Gerald Morgan v. Bd. of Prof. Responsibility of the Supreme Court of Tenn. ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0048p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GERALD DEAN MORGAN,
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Plaintiff-Appellant, │
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v. > No. 22-5200
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BOARD OF PROFESSIONAL RESPONSIBILITY OF THE │
SUPREME COURT OF TENNESSEE; SANDRA GARRETT, in │
her individual capacity, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:21-cv-00274—Waverly D. Crenshaw, Jr., District Judge.
Argued: October 19, 2022
Decided and Filed: March 20, 2023
Before: BATCHELDER, BUSH, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: W. Gary Blackburn, THE BLACKBURN FIRM, Nashville, Tennessee, for
Appellant. David M. Rudolph, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Memphis, Tennessee, for Appellees. ON BRIEF: W. Gary Blackburn, THE BLACKBURN
FIRM, Nashville, Tennessee, for Appellant. David M. Rudolph, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Memphis, Tennessee, for Appellees.
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OPINION
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JOHN K. BUSH, Circuit Judge. This case involves a lawyer, Gerald Morgan, whose
alleged anti-Muslim tweets led to termination of his employment as Disciplinary Counsel for the
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Board of Professional Responsibility of the Supreme Court of Tennessee (the Board). The
tweets occurred before Morgan took the job, but they came back to haunt him in that position. In
a state-court appeal of a disciplinary order of the Board, a litigant cited the tweets as grounds to
disqualify Morgan from appearing as the Board’s counsel in the appeal. Following Morgan’s
withdrawal from that appeal, an internal investigation ended with the Board firing him.
Morgan then sued the Board and Sandra Garrett, the Board’s Chief Disciplinary Counsel,
for injunctive relief based on alleged violation of his First Amendment right to free speech and
for damages under 42 U.S.C. § 1983 based on alleged wrongful termination. The district court
dismissed without prejudice Morgan’s request for injunctive relief against the Board as barred by
Eleventh Amendment sovereign immunity and because part of that request was moot. As for the
request for damages, the district court also dismissed based on the Board’s sovereign immunity,
as well as a determination that Garrett was entitled to absolute quasi-judicial immunity. For
reasons set forth below, we AFFIRM the district court’s dismissal of Morgan’s claims against
the Board. But we REVERSE the district court’s dismissal of Morgan’s request for monetary
relief against Garrett based on absolute quasi-judicial immunity and REMAND for further
proceedings consistent with this opinion.
I.
On February 1, 2019, Gerald Morgan began employment as Disciplinary Counsel with
the Board. His troubles began during the appeal of a disciplinary proceeding involving Brian
Manookian, who had been handed a two-year suspension of his law license by a hearing panel on
May 20, 2020. Following an unsuccessful motion for a stay of his state-court appeal of the
license suspension, Manookian moved on November 24, 2020, to disqualify and replace Morgan
as the Board’s counsel in the appeal, claiming that Morgan was “an anti-Muslim bigot.”
Manookian’s court filing attached tweets posted by Morgan from 2015 and 2016 that allegedly
demonstrated Morgan’s bias toward Muslims. Though Manookian himself is not Muslim, he
claimed that his wife was of the Islamic faith and that his children were being raised in a Muslim
household. Based on these alleged facts, Manookian argued that Morgan’s tweets demonstrated
substantial bias against Muslims and that Morgan should be disqualified from handling the
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appeal and replaced with special counsel. Morgan responded by claiming that the tweets were
political in nature and related to the 2015–2016 presidential campaign between Donald Trump
and Hillary Clinton. Morgan also disavowed having any knowledge of the religious faith and
practices of Manookian’s family, having never met or communicated with him or his family.
