Eng v. County of La

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ENG, 
Plaintiff-Appellee,
v.
STEVE COOLEY, District Attorney;
STEVEN SOWDERS, Head Deputy No. 07-56055
District Attorney; CURT LIVESAY,
former Chief Deputy District  D.C. No.
CV-05-02686-ODW
Attorney; ANTHONY PATCHETT,
former Special Assistant to the OPINION
District Attorney; and CURTIS A.
HAZELL, Assistant District
Attorney; in their individual
capacities,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted
November 20, 2008—Pasadena, California
Filed January 14, 2009
Before: Richard D. Cudahy,* Harry Pregerson, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
507
ENG v. COOLEY 511
COUNSEL
Jin Suk Choi, Franscell, Strickland, Roberts & Lawrence,
P.C., Glendale, California, for the defendants-appellants.
D. Jay Ritt, Bensinger, Ritt, Tai & Thvedt, LLP, Pasadena,
California, for the plaintiff-appellee.
OPINION
HAWKINS, Circuit Judge:
We must determine whether Steve Cooley, Steven
Sowders, Curt Livesay, Anthony Patchett, and Curtis Hazell
(collectively, the “Defendants”) are entitled in their individual
capacities to qualified immunity in this § 1983 First Amend-
ment retaliation case.1 Resolving this question involves, in
part, David Eng’s claim that he was retaliated against by the
1
Eng’s complaint also identifies as defendants the County of Los Ange-
les and the named defendants in their official capacities. Qualified immu-
nity is not available, however, to municipalities or individuals in their
official capacities. See, e.g., Hallstrom v. City of Garden City, 991 F.2d
1473, 1482 (9th Cir. 1993) (“A municipality (and its employees sued in
their official capacities) may not assert a qualified immunity defense to
liability under Section 1983.” (citing Owen v. City of Independence, 445
U.S. 622, 638 (1980); Kentucky v. Graham, 473 U.S. 159, 165-68
(1985))). We therefore consider only the individual defendants in their
individual capacities in this interlocutory appeal.
512 ENG v. COOLEY
Defendants for an interview given by his lawyer on his behalf
to the press. Concluding that we lack jurisdiction to address
whether Eng has third party standing to vindicate the constitu-
tional rights of his lawyer, but that he may nevertheless claim
a personal First Amendment interest in his lawyer’s advocacy
on his behalf, we affirm the district court’s partial denial of
qualified immunity.
I. FACTUAL AND PROCEDURAL BACKGROUND
“Assuming that [Eng]’s version of the material facts is cor-
rect, as we must in the context of an interlocutory appeal of
a qualified immunity decision,” CarePartners, LLC v. Lash-
way, 545 F.3d 867, 878 (9th Cir. 2008), the record establishes
the following.
A. Factual Background
Eng, a Los Angeles County Deputy District Attorney, was
assigned to the Belmont Task Force (“Task Force”) to investi-
gate allegations of fraud and environmental crimes related to
the planning and construction of the Los Angeles Unified
School District’s Belmont Learning Complex (“Belmont”).
The Task Force was established by newly-elected District
Attorney Steve Cooley, who had campaigned on a promise to
reform the Belmont project. The Task Force was headed by
Special Assistant Anthony Patchett, who emphasized from the
beginning that the Task Force would deliver “slam dunk”
indictments against prominent individuals involved with the
Belmont project.
Following an extensive seven-month investigation, the
Task Force concluded that the building site was and had
always been environmentally safe and that no indictments
should issue. Hours before the Task Force presented its find-
ings and recommendations to Cooley and his executive staff,
Eng briefed Patchett about the report. Patchett threatened Eng
with “severe [personal] consequences” if the Task Force did
ENG v. COOLEY 513
not say what Patchett believed Cooley “wanted to hear.” Eng
nevertheless presented his report recommending that no crim-
inal charges be brought. Following Eng’s discussion of the
Task Force’s findings, Patchett made his own presentation
opposing Eng’s report and distributed proposed indictments
against several prominent individuals. Cooley’s executive
staff considered both recommendations and declined to adopt
Patchett’s.
In the same meeting, the Task Force also discussed a Los
Angeles Times article reporting that the Los Angeles Unified
School District’s (the “School District”) lease-purchase agree-
ments used to finance the Belmont project were being can-
celed and that the School District would have to refinance the
project at a substantially higher interest rate. According to
Eng, the agreements were cancelled because Patchett had
improperly leaked to the IRS that the School District had
committed fraud in purchasing the Belmont property. Eng
argued that the lease-purchase agreements had been legal and
that Patchett’s contrary report to the IRS was “wrong and
should be rectified.” Cooley, who had become angry with
Eng, told him to “shut up.”
Over the next several months, Cooley and members of his
staff met frequently to discuss “a method of forcing David
Eng out of the District Attorney’s Office.” First, a few months
after the presentation, John Zajeck (who replaced Patchett as
head of the Task Force) informed Eng that he was under
investigation for sexual harassment of a Task Force law clerk
with whom Eng had previously engaged in a consensual “pri-
vate relationship.” The relationship was not unusual and was
not in violation of any office policy.
Patchett and Zajeck had approached the law clerk earlier to
inquire about the relationship. She told the pair that Eng had
not sexually harassed her, nor had she told anyone he had.
