Gibson v. Office Atty General Off the State of California ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAULA LAUREN GIBSON and 
ANNETTE D. GOODE-PARKER,
Plaintiffs-Appellants,
No. 07-56124
v.
D.C. No.
OFFICE OF THE ATTORNEY GENERAL,
STATE OF CALIFORNIA; BILL  CV-07-00838-FMC
ORDER AND
LOCKYER; RICHARD M. FRANK;
AMENDED
JAMES THOMAS GREENE; KATHLEEN
OPINION
FOOTE; LOUIS MAURO; JACOB
APPLESMITH; and BARBARA MOTZ,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
November 17, 2008—Pasadena, California
Filed January 27, 2009
Amended March 18, 2009
Before: Susan P. Graber and Richard R. Clifton,
Circuit Judges, and Edward C. Reed,* District Judge.
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Clifton
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
3429
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3433
COUNSEL
Paula Lauren Gibson, Los Angeles, California, in propria per-
sona, for the plaintiffs-appellants.
Stephanie L. Quinn, Randolph Cregger & Chalfant LLP, Sac-
ramento, California, for the defendants-appellees.
ORDER
The opinion filed on January 27, 2009, slip opinion page
909, and published at 2009 WL 174915, is replaced by the
amended opinion filed concurrently with this order.
With this amendment, the panel has voted to deny the peti-
tion for rehearing. Judges Graber and Clifton have voted to
deny the petition for rehearing en banc, and Judge Reed has
so recommended.
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on it.
The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions will be entertained.
3434 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
OPINION
GRABER, Circuit Judge:
Plaintiffs Paula Lauren Gibson and Annette D. Goode-
Parker work for the Office of the Attorney General of the
State of California (“OAG”) as a lawyer and a paralegal,
respectively. In violation of an internal policy of the OAG,
Gibson represented Goode-Parker in a private legal malprac-
tice case without first having obtained permission from the
OAG. The OAG informed Gibson that she would be fired if
she continued the private representation. Plaintiffs then filed
this action against the OAG and individual decision-makers,
alleging a violation of their First Amendment rights and a
breach of contract. We hold that the district court properly
dismissed the action under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim, but erred in awarding
attorney fees to Defendants.
FACTUAL BACKGROUND
A. First Amendment Claim
Gibson works as a Deputy Attorney General in the Anti-
trust Law Section of the OAG. Goode-Parker is employed as
a Senior Legal Analyst in the same section. On June 25, 2003,
Gibson filed a private legal malpractice action on behalf of
Goode-Parker against a California divorce lawyer in the Los
Angeles Superior Court. The malpractice claim related to the
divorce lawyer’s representation of Goode-Parker in a divorce
proceeding. Although the OAG requires its lawyers to obtain
permission in advance to engage in the private practice of
law, Gibson did not seek permission to represent Goode-
Parker until nearly a year after filing the malpractice case.
Defendant Kathleen Foote, Senior Assistant Attorney General
for the Antitrust Law Section, ultimately denied Gibson’s
request on the ground that the existence of a separate, pending
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3435
claim by the divorce lawyer against Gibson with the State
Board of Control created a conflict of interest.
Gibson filed a grievance concerning the denial of her
request to represent Goode-Parker. Gibson argued that the
OAG’s policy of requiring advance permission for engaging
in the private practice of law violates the First Amendment.
Four months later, without any formal action in response to
Gibson’s grievance, Gibson was informed that she would be
terminated from her employment with the OAG if she did not
withdraw from representing Goode-Parker in the malpractice
action.
Immediately thereafter, Defendant James Thomas Greene,
the Chief Assistant Attorney General for the Public Rights
Division, reviewed and denied Gibson’s grievance. He noted
in his denial that it is difficult for a deputy attorney general
to engage in the private practice of law and not come into
conflict with the OAG’s interests or those of a client. He also
noted that the prior-approval process is necessary to prevent
conflicts between a public employee’s official duties and his
or her outside activities, and he opined that the process is not
an unconstitutional prior restraint.
