Bruce Anderson v. State of Texas , 845 F.3d 580 ( 2016 )

Case: 15-40836 Document: 00513754297 Page: 1 Date Filed: 11/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40836
Fifth Circuit
FILED
November 9, 2016
BRUCE M. ANDERSON, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
ROGELIO VALDEZ, In his Individual and Official Capacities,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CV-426
Before JONES, WIENER, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge*
Plaintiff-Appellee Bruce M. Anderson brought this action against
Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth
Court of Appeals (“Thirteenth Court”), asserting an individual and official
capacity claim under 42 U.S.C. § 1983. Anderson alleges that, after he sent a
letter to the Texas Supreme Court and filed a disciplinary complaint with the
State Commission on Judicial Conduct describing what he believed to be
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-40836 Document: 00513754297 Page: 2 Date Filed: 11/09/2016
No. 15-40836
malfeasance by Chief Justice Valdez, Valdez prevented another justice on the
Thirteenth Court from hiring Anderson as a “briefing attorney,” viz., a law
clerk. He further alleges that, in so doing, Valdez retaliated against him for
exercising his right to free speech under the First Amendment. Valdez moved
to dismiss, asserting that Anderson had failed to state a claim and that Valdez
is entitled to qualified immunity. The district court denied the motion, and
Valdez timely filed an interlocutory appeal pursuant to the collateral
order doctrine.
I.
FACTS & PROCEEDINGS
A. FACTS
Anderson, who has been licensed to practice law in the state of Texas
since 1984, served as an assistant district attorney in Hidalgo County before
being hired as a briefing attorney at the Thirteenth Court in 1988. Anderson
alleges that, “[b]ecause of [his] productivity and success,” 1 he was later
promoted to the position of senior briefing attorney and then to that of research
attorney. In 1996, J. Bonner Dorsey, another justice on the Thirteenth Court,
hired Anderson as a staff attorney. Justice Dorsey retired in 2002, after which
Anderson left the court to serve as an assistant district attorney, this time in
Nueces County.
Early in 2007, Rose Vela, yet another justice of the Thirteenth Court,
hired Anderson as her briefing attorney. He remained in that position until
she retired in late 2012. Anderson alleges that, as Justice Vela’s briefing
attorney, his “job duties included researching and writing memoranda on
appeals and original proceedings pending before the Thirteenth Court,
1The facts—and quoted language—constitute Anderson’s allegations. In this posture,
we assume that those allegations are true.
2
Case: 15-40836 Document: 00513754297 Page: 3 Date Filed: 11/09/2016
No. 15-40836
participating in case conferences, making recommendations to Justice Vela
regarding pending motions, and performing routine administrative duties.” He
expressly alleges that his “official duties” did not include reporting judicial
malfeasance by a justice on that court to the Texas Supreme Court or to the
State Commission on Judicial Conduct.
According to Anderson, “[i]n early 2012, Justice Vela asked Anderson to
come into her office for a meeting.” “During this meeting, [she] told Anderson
that she had concerns about the conduct of . . . [Chief Justice] Valdez.”
Specifically, “Vela told Anderson that she had examined the [Thirteenth]
Court’s financial records concerning its Filing Fee Fund and . . . Valdez’s
campaign finance records, and concluded that . . . Valdez had been obtaining
double reimbursements from both the [Thirteenth] Court’s Filing Fee Fund
and his political campaign for the same travel expenses.” She explained that
“[t]hese records demonstrated that, on ten different occasions, [Valdez] posted
the same travel expenses to both his political campaign and the [Thirteenth]
Court’s Filing Fee Fund.” “Because of Anderson’s experience in criminal law,
Justice Vela asked Anderson whether, in Anderson’s personal opinion, Valdez’s
conduct violated any [Texas] laws.” He told her that he believed it had. Vela,
however, “did not report, nor ask Anderson to report, [Valdez] to
the authorities.”
But Anderson alleges that he “was disturbed by the possibility that
[Valdez, the chief justice,] had violated Texas law,” so he sent a letter “on his
own initiative” to Wallace Jefferson, then the chief justice of the Texas
Supreme Court, in late 2012. Anderson asserts that, in that letter, he told Chief
Justice Jefferson “that he had ‘concerns [about] the possible violation of the
Texas Penal Code by . . . Valdez’ . . . . and that . . . he ‘did not know who else to
report it to.’” He asked Chief Justice Jefferson to provide him with the name of
3
Case: 15-40836 Document: 00513754297 Page: 4 Date Filed: 11/09/2016
No. 15-40836
the individual or entity “responsible for investigating such allegations” and “to
keep the letter confidential because [he] was concerned that he would be
retaliated against if anyone at the Thirteenth Court . . . learned that he ‘was
revealing possible damaging information about . . . Valdez’s handling of the
court’s finances.’”
About one week later, Jennifer L. Cafferty, general counsel to the Texas
Supreme Court, responded to Anderson’s letter to Chief Justice Jefferson,
“inform[ing] him that his concerns about . . . Valdez may be reported to the
State Commission on Judicial Conduct and/or local law enforcement.” A week
or so after that, “Anderson sent a letter to the State Commission on Judicial
Conduct.” The letter to the Commission was “nearly identical” to that he had
sent to Chief Justice Jefferson. The commission responded a few weeks later,
“indicat[ing] that it would commence an investigation into the allegations
contained in Anderson’s letter” (that is, the disciplinary complaint).
In early 2013, Royce LeMoine, an investigator with the Commission,
contacted Vela, who had since retired as a justice, “to inquire whether she had
information relating to [Valdez’s] charging duplicate expenses to both the
taxpayer-funded account of the Thirteenth Court and his political campaign
fund.” Vela responded to LeMoine soon after and “provided him with various
documents supporting her belief that [Valdez] had obtained double
reimbursements.” The Commission “then referred the matter” to the district
attorney in Travis County “for potential prosecution.” (As of early 2015, the
Commission’s investigation was still “ongoing.”)
Early in 2014, Anderson applied to Justice Gregory T. Perkes, also on
the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 2014,
Anderson interviewed with Perkes. Anderson alleges that Perkes told him that
“he was the most qualified of all the applicants” and that “‘the job [was his] if
4
Case: 15-40836 Document: 00513754297 Page: 5 Date Filed: 11/09/2016
No. 15-40836
[he] want[ed] it.’” Anderson says that he “quickly replied,” telling Perkes that
he would “take it.” Anderson stresses that “Perkes and [he] then agreed that
[he] would start on May 12” and also agreed on his compensation. He also
indicates that, soon afterward, Perkes e-mailed the other justices “to inform
them of his hiring decision, stating ‘I am hiring Bruce Anderson as my Senior
Staff Attorney.’”
Anderson asserts that “the [Thirteenth] Court’s practice and
procedure . . . allow[ed] each justice to mak[e] all [their own] hiring decisions
related to their individual chambers” and there had been no “other occasion
when one [justice] was permitted to interfere with another [justice]’s hiring
decisions.” Anderson further asserts that, despite this, “[Valdez] told all of the
[j]ustices not to allow Anderson to work for Justice Perkes.” He said that he
did so “because Anderson had filed a complaint against [him] with the State
Commission on Judicial Conduct.” After Valdez became aware that “Perkes
had hired Anderson,” Valdez “began searching for excuses to interfere with
Anderson’s hiring.” This included “ask[ing] a [Thirteenth Court] employee to
research [the] opinions” Anderson had written “while he worked for the
Thirteenth Court” and to “look into the other applicants for the position” with
Perkes. “Valdez [also] convened a meeting, wherein he asked all six justices on
the Thirteenth Court of Appeals to vote on whether Anderson should be
permitted to work for Justice Perkes.”
Anderson contends that, on May 8, several days before Anderson was to
start working for Perkes, he “received a call from an agent of the Thirteenth
Court, who informed him that despite his acceptance of Justice Perkes’s offer
on May 2, [he] did not have a job with the Court.” Although “[t]he agent did not
provide any reason . . . , [i]t [was] clear” that Valdez “had knowledge that
Anderson [had] filed a complaint against [him] with the State Commission on
5
Case: 15-40836 Document: 00513754297 Page: 6 Date Filed: 11/09/2016
No. 15-40836
Judicial Conduct and that [Valdez] interfered in Anderson’s hiring because of
the [disciplinary] complaint.” In an e-mail, Valdez told staff at the Thirteenth
Court to “call [him] to address [his] decision on [Anderson].” The following day,
May 9, “Justice Perkes texted former Justice Vela, ‘[Valdez] went to war over
Bruce [Anderson] and all of the rest of the justices cowtowed to [his] wishes.’”
When Vela asked the reason, “Justice Perkes responded that ‘the only thing I
can think of is that he got wind of [Anderson] and the investigation.’”
