WIENER, Circuit Judge.
Plaintiff-Appellee Bruce M. Anderson brought this action against Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals ("Thirteenth Court"), asserting an individual and official capacity claim under 42 U.S.C. § 1983. Anderson alleges that, after he sent a letter to the Texas Supreme Court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by Chief Justice Valdez, Valdez prevented another justice on the Thirteenth Court from hiring Anderson as a "briefing attorney," viz., a law clerk. He further alleges that, in so doing, Valdez retaliated against him for exercising his right to free speech under the First Amendment. Valdez moved to dismiss, asserting that Anderson had failed to state a claim and that Valdez is entitled to qualified immunity. The district court denied the motion, and Valdez timely filed an interlocutory appeal pursuant to the collateral order doctrine.
Anderson, who has been licensed to practice law in the state of Texas since 1984, served as an assistant district attorney in Hidalgo County before being hired as a briefing attorney at the Thirteenth Court in 1988. Anderson alleges that, "[b]ecause of [his] productivity and success,"
Early in 2007, Rose Vela, yet another justice of the Thirteenth Court, hired Anderson as her briefing attorney. He remained in that position until she retired in late 2012. Anderson alleges that, as Justice Vela's briefing attorney, his "job duties included researching and writing memoranda on appeals and original proceedings pending before the Thirteenth Court, participating in case conferences, making recommendations to Justice Vela regarding pending motions, and performing routine administrative duties." He expressly alleges that his "official duties" did not include reporting judicial malfeasance by a justice on that court to the Texas Supreme Court or to the State Commission on Judicial Conduct.
According to Anderson, "[i]n early 2012, Justice Vela asked Anderson to come into her office for a meeting." "During this meeting, [she] told Anderson that she had
But Anderson alleges that he "was disturbed by the possibility that [Valdez, the chief justice,] had violated Texas law," so he sent a letter "on his own initiative" to Wallace Jefferson, then the chief justice of the Texas Supreme Court, in late 2012. Anderson asserts that, in that letter, he told Chief Justice Jefferson "that he had `concerns [about] the possible violation of the Texas Penal Code by ... Valdez' .... and that ... he `did not know who else to report it to.'" He asked Chief Justice Jefferson to provide him with the name of the individual or entity "responsible for investigating such allegations" and "to keep the letter confidential because [he] was concerned that he would be retaliated against if anyone at the Thirteenth Court ... learned that he `was revealing possible damaging information about ... Valdez's handling of the court's finances.'"
About one week later, Jennifer L. Cafferty, general counsel to the Texas Supreme Court, responded to Anderson's letter to Chief Justice Jefferson, "inform[ing] him that his concerns about ... Valdez may be reported to the State Commission on Judicial Conduct and/or local law enforcement." A week or so after that, "Anderson sent a letter to the State Commission on Judicial Conduct." The letter to the Commission was "nearly identical" to that he had sent to Chief Justice Jefferson. The commission responded a few weeks later, "indicat[ing] that it would commence an investigation into the allegations contained in Anderson's letter" (that is, the disciplinary complaint).
In early 2013, Royce LeMoine, an investigator with the Commission, contacted Vela, who had since retired as a justice, "to inquire whether she had information relating to [Valdez's] charging duplicate expenses to both the taxpayer-funded account of the Thirteenth Court and his political campaign fund." Vela responded to LeMoine soon after and "provided him with various documents supporting her belief that [Valdez] had obtained double reimbursements." The Commission "then referred the matter" to the district attorney in Travis County "for potential prosecution." (As of early 2015, the Commission's investigation was still "ongoing.")
