Today’s blog entry is a real short one. I actually have quite a pile of cases to blog on, but I ultimately decided to keep it short. In particular, I wanted to focus on a couple of different concepts that come up frequently. The first point arises in the case of Gray v. State Farm Mutual Company, a published decision decided by the Sixth Circuit on July 25, 2025, here. The second point arises in the case of Mullane v. Moreno, an unpublished decision from the 11th Circuit decided on May 14, 2025, here. As usual, blog entry is divided into categories and they are: Mullane; importance of Mullane to the disability universe; and Gray and its importance to the disability universe. This blog entry is so short that the reader will probably want to read the whole thing.

 

I

Mullane

 

You cannot sue federal governmental employees for tortious actions done within their scope of employment. So, the question is whether a federal employee acts outside the scope of their employment. In this case, the question is whether a judge acted outside the scope of his employment with respect to referring someone to the State Bar for discipline. The actual facts are a bit of a mess, but aren’t relevant for our purposes. The court said that whether an act is a judicial act depends upon: 1) the nature of the act itself (whether it is a function normally performed by a judge); and 2) the expectation of the parties (whether they dealt with the judge in his judicial capacity). In this particular case, the court said that the judge acted within his official capacity.

 

II

Importance of Mullane to the Disability Universe

 

  1. I get calls at least a couple of times a month regarding judges just not acting the way they should with respect to reasonably accommodating litigants or even attorneys with disabilities. Many courts have set it up so that the judge makes all the decisions with respect to any reasonable modifications that may be necessary. Doing it that way increases the chances of judicial immunity being upheld. This court said that actions relating to scheduling and conducting a hearing as well as recusal orders are plainly judicial acts entitled to immunity. So, anything else needs to explore whether what occurred was a function normally performed by a judge, and whether the judge actions were conducted in the judge’s judicial capacity.
  2. Applying these two factors in a reasonable modification situation isn’t so simple. A lot of the accommodations pertain to the way the court need to go about it business. For example, persons with disabilities may need adjustments in scheduling. It also is not unusual for persons with disabilities to need adjustments in the way any hearings proceed. On the other hand, deciding on reasonable modifications is not an inherently judicial act. For example, the process for deciding what is a reasonable modification shouldn’t be really any different from the process for deciding what is a reasonable accommodation for an employee to do their essential functions of the job as the meaning of the two terms are identical. The latter is certainly not a judicial act. Also, the mere fact the judge makes the decision should not insulate the judge. Otherwise, a judge has carte blanche to ignore their obligations under Title II (assuming a state judge).
  3. The case is useful for setting forth a standard for what is a judicial act (the court actually lifted the two-part test from a Supreme Court decision discussing sterilization of a person with intellectual disabilities). However, when it comes to reasonable modifications (the term used for Title II and Title III of the ADA when it comes to accommodating persons with disabilities in court proceedings) in the courtroom, the two-part test is about as clear as mud.

 

IIII

Gray And Its Importance to the Disability Universe

 

  1. In this case, Gray sued for disability discrimination. The employer put together various documents to justify the termination, but it did so by compiling those documents using the evidence it had in a very selective way. The court said that the honest belief rule does not apply because of the selective reports the employer used in justifying the termination.
  2. The importance of the case is that the honest belief rule is not automatically a successful defense for the employer. If an employer is going to terminate someone based upon the evidence they have, that evidence cannot be selective and must be the actual evidence.
  3. Gray is a published decision.