B. PROCEEDINGS
Anderson filed this suit against Valdez in his individual and official
capacities under 42 U.S.C. § 1983, alleging that he violated Anderson’s right
to free speech. Anderson specifically alleged that Valdez’s refusal to allow
Perkes to hire him constituted retaliation for the complaints he had made to
the Texas Supreme Court and the State Commission on Judicial Conduct.
Valdez then moved to dismiss. Anderson responded in opposition and also
requested leave to amend his complaint. Valdez opposed the request. The
district court granted Anderson leave to amend and denied Valdez’s motion to
dismiss as moot. Valdez then moved to dismiss the amended complaint, and
Anderson again responded in opposition. The district court granted Valdez’s
motion as to Anderson’s request for declaratory relief, but otherwise denied it
on its merits. Valdez timely filed a notice of interlocutory appeal.
II.
ANALYSIS
A. JURISDICTION
Valdez contends that, in resolving his motion to dismiss, the district
court erred in determining that Anderson had stated a claim against him and
that he could not avail himself of a qualified immunity defense. We have
jurisdiction over an interlocutory appeal of a district court’s denial of qualified
6
Case: 15-40836 Document: 00513754297 Page: 7 Date Filed: 11/09/2016
No. 15-40836
immunity pursuant to the collateral order doctrine. 2 We have pendant
appellate jurisdiction “in rare and unique circumstances where a final
appealable order is ‘inextricably intertwined’ with an unappealable order or
where review of the unappealable order is necessary to ensure meaningful
review of the appealable order.” 3 Because the district court’s determination
regarding Valdez’s defense depended on its determination that Anderson had
adequately stated a claim for retaliation, we exercise jurisdiction over both.
B. STANDARD OF REVIEW
We review a district court’s ruling on a motion to dismiss de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” 4 To prevail against a defendant’s motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff’s complaint
“must contain sufficient factual matter, [if] accepted as true, to ‘state a claim
to relief that is plausible on its face.’” 5 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 6 “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory [sic]
statements, do not suffice.” 7 Although a complaint “does not need detailed
factual allegations,” the “allegations must be enough to raise a right to relief
2 See Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401, 406 (5th Cir. 2007) (“Denial
of . . . qualified immunity grounds typically falls within the collateral order doctrine, an
exception to the final judgment rule.”).
3 Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998).
4 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (internal
quotation marks omitted).
5Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
6 Id.
7 Id.
7
Case: 15-40836 Document: 00513754297 Page: 8 Date Filed: 11/09/2016
No. 15-40836
above the speculative level.” 8 “[C]onclus[ional] allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” 9 Further, “[w]hen reviewing a denial of qualified immunity on an
interlocutory appeal, we are restricted to determinations ‘of question[s] of law’
and ‘legal issues,’ and we do not consider ‘the correctness of the plaintiff’s
version of the facts.’” 10 “Only these issues of law qualify as appealable ‘final
decisions’ before a final judgment.” 11
C. CLAIM
As a preliminary matter, Valdez suggests that Anderson’s claim is
subject to a heightened pleading standard because Valdez’s Rule
12(b)(6) motion to dismiss asserts a defense of qualified immunity. But, as
Anderson correctly notes, Valdez misconstrues this court’s precedent in
Shultea v. Wood. 12 We explained in Shultea that when, as here, a qualified
immunity defense is asserted in an answer or motion to dismiss, “the district
court must”—as always—do no more than determine whether the plaintiff has
“file[d] a short and plain statement of his complaint, a statement that rests on
more than conclusions alone.” 13 In so doing, we expressly required the district
court to apply “Rule 8(a)(2)’s ‘short and plain’ standard” to the complaint. 14
After applying this general pleading standard to the complaint, “the court may
8 Twombly, 550 U.S. at 555 (citation omitted).
9Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Fernandez-
Montes v. Allied Pilots Ass’n, 987 F.2d 278 (5th Cir. 1993)).
10 Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251–52 (5th Cir. 2005) (second
alteration in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).
11 Id. at 252.
12 Shultea v. Wood, 47 F.3d 1427 (5th Cir. 1995).
13 Id. at 1433.
14 Id.
8
Case: 15-40836 Document: 00513754297 Page: 9 Date Filed: 11/09/2016
No. 15-40836
[then], in its discretion, insist that a plaintiff file a reply tailored to [the
defendant’s] answer [or motion to dismiss] pleading the defense of qualified
immunity.” 15 Even if the district court does so insist, Shultea requires it to
apply the Rule 8(e)(1)’s standard to the reply, emphasizing that it is “[t]he
only . . . Rule that governs the content of . . . replies.” Unlike Rule 8(a)(2), Rule
8(e)(1) “demands that ‘[e]ach averment of a pleading shall be simple, concise,
and direct.’” 16 Shultea further clarifies that the heightened pleading standard
derived from Rule 9 does not apply to the complaint or to any reply merely
because an answer or motion to dismiss asserts a defense of qualified
immunity. 17 We therefore apply the general pleading standard derived from
Rule 8(a)(2) in considering whether a plaintiff has stated a retaliation claim. 18
In applying that general pleading standard, we consider whether
Anderson has, in fact, stated such a claim. “To establish a § 1983 claim for
employment retaliation related to speech, a plaintiff-employee must show:
(1) he suffered an adverse employment action; (2) he spoke as a citizen on a
matter of public concern; (3) his interest in the speech outweighs the
government’s interest in the efficient provision of public services; and (4) the
speech precipitated the adverse employment action.” 19
15 Id. at 1433–34 (emphasis added).
16 Id. at 1433 (quoting FED. R. CIV. P. 8(e)(1)).
17Id. at 1434. Stated differently, even though the complaint and any reply are subject
to distinct standards, neither standard is altered when a defendant files a responsive
pleading asserting a qualified immunity defense.
18 See Cox v. Kaelin, 577 F. App’x 306, 312–13 (5th Cir. 2014) (unpublished)
(“Regarding [the defendant’s] claimed defense of qualified immunity, he argues that a
heightened pleading standard applies when the defense of qualified immunity is asserted,
relying on Schultea v. Wood. [His] argument, however, misreads this Court’s opinion in that
case.” (citation omitted)).
19 Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007) (citations
omitted) (internal quotation marks omitted).
9
Case: 15-40836 Document: 00513754297 Page: 10 Date Filed: 11/09/2016
No. 15-40836
We begin by addressing the fourth element, viz., whether Anderson’s
speech precipitated the adverse employment action. We then proceed to the
second and third elements, viz., whether Anderson spoke as a citizen on a
matter of public concern and—if so—whether his interest in that speech
outweighed the government’s interest. We need not address the first element,
viz., whether Anderson suffered an adverse employment action, because
Valdez does not contest it. 20
1. FOURTH ELEMENT
Valdez argues that Anderson has not satisfied the fourth element of his
retaliation claim because he failed to allege that Valdez knew Anderson had
written a letter to the Texas Supreme Court or had filed a disciplinary
complaint with the State Commission on Judicial Conduct which discussed
Valdez’s purported malfeasance. Yet, even a cursory reading of the complaint
demonstrates that Anderson has adequately alleged that Valdez knew of
Anderson’s letter and complaint. In fact, Anderson expressly alleged that
Valdez “had knowledge that Anderson filed a complaint against [Valdez] with
the State Commission on Judicial Conduct . . . .” He further pleaded that,
according to Justice Perkes, “because Anderson had filed a complaint against
[Valdez] with the State Commission on Judicial Conduct, [Valdez] told all of
the Justices not to allow Anderson to work for [Perkes].” 21 He also alleged that,
even though each justice was entitled to hire his or her own staff, Valdez
20 In any event, “[a]dverse employment actions are discharges, demotions, refusals to
hire, refusals to promote, and reprimands.” Breaux v. City of Garland, 205 F.3d 150, 157 (5th
Cir. 2000) (quoting Pierce v. Tex. Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146,
1149 (5th Cir. 1994)). The action here qualifies because Valdez blocked Anderson’s being
hired.
21Anderson also alleges: “On May 9, 2014, Justice Perkes texted former Justice Vela,
“Roy [Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed
to Roy’s wishes.” (alterations in original). Taken as true, this merely suggests that Perkes
assumed that Valdez knew about Anderson’s letter and complaint on May 9, 2014.
10
Case: 15-40836 Document: 00513754297 Page: 11 Date Filed: 11/09/2016
No. 15-40836
interfered with Perkes’s decision to do so and that this was Valdez’s decision
alone. When all of these contentions are accepted as true, they clearly
demonstrate that Chief Justice Valdez knew of the disciplinary complaint.
