HONORABLE GEORGE BRODY, JUDGE, UNITED STATES BANKRUPTCY COURT, PETITIONER V. HELEN JEAN GUERCIO No. 87-613 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the Honorable George Brody, United States Bankruptcy Court Judge for the Eastern District of Michigan, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The order of the court of appeals denying Judge Brody's petition for rehearing and suggestion for rehearing en banc (App., infra, 19a) is reported at 823 F.2d 166. /1/ The opinion of the court of appeals (App., infra, 1a-12a) is reported at 814 F.2d 1115. The opinion and order of the district court (App., infra, 13a-18a, 22a) are unreported. JURISDICTION The judgment of the court of appeals was entered on April 1, 1987. A petition for rehearing was denied on July 17, 1987 (App., infra, 19a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a judge is absolutely immune from damages in an action concerning the allegedly unconstitutional dismissal of his confidential secretary. STATEMENT 1. In January 1979, petitioner, the Honorable George Brody, United States Bankruptcy Court Judge for the Eastern District of Michigan, hired respondent, Helen Guercio, to serve as his personal and confidential secretary (App., infra, 2a). Approximately nine months later, in October 1979, respondent became involved in an effort to expose corruption in the Bankruptcy Court. Among other things, she disclosed that the Bankruptcy Court's system of random case assignments was being manipulated. As a result of these disclosures, a bankruptcy judge resigned and the government prosecuted and convicted an attorney and a bankruptcy court clerk. Ibid. In May 1981, the Judicial Council of the Court of Appeals for the Sixth Circuit placed the Bankruptcy Court in receivership and instructed the United States District Court for the Eastern District of Michigan to undertake general oversight of the Bankruptcy Court's operations (App., infra, 3a). That court, in turn, directed then-Chief Judge John Feikens to assume supervisory responsibility for the Bankruptcy Court (ibid.). Following these actions, respondent circulated to the press and others certain previously published articles concerning a lawyer who had recently been nominated to fill a vacancy on the Bankruptcy Court (App., infra, 3a). The articles said that the lawyer had been nominated in 1969 for the position of United States Attorney and that the nomination had been withdrawn when it was disclosed that he had represented reputed organized crime figures (ibid.). In October 1981, with the approval of Chief Judge Feikens, Judge Brody fired respondent (App., infra, 3a). 2. Respondent then filed this action against Judge Brody and Chief Judge Feikens, alleging that her termination violated the First Amendment (App., infra, 2a). /2/ According to respondent, Judge Brody and Judge Feikens discharged her in retaliation for her disclosures concerning both the corruption in the Bankruptcy Court and the background of the nominee to that court. She requested compensatory and punitive damages, as well as reinstatement. Ibid. Judge Brody and Chief Judge Feikens moved for dismissal of the complaint or, in the alternative, for summary judgment, asserting that they had absolute and qualified immunity from respondent's action and, in any event, that respondent had failed to state a claim upon which relief could be granted (App., infra, 15a-16a). The district court, relying on this Court's decision in Stump v. Sparkman, 435 U.S. 349 (1978), held that both judges were entitled to absolute immunity and thus granted the motion to dismiss (App., infra, 16a). While it "recognize(d) that the actions of Judge Feikens and Judge Brody were not actions that were taken in the courtroom under the normal advocacy proceedings," it nevertheless determined "that the actions of the Judges, whether correct or not, were done within their capacity as Judge of the United States District Court and Judge of the United States Bankruptcy Court for this district" and, accordingly, "that the doctrine of absolute immunity is applicable here" (id. at 17a). 