Carepartners LLC, Et v. Lashway ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAREPARTNERS LLC, limited 
liability corporation under the
Laws of the State of Washington
doing business as Alderwood
Assisted Living; CAREPARTNERS
MANAGEMENT, limited liability
corporation under the Laws of the
State of Washington doing
business as Alderwood Assisted
Living; JOSEPH KILKELLY and
LAURA KILKELLY, owners of
CarePartners, LLC, individually
and on behalf of their marital
No. 07-35125
community,
Plaintiffs-Appellees,
 D.C. No.
CV-05-01104-RSL
v.
OPINION
PAT LASHWAY, Director of
Residential Care of Services for
the Washington State Department
of Social and Health Services
(DSHS) in her individual capacity;
NANCY TYSON, Boarding Home
Enforcement Officer, for
Residential Care Services and
Aging Adult Services for DSHS,
in her individual capacity;
JOYCE STOCKWELL, an employee of
DSHS in her individual capacity;
ROBERT MCCLINTOCK, Regional

13621
13622 CAREPARTNERS v. LASHWAY
Administrator for DSHS in his 
individual capacity also known as
Bob McClintock; JULIE LORD,
Licensing Field Manager for
Residential Care Services for
DSHS in her individual capacity;
KATHRYN WEBB, Lead Field
Inspector for Residential Care
Services for DSHS in her
individual capacity; MARY CORSO,
formerly the Fire Marshal for the
State of Washington in her
individual capacity; ROGER 
WOODSIDE, Assistant State Fire
Marshal for the State of
Washington in his individual
capacity; ED BORGATTI, Chief
Deputy State Fire Marshal for the
State of Washington in his
individual capacity; MICHAEL
STURGEON, Deputy Fire Marshal
for the State of Washington in his
individual capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
June 5, 2008—Seattle, Washington
Filed September 25, 2008
CAREPARTNERS v. LASHWAY 13623
Before: Ferdinand F. Fernandez and Consuelo M. Callahan,
Circuit Judges, and Irma E. Gonzalez, District Judge*
Opinion by Judge Callahan
*The Honorable Irma E. Gonzalez, Chief United States District Judge
for the Southern District of California, sitting by designation.
13626 CAREPARTNERS v. LASHWAY
COUNSEL
Robert M. McKenna, Attorney General for the State of Wash-
ington, Olympia, Washington, D. Thomas Wendel (Argued),
Assistant Attorney General for the State of Washington, on
behalf of defendants-appellants Pat Lashway, et al.
Paul A. Lindenmuth, Esq., Law Offices of Ben F. Barcus &
Associates, P.L.L.C., Tacoma, Washington, on behalf of
plaintiffs-appellees CarePartners, LLC, et al.
OPINION
CALLAHAN, Circuit Judge:
CarePartners, LLC, CarePartners Management, and Joseph
and Laura Kilkelly, as individual owners of the CarePartners
entities (collectively, “CarePartners”), sued several employees
and representatives of the Washington State Department of
Social and Health Services (“DSHS”) and the Washington
State Fire Marshal’s office (“fire marshal”) in their individual
capacities (collectively, the “State employees”) claiming that
the State employees engaged in retaliatory enforcement of
CAREPARTNERS v. LASHWAY 13627
state boarding home laws and regulations against CarePart-
ners, which operated boarding homes in Washington State.
CarePartners alleged that the State employees retaliated
against its facilities, including revocation of one facility’s
license, in response to Joseph Kilkelly’s (“Kilkelly”) constitu-
tionally protected speech and petition activities; namely, his
critical public speech about DSHS and its interpretations of
certain regulations, his lobbying activities in connection with
seeking a license from DSHS, and his filing of an administra-
tive appeal as to one of DSHS’s regulatory decisions. In this
interlocutory appeal, the State employees appeal the district
court’s denial of their motion for summary judgment on their
defense of qualified immunity. Viewing the facts in a light
most favorable to CarePartners, and based on circuit prece-
dent, we hold that the State employees are not entitled to qual-
ified immunity. Accordingly, we affirm the district court’s
denial of summary judgment.
I. Factual Background
A. Regulatory background
The State of Washington licenses and regulates boarding
homes (i.e., assisted living facilities for the elderly). Wash.