Nonetheless, in response to Manookian’s motion to disqualify, the Board moved for
Morgan to withdraw as Board counsel in the appeal, which the court allowed. But that was not
the end of it. About a week later, on December 11, 2020, Garrett, on behalf of the Board, called
Morgan to inform him that his employment would be terminated. Garrett cited several reasons
for the firing: “(1) [Morgan’s] duty to protect the public by investigating and prosecuting cases
‘without discrimination or bias’; (2) Manookian’s motion to disqualify [Morgan] for bias; (3) a
separate, unnamed attorney’s misconduct complaint against [Morgan]; and (4) [Morgan’s]
Twitter posts.” Appellee’s Br. at 4–5. After Morgan lost his job, the Board then responded to
Manookian’s motion, stating that his motion to disqualify Morgan was moot because Morgan
was no longer employed by the Board.
Several months later, on March 1, 2021, Garrett sent Morgan a letter notifying him that
the Board had opened a disciplinary file against him. Morgan claims that this disciplinary file
stemmed from Manookian’s motion to disqualify. On March 29, Morgan was informed that the
disciplinary matter against him had been dismissed.
On April 5, 2021, Morgan filed a complaint, stating in the case caption that it was against
the Board and Garrett “in her individual capacity.” Compl. at PageID.1. There is no mention in
the case caption or body of the complaint that any claim is brought against Garrett in her official
capacity. Morgan alleges that the Board and Garrett wrongfully terminated his employment and
violated his constitutional rights when he was fired based on tweets featured in Manookian’s
motion to disqualify. Morgan sued for injunctive relief and for money damages. As for the
injunctive relief, Morgan sought for the district court to enjoin the Board and Garrett from
“taking any adverse action as a result of his protected speech, including any action against
Plaintiff through the means of any disciplinary file opened against him premised on his speech.”
Compl. at PageID.9. He also requested a “mandatory permanent injunction” against the Board to
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“expunge all reference to any disciplinary file premised on Mr. Morgan’s speech from its
internal computer tracking systems, and removing any indication that Mr. Morgan was
terminated for cause.” Id. at PageID.9–10.
The Board and Garrett moved to dismiss Morgan’s complaint, citing several reasons.
Both defendants argued that claims against them should be dismissed for lack of subject-matter
jurisdiction based on the Eleventh Amendment. Garrett also sought dismissal of the claims
against her on the grounds of absolute quasi-judicial immunity, qualified immunity, and failure
of the complaint to state a claim for injunctive relief.
The district court granted dismissal. It dismissed Morgan’s claims against the Board
without prejudice for lack of subject-matter jurisdiction based on Eleventh Amendment
sovereign immunity. It also dismissed without prejudice Morgan’s request for injunctive relief
as moot to the extent that it sought to restrain defendants “from opening a disciplinary file against
him” because “Morgan admits that the Board has already dismissed any disciplinary proceeding
against him.” And the district court dismissed with prejudice the claim for damages against
Garrett because of her absolute quasi-judicial immunity. Morgan timely appealed.
II.
This court reviews grants of motions to dismiss de novo. See Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 481 (6th Cir. 2009). On review, this court should view facts
in the light most favorable to the plaintiff, in this case Morgan. See Evans-Marshall v. Bd. of
Educ. of Tipp City Exempted Village Sch. Dist., 428 F.3d 223, 228 (6th Cir. 2005).
A. Injunctive Relief
Before considering a suit against a state, a federal court must determine whether the
Eleventh Amendment bars jurisdiction. That constitutional provision reads: “The Judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. This amendment grants sovereign
immunity to the states in most cases, which prevents federal courts from having jurisdiction in
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lawsuits brought by private plaintiffs where the state is a defendant. See Whole Woman’s Health
v. Jackson, 142 S. Ct. 522, 532 (2021) (citing Alden v. Maine, 527 U.S. 706, 713 (1999)). Such
immunity also extends to departments and agencies that are arms of the state, as well as state
officers acting in their official capacity. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (the
Eleventh Amendment bars suits against departments that are arms of the states); Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989) (construing suits against a state official in his or her
official capacity as a suit against the official’s office). This immunity bars suits “for injunctive,
declaratory or monetary relief.” Thiokol Corp. v. Dep’t of Treasury, State of Mich. Revenue
Div., 987 F.2d 376, 381 (6th Cir. 1993).