Early in 2014, Anderson applied to Justice Gregory T. Perkes, also on the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 2014, Anderson interviewed with Perkes. Anderson alleges that Perkes told him that "he was the most qualified of all the applicants" and that "`the job [was his] if [he] want[ed] it.'" Anderson says that he "quickly replied," telling Perkes that he would "take it." Anderson stresses that "Perkes and [he] then agreed that [he] would start on May 12" and also agreed on his compensation. He also indicates that, soon afterward, Perkes e-mailed the other justices "to inform
Anderson asserts that "the [Thirteenth] Court's practice and procedure ... allow[ed] each justice to mak[e] all [their own] hiring decisions related to their individual chambers" and there had been no "other occasion when one [justice] was permitted to interfere with another [justice]'s hiring decisions." Anderson further asserts that, despite this, "[Valdez] told all of the [j]ustices not to allow Anderson to work for Justice Perkes." He said that he did so "because Anderson had filed a complaint against [him] with the State Commission on Judicial Conduct." After Valdez became aware that "Perkes had hired Anderson," Valdez "began searching for excuses to interfere with Anderson's hiring." This included "ask[ing] a [Thirteenth Court] employee to research [the] opinions" Anderson had written "while he worked for the Thirteenth Court" and to "look into the other applicants for the position" with Perkes. "Valdez [also] convened a meeting, wherein he asked all six justices on the Thirteenth Court of Appeals to vote on whether Anderson should be permitted to work for Justice Perkes."
Anderson contends that, on May 8, several days before Anderson was to start working for Perkes, he "received a call from an agent of the Thirteenth Court, who informed him that despite his acceptance of Justice Perkes's offer on May 2, [he] did not have a job with the Court." Although "[t]he agent did not provide any reason ..., [i]t [was] clear" that Valdez "had knowledge that Anderson [had] filed a complaint against [him] with the State Commission on Judicial Conduct and that [Valdez] interfered in Anderson's hiring because of the [disciplinary] complaint." In an e-mail, Valdez told staff at the Thirteenth Court to "call [him] to address [his] decision on [Anderson]." The following day, May 9, "Justice Perkes texted former Justice Vela, `[Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to [his] wishes.'" When Vela asked the reason, "Justice Perkes responded that `the only thing I can think of is that he got wind of [Anderson] and the investigation.'"
Anderson filed this suit against Valdez in his individual and official capacities under 42 U.S.C. § 1983, alleging that he violated Anderson's right to free speech. Anderson specifically alleged that Valdez's refusal to allow Perkes to hire him constituted retaliation for the complaints he had made to the Texas Supreme Court and the State Commission on Judicial Conduct.
Valdez then moved to dismiss. Anderson responded in opposition and also requested leave to amend his complaint. Valdez opposed the request. The district court granted Anderson leave to amend and denied Valdez's motion to dismiss as moot. Valdez then moved to dismiss the amended complaint, and Anderson again responded in opposition. The district court granted Valdez's motion as to Anderson's request for declaratory relief, but otherwise denied it on its merits. Valdez timely filed a notice of interlocutory appeal.
Valdez contends that, in resolving his motion to dismiss, the district court erred in determining that Anderson had stated a claim against him and that he could not avail himself of a qualified immunity defense. We have jurisdiction over an interlocutory appeal of a district court's denial of qualified immunity pursuant to
We review a district court's ruling on a motion to dismiss de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs."
As a preliminary matter, Valdez suggests that Anderson's claim is subject to a heightened pleading standard because Valdez's Rule 12(b)(6) motion to dismiss asserts a defense of qualified immunity. But, as Anderson correctly notes, Valdez misconstrues this court's precedent in Schultea v. Wood.
In applying that general pleading standard, we consider whether Anderson has, in fact, stated such a claim. "To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government's interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action."
We begin by addressing the fourth element, viz., whether Anderson's speech precipitated the adverse employment action. We then proceed to the second and third elements, viz., whether Anderson spoke as a citizen on a matter of public concern and — if so — whether his interest in that speech outweighed the government's interest. We need not address the first element, viz., whether Anderson suffered an adverse employment action, because Valdez does not contest it.