Rev. Code §§ 18.20.020(1), 18.20.030. The State has insti-
tuted comprehensive regulations covering various aspects of
boarding home construction and operation. See Wash. Admin.
Code §§ 388-78A-2010-2050. These rules are generally
enforced by DSHS and its Resident Care Services department
(“RCS”), but fire protection standards are enforced by the
Washington State Patrol through the director of fire protection
(i.e., the fire marshal’s office). Wash. Rev. Code
§§ 18.20.110, 18.20.130.
In 1995, the state building code council adopted a licensed
care facility code (“LC Code”) that requires automatic fire
sprinklers if the facility has more than sixteen residents or has
more than two residents who are non-ambulatory. Wash.
13628 CAREPARTNERS v. LASHWAY
Admin. Code § 51-40-0313.8.2.1 (1998). In response to a
1998 fire at a boarding home, which killed eight residents, the
Washington Legislature enacted a program to subsidize the
cost of retrofitting older facilities with fire sprinklers. As of
1999, licensed boarding homes could not accept and retain
semi- or non-ambulatory residents unless “the boarding home
[was] approved by the Washington state director of fire pro-
tection to care for semi-ambulatory or nonambulatory resi-
dents.” Wash. Admin. Code § 388-78A-240(3)(a) (2002). In
December 2001, Pat Lashway, as DSHS Director of RCS,
sent letters to all boarding home operators indicating what
conditions their facilities would have to meet to serve semi-
and non-ambulatory residents.1
B. Kilkelly’s acts and enforcement by the State
employees
CarePartners operated three boarding homes in the State of
Washington: Meridian Hills (“Meridian”), Alderwood
Assisted Living (“Alderwood”) and Wenatchee Assisted Liv-
ing (“Wenatchee”). Alderwood and Wenatchee did not have
sprinkler systems in place at the time of enforcement. This
lawsuit is based on a series of acts through which Kilkelly
exercised his rights of speech and petition, which CarePart-
ners alleges led to the State employees’ retaliatory enforce-
ment with respect to the Alderwood and Wenatchee facilities.
1
In 2002, the state fire marshal adopted the 1997 Uniform Fire Code,
Wash. Admin. Code § 212-12-030(4) (2003), which mandates: “Existing
licensed occupancies previously approved by the state fire marshal as in
conformance with the standards then in effect shall have their existing use
or occupancy continued, provided such continued use is not dangerous to
life and is acceptable to the local fire and building officials having juris-
diction.” Wash. Admin. Code § 212-12-010(4)(c) (2003).
CAREPARTNERS v. LASHWAY 13629
1. Kilkelly’s administrative appeal of the fine against
Meridian
In 2002, the Meridian facility received an annual survey by
RCS. Dissatisfied with that survey and an associated fine of
$300, Kilkelly and CarePartners filed an administrative appeal
in early 2003 to challenge the conclusions and results of the
survey. CarePartners was critical of DSHS’s assessment of
the Meridian facility. Administrative hearings took place in
January and February of 2003, and the State of Washington
Department of Social and Health Services Board of Appeals
eventually affirmed most of the administrative decision in
DSHS’s favor.
2. Kilkelly’s lobbying activity
In early February 2003, CarePartners entered into a letter
agreement to lease a boarding home in Lakewood, Washing-
ton, from owners who had allowed their license to lapse. The
lease was contingent on CarePartners’s acquisition of a
license from DSHS. Kilkelly engaged in an administrative let-
ter campaign with DSHS, and specifically defendants Lash-
way and Nancy Tyson, over whether to treat CarePartners’s
application for a license as one related to an existing facility
or as an initial facility application, in other words “grandfa-
thering” the facility in under the old code. Concurrently, Kil-
kelly began lobbying state politicians for assistance in trying
to acquire a license on favorable terms so that CarePartners
could meet its stated goal of serving low to medium income
residents. He contacted several state senators and met with a
state representative’s aide to discuss his licensing issue and to
criticize DSHS. For example, an e-mail to state senators was
entitled “Example of DSHS inflexibility in applying the exist-
ing rules — choosing control over whats [sic] best for public
policy[.]”2
2
Kilkelly’s affidavit also asserts that when one of CarePartners’s facili-
ties was shut down by DSHS and the leasehold transferred to another les-
13630 CAREPARTNERS v. LASHWAY
3. The State employees’ enforcement action against
Wenatchee and Alderwood
On February 2, 2003, a deputy fire marshal inspected
Wenatchee and cited it for having too many semi- and non-
ambulatory residents in a facility without fire sprinklers. Kil-
kelly contested those violations by letter. In February 2003,
RCS conducted an inspection of Alderwood and found defi-
ciencies related to the number of semi- and non-ambulatory
residents present in the facility.