After learning that Zajeck had initiated a sexual harassment
investigation against Eng, moreover, she expressly advised
514 ENG v. COOLEY
the department that Eng had not sexually harassed her. The
investigation nevertheless proceeded without the law clerk’s
knowledge or participation. Eng was told to work from home
until further notice and not permitted to return to work until
the following month.
Next, in what Eng asserts was a “clear demotion,” Cooley
reassigned him to the Pomona Juvenile Division, even though
Eng was a senior attorney in the office, and the Juvenile Divi-
sion is “considered to be the first stop for beginning attor-
neys.” (Eng had served in the Juvenile Division in the mid-
1980s.) Eng was also interviewed by three District Attorney
investigators regarding the alleged sexual harassment charge.
During the interview, the investigators falsely claimed that the
law clerk had not disavowed the alleged harassment. No
harassment charges were ever brought against Eng.
About five months later, Eng was suspended with pay and
instructed not to return to work without further notice, at
which time he retained attorney Mark Geragos. Eng was sub-
sequently served with a Notice of Intent to Suspend, which
stated that misdemeanor charges had been filed against him
for using an office computer to access private information.
Head Deputy Steven Sowders subsequently informed Eng that
he was being suspended without pay. Eng and Geragos argued
that, because the allegations were baseless, his suspension
should be with pay. That request was denied. Sowders termi-
nated Eng’s pay and benefits and also refused to allow him to
“cash out” his vacation time, as was ordinarily allowed.
When the misdemeanor charges against Eng went to trial
some two months later, they were dismissed when the only
potential witness against Eng invoked his Fifth Amendment
right to remain silent, evidently having misused office com-
puters himself. Sowders still refused to allow Eng to return to
work. Eng and Geragos appealed to the County Civil Service
Commission, which ordered that Eng be allowed to return to
work and that his lost pay and benefits be restored. Sowders
ENG v. COOLEY 515
refused to follow the order and extended Eng’s suspension
without pay for an additional thirty days.
Around the same time, the Los Angeles Times published a
prominent article on Eng’s case, titled “D.A. Accused of Pay-
back Prosecution.” The article, which included an interview
with Geragos, detailed Eng’s allegations that he had been
prosecuted because he refused to file criminal charges against
individuals involved in the Belmont School project, and
because he complained that it was improper for members of
the Task Force to contact the IRS.
Shortly after the article went to press, Sowders informed
Eng and Geragos that Eng would “never be allowed to come
back” to the District Attorney’s Office and that “they would
come up with additional things to charge Eng with so that he
would remain on suspension or be terminated.” Ironically, the
day after the article was published, the District Attorney’s
office released the final Belmont Report, which mirrored the
conclusions originally presented by Eng.
Two weeks after the Los Angeles Times article appeared,
Sowders met with Eng and served him with a second Notice
of Intent to Suspend, realleging the same facts as in the origi-
nal notice and recounting additional allegations “stemm[ing]
from acts which purportedly occurred years prior.” During the
meeting, Sowders asked Eng why he had allowed Geragos to
give an interview to the Los Angeles Times. In a subsequent
meeting among Eng, Geragos, Sowders, and Chief Deputy
District Attorney Curt Livesay, Sowders offered to “resolve
matters” if Eng agreed to “tell the Los Angeles Times that
Geragos’s comments were unauthorized and inaccurate, and
if he would publicly apologize to Cooley.”
Without agreeing to the retraction, Eng returned to work
one week later at the Padrinos Juvenile Court. The following
week, however, the District Attorney’s office issued a second
Notice of Suspension without Pay, evidently again ignoring
516 ENG v. COOLEY
the Civil Service Commission’s order and the dismissal of the
criminal charges against Eng. In a second hearing before the
Civil Service Commission, the Commission resolved all out-
standing allegations in Eng’s favor, including the sexual
harassment charges. Eng later returned to work once again but
discovered that he was not receiving full benefits. He has
since been passed over for promotion.
B. Procedural Background
Eng filed suit under 42 U.S.C. § 1983 asserting, in addition
to a range of state law claims, that the Defendants had retali-
ated against him for exercising his First Amendment right to
comment on the Belmont School Project and the leaks to the
IRS, and to speak through his attorney to the press, in viola-
tion of the First and Fourteenth Amendments.
Following discovery, the Defendants moved for summary
judgment, asserting in part qualified immunity from suit. The
district court granted summary judgment with respect to
Eng’s recommendation that no criminal charges be filed
against individuals associated with the Belmont project.
According to the court, “Eng was merely fulfilling his job
duties when he gave his Task Force recommendation,” and
therefore those statements were “not protected under the First
Amendment.”
The district court denied the remainder of the Defendants’
motion for summary judgment. The court first addressed
whether Eng had asserted a constitutional right. With respect
to his comments about the leaks to the IRS, it concluded that
“there is a genuine factual dispute between the parties as to
whether this statement by Eng was made as part of his Task
Force duties or as a private citizen speaking on a matter of
public concern.” With respect to Eng’s attorney’s interview
with the Los Angeles Times, the district court concluded that
“[t]he attorney made the statements on Eng’s behalf, in his
role as counsel. Consequently, the two have a sufficiently
ENG v. COOLEY 517
close relationship that Eng will be able effectively to assert
his attorney’s rights.”