That said, courts maintain jurisdiction in some circumstances despite sovereign
immunity. States may waive their immunity or Congress may remove it by statute. Id. Also, a
court has subject-matter jurisdiction to hear a constitutional claim against an official acting under
color of state law if the claim fits within the exception of Ex parte Young, 209 U.S. 123 (1908).
Under Ex parte Young, “suits against state officials seeking equitable relief for ongoing
violations of federal law are not barred by the Eleventh Amendment.” Mich. Bell Tel. Co. v.
Climax Tel. Co., 202 F.3d 862, 867 (6th Cir. 2000) (citing Ex parte Young, 209 U.S. at 159–60).
This doctrine applies only when the plaintiff sues for “prospective [injunctive] relief to end a
continuing violation of federal law.” Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir.
2013). If the complaint fails to “make clear what those ongoing violations are,” the exception
does not apply. Boler v. Earley, 865 F.3d 391, 412 (6th Cir. 2017). Nor does the exception exist
for injunctive relief “based entirely upon past acts and not continuing conduct that, if stopped
would provide a remedy to” the plaintiff. Gean v. Hattaway, 330 F.3d 758, 776 (6th Cir. 2003).
Morgan appeals the dismissal of his request for injunctive relief, arguing that the district
court has subject-matter jurisdiction to grant the requested remedy based on Ex parte Young.
The district court held that Ex parte Young did not apply and therefore held it lacked subject-
matter jurisdiction to hear Morgan’s request for injunctive relief. We agree with the district
court’s conclusion that the court lacks subject-matter jurisdiction to grant the injunctive relief as
alleged in the complaint, but we affirm the dismissal without prejudice for a different reason than
that relied upon below. See Sw. Williamson Cnty. Cmty. Ass’n, Inc. v. Slater, 173 F.3d 1033,
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1036 (6th Cir. 1999) (stating that this court “can affirm the district court on alternate grounds
supported by the record”) (citing Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970)).
The district court held that Ex parte Young does not apply because Morgan failed to
“allege any ongoing violation of federal law.” According to the district court, “Morgan’s
allegations are based entirely on his termination.” The complaint, however, can be plausibly
read to extend to post-termination conduct of the Board that he pleads as an ongoing
constitutional violation. Morgan alleges that the Board opened a disciplinary file related to him.
Compl., at PageID.7. True, the disciplinary proceeding was dismissed, id., but Morgan’s prayer
for relief also indicates that the Board continues to maintain records related to the disciplinary
proceeding, id. at PageID.9, and Morgan seeks, among other things, to obtain a permanent
injunction (1) “restraining and enjoining the Board and Ms. Garrett from taking any adverse
action” against him “through the means of any disciplinary file opened against him premised on
his speech,” and (2) “requiring the Board to expunge all reference to any disciplinary file
premised on Mr. Morgan’s speech from its internal computer tracking systems, and removing
any indication that Mr. Morgan was terminated for cause.” Id. In other words, Morgan posits
that he is and will be harmed by the Board’s continued maintenance of disciplinary records
against him and other internal records that pertain to his alleged unconstitutional firing.
We have held in analogous contexts that expungement of negative government records
pertaining to an aggrieved individual may qualify as prospective relief to remedy a constitutional
violation. For example, in Doe v. Cummins, 662 F. App’x 437, 444 (6th Cir. 2016), we
recognized that where a university student sought removal of a negative notation from his school
record that resulted from an allegedly unconstitutional disciplinary process, the relief sought was
available under Ex parte Young. Doe, in turn, relied on Thomson v. Harmony, 65 F.3d 1314,
1321 (6th Cir. 1995), which held that the Eleventh Amendment did not bar an injunction
requesting the removal of negative entries from a plaintiff’s personnel record that resulted from
an alleged due-process violation.
