Bush, noted that Morgan was, in fact, seeking prospective relief from any future disciplinary action based on his social media posts and that he was seeking to have currently-held disciplinary records from his firing destroyed, itself a form of prospective relief under court precedents.

Unfortunately for Morgan, the exception to sovereign immunity that allows claims for ongoing violations also requires that the plaintiff claim that an individual public official acted in their official capacity while committing the alleged violation, something Morgan had failed to do because he had decided to bring a claim against Garrett in her personal – not official – capacity. The Board, itself, was thus immune to his claims.

However, unfortunately for Garrett, the Court of Appeals disagreed with the district court’s decision to dismiss the claims against her on grounds of quasi-judicial immunity, a form of immunity that protects administrative adjudicators from suit, because her role in Morgan’s case was not adjudicative in nature. “Though it is true that Garrett is entitled to absolute quasi-judicial immunity for her official judicial acts,” Judge Bush wrote, “it does not mean that she is entitled to immunity for all official acts.” Although the Tennessee Supreme Court has a rule extending judicial immunity to the position of disciplinary council for any conduct during their work, federal claims of constitutional violations take precedent over those rules.

In this case, federal judicial precedent states that hiring and firing decisions are executive in nature, not judicial, and are thus not protected by quasi-judicial immunity. “Garrett’s firing of Morgan . . . took place in the workplace, not the courtroom . . . Garrett’s decision to terminate Morgan’s employment. . . was not a decision that is unique to a judge’s duties in the courtroom such that absolute judicial immunity applies.”