A June 2, 2003 e-mail indicates that DSHS was “planning
to take action against Wenatchee” (and possibly Alderwood),
and that DSHS wanted to get all concerned “ ‘on board’ and
‘all our ducks alined’ [sic].” However, internal e-mails sent
between June 3, 2003 and June 5, 2003 indicate that the agen-
cies had not yet reached agreement as to how the CarePartners
facilities were to be treated under the relevant statutes and
regulations with respect to fire sprinkler system requirements
and ambulatory issues. One e-mail referred to the issue as “a
curve ball.” Another read, in part: “OK guys - I found an ‘Ah
Shit’ in the pile.”
Unannounced follow-up inspections at Alderwood and
Wenatchee were conducted on June 23 and 24, 2003, noting
several violations. On June 27, 2003, DSHS imposed immedi-
ate conditions on Wenatchee’s and Alderwood’s boarding
home licenses. DSHS’s order required both facilities to: (1)
discharge all but two semi-ambulatory residents within 30
days; (2) hire staff within 24 hours who would be dedicated
to conducting “fire watches 24 hours, 7 days per week”; (3)
contact the fire marshal within 24 hours to discuss evacuation
plans; and (4) train staff and residents on evacuation plans
see, DSHS accommodated the transfer of the license as an existing license,
not an initial application for a license. CarePartners contends that this is
contrary to how his application for the Lakewood facility was treated by
DSHS.
CAREPARTNERS v. LASHWAY 13631
within seven days. On July 3, 2003, Alderwood appealed the
decision to the Office of Administrative Hearings.
In or around early July 2003, CarePartners’s attorney,
Robin Dale, contacted the Attorney General’s office and
spoke with Assistant Attorney General Cobb, who represented
DSHS and Lashway. In Dale’s affidavit, she noted that Cobb
“gave [her] the distinct impression that Mr. Kilkelly was not
one of the Department’s favorite people,” and that “Mr. Kil-
kelly was ‘known’ to the department,” a comment Dale
remarked was delivered with “negative connotations.” Dale
further declared that in the following days she called Assistant
Attorney General Hoover, who was purportedly involved with
Kilkelly’s licencing issues. According to Dale, Hoover indi-
cated that “ ‘Pat (Lashway) is quickly losing patience with Joe
[Kilkelly].”
Dale arranged meetings on July 10 and 11, 2003 between
Kilkelly, his attorney of record, RCS personnel, and the
Assistant Attorney General to discuss the Wenatchee and
Alderwood facilities. Kilkelly presented his plans of correc-
tion for both facilities on July 10th and 11th. According to
Kilkelly’s affidavit, this included installation of a sprinkler
system at Alderwood. He had concluded “that the meeting
had been very positive and that [they] were working towards
a resolution” that would prevent Alderwood from closing.
Notably, the record indicates that during this entire period
Kilkelly and his attorney were trying to contact DSHS and
fire marshal officials to negotiate or discuss installation of fire
sprinklers, but that those officials either refused to talk or
would not engage in talks. For example, one internal Wash-
ington State Patrol e-mail, dated July 3, 2003, stated:
I took a call from Mr. Kilkelly . . . . While the call
went on for awhile [with me dancing like a trained
bear to keep from saying anything], his main point
was that he would be more than willing to negotiate
13632 CAREPARTNERS v. LASHWAY
a time frame within which he would guarantee the
installation of a sprinkler system[s]. . . . He did
spend some time letting me know how absolutely
rotten he and his staff were treated by Mike . . .
which I apologized for . . . .
Another internal Washington State Patrol e-mail, dated July
14, 2003, stated:
[Kilkelly’s attorney] just short of begged for a return
call. He can’t get anyone from DSHS to call him
back...... [sic] same story I got from Kilkelly. These
folks are MORE than ready to install a sprinkler sys-
tem, and they can’t seem to get anyone to talk about
that. . . . I’d hate like hell to see the system bust
someone who is indicating they want to “make it
right” . . . .