Having “established that Eng has legitimate First Amend-
ment claims with regard to his protected speech,” the district
court concluded that “First Amendment protection is a clearly
established constitutional right” and the Defendants therefore
were not immune from liability. The Defendants appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have interlocutory appellate jurisdiction pursuant to 28
U.S.C. § 1291 to review the partial denial of qualified immu-
nity in this 42 U.S.C. § 1983 action. See Mitchell v. Forsyth,
472 U.S. 511, 524 (1985).
The district court granted qualified immunity with respect
to certain of Eng’s statements, which it determined were con-
stitutionally unprotected. Generally, “a challenge to the grant
of qualified immunity [is] not independently interlocutorily
appealable.” Krug v. Lutz, 329 F.3d 692, 694 (9th Cir. 2003)
(emphasis added). Although we may take pendant jurisdiction
to review a grant of qualified immunity on interlocutory
appeal if it is “inextricably entwined” with a denial of quali-
fied immunity, Watkins v. City of Oakland, 145 F.3d 1087,
1091 (9th Cir. 1998), this is not such a case, nor does Eng
argue it is. We therefore lack jurisdiction to review the district
court’s partial grant of qualified immunity and will consider
only those statements with respect to which the district court
denied qualified immunity.
Our interlocutory jurisdiction to review a denial of quali-
fied immunity is limited exclusively to questions of law,
which we review de novo. Lee v. Gregory, 363 F.3d 931, 932
(9th Cir. 2004). A district court’s determination that the par-
ties’ evidence presents genuine issues of material fact is cate-
gorically unreviewable on interlocutory appeal. Id. (citing
Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283,
518 ENG v. COOLEY
1291 (9th Cir. 1999)). “Where disputed facts exist, we assume
that the version of the material facts asserted by [the] Plain-
tiff[ ], as the non-moving party, is correct.” KRL v. Estate of
Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). We must there-
fore limit our review to whether the Defendants would be
entitled to qualified immunity as a matter of law assuming all
factual disputes were resolved in Eng’s favor.
III. DISCUSSION
The qualified immunity inquiry involves two sequential
questions: (1) “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the [official’s]
conduct violated a constitutional right?” and (2) “if a violation
could be made out on a favorable view of the parties’ submis-
sions, . . . [was] the right . . . clearly established . . . in light
of the specific context of the case[?]” Saucier v. Katz, 533
U.S. 194, 201 (2001). We address each question in turn.
A. Whether Eng Alleged a Violation of a Constitutional
Right
1. Whether Eng May Assert a Claim for his Attorney’s
Speech
[1] Before addressing whether Eng has demonstrated that
the Defendants violated his constitutional rights, we must first
decide as a threshold matter whether he has a first person
interest, or third-party standing to vindicate Geragos’s inter-
est, in Geragos’s interview with the Los Angeles Times.
Both the parties and the district court frame this question as
one of third-party standing. The Defendants argue that Eng
cannot pursue a “vicarious” First Amendment retaliation
claim for statements made by Geragos because Eng has not
demonstrated that Geragos was hindered from protecting his
own interests. Eng counters that because Geragos was not
himself injured, his ability to protect his own First Amend-
ENG v. COOLEY 519
ment interests was indeed hindered because he has no stand-
ing to bring his own lawsuit. The district court agreed,
concluding that “Eng should be granted third-party standing
to assert a claim based, in part, upon the violation of his attor-
ney’s right to free speech.”
[2] We lack jurisdiction, however, to consider whether Eng
may assert third-party standing to vindicate Geragos’s First
Amendment interests. Our interlocutory review of the denial
of qualified immunity in this case is limited to the narrow
question whether the allegations indicate the Defendants vio-
lated Eng’s clearly established constitutional rights. The ques-
tion of standing, however, is relevant only to whether Eng
may ultimately recover for the alleged violation and is collat-
eral to the inquiry whether the violation has been sufficiently
plead. See, e.g., Davis v. Federal Election Comm’n, 128 S. Ct.
2759, 2769 (2008) (standing is relevant only to “whether the
party invoking jurisdiction had the requisite stake in the out-
come when the suit was filed,” not to the merits of the under-
lying claim). Qualified immunity, the Supreme Court has
explained, “focuses on the objective legal reasonableness of
an official’s acts,” Harlow v. Fitzgerald, 457 U.S. 800, 819
(1982) (emphasis added), and not on whether the plaintiff
may or may not recover for the alleged illegalities.
[3] We therefore agree with the Seventh Circuit that “the
appropriate focus in a qualified immunity analysis is the
legality of the conduct of the public official, not . . . his liabil-
ity to the ultimate plaintiff.” Triad Associates, Inc. v. Robin-
son, 10 F.3d 492, 499 (7th Cir. 1993). According to the
policies underlying qualified immunity, “ ‘[w]here an official
could be expected to know that certain conduct would violate
statutory or constitutional rights, he should be made to hesi-
tate,’ ” regardless whether “ ‘the person who suffers injury
caused by such conduct may have a cause of action.’ ” Id. at
500 (quoting Harlow, 457 U.S. at 821). Whether Eng has
standing to assert Geragos’s own First Amendment interests
520 ENG v. COOLEY
is therefore not before us.2 In any event, we do not believe
Eng need raise a third-party standing claim because we hold
that Geragos and Eng each have a first person constitutional
interest in Geragos’s speech.