Gibson appealed the denial of her grievance, and Defendant
Richard M. Frank, Chief Deputy Attorney General, upheld the
denial. He agreed with Greene’s conclusions that the OAG’s
pre-approval requirement is not an unconstitutional prior
restraint and that Gibson’s involvement in the malpractice
action created a conflict of interest. Gibson appealed Frank’s
decision to the Department of Personnel Administration. Her
appeal was denied.
Around the same time that Gibson submitted her grievance
and appeals, she requested and received permission to repre-
sent herself in connection with two additional legal matters
related to the underlying malpractice case involving the
divorce lawyer. First, she received permission to appeal a
3436 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
sanctions order that had been issued against her in that action,
subject to certain limitations, including that (1) the representa-
tion be confined to specific issues, (2) OAG resources not be
used and Gibson’s affiliation with the OAG not be invoked,
and (3) any criticisms of Gibson’s performance by the appel-
late court made in the course of the appeal be reported
promptly to the OAG.
Gibson also was given permission to file a malicious prose-
cution action against the divorce lawyer. The conditions
placed on Gibson by the OAG were that (1) she would not
disparage the OAG or its policies; (2) she would not use
office time, materials, staff, or equipment; (3) she would not
invoke the OAG or her title in her representation, and (4) she
would report to Greene any criticisms or concerns expressed
by the court during the case.
B. Contract Claim
In July 2001, Gibson entered into a written agreement with
the OAG, which provided that Gibson would transfer to the
Antitrust Law Section from the Health, Education, and Wel-
fare Section. The agreement was a response to Gibson’s com-
plaints of disability discrimination and denial of reasonable
accommodations, which she had made to the State Personnel
Board and Department of Fair Employment and Housing.
Goode-Parker provided many of the reasonable accommoda-
tion services required by Gibson. Goode-Parker alleges that
she had an oral agreement with OAG that mirrored Gibson’s
written agreement.
Plaintiffs assert that their respective agreements provided
that (1) transfer to the Antitrust Law Section would take place
in order for Plaintiffs to make a “fresh start,” (2) the reason-
able accommodations previously provided would continue,
(3) all other conditions of employment would remain the
same, and (4) attorney fees for enforcement of the agreements
would be available. Plaintiffs allege that these agreements
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3437
were breached by the OAG’s denying Gibson certain over-
time assistance, not making Goode-Parker’s reasonable
accommodation assistance a priority over her other work, and
denying Plaintiffs flexible work hours.
PROCEDURAL BACKGROUND
Plaintiffs filed suit against the OAG and a number of
employees within the OAG. Plaintiffs claimed a breach of
contract by Defendants and, under 42 U.S.C. § 1983, a viola-
tion of Plaintiffs’ First Amendment rights. Defendants filed a
motion to dismiss, arguing that they were entitled to qualified
immunity because Plaintiffs failed to allege that they had
engaged in any protected First Amendment activity. The dis-
trict court agreed with Defendants, but gave Plaintiffs an
opportunity to file an amended complaint to address the pro-
tected activity at issue and the adverse employment actions
taken. With regard to the contract claim, the district court held
that Plaintiffs failed to allege conduct that was inconsistent
with the terms of the transfer agreement. The district court
also held that, even if Plaintiffs had alleged breach of a partic-
ular contractual term, they failed to allege any foreseeable
contract damages. As a result, the district court dismissed
Plaintiffs’ contract claim with prejudice but allowed Plaintiffs
to file an amended complaint with regard to their § 1983
claims.
Plaintiffs did not file an amended pleading. Accordingly,
Defendants asked the district court to dismiss the entire
action, and the district court did so. Plaintiffs timely appealed.
When the district court issued its order granting attorney fees
of $21,803.52 to Defendants, Plaintiffs timely appealed that
decision as well. We consolidated the appeals.
STANDARDS OF REVIEW
We review de novo a dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim.
3438 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
Monterey Plaza Hotel Ltd. v. Local 483 of Hotel Employees
Union, 215 F.3d 923, 926 (9th Cir. 2000).
We review a district court’s award of attorney fees for
abuse of discretion. Hall v. Bolger, 768 F.2d 1148, 1150 (9th
Cir. 1985). But we review de novo the legal standards used
by the district court in awarding fees. Miller v. Los Angeles
County Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987).
