[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                           OCTOBER 3, 2007
                             No. 06-15259                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-23123-CV-CMA

NEIL KHAN, an individual,


                                                    Plaintiff-Appellant,

                                  versus

KATHERINE FERNANDEZ-RUNDLE, officially as
State Attorney of Miami Dade County, Florida,
KATHLEENE HOAGUE,
DON HORN,
HOWARD POHL, officially and individually,
ERIKA ISIDRON,


                                                    Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (October 3, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      This is former Miami-Dade assistant state attorney Neil Khan’s appeal from

the dismissal of his lawsuit, brought under 42 U.S.C. § 1983, in which he alleged

that his superiors fired him in violation of the First Amendment.

      Khan began working in the Miami-Dade State Attorney’s Office on August

12, 2002. Taking the facts in his complaint as true (as we must), see Horsley v.

Feldt, 

, 1131 (11th Cir. 2002), we will assume that he was fired in

August 2004 as a result of three incidents that occurred that month. In the first

incident, Khan refused to heed the directions of his direct supervisor Erika Isidron

to tell a state trial judge that he was prepared to proceed to trial when he was not

in fact ready. In the second incident, Khan objected after Isidron instructed him

not to truthfully answer a judge’s question about the existence of a prior plea offer

in a criminal case. The complaint’s allegations are a little unclear, but it appears

that in both of these situations, Khan told the judge the truth—i.e., that he was not

ready to proceed with trial and that there was a prior plea offer. In the third

incident, Khan told a judge that he could not deliver a plea offer because his

supervisors had been unavailable to meet with him.

      In his complaint, Khan asserted official-capacity claims against chief

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assistant state attorneys Kathleene Hoague (count I), Howard Pohl (count II), and

Don Horn (count III), as well as Miami-Dade State Attorney Katherine Fernandez-

Rundle (count IV). In particular, he alleged that each of these individuals acted

pursuant to an official policy or custom of the State Attorney’s office when they

“allowed, condoned, encouraged, and tolerated” his termination for exercising his

free speech rights and telling the court the truth. Khan also asserted claims against

Isidron, Hoague, Pohl, and Horn in their individual capacities (count V), alleging

that they each “participated in the punishment of Mr. Khan for his protected

speech.”

      In the course of its proceedings, the district court entered two orders

disposing of Khan’s various claims. First, in a March 2006 order ruling on the

defendants’ motion to dismiss, the district court dismissed the individual-capacity

claims. The court assumed that Khan had alleged a violation of his constitutional

right to free speech, but concluded that Khan’s supervisors were nevertheless

entitled to qualified immunity on the ground that the violation was not clearly

established at the time they fired him. In a subsequent order, however, the district

court reasoned that a newly released decision of the Supreme Court, Garcetti v.

Ceballos, ___ U.S. ___, 

(2006) (decided May 30, 2006),

warranted revisiting the assumption it had made in the earlier order about the

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existence of a First Amendment violation. It concluded that Khan could not

establish such a violation in the wake of Garcetti, and that as a result, the

remaining official-capacity claims also had to be dismissed.

       Khan appeals both of these orders. He also appeals a third order denying

his motion to amend his complaint to include a claim against all of the individual

defendants except Fernandez-Rundle for intentional infliction of emotional

distress.

                                          I.

       In Garcetti, the Supreme Court considered the case of a local prosecutor

whose supervisors allegedly retaliated against him, in that case on the basis of a

memorandum the attorney had written recommending dismissal of a pending

criminal 

. The Court analyzed the prosecutor’s claim

using its two-step analysis for public employee speech cases which asks first

“whether the employee spoke as a citizen on a matter of public concern” and then,

if so, “whether the relevant government entity had an adequate justification for

treating the employee differently from any other member of the general public.”

       The prosecutor’s claim failed on the first of these two steps in light of the

Court’s holding that “when public employees make statements pursuant to their

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official duties, the employees are not speaking as citizens for First Amendment

purposes.” 

This rule, the Court reasoned, was grounded in the agency

relationship between the speaker and his government employer:

      Restricting speech that owes its existence to a public employee’s
      professional responsibilities does not infringe any liberties the
      employee might have enjoyed as a private citizen. It simply reflects
      the exercise of employer control over what the employer itself has
      commissioned or created. Cf. Rosenberger v. Rector and Visitors of
      Univ. of Va., 

, 833, 

, 

      (1995) (“[W]hen the government appropriates public funds to
      promote a particular policy of its own it is entitled to say what it
      wishes.”).

wrote the memorandum in question, the Garcetti prosecutor had

simply “[gone] to work and performed the tasks he was paid to perform.” 

such a situation, the Court wrote, the First Amendment does not stop

government supervisors from supervising. 

The First Amendment

“does not invest [government employees] with a right to perform their jobs

however they see fit.” 

      The holding in Garcetti means that Khan “can prove no set of facts which

would allow [him] to prevail” on his First Amendment claims. Palmer & Cay, Inc.

v. Marsh & McLennan Cos., Inc., 

, 1303 (11th Cir. 2005). Khan’s

in-court statements “owe[d] [their] existence” to his role as a government lawyer.

Because Khan was not speaking as a citizen but as an assistant state attorney,

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those statements were not entitled to protection under the First Amendment.

      As he did before the district court, Khan advances two arguments that

Garcetti does not require this result. These arguments are creative, but ultimately

unpersuasive. We address each in turn.

                                         A.