Other circuits have similarly found that expungement of negative records was prospective
and not barred by sovereign immunity in analogous settings. For instance, in Doe v. Purdue
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University, 928 F.3d 652, 666 (7th Cir. 2019), the court relied on Doe v. Cummins to conclude
that an injunction requiring officials to expunge a finding of guilt from a student’s disciplinary
record was not precluded by the Eleventh Amendment. The court reasoned that a “marred record
is a continuing harm” for which the plaintiff could seek redress. Id.; see also Flint v. Dennison,
488 F.3d 816, 825 (9th Cir. 2007) (pursuing expungement of university records “serve[s] the
purpose of preventing present and future harm”); Shepard v. Irving, 77 F. App’x 615, 620 (4th
Cir. 2003) (an “F” grade and a plagiarism conviction “constitute[d] a continuing injury to the
plaintiff” and an action to remove them was “prospective in nature”).
Given this authority, the district court was in error to hold that it lacked subject-matter
jurisdiction on the grounds that Morgan had not pleaded facts establishing a form of requested
relief that is available under Ex parte Young. And, contrary to the district court’s additional
holding, none of the requested injunctive relief is moot because, even though the disciplinary
proceeding was dismissed, Morgan sought injunctive relief for any future action in which a
“disciplinary file [is] opened against him premised on his speech.” Compl., at PageID.9.
Even so, we affirm the district court’s dismissal without prejudice for a different reason.
As an initial matter, the Board cannot be sued for injunctive relief here because it is an arm of the
state and the state has not waived the Board’s sovereign immunity, nor has Congress removed it.
Thiokol Corp., 987 F.2d at 381; Tenn. Code Ann. § 20-13-102(a). Therefore, the only issue is
whether the Ex parte Young exception applies to Morgan’s suit against Garrett.
One prerequisite for the Ex parte Young exception to apply is that the claimant must
explicitly allege that a state official acted in her official capacity. See Long v. Tennessee, 744 F.
App’x 945, 946 (6th Cir. 2018) (noting that claimant’s “failure to allege an official-capacity
claim against a state official prevents him from availing himself of the Ex parte Young
exception”); City of Austin v. Paxton, 943 F.3d 993, 1003 (5th Cir. 2019) (“[I]n order ‘[t]o fall
within the Ex parte Young exception to sovereign immunity . . . a plaintiff must name individual
state officials as defendants in their official capacities.’” (quoting Raj v La. State Univ., 714 F.3d
322, 328 (5th Cir. 2013))). Ex parte Young is a limited exception to the state’s sovereign
immunity. See Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999). The Eleventh Amendment is
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an important protection for the states. A state’s immunity, therefore, cannot be abrogated by the
plaintiff’s simply leaving the capacity of the state actor unsaid in the complaint, to be guessed by
the court and defendant.1
But Morgan’s complaint not only omitted mention of any claim against Garrett in her
official capacity—he affirmatively indicated that the sole basis on which she is being sued is in
her individual capacity. As noted, the case caption of his complaint only states with respect to
Garrett’s capacity that she is sued “in her individual capacity.” Compl., at PageID.1.
Furthermore, the body of the complaint states, with respect to the claims against Garrett, only
that she “is sued for money damages in her individual capacity,” and that judgment is sought
against “Garrett in her individual capacity for compensatory and punitive damages.” Id. at
PageID.8–9. In the absence of any explicit statement in the caption or body of the complaint that
Garrett acted in her official capacity, the court lacks subject-matter jurisdiction to hear any claim
for injunctive relief under Ex parte Young. Therefore, we affirm the dismissal without prejudice
of the request for such relief.