DISCUSSION
A. Neither Goode-Parker’s private malpractice action nor
Gibson’s representation of her was constitutionally pro-
tected speech.
[1] In evaluating a First Amendment retaliation claim, this
Court uses “a sequential five-step series of questions.” Eng v.
Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Those questions
are as follows: “(1) whether the plaintiff spoke on a matter of
public concern; (2) whether the plaintiff spoke as a private cit-
izen 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 jus-
tification for treating the employee differently from other
members of the general public; and (5) whether the state
would have taken the adverse employment action even absent
the protected speech.” Id. The pivotal element in this case is
the first one: whether Plaintiffs spoke on a matter of public
concern.
[2] Unlike the determination regarding whether the plaintiff
spoke as a private citizen or as a public employee, which pre-
sents a mixed question of fact and law, Posey v. Lake Pend
Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1123 (9th Cir.
2008), the “public concern inquiry is purely a question of law,
which we review de novo.” Eng, 552 F.3d at 1070. Moreover,
the facts regarding the public concern inquiry are undisputed
here. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001)
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3439
(per curiam) (holding that, in the absence of disputed facts,
qualified immunity is a question of law). The question pre-
sented here is, therefore, a legal one: whether Plaintiffs’ pri-
vate malpractice suit is an issue of public concern.
[3] The Supreme Court has held that speech involves a mat-
ter of public concern when it fairly can be said to relate to
“any matter of political, social, or other concern to the com-
munity.” Connick v. Myers, 461 U.S. 138, 146 (1983). We
have explained further that “[s]peech by public employees
may be characterized as not of ‘public concern’ when it is
clear that such speech deals with individual personnel dis-
putes and grievances and that the information would be of no
relevance to the public’s evaluation of the performance of
governmental agencies.” McKinley v. City of Eloy, 705 F.2d
1110, 1114 (9th Cir. 1983). In previous cases, we have held
that issues of public concern include, for example, speech
about police officers’ wages and relationships with city offi-
cials, id., safety and emergency policies at a public school dis-
trict, Posey, 546 F.3d at 1124, sexual abuse of public
employees while on the job, Freitag v. Ayers, 468 F.3d 528,
545 (9th Cir. 2006), discharges of raw sewage into the envi-
ronment and exposure of public employees to dangerous con-
taminants, Coszalter v. City of Salem, 320 F.3d 968, 974 (9th
Cir. 2003), mismanagement and corruption in county govern-
ment, Johnson v. Multnomah County, 48 F.3d 420, 427 (9th
Cir. 1995), leaks to the IRS about school property purchase
arrangements leading to additional, more expensive public
school financing, Eng, 552 F.3d at 1072-73, and retaliatory
prosecution of a government employee, id. at 1073.
[4] Filing a legal malpractice claim against a private lawyer
in connection with a private divorce matter is not an “issue of
public concern.” The malpractice action did not involve any
suggestion of government malfeasance; nor did it purport to
inform the public about the operation of government; nor was
it relevant to the public’s evaluation of a governmental agen-
cy’s performance; nor did it challenge the conduct of any gov-
3440 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
ernment official or agency, but only that of Goode-Parker’s
former divorce lawyer. In short, the malpractice action itself,
along with Gibson’s involvement in it, was a private matter
between Goode-Parker and her former divorce lawyer. The
mere fact that the action potentially could have affected the
divorce lawyer’s bar disciplinary record does not transform
the litigation into a matter of political, social, or other concern
to the public at large. The action remained an individual
grievance that did not bear on the public’s evaluation of the
performance of a public agency.1
[5] Because Plaintiffs’ speech here, filing a private mal-
practice action, does not qualify as an “issue of public con-
cern,” it is not constitutionally protected speech in the context
of public employment. In the absence of a violation of their
constitutional rights, Plaintiffs’ 42 U.S.C. § 1983 claim
against Defendants on First Amendment grounds must fail.
Therefore, we hold that Defendants did not violate Plaintiffs’
constitutional rights when they denied Gibson permission to
represent Goode-Parker in her private malpractice action.
B. The OAG’s policy regarding outside litigation by its
employees does not constitute an improper prior
restraint.