[4] It is well settled that when a lawyer speaks on behalf of
a client, the lawyer’s right to speak “is almost always
grounded in the rights of the client, rather than any indepen-
dent rights of the attorney.” Mezibov v. Allen, 411 F.3d 712,
718, 720 (6th Cir. 2005) (citing Zal v. Steppe, 968 F.2d 924,
931 (9th Cir. 1992) (Trott, J., concurring)). In Legal Services
Corp. v. Velazquez, 531 U.S. 533 (2001), for example, the
Supreme Court considered whether Congress could impose
negative conditions on grants to legal services organizations,
such as “prevent[ing] an attorney from arguing to a court that
[federal welfare laws are] violative of the United States Con-
stitution.” Id. at 536. By its terms, the law at issue in that case
prevented attorneys who accepted funding from the Federal
Legal Services Corporation (“LSC”) from speaking certain
words on behalf of their clients. The Supreme Court framed
the question presented, however, as whether the law “violates
the First Amendment rights of LSC grantees and their cli-
ents.” Id. at 536 (emphasis added).
[5] In invalidating the restrictions, Velazquez reasoned that
“an LSC-funded attorney speaks on the behalf of the client”
and is the client’s “speaker.” Id. at 542. Just as the govern-
2
District courts may, of course, address standing when passing on Rule
12(b)(6) and 56 motions predicated on qualified immunity, but any ruling
on such issues will generally be independent of the qualified immunity
inquiry itself and cannot be raised on interlocutory appeal. Except in the
rare circumstance that the standing decision is “inextricably intertwined”
with the qualified immunity decision, Swint v. Chambers County Com’n,
514 U.S. 35, 50-51 (1995), we may address such matters only on appeals
from final judgments. See Will v. United States, 389 U.S. 90, 96 (1967)
(“All our jurisprudence is strongly colored by the notion that appellate
review should be postponed, except in certain narrowly defined circum-
stances, until after final judgment has been rendered by the trial court.”).
ENG v. COOLEY 521
ment’s lawyer must “deliver the government’s message,” the
private citizen’s lawyer must deliver the private citizen’s mes-
sage. Id. Velasquez therefore suggests that government action
seeking to limit an attorney’s advocacy “on behalf of” a client
implicates the client’s, as well as the attorney’s, First Amend-
ment interests—the attorney is, after all, the client’s speaker
hired to deliver the client’s message.3
[6] This conclusion is a natural corollary of the long-
recognized First Amendment right to hire and consult an
attorney. See, e.g., Mothershed v. Justices of the Supreme
Court, 410 F.3d 602, 611 (9th Cir. 2005) (“[W]e recognize
. . . the ‘right to hire and consult an attorney is protected by
the First Amendment’s guarantee of freedom of speech, asso-
ciation and petition.’ ” (quoting Denius v. Dunlap, 209 F.3d
944, 953 (7th Cir. 2000))); DeLoach v. Bevers, 922 F.2d 618,
620 (10th Cir. 1990) (“The right to retain and consult an attor-
ney . . . implicates . . . clearly established First Amendment
rights of association and free speech.”). The Tenth Circuit has
concluded, for example, “that an individual’s First Amend-
ment rights of association and free speech are violated when
a police officer retaliates against her for retaining an attor-
ney.” Malik v. Arapahoe County Dep’t of Soc. Servs., 191
F.3d 1306, 1315 (10th Cir. 1999). But the First Amendment’s
prohibition against state retaliation for hiring a lawyer would
ring hollow if the state could simply retaliate for the lawyer’s
advocacy on behalf of the client instead. A client’s free
speech interest in an attorney’s speech on the client’s behalf
therefore necessarily follows from the client’s First Amend-
ment right to retain counsel.
3
Although both Velazquez and Mezibov addressed attorneys’ representa-
tion of their clients in the courtroom, we see no reason to limit recognition
of a client’s constitutional interest in an attorney’s representation to in-
court speech only. There can be little doubt that zealous representation
extends far beyond the confines of brief-writing, examination of wit-
nesses, and oral argument. This case itself demonstrates that fact.
522 ENG v. COOLEY
[7] The further corollary of that interest, as Velazquez rec-
ognized, is that “[c]ounsel [must] be free of state control” and
unfettered in the exercise of “independent judgment on behalf
of the client.” 531 U.S. at 542 (citing Polk County v. Dodson,
454 U.S. 312, 321-22 (1981)). In this case, if the state were
able to retaliate freely against Eng for statements made by his
lawyer on his behalf, lawyers’ representation of public-
employee-plaintiffs would be chilled, and the state’s actions
would be “insulat[ed]” from full and open “judicial chal-
lenge,” thereby “distort[ing] the legal system.” Id. at 544, 547.
There can be little doubt, then, that “ ‘[s]tate action designed
to retaliate against and chill [an attorney’s advocacy for his or
her client] strikes at the heart of the First Amendment.’ ”
Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th
Cir. 1989) (citation omitted).
[8] Here, the district court concluded that when Geragos
spoke to the press about Eng’s First Amendment retaliation
case, Geragos “made the statements on Eng’s behalf, in his
role as counsel.” The Defendants do not dispute this charac-
terization. Because Geragos spoke on Eng’s behalf in his
capacity as Eng’s lawyer, his words were Eng’s words as far
as the First Amendment is concerned. Eng himself therefore
had a personal First Amendment interest in Geragos’s speech.
2. The First Amendment Retaliation Test
Having determined that Eng had a personal constitutional
interest in his own speech about the leak to the IRS and in
Geragos’s interview with the Los Angeles Times, we turn now
to the question whether Eng has alleged a violation of that
interest.