B. Wrongful Termination
Morgan alleges under 42 U.S.C. § 1983 that he was wrongfully terminated in violation of
his First Amendment right to free speech and, for relief, seeks money damages against the Board
and Garrett. The Board argues that it was entitled to sovereign immunity for § 1983 suits
involving money damages; Garrett argues, among other things, that she is entitled to absolute
quasi-judicial immunity. The district court agreed on those grounds for dismissal without
reaching Garrett’s other arguments. We affirm the district court’s ruling concerning the Board
1
In Moore v. City of Harriman, we held that, to state a § 1983 claim against a state government official, the
claimant need not explicitly plead that the official acted in an “individual capacity” if the “course of proceedings”
gave notice to the official that he was being sued in that capacity. 272 F.3d 769, 772–73 (6th Cir. 2001) (en banc).
But, as we recognized in Moore, the pleading rule announced in that case did not address jurisdictional requirements
under the Eleventh Amendment because the police officers sued in Moore were “employees of a municipality, and
the Eleventh Amendment does not apply to municipalities.” Id. at 773 n.2. Here, by contrast, sovereign immunity
under the Eleventh Amendment is implicated by injunctive relief sought against a state entity based on Ex parte
Young. In those circumstances, the claimant must explicitly allege that the claim is brought against a state official in
her official capacity.
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but reverse the ruling concerning Morgan’s claim against Garrett and remand for further
proceedings that may include consideration of Garrett’s other arguments.
As stated earlier, Eleventh Amendment sovereign immunity generally shields states from
individuals suing them in federal court unless states waive their immunity or Congress removes
it by statute. Thiokol Corp., 987 F.2d at 381. As for suits under § 1983, Tennessee has not
consented to such lawsuits and Congress has not removed states’ sovereign immunity under the
statute. See Tenn. Code Ann. §20-13-102(a); Berndt v. Tenn., 796 F.2d 879, 881 (6th Cir. 1986)
(Tennessee has not waived its sovereign immunity for § 1983 suits); Will, 491 U.S. at 67(Congress has not removed state sovereign immunity for § 1983 claims). The district court
therefore properly dismissed Morgan’s action against the Board for monetary relief under
§ 1983.
Morgan also sought damages against Garrett under 42 U.S.C. § 1983, alleging that she
wrongfully terminated him in violation of his First Amendment right to free speech. The district
court dismissed this claim on the ground that Garrett was entitled to absolute quasi-judicial
immunity.
Judicial immunity is a long-recognized common-law doctrine shielding judges from
collateral attacks challenging a judge’s actions taken in her official judicial capacity. See
Forrester v. White, 484 U.S. 219, 225 (1988) (noting that the doctrine originated in “medieval
times.”). This immunity is absolute: all of a judge’s actions taken in an official judicial capacity
are immune from suit. And not just judges are protected by this immunity. Absolute quasi-
judicial immunity extends the doctrine to “those persons performing tasks so integral or
intertwined with the judicial process that these persons are considered an arm of the judicial
officer who is immune.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (citing Scruggs v.
Moellering, 870 F.2d 376 (7th Cir. 1989)).
When determining whether the tasks are integral or intertwined with the judicial process,
the Supreme Court has endorsed the “functional approach.” Forrester, 484 U.S. at 224. This
approach requires a court to look to “the nature of the function performed, not the identity of the
actor who performed it.” Id. at 229; see also Buckley v. Fitzsimmons, 509 U.S. 259, 273–74
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(1993) (a prosecutor could not invoke quasi-judicial immunity where the prosecutor was seeking
evidence to support an arrest and therefore was acting more like a detective or officer than aiding
a judge in the administration of a case).