On July 11, 2003, Lashway summarily suspended Alder-
wood’s license, stating that the “residents are in imminent
threat of harm.” The DSHS order also permanently revoked
Alderwood’s license and halted admissions of new residents
in that facility. That same day, a minority interest owner in
CarePartners, Tom Tennent, contacted the news media and
began generating negative news media about DSHS.
Alderwood immediately filed an administrative appeal of
the order and sought an immediate stay of the order in Wash-
ington Superior Court. The Superior Court granted a tempo-
rary stay of the suspension, but that stay was eventually lifted
by the Superior Court and the Washington Court of Appeals.
While the stay was in place, in July 2003, Kilkelly and his
attorneys met with representatives of DSHS, the fire mar-
shal’s office and Assistant Attorney General Hoover. Accord-
ing to Dale’s and Kilkelly’s affidavits, the State was unwilling
to negotiate unless Kilkelly agreed to new conditions, includ-
CAREPARTNERS v. LASHWAY 13633
ing the allegedly cost-prohibitive condition of hiring fire-
fighters as 24-hour fire watchers.
The administrative appeal process continued while Care-
Partners pursued the present case in the district court and con-
cluded after the district court denied the State employees’
motion for summary judgment on qualified immunity in this
case, which is discussed below. CarePartners withdrew its
administrative appeal in May 2007, and the Superior Court
entered an order dismissing that appeal with prejudice and
deeming DSHS’s licensing actions final.
C. District court proceedings
On June 17, 2005, CarePartners filed a complaint in district
court for damages claiming violations of its First Amendment
rights to freedom of speech and to petition for a redress of
grievances (based on retaliation), violation of due process,
and tortious interference with business relationships. After
limited discovery, the defendants moved for summary judg-
ment on the grounds that CarePartners’s claims were barred
by the Rooker-Feldman doctrine, and that they were entitled
to qualified immunity. The district court held that: (1) Care-
Partners’s claims were not barred by the Rooker-Feldman
doctrine; (2) CarePartners’s procedural and substantive due
process claims failed as a matter of law; and (3) the defen-
dants were not entitled to qualified immunity on the First
Amendment retaliation claims. In denying the State employ-
ees’ motion for summary judgment on their qualified immu-
nity, the district court stated that it would entertain subsequent
motions for summary judgment after the completion of dis-
covery.
The State employees filed this appeal, challenging only the
district court’s decision denying summary judgment on their
claim of qualified immunity in connection with the speech
and petition-based retaliation claims.
13634 CAREPARTNERS v. LASHWAY
II. Jurisdiction, Scope of Review, and Standard of
Review
We have jurisdiction over this interlocutory appeal taken
from the denial of the State employees’ motion for summary
judgment on their defense of qualified immunity. See Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985); Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1059 (9th Cir. 2006) (“As a gen-
eral rule, interlocutory appeals from determinations of quali-
fied immunity are permissible.”). The scope of our review,
however, is limited. Specifically, although we may review
whether the State employees violated clearly established law
based on undisputed facts, we may not consider questions of
“ ‘evidence sufficiency,’ i.e., which facts a party may, or may
not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304,
313, 319-20 (1995);3 see also KRL v. Estate of Moore, 512
F.3d 1184, 1188-89 (9th Cir. 2008); Knox v. Sw. Airlines, 124
F.3d 1103, 1107 (9th Cir. 1997) (“[W]e have jurisdiction over
an interlocutory appeal from the denial of qualified immunity
where the appeal focuses on whether the defendants violated
a clearly established law given the undisputed facts, while we
do not have jurisdiction over an interlocutory appeal that
focuses on whether there is a genuine dispute about the under-
lying facts.”).4
3
The Supreme Court recently announced that although a court in the
typical qualified immunity case will adopt the plaintiff’s version of the
facts at the summary judgment stage, the court need not adopt the plain-
tiff’s alleged facts that are “utterly discredited” by the record. See Scott v.
Harris, 127 S. Ct. 1769, 1775-76 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that ver-
sion of the facts for purposes of ruling on a motion for summary judg-
ment.”). Here, however, the State employees have acknowledged the lack
of any substantial dispute on the material facts presented by CarePartners,
and the concerns raised in Scott are not germane.