Anderson is not required to allege how Valdez knew, only that he knew. 22
Despite this, Valdez also contends that when Anderson’s allegations that
the letter and disciplinary complaint were confidential are taken as true, they
foreclose the possibility that Valdez could have known about them. In
particular, Valdez states that, by “admit[ing] that [Anderson] asked Chief
Justice Jefferson to keep his letter confidential and fail[ing] to allege that his
letter was known to anyone other than Chief Justice Jefferson and [the Texas]
Supreme Court’s General Counsel,” he consequentially admits that Valdez did
not know about the letter. Valdez further asserts that “the mere possibility
that . . . [he] could [have] learn[ed] of Anderson’s [disciplinary] complaint to
the State Commission on Judicial Conduct is not sufficient to nudge Anderson’s
allegations over the line from possibility to plausibility.” Anderson, of course,
disputes all of this.
Valdez misses the mark. With regard to the letter, Anderson’s allegation
is that he asked Chief Justice Jefferson to keep the letter confidential, not that
Chief Justice Jefferson actually did so. In fact, Anderson alleged that Chief
Justice Jefferson did not answer the letter himself, establishing that the letter
had not remained confidential.
With regard to the disciplinary complaint, Valdez contends that Texas
law requires the Commission on Judicial Conduct to keep such complaints
confidential. But this misstates that law. Although “the papers filed with and
proceedings before the commission are confidential prior to the filing of formal
22See Cox, 577 F. App’x at 312 (“[The employee] pleads that his [speech] was ‘known,’
and thus it is plausible that his [speech] motivated his eventual termination.”).
11
Case: 15-40836 Document: 00513754297 Page: 12 Date Filed: 11/09/2016
No. 15-40836
charges,” this is subject to specified exceptions. 23 One such exception states:
“On the filing of a written request by a judge, the commission may release to
the person designated in the request, including the judge, the number, nature,
and disposition of a complaint filed against the judge with the
commission . . . .” 24 “[T]he commission may”—but is not required to—“refuse to
release the identity of a complainant” if such a request is made. 25 Likewise,
“the commission may”—but is not required to—“keep the complainant’s
identity confidential” if the complainant so requests. 26 At most, this establishes
a process that the State Commission on Judicial Conduct is instructed to
follow, not the process that it did follow. As with the letter, Anderson has not
alleged that the State Commission on Judicial Conduct did, in fact, keep the
complaint confidential. 27
Anderson was not required to allege how Valdez knew of the letter and
complaint, 28 only that Valdez knew. Having done so, he has sufficiently
pleaded that his letter and his disciplinary complaint precipitated Valdez’s
allegedly untoward conduct.
2. SECOND & THIRD ELEMENTS
Valdez next asserts that Anderson is unable to satisfy the second and
third elements of his retaliation claim, viz., whether Anderson spoke as a
23 TEX. GOV’T CODE ANN. § 33.032(a).
24 Id. § 33.032(e).
25 Id. (emphasis added).
26 Id. § 33.0321 (emphasis added).
27Even if Anderson had alleged that the State Commission on Judicial Conduct kept
the complaint confidential, Anderson also alleges that others—including Vela, Perkes,
Cafferty, Lemoine, and the Travis County District Attorney’s Office—were aware of it. Valez
may have become aware of it from any of them, as well.
See Cox, 577 F. App’x at 312 (“[The employee] pleads that his [speech] was ‘known,’
28
and thus it is plausible that his [speech] motivated his eventual termination.”).
12
Case: 15-40836 Document: 00513754297 Page: 13 Date Filed: 11/09/2016
No. 15-40836
citizen on a matter of public concern and—if so—whether his interest in that
speech outweighed the government’s interest. Valdez claims that, by sending
the letter and filing the complaint, Anderson was acting pursuant to his official
duties as a public employee, so his speech was unprotected. Valdez suggests
more specifically that Anderson’s ethical duties as a lawyer—including his
duty to report malfeasance—were incorporated into his official duties as a
public employee. Anderson disputes this.
In Pickering v. Board of Education, the Supreme Court noted that “[t]he
problem in any case is to arrive at a balance between the interests of the [public
employee], as a citizen, in commenting upon matters of public concern and the
interest of the [public employer], as an employer, in promoting the efficiency of
the public services it performs through its employees.” 29 Before balancing those
interests, however, it is necessary to engage in a threshold inquiry regarding
whether the public employee spoke as a citizen at all. This question is resolved
with reference to Garcetti v. Ceballos, 30 in which the Supreme Court adjured
that, “when public employees [speak] pursuant to their official duties, [they]
are not speaking as citizens . . . .” 31 Such “[j]ob-required speech is not
protected,” even when it irrefutably addresses a matter of public concern. 32
Garcetti begins by recognizing that “public employees do not surrender
all their First Amendment rights by reason of their employment.” 33 It then
29 391 U.S. 563, 568 (1968).
30 547 U.S.410, 419 (2006).
31 Id. at 421.
32 Will. v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692–93 (5th Cir. 2007)
(“Pickering, however, is now inapposite. The Supreme Court’s recent pronouncement in
Garcetti v. Ceballos added a threshold layer to the Pickering balancing test. Under Garcetti,
we must shift our focus from the content of the speech to the role the speaker occupied when
he said it.” (citation omitted)).
33 Garcetti, 547 U.S. at 417.
13
Case: 15-40836 Document: 00513754297 Page: 14 Date Filed: 11/09/2016
No. 15-40836
explains that there are “two inquiries to guide interpretation of the
constitutional protections accorded to public employee speech” 34: (1) “whether
the employee spoke as a citizen on a matter of public concern” 35 and, if so,
(2) “whether the [public employer] had an adequate justification for treating
the employee differently from any other member of the general public.” 36
Garcetti notes that the “overarching objectives” of these inquiries “are
evident.” 37 “When a citizen enters government service, the citizen by necessity
must accept certain limitations on his or her freedom.” 38 This is because the
public employer, like any principal, has an interest in controlling the activities
of its agents. Those activities include the employee’s speech. A public employer
necessarily has an interest in (1) requiring speech by its employees that
enables “the efficient provision of public services,” and (2) prohibiting speech
that does not, including that which “contravene[s] [the public employer’s]
policies or impair[s] the proper performance of [its] functions.” 39 Even if the
employer has such an interest, however, that interest must still be balanced
against the employee’s own interests: “[A] citizen who works for the
government is nonetheless a citizen,” and “[t]he First Amendment limits the
34 Id. at 418 (citing Pickering, 391 U.S. at 574).
35 Id.
36 Id.
37 Id.
38 Id.
39 Id. at 419. The latter justification appears to prevent confusion over whether a
public employee who routinely speaks on behalf of the government is, in fact, speaking on
behalf of the government or on his or her own behalf. As discussed infra, Garcetti expounds
on this.
14
Case: 15-40836 Document: 00513754297 Page: 15 Date Filed: 11/09/2016
No. 15-40836
ability of a public employer . . . to restrict, incidentally or intentionally, the
liberties employees enjoy in their capacities as private citizens.” 40
Garcetti holds that, “[w]ith these principles in mind,” an employer may
restrict the employee’s speech only when it is made “pursuant to [the
employee’s] official duties.” 41 Such a limit, it noted, is justified by the
employer’s interest in disciplining, viz., controlling, its employees. 42 Stated
differently, Garcetti decided that, with regard to speech made pursuant to a
public employee’s official duties, the public employer’s interest automatically
outweighs the employee’s, which is therefore unprotected.
Garcetti itself noted that the scope of its holding is not limitless. For
instance, a public employee does not speak pursuant to his official duties
merely because he speaks while at work. 43 Likewise, a public employee does
not speak pursuant to his official duties merely because he speaks about work.
To the contrary, Garcetti reiterated that “[t]he First Amendment protects some
[speech] related to the speaker’s job.” 44 Still further, Garcetti noted that a
public employee does not speak pursuant to his official duties when his speech
is analogous to that of a citizen’s speech. In particular, Garcetti stated that
“[w]hen a public employee speaks pursuant to employment
responsibilities . . . there [will be] no relevant analogue to speech by citizens
40 Id.
41 Id. at 420–21 (emphasis added).
42 Id. at 421 (“We hold that when public employees make statements pursuant to their
official duties . . . the Constitution does not insulate their communications from employer
discipline.”); Discipline, MERRIAM-WEBSTER, http://www.merriam-
webster.com/dictionary/discipline (defining “discipline” as “control gained by enforcing
obedience or order” or “a rule or system of rules governing conduct or activity”).
43 Id. at 420–21. While such speech might very well relate to the employee’s official
duties, it is not necessarily made pursuant to those duties.