[9] It is well settled that the state may not abuse its position
as employer to stifle “the First Amendment rights [its employ-
ees] would otherwise enjoy as citizens to comment on matters
of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968). Acknowledging the limits on the state’s ability to
ENG v. COOLEY 523
silence its employees, the Supreme Court has explained that
“[t]he problem in any case is to arrive at a balance between
the interests of the [public employee], as a citizen, in com-
menting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the pub-
lic services it performs through its employees.” Id.[10] In the forty years since Pickering, First Amendment
retaliation law has evolved dramatically, if sometimes incon-
sistently. Unraveling Pickering’s tangled history reveals a
sequential five-step series of questions: (1) whether the plain-
tiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; (3)
whether the plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment action; (4)
whether the state had an adequate justification for treating the
employee differently from other members of the general pub-
lic; and (5) whether the state would have taken the adverse
employment action even absent the protected speech. Analy-
sis of these questions, further complicated by restraints on our
interlocutory appellate jurisdiction, involves a complex array
of factual and legal inquiries requiring detailed explanation.
First, the plaintiff bears the burden of showing that the
speech addressed an issue of public concern. See Connick v.
Myers, 461 U.S. 138 (1983); Bauer v. Sampson, 261 F.3d
775, 784 (9th Cir. 2001). “Speech involves a matter of public
concern when it can fairly be considered to relate to ‘any mat-
ter of political, social, or other concern to the community.’ ”
Johnson v. Multnomah County, Or., 48 F.3d 420, 422 (9th
Cir. 1995) (quoting Connick, 461 U.S. at 146). But “speech
that deals with ‘individual personnel disputes and grievances’
and that would be of ‘no relevance to the public’s evaluation
of the performance of governmental agencies’ is generally not
of ‘public concern.’ ” Coszalter v. City of Salem, 320 F.3d
968, 973 (9th Cir. 2003) (quoting McKinley v. City of Eloy,
705 F.2d 1110, 1114 (9th Cir. 1983)). “ ‘Whether an employ-
ee’s speech addresses a matter of public concern must be
524 ENG v. COOLEY
determined by the content, form, and context of a given state-
ment, as revealed by the whole record.’ ” Johnson, 48 F.3d at
422 (quoting Connick, 461 U.S. at 147-48).
The public concern inquiry is purely a question of law,
which we review de novo. Berry v. Dept. of Soc. Servs., 447
F.3d 642, 648 (9th Cir. 2006) (citing Hyland v. Wonder, 972
F.2d 1129, 1134 (9th Cir. 1992)). If the speech in question
does not address a matter of public concern, then the speech
is unprotected, and qualified immunity should be granted.
Second, the plaintiff bears the burden of showing the
speech was spoken in the capacity of a private citizen and not
a public employee. See Garcetti v. Ceballos, 547 U.S. 410,
421-22 (2006); Posey v. Lake Pend Oreille School Dist. No.
84, 546 F.3d 1121, 1126-27 (9th Cir. 2008). “Statements are
made in the speaker’s capacity as citizen if the speaker ‘had
no official duty’ to make the questioned statements, or if the
speech was not the product of ‘performing the tasks the
employee was paid to perform.’ ” Posey, 546 F.3d at 1127 n.2
(some internal quotations and alterations omitted) (quoting,
respectively, Marable v. Nitchman, 511 F.3d 924, 932-33 (9th
Cir. 2007), and Freitag v. Ayers, 468 F.3d 528, 544 (9th Cir.
2006)).
While “the question of the scope and content of a plaintiff’s
job responsibilities is a question of fact,” the “ultimate consti-
tutional significance of the facts as found” is a question of
law. Id. at 1129-30. 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. If the allegations demonstrate an official duty
to utter the speech at issue, then the speech is unprotected,
and qualified immunity should be granted.
Third, the plaintiff bears the burden of showing the state
“took adverse employment action . . . [and that the] speech
was a ‘substantial or motivating’ factor in the adverse action.”
ENG v. COOLEY 525
Freitag, 468 F.3d at 543 (quoting Coszalter v. City of Salem,
320 F.3d 968, 973 (9th Cir. 2003)); see also Marable, 511
F.3d at 930, n.10 (“It is [the plaintiff]’s burden to show that
his constitutionally protected speech was a motivating factor
in [the state]’s adverse employment action.”).
This third step is purely a question of fact. Once again, in
evaluating whether the government’s adverse employment
action was motivated by the employee’s speech, we must
assume the truth of the plaintiff’s allegations. If the plaintiff
does not sufficiently allege that the state retaliated for the
employee’s exercise of First Amendment rights, there can be
no recovery, and qualified immunity should be granted.
Fourth, if the plaintiff has passed the first three steps, the
burden shifts to the government to show that “under the bal-
ancing test established by [Pickering], the [state]’s legitimate
administrative interests outweigh the employee’s First
Amendment rights.” Thomas v. City of Beaverton, 379 F.3d
802, 808 (9th Cir. 2004); see also CarePartners, 545 F.3d at
880. This inquiry, known as the Pickering balancing test, asks
“whether the relevant government entity had an adequate jus-
tification for treating the employee differently from any other
member of the general public.” Garcetti, 547 U.S. at 418. Its
qualified restriction of ordinarily protected speech recognizes
that “[a] government entity has broader discretion to restrict
speech when it acts in its role as employer, but the restrictions
it imposes must be directed at speech that has some potential
to affect the entity’s operations.” Id.Although the Pickering balancing inquiry is ultimately a
legal question, like the private citizen inquiry, its resolution
often entails underlying factual disputes. See, e.g., Rivero v.