Though Morgan and Garrett disagree about what is and is not a judicial act, both
recognize Guercio v. Brody, 814 F.2d 1115 (6th Cir. 1987), judgment vacated in part on
rehearing by Guercio v. as an important case for this inquiry. In Guercio, a confidential
secretary to a bankruptcy judge sued for wrongful termination after she was discharged allegedly
in violation of her constitutional right to free speech. See id. at 1115. The court held that
judicial immunity does not extend to administrative acts, such as certain personnel decisions. Id.at 1116–17. In determining whether an act was administrative, Guercio applied a two-pronged
test: first, the court must determine the “nature of the act itself, i.e., whether it is a function
normally performed by a judge”; second, the court must determine the “expectations of the
parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. at 1116 (quoting
Stump v. Sparkman, 435 U.S. 349, 362 (1978)). The court held that the bankruptcy judge could
not invoke judicial immunity for the firing, noting that terminating “a confidential and personal
secretary is hardly the ‘type of act normally performed only by judges.’” Id. at 1119 (quoting
Stump, 435 U.S. at 362). The court determined that the “crucial mistake” of the district court in
that case was that it “conflates official acts of judges into judicial acts and seeks to extend
judicial immunity to this broader class of official acts.” Id. at 1117.2 In support of its analysis,
the court cited Judge Posner’s dissent in Forrester v. White, 792 F.2d 647, 663 (7th Cir. 1986)
(Posner, J., dissenting), whose reasoning the Supreme Court later adopted in Forrester when it
held that a judge’s firing of a probation officer was not shielded by judicial immunity because
such an act was more executive than judicial in nature, Forrester, 484 U.S. at 229–30.
See Guercio 814 F.2d at 1117.
2
The Guercio court also quoted with approval this passage from the Seventh Circuit: “Hiring and firing of
employees is typically an administrative task. It involves decisions of a personal rather than impartial nature, which
is integral to judicial decisionmaking . . . the judge did not utilize his education training, and experience in the law to
decide whether or not to retain plaintiff. The administrative act of firing the plaintiff will not assist the judge in
interpreting the law or exercising judicial discretion in the resolution of disputes.” 814 F.2d at 1116–17 (quoting
McMillan v. Svetanoff, 793 F.2d 149, 155 (7th Cir. 1986)).
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Garrett attempts to distinguish Guercio by arguing that all of Garrett’s actions were well
within the scope of the duties delegated to her by the Tennessee Supreme Court. Those duties
include employing and supervising staff needed to carry out the Disciplinary Counsel’s
functions. She also argues that her immunity from civil suit is expressly provided for in
Tennessee Supreme Court Rule 9, § 17: “Members of the Board, district committee members,
Disciplinary Counsel, staff, and practice monitors shall be immune from civil suit for any
conduct in the course of their official duties.” Garrett contends that, unlike in Guercio, where
the judge fired his secretary simply so that the bankruptcy court could “function more effectively
and harmoniously,” Guercio, 814 F.2d at 1118, here Garrett acted squarely within duties the
Tennessee Supreme Court delegated to her. Further, Garrett maintains that her reasons for
terminating Morgan’s employment—including Manookian’s motion to disqualify Morgan for
bias, other misconduct complaints against Morgan, and Morgan’s duty to perform his job
without discrimination or bias—were “intertwined” with the judicial process. See Barrett v.
Harrington, 130 F.3d 246, 258–59 (6th Cir. 1997) (finding that acts protecting the integrity of
the judicial process are adjudicatory in nature).
We remain unpersuaded. Though it is true that Garrett is entitled to absolute quasi-
judicial immunity for her official judicial acts, it does not mean that she is entitled to immunity
for all official acts. After all, quasi-judicial immunity only extends the same immunity a judge
would enjoy to nonjudicial officials performing tasks intertwined with the judicial process.
Because judges can commit official acts that are still considered nonjudicial in nature, so too can
their agents commit acts that are nonjudicial.
Thus, it is of little consequence in this inquiry that there is a promulgated Tennessee
Supreme Court rule extending immunity to the Disciplinary Counsel for any conduct in the
course of their duties. Judicial immunity from § 1983 claims is governed by federal, not state,
law. See Barrett, 130 F.3d at 254–57 (explaining how judicial immunity, as recognized and
developed by the Supreme Court, protects state judges from certain § 1983 claims). And the
relevant federal law is set forth in the Supreme Court’s two-prong test articulated in Stump,
which we applied in Guercio. See Stump, 435 U.S. at 362; Guercio, 814 F.2d at 1116–19. This
Court should look to the nature of the challenged act itself and whether the party bringing the
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§ 1983 claim dealt with the state actor in her judicial capacity. Guercio concluded that the acts
of hiring and firing are essentially executive in nature, even if they fall within the proper scope of
duties of a judge. 814 F.2d at 1119.