44 Id. at 421.
15
Case: 15-40836 Document: 00513754297 Page: 16 Date Filed: 11/09/2016
No. 15-40836
who are not [public] employees.” 45 Accordingly, when there is an analogue to
speech by citizens who are not public employees, the employee does not speak
pursuant to his official duties, but as a citizen. 46 Speech made “outside the
course of performing [the public employee’s] official duties . . . is the kind of
activity engaged in by citizens” and, therefore, not subject to the threshold
inquiry in Garcetti. 47 Therefore, “[w]hen an employee speaks as a citizen, . . .
the First Amendment requires a delicate balancing of the competing interests
surrounding the speech and its consequences” under Pickering. 48 “When,
however, the employee is simply performing his or her job duties, there is no
warrant for a similar degree of scrutiny,” and Garcetti may supplant analysis
under Pickering. 49
For this reason, Garcetti’s scope is obviously not as broad as Valdez
suggests. Instead, Garcetti merely allows the public employer to control an
employee’s speech if made pursuant to the employee’s official duties. 50 That is
45 Id. at 424.
46 In Reilly v. City of Atlantic City, the Third Circuit explained that, when an
individual’s official duties as a public employee overlap with his duties as a citizen, the
individual speaks as a citizen. 532 F.3d 216, 231 (3d Cir. 2008) (“That an employee’s official
responsibilities provided the initial impetus to [speak] is immaterial to his/her independent
obligation as a citizen . . . . When a government employee testifies truthfully, s/he is not
‘simply performing his or her job duties,’ rather, the employee is acting as a citizen.” (quoting
Garcetti, 547 U.S. at 423)). In Lane v. Franks, the Supreme Court “resolve[d] discord”
between the Eleventh and Third Circuits in favor of Reilly. Lane v. Franks, 134 S. Ct. 2369,
2377 (2014).
47 Garcetti, 547 U.S. at 423.
48 Id.
49 Id.
50 Whether a public employee spoke pursuant to his job duties, viz., as a public
employee or as a citizen, is a threshold inquiry. In considering it, we do not also consider
whether the employee spoke on a matter of public concern. Williams v. Dallas Indep. Sch.
Dist., 480 F.3d 689, 693 (5th Cir. 2007).
16
Case: 15-40836 Document: 00513754297 Page: 17 Date Filed: 11/09/2016
No. 15-40836
to say, speech is within an employer’s control if it is made pursuant to the
employee’s official duties.
Garcetti repeatedly used the “speech made pursuant to the employee’s
official duties” formulation. 51 Even though Garcetti itself “did not explicate
what it means to speak ‘pursuant to’ one’s ‘official duties,’” 52 it did clearly
establish what it does not mean: “The [public employee’s speech] concerned the
subject matter of [his] employment, but this . . . is nondispositive. The First
Amendment protects some expressions related to the speaker’s job.” 53 This was
reaffirmed, not disrupted, by Lane v. Franks. 54
51 See, e.g. Garcetti, 547 U.S. at 413 (“The question presented by the instant case is
whether the First Amendment protects a government employee from discipline based on
speech made pursuant to the employee’s official duties.” (emphasis added)); id. at 421 (“The
controlling factor in [the public employee’s] case is that his [speech was] made pursuant to
his duties . . . .” (emphasis added)); id. (“We hold that when public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.” (emphasis added)); id. at 423 (“The court [below] suggested it
would be inconsistent to compel public employers to tolerate certain employee speech made
publicly but not speech made pursuant to an employee’s assigned duties. This objection
misconceives the theoretical underpinnings of our decisions.” (citation omitted) (emphasis
added)); id. at 424 (“When a public employee speaks pursuant to employment responsibilities,
however, there is no relevant analogue to speech by citizens who are not government
employees.” (emphasis added)); id. (“It relates only to the expressions an employee makes
pursuant to his or her official responsibilities, not to statements or complaints . . . that are
made outside the duties of employment.” (emphasis added)); id. (“Proper application of our
precedents thus leads to the conclusion that the First Amendment does not prohibit
managerial discipline based on an employee’s expressions made pursuant to official
responsibilities.” (emphasis added)); id. at 426 (“Our precedents do not support the existence
of a constitutional cause of action behind every statement a public employee makes in the
course of doing his or her job.” (emphasis added)).
52 Williams, 480 F.3d at 692.
53 Garcetti, 547 U.S. at 421.
54 Lane v. Franks, 134 S. Ct. 2369, 2379 (2014) (“But Garcetti said nothing about
speech that simply relates to public employment or concerns information learned in the
course of public employment. [It] made explicit that its holding did not turn on the fact that
the [speech] at issue ‘concerned the subject matter of [public employee’s] employment,’
because ‘[t]he First Amendment protects some expressions related to the speaker’s
job.’ . . . “The critical question under Garcetti is whether the speech at issue is itself ordinarily
17
Case: 15-40836 Document: 00513754297 Page: 18 Date Filed: 11/09/2016
No. 15-40836
In Williams v. Dallas Independent School District, we explained that a
public employee’s speech is made pursuant to his official duties when that
speech is “made in the course of performing his employment,” whether or not
that speech was specifically “demanded of him.” 55 We did not, as the dissent
suggests, expand this to include speech that merely related to the public
employee’s official duties, muddying the instruction in Garcetti.
In Williams, we began with a broad inquiry: “[W]e must determine the
extent to which, under Garcetti, a public employee is protected by the First
Amendment if his speech is not necessarily required by his job duties but
nevertheless is related to his job duties.” 56 Yet, we eventually adopted a much
narrower holding: “We thus hold that” the public employee’s speech was made
“in the course of performing his job . . . .” 57 (This formulation is used in Garcetti,
as well. 58) It is therefore clear “[u]nder Garcetti and Williams, . . . that [a public
employee’s speech] is not protected by the First Amendment [if] it was
made . . . during the course of performing his job.” 59
When the Supreme Court revisited Garcetti in Lane, it reiterated that
“[t]he critical question under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether it merely
within the scope of an employee’s duties, not whether it merely concerns those duties.”
(quoting Garcetti, 547 U.S. at 421)).
55 Williams, 480 F.3d at 694.
56 Id. at 693 (emphasis added).
57Id. at 694 (emphasis added); see Nixon v. City of Houston, 511 F.3d 494, 498 (5th
Cir. 2007) (noting that, in Williams, we “ultimately concluded that ‘[a]ctivities undertaken in
the course of performing one’s job are activities pursuant to official duties’” (quoting Williams,
430 F.3d at 694)).
58 Garcetti, 547 U.S. at 423.
Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. 2007); see Davis v. McKinney,
59
518 F.3d 304, 313 (5th Cir. 2008) (reiterating that “[a]ctivities undertaken in the course of
performing one’s job are activities pursuant to official duties . . . .”).
18
Case: 15-40836 Document: 00513754297 Page: 19 Date Filed: 11/09/2016
No. 15-40836
concerns [read: relates to] those duties.” 60 Although Lane added “ordinarily” to
the formulation used in Garcetti and Williams, we have since noted that,
“whatever change in the jurisprudence ‘ordinary’ may augur, we are unable to
discern any change in Garcetti’s rule from Lane . . . , for any change resulting
from Lane cannot be said to have been ‘clearly established.’” 61
In some instances, state law is “relevant insofar as it describes the
plaintiff’s position, including his duties and the way he is hired, supervised and
fired.” 62 We believe it offers some insight here, as well. Texas, for instance,
has adopted the Restatement (Third) of Agency, which explains that “[a]n
employee acts within the scope of employment when performing work assigned
by the employer or engaging in a course of conduct subject to the employer’s
control.” 63 It likewise provides that “[a]n employee’s act is not within the scope
of employment when it occurs within an independent course of conduct not
intended by the employee to serve any purpose of the employer.” 64 When an
employee was not actually “performing work assigned by the employer,” he
nonetheless might have acted within the scope of his employment—or
60 Lane v. Franks, 134 S. Ct. 2369, 2379 (2014) (emphasis added).
61 Gibson v. Kilpatrick, 773 F.3d 661, 669 (5th Cir. 2014).
62Calderon v. Martin Cnty., 639 F.2d 271, 273 (5th Cir. 1981); see Muhammad v.
Dallas Cnty. Cmty. Supervision & Corr. Dep’t, 479 F.3d 377, 380 (5th Cir. 2007).
63RESTATEMENT (THIRD) OF AGENCY § 7.07 (2006) (emphasis added); see Bohnsack v.
Varco, L.P., 668 F.3d 262, 273 (5th Cir. 2012).
64 RESTATEMENT (THIRD) OF AGENCY § 7.07. The Restatement of Employment Law
notes that the “general test of employee status” requires, in part, that “the employer controls
the manner and means by which the individual renders services, or the employer otherwise
effectively prevents the individual from rendering those services [independently].”