City & County of San Francisco, 316 F.3d 857, 865-66 (9th
Cir. 2002) (determining “the outcome of the Pickering bal-
ancing test” requires resolving underlying “question[s] of
fact”); Hyland, 972 F.2d at 1139 (“Application of this balanc-
ing test entails” resolution of underlying “factual inquir[ies]”).
526 ENG v. COOLEY
Thus we must once again assume any underlying disputes will
be resolved in favor of the plaintiff to determine, as a matter
of law, whether the state has “adequate justification” to
restrict the employee’s speech. If the allegations, viewed in
light most favorable to the plaintiff, indicate adequate justifi-
cation, qualified immunity should be granted.
Fifth and finally, if the government fails the Pickering bal-
ancing test, it alternatively bears the burden of demonstrating
that it “would have reached the same [adverse employment]
decision even in the absence of the [employee’s] protected
conduct.” Thomas, 379 F.3d at 808 (quoting Ulrich v. City
and County of San Francisco, 308 F.3d 968, 976-77 (9th Cir.
2002)). In other words, it may avoid liability by showing that
the employee’s protected speech was not a but-for cause of
the adverse employment action. See Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). This
question relates to, but is distinct from, the plaintiff’s burden
to show the protected conduct was a substantial or motivating
factor. It asks whether the “adverse employment action was
based on protected and unprotected activities,” and if the state
“would have taken the adverse action if the proper reason
alone had existed.” Knickerbocker v. City of Stockton, 81 F.3d
907, 911 (9th Cir. 1996) (emphasis added).
The Mt. Healthy but-for causation inquiry is purely a ques-
tion of fact. Wagle v. Murray, 560 F.2d 401, 403 (9th Cir.
1977) (per curium) (“Mt. Healthy indicates the ‘trier-of-fact’
should determine whether the firing would have occurred
without the protected conduct.”); see also Karam v. City of
Burbank, 352 F.3d 1188 (9th Cir. 2003). In evaluating
whether the employee’s speech was a but-for cause of the
adverse employment action, we must therefore once again
assume the truth of the plaintiff’s allegations. Immunity
should be granted on this ground only if the state successfully
alleges, without dispute by the plaintiff, that it would have
made the same employment decisions even absent the ques-
tioned speech.
ENG v. COOLEY 527
3. Whether Eng Passes the First Amendment Retaliation
Test
Applying this five-step First Amendment retaliation test,
we conclude the allegations here demonstrate that Eng’s First
Amendment rights were violated with respect to both Eng’s
comments about the leak to the IRS and Geragos’s statements
on Eng’s behalf to the press.
a. Whether Eng’s Speech Addressed Matters of Public
Concern
The Defendants did not argue below and have not argued
on appeal that Eng’s statements did not address a matter of
public concern. Accordingly, any such argument is waived.
See, e.g., Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008)
(defendant “waived this argument by failing to raise it either
in the district court or in his brief on appeal” (citing Nw.
Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918,
923 (9th Cir.1988))).
[11] In any event, there is little doubt that Eng’s speech did
address matters of public concern. “ ‘[C]ommunication[s] on
matters relating to the functioning of government’ . . . are
matters of inherent public concern.” Johnson v. Multnomah
County, Or., 48 F.3d 420, 425 (9th Cir.1995) (quoting McKin-
ley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (quot-
ing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
575 (1980) (plurality opinion))). The leaking of information
(whether true or false) about the School District’s lease-
purchase agreements to the IRS was therefore a matter of pub-
lic concern insofar as it led to the need for additional, more
expensive financing for the public school complex.
[12] Speech that is “ ‘relevan[t] to the public’s evaluation
of the performance of governmental agencies’ ” also
addresses matters of public concern. Freitag, 468 F.3d at 545(quoting Coszalter v. City of Salem, 320 F.3d 968, 973-74
528 ENG v. COOLEY
(9th Cir. 2003)). Here, the leaking of such statements, as well
as Geragos’s statements to the Los Angeles Times regarding
the retaliatory prosecution against Eng, were certainly “ ‘re-
levan[t] to the public’s evaluation of the performance of’ ” the
District Attorney’s office. Freitag, 468 F.3d at 545 (quoting
Coszalter, 320 F.3d at 973-74). We therefore conclude Eng’s
speech addressed matters of public concern.
b. Whether Eng Spoke as a Private Citizen
The Defendants expend great effort arguing that Eng’s
speech with respect to the IRS leak was “inextricably related
to his work,” and therefore that his speech was not protected
because it was uttered in his capacity as public employee. But
the district court determined that there is a genuine factual
dispute between the parties regarding whether Eng’s speech
about the IRS leaks was made as part of his Task Force duties
or as a private citizen. The district court’s determination that
the parties’ evidence presents genuine issues of material fact
is not reviewable on interlocutory appeal. Lee, 363 F.3d at
932. Once again, “[w]here disputed facts exist, . . . we can
determine whether the denial of qualified immunity was
appropriate [only] by assuming that the version of the mate-
rial facts asserted by the non-moving party is correct.” Jeffers,
267 F.3d at 903.
[13] Here, there can be no doubt that Eng’s version of the
facts plausibly indicates he had no official duty to complain
about any leak to the IRS or to authorize Geragos to speak to
the press about the retaliation being taken against him.
c. Whether the Adverse Employment Action Was Moti-
vated By Eng’s Speech
As a threshold matter, we must consider the full range of
adverse employment actions alleged in the complaint.