4
Despite our and the Supreme Court’s previous characterizations of
what an appellate court may review in the context of an interlocutory
appeal of a district court’s denial of qualified immunity as one of “juris-
diction,” we use the label “scope of review” here to avoid any confusion
inherent to the word “jurisdiction.” See Arbaugh v. Y & H Corp., 546 U.S.
500, 510-11 (2006).
CAREPARTNERS v. LASHWAY 13635
We review de novo the district court’s denial of a motion
for summary judgment based on qualified immunity. Ken-
nedy, 439 F.3d at 1059; Lee v. Gregory, 363 F.3d 931, 932
(9th Cir. 2004). Regarding possible factual disputes, we
assume that the version of the material facts asserted by the
non-moving party—here, CarePartners—is correct. KRL, 512
F.3d at 1189; see Kennedy, 439 F.3d at 1059-60.
III. Discussion
In analyzing whether a public official is entitled to quali-
fied immunity, we apply the two-part test from Saucier v.
Katz, 533 U.S. 194 (2001).5 First, the court asks whether the
facts alleged, taken in the light most favorable to the party
asserting the injury, show that the official’s conduct violated
a constitutional right. Inouye v. Kemna, 504 F.3d 705, 712
(9th Cir. 2007) (citing Saucier, 533 U.S. at 201). Second, if
there is a constitutional violation, the court asks whether the
right was clearly established at the time the official acted. Id.
“To reject a defense of qualified immunity, we must find that
‘the contours of the right [are] sufficiently clear that a reason-
able official would understand that what he is doing violates
the right.’ ” Id. (quoting Saucier, 533 U.S. at 202). If the right
was not clearly established at the time of the violation, the
official is entitled to qualified immunity.6 Id.
5
We note that Pearson v. Callahan, 128 S. Ct. 1702 (2008) (No. 07-
751), is pending before the United States Supreme Court. In Pearson, the
Court directed the parties to brief and argue the question: “Whether the
Court’s decision in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150
L. Ed.2d 272 (2001) should be overruled?”
6
We have previously expressed the qualified immunity test as both a
two-step test and a three-step test. Inouye, 504 F.3d at 712 n.6 (citing
Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006) (char-
acterizing the third step as an inquiry into the reasonableness of the offi-
cer’s mistake)). As the Inouye court noted, however, the third step from
Skoog appears to be subsumed in the second step as stated in our other
decisions and in Saucier. Id. We use the two-step iteration of the test.
13636 CAREPARTNERS v. LASHWAY
A. Constitutional violation
We must first answer the following question: “Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the [officials’] conduct violated a constitu-
tional right?” Saucier, 533 U.S. at 201.
1. Retaliation based on Kilkelly’s First Amendment
activity
The district court identified five acts that Kilkelly alleged
led to retaliation by the State employees:
(1) Kilkelly’s pursuit of an administrative appeal of
the fine levied against Meridian Hills Assisted Liv-
ing; (2) Kilkelly’s legislative lobbying efforts to
acquire a license for the boarding home facility in
Lakewood, Washington; (3) Kilkelly’s advocacy
related to his interpretation of the building codes
which would have permitted the Alderwood facility
to be grandfathered out of the sprinkler installation
requirements; (4) Kilkelly’s statement to the press
after the license revocation on July 11, 2003; and (5)
Kilkelly’s pursuit of both administrative review and
a court ordered stay of the summary revocation of
his license.
These alleged activities fall within the First Amendment’s
protection of the rights to free speech and to petition for a
redress of grievances. Kilkelly’s lobbying efforts, advocacy
regarding interpretation of the building codes, and his state-
ments to the press are protected by his right to free speech.
[1] In recognizing one’s protected interest in commenting
on government officials’ actions, we have stated that “[i]t is
clear that ‘[s]tate action designed to retaliate against and chill
political expression strikes at the heart of the First Amend-
ment.’ ” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,
CAREPARTNERS v. LASHWAY 13637
1314 (9th Cir. 1989) (citation omitted); see also FCC v.