RESTATEMENT OF EMPLOYMENT LAW § 1.01. “Under that test, it is generally the case that a
principal with the right or ability to control how an agent’s work is performed is an ‘employer’
and the agent is an ‘employee.’” Id., cmt. d.
19
Case: 15-40836 Document: 00513754297 Page: 20 Date Filed: 11/09/2016
No. 15-40836
pursuant to his official duties—if he was “engaging in a course of conduct
subject to the employer’s control.” 65
A public employee, therefore, might speak pursuant to his official duties
when he does so in a course of conduct subject to the employer’s control, even
if the employer has not actually directed him to speak, not to speak, or how to
speak. If the employer was entitled to exercise such control, the speech is made
pursuant to the employee’s official duties; if the employer was not entitled to
exercise such control, the speech is not made pursuant to the employee’s official
duties. Whether the employer was entitled to control the employee’s speech
determines whether that speech was made pursuant to the employee’s
official duties.
The circumstances in Garcetti itself illustrate this focus on whether the
employer was entitled to exercise control. There, an employer disciplined an
employee for speech made pursuant to the employee’s official duties as a
prosecutor. The speech, a memorandum, was made for the benefit of the
employer. It was, in essence, the employer’s speech, not the employee’s own.
The employer, not the employee, was entitled to control it. Just as the employer
had directed the employee to create it, the employer could also direct the
employee to alter or discard it. If the employee refused, the employer was
entitled to discipline him. “Restricting speech that owes its existence to a public
employee’s professional responsibilities does not infringe any liberties the
employee might have enjoyed as a private citizen.” 66 Instead, “[i]t simply
reflects the exercise of employer control over what the employer itself has
commissioned or created.” 67
65 RESTATEMENT (THIRD) OF AGENCY § 7.07.
66 Garcetti, 547 U.S. at 421–22.
67 Id.
20
Case: 15-40836 Document: 00513754297 Page: 21 Date Filed: 11/09/2016
No. 15-40836
As Garcetti explained, “[t]he controlling factor . . . is that [the public
employee’s] expressions were made pursuant to his duties as a [prosecutor].” 68
“[The employee] wrote his disposition memo because that is part of what
he . . . was employed to do.” 69 “When [the public employee] went to work and
performed the tasks he was paid to perform, [he] acted as a [public] employee,”
not as a private citizen. 70 “That consideration—the fact that [the employee]
spoke as a prosecutor fulfilling a responsibility [read: duty] to advise [his
employer] about how best to proceed with a pending case—distinguishes [his]
case from those in which the First Amendment provides protection against
discipline.” 71 The duties were created by and owed to the employer. Only a
prosecutor, acting on behalf of his employer, could have created, altered, or
destroyed the memorandum; a citizen could not have done so.
In contrast to the employer in Garcetti, Valdez had no “heightened
interest[ ] in controlling [Anderson’s] speech.” 72 Anderson’s speech was not an
“[o]fficial communication[ ] [that had] official consequences,” requiring anyone
at the Thirteenth Court to ensure that it was “accurate, demonstrate[d] sound
judgment, and promote[d] the employer’s mission.” 73 Instead, it was “the kind
of activity engaged in by citizens”—including licensed lawyers—“who do not
68 Id. at 421.
69 Id.
70 Id. at 422.
71 Id. at 421 (emphasis added). That Garcetti refers to an “official duty” suggests it
should be read to mean, not all duties, but those duties derived from the office (that is, the
position) itself, not some extrinsic duty.
72 Id. at 422.
73 Id. at 422–23.
21
Case: 15-40836 Document: 00513754297 Page: 22 Date Filed: 11/09/2016
No. 15-40836
work for the government.” 74 All lawyers, not just lawyers who are public
employees, have a duty to report malfeasance.
Most notably, Garcetti expressly applies “only to the expressions an
employee makes pursuant to his or her official responsibilities [read: duties],
not to statements or complaints (such as those at issue in cases like Pickering
and Connick) that are made outside the duties of employment [read: pursuant
to his or her duties as a citizen].” 75 Such speech is never made pursuant to an
employee’s official duties. In such instances, Garceetti is inapplicable.
Garcetti emphasizes that “[e]xposing governmental inefficiency and
misconduct is a matter of considerable significance.” 76 “The dictates of sound
judgment are reinforced by . . . whistle-blower protection laws . . . .” 77 And,
further, there are “additional safeguards in the form of, for example, rules of
conduct” for public employees who are also lawyers. 78 “These imperatives, as
well as [other] obligations arising from any other applicable . . . mandates of
the criminal and civil laws, protect employees and provide checks on [public
employers] who would order unlawful or otherwise inappropriate actions.” 79
This is to repeat the obvious: An employer is entitled to exercise control over
an employee’s speech only if it is lawful and appropriate for it to do so. If it is
not lawful and appropriate for the employer to exercise control, the employee
is, quite simply, not speaking pursuant to his official duties. The mandates of
74 Id.
Id. at 423 (emphasis added) (citing Pickering v. Bd. of Ed., 391 U.S. 563, 574 (1968);
75
Connick v. Myers, 461 U.S. 138, 146 (1983)).
76 Id. at 425.
77 Id.
78 Id.
79 Id. at 425–26.
22
Case: 15-40836 Document: 00513754297 Page: 23 Date Filed: 11/09/2016
No. 15-40836
those criminal and civil laws do not protect employees from discipline arising
from their failure to perform unlawful or otherwise inappropriate duties;
instead, they protect employees from the very existence of those duties to begin
with. Such a duty is not a duty at all. 80 For instance, in Garcetti the public
employer had permissibly disciplined its employee for speech because that
speech was made pursuant to lawful and appropriate official duties. Stated
differently, it was lawful and appropriate for the employer to control the
employee’s speech through that official duty. In holding that speech made
pursuant to public employees’ official duties is not protected, Garcetti did not
alter, but embraced, the clearly established law regarding speech concerning
malfeasance.
In the context of Garcetti’s clear instruction, Anderson’s letter and
disciplinary complaint were not created pursuant to his official duties. It is
80 See RESTATEMENT (THIRD) OF AGENCY § 8.09, cmt. c (“An agent’s duty to comply
with instructions is not absolute. An agent has no duty to comply with instructions that may
subject the agent to criminal, civil, or administrative sanctions or that exceed legal limits on
the principal’s right to direct action taken by the agent. Thus, an agent has no duty to comply
with a directive to commit a crime or an act the agent has reason to know will be tortious. An
agent who is a member of a profession does not have a duty to follow instructions given by
the principal that expose the agent to discipline for violating professional rules. . . . A contract
provision in which an agent promises to perform an unlawful act is unenforceable.”);
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 23, cmt. c (2000) (“A contract by
an agent to help the principal to perform an unlawful act is unenforceable . . . . The rule has
special force when applied to lawyers. Lawyers who exercise their skill and knowledge so as
to deprive others of their rights or to obstruct the legal system subvert the justifications of
their calling.”); see also WILLISTON ON CONTRACTS § 19:40 (4th ed. 2010) (“[A] promise to do
an illegal thing for a legal consideration is unenforceable, and it is equally improper to
promise to do a legal thing for an illegal consideration. If the agreement is bilateral and the
promise on either side is unlawful, both promises are unenforceable, for one promise is itself
unlawful and the other is given for unlawful consideration.” (footnotes omitted));
RESTATEMENT (SECOND) OF CONTRACTS § 178(a) (1981) (“A promise or other term of an
agreement is unenforceable on grounds of public policy if legislation provides that it is
unenforceable or the interest in its enforcement is clearly outweighed in the circumstances
by a public policy against the enforcement of such terms.”); id. § 179(a) (“A public policy
against the enforcement of promises or other terms may be derived by the court from (a)
legislation relevant to such a policy, or (b) the need to protect some aspect of the public
welfare . . . .”).
23
Case: 15-40836 Document: 00513754297 Page: 24 Date Filed: 11/09/2016
No. 15-40836
useful to note that Anderson’s supervisor, Vela, did not ask him, much less
require him, to send the letter or to file the disciplinary complaint. Anderson
expressly alleged that he did so “on his own initiative.” He also alleged that he
asked Chief Justice Jefferson to “keep the letter confidential” so that no one
“at the Thirteenth Court” would know about it. If Anderson, as Vela’s briefing
attorney, had an official duty to send the letter or to file the complaint, then
why he would have purposely concealed his doing so from her? 81
As the Supreme Court stated in Connick, “[m]atters of public concern are
those which can ‘be fairly considered as relating to any matter of political,
social, or other concern to the community.’” 82 “Speech which discloses any
evidence of corruption, impropriety, or other malfeasance on the part
of . . . officials, in terms of content, clearly concerns matters of public import.” 83
And, as the Supreme Court explained in Pickering, “statements by public
officials on matters of public concern must be accorded First Amendment
protection despite the fact that the statements are directed at their
nominal superiors.” 84
We are convinced that Anderson sufficiently pleaded each of the
elements of his retaliation claim. His speech, which was not made pursuant to
his official duties as a public employee, was protected. Next, we must consider
whether his right to protection for such speech was clearly established.
81As a lawyer herself, Vela was subject to the same duty to file a disciplinary
complaint, yet she did not. At least circumstantially, this may suggest that she believed she
had no such duty and that, in fact, no such duty existed.
82Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001) (quoting Connick, 461
U.S. at 146).
83 Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); see Branton, 272 F.3d at 739.
84 Pickering, 391 U.S. at 574.
24
Case: 15-40836 Document: 00513754297 Page: 25 Date Filed: 11/09/2016
No. 15-40836
D. QUALIFIED IMMUNITY DEFENSE
Valdez urges that, even if Anderson stated a retaliation claim, he
(Valdez) is entitled to qualified immunity because neither Garcetti nor other
relevant contemporary cases clearly established that speech made pursuant to
a professional (here, ethical) duty is not speech made pursuant to an official
duty. Anderson counters that Garcetti did nothing more than create a limited
presumption that speech made by a public employee pursuant to an official
duty is unprotected; it did not disrupt the presumption that speech made by a
public employee is presumptively protected, including speech made pursuant
to an ethical duty.
A person may assert a § 1983 claim against anyone who “under color of
any statute, ordinance, regulation, custom, or usage, of any State” violates that
person’s rights under the Constitution. 85 To state such a claim, such person
“must (1) allege a violation of a right secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was committed
by a person acting under color of state law.” 86 That said, “[t]he doctrine of
qualified immunity protects government officials from civil damages liability
when their actions could reasonably have been believed to be legal.” 87 “This
immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” 88 Accordingly, we “do not deny immunity unless ‘existing
precedent must have placed the statutory or constitutional question beyond
85 42 U.S.C. § 1983.
86Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Collin Cnty.,
535 F.3d 365, 373 (5th Cir. 2008); see Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th
Cir. 2000)).
87 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011).
88 Id. at 371 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
25
Case: 15-40836 Document: 00513754297 Page: 26 Date Filed: 11/09/2016
No. 15-40836
debate.’” 89 “The basic steps of [this court’s] qualified-immunity inquiry are
well-known: a plaintiff seeking to defeat qualified immunity must show:
‘(1) that the official violated a statutory or constitutional right, and (2) that the
right was “clearly established” at the time of the challenged conduct.’” 90 This
court, like the district court, has “discretion to decide which of the two prongs
of the qualified-immunity analysis to tackle first.” 91
“The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” 92 “This is
not to say that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but it is to say that
in the light of pre-existing law the unlawfulness must be apparent.” 93 “The
central concept is that of ‘fair warning’: The law can be clearly established
‘despite notable factual distinctions between the precedents relied on and the
cases then before the Court, so long as the prior decisions gave reasonable
warning that the conduct then at issue violated constitutional rights.’” 94 “That
this court has not previously considered an identical fact pattern does not mean
that a litigant’s rights were not clearly established.” 95 But the right also should
not be defined “at a high level of generality.” 96 And, even in the context of
89 Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731 (2011)).
90 Id. (quoting Ashcroft, 563 U.S. at 735).
91 Ashcroft, 563 U.S. at 735; see Pearson v. Callahan, 555 U.S. 223, 236 (2009).
92 Anderson v. Creighton, 483 U.S. 635, 640 (1987).
93 Id. (citations omitted).
94 Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (quoting Hope v. Pelzer, 536
U.S. 730, 740 (2002)).
95 Juarez v. Aguilar, 666 F.3d 325, 336 (5th Cir. 2011).
96 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft, 563 U.S. at 742).
26
Case: 15-40836 Document: 00513754297 Page: 27 Date Filed: 11/09/2016
No. 15-40836
qualified immunity, “the facts alleged” must be “[t]aken in the light most
favorable to the party asserting the injury.” 97
By at least 2014, it was clearly established that an employee’s speech
made “externally” concerning “an event that was not within [his or her] job
requirements” was entitled to First Amendment protection. 98 Taking
Anderson’s allegations as true, as we must at this stage of the litigation,
Anderson alleges exactly what Cutler requires. First, Anderson alleges that he
reported his concerns about Justice Valdez externally, viz., to the State
Commission on Judicial Conduct. 99 Second, Anderson alleges that his
complaint to the judicial conduct commission was outside of his job duties.
Accepting Anderson’s allegations as true, Cutler decides this appeal.
That is not to say that, by 2014, our law applying Garcetti spoke loudly
regarding every factual circumstance. Indeed, just after Anderson spoke, the
Supreme Court clarified Garcetti in Lane. In Lane, the plaintiff alleged that he
was retaliated against for giving testimony to a federal grand jury
investigating another employee. 100 The Eleventh Circuit concluded that, under
97 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).
98 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 472–73 (5th Cir. 2014)
(finding that by 2010, the combination of Garcetti, Williams, Davis, and Charles v. Grief, 522
F.3d 508 (5th Cir. 2008), had resulted in clearly established law).
99 Even if Anderson’s complaint to Chief Justice Jefferson was arguably a complaint
up the chain of command, Anderson’s complaint to the State Commission on Judicial Conduct
was a complaint out of the chain of command. And, Anderson alleges that it was the
complaint to the State Judicial Conduct Commission that precipitated Valdez’s alleged
retaliation pleading: “Defendant had knowledge that Anderson filed a complaint against
Defendant with the State Commission on Judicial Conduct and that Defendant interfered in
Anderson’s hiring because of the complaint. Specifically, on May 12, 2014, Justice Perkes told
Anderson that, because Anderson had filed a complaint against Defendant with the State
Commission on Judicial Conduct, Defendant told all of the Justices not to allow Anderson to
work for Justice Perkes.” Accordingly, Anderson alleges that he was retaliated against for
complaints made outside his chain of command.
100 134 S. Ct. at 2375–77.
27
Case: 15-40836 Document: 00513754297 Page: 28 Date Filed: 11/09/2016
No. 15-40836
Garcetti, the plaintiff testified as an employee, not as a citizen, because he
testified to an event that he learned on the job. 101 The Supreme Court reversed,
noting that “the Eleventh Circuit read Garcetti far too broadly.” 102 In doing so,
the Court clarified that public employees’ speech is not protected by the First
Amendment when they speak in the course of their “ordinary” job duties. 103
Nonetheless, the Supreme Court ruled that qualified immunity was proper
because the Eleventh Circuit’s case law concerning whether an employee’s
sworn testimony was protected by the First Amendment was
deeply conflicted. 104
Thus, Lane plainly demonstrates that, following Garcetti, some First
Amendment retaliation cases would still result in findings of qualified
immunity. That is, Garcetti did not plainly establish all First Amendment
retaliation law. Nonetheless, Cutler makes it apparent that Garcetti, and this
court’s jurisprudence interpreting it, clearly established some law. The
question is how much.
Based on the allegations at issue here, Howell v. Town of Ball answers
that question. 105 There, the plaintiff alleged that he had been fired from his job
as a town police officer for cooperating with an FBI investigation into public
corruption. 106 The plaintiff “emphasize[d] that, under the Supreme Court’s
recent decision in Lane, the relevant question [was] whether the speech at
101 Id. at 2376–77.
102 Id. at 2379.
103 Id. at 2378.
104 Id. at 2381.
105 827 F.3d 515 (5th Cir. 2016).
106 Id. at 519.
28
Case: 15-40836 Document: 00513754297 Page: 29 Date Filed: 11/09/2016
No. 15-40836
issue [was] ordinarily within the scope of an employee’s duties.” 107 And, what
job duties were “ordinary” was critical to the court’s holding. The plaintiff
“offered evidence that his involvement in the FBI investigation was outside the
ordinary scope [of] his professional duties.” 108 The defendants pointed to the
“general” duty of all police officers to “detect and prevent crime.” 109 We found
that the defendants’ evidence was inadequate because broad general duties
“fail to describe with sufficient detail the day-to-day duties of a public
employee’s job.” 110 That is, in assessing the summary judgment evidence
presented by both sides, we concluded that, although the defendants may have
asserted that the plaintiff spoke pursuant to his “general” job duties, their
evidence could not demonstrate that he spoke within his “ordinary”
job duties. 111
Nonetheless, we determined that the individual defendants were
entitled to qualified immunity. 112 In doing so, we noted that “the Supreme
Court did not emphasize that only speech made in furtherance of an employee’s
‘ordinary’ job duties is not protected until nearly three years after [plaintiff]
was discharged.” 113 In support of that proposition, we cited Gibson’s
observation that, “although Lane’s insertion of the qualifier ‘ordinary’ did not
107 Id. at 523.
108 Id.
109 Id. at 524.
110 Id.
111 Id.
112 Id. at 525–26.
113 Id. at 525.
29
Case: 15-40836 Document: 00513754297 Page: 30 Date Filed: 11/09/2016
No. 15-40836
meaningfully alter Garcetti’s original test, it does provide additional guidance
regarding what speech falls within an employee’s official duties.” 114
Reading Howell in the framework of Cutler properly synthesizes Lane’s
effect on Garcetti. Namely, Garcetti and our court’s pre-Lane jurisprudence
established that when employees speak outside of their chain of command and
outside of their job duties they are entitled to First Amendment protection. 115
Lane and Howell, however, indicate that some cases are too difficult to be
determined pursuant to that rule. Even though in some cases employees might
have a general employment duty to speak, that duty is not part of their
“ordinary” official duties, so their speech pursuant to that general duty is
protected by the First Amendment.
Equally clear, however, is that neither Lane nor Howell meaningfully
altered the analysis required by Garcetti and Cutler when an employee’s
allegations do not concern the distinction between “ordinary” and “non-
ordinary” job duties. 116
Here, there is not—and at the motion to dismiss stage there can never
be—a meaningful factual dispute that implicates Lane’s ordinariness rule. 117
Anderson alleges that his speech to the State Commission on Judicial Conduct
114 Id. (citing Gibson, 773 F.3d at 668).
115 See Cutler, 767 F.3d at 472–73.
116See Gibson, 773 F.3d at 668–69; see also Hardesty v. Cochran, 621 F. App’x 771,
780–81 (5th Cir. 2015) (unpublished) (“The Supreme Court’s recent decision in Lane . . . did
not alter First Amendment jurisprudence in any way that would render the currently
applicable law not clearly established under these facts.” (internal citation omitted)).
117In addition to the ordinariness rule, Lane found that qualified immunity was
proper because of conflicted eleventh circuit case law concerning First Amendment protection
for sworn testimony. Cutler resolves the need to engage in such an inquiry here because
Cutler found that by 2010 this circuit case law had clearly established the contours of the
First Amendment protections provided by Garcetti, at least with respect to the violations that
Anderson alleges.
30
Case: 15-40836 Document: 00513754297 Page: 31 Date Filed: 11/09/2016
No. 15-40836
was made outside of his chain of command and outside of his job duties.
Perhaps at the summary judgment or trial phase facts will come to light that
implicate Lane. Until then, however, the ordinariness rule simply does not
implicate the right at issue here.
Accordingly, under Cutler, Anderson has pleaded the violation of a
clearly established right. Qualified immunity thus does not apply—at least,
not yet.
III.
CONCLUSION
For the forgoing reasons, we AFFIRM the holding of the district court
and REMAND for further proceedings on Anderson’s claim against Valdez in
his individual and official capacities.
31
Case: 15-40836 Document: 00513754297 Page: 32 Date Filed: 11/09/2016
No. 15-40836
JONES, Circuit Judge, dissenting:
I agree with the majority that even after Garcetti v. Ceballos,
547 U.S. 410, 126 S. Ct. 1951 (2006), Anderson has plausibly alleged a
violation of his First Amendment rights. Unfortunately, that is the end of our
agreement, because I disagree with the majority’s reasoning to this conclusion
and would grant qualified immunity.
A. First Amendment Retaliation
In the course of discussing Anderson’s First Amendment retaliation
claim, the majority has made two errors. The first error constitutes dicta that
need not be followed hereafter: the majority irrelevantly invoke the
Restatement of Agency and state law of agency to “explain” the scope of a public
employee’s official duties. The second error is in the implication that any
“whistleblower” speech by a public employee, even when made pursuant to his
official duties, takes the employee’s retaliation claim out of Garcetti’s threshold
inquiry. After explaining these mistakes, I write why, under a proper Garcetti
analysis, Anderson has stated a claim for relief.
One paragraph of the majority opinion begins by stating, “In some
circumstances, state law is relevant insofar as it describes the plaintiff’s
position, including his duties and the way he is hired, supervised, and fired.”
(The majority reinforce this idea in a lengthy footnote citing agency and
contract law hornbooks.) Garcetti, to the contrary, describes the inquiry
defining the scope of an employee’s duties as “a practical one,” such that formal
job descriptions will not suffice to insulate employers. 547 U.S. at 424–25,
126 S. Ct. at 1961–62. It stands to reason that reference to treatises
untethered to a particular public employee’s workplace will also yield little
insight. In any event, the majority cites these references but does absolutely
nothing with them in further analysis of Anderson’s duties. These are dicta,
pure and simple.
32
Case: 15-40836 Document: 00513754297 Page: 33 Date Filed: 11/09/2016
No. 15-40836
Much more helpful than treatises in illuminating the practical scope of
Garcetti are our court’s decisions that evaluated whether employees’ official
duties comprehended the speech for which they claimed First Amendment
protection. Thus, in Williams v. Dallas Independent School District,
480 F.3d 689 (5th Cir. 2007), this court concluded that a high school athletic
director’s communications to the principal expressing concern about the use of
funds appropriated for athletic activities were made “in the course of
performing” his job duties sufficiently to preclude First Amendment protection.
See id. at 693–94. In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the
question was whether any of several complaints made by a former auditor of a
state university “up the chain of command” and to the FBI and EEOC about
internal audit problems, staffing issues and potential racial discrimination
were “in the course of performing” the auditor’s job duties. See id. at 312–16.
The focus was on the relation between the job duties and the speech, not on
whether (as the majority states here) “the employer had an interest in
controlling” the speech, or on an auditor’s professional ethics, or alleged
whistleblower status. Davis ultimately found some of the communications
protected by the First Amendment, while others were not. Id. at 315–16. See
also Nixon v. City of Hous., 511 F.3d 494, 498 (5th Cir. 2007) (holding that a
police officer’s volunteered media statement critical of the Houston Police
Department’s high-speed chase policy nevertheless was made “pursuant to his
official duties and during the course of performing his job.”)
The majority’s second implication, that any “whistleblower”-type speech
is constitutionally protected, is not benign. The majority asserts that an
employee “is not speaking pursuant to his official duties” and therefore gains
First Amendment protection whenever he exposes unlawful, inappropriate or
inefficient government conduct. Purporting to draw support from Garcetti for
33
Case: 15-40836 Document: 00513754297 Page: 34 Date Filed: 11/09/2016
No. 15-40836
this point, the majority refer to the Supreme Court’s penultimate paragraphs,
which begin by stating, “Exposing governmental inefficiency and misconduct
is a matter of considerable significance.” 547 U.S. at 425, 126 S. Ct. at 1962.
The majority misconstrue the Court’s discussion—which merely enumerates
various limitations on public officials and concomitant protections of public
employees—as an invitation to lower courts to distinguish “lawful and
appropriate” employer control of the employee’s speech from that which is
“unlawful and inappropriate.” This is not what the Court says. The Court
finishes its discourse by rejecting “the notion that the First Amendment shields
from discipline the expressions employees make pursuant to their professional
duties. Our precedents do not support the existence of a constitutional cause
of action behind every statement a public employee makes in the course of
doing his or her job.” Id. (emphasis added).
The majority’s gratuitous focus on (a) the nature of the speech and (b) the
government employer’s “interest in control” muddle Garcetti’s clear threshold
line that holds speech undertaken pursuant to an employee’s job duties is
categorically unprotected by the First Amendment. The majority assert
generally that it “was lawful and appropriate” for the District Attorney’s office
in Garcetti to “control” attorney Ceballos’s speech pursuant to his official
duties, but this is semantics. Ceballos was reporting about police misconduct,
specifically, misrepresentations made in a warrant affidavit; his opinion was
overruled by his superiors who continued the criminal prosecution. The
Supreme Court explicitly did not rule on the merits of Ceballos’s internal
memos and held simply that because they were authored pursuant to his
official duties, they receive no First Amendment protection. Yet, under the
majority’s misplaced analysis, Ceballos’s memos might just as easily be
characterized as those of a “whistleblower” exposing both police and
34
Case: 15-40836 Document: 00513754297 Page: 35 Date Filed: 11/09/2016
No. 15-40836
prosecutorial misconduct. The majority, therefore, have smuggled back into
Garcetti’s threshold issue of job duties an evaluation of the speech itself based
on the employer’s “interest in controlling” the employee speech, or
whistleblower revelations.
Despite my disagreement with the majority’s reasoning, I concur that
Anderson stated a claim for First Amendment retaliation. The fact that his
boss, Justice Vela, conveyed the incriminating information to Anderson means
that the speech “related” to his job duties, but Anderson pleads that he did not
write the letters under her supervision or on her orders or even with her
knowledge. 1 Cf. Lane v. Franks, 134 S. Ct. 2369, 2379 (2014) (First
Amendment retaliation claim could proceed under Garcetti where employee’s
testimony in criminal court related to and “concern[ed] information learned in
the course of” his employment duties, but the speech itself, rather than falling
within those duties, was an obligation of every citizen). A careful analysis of
Anderson’s job duties indicates that his complaints about Chief Justice Valdez
were not made “pursuant to his duties” or “in the course of performing” his
work as a briefing attorney to Justice Vela.
A judge’s briefing attorney is paid by the court but is normally
accountable to the judge (or judges) for whom he directly works. The relation
between a judge and a law clerk is both sensitive and confidential. Further,
the scope of the clerk’s duties for “his” judge varies widely within the judiciary,
in part because a judge takes advantage of each briefing attorney’s particular
experience and expertise. It is hardly unusual for a briefing clerk’s duties to
1 Contrary to what both Chief Justice Valdez and the majority assert, Anderson’s
professional duties as an attorney neither add to nor detract from this analysis. Arguably
such considerations might be relevant under the Pickering balance, but Chief Justice Valdez
did not challenge the district court’s application of the Pickering balance and thus we have
no occasion or need to address that waived argument.
35
Case: 15-40836 Document: 00513754297 Page: 36 Date Filed: 11/09/2016
No. 15-40836
range beyond writing legal memoranda, conducting research on pending cases,
and advising on motions before the court. Anderson accordingly became
responsible for advising Justice Vela when she inquired of him about the
legality of the chief justice’s travel reimbursements. Based on their
confidential relationship, Anderson would also have had the duty to inform
Justice Vela if he had independently discovered possible malfeasance within
the judiciary. Justice Vela in either case shouldered a duty to pursue the
allegations, but Anderson’s official work ended with rendering his confidential
advice to Justice Vela; the justice asked no more of him. Reporting “up the
chain” to Chief Justice Jefferson and the State Commission on Judicial
Conduct fell outside Anderson’s employment duties. 2
For these reasons, it is consistent with Garcetti, Williams, and Davis to
conclude that, under the facts pled, Anderson was not employed to investigate
and report judicial malfeasance beyond his response to Justice Vela’s inquiry.
Further, his complaints “up the chain” reflect protected speech as a citizen on
a matter of public concern.
B. Qualified Immunity
On the question of qualified immunity, the majority are rightly
concerned that a judicial officer should not be able to shield himself from the
2 Garcetti does not accord any special First Amendment shield to publicly employed
professionals by virtue of their ethical codes. Nor, as Chief Justice Valdez suggests, are
ethical codes a Garcetti-fashioned sword. He argues that Anderson is a licensed Texas
attorney bound by the Texas Disciplinary Rules of Professional Conduct. See Tex. Loc. Gov’t
Code § 81.072(d); In re Meador, 968 S.W.2d 346, 350 (Tex. 1998). Chief Justice Valdez
contends that it is at least arguable that following the Disciplinary Rules is part of a briefing
clerk’s official duties. If Anderson was obliged by the Rules, and thus his employment duties,
to report on alleged misconduct, then his speech was not entitled to constitutional protection.
The district court aptly summarized its rejection of this argument: “In no way does
Garcetti permit an employer to take refuge under the broad net of its employees’ professional
ethical obligations that happen to implicate speech on matters of public concern, and that
apply to all members of the profession regardless of whether they are publicly employed.”
36
Case: 15-40836 Document: 00513754297 Page: 37 Date Filed: 11/09/2016
No. 15-40836
consequences of actionable retaliation if the law clearly held that a law clerk
was speaking “as a citizen” when he reported the alleged judicial misconduct
to the chief justice of the Texas Supreme Court and the State Commission on
Judicial Conduct. But in this case, as in all qualified immunity cases, the law
must have been “clearly established” at the time of the official’s conduct under
factually analogous circumstances. See Brosseau v. Haugen, 543 U.S. 194,
198–201, 125 S. Ct. 596, 599–600 (2004) (per curiam). Only the “plainly
incompetent” public officials or those who “knowingly violate the law” are
denied the protection of qualified immunity. Anderson v. Creighton, 483 U.S.
635, 638, 107 S. Ct. 3034, 3038 (1987) (quoting Malley v. Briggs, 475 U.S. 335,
341, 106 S. Ct. 1092, 1096 (1986)).
The majority correctly note that post-Garcetti and before Chief Justice
Valdez acted against Anderson, our court’s decisions distinguished between a
public employee’s speech within the chain of command of his office (speech that
is constitutionally unprotected) and speech “as a citizen,” which is directed
outside to third-party responders like the EEOC (and may be constitutionally
protected). See, e.g., Davis, 518 F.3d at 315–16 (holding some complaints
within the UT System to be unprotected while those to the EEOC were
accorded constitutional protection). 3 Based on my view that Anderson’s
employment was centered on his duty to “his” judge, Anderson necessarily
3 I assume arguendo, as the Supreme Court has assumed arguendo, that a right may
be clearly established by circuit precedent alone even though Supreme Court precedent has
not clearly established the right. See Taylor v. Barkes, 135 S. Ct. 2042, 2044–45 (2015) (per
curiam) (twice noting that “[n]o decision of this Court” was similar to Taylor before
“[a]ssuming for the sake of argument that a right can be ‘clearly established’ by circuit
precedent despite disagreement in the courts of appeals”); Reichle v. Howards, 132 S. Ct.
2088, 2093–94 (2012) (noting “[t]his Court has never held that there is such a right [‘to be
free from a retaliatory arrest that is otherwise supported by probable cause’]” before
“[a]ssuming arguendo that controlling Court of Appeals’ authority could be a dispositive
source of clearly established law”).
37
Case: 15-40836 Document: 00513754297 Page: 38 Date Filed: 11/09/2016
No. 15-40836
went outside his “chain of command” when he reported about Chief Justice
Valdez on his own to the State Commission on Judicial Conduct. This logic
suggests an argument for denying qualified immunity.
Nevertheless, the issue is more complex than the majority’s analysis
acknowledges because, under the Texas Constitution, the Commission
includes members of the public, 4 but its proposed sanctions against a judge are
ultimately reviewable by the Texas Supreme Court. 5 The Texas judiciary may
thus be considered its own self-regulator. In this situation, Chief Justice
Valdez’s argument is far from frivolous that Anderson’s complaint went up the
“chain of command” within the judiciary. Consequently, the ultimate
constitutional status of Anderson’s speech, and thus his right to a First
Amendment shield against employment consequences, are debatable.
Debatable constitutional violations demand qualified immunity for public
officials, even when this court is bound to conclude that a violation in fact
occurred. See, e.g., Morgan v. Swanson, 659 F.3d 359, 389–90 (5th Cir. 2011)
(en banc) (holding “[t]he defendants in this case are entitled to qualified
immunity because existing precedent failed to place the constitutionality of
their conduct ‘beyond debate’”); Noyola v. Tex. Dep’t of Human Res.,
846 F.2d 1021, 1026 (5th Cir. 1988) (granting qualified immunity because
“neither the ‘contours’ of Noyola’s rights were so clearly outlined nor was the
‘unlawfulness’ of terminating Noyola so ‘apparent’ that Appellants should
4 See Tex. Const. art. V, § 1-a(2) (stating that the thirteen-member Commission shall
be comprised of: one court of appeals justice; one district judge; two members of the state bar
who have practiced law for ten consecutive years; five citizens who are not licensed to practice
law not public employees; one justice of the peace; one municipal court judge; one county
court at law judge; and one constitutional county court judge).
5 See id. art. V, § 1-a(9) (“A Justice, Judge, Master, or Magistrate may appeal a
decision of the review tribunal [‘order[ing] public censure, retirement or removal’] to the
Supreme Court under the substantial evidence rule.”).
38
Case: 15-40836 Document: 00513754297 Page: 39 Date Filed: 11/09/2016
No. 15-40836
forfeit their qualified immunity” (quoting Anderson, 483 U.S. at 640, 107 S. Ct.
at 3039)).
For these reasons, even if Anderson’s allegations are proven to be true, I
conclude that Chief Justice Valdez visited unconstitutional retaliation upon
Anderson but the law was not “clearly established” such that any “reasonable
[judicial] official would understand” that Anderson’s speech was
constitutionally protected because it occurred outside the law clerk’s “chain of
command.” See Anderson, 483 U.S. at 640, 107 S. Ct. at 3039.
I respectfully dissent.
39