That brings us to Morgan’s case. As in Guercio, the action of the state actor complained
of here—Garrett’s firing of Morgan—took place in the workplace, not the courtroom, setting.
Garrett argues that her duties require her to ensure that her staff handles cases without bias. That
fact, no doubt, will be relevant as to whether Morgan is entitled to prevail on his First
Amendment claim under the balancing analysis of Pickering. See Pickering v. Bd. of Educ. of
Tp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968) (asking whether the plaintiff’s
“interests . . . as a citizen, in commenting upon matters of public concern,” outweighs “the
interest of the state, as an employer, in promoting the efficiency of the public services it performs
through its employees”). But those considerations do not change the central point that Garrett’s
decision to terminate Morgan’s employment, like the judge’s decision to fire his secretary in
Guercio, was not a decision that is unique to a judge’s duties in the courtroom such that absolute
judicial immunity applies.
Morgan’s complaint does not challenge his removal from Manookian’s appeal or any
other case. It pertains only to his termination of employment and alleged subsequent harm from
that decision. Granted, the Board’s decision regarding which counsel should appear on its behalf
in a particular case may be analogous to a judge’s decisions for which absolute immunity
applies, such as whether to recuse, compel counsel to appear, or hold counsel in contempt of
court. See, e.g., Barrett, 130 F.3d at 258–60 (noting that decisions to recuse and holding counsel
in contempt of court are integral to judicial decision making and preserving the integrity of the
judicial system). But Morgan’s complaint does not arise from Garrett’s action as to Morgan’s
appearance or conduct in any particular case. It is based on her termination of his employment.
Accepting Garrett’s argument would result in the same error that resulted in reversal in
Guercio—“conflat[ing] official acts of judges (or their agents) into judicial acts,” thereby
“extend[ing] judicial immunity to a broader class of official acts.” See Guercio, 814 F.2d at
1117 (parenthetical added).
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Indeed, as the Guercio court concluded, under the standard Garrett argues for, it is hard to
see a principled limit for judicial immunity, id. at 1118, let alone (as in this case) quasi-judicial
immunity. Rather, courts reaffirm time and again that hiring and firing is administrative or
executive in nature, not judicial. See generally Forrester, 484 U.S. at 229–30; Guercio, 814 F.2d
at 1116–19; Barrett, 130 F.3d at 255–56. Judicial immunity, though absolute and firm, is
something to be applied carefully and should not be extended further than its justification
warrants. See Barrett, 130 F.3d at 254 (citing Burns v. Reed, 500 U.S. 478, 486 (1991));
Guercio, 814 F.2d at 1120 (“The integrity and independence of judicial decisionmaking is in no
way impaired if judges are called to account for their personal decisions.”) Extending judicial
immunity in this case would extend its reach to areas previously denied—namely administrative
acts like hiring and firing employees. We therefore hold that the district court erred in holding
that Garrett is entitled to absolute quasi-judicial immunity.
C. Qualified Immunity
The district court did not reach Garrett’s qualified immunity defense. Because this issue
is not properly before us, we decline to address it here. See Stoudemire v. Mich. Dep’t of Corr.,
705 F.3d 560, 576 (6th Cir. 2013) (“Absent ‘exceptional circumstances,’ we normally decline to
rule on an issue not decided below.”) (quoting St. Marys Foundry, Inc. v. Emp’rs Ins. of Wausau,
332 F.3d 989, 996 (6th Cir. 2003)).
III.
For the reasons stated above, we AFFIRM the district court’s dismissal of Morgan’s
requests for injunctive relief, as well as the request for monetary relief against the Board, and we
REVERSE the district court’s dismissal of Morgan’s request for monetary relief against Garrett
based on absolute quasi-judicial immunity and REMAND for further proceedings consistent with
this opinion.