Valdez argues that Anderson has not satisfied the fourth element of his retaliation
Despite this, Valdez also contends that when Anderson's allegations that the letter and disciplinary complaint were confidential are taken as true, they foreclose the possibility that Valdez could have known about them. In particular, Valdez states that, by "admit[ing] that [Anderson] asked Chief Justice Jefferson to keep his letter confidential and fail[ing] to allege that his letter was known to anyone other than Chief Justice Jefferson and [the Texas] Supreme Court's General Counsel," he consequentially admits that Valdez did not know about the letter. Valdez further asserts that "the mere possibility that ... [he] could [have] learn[ed] of Anderson's [disciplinary] complaint to the State Commission on Judicial Conduct is not sufficient to nudge Anderson's allegations over the line from possibility to plausibility." Anderson, of course, disputes all of this.
Valdez misses the mark. With regard to the letter, Anderson's allegation is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so. In fact, Anderson alleged that Chief Justice Jefferson did not answer the letter himself, establishing that the letter had not remained confidential.
With regard to the disciplinary complaint, Valdez contends that Texas law requires the Commission on Judicial Conduct to keep such complaints confidential. But this misstates that law. Although "the papers filed with and proceedings before the commission are confidential prior to the filing of formal charges," this is subject to specified exceptions.
Anderson was not required to allege how Valdez knew of the letter and complaint,
Valdez next asserts that Anderson is unable to satisfy the second and third elements of his retaliation claim, viz., whether Anderson spoke as a citizen on a matter of public concern and — if so — whether his interest in that speech outweighed the government's interest. Valdez claims that, by sending the letter and filing the complaint, Anderson was acting pursuant to his official duties as a public employee, so his speech was unprotected. Valdez suggests more specifically that Anderson's ethical duties as a lawyer — including his duty to report malfeasance — were incorporated into his official duties as a public employee. Anderson disputes this.
In Pickering v. Board of Education, the Supreme Court noted that "[t]he problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer], as an employer, in promoting the efficiency of the public services it performs through its employees."
Garcetti begins by recognizing that "public employees do not surrender all their First Amendment rights by reason of
Garcetti notes that the "overarching objectives" of these inquiries "are evident."
Garcetti holds that, "[w]ith these principles in mind," an employer may restrict the employee's speech only when it is made "pursuant to [the employee's] official duties."
Garcetti itself noted that the scope of its holding is not limitless. For instance, a public employee does not speak pursuant to his official duties merely because he speaks while at work.
For this reason, Garcetti's scope is obviously not as broad as Valdez suggests. Instead, Garcetti merely allows the public employer to control an employee's speech if made pursuant to the employee's official duties.
Garcetti repeatedly used the "speech made pursuant to the employee's official duties" formulation.
In Williams v. Dallas Independent School District, we explained that a public employee's speech is made pursuant to his official duties when that speech is "made in the course of performing his employment," whether or not that speech was specifically "demanded of him."
In Williams, we began with a broad inquiry: "[W]e must determine the extent to which, under Garcetti, a public employee is protected by the First Amendment if his speech is not necessarily required by his job duties but nevertheless is related to his job duties."
When the Supreme Court revisited Garcetti in Lane, it reiterated that "[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within
In some instances, state law is "relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised and fired."
A public employee, therefore, might speak pursuant to his official duties when he does so in a course of conduct subject to the employer's control, even if the employer has not actually directed him to speak, not to speak, or how to speak. If the employer was entitled to exercise such control, the speech is made pursuant to the employee's official duties; if the employer was not entitled to exercise such control, the speech is not made pursuant to the employee's official duties. Whether the employer was entitled to control the employee's speech determines whether that speech was made pursuant to the employee's official duties.
The circumstances in Garcetti itself illustrate this focus on whether the employer was entitled to exercise control. There, an employer disciplined an employee for speech made pursuant to the employee's official duties as a prosecutor. The speech, a memorandum, was made for the benefit of the employer. It was, in essence, the employer's speech, not the employee's own. The employer, not the employee, was entitled to control it. Just as the employer had directed the employee to create it, the employer could also direct the employee to alter or discard it. If the employee refused,
As Garcetti explained, "[t]he controlling factor ... is that [the public employee's] expressions were made pursuant to his duties as a [prosecutor]."
In contrast to the employer in Garcetti, Valdez had no "heightened interest[ ] in controlling [Anderson's] speech."
Most notably, Garcetti expressly applies "only to the expressions an employee makes pursuant to his or her official responsibilities [read: duties], not to statements or complaints (such as those at issue in cases like Pickering and Connick) that are made outside the duties of employment [read: pursuant to his or her duties as a citizen]."
Garcetti emphasizes that "[e]xposing governmental inefficiency and misconduct is a matter of considerable significance."
In the context of Garcetti's clear instruction, Anderson's letter and disciplinary complaint were not created pursuant to his official duties. It is useful to note that Anderson's supervisor, Vela, did not ask him, much less require him, to send the letter or to file the disciplinary complaint. Anderson expressly alleged that he did so "on his own initiative." He also alleged that he asked Chief Justice Jefferson to "keep the letter confidential" so that no one "at
As the Supreme Court stated in Connick, "[m]atters of public concern are those which can `be fairly considered as relating to any matter of political, social, or other concern to the community.'"
We are convinced that Anderson sufficiently pleaded each of the elements of his retaliation claim. His speech, which was not made pursuant to his official duties as a public employee, was protected. Next, we must consider whether his right to protection for such speech was clearly established.
Valdez urges that, even if Anderson stated a retaliation claim, he (Valdez) is entitled to qualified immunity because neither Garcetti nor other relevant contemporary cases clearly established that speech made pursuant to a professional (here, ethical) duty is not speech made pursuant to an official duty. Anderson counters that Garcetti did nothing more than create a limited presumption that speech made by a public employee pursuant to an official duty is unprotected; it did not disrupt the presumption that speech made by a public employee is presumptively protected, including speech made pursuant to an ethical duty.
A person may assert a § 1983 claim against anyone who "under color of any statute, ordinance, regulation, custom, or usage, of any State" violates that person's rights under the Constitution.
"The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."
By at least 2014, it was clearly established that an employee's speech made "externally" concerning "an event that was not within [his or her] job requirements" was entitled to First Amendment protection.
That is not to say that, by 2014, our law applying Garcetti spoke loudly regarding every factual circumstance. Indeed, just after Anderson spoke, the Supreme Court clarified Garcetti in Lane. In Lane, the plaintiff alleged that he was retaliated against for giving testimony to a federal grand jury investigating another employee.
Thus, Lane plainly demonstrates that, following Garcetti, some First Amendment retaliation cases would still result in findings of qualified immunity. That is, Garcetti did not plainly establish all First Amendment retaliation law. Nonetheless, Cutler makes it apparent that Garcetti, and this court's jurisprudence interpreting it, clearly established some law. The question is how much.
Based on the allegations at issue here, Howell v. Town of Ball answers that question.
Nonetheless, we determined that the individual defendants were entitled to qualified immunity.
Reading Howell in the framework of Cutler properly synthesizes Lane's effect on Garcetti. Namely, Garcetti and our court's pre-Lane jurisprudence established that when employees speak outside of their chain of command and outside of their job duties they are entitled to First Amendment protection.
Equally clear, however, is that neither Lane nor Howell meaningfully altered the analysis required by Garcetti and Cutler when an employee's allegations do not concern the distinction between "ordinary" and "non-ordinary" job duties.
Here, there is not — and at the motion to dismiss stage there can never be — a meaningful factual dispute that implicates Lane's ordinariness rule.
Accordingly, under Cutler, Anderson has pleaded the violation of a clearly established right. Qualified immunity thus does not apply — at least, not yet.
For the forgoing reasons, we AFFIRM the holding of the district court and REMAND
JONES, Circuit Judge, dissenting:
I agree with the majority that even after Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), Anderson has plausibly alleged a violation of his First Amendment rights. Unfortunately, that is the end of our agreement, because I disagree with the majority's reasoning to this conclusion and would grant qualified immunity.