League of Women Voters of Cal., 468 U.S. 364, 405 (1984)
(Rehnquist, C.J., dissenting) (noting that the right to lobby is
constitutionally protected). Kilkelly’s alleged acts of seeking
administrative review and a court-ordered stay of the revoca-
tion of CarePartners’s license are protected by his right to
petition the government. See BE & K Constr. Co. v. NLRB,
536 U.S. 516, 525 (2002) (stating that the right to petition
extends to all departments of government and that the right of
access to the courts is but one aspect of the right of petition);
Soranno’s Gasco, 874 F.2d at 1314 (“The right of access to
the courts is subsumed under the first amendment right to
petition the government for redress of grievances.”).
[2] In Soranno’s Gasco, we set forth the standard for evalu-
ating whether a regulated entity has established a claim of
retaliation based on the exercise of free speech and petition
rights. 874 F.2d at 1314-15. A “plaintiff alleging retaliation
for the exercise of constitutionally protected rights must ini-
tially show that the protected conduct was a ‘substantial’ or
‘motivating’ factor in the defendant’s decision.” Id. at 1314
(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)). If the plaintiff makes this initial show-
ing, the “burden shifts to the defendant to establish that it
would have reached the same decision even in the absence of
the protected conduct.” Id. To meet this burden, a defendant
must show by a preponderance of the evidence that it would
have reached the same decision; it is insufficient to show
merely that it could have reached the same decision. Id. at 1315.7
7
The State employees would also have us impose a requirement on
CarePartners to plead and prove an “absence of probable cause” with
respect to their enforcement decisions, relying on Hartman v. Moore, 547
U.S. 250 (2006). We decline to do so. In Hartman, the Court held that a
plaintiff in a retaliatory-prosecution action must plead and show the
absence of probable cause for pressing the underlying criminal charges,
and based its holding on the unique need to “bridge” a causation gap
between the non-prosecuting government agent’s retaliatory animus and
13638 CAREPARTNERS v. LASHWAY
Because our decision in Soranno’s Gasco directs our analy-
sis here, we review the facts of that case in some detail. The
plaintiffs in Soranno’s Gasco were sellers and distributors of
petroleum products that operated under certain bulk plant per-
mits. Soranno, as owner of Sorrano’s Gasco (“Gasco”), pub-
licly challenged certain new regulations promulgated by the
county and the air pollution district, speaking out at County
Board of Supervisors meetings and initiating litigation to
challenge the regulations. Subsequently, the air pollution dis-
trict demanded certain documentation from Soranno, which
Sorrano refused to provide on the grounds that the demand
was an improper attempt at discovery related to a civil penalty
action the county had filed against Gasco. The air pollution
district then exercised its statutory authority and suspended
Gasco’s bulk plant permits, and a pollution control officer cir-
culated a letter to Gasco’s clients informing them of Gasco’s
permit suspension and of possible adverse impact on their
own businesses.
Sorrano and Gasco brought an action under 42 U.S.C.
§ 1983 against the county, the air pollution district, and sev-
eral officials on the grounds that the defendants suspended
Gasco’s petroleum bulk plant permits and discouraged its cus-
tomers from doing business with Gasco in retaliation for
Soranno’s exercise of constitutionally protected speech and
petition rights. We vacated the grant of summary judgment
and held that: (1) the plaintiffs had protected rights in com-
the prosecutor’s independent decision, which is accorded presumptive reg-
ularity. Id. at 252, 263-66. Hartman does not apply to this case because
the Court made a clear distinction between retaliatory-prosecution actions
to which the additional pleading and proof requirements apply, and “ordi-
nary” retaliation actions to which the requirements do not apply (i.e.,
where there is no independent prosecutorial action). Id. at 259-62; accord
Skoog, 469 F.3d at 1233-34 (recognizing that Hartman’s absence of prob-
able cause element applies to “a particular subcategory of retaliation
claims: retaliatory prosecution claims”). This case involves an ordinary
retaliation action and, therefore, Hartman is inapplicable.
CAREPARTNERS v. LASHWAY 13639
menting on the conduct of government officials and in peti-
tioning the government for redress of grievances, and (2)
Soranno’s protected expression was a substantial factor in the
decision to suspend Gasco’s permits. Id. at 1314-15. We
based our finding that Sorrano’s protected expression was a
substantial factor in the air pollution district’s decision on the
timing of the district’s suspension action and a phone call in
which the pollution control officer intimated to Sorrano that
he would “somehow get even” with Soranno for generating
embarrassing publicity about the challenged regulations. Id. at
1315-16.