Although the Defendants correctly note that the district court
determined Eng was barred by the statute of limitations from
ENG v. COOLEY 529
recovering for any adverse employment actions taken before
January 1, 2003,4 whether any specific acts complained of are
time-barred is (like the third-party standing question) collat-
eral to the limited, interlocutory qualified immunity inquiry.
Whether a plaintiff brings an action in time to challenge cer-
tain conduct is irrelevant, that is, to the logically independent
question whether the state violated the plaintiff’s clearly
established rights. The applicability of the statute of limita-
tions is therefore not before us, and we will consider the full
range of adverse employment actions stated in Eng’s com-
plaint.
[14] The Defendants do not dispute that the initial investi-
gations and first suspension were motivated by Eng’s pro-
tected speech. They argue only that Eng’s transfer to the
juvenile division “was not motived by any subject speech”
and that “any argument by [Eng] that the 2003 suspension
was motivated by his attorney’s statements [to the press] was
unsupported by the evidence.” These assertions ignore, how-
ever, that we must assume resolution of the disputed facts in
Eng’s favor. Eng’s account of the meeting with Livesay and
Sowders, for example, plainly undermines the Defendants’
contrary assertion that the systematic investigations, prosecu-
tion, suspensions, and demotion of Eng were not motivated by
his speech. Eng’s further accounts of Cooley’s meetings with
his staff to discuss “a method of forcing David Eng out of the
District Attorney’s Office,” and Sowders’s threats to both Eng
and Geragos following publication of the Los Angeles Times
article, all also indicate that Eng’s speech was a “substantial
or motivating” factor in the adverse employment action.
4
We are skeptical that the district court was correct to apply the “dis-
crete acts” rather than “repeated conduct” analysis to, for example, the
ongoing investigations and prosecutions at issue in this case. See Amtrak
v. Morgan, 536 U.S. 101, 110-21 (2002) (distinguishing for statute of limi-
tations purposes between “[d]iscrete acts such as termination, failure to
promote, denial of transfer, or refusal to hire” and practices that “cannot
be said to occur on any particular day,” and instead “occur[ ] over a series
of days or perhaps years”).
530 ENG v. COOLEY
d. Pickering Balancing
Eng having passed the first three steps of the First Amend-
ment retaliation test, the burdens of evidence and persuasion
now shift to the Defendants to show that the balance of inter-
ests justified their adverse employment decision. But the
Defendants did not argue before the district court, and do not
argue before us now, that their interest in regulating Eng’s
speech was sufficient to outweigh Eng’s free speech interest.
They have therefore waived this argument. See, e.g., Butler,
528 F.3d at 642.
[15] In any event, Eng’s allegations show that the District
Attorney lacked adequate justification for treating Eng differ-
ently from other members of the public. The Defendants have
neither alleged nor offered any evidence to support a conclu-
sion that investigating, suspending, prosecuting, or transfer-
ring Eng for his speech was “necessary for [the District
Attorney’s office] to operate efficiently and effectively.” Gar-
cetti, 547 U.S. at 419 (citing Connick, 461 U.S. at 147).
Rather, viewing the allegations in the light most favorable to
Eng, the full range of adverse employment action appears to
have been a politically-motivated effort to silence Eng, who
stood to embarrass Cooley by undermining a central plank in
his campaign platform. On the record before us at this stage
in the case, the Defendants have not met their burden under
the Pickering balancing test.
e. Mt. Healthy But-For Causation
Rather than addressing Pickering, the Defendants argue
that they “would have reached the same [adverse employ-
ment] decision even in the absence of [Eng]’s protected con-
duct.” Thomas, 379 F.3d at 808 (quoting Ulrich, 308 F.3d at
976-77). They assert, for example, that Eng’s suspensions
would have been approved regardless of his protected speech
because they were in fact “due to the information gathered
from three separate internal investigations involving separate
ENG v. COOLEY 531
and independent allegations of misconduct.” This argument
ignores Eng’s allegations that the investigations and appar-
ently baseless charges were themselves motivated by his exer-
cise of his First Amendment rights.
The Defendants further assert that Eng’s performance on a
promotability review undermines a but-for connection
between his speech acts and his having been passed over for
promotion. But Eng alleges he received a low score on the
promotion review in part because his record contained accusa-
tions of sexual harassment and misuse of office computers—
accusations themselves motivated by his exercise of his First
Amendment rights.
[16] Taking Eng’s version of the facts as true, the Defen-
dants have therefore not met their burden to show that Eng’s
protected speech was not a but-for cause of the adverse
employment actions taken against him. In sum, Eng has prop-
erly alleged a violation of his constitutional rights.
B. Whether Eng’s Rights Were Clearly Established
1. The Clearly-Established Standard
[17] Passing the First Amendment retaliation test is only a
plaintiff’s first hurdle before defeating a motion for summary
judgment on qualified immunity. In addition to showing the
violation of a constitutional right, a plaintiff must also demon-
strate that the constitutional rights at issue were clearly estab-
lished at the time of the violation. The “clearly established”
requirement “operates ‘to ensure that before they are sub-
jected to suit, [government officials] are on notice their con-
duct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(quoting Saucier, 533 U.S. at 206). For a constitutional right
to be clearly established, “its contours ‘must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right’ ” at the time of his conduct. Id.
(citations omitted) (quoting Anderson v. Creighton, 483 U.S.