3. The court of appeals reversed and remanded (App., infra, 1a-12a). It stated that "(t)he central issue in this case is whether Judges Brody and Feikens were carrying out a judicial act in firing (respondent)" (id. at 3a). It further stated that, in Stump v. Sparkman, 435 U.S. 349 (1978), this Court "set forth a two-pronged test for determining whether an act by a judge is a 'judicial one'. The first element relates to the 'nature of the act itself, i.e., whether it is a function normally performed by a judge.' * * * The second element concerns the 'expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity'" (App., infra, 3a-4a (quoting Stump v. Sparkman, 435 U.S. at 362)). After noting that other courts have held that "decisions by judges in the personnel context are not judicial acts" (App., infra, 7a), /3/ it then concluded that "a proper application of the Stump test requires that the firing of (respondent) be deemed a non-judicial act" (id. at 9a). It reasoned that "(t)he firing of a confidential and personal secretary is hardly the 'type of act normally performed only by judges'" (ibid. (quoting Stump v. Sparkman, 435 U.S. at 362)), that "the expectations of the parties in this case are that personnel/administrative matters are involved, not judicial acts" (App., infra, 9a), and that "extending immunity to Judges Brody and Feikens * * * would not serve a central underlying purpose of judicial immunity: promoting fearless and independent decisionmaking by the judiciary" (ibid.). REASONS FOR GRANTING THE PETITION This case presents a question almost identical to that presented in Forrester v. White, cert. granted, No. 86-761 (Feb. 23, 1987), which is calendared for oral argument on November 2, 1987. In Forrester, the Court will decide whether the Court of Appeals for the Seventh Circuit erred in holding that a judge is absolutely immune from damages in an action by a court-appointed and supervised parole officer challenging her allegedly unconstitutional dismissal. This Court's decision in Forrester will, therefore, bear on, if not control, the resolution of the question presented here: As the court below acknowledged (App., infra, 7a), the decision in this case -- denying petitioner absolute immunity from damages in an action by his personal and confidential secretary -- conflicts with the Seventh Circuit's decision in Forrester. Accordingly, to ensure that Judge Brody is not deprived of any protection to which this Court may determine that judges are entitled (under the absolute immunity doctrine), we request that the Court hold this petition pending its decision in Forrester and then dispose of the petition as is appropriate in light of that decision. CONCLUSION The petition for a writ of certiorari should be held pending this Court's decision in Forrester v. White, No. 86-761, and then disposed of as is appropriate in light of that decision. Respectfully submitted. CHARLES FRIED Solicitor General OCTOBER 1987 /1/ The Honorable Judge Feikens, Chief Judge of the United States District Court for the Eastern Ditrict of Michigan, is a co-defendant in this suit. The court of appeals granted Judge Feikens' petition for rehearing and suggestion for rehearing en banc (App., infra, 20a-21a; 823 F.2d 166). In doing so, it stayed its mandate only with respect to Judge Feikens (App., infra, 20a). Thus, the action against Judge Brody has effectively been severed from the action against Judge Feikens -- at least with respect to the absolute immunity defense. /2/ The respondent also claimed violations of her Fourth and Fifth Amendment rights. These latter claims, however, were abandoned on appeal. /3/ The court cited (App., infra, 7a) the following cases for the proposition that decisions by judges in the personnel context are not judicial acts. McMillan v. Svetanoff, 793 F.2d 149 (7th Cir. 1986), cert. denied, No. 86-384 (Dec. 1, 1986); Goodwin v. Circuit Court, 729 F.2d 541 (8th Cir.), cert. denied, 469 U.S. 828 (1984); Richardson v. Koshiba, 693 F.2d 911 (9th Cir. 1982); Lewis v. Blackburn, 555 F. Supp. 713 (W.D.N.C. 1983), rev'd on other grounds, 759 F.2d 1171 (4th Cir.), cert. denied, 474 U.S. 902 (1985); Clark v. Campbell, 514 F. Supp. 1300 (W.D. Ark. 1981). But the court acknowledged (App., infra, 7a) that the Seventh Circuit has held that some personnel decisions are judicial acts entitled to absolute immunity. See Forrester v. White, 792 F.2d 647 (7th Cir. 1986), cert. granted, No. 86-761 (Feb. 23, 1987). APPENDIX