      First, seizing on a single word in the Court’s opinion, Khan frames the

relevant inquiry as whether an employee was acting pursuant to his “expected”

duties at the time of the speech in controversy. Since he says he was expected to

lie whenever it was convenient to the state attorney’s office, Khan says that he was

not acting pursuant to his expected duties when he told the truth in derogation of

his supervisor’s instructions. The implication is that Khan therefore spoke to the

court as a citizen entitled to First Amendment protection and not as a government

employee acting pursuant to his official duties.

      Khan’s interpretation of Garcetti cannot be right. By focusing on the fact

that he was acting outside his “expected” duties when he told the truth to the court,

Khan in effect is asking us to recognize First Amendment protection for any

employee who disobeys his employer’s instructions. This approach is wholly at

odds with the Garcetti Court’s desire to avoid “permanent judicial intervention in

the conduct of governmental operations” and we decline to embrace it. 

at 1961.

      Moreover, Khan’s singular focus on the word “expected” betrays a tortured

reading of the Supreme Court’s decision. Khan lifted that word “expected” out of

a paragraph in which the Court decried the use of formal job descriptions as the

overriding benchmark to determine when an employee is acting pursuant to his

official duties. The Court wrote:

      The proper inquiry is a practical one. Formal job descriptions often
      bear little resemblance to the duties an employee actually is expected
      to perform, and the listing of a given task in an employee’s written
      job description is neither necessary nor sufficient to demonstrate that
      conducting the task is within the scope of the employee’s professional
      duties for First Amendment purposes.

The Court made this point, however, only after noting that the

parties had not disputed the prosecutor’s official-duty status in writing the memo

and cautioning that it therefore had “no occasion to articulate a comprehensive

framework for defining the scope of an employee’s duties in cases where there is

room for serious debate.” 

That is to say, the Court itself explicitly

refrained from placing the emphasis on supervisors’ specific expectations that

Khan says it placed.

      What the Court did emphasize was whether the public employee was acting

as an agent of the government at the time of the relevant speech. As we mentioned



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earlier, the Garcetti Court’s central concern was with speech that “owes its

existence to a public employee’s professional responsibilities.” 

of that sort, the Court said, “simply reflects the exercise of employer

control over what the employer itself has commissioned or created.” 

Souter recognized this basis for the Court’s holding when he lamented in

his dissenting opinion “the fallacy . . . that any statement made within the scope of

public employment is (or should be treated as) the government’s own speech.” 

(Souter, J., dissenting). So while Garcetti does not provide us with a

“comprehensive framework for defining the scope of an employee’s duties,” its

reasoning tells us enough to decide this case. 

Khan’s

truth-telling occurred while he was representing the state of Florida as an assistant

state attorney in open court. He was therefore speaking as a public employee and

not as a private citizen.

                                         B.

      Khan’s other argument draws on the fact that unlike the Garcetti prosecutor

who wrote a memorandum to his superiors, Khan was addressing a court at the

time of the relevant speech. According to him, that fact implicates his obligations

under Florida state bar rules not to mislead the court. See R. Regulating Fla. Bar

4-3.3 (“Candor Toward The Tribunal”). When his superior asked him to lie, Khan

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says that he had to “abandon his duties as a State Attorney” and “act[] in the only

capacity he was left with at the time: . . . as a private citizen regulated by the

Florida Bar and as an officer of the Court.”

        The fact that Khan’s speech occurred in a courtroom (and not in an internal

memorandum) does not change the analysis required by Garcetti. When a lawyer

speaks as an “officer of the court” he is necessarily speaking as his client’s

representative. Nothing in the relevant bar rules changes the fact that Khan’s

speech “owes its existence” to his role as the government’s 

.

        Although we are of course sympathetic to government employees whose

ethical obligations bring them into conflict with their supervisors, the Garcetti

Court was careful to note that there are protected avenues available for those

employees wishing to resolve such conflicts. 

They could

complain privately to their superiors, see Givhan v. Western Line Consol. School

Dist., 

, 415, 

, 696–97 (1979) (“Neither the [First]

Amendment itself nor our decisions indicate that [the ‘freedom of speech’] is lost

to the public employee who arranges to communicate privately with his employer .

. . .”), or even publicly, see 

(citing Pickering v. Board

of Education, 

, 

(1968)). Public employees in Florida

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also can find protection under that state’s whistle-blower statute. See Fla. Stat. §

112. 3187. But as the Garcetti Court put it, the First Amendment does not give

government employees “a right to perform their jobs however they see fit.” 

        Because Khan spoke pursuant to his official duties, he suffered no violation

of his First Amendment rights. As a result, we must affirm the district court’s

entry of judgment against Khan as to all of his claims under 42 U.S.C. § 1983,

official- and individual-capacity ones alike.

                                          II.

        Khan also appeals the district court’s denial of his motion to amend his

complaint to include a claim for intentional infliction of emotional distress based

on his supervisors’ alleged conduct.

        We cannot improve on the district court’s order denying the motion. As that

court noted, the standard for “outrageous conduct”—an essential element of

Khan’s proposed new claim—is “particularly high in Florida.” Patterson v.

Downtown Med. & Diagnostic Ctr., Inc., 

, 1383 (M.D. Fla.

1994). The numerous decisions cited in the district court’s opinion more than

adequately show that the conduct Khan complains of does not meet that high

standard. For that reason, we agree with the district court that Khan’s amendment

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would be futile.

      AFFIRMED.




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