532 ENG v. COOLEY
635, 640 (1987)). If a plaintiff’s constitutional rights were not
clearly established at the time of the violation, then qualified
immunity should be granted.
2. Whether Eng’s Rights Were Clearly Established
a. Eng’s Speech about the Leak to the IRS
The Defendants did not argue before the district court, and
do not argue before this court now, that Eng’s rights were not
clearly established with respect to any speech not spoken pur-
suant to his official employment duties. Relying on Garcetti
(decided in 2006), the Defendants assert only that “the law
was not clearly established [in 2001] as to the nature of First
Amendment protection for public employee speech expressed
pursuant to official job duties.” This observation is beside the
point.
Garcetti makes clear that if Eng’s comments about the
leaks to the IRS were spoken pursuant to his official job
duties, then he cannot recover regardless of the state of the
law in 2001, since there is no private First Amendment inter-
est in “speech that owes its existence to a public employee’s
professional responsibilities.” 547 U.S. at 421. And if the
statements were not spoken pursuant to Eng’s job duties, the
Defendants do not dispute that Eng’s free speech interest was
clearly established.
[18] Nor could they. Garcetti concluded only that “work
product” that “owes its existence to [an employee]’s profes-
sional responsibilities” is not protected by the First Amend-
ment. Id. at 422. (Regulation of such speech “simply reflects
the exercise of employer control over what the employer itself
has commissioned or created.” Id. at 422.) Prior to Garcetti,
the Defendants therefore may have been uncertain whether
the Task Force report itself was protected, but only insofar as
they might reasonably have believed that it was protected
when in fact it was not. There could be no confusion, how-
ENG v. COOLEY 533
ever, that when Eng “comment[ed] upon matters of public
concern” “as a citizen” and not pursuant to his job responsi-
bilities, his speech was protected by the First Amendment—
that rule had long been the law of the land.5 See, e.g., Mt.
Healthy, 429 U.S. at 248 (quoting Pickering, 391 U.S. at
568). Thus, assuming Eng’s version of the facts to be true, he
had a clearly established right to comment on the leak to the
IRS.6
b. Eng’s Attorney’s Speech to the Press
[19] Geragos’s and Eng’s respective First Amendment
interests in Geragos’s speech to the press were also clearly
established at the time of the alleged retaliation. The clarity
of Geragos’s interest in his own speech (regardless of Eng’s
standing to vindicate that interest) is beyond dispute.
With respect to Eng’s personal interest, by 2003, the right
to retain and consult an attorney “implicate[d] . . . clearly
established First Amendment rights of association and free
speech.” DeLoach, 922 F.2d at 620. It was also clearly estab-
lished that “an individual’s First Amendment rights of associ-
ation and free speech are violated when a police officer
retaliates against her for retaining an attorney.” Malik, 191
F.3d at 1315. An individual’s personal First Amendment
5
Whether it was “clear” that Eng spoke pursuant to his job duties is a
question of fact and not law; the only question here is whether Eng’s free
speech right was “clearly established” as a matter of law, assuming his
version of the facts to be true.
6
We have previously characterized the Pickering balancing test as “a
context-intensive, case-by-case balancing analysis,” the outcome of which
is rarely clear; thus “the law regarding [First Amendment retaliation]
claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude
qualified immunity.” Dible v. City of Chandler, 515 F.3d 918, 930 (9th
Cir. 2008) (quoting Moran v. Washington, 147 F.3d 839, 847 (9th
Cir.1998)). Because the Defendants waived the Pickering balancing argu-
ment, we need not address whether the Defendants’ lack of justification
to treat Eng differently was clearly established.
534 ENG v. COOLEY
interest in his or her lawyer’s speech on his or her behalf is
a natural corollary of the First Amendment right to retain
counsel. Any other conclusion would eviscerate that right.
Velazquez had also been decided two years prior to Gera-
gos’s interview with the Los Angeles Times. That decision
recognized that a federal law seeking to prevent lawyers from
making certain arguments on behalf of their clients implicated
the client’s First Amendment rights. As the Sixth Circuit later
concluded, “Velazquez [did not] recognize a First Amendment
right personal to the attorney independent of his client,” and
lawyers’ free speech interests when advocating on behalf of
clients “[are] almost always grounded in the rights of the cli-
ent, rather than any independent rights of the attorney.” Mezi-
bov, 411 F.3d at 720.
[20] Although we have not previously addressed a case pre-
cisely like this one, “ ‘officials can still be on notice that their
conduct violates established law even in novel factual circum-
stances.’ ” Porter v. Bowen, 496 F.3d 1009, 1026 (9th Cir.
2007) (quoting Hope, 536 U.S. at 741); see also Hope, 536
U.S. at 741 (“Although earlier cases involving ‘fundamentally
similar’ facts can provide especially strong support for a con-
clusion that the law is clearly established, they are not neces-
sary to such a finding.”). Because this case involved “mere
application of settled law to a new factual permutation,” Por-
ter, 496 F.3d at 1026, we conclude that Eng’s personal First
Amendment interest in Geragos’s speech was clearly estab-
lished by 2003. Denius, DeLoach, and Velazquez were suffi-
cient to put the Defendants on notice of the common sense
conclusion that the government may not retaliate against a
public employee for speech spoken by the employee’s lawyer
on the employee’s behalf.
IV. CONCLUSION
The district court’s partial denial of qualified immunity is
affirmed in full.
AFFIRMED.