[3] The present case closely resembles Soranno’s Gasco.
As discussed above, Kilkelly engaged in protected First
Amendment activity by way of his petition for administrative
review of agency decisions, lobbying efforts, advocacy
related to interpretation of the building codes, and public
statements criticizing the State employees. Assuming that
CarePartners’s version of the material facts is correct, as we
must in the context of an interlocutory appeal of a qualified
immunity decision, CarePartners has met its initial burden of
showing that its speech was a substantial or motivating factor
behind the State employees’ decision to take the actions
described above. First, the timing of the State employees’
investigation of CarePartners and the summary suspension
and revocation of its license were suspiciously close in time
to the administrative hearing on the Meridian facility and Kil-
kelly’s lobbying efforts regarding the Lakewood facility. See
Soranno’s Gasco, 874 F.2d at 1316 (recognizing that the
suspicious timing and nature of the permit suspension contrib-
uted to the finding that Soranno’s protected expression was a
substantial factor in the suspension decision). Second, the
existence of a retaliatory intent is supported by Dale’s decla-
ration indicating that DSHS officials were “quickly losing
patience” with Kilkelly, and that the Assistant Attorney Gen-
eral told Dale that Kilkelly was “known to the department.”
Third, the record, based on limited discovery conducted thus
far, contains e-mails that suggest DSHS was planning to take
13640 CAREPARTNERS v. LASHWAY
action against Alderwood and Wenatchee before it conducted
its follow-up inspections. Finally, the record indicates that
DSHS may have been deliberately refusing to communicate
with Kilkelly despite his expressed willingness to install a
sprinkler system. In the context of an interlocutory appeal on
qualified immunity, these facts indicate that CarePartners has
demonstrated that Kilkelly’s protected expression may well
have been a substantial factor in the State employees’ aggres-
sive enforcement decisions.
The district court properly declined to determine whether
the State would have made the decisions it did in the absence
of Kilkelly’s protected speech and petition activity because
issues of fact remained with regard to the State employees’
motivations. Id. at 1316 (“[T]he potential section 1983 liabil-
ity depends upon the defendants’ motivation. This is a genu-
ine issue of material fact and is therefore inappropriate for
summary judgment.”) (citation omitted). The district court
provided, however, that once the parties conducted additional
discovery they could file new motions for summary judgment.
We may not make factual findings regarding the State
employees’ motivations, and thus leave this question for fur-
ther proceedings in the district court.8
8
This conclusion is not altered by the State employees’ thinly supported
request that we accord some type of preclusive effect to an order of the
Superior Court of Washington dismissing CarePartners’s administrative
appeal with prejudice. They argue that the dismissal of that appeal demon-
strates that the validity of the licensing actions is a “verity,” and thus the
enforcement action would have occurred despite any retaliatory motive.
The argument is not persuasive. First, the administrative appeal was not
decided on the merits and the claim was not actually litigated, as the court
dismissed the appeal with prejudice because CarePartners withdrew its
appeal. See Collins v. D.R. Horton, Inc., 505 F.3d 874, 880 & n.5 (9th Cir.
2007). Second, the district court refused to consider the State employees’
“res judicata” argument because it was first raised in a reply brief and
CarePartners was unable to respond to the argument. We will not ordinar-
ily consider an issue raised for the first time on appeal, and decline to do
so here. See Int’l Union of Bricklayers & Allied Craftsmen Local Union
No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).
CAREPARTNERS v. LASHWAY 13641
2. Importation of the public concern requirement and
the Pickering Balancing Test
The State employees assert that two criteria applicable to
the evaluation of a public employee’s speech-based retaliation
claims should apply generally to First Amendment retaliation
claims by regulated entities: first, that the speech at issue
address a matter of public concern; and, second, that even if
that speech addresses a matter of public concern it survive
what is known as the Pickering balancing test. They rely pri-
marily on Tennessee Secondary School Athletic Association v.
Brentwood Academy, 127 S. Ct. 2489 (2007), which they
argue held that the public concern requirement and Pickering
balancing test apply generally to the regulated entity context.
In Brentwood Academy, the Court held that a state-sponsored
high school athletic league could impose conditions on its
member schools’ coaches’ speech—aimed at “hard-sell
recruiting” of middle school children to high school teams—
that were necessary to managing an efficient and effective
league. Id. at 2495. As discussed below, however, Brentwood
Academy is distinguishable. Moreover, the rationales underly-
ing the “public concern” requirement and the Pickering bal-
ancing test in the public employee context do not support the
extension of this analytical framework to the regulated entity
context.
[4] In the specific context of speech-based retaliation
claims made by public employees, the Supreme Court has
held that the “First Amendment’s guarantee of freedom of
speech protects government employees from termination
because of their speech on matters of public concern.” Bd. of
County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996) (citing
Connick v. Meyers, 461 U.S. 138, 146 (1983)); see also Gar-
cetti v. Ceballos, 547 U.S. 410, 417 (2006). Analysis of a
government employee’s speech-based retaliation claim is sim-
ilar to speech-based retaliation claims by regulated entities—
the employee must initially show that the conduct at issue was
protected and that it was a substantial or motivating factor for
13642 CAREPARTNERS v. LASHWAY
the adverse action, with the burden then shifting to the gov-
ernment to demonstrate that it would have taken the same
action in the absence of the protected conduct—but adds two
additional criteria. See Umbehr, 518 U.S. at 675 (citing Mt.
Healthy, 429 U.S. at 287); Garcetti, 547 U.S. at 418. First, the
public employee’s speech at issue must be on a matter of pub-
lic concern, i.e., speech made as a private citizen “fairly con-
sidered as relating to any matter of political, social, or other
concern to the community,” as opposed to speech by an
employee about matters of personal interest. See Connick, 461
U.S. at 146-48; see also Umbehr, 518 U.S. at 675-76. Second,
even an adverse action based on protected speech “may be
justified when legitimate countervailing government interests
are sufficiently strong.” Umbehr, 518 U.S. at 675.
[5] This latter aspect, the “Pickering balancing test,” recog-
nizes that First Amendment rights of a government employee
in retaliation claims depend on the “ ‘balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees.’ ” Umbehr, 518 U.S. at
676 (alteration in original) (quoting Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968)); see also Garcetti, 547 U.S. at 418(“A government entity has broader discretion to restrict
speech when it acts in its role as employer, but the restrictions
it imposes must be directed at speech that has some potential
to affect the entity’s operations.”).9
[6] The additional criteria for a government employee’s
retaliation claim based on First Amendment activity do not
categorically apply to a claim by a regulated entity. The his-
tory, rationale, and limited nature of the public concern
requirement and Pickering balancing test, as well as existing
9
In Umbehr, the Supreme Court extended this analytical framework to
cover independent government contractors. 518 U.S. at 677, 685; accord
Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004).
CAREPARTNERS v. LASHWAY 13643
circuit precedent, do not support their application in the regu-
lated entity context. In Connick, the Supreme Court discussed
the public concern requirement with specific and limited ref-
erence to the field of public employee speech and explained
that it was based on the need to balance government employ-
ees’ speech rights with the government’s needs as an
employer. 461 U.S. at 142-44; see also Thaddeus-X v. Blatter,
175 F.3d 378, 390 (6th Cir. 1999) (en banc) (per curiam) (not-
ing, in discussing the origins of the public concern test, that
“[t]he story of the public concern limitation is a story about
the free speech of public employees”).10
[7] Moreover, we have already prescribed the framework
for analyzing speech and petition-based retaliation claims by
regulated entities, and that framework does not include the
question of whether the speech was on a matter of public con-
cern or use of the Pickering balancing test. See Soranno’s
Gasco, 874 F.2d at 1314-15.11 Although the Soranno’s Gasco
court did not specifically address the public concern require-
ment or the Pickering balancing test, it surely was apprised,
in 1989, of the approach that the Supreme Court had adopted
in its public employee speech retaliation cases. See, e.g., Con-
nick, 461 U.S. 138 (decided in 1983); Pickering, 391 U.S. 563(decided in 1968).
10
We note that the public concern requirement and the Pickering balanc-
ing test have their genesis in the Supreme Court’s attempts to expand, not
reduce, the public employees’ speech rights. See Connick, 461 U.S. