Huppert v. City of Pittsburg ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RON HUPPERT; JAVIER SALGADO, 
Plaintiffs-Appellants,
v. No. 06-17362
CITY OF PITTSBURG; AARON BAKER;  D.C. No.
WILLIAM ZBACNIK; MICHAEL CV-05-01433-JL
BARBANICA; WILLIAM BRIAN
ADDINGTON; WAYNE DERBY,
Defendants-Appellees.

RON HUPPERT; JAVIER SALGADO, 
Plaintiffs-Appellants,
v. No. 07-16600
CITY OF PITTSBURG; AARON BAKER;  D.C. No.
CV-05-01433-JL
WILLIAM ZBACNIK; MICHAEL
BARBANICA; WILLIAM BRIAN OPINION
ADDINGTON; WAYNE DERBY,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Larson, Magistrate Judge, Presiding
Argued and Submitted
July 18, 2008—San Francisco, California
Filed July 21, 2009
9317
9318 HUPPERT v. CITY OF PITTSBURG
Before: William A. Fletcher and Richard C. Tallman,
Circuit Judges, and William O. Bertelsman,* District Judge.
Opinion by Judge Tallman;
Dissent by Judge William A. Fletcher
*The Honorable William O. Bertelsman, Senior United States District
Judge for the Eastern District of Kentucky, sitting by designation.
HUPPERT v. CITY OF PITTSBURG 9321
COUNSEL
Russell A. Robinson, San Francisco, California, for the appel-
lants.
Joseph M. Quinn, MEYERS NAVE RIBACK SILVER &
WILSON, San Francisco, California, for the appellees.
OPINION
TALLMAN, Circuit Judge:
We examine the question whether a state police officer’s
speech, in different forms, is protected under the First
9322 HUPPERT v. CITY OF PITTSBURG
Amendment from retaliatory actions taken by that officer’s
superiors. Plaintiffs Ron Huppert and Javier Salgado appeal
the district court’s grant of summary judgment in favor of the
Appellees, the City of Pittsburg and individual police officers
within the Pittsburg Police Department (“PPD”), dismissing
their claims under 42 U.S.C. § 1983.
We hold that the speech at issue was given pursuant to
Huppert and Salgado’s job duties, and therefore affirm the
district court’s grant of summary judgment. Additionally, Sal-
gado appeals the district court’s dismissal on summary judg-
ment of his § 1983 claim brought under the Fourth, Sixth, and
Fourteenth Amendments. We affirm the district court on this
claim as well. Finally, both Huppert and Salgado appeal the
district court’s grant of costs to the Appellees solely on the
ground that the Appellees failed to timely file their bill of
costs. This argument is meritless, so we also affirm the district
court’s award of fees.
I
Huppert joined the PPD on January 25, 1991, where he
worked primarily as a patrol officer and an inspector. In 1995,
he was assigned to work a twenty-four hour shift at the Pitts-
burg Seafood Festival. He requested a shift modification,
which was subsequently denied by the PPD. He consulted
with a labor attorney, who, unbeknownst to Huppert, con-
tacted the PPD. After Huppert returned to work, Lieutenant
Aaron Baker (“Baker”)—who is now Chief of Police for the
PPD—expressed unhappiness with Huppert and asked Hup-
pert to sign a letter in which he acknowledged (non-existent)
sick-leave abuse. When Huppert refused to sign the letter and
requested review of all his “sick-leave slips,” the matter was
“apparently dropped.”
In 1996, after being promoted to Inspector, Huppert was
assigned to investigate a vehicular manslaughter case. He
reported that one of his supervisors, Sergeant Keeler
HUPPERT v. CITY OF PITTSBURG 9323
(“Keeler”), a personal friend of Baker, had pursued a car-
jacking suspect, reaching speeds of up to 100 m.p.h. without
using his emergency lights or siren. An innocent third party
perished in the resulting crash. In his report about the inci-
dent, Huppert discussed his “concerns about Keeler’s conduct
during the pursuit,” and Keeler’s use of racial slurs. Now a
Commander, Baker charged Huppert with “failure to report
and subversive conduct” for not having previously reported
this misconduct—which Baker referred to as a “letter of
advisement.” The charge was later reduced to a “warning.”
Between 1997 and 1998, while still employed as a Pittsburg
police officer, Huppert was selected by the Contra Costa
County District Attorney’s Office to assist in investigating
corruption at the Pittsburg Public Works Yard. Huppert states
that “[f]rom that time on, my superiors [at the PPD] treated
me with scorn and as an outcast.” Then, in 1998 Huppert took
the sergeant’s exam. He finished first on the written section
of the exam, and during the oral portion of the exam, he was
questioned “mostly” about his goatee. The following day
Baker informed him that he would not be promoted because
he had decided to keep his goatee.
Sometime prior to 2001, Huppert began working with the
FBI on an investigation into suspected corruption within the
PPD. While he does not disclose what assistance he gave to
the FBI, he does claim that this work was “outside [his] duties
as a member of the PPD.” Then, in January 2001, his supe-
rior, William Zbacnik, informed Huppert that he would be
transferred to “Code Enforcement,” also known as the “Stra-
tegic Operations Bureau.” He was officially transferred in
June 2001, and was sent to a building known within the PPD
as the “Penal Colony,” because “disaffected and/or disfavored
officers were assigned there.” Huppert’s new supervisor, Wil-
liam Hendricks (“Hendricks”), informed him that he had been
sent to the “Penal Colony” because Baker wanted Hendricks
to find a way to fire him. Huppert’s new office at the “Penal
Colony” was a “tiny converted bathroom without computer
9324 HUPPERT v. CITY OF PITTSBURG
access,” and even though he was assigned to investigate gang-
related activity, the building was not equipped with the proper
secured areas needed for his investigations. During the six-
month period between January and June 2001, Huppert was
not permitted to work overtime.
Salgado joined the force in 1995 and was, for the majority
of his tenure, a detective. In September 2001, he was assigned
to the “Strategic Operations Bureau” as Huppert’s partner.
Baker assigned both of them to investigate suspected corrup-
tion at the local City-owned golf course, but told them not to
inform Hendricks of this assignment. The investigation “re-
vealed improper conduct by members of the PPD, including
gambling, accepting free golf, and possible illegal drug activi-
ty.” After only two interviews, Baker commanded that Hup-
pert and Salgado cease the investigation. Once they informed
Hendricks, he encouraged them to continue investigating and
informed Baker that Huppert and Salgado were still looking
into corruption at the golf course. Hendricks also informed the
FBI that he believed there was a major gambling operation
on-going at the golf course.
Huppert claims that while Baker told them not to memori-
alize their findings, they drafted a report at the conclusion of
their inquiry and directed it to Baker and the Pittsburg City
Manager. The report “included a finding that defendant Zbac-
nik had accepted thousands of dollars in gratuities and other
illegal perks.” However, following the report, Baker took no
action against Zbacnik, and instead deemed Zbacnik’s actions
a “training issue.”
In 2002, Huppert and Salgado’s office was moved from the
“Penal Colony” back to the main Civic Center. They were not
initially given an office, and when they finally received one,
it was “an old storage room.”
Huppert states that Hendricks was “forced out” in Decem-
ber of 2002, and Michael Barbanica (“Barbanica”) took his
HUPPERT v. CITY OF PITTSBURG 9325
place. In January 2003, Barbanica and defendant William
“Brian” Addington (“Addington”) falsely accused Huppert
and Salgado of engaging in an improper pursuit. Both Hup-
pert and Salgado claim that they were in no way involved in
the pursuit. Though Barbanica initially claimed that an “anon-
ymous concerned citizen” had reported that Huppert and Sal-
gado were involved, he later admitted that he had lied. He
agreed that Zbacnik had been behind his false accusations.
It was normal practice at the PPD that when a supervisor
was absent, the next senior officer was normally designated
as acting unit supervisor. In late 2003 and early 2004, the
practice was changed in the Code Enforcement Unit, where
Huppert and Salgado were the next senior officers under their
supervisor, Sergeant Reposa. Because of the change in prac-
tice, Huppert and Salgado were required to report to the
Investigations Unit Supervisor, and were hence prevented
from exercising any supervisory authority and earning out-of-
class pay.
Salgado claims that in late 2003 and early 2004, Addington
began an investigation of Officer Jim Hartley for allegedly
falsifying reports. It was obvious to Salgado that “Addington
disliked Hartley and was seeking to terminate him.” Adding-
ton sought to have Salgado claim first-hand knowledge of
events which Salgado had not actually witnessed, but Salgado
refused to do so.
Huppert and Salgado allege that in February 2004, defen-
dant Wayne Derby (“Derby”) became their supervisor. Derby
informed them that he was Chief Baker’s “ ‘hatchet man’ ”
and that Baker saw them as “malcontents.” He subsequently
took away their undercover vehicle and replaced it with an
easily recognizable, though unmarked, Ford Taurus. They
claim this hindered their work as gang detectives.
Huppert then states that in March 2004, he was subpoenaed
to testify before a Contra Costa County grand jury that was
9326 HUPPERT v. CITY OF PITTSBURG
“probing corruption in the PPD.” Other officers, including
Baker, were also subpoenaed to testify, and the subpoenas
were received at the PPD for delivery to the individual offi-
cers. Huppert’s receipt of this subpoena was “recorded in a
subpoena log posted in the [PPD] break room.” Huppert states
that Baker openly discussed his testimony, and told Huppert
he knew Huppert had testified before the grand jury as well.
Baker also identified officers who he thought would be “bad
witnesses” for the department, which Huppert understood to
indicate Baker’s belief that they were “malcontents.”
Sometime after his grand jury testimony, Derby informed
Huppert that his position as a gang investigator was being
eliminated and he was transferred to a position investigating
fraud and forgeries. Addington became his supervisor, and he
was assigned to investigate fraud claims, which Huppert
claims are less desirable than “person crimes.” After the trans-
fer, Addington changed the way in which fraud cases were
handled within the PPD, requiring Huppert to generate reports
in order to close each case. Huppert believes this increase in
workload was initiated simply as a method of harassment.
Additionally, Addington would criticize the completed reports
over minor mistakes, “such as the letter ‘M’ (for ‘Male’)
being in the wrong font.” Addington also refused to permit
Huppert to wear a uniform shirt with an outdated embroidered
badge when other officers were allowed to do so. He would
call Huppert to come to his office claiming he had Huppert’s
“pink slip,” but would then admit he was just “kidding.”
Finally, Addington attempted to replace Huppert’s “superla-
tive” yearly evaluation, originally conducted by Sergeant
Stroup, with an evaluation completed by Addington. After
Huppert and the Patrol Officers’ Association filed a grievance
against the PPD and Addington, Baker restored Stroup’s orig-
inal evaluation to Huppert’s file. Huppert took a temporary
disability leave in 2003, and then retired on disability in 2004.
In May 2004, Salgado was placed on administrative leave
pending an investigation into whether he had falsified police
HUPPERT v. CITY OF PITTSBURG 9327
reports in Health and Safety Code section 11550 cases. While
he admits that he did “cut and paste” when drafting his arrest
reports, he claims this was “an accepted practice at the time
in the PPD,” and that he actually ensured that the proper indi-
vidual results were accurately recorded. In fact, he insists this
practice was “encouraged by [his] supervisors,” and he had
seen other officers using his prefabricated reports.
In July 2004, Salgado received a Notice of Proposed Disci-
plinary Action, which suggested his termination. Two days
before Salgado’s Skelly1 hearing, a newspaper reporter noti-
fied him that Baker was planning to terminate him from the
PPD and the District Attorney would institute a criminal pros-
ecution against him. A newspaper article stating the same was
published on the day of the hearing. On the advice of counsel,
Salgado did not appear at the Skelly hearing, and Baker termi-
nated his employment three days later. However, apparently
Baker had a change of heart, and Salgado was reinstated.
Barbanica informed Salgado that if he were to resign, the
criminal charges would be dropped. Salgado reviewed his
personnel file and found that it had been purged of all positive
references and performance reviews. Notably absent was his
2001 Officer of the Year award. Salgado refused to resign and
was officially terminated on August 24, 2004.
Huppert and Salgado filed this civil rights action in the
Northern District of California on April 7, 2005. The defen-
dants moved for summary judgment, which the court granted
on November 15, 2007.2 The district court held, primarily
under Garcetti v. Ceballos, 547 U.S. 410 (2006), that because
each alleged incident of speech by either Huppert or Salgado
was not made as a private citizen, the speech was not pro-
1
Skelly v. State Personnel Board, 15 Cal. 3d 194, 215 (1975), grants
notice and a right to be heard to all California public employees before
imposing discipline.
2
Judgment was entered on November 17, 2007.
9328 HUPPERT v. CITY OF PITTSBURG
tected from retaliation by the First Amendment. Hence, they
had no claim under § 1983. It also granted summary judgment
to the defendants on Salgado’s claims and awarded costs to
the defendants. Huppert and Salgado timely appealed.
II
We review a district court’s grant of summary judgment de
novo. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896
(9th Cir. 2008). In determining whether summary judgment
was appropriate, we view the evidence in the light most favor-
able to Huppert and Salgado, the non-moving parties. Id. A
grant of summary judgment is inappropriate if there is “any
genuine issue of material fact or the district court incorrectly
applied the substantive law.” Blankenhorn v. City of Orange,
485 F.3d 463, 470 (9th Cir. 2007).
On Huppert and Salgado’s appeal regarding the award of
costs, we review for clear error the district court’s findings of
fact with respect to the timeliness of the cost application.
Chevron USA Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir.
2004), rev’d on other grounds sub nom., Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528 (2005). We review for abuse of dis-
cretion the district court’s refusal to strike. Idaho Potato
Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708,
723 (9th Cir. 2005).
III
Three issues are before us on appeal. First, whether the dis-
trict court improperly dismissed on summary judgment Hup-
pert and Salgado’s § 1983 claims for violations of the First
Amendment. Second, whether the presiding judge also erred
by granting summary judgment on Salgado’s claim alleging
violations of the Fourth, Sixth, and Fourteenth Amendments.
Finally, whether the district court incorrectly awarded costs to
the Appellees.
HUPPERT v. CITY OF PITTSBURG 9329
A
[1] The Supreme Court has clearly stated that public
employees do not shed their First Amendment rights simply
because they are employed by the government. The First
Amendment shields a public employee if he speaks as a citi-
zen on a matter of public concern. See, e.g., Ceballos, 547
U.S. at 417; Rankin v. McPherson, 483 U.S. 378, 384 (1987);
Connick v. Myers, 461 U.S. 138, 142-143 (1983); Pickering
v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391
U.S. 563, 569-70 (1968). While this protection is applicable
to such individuals, “when public employees make statements
pursuant to their official duties, the employees are not speak-
ing as citizens for First Amendment purposes, and the Consti-
tution does not insulate their communications from employer
discipline.” Ceballos, 547 U.S. at 421. “The problem in any
case is to arrive at a balance between the interests of the [pub-
lic employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568.
[2] Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.
2009), we distilled the Supreme Court’s prior holdings on this
issue into “a sequential five-step” inquiry:
(1) whether the plaintiff spoke on a matter of public
concern; (2) whether the plaintiff spoke as a private
citizen or public employee; (3) whether the plain-
tiff ’s protected speech was a substantial or motivat-
ing factor in the adverse employment action; (4)
whether the state had an adequate justification for
treating the employee differently from other mem-
bers of the general public; and (5) whether the state
would have taken the adverse employment action
even absent the protected speech.
Id. at 1070. We reaffirmed this test in Robinson v. York, 566
F.3d 817, 822 (9th Cir. 2009), where we again considered
9330 HUPPERT v. CITY OF PITTSBURG
whether the district court had improperly denied qualified
immunity in a § 1983 retaliation case.
[3] Our sister circuits and the Supreme Court have said that
the question whether the plaintiff acted pursuant to his or her
job duties is antecedent to a determination whether the plain-
tiff spoke regarding a matter of public concern. See, e.g.,
Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th Cir. 2009)
(“[Ceballos] requires a threshold determination regarding
whether the public employee spoke in his capacity as a private
citizen or as an employee.”); Davis v. McKinney, 518 F.3d
304, 312 (5th Cir. 2008) (“it is clear that [Ceballos] added a
threshold layer to our previous analysis”); Boyce v. Andrew,
510 F.3d 1333, 1343 (11th Cir. 2007) (stating that it must
decide “at the outset (1) if the government employee spoke as
an employee or citizen . . .”); Weisbarth v. Geauga Park Dist.,
499 F.3d 538, 545 (6th Cir. 2007) (“the threshold inquiry [is]
whether the speech was, in fact, made pursuant to the employ-
ee’s official duties”); Williams v. Dallas Ind. Sch. Dist., 480
F.3d 689, 692 (5th Cir. 2007) (“[t]he Supreme Court’s recent
pronouncement in Garcetti v. Ceballos added a threshold
layer . . .”). While we also believe that this should be the
threshold inquiry, we are bound by our precedent to follow
the test set forth in Eng.
[4] Where applicable below, we will move through the
sequential Eng factors. The first two prongs of this inquiry
address whether the speech should be protected under the
First Amendment, while the last three address whether that
protected speech caused some retaliatory response. However,
because these are sequential steps, as explained in Eng, failure
to meet one necessarily concludes our inquiry.
Huppert and Salgado point to four incidents where they
believe their protected speech led to retaliatory action by the
Appellees: (1) Huppert’s assistance to the Contra Costa
County District Attorney’s Office in 1997 and 1998 investi-
gating corruption at the PPD; (2) Huppert and Salgado’s
HUPPERT v. CITY OF PITTSBURG 9331
report and memoranda regarding their golf-course investiga-
tion; (3) Huppert’s cooperation with the FBI in its investiga-
tion of corruption within the PPD; and (4) Huppert’s
testimony before the Contra Costa County grand jury investi-
gating potential corruption within the PPD. We discuss each
in turn.
1
Huppert’s first claim of retaliation stems from his coopera-
tion with the Contra Costa County District Attorney’s Office
in 1997 and 1998 during its investigation of the Public Works
Department. He claims that during this time he was not work-
ing as a police officer, but instead as an assistant to the Dis-
trict Attorney. Then, after his superiors at the PPD discovered
his involvement with the criminal investigation, he was
“treated with scorn and as an outcast.” Also as a result of this
involvement, he claims that he was passed over for a promo-
tion, transferred to the Penal Colony, and that his assistance
led to additional acts of retaliation.3 Though he provides no
evidence that any speech occurred—i.e., he points to no
record of a report, discussion with superiors, letters to politi-
cians, etc.—we read the facts in his favor and assume that he
engaged in some form of speech.
Under the Eng test, we first consider whether his investiga-
tion involved a matter of public concern. “[S]peech involves
a matter of public concern when it fairly can be said to relate
to ‘any matter of political, social, or other concern to the com-
munity.’ ” Gibson v. Office of Atty. Gen., State of Cal., 561
3
The City counters that this claim is time-barred under the applicable
statute of limitation. While Huppert’s assistance to the District Attorney’s
office took place in 1997 and 1998, the claimed retaliatory actions
occurred over a long period of time. Additionally, none of these alleged
actions were discrete, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 110, 114 (2002), and instead indicate a potential continuing practice
within the PPD, id. at 111-12. We therefore disregard the City’s argument
that the statute of limitation bars this portion of Huppert’s claim.
9332 HUPPERT v. CITY OF PITTSBURG
F.3d 920, 925 (9th Cir. 2009) (quoting Connick, 461 U.S. at
146 (1983)). “Analysis of public concern is not an exact sci-
ence.” Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001).
“When the employee addresses issues about which informa-
tion is needed or appropriate to enable the members of society
to make informed decisions about the operation of their gov-
ernment, that speech falls squarely within the boundaries of
public concern.” Id. (internal quotation marks and citations
omitted). We have said that “[u]nlawful conduct by a govern-
ment employee or illegal activity within a government agency
is a matter of public concern.” Thomas v. City of Beaverton,
379 F.3d 802, 809 (9th Cir. 2004). Furthermore, “misuse of
public funds, wastefulness, and inefficiency in managing and
operating government entities are matters of inherent public
concern.” Johnson v. Multnomah County, 48 F.3d 420, 425
(9th Cir. 1995). It is clear to us that an investigation into cor-
ruption and misconduct at the local Public Works Department
—typically a municipal department created to provide multi-
ple public services to community members—is a matter of
public concern. Cf. Robinson, 566 F.3d at 823.
However, it is less apparent that Huppert meets the second
prong of the Eng test. As explained in Eng, “the plaintiff
bears the burden of showing the speech was spoken in the
capacity of a private citizen and not a public employee.” 552
F.3d at 1071 (citing Ceballos, 547 U.S. at 421-22). While the
Supreme Court did not delineate a “comprehensive frame-
work” for determining when speech is pursuant to an employ-
ee’s job function, it provided guidance for lower courts to
follow when making such a decision. Ceballos, 547 U.S. at
424.
[5] Ceballos said that speech which “owes its existence to
an employee’s professional responsibilities” is not protected
by the First Amendment. Id. at 421. Additionally, if the public
employee was paid for the speech—e.g., drafting a memoran-
dum, creating a report, advising a supervisor—then that com-
pensation might be indicative of the nature of the speech. Id.
HUPPERT v. CITY OF PITTSBURG 9333
at 422. An adverse employment action for this type of speech
“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 commis-
sioned or created.” Id. at 421-22. Our inquiry should be prac-
tical and look beyond the job description to the duties the
employee actually performs. Id. at 424. Speech which has “no
official significance” and bears “similarities to [actions taken]
by numerous citizens everyday” falls outside the ambit of an
employee’s job duties and would be protected by the First
Amendment. Id. at 422.
Only twice since Ceballos have we had the opportunity to
determine whether an employee’s speech was pursuant to his
official duties.4 First, in Freitag v. Ayers, 468 F.3d 528 (9th
Cir. 2006), we examined multiple different complaints by
Freitag, a female prison guard, regarding sexual harassment
by male prisoners. We held that Freitag’s reports of sexual
harassment, complaints to her superiors within the prison sys-
tem, and documentation of the prison system’s response to her
complaints were all examples of unprotected speech.5 Id. at
544, 546. On the other hand, with regard to her communica-
tion outside the prison system to her state senator and the
appointed inspector general, “we [found] it clear that [those]
4
In his dissent, Judge Fletcher also points to Eng and Robinson as cases
where “we have addressed whether a government employee’s speech was
made pursuant to his or her official duties.” Dissent, at 9354, 9356, 9357.
However, neither Eng nor Robinson actually decided the scope of the
plaintiff ’s job duties. In both, we were unable to review the question
because the district court had determined that genuine issues of material
fact were present and had denied qualified immunity. Eng, 552 F.3d at
1073; Robinson, 566 F.3d at 823-24; see also Johnson v. Jones, 515 U.S.
304, 319-20 (1995) (holding that appellate courts generally lack the ability
to review a district court’s finding of a genuine issue of fact).
5
We remanded for additional fact-finding on the question whether pur-
suing a complaint all the way up the chain of command within the Califor-
nia Department of Corrections and Rehabilitation is within the duties of
a prison guard. Freitag, 511 F.3d at 546.
9334 HUPPERT v. CITY OF PITTSBURG
communications [we]re protected under the First Amend-
ment.” Id. at 545. We held that “her right to complain both to
an elected public official and to an independent state agency
is guaranteed to any citizen in a democratic society regardless
of his status as a public employee.” Id.
Then, in Marable v. Nitchman, 511 F.3d 924 (9th Cir.
2007), we concluded that a complaint by Marable, an engi-
neer for the Washington State Ferries (“WSF”), alleging high-
level corruption and mismanagement of funds was outside a
ferry-worker’s job duties. We applied the requisite “practical
inquiry” to whether Marable’s complaints concerning corrupt
overpayment schemes was speech pursuant to his job duties,
and found it was not. Id. at 932 (“Functionally . . . it cannot
be disputed that his job was to do the tasks of a Chief Engi-
neer on his ferry, and such tasks did not include pointing to
corrupt actions of higher level officials whom he purportedly
thought were abusing the public trust and converting public
funds to their own use by overpayment schemes.”). We noted
that “[h]e was not responsible for attempting to ensure that his
superiors abstained from allegedly corrupt financial
schemes.” Id. at 933. In total, we found four instances of Mar-
able’s protected speech: (1) complaints to the former chief
executive officer of the WSF, (2) conversations with the
Department of Transportation auditor, (3) a complaint to the
State Executive Ethics Board, and (4) two phone calls to
Nitchman, the WSF Maintenance Director. Id. at 929.
[6] Our sister circuits have also weighed in, providing addi-
tional analysis to guide our decision. First, in Morales v.
Jones, 494 F.3d 590 (7th Cir. 2007), the Seventh Circuit held
that a police officer’s conversations with superiors and assis-
tant district attorneys discussing an arrest was obviously part
of the officer’s duties. Id. at 597. On the other hand, the court
concluded that being deposed as a witness in a separate
§ 1983 action for retaliation by the police chief against
another police officer was clearly not part of an officer’s job.
Id. at 595, 598. The Fifth Circuit has determined that one indi-
HUPPERT v. CITY OF PITTSBURG 9335
cator might be whether an individual complains “up the chain
of command” or instead relays “his concerns to persons out-
side the work place.” Davis v. McKinney, 518 F.3d 304, 313
(5th Cir. 2008). And, the Seventh Circuit again considered the
question in 2008 in Tamayo v. Blagojevich, 526 F.3d 1074
(7th Cir. 2008). However, this time it found that the speech
was not protected, because reporting misconduct and wrong-
doing at a legislative hearing was part of the plaintiff ’s job
as “an employee with significant and comprehensive respon-
sibility for policy information and implementation.” Id. at
1092.
[7] This brings us back to any statements Huppert may
have made during the investigation at the Public Works yard.
Huppert argues that he was not acting as a police officer dur-
ing his cooperation with the District Attorney’s office.
Instead, he claims he was an “assistant to the District Attor-
ney.” However, in his deposition, Huppert concedes that he
was asked to participate in the investigation, and subsequently
assigned to do so, by the police department. While his investi-
gative work might have been supervised by the District Attor-
ney’s office, his six-month assignment was at the direction of
his superiors and, as a police officer, in his official capacity
as a peace officer.
2
Second, both Huppert and Salgado argue they were retali-
ated against after they completed their investigation into
improper conduct at the Pittsburg Golf Course.6 Here they
claim that their charge was to investigate corruption and gam-
bling by PPD officers at the city golf course. Together, they
produced an investigative report detailing their findings,
which included information about waiver of fees for PPD
employees, gambling in the golf course’s sports bar by mem-
6
This is the only First Amendment retaliation claim on which Salgado
joins.
9336 HUPPERT v. CITY OF PITTSBURG
bers of the PPD, and other improper conduct. The report also
included a list of PPD officers who took advantage of free
golf. They claim this report is protected speech which ulti-
mately led their superiors to take multiple retaliatory actions
against them.
[8] Their argument is remarkably similar to Huppert’s con-
tention regarding the Public Works yard. As we have already
noted, an investigation into corruption at a public department
is most certainly a matter of public concern. The same is true
for corruption within or concerning the police force. See
Thomas, 379 F.3d at 809; Johnson, 48 F.3d at 425; McKinley
v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (“the
competency of the police force is surely a matter of great pub-
lic concern”). However, it is more difficult to determine
whether Huppert and Salgado were speaking as public
employees or private citizens.
Huppert and Salgado argue that they were not acting pursu-
ant to their job duties because, while Baker had originally
assigned them to conduct the inquiry, he then ordered them to
discontinue their investigation after only two interviews.
However, their immediate supervisor, Hendricks, told them to
continue the investigation and encouraged them to report the
results. They followed Hendricks’s direction and completed
their investigation, which culminated in a memorandum
directed to Chief Baker and the City Manager.
[9] This is one of the clearest examples of speech pursuant
to one’s job duties. Though Huppert and Salgado would have
us believe that they acted outside the chain-of-command by
continuing their investigation in direct contravention to
Baker’s demand that they cease, Hendricks ordered them to
continue. Furthermore, Hendricks informed Baker that Hup-
pert and Salgado would be probing deeper into misconduct at
the Golf Course. “When [they] went to work and performed
the tasks [they were] paid to perform, [Huppert and Salgado]
acted as . . . government employee[s]. The fact that [their]
HUPPERT v. CITY OF PITTSBURG 9337
duties sometimes required [them] to speak or write does not
mean [their] supervisors were prohibited from evaluating
[their] performance.” Ceballos, 547 U.S. at 422. Therefore,
we find that Huppert and Salgado’s report, created after their
investigation into misconduct at the Golf Course, was also not
protected speech.
3
[10] Huppert’s third claim is that he was the subject of
retaliatory action following his cooperation with the FBI,
which began sometime in 2001. From his declaration, it
appears he assisted in their investigation probing corruption at
the PPD, which he claims was “outside [his] duties as a mem-
ber of the PPD.” In his declaration, Huppert states that he
“met with Investigator Leary, Deputy District Attorney
Sepulveda, and Special Agent Joe Davidson of the FBI.” He
claims that this communication took place entirely “on [his]
personal time.” This claim differs from his first two retaliation
arguments because there is no evidence that he was following
the direct orders of his superiors at the time he participated in
the investigation. Yet, while Huppert again satisfies the first
prong of the Eng test, he fails at the second.
The California courts have repeatedly articulated the duties
of a police officer within the state. As the oft-quoted passage
in Christal v. Police Commission of City and County of San
Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939), states:
The duties of police officers are many and varied.
Such officers are the guardians of the peace and
security of the community, and the efficiency of our
whole system, designed for the purpose of maintain-
ing law and order, depends upon the extent to which
such officers perform their duties and are faithful to
the trust reposed in them. Among the duties of police
officers are those of preventing the commission of
crime, of assisting in its detection, and of disclosing
9338 HUPPERT v. CITY OF PITTSBURG
all information known to them which may lead to the
apprehension and punishment of those who have
transgressed our laws. When police officers acquire
knowledge of facts which will tend to incriminate
any person, it is their duty to disclose such facts to
their superiors and to testify freely concerning such
facts when called upon to do so before any duly con-
stituted court or grand jury. It is for the performance
of these duties that police officers are commissioned
and paid by the community . . . .
See also Riverside County Sheriff’s Dep’t v. Zigman, 169 Cal.
App. 4th 763, 768 (2008); Titus v. Civil Serv. Comm’n, 181
Cal. Rptr. 699, 702-03 (1982); Szmaciarz v. State Pers. Bd.,
79 Cal. App. 3d 904, 915 (1978); see also Frazee v. Civil
Serv. Bd. of City of Oakland, 338 P.2d 943, 945 (Cal. Ct. App.
1959).
[11] Though Huppert argues that he was repeatedly
informed by the FBI that his investigatory work was outside
his duties as a police officer, this is not enough to overcome
California’s jurisprudence defining such duties. It is clear that
in California a police officer’s official duties include investi-
gating corruption, so as to “prevent[ ] the commission of
crime, . . . [and] assist[ ]in its detection.” Christal, 92 P.2d at
419. While we do not know the contents of any speech that
Huppert made, we do know that such conversations with the
FBI would have been to “disclos[e] all information known to
[Huppert]” regarding the alleged acts of corruption within the
PPD. This obviously encompasses his duty to uphold the law
specifically entrusted to California’s peace officers.
4
[12] Huppert’s fourth and final cause of action hinges on
alleged retaliation following his testimony before the county
grand jury, which was also investigating corruption at the
PPD. Again, under Christal and its progeny, it is manifest that
HUPPERT v. CITY OF PITTSBURG 9339
California expects such testimony from its police officers. As
the California Court of Appeal made clear: “When police offi-
cers acquire knowledge of facts which will tend to incriminate
any person, it is their duty to disclose such facts to their supe-
riors and to testify freely concerning such facts when called
upon to do so before any duly constituted court or grand
jury.” Id. (emphasis added). Testifying before a grand jury
charged with investigating corruption is one part of an offi-
cer’s job. As the Supreme Court explicitly stated,
“[r]estricting 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.” Ceballos,
547 U.S. at 421-22; see also Deprado v. City of Miami, 446
F. Supp. 2d 1344, 1346 (S.D. Fla. 2006) (“In accordance with
the Police Department’s regulations, and the Plaintiff ’s obli-
gations as a State-certified law enforcement officer, Plain-
tiff ’s subpoenaed grand jury testimony occurred pursuant to
his official duties as a police officer for the City of Miami
Police Department, and was not speech as a private citizen.”).
Therefore, any speech Huppert gave during his grand jury tes-
timony was “pursuant to his duties as a [police officer],” and
that speech is not protected by the First Amendment. Id. at
421.
We decline to follow the Third Circuit’s decision in Reilly
v. Atlantic City, 532 F.3d 216 (3d Cir. 2008). There, the Third
Circuit considered whether a police officer’s truthful trial tes-
timony was protected speech. Reilly, an Atlantic City police
officer, was called to testify for the prosecution in a trial
against another police officer for allegedly running a prostitu-
tion ring and other misconduct. Id. at 220. Reilly had received
inside information regarding the accused through his work as
an investigator at the police department. Id. The Third Circuit
found that testimony at trial was protected because “[i]t is axi-
omatic that ‘every citizen . . . owes to his society the duty of
giving testimony to aid in the enforcement of law.’ ” Id. at
9340 HUPPERT v. CITY OF PITTSBURG
228 (quoting Piemonte v. United States, 367 U.S. 556, 559 n.2
(1961)). Because “offering truthful testimony is the responsi-
bility of every citizen, . . . [w]hen a government employee tes-
tifies truthfully, [he] is not simply performing his or her job
duties; rather, [he] is acting as a citizen and is bound by the
dictates of the court and the rules of evidence.” Id. at 231.
The court admitted that it was answering the question of
“whether truthful trial testimony arising out of the employee’s
official responsibilities constitutes protected speech.” Id. at
230 (emphasis added). It went on to concede that “Reilly’s
trial testimony [ ] appears to have stemmed from his official
duties in the investigation.” Id. at 231. However, instead of
finding that this was obviously speech pursuant to Reilly’s job
duties, the court took a swift turn to conclude that truthful tes-
timony is never part of a police officer’s duties. Id. This is in
sharp contradiction to the Supreme Court’s holding in Cebal-
los, which drew a distinct line between speech pursuant to
one’s job duties and speech in a private capacity. By first
finding that Reilly’s speech was pursuant to his job duties, but
subsequently concluding that it was protected by the First
Amendment, the Reilly court impermissibly began chipping
away at the plain holding in Ceballos.
Judge Fletcher’s dissent relies on two other cases to show
that a police officer’s grand jury testimony should be pro-
tected as a matter of law. The first, Morales, is clearly distin-
guishable on the facts. 494 F.3d 590. The second, Evans v.
Housing Authority of Benicia, No. 2:07-cv-0391, 2008 WL
4177729 (E.D. Cal. 2008), is merely unbinding precedent
which does not interpret the obligation of a California police
officer to testify regarding crime.
First, in Morales, the Seventh Circuit found that “[b]eing
deposed in a civil suit pursuant to a subpoena was unquestion-
ably not one of Morales’ job duties.” 494 F.3d at 598. The
court noted that though Morales had gained information for
the civil suit while working as a police officer, and had even
HUPPERT v. CITY OF PITTSBURG 9341
testified regarding actual speech he made pursuant to his job
duties, any retaliation taken because he testified in this depo-
sition was impermissible. Id. This holding is understandable.
Morales’ statements were made in a civil suit brought by
another officer against the Chief of Police and the Deputy
Chief. California’s courts have never said that it expects its
police officers to assist other officers in their individual civil
suits against present or former employers. Testimony related
to the discovery and cessation of crime, however, is an obliga-
tion. That was not the question posed to the Seventh Circuit,
and Judge Fletcher reads that court’s holding too broadly.
Also, in Evans, Evans was the former accountant and book-
keeper for the Benicia Housing Authority (“BHA”), which is
an “independent public agency created to provide low-cost
housing to the city.” 2008 WL 4177729, at *1. Evans realized
that his former boss, Peterson—the then manager and Execu-
tive Director of the BHA—was operating on reduced work
hours and failing to collect rent or assess late fees to delin-
quent tenants. Id, at *2. In October 2004, a grand jury was
convened to investigate operations at the BHA. Id. Peterson
first testified before the grand jury regarding overall business
practices within the BHA, and then when Evans testified in
late November, he explained “tenant rent account irregulari-
ties and Peterson’s reduced work hours.” Id. Following
Evan’s testimony, Peterson placed Evans on administrative
leave and, ultimately, terminated him.
The district court held that “Evans’ statements to the Grand
Jury concerning the tenant rent account irregularities and
Peterson’s reduced working hours . . . [were] not made pursu-
ant to Evans’ official job duties.” Id. at 7. Hence, under
Ceballos, the statements were protected by the First Amend-
ment and any retaliatory action taken violated Evans’ consti-
tutional rights.
In addition to the reality that Evans cannot and does not
bind us, it is so factually distinguishable as to be irrelevant to
9342 HUPPERT v. CITY OF PITTSBURG
our discussion here. Evans was an accountant working for the
city’s independent housing authority. The California courts
have never explicitly, or even impliedly, stated that one duty
of an accountant at a public agency is to testify before grand
juries. It comports with our understanding of Ceballos that
such testimony would be outside the practical duties of a
bookkeeper. However, this says nothing about whether Cali-
fornia expects its police officers to testify about alleged crimi-
nal conduct. Judge Fletcher’s reliance on this case is
unavailing and unpersuasive here, merely discussed because
the court chose to protect the speech of a person testifying
before a grand jury. The question is not whether such testi-
mony occurred, but instead whether the obligation to provide
that testimony “owes its existence to an employee’s profes-
sional responsibilities.” Ceballos, 547 U.S. at 421.
[13] Our holding does not imply that a police officer might
never be protected if he speaks on issues such as corruption,
for we recognize that “[e]xposing governmental inefficiency
and misconduct is a matter of considerable significance.”
Ceballos, 547 U.S. at 425. Even though we find that, under
California law, testimony such as Huppert’s is within the
duties of a police officer, speech outside one’s official duties
remains protected by the First Amendment. See id. at 422
(noting that a letter to the newspaper is similar to speech
undertaken by citizens on a daily basis); Freitag, 468 F.3d at
545 (holding that complaints to an elected official and inde-
pendent reviewing officer are outside a prison guard’s work
duties).
5
There exist other avenues of recourse available to protect
an officer who exposes misconduct within the police depart-
ment and is subsequently subjected to retaliation. States,
including California, have created “whistle-blower” statutes
for this exact purpose, and our holding today does not impact
those statutes. See, e.g., Cal. Gov. Code § 8547-8547.12. As
HUPPERT v. CITY OF PITTSBURG 9343
the majority in Ceballos explicitly stated, “[t]he dictates of
sound judgment are reinforced by the powerful network of
legislative enactments—such as whistle-blower protection
laws and labor codes—available to those who seek to expose
wrongdoing.” 547 U.S. at 425.
Our conclusion today enforces these statutes and empowers
a state to choose the appropriate remedy for an individual who
speaks on this type of issue and is then subjected to retalia-
tion. Further, it is these statutes that protect officers from the
“Catch 22”—i.e., either not complying with a subpoena and
being found in contempt of court, or testifying only to then be
the subject of retaliation—that concerns Judge Fletcher. Yet,
under Ceballos, these individuals are not entitled to the pro-
tections of the Civil Rights Act or the remedies accompanying
a victorious § 1983 suit when speaking pursuant to their offi-
cial duties.
B
In addition to his First Amendment claims, Salgado also
appeals the district court’s grant of summary judgment on his
§ 1983 claim for violations of his rights under the Fourth,
Sixth, and Fourteenth Amendments. As with Huppert’s claims
regarding retaliation from his cooperation with the FBI, Sal-
gado fails to identify concrete claims, bolster those claims
with facts, or cite legal authority pertaining to the claims.
These claims are therefore abandoned. See Fed. R. App. P.
28(a)(9)(A); Xin Liu, 347 F.3d at 1138.
C
Finally, Huppert and Salgado contend that the district court
improperly awarded costs to the Appellees. They do not chal-
lenge the court’s determination that the Appellees were the
prevailing party; instead they argue that the Appellees failed
to timely file their costs, rendering an award inappropriate.
Local Rule section 54-1(a) states: “No later than 14 days after
9344 HUPPERT v. CITY OF PITTSBURG
entry of judgment or order under which costs may be claimed,
a prevailing party claiming taxable costs must serve and file
a bill of costs . . . .” While the district court issued its sum-
mary judgment ruling on November 15, 2006, the final order
was not docketed until November 17, 2006. The Appellees
filed their bill of costs on November 30, 2006, within the
fourteen-day time period required by the Local Rules.
IV
We affirm the district court’s grant of summary judgment
on all claims and the award of costs.
AFFIRMED.
W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
Former police officers Ron Huppert and Javier Salgado
(“Plaintiffs”) sued their former employer, the City of Pitts-
burg, California, and several individual members of the Pitts-
burg Police Department (“PPD”) (collectively, “Defendants”)
under 42 U.S.C. § 1983 and several provisions of California
law. Their § 1983 suit was primarily based on the contention
that Defendants unlawfully retaliated against them for engag-
ing in speech protected under the First Amendment. Huppert
contends that he engaged in constitutionally protected speech
on four occasions. Salgado contends that he engaged in con-
stitutionally protected speech on the third of these occasions.
Plaintiffs contend that Defendants unlawfully retaliated
against them for this speech. The district court granted sum-
mary judgment against Plaintiffs on their First Amendment
claims based on Garcetti v. Ceballos, 547 U.S. 410 (2006).
The majority concludes that Huppert and Salgado’s speech
on these four occasions was not protected under the First
HUPPERT v. CITY OF PITTSBURG 9345
Amendment. I agree with the majority with respect to Hup-
pert’s speech on the first occasion. But I disagree with the
majority with respect to Huppert’s speech on the second,
third, and fourth occasions and Salgado’s speech on the third
occasion.
I. Factual Background
The majority opinion provides a somewhat truncated narra-
tive of the evidence before the district court. I provide a more
extended, free-standing narrative of that evidence, laying the
full foundation for Huppert and Salgado’s First Amendment
claims. I could have made my narrative shorter by adding dis-
crete pieces of information to supplement the majority’s nar-
rative in various places, but the result would have been
choppy and awkward. My narrative is necessarily somewhat
redundant, but it is intended to make the reader’s ultimate task
easier. My narrative relies only on evidence in the record that
is properly cognizable on summary judgment.
In his sworn declaration, Plaintiff Huppert states that he
joined the PPD in 1991. In 1995, when he was a patrol offi-
cer, he was assigned to work a continuous 24-hour shift at the
Pittsburg Seafood Festival. He requested a modification of the
shift to allow breaks during the 24-hour period. After the
request was denied, he consulted a labor attorney. Without
Huppert’s knowledge, the attorney contacted the PPD. Defen-
dant Aaron Baker was then a Lieutenant in the PPD. Then-
Lieutenant Baker was “unhappy” with Huppert as a result of
his complaint about his 24-hour shift. At Baker’s direction,
Huppert was presented with a letter asking him to acknowl-
edge his sick leave abuse. Huppert refused to sign the letter
and demanded to see his “sick leave slips” for the relevant
period. Huppert states that the matter was then “apparently
dropped.”
Huppert states that in 1996, after he had been promoted to
Inspector, he was assigned to investigate a vehicular man-
9346 HUPPERT v. CITY OF PITTSBURG
slaughter case. One of Huppert’s supervisors, Sergeant
Keeler, had been pursuing a carjacking suspect at speeds of
up to 100 m.p.h. without using his siren or emergency lights.
During the chase, the suspect struck and killed an innocent
third person. Huppert reported his “concerns about Keeler’s
conduct during the pursuit.” He also reported Keeler’s use of
“racial slurs, including ‘nigger’ and ‘gorilla’ with reference to
African-Americans.” Keeler was a personal friend of Baker.
Now a Commander, Baker charged Huppert with misconduct
for not having previously reported Keeler’s use of racial slurs
and sent him a “warning” letter. (In his sworn declaration,
Baker calls it a “letter of advisement.”) Huppert states that
even though Keeler’s use of racial slurs was verified by
another officer, Baker concluded that Huppert’s report was
“unfounded.”
Huppert states that in 1997 and 1998, he was selected by
the Contra Costa County District Attorney to assist with an
investigation into corruption at the public works yard. “From
that time on, my superiors treated me with scorn and as an
outcast.”
Huppert states that in 1998 he took the sergeant’s exam. He
finished first on the written portion. During the oral portion
of the exam, he was questioned “mostly” about his goatee. He
was not promoted to sergeant. The day after the oral examina-
tion, Baker told him that he had been passed over because of
the goatee.
Huppert states that sometime prior to 2001 he began coop-
erating with the FBI in an investigation of corruption in the
PPD. Huppert characterizes this cooperation as being “outside
[his] duties as a member of the PPD.” Defendant Baker had
been promoted to Chief of Police in September 1998. Huppert
states that Baker learned of his cooperation with the FBI and
in 2001 had him transferred from Investigations to Code
Enforcement. Commander William Hendricks was in charge
of this unit. Hendricks states in his sworn declaration that the
HUPPERT v. CITY OF PITTSBURG 9347
Code Enforcement unit “was known as the ‘Penal Colony’
because disaffected and/or disfavored officers were assigned
there.” He states, “Chief Aaron Baker expressly ordered me
to terminate plaintiff Huppert or force him to take a position
outside the Department; then-Lieutenant William Zbacnik
was present during this conversation.” Huppert states in his
declaration that Hendricks told him that Baker had “told him
to see that I left or find a way to fire me.”
Huppert states that Defendant Zbacnik told him that he was
not allowed to work overtime for the six-month period
between January and June 2001. Huppert was physically
transferred from the newly rebuilt Pittsburg Civic Center to a
building where the “Penal Colony” worked. Huppert’s office
in the Penal Colony was a “tiny converted bathroom without
computer access.” Even though Huppert was assigned to
investigate gangs, the Penal Colony building did not have “a
secured area that a Gang and Intelligence office would need.”
Plaintiff Salgado states in his sworn declaration that in Sep-
tember 2001 he was assigned to the Code Enforcement unit
and became Huppert’s partner. Both Huppert and Salgado
state that the City Manager then asked them to “investigate
possible corruption at the City-owned golf course.” They state
that Baker told them not to inform their superior, Hendricks,
of the investigation. Their investigation “revealed improper
conduct by members of the PPD, including gambling, accept-
ing free golf, and possible illegal drug activity.” Hendricks
states in his declaration that after two interviews and only one
day of investigating, Baker ordered Huppert and Salgado to
stop the investigation.
Hendricks states, “I tried to protect [Huppert and Salgado]
from any retaliation. I went to the FBI with what I believed
to be a major gambling operation, and told Baker that I had
referred the matter to the FBI. I learned from my discussions
with Chief Baker and others that Zbacnik, Lt. Robert Gomez,
and other people under Zbacnik’s command were involved in
9348 HUPPERT v. CITY OF PITTSBURG
illegal activity at the Golf Course. I told Baker that he may
be violating the law by trying to bury the investigation by
Huppert and Salgado. Baker threatened me with my career if
I continued to press the matter.”
Huppert states that he and Salgado continued to investigate
“with the knowledge and encouragement of Hendricks.” Hen-
dricks states that Baker ordered them not to write a report, but
Huppert states that he nonetheless reported their “initial find-
ings” in an “ ‘abridged’ memo.” Huppert states that his report
included “a finding that defendant Zbacnik had accepted thou-
sands of dollars in gratuities and other illegal perks.” How-
ever, Baker took “no action” against Zbacnik,” calling
Zbacnik’s actions a “ ‘training issue.’ ” Huppert states that he
and Salgado informed only Baker and the City Manager of
their findings. However, he stated that Ray Giacamelli, a
member of the PPD and a personal friend of Zbacnik, told
Huppert and Salgado that “we were sticking our noses where
they did not belong and that we were ‘going to go down.’ ”
Huppert and Salgado reported the threat to Baker, but Baker
said that “no investigation was warranted.”
Huppert and Salgado state that in May 2002 the Code and
Enforcement unit was moved back to the main Civic Center
building. They were not given an office initially, but were
eventually assigned one in “an old storage room.”
Huppert states that in December 2002, Hendricks was
“forced out.” Defendant Michael Barbanica became the new
supervisor of their unit. In January 2003, Barbanica and
Defendant William “Brian” Addington falsely accused Hup-
pert and Salgado of having engaged in an improper pursuit.
Huppert and Salgado state that neither of them had been
involved in the pursuit in question. Barbanica initially said
that an “ ‘anonymous concerned citizen’ ” had called to com-
plain about Huppert and Salgado’s alleged pursuit, but Bar-
banica later admitted that he had made this up.
HUPPERT v. CITY OF PITTSBURG 9349
Huppert and Salgado state that in late 2003 and early 2004
their supervisor was Sergeant Reposa. When Reposa was
absent, neither Huppert nor Salgado was permitted to serve as
acting supervisor, even though that would have been the nor-
mal practice. Huppert and Salgado were thereby denied the
opportunity to earn “out-of-class pay.”
Huppert and Salgado state that in February 2004, Defen-
dant Wayne Derby became their supervisor. Derby informed
them that he was Baker’s “ ‘hatchet man’ ” and that Baker
saw them as “malcontents.” Derby took away the unmarked
undercover car that Salgado had previously driven and
replaced it with a Ford Taurus that, while unmarked, was
“easily recognizable as a police vehicle.” Driving the Taurus
“hindered” Huppert and Salgado’s “ability to function as gang
detectives.”
Huppert states that in March 2004 he was subpoenaed to
testify before a civil grand jury that was “probing corruption
in the PPD.” Huppert had been contacted about the probe sev-
eral years earlier by Senior Investigator Tom Leary of the
Contra Costa County District Attorney’s Office. On what he
describes as his “personal time,” Huppert had met with Leary,
Deputy District Attorney Sepulveda, and FBI Special Agent
Joe Davidson. Huppert states that Davidson told him that his
“actions in connection with the probe were as an individual
and not in my capacity as a member of the PPD.” Grand jury
subpoenas were delivered to the PPD for service on about a
dozen individual officers. Huppert was served with his sub-
poena in front of other PPD officers, and the subpoena was
recorded in a log posted in the break room. Huppert states that
Baker told him that he knew he had testified before the grand
jury. However, Baker states in his declaration that “I was not
aware that Huppert ever testified before the Grand Jury
regarding these issues.” Baker states further, “I have never
been informed of the substance of such testimony by Hup-
pert.”
9350 HUPPERT v. CITY OF PITTSBURG
Huppert states that after he testified before the grand jury,
Defendant Derby informed him that his position as gang
investigator was being “eliminated.” Huppert was transferred
to the Investigations unit where his supervisor was Defendant
Addington. Although detectives junior to Huppert were
assigned to “person crimes,” Huppert was assigned to fraud,
which was regarded as a less desirable assignment. After
Huppert was assigned to fraud, Addington changed the proce-
dure so that all fraud cases originating with the Patrol Bureau
came to Huppert. Previously, fraud cases originating with the
Patrol Bureau could be closed at that level. Under the new
procedure, Huppert was required to close those cases and to
write reports for all of them. Huppert states that the change
was a “purposeless increase in workload intended to harass
me.”
Huppert states that Addington engaged in numerous acts to
make his work life difficult. For example, he sent reports back
to Huppert “because of ‘flaws’ such as the letter ‘M’ (for
‘Male’) being in the wrong font”; he refused to allow Huppert
to wear a uniform shirt with an out-of-date embroidered
badge when other officers were permitted to do so; and he
told Huppert to come see him because he had his “ ‘pink
slip,’ ” and then said he was kidding. Further, Addington
attempted to replace a “superlative” yearly evaluation of Hup-
pert by Sergeant Stroup that was already in his personnel file
with an evaluation of his own, even though Addington had
not been Huppert’s supervisor at the time in question. After
Huppert and the Patrol Officers’ Association filed a grievance
against the PPD and Addington, Baker restored Stroup’s eval-
uation to Huppert’s file.
Beginning in April 2005, Huppert retired on disability due
to a knee injury. He states in his declaration that elective sur-
gery on his knee “might” have enabled him to return to active
police work. “However, given the persistent and pervasive
discrimination and harassment I suffered, the fact that my
long-time partner, Salgado, was terminated after he began his
HUPPERT v. CITY OF PITTSBURG 9351
association with me, and the other means by which the defen-
dants in this action sought to destroy my career and the
careers of other good officers, I accepted the disability retire-
ment and elected not to undergo surgery.” (In the district
court, Huppert claimed racial discrimination in violation of
state law, and his reference to “discrimination” in the just-
quoted sentence is a reference to that claim. Huppert has not
appealed the district court’s summary judgment ruling on his
state-law discrimination claim.)
Salgado states that in late 2003 and early 2004, Addington
began investigating PPD Officer Jim Hartley for alleged falsi-
fication of reports. It was “apparent” to Salgado that “Adding-
ton disliked Hartley and was seeking to terminate him.”
Addington attempted to persuade Salgado to “claim first-hand
knowledge of incidents I had not witnessed.” Salgado refused.
Salgado states that in May 2004 he was placed on adminis-
trative leave pending an investigation into whether he had fal-
sified reports in California Health and Safety Code § 11550
(“driving under the influence”) cases. Salgado states in his
declaration that he “did ‘cut and paste’ when writing such
reports,” but that this was “an accepted practice at the time in
the PPD.” He states that “the individual test results for each
suspect were accurately recorded.” Salgado states further that
“cutting and pasting . . . was actually encouraged by some
supervisors.” “On several occasions defendants Barbanica and
Addington asked me to provide officers with one of my pre-
formatted reports, and during the investigation of my reports
I saw reports written by officers Raman, Albanese, and Wentz
using my template. . . . A number of the questioned reports
that led to my termination were in fact reviewed and approved
by defendants Addington and Barbanica, both of whom were
also present at some of the arrests in question.”
Salgado states that in July 2004 he was given a Notice of
Proposed Disciplinary Action proposing his termination from
the PPD. Two days before his scheduled hearing under Skelly
9352 HUPPERT v. CITY OF PITTSBURG
v. State Personnel Board, 15 Cal. 3d 194 (1975), Salgado
received a telephone call from a newspaper reporter who told
him that Baker was planning to terminate him and that the
District Attorney would bring a criminal prosecution. A news-
paper article to that effect appeared on the day scheduled for
the hearing. On advice of counsel, Salgado did not appear.
Baker, performing as Acting City Manager, terminated Salga-
do’s employment three days later. Shortly thereafter, Baker
reinstated Salgado. Defendant Barbanica then informed Sal-
gado that if he resigned, all criminal charges would be
dropped. Salgado learned, however, that his personnel file
was being “purged of all positive references.” Salgado looked
at his file and discovered that all of his good performance
reviews had been removed, including his 2001 Officer of the
Year award. Salgado did not resign and was formally termi-
nated in late August 2004.
Defendant Addington testified in his deposition that one of
the two Deputy District Attorneys to whom he spoke was
reluctant to file criminal charges against Salgado. Addington
testified that after he made “my own pitch” to the Deputy
criminal charges were filed. Salgado pleaded no contest to
five felony counts of falsifying reports in violation of Califor-
nia Penal Code § 118.5.
Except as noted during the course of the foregoing narra-
tive, Defendants do not contest the factual accuracy of Hup-
pert, Salgado, and Hendricks’ sworn declarations.
II. Legal Background
For nearly four decades, we determined whether a public
employee’s speech was protected under the First Amendment
by following the analysis in Pickering v. Board of Education,
391 U.S. 563 (1968). In Pickering, a public school teacher
had sent a letter to the editor of the local newspaper criticizing
the board of education and superintendent of schools for their
handling of school funding. See id. at 564. The teacher was
HUPPERT v. CITY OF PITTSBURG 9353
fired in retaliation for the letter. He brought suit, claiming that
the First Amendment protected his speech. The Supreme
Court agreed, stating that speech deserves First Amendment
protection when it addresses “a matter of legitimate public
concern.” Id. at 571.
The Supreme Court’s recent decision in Garcetti v. Cebal-
los, 547 U.S. 410 (2006), has made it more difficult for gov-
ernment employees to establish that their speech is protected
under the First Amendment. Ceballos, a deputy district attor-
ney, concluded that an affidavit used to obtain a search war-
rant in a pending criminal case contained “serious
misrepresentations.” Id. at 414. He stated this in a “disposition
memorandum” to his supervisors, who allegedly retaliated
against him because of the memorandum. Id. at 414-15.
Ceballos brought suit under § 1983, claiming that his speech
was protected under the First Amendment. The Court dis-
agreed, holding that “when public employees make statements
pursuant to their official duties, the . . . First Amendment . . .
does not insulate their communications from employer disci-
pline. Ceballos wrote his disposition memo because that is
part of what he, as a calendar deputy, was employed to do.”
Id. at 421.
The Court wrote that “the parties in this case do not dispute
that Ceballos wrote his disposition memo pursuant to his
employment duties. We thus have 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.” Id. at 424. However, the Court did provide a few
guidelines. It explicitly rejected the “suggestion that employ-
ers can restrict employees’ rights by creating excessively
broad job descriptions.” Id. Rather, the Court stated that “[t]he
proper inquiry is a practical one[,]” as “[f]ormal job descrip-
tions often bear little resemblance to the duties an employee
actually is expected to perform.” Id. at 424-25. The Court also
noted that speaking in the workplace, rather than in public,
does not necessarily mean that the speech was made pursuant
9354 HUPPERT v. CITY OF PITTSBURG
to official duties. See id. at 420-21. Furthermore, whether the
speech concerns “the subject matter of [the speaker’s]
employment . . . is nondispositive.” Id. at 421.
In four cases decided after Ceballos, we have addressed
whether a government employee’s speech was made pursuant
to his or her official duties. The first case is Freitag v. Ayers,
468 F.3d 528 (9th Cir. 2006), in which Freitag, a correctional
officer at Pelican Bay Prison, complained that inmates were
sexually harassing her and undermining her ability to impose
discipline by repeatedly masturbating in front of her. Freitag
first complained to her supervisors about the sexual harass-
ment. She complained to them again after they repeatedly
refused to take disciplinary action against the offending pris-
oners. For example, one of Freitag’s supervisors threw away
the form on which she had reported masturbation, saying that
she was the only person who had a problem with this inmate
and that “it’s only sex.” Id. at 533.
When Freitag’s immediate supervisors continued to ignore
and belittle her complaints, she wrote to the head of the Cali-
fornia prison system, the Director of the California Depart-
ment of Corrections and Rehabilitation (“CDCR”). After her
supervisors retaliated against her for having written to the
Director, Freitag contacted a state senator and California’s
Office of the Inspector General (“Inspector General”), an
independent agency that oversees the CDCR. Freitag’s super-
visors further retaliated against her for having contacted the
state senator and the Inspector General.
We were unsure, based on the record before us, whether
Freitag’s letter to the Director of the CDCR was protected
speech under the First Amendment. We remanded for a fac-
tual determination of the scope of Freitag’s “official duties,”
stating that “[w]e are unsure whether prison guards are
expected to air complaints . . . all the way up to the Director.”
Id. at 546. However, we were certain that Freitag had not spo-
ken “pursuant to [her] official duties,” and that she was pro-
HUPPERT v. CITY OF PITTSBURG 9355
tected by the First Amendment, when she contacted the state
senator and the Inspector General. Id. at 545. We wrote:
Freitag acted as a citizen when she wrote letters to
Senator Polanco and communicated with the Inspec-
tor General regarding her complaints of sexual
harassment. Her right to complain both to an elected
public official and to an independent state agency is
guaranteed to any citizen in a democratic society
regardless of his status as a public employee. Under
Ceballos, Freitag does not lose her right to speak as
a citizen simply because she initiated the communi-
cations while at work or because they concerned the
subject matter of her employment.
Id. (citations omitted); see also Fuerst v. Clarke, 454 F.3d 770
(7th Cir. 2006) (holding that plaintiff deputy sheriff’s adverse
comments on the sheriff’s decision to hire a public relations
officer were not made pursuant to his official duties).
The second case is Marable v. Nitchman, 511 F.3d 924 (9th
Cir. 2007), in which Marable, a Chief Engineer in charge of
the engine department of a ferry operated by the Washington
State Ferries (“WSF”), complained of corrupt financial prac-
tices by WSF managers. He complained in two telephone
calls to the Maintenance Director of the WSF; in two conver-
sations with a Washington Department of Transportation
auditor; in a conversation with a former CEO of the WSF; and
in a complaint to the Washington Executive Ethics Board. See
id. at 929. Marable’s superiors retaliated against him for hav-
ing made these complaints.
We held that Marable’s complaints were protected by the
First Amendment. We wrote:
At the outset, we think it worth noting that an
employee’s charge of high level corruption in a gov-
ernment agency has all of the hallmarks that we nor-
9356 HUPPERT v. CITY OF PITTSBURG
mally associate with constitutionally protected
speech. The matter challenged was a matter of
intense public interest, had it become known, and
criticisms of a government lie at or near the core of
what the First Amendment aims to protect.
Id. at 932. We concluded that Marable’s speech, including his
speech within the WSF hierarchy, was protected because it
was not made pursuant to his official duties:
The Supreme Court has observed that the inquiry
into whether employee speech is pursuant to
employment duties is a practical one. . . . Function-
ally, . . . it cannot be disputed that [Marable’s] job
was to do the tasks of a Chief Engineer on his ferry,
and such tasks did not include pointing to corrupt
actions of higher level officials whom he purportedly
thought were abusing the public trust and converting
public funds to their own use by overpayment
schemes.
Id.
The third case is Eng v. Cooley, 552 F.3d 1062 (9th Cir.
2009), in which Eng, a Los Angeles County Deputy District
Attorney, presented a report to his supervisors recommending
that no criminal charges be brought against persons involved
in the planning and construction of the local school district’s
Belmont Learning Complex. 552 F.3d at 1064. Eng’s report
conflicted with the report of Anthony Patchett, the leader of
the Belmont Task Force, and with the political agenda of
Eng’s boss, the recently-elected District Attorney, who had
campaigned on a promise to reform the Belmont project. Id.
The Task Force adopted Eng’s report. Id. At the meeting of
the Task Force adopting his report, Eng argued that the
financing for the Belmont project fell through because Pat-
chett “had improperly leaked to the IRS that the School Dis-
trict had committed fraud in purchasing the Belmont
HUPPERT v. CITY OF PITTSBURG 9357
property.” Id. Thereafter, Eng’s supervisors purportedly retal-
iated against him by falsely accusing him of sexual harass-
ment and suspending him for improper use of an office
computer, a trumped up charge. Id. at 1065-66. The Los Ange-
les Times later published an article on Eng’s case that
included statements from Mark Geragos, Eng’s attorney. Id.
at 1065.
In reviewing Eng’s First Amendment retaliation claim, we
stated that “ ‘the question of the scope and content of a plain-
tiff ’s job responsibilities is a question of fact.’ ” Id. at 1071
(citation omitted). “In evaluating whether a plaintiff spoke as
a private citizen, we must therefore assume the truth of the
facts as alleged by the plaintiff with respect to employment
responsibilities.” Id. We concluded that while Eng had a duty
to submit his report, “Eng’s version of the facts plausibly
indicates that he had no official duty to complain about [Pat-
chett’s] leak to the IRS or to authorize Geragos to speak to the
press.” Id. at 1073. We held that Eng properly stated a First
Amendment retaliation claim. Id. at 1074.
The fourth case is Robinson v. York, 566 F.3d 817 (9th Cir.
2009). Robinson, a sergeant in the Los Angeles County Office
of Public Safety, testified in a class action lawsuit alleging
discrimination by his employer and filed several misconduct
reports pertaining to problematic behavior, some of which he
observed while off duty. Id. at 820-21. The reports described,
for example, officers who appeared to be consuming alcohol
while on duty and instances of potential battery or excessive
force. Id. Robinson alleged that his supervisors discouraged
him from filing so many reports and indicated that filing
fewer reports would improve his chances of being promoted
to lieutenant. Id. at 821. Robinson thereafter performed very
well on an examination for promotion to lieutenant but was
not promoted. Id. He filed suit under the First Amendment. Id.
In determining whether Robinson’s reports were filed pur-
suant to his official duties, we stated that the “scope of Robin-
9358 HUPPERT v. CITY OF PITTSBURG
son’s duties is a question of fact. [W]hen there are genuine
and material disputes as to the scope and content of the plain-
tiff ’s job responsibilities, the court must reserve judgment . . .
until after the fact finding process. “ Id. at 823-24 (internal
quotation marks and citations omitted; bracket and ellipses in
original). We concluded that we must “assume the resolution
of this dispute in the non-moving party’s favor.” Id. at 824
(citing Eng, 552 F.3d at 1067).
The lesson from the Supreme Court’s decision in Ceballos,
and from the four cases we have decided since then, is clear.
If a public employee’s speech is made pursuant to his or her
official duties, it is not protected under the First Amendment.
However, if there is a genuine issue of material fact as to
whether speech was made pursuant to a plaintiff ’s official
duties, that issue may not be treated as a question of law to
be resolved at summary judgment. Rather, it must be treated
as a question of fact to be resolved in a fact-finding proceed-
ing.
In Freitag, we were uncertain whether Freitag had a duty
to report her complaints to the Director of the CDCR. 468
F.3d at 546. Rather than deciding the scope of Freitag’s duties
as a question of law, we remanded for a factual determination.
Id. It was only because there was no dispute that Freitag’s
speech to a state senator and the Inspector General was not
made pursuant to her official duties that we did not require a
factual determination on that issue. Likewise, in Marable it
was only because the speech by Marable to high level offi-
cials regarding corruption in his department indisputably fell
outside of his duties as an engineer on a ferry that we did not
require a factual determination on that issue. The plaintiff in
Eng “plausibly” did not have a duty to complain about his co-
worker’s leak to the IRS or to authorize his lawyer to speak
to the press. 552 F.3d at 1073. That was enough to survive
summary judgment and to require a factual determination at
trial. Finally, because the duties of the plaintiff in Robinson
were disputed, we permitted the First Amendment claim to
HUPPERT v. CITY OF PITTSBURG 9359
proceed, stating that we “must reserve judgment . . . until
after the fact finding process.” 566 F.3d at 824 (emphasis
added, internal quotation marks omitted, ellipsis in original).
Requiring factual determinations by a jury, or by a judge
after a bench trial, when there is a genuine factual dispute
about the scope of a plaintiff ’s official duties makes sense as
a matter of institutional competence. In many instances, a
judge can have only an imperfect understanding of the precise
duties associated with a public sector job when all he or she
knows is a job title. The duties of jobs with the same title
often vary substantially depending on the agency and job
location. The duties associated with a particular job may
change over time. And the actual duties of an employee may
vary substantially from the formal, publicly released job
description. Thus, for a judge to conclude as a matter of law
what is, and is not, included in a public employee’s official
duties is a very hazardous enterprise.
III. Plaintiffs’ Protected Speech
Plaintiffs contend that they engaged in protected speech on
four occasions: (1) Huppert’s speech during his investigation
into corruption at the public works yard in 1997 and 1998; (2)
Huppert’s speech during his cooperation with the FBI in its
investigation into corruption in the police department some-
time prior to 2001; (3) Huppert and Salgado’s speech during
their investigation into police corruption at the city-owned
golf course beginning in late 2001; and (4) Huppert’s subpoe-
naed speech to the grand jury in 2004 during its investigation
into corruption in the police department.
I agree with the majority that the district court’s summary
judgment with respect to Huppert’s speech on the first occa-
sion should be affirmed. In my view, Huppert has provided
insufficient evidence that his speech on that occasion was not
uttered pursuant to his official duties to survive summary
judgment.
9360 HUPPERT v. CITY OF PITTSBURG
However, I disagree with the majority with respect to Hup-
pert’s speech on the second, third, and fourth occasions, and
with respect to Salgado’s speech on the third occasion. In my
view, there is a genuine issue of material fact whether Plain-
tiffs’ speech on the second and third occasions was uttered
pursuant to their official duties and, therefore, whether it was
protected under the First Amendment. Further, in my view,
Huppert’s speech on the fourth occasion was protected, as a
matter of law, under the First Amendment.
A. Huppert’s Speech During the FBI Investigation into
Corruption in the Pittsburg Police Department
Huppert states in his declaration that sometime prior to
2001 he began cooperating with the FBI in its investigation of
corruption in the Pittsburg Police Department (“PPD”). Hup-
pert specifically states that his cooperation was “outside [his]
duties as a member of the PPD.” Huppert states that in 2001,
when Police Chief Baker learned of his cooperation with the
FBI, he retaliated by transferring Huppert to the Code
Enforcement unit of the PPD, otherwise known as the Penal
Colony.
In my view, Huppert has created a genuine issue of mate-
rial fact as to the scope of his official duties. Huppert has spe-
cifically, and not implausibly, stated that his speech during his
cooperation with the FBI’s investigation into corruption in the
PPD was not part of his official duties as a member of the
PPD. I therefore conclude that the scope of Huppert’s official
duties, and the motivation for Baker’s assignment of Huppert
to the Penal Colony, are questions of fact to be resolved by
a jury, not an issue of law to be resolved on summary judg-
ment.
B. Huppert and Salgado’s Speech During the
Investigation into Police Corruption at the City-Owned
Golf Course
Huppert and Salgado state in their declarations that the City
Manager asked them to conduct the investigation into police
HUPPERT v. CITY OF PITTSBURG 9361
corruption at the city-owned golf course. Commander Hen-
dricks, states in his declaration that Police Chief Baker told
Huppert and Salgado to stop their investigation after only one
day. Hendricks states that Baker explicitly ordered Huppert
and Salgado not to write a report. Huppert states that, in direct
disobedience to Baker’s order, he and Salgado continued their
investigation and that he wrote a report of their “initial find-
ings.” Huppert and Salgado state that they were retaliated
against for this speech.
Huppert and Salgado contend that because they continued
their investigation, and because Huppert wrote the report in
direct contravention of orders from Police Chief Baker, the
speech contained in the report was not made pursuant to their
official duties. I recognize that Huppert and Salgado contin-
ued their investigation with the knowledge and encourage-
ment of Commander Hendricks. But any encouragement from
Hendricks conflicted with the direct order of Police Chief
Baker. In my view, a direct order from the Chief of Police is
a more authoritative source for determining the scope of a
police officer’s official duties than the encouragement of a
lower-ranking officer in the department to disobey that order.
At most, Hendricks’ encouragement of Huppert and Salgado
creates a factual question as to the scope of their official
duties. This is precisely the type of question that we saved for
fact-finding proceedings in Freitag, Eng, and Robinson. Hup-
pert and Salgado’s version of the facts “plausibly indicates
that [they] had no official duty” to prepare the report on their
public golf course corruption investigation. Eng, 552 F.3d at
1073. Consequently, we must “assume the resolution of this
dispute in the non-moving part[ies’] favor.” Robinson, 2009
U.S. App. LEXIS 8844 at *11.
Police Chief Baker, who is a defendant in this suit, may be
able to provide evidence that would help a jury determine the
scope of Huppert and Salgado’s official duties. For example,
Baker could testify that in directing them not to prepare the
report, he was defining the contours of their official duties. If
9362 HUPPERT v. CITY OF PITTSBURG
this is so, Huppert was not acting pursuant to his official
duties when he wrote the report, and his (and Salgado’s)
speech is protected under the First Amendment. On the other
hand, Baker could testify that writing the report was part of
their official duties, and that Baker was directing them not to
perform their duty. If this is so, Baker may have been behav-
ing improperly by attempting to cover up corruption in his
police force, but Huppert and Salgado were acting pursuant to
their official duties in preparing the report, and their speech
was not protected.
C. Subpoenaed Testimony Before the Grand Jury
Investigating Corruption in the Pittsburg Police
Department
Huppert was subpoenaed to appear before a civil grand jury
investigating corruption in the Pittsburg Police Department.
He appeared before the grand jury in compliance with the
subpoena. We do not know his actual testimony, but we know
that he testified concerning corruption in the PPD. Huppert
states that after he testified he was subjected to various retal-
iatory actions.
The majority relies on Christal v. Police Commission of
San Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939), to con-
clude that police officers in California have an official duty to
testify pursuant to a subpoena before grand juries investigat-
ing corruption in their department. Christal states, “When
police officers acquire knowledge of facts which will tend to
incriminate any person, it is their duty to disclose such facts
to their superiors and to testify freely concerning such facts
when called upon to do so before any duly constituted court
or grand jury.” I do not regard Christal as relevant to the
question before us. In my view, if a public employee is sub-
poenaed to testify before a grand jury, he or she has a duty as
a citizen that is independent of any duty he or she might also
have as an employee. In testifying pursuant to a subpoena, the
HUPPERT v. CITY OF PITTSBURG 9363
employee is therefore not performing an official duty within
the meaning of Ceballos.
The majority’s conclusion that Huppert’s subpoenaed
speech before the grand jury is not protected under the First
Amendment conflicts with two recent decisions by our sister
circuits. In Morales v. Jones, 494 F.3d 590 (7th Cir. 2007),
Milwaukee police officer Morales testified in a deposition
pursuant to a subpoena. The substance of his testimony con-
cerned evidence that the Chief and Deputy Chief of Police
had harbored a fugitive, the brother of the Deputy Chief, and
that the Chief had retaliated against another officer in another
matter. Morales claimed in a § 1983 suit that the Chief of
Police and the Deputy Chief retaliated against him for his
deposition testimony. The Seventh Circuit held that Morales’
speech during the deposition was protected under the First
Amendment. The court wrote,
Being deposed in a civil suit pursuant to a subpoena
was unquestionably not one of Morales’ job duties
because it was not part of what he was employed to
do. Nonetheless, Morales testified about speech he
made pursuant to his official duties and we must
determine whether that fact renders his deposition
unprotected. We hold that it does not. . . .
Id. at 598.
In Reilly v. Atlantic City, 532 F.3d 216, 220 (3d Cir. 2008),
Atlantic City police officer Reilly testified in a criminal trial
against a fellow officer accused of corruption. A high-ranking
Atlantic City police officer who was a friend of the allegedly
corrupt officer had been a suspect but had not been charged.
Reilly claimed in a § 1983 suit that the Chief of Police and the
high-ranking officer retaliated against him for his trial testi-
mony. The Third Circuit held that Reilly’s testimony was pro-
tected under the First Amendment. The court wrote:
9364 HUPPERT v. CITY OF PITTSBURG
[T]he act of offering truthful testimony is the respon-
sibility of every citizen, and the First Amendment
protection associated with fulfilling that duty of citi-
zenship is not vitiated by one’s status as a public
employee. That an employee’s official responsibili-
ties provided the initial impetus to appear in court is
immaterial to his/her independent obligation as a cit-
izen to testify truthfully.
Id. at 231.
A recent district court decision in our own circuit is even
more directly on point. In Evans v. Housing Authority of Beni-
cia, 2008 WL 4177729 (E.D. Cal. Sept. 8, 2008), Evans was
an accountant for the Benicia Housing Authority (“BHA”).
Evans observed that Peterson, one of his supervisors, was
working “reduced hours” and was not collecting certain past
due rents. Evans reported his observations to the Chairperson
of the BHA. He later testified about his observations before
a civil grand jury investigating the BHA.
The court held that Evans’ testimony before the grand jury
was protected, both as to the hours worked by Peterson and
to her failure to collect rents. The court wrote:
Testifying before the Grand Jury was not in any way
part of Evans’ official job duties. It was clearly not
within the scope of Evans’ official job duties to tes-
tify before the Grand Jury about Peterson’s alleged
failure to collect past due rents . . . . Nor was it
within the scope of Evans’s duties to testify before
the Grand Jury about Peterson’s reduced work hours.
Rather, it was Evans’ duty as a citizen to expose
such official malfeasance to broader scrutiny.
Id. But see Deprado v. City of Miami, 446 F. Supp. 2d 1344,
1346 (S.D. Fla. 2006) (holding that “[i]n accordance with the
[Miami] Police Department’s regulations, and the Plaintiff ’s
HUPPERT v. CITY OF PITTSBURG 9365
obligations as a State-certified law enforcement officer,”
grand jury testimony by a Miami police officer was not pro-
tected speech under the First Amendment).
Morales, Reilly, and Evans hold that where there is an inde-
pendent legal duty to speak (in our case, to testify before the
grand jury pursuant to a subpoena), the employee has First
Amendment protection for truthful speech uttered in perfor-
mance of that independent legal duty. The fact that the
employer may require its employees to obey a law that exists
independent of the employment relationship does not allow
the employer to retaliate against an employee for obeying that
law.
This holding comports with sound policy. There are strong
reasons to avoid holding that police officers have an official
duty, within the meaning of Ceballos, to testify before a grand
jury pursuant to a subpoena about corruption among their fel-
low officers. Such a holding would result in a Catch 22. If a
police officer were subpoenaed to testify, he or she would
have two choices. One choice would be to testify before the
grand jury. In that event, the officer could lawfully be fired
in retaliation for his or her testimony. The other choice would
be to refuse to testify. In that event, the officer would face
contempt (and possibly other adverse consequences) for fail-
ing to comply with a subpoena.
The subject of Huppert’s testimony before the grand jury
was, in the words of our decision in Marable, “high level cor-
ruption in a government agency,” which “has all the hall-
marks that we normally associate with constitutionally
protected speech.” 511 F.3d at 932. When he appeared before
the grand jury, Huppert acted “as a citizen,” exercising a right
“guaranteed to any citizen in a democratic society regardless
of his status as a public employee.” Freitag, 468 F.3d at 545.
He also appeared pursuant to his duty as a citizen, indepen-
dent from his duty as a public employee, to comply with the
subpoena. That Huppert’s speech concerned “the subject mat-
9366 HUPPERT v. CITY OF PITTSBURG
ter of [his] employment . . . is nondispositive.” Ceballos, 547
U.S. at 421. Sound policy counsels us not to conclude that his
speech was made pursuant to his official duties. So do Mora-
les and Reilly, the only opinions by courts of appeals on this
issue. I think we are fully justified in following these cases
and holding that when an officer testifies before a grand jury
pursuant to a subpoena concerning corruption of his or her
fellow officers, the officer is not performing an official duty
within the meaning of Ceballos.
Conclusion
The majority holds that Huppert’s speech during the FBI
investigation into corruption in the Pittsburg Police Depart-
ment, and Huppert and Salgado’s speech during the investiga-
tion into police corruption at the city-owned golf course, were
not protected under the First Amendment. In so holding, the
majority fails to follow our binding circuit precedent in four
cases decided after the Supreme Court’s decision in Ceballos
— Freitag, Marable, Eng, and Robinson.
The majority also holds that Huppert’s subpoenaed speech
to the grand jury investigating corruption in the Pittsburg
Police Department was not protected by the First Amend-
ment. In so holding, the majority creates a circuit split with
the Seventh Circuit’s decision in Morales and the Third Cir-
cuit’s decision in Reilly.
I respectfully dissent.