In the course of discussing Anderson's First Amendment retaliation claim, the majority has made two errors. The first error constitutes dicta that need not be followed hereafter: the majority irrelevantly invoke the Restatement of Agency and state law of agency to "explain" the scope of a public employee's official duties. The second error is in the implication that any "whistleblower" speech by a public employee, even when made pursuant to his official duties, takes the employee's retaliation claim out of Garcetti's threshold inquiry. After explaining these mistakes, I write why, under a proper Garcetti analysis, Anderson has stated a claim for relief.
One paragraph of the majority opinion begins by stating, "In some circumstances, state law is relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised, and fired." (The majority reinforce this idea in a lengthy footnote citing agency and contract law hornbooks.) Garcetti, to the contrary, describes the inquiry defining the scope of an employee's duties as "a practical one," such that formal job descriptions will not suffice to insulate employers. 547 U.S. at 424-25, 126 S.Ct. at 1961-62. It stands to reason that reference to treatises untethered to a particular public employee's workplace will also yield little insight. In any event, the majority cites these references but does absolutely nothing with them in further analysis of Anderson's duties. These are dicta, pure and simple.
Much more helpful than treatises in illuminating the practical scope of Garcetti are our court's decisions that evaluated whether employees' official duties comprehended the speech for which they claimed First Amendment protection. Thus, in Williams v. Dallas Independent School District, 480 F.3d 689 (5th Cir. 2007), this court concluded that a high school athletic director's communications to the principal expressing concern about the use of funds appropriated for athletic activities were made "in the course of performing" his job duties sufficiently to preclude First Amendment protection. See id. at 693-94. In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the question was whether any of several complaints made by a former auditor of a state university "up the chain of command" and to the FBI and EEOC about internal audit problems, staffing issues and potential racial discrimination were "in the course of performing" the auditor's job duties. See id. at 312-16. The focus was on the relation between the job duties and the speech, not on whether (as the majority states here) "the employer had an interest in controlling" the speech, or on an auditor's professional ethics, or alleged whistleblower status. Davis ultimately found some of the communications protected by the First Amendment, while others were not. Id. at 315-16. See also Nixon v. City of Hous., 511 F.3d 494, 498 (5th Cir. 2007) (holding that a police officer's volunteered media statement critical of the Houston Police Department's high-speed chase policy nevertheless was made "pursuant to his official duties and during the course of performing his job.")
The majority's gratuitous focus on (a) the nature of the speech and (b) the government employer's "interest in control" muddle Garcetti's clear threshold line that holds speech undertaken pursuant to an employee's job duties is categorically unprotected by the First Amendment. The majority assert generally that it "was lawful and appropriate" for the District Attorney's office in Garcetti to "control" attorney Ceballos's speech pursuant to his official duties, but this is semantics. Ceballos was reporting about police misconduct, specifically, misrepresentations made in a warrant affidavit; his opinion was overruled by his superiors who continued the criminal prosecution. The Supreme Court explicitly did not rule on the merits of Ceballos's internal memos and held simply that because they were authored pursuant to his official duties, they receive no First Amendment protection. Yet, under the majority's misplaced analysis, Ceballos's memos might just as easily be characterized as those of a "whistleblower" exposing both police and prosecutorial misconduct. The majority, therefore, have smuggled back into Garcetti's threshold issue of job duties an evaluation of the speech itself based on the employer's "interest in controlling" the employee speech, or whistleblower revelations.
Despite my disagreement with the majority's reasoning, I concur that Anderson stated a claim for First Amendment retaliation. The fact that his boss, Justice Vela, conveyed the incriminating information to Anderson means that the speech "related" to his job duties, but Anderson pleads that he did not write the letters under her supervision or on her orders or even with her knowledge.
A judge's briefing attorney is paid by the court but is normally accountable to the judge (or judges) for whom he directly works. The relation between a judge and a law clerk is both sensitive and confidential. Further, the scope of the clerk's duties for "his" judge varies widely within the judiciary, in part because a judge takes advantage of each briefing attorney's particular experience and expertise. It is hardly unusual for a briefing clerk's duties to range beyond writing legal memoranda, conducting research on pending cases, and advising on motions before the court. Anderson accordingly became responsible for advising Justice Vela when she inquired of him about the legality of the chief justice's travel reimbursements. Based on their confidential relationship, Anderson would also have had the duty to inform Justice Vela if he had independently discovered possible malfeasance within the judiciary. Justice Vela in either case shouldered a duty to pursue the allegations, but Anderson's official work ended with rendering his confidential advice to Justice Vela; the justice asked no more of him. Reporting "up the chain" to Chief Justice Jefferson and the State Commission on Judicial Conduct fell outside Anderson's employment duties.
For these reasons, it is consistent with Garcetti, Williams, and Davis to conclude that, under the facts pled, Anderson was not employed to investigate and report judicial malfeasance beyond his response to Justice Vela's inquiry. Further, his complaints "up the chain" reflect protected speech as a citizen on a matter of public concern.
On the question of qualified immunity, the majority are rightly concerned that a judicial officer should not be able to shield himself from the consequences of actionable retaliation if the law clearly held that a law clerk was speaking "as a citizen" when he reported the alleged judicial misconduct to the chief justice of the Texas Supreme Court and the State Commission on Judicial Conduct. But in this case, as in all qualified immunity cases, the law must have been "clearly established" at the time of the official's conduct under factually analogous circumstances. See Brosseau v. Haugen, 543 U.S. 194, 198-201, 125 S.Ct. 596, 599-600, 160 L.Ed.2d 583 (2004) (per curiam). Only the "plainly incompetent" public officials or those who "knowingly violate the law" are denied the protection of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,
The majority correctly note that post-Garcetti and before Chief Justice Valdez acted against Anderson, our court's decisions distinguished between a public employee's speech within the chain of command of his office (speech that is constitutionally unprotected) and speech "as a citizen," which is directed outside to third-party responders like the EEOC (and may be constitutionally protected). See, e.g., Davis, 518 F.3d at 315-16 (holding some complaints within the UT System to be unprotected while those to the EEOC were accorded constitutional protection).
Nevertheless, the issue is more complex than the majority's analysis acknowledges because, under the Texas Constitution, the Commission includes members of the public,
I respectfully dissent.
WIENER, Circuit Judge:
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (FED R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
In his Petition for Rehearing En Banc, Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals, contends that the panel majority improperly relied on cases decided after the challenged speech to define the First Amendment right. It is true that the use of post-conduct cases to establish the existence or contours of a right would run afoul of our qualified-immunity jurisprudence. We, the panel majority, did not, however, rely on post-conduct cases to show that Plaintiff-Appellee Bruce Anderson's First Amendment right was clearly established at the time of his speech. Rather, we relied on Cutler v. Stephen F. Austin State University
Importantly, the panel in Cutler was itself deciding a qualified immunity question.
Neither did we rely on Cutler to determine what right was already established in 2014. Instead, we discussed Cutler to emphasize that, by 2010, not only was it clearly established that speech like Anderson's was protected by the First Amendment, but also that a reasonable official in Chief
We also discussed Howell v. Town of Ball
Put differently, we did not use Howell either to define the right or to show that the right was clearly established at the time Anderson spoke. Instead, the discussion of Howell was included only to cabin our holding to rights that were clearly established by 2014: We were just making clear that our opinion does not implicate Lane's ordinariness rule. Our discussion of that rule had no bearing on deciding Valdez's qualified-immunity claim. As we went to lengths to explain, the right that Cutler held was clearly established by 2010 decides this appeal.
The district court aptly summarized its rejection of this argument: "In no way does Garcetti permit an employer to take refuge under the broad net of its employees' professional ethical obligations that happen to implicate speech on matters of public concern, and that apply to all members of the profession regardless of whether they are publicly employed."