Plaintiffs also argue more generally that the OAG’s policy
regarding outside litigation by its public lawyers who wish to
represent themselves or others in private litigation, which
Defendants applied to Gibson here, constitutes an improper
prior restraint on their speech by “chilling” the speech of oth-
ers who are not before the court. We are not persuaded.
“[T]he State has interests as an employer in regulating the
1
The purpose of Goode-Parker’s malpractice action was to receive mon-
etary damages, not to file a public complaint with the California state bar
association. We need not and do not decide whether filing a public com-
plaint with a state bar association constitutes an issue of public concern.
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3441
speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the
citizenry in general.” Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968). “When employee expression cannot be fairly con-
sidered as relating to any matter of political, social, or other
concern to the community, government officials should enjoy
wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amend-
ment.” Connick, 461 U.S. at 146.
[6] We have not addressed precisely whether a public
employer’s policy regulating its employees’ outside employ-
ment activities is a prior restraint on the employees’ speech,
but our decision in Hudson v. Craven, 403 F.3d 691 (9th Cir.
2005), provides some guidance to us. In that case, the plaintiff
served as an instructor at a community college. Id. at 693. She
organized an unofficial field trip for her students to attend a
protest against the World Trade Organization despite being
warned not to do so by college officials. Id. at 694. She then
sued various college administrators when her employment
contract was not renewed after the protest. Id. at 695. We held
that the plaintiff’s rights to free speech and association were
at issue. Id. at 696. Using the balancing test established in
Pickering, 391 U.S. at 568, we held further that the profes-
sor’s protest activities were a matter of public concern but that
“the legitimate administrative interests” of the college
strongly outweighed the plaintiff’s First Amendment free-
doms. Hudson, 403 F.3d at 699.
[7] Similarly, Plaintiffs’ argument that the OAG’s policy is
an unconstitutional prior restraint on their speech must fail.
The first Pickering inquiry explores whether the speech that
led to the adverse employment action relates to a matter of
public concern, and the second inquiry questions whether,
using a balancing test, the public employer can demonstrate
that its legitimate interests outweigh the employee’s First
Amendment rights. Hudson, 403 F.3d at 696. As we have dis-
cussed already, Goode-Parker’s private malpractice action is
3442 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
not a matter of public concern and, therefore, is not entitled
to free speech protections. But even if we were to credit Plain-
tiffs’ assertion that they spoke on an issue of public concern,
thereby meeting the threshold for protected speech, the
OAG’s policy is constitutionally sound under the second
Pickering prong.
[8] The Court of Appeals for the District of Columbia is the
only federal circuit court that has faced this precise issue pre-
viously. In Williams v. IRS, 919 F.2d 745 (D.C. Cir. 1990)
(per curiam), the court upheld a policy that prohibited an
Internal Revenue Service (“IRS”) lawyer from engaging in
the outside practice of law. In that case, the plaintiff was a
senior tax lawyer employed by the IRS. Id. at 745. He filed
a class action lawsuit against a church’s board of directors for
an accounting of trust funds. Id. The IRS maintained a policy
requiring its employees to obtain written permission from the
agency before engaging in any outside employment or busi-
ness activities. Id. Because the plaintiff had failed to seek
such permission, the agency suspended him for five days.
Id. at 746. Noting that “the government may limit the exercise
of a citizen’s first amendment rights where government regu-
lations are aimed to address legitimate concerns,” the court
upheld the agency’s policy and the sanctions imposed on the
plaintiff. Id. The court held that the policy of requiring prior
written permission was proper because it was tailored to the
government’s interests in operating efficiently and in avoiding
the appearance of impropriety. Id. at 747. The policy did not
prohibit all outside activities. Rather, it allowed the agency to
determine whether (1) there is an apparent conflict of interest,
(2) tax issues are involved, (3) official information would be
used improperly, or (4) the expenditure of time would
adversely affect the employee’s performance of his or her
official duties. Id.
[9] The policy at issue here is very similar to the one exam-
ined in Williams. The OAG’s policy reads in pertinent part:
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3443
No lawyer employed by the Department of Justice
shall engage in the private practice of the law, pro-
vided, however, that he may handle personal and
family legal matters in which there is no conflict
with his duties as a[n] employee of the state, after
first obtaining approval of the Attorney General.
Lawyers, upon becoming members of the Depart-
ment of Justice, with the approval of the Attorney
General, will be given a reasonable time within
which to close pending legal matters.
Like the policy in Williams, which required an employee to
obtain written permission from the agency before engaging in
outside employment or business activities, 919 F.2d at 745,
the OAG’s policy here does not unduly restrict the constitu-
tional rights of a state-employed lawyer. The policy does not
prohibit all outside practice of law. The requirement to seek
written permission before engaging in outside representation
allows the OAG to assess whether the requested outside
employment creates any conflict of interest or impedes any
other legitimate interest of the state. There is a close and ratio-
nal relationship between the policy and legitimate govern-
mental interests: The OAG has a legitimate interest in
regulating practice-related conduct of its lawyers to avoid any
conflict of interest and to avoid any potential prejudice to the
OAG and its clients, as well as a legitimate interest in ensur-
ing that its employees are devoting their full attention to the
business of the OAG. Further, the OAG’s policy is even more
permissive than the policy upheld in Williams in that the
OAG’s policy requires pre-approval only for the private prac-
tice of law, not for all outside employment and business activ-
ities.
[10] Because the OAG’s policy serves legitimate govern-
ment interests and does not unduly restrict its employees’
constitutional rights, we hold that the policy is not an
improper prior restraint on speech.
3444 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
C. Plaintiffs fail to state a contract claim.
Plaintiffs allege that the OAG breached two contracts: (1)
Gibson’s written transfer agreement transferring her to the
Antitrust Law Section along with Goode-Parker’s analogous
oral agreement, and (2) the Memorandum of Understanding
(“MOU”) between the OAG and Plaintiffs’ labor unions.
The transfer agreement between Gibson and the OAG pro-
vides for her to move from the Health, Education, and Wel-
fare Section of the OAG to the Antitrust Law Section. The
agreement provides that, “by this Agreement, the Parties
intend to fully and completely resolve any and all remaining
disputes between them . . . and to create the fresh start desired
by all.” The agreement lists a number of reasonable accom-
modations to be provided to Gibson, including voice-activated
software, a digital voice recorder, an ergonomic chair, and a
paralegal to assist her on complex cases. The parties to the
agreement reserved “the right to re-evaluate these accommo-
dations from time to time based on changing circumstances
and information.” The agreement further represents that the
parties discharge each other from any and all claims, that they
have not initiated any legal or administrative proceeding
against each other, with an exception not relevant here, and
that they indemnify each other with regard to attorney fees in
connection with the agreement.
Plaintiffs asserted in their complaint that the OAG breached
the transfer agreement because the OAG denied Gibson the
overtime assistance of Goode-Parker, the OAG did not pri-
oritize Goode-Parker’s reasonable accommodation assistance
over her other work, Plaintiffs were micro-managed and dis-
trusted by their superiors, and Plaintiffs were not assigned sig-
nificant cases because of their complaints. None of Plaintiffs’
complaints are inconsistent with the terms of the transfer
agreement. The alleged denials of overtime paralegal support
from Goode-Parker and failure to prioritize that assistance
over Goode-Parker’s other work are not denials of any
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3445
accommodations specifically set forth in the transfer agree-
ment. The same is true for the allegations of being micro-
managed by superiors and not being assigned significant
cases: Even if Plaintiffs’ allegations are true, they are not
breaches of any provision in the transfer agreement.
With regard to the MOU, Plaintiffs allege that they were
denied certain employment benefits, including flexible work
hours. Even if Plaintiffs’ allegations are true, however, they
cannot form the basis of a breach of contract claim. Under
California law, a “civil service employee . . . cannot state such
a cause of action” as the terms and conditions of civil service
employees are fixed by statute, not by contract. Shoemaker v.
Myers, 801 P.2d 1054, 1068 (Cal. 1990); see also Kim v.
Regents of Univ. of Cal., 95 Cal. Rptr. 2d 10, 12 (Ct. App.
2000) (“[O]ur Supreme Court has made it clear that civil ser-
vice employees cannot state a cause of action for breach of
contract or breach of the implied covenant of good faith and
fair dealing.”); Miller v. State, 557 P.2d 970, 973 (Cal. 1977)
(“Nor is any vested contractual right conferred on the public
employee because he occupies a civil service position since it
is equally well settled that the terms and conditions of civil
service employment are fixed by statute and not by contract.”
(brackets and internal quotation marks omitted)).
[11] Finally, Plaintiffs’ contractual claims must fail because
Plaintiffs have failed to allege any foreseeable contract dam-
ages. The only alleged damages are for emotional and physi-
cal distress, neither of which is recoverable on a California
contract claim. Applied Equip. Corp. v. Litton Saudi Arabia
Ltd., 869 P.2d 454, 460 (Cal. 1994); Sawyer v. Bank of Am.,
145 Cal. Rptr. 623, 625 (Ct. App. 1978).
[12] In summary, because there was no breach of any con-
tractual agreement between Plaintiffs and Defendants and
because, even if there were, Plaintiffs failed to allege foresee-
able damages, Plaintiffs failed to state a contract claim.
3446 GIBSON v. OFFICE OF THE ATTORNEY GENERAL
D. Defendants are not entitled to attorney fees.
The district court, holding that Plaintiffs’ action was “frivo-
lous” or “meritless,” see Galen v. County of Los Angeles, 477
F.3d 652, 666 (9th Cir. 2007), awarded attorney fees to
Defendants pursuant to 42 U.S.C. § 1988. We hold that the
district court erred in so characterizing Plaintiffs’ claims.
[13] “A case may be deemed frivolous only when the
‘result is obvious or the . . . arguments of error are wholly
without merit.’ ” Karam v. City of Burbank, 352 F.3d 1188,
1195 (9th Cir. 2003) (quoting McConnell v. Critchlow, 661
F.2d 116, 118 (9th Cir. 1981)). A losing § 1983 claim is with-
out merit only if it is “groundless or without foundation.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978).
[14] Plaintiffs’ argument that the OAG’s policy is a prior
restraint on speech lies at the heart of their action. Although
we agree with the approach taken by the Williams case, no
similar precedent in our circuit would have signaled to Plain-
tiffs that they should not bring this claim at all. Because Plain-
tiffs raised a question that was not answered clearly by our
precedent, we hold that their claim was not frivolous and,
accordingly, that Defendants are not entitled to any attorney
fees.
DISMISSAL OF ACTION AFFIRMED; FEE AWARD
VACATED. The parties shall bear their own costs on appeal.
CLIFTON, Circuit Judge, concurring in part and dissenting in
part:
I fully join most of the majority opinion. My only disagree-
ment concerns the award of attorneys’ fees. I share the view
GIBSON v. OFFICE OF THE ATTORNEY GENERAL 3447
of the district court that the lawsuit filed by Plaintiffs was, in
substantial part, frivolous and would thus affirm the award.
A legal proposition can be frivolous even though this court
has not previously rejected it. The contention that the First
Amendment guarantees a lawyer employed by the govern-
ment the right to file and pursue a private legal malpractice
action on behalf of another person is such a proposition.
Plaintiffs cite no authority supporting that proposition or any
reasonable analogy. We might not have gone down this trail
before, but it was not a hard trail to blaze.
The majority opinion justifies its reversal of the fee award
by observing, at 3446, that our circuit did not have precedent
similar to the D.C. Circuit’s per curiam decision in Williams
v. IRS, 919 F.2d 745 (D.C. Cir. 1990). But our court did have
ample precedent on the question of whether Plaintiffs’ speech
here was constitutionally protected, and we had no difficulty
concluding that it was not. See majority opinion at 3438-40.
We reached the Williams issue as an alternative ground for
decision, by assuming that the speech in question was consti-
tutionally protected, though we had already held to the con-
trary. See majority opinion at 3442 (“even if we were to credit
Plaintiffs’ assertion that they spoke on an issue of public con-
cern, thereby meeting the threshold for protected speech”).
Plaintiffs’ First Amendment claim was plainly without merit,
separate and apart from the Williams issue.
The district court did not abuse its discretion in finding that
claim frivolous. On that element, I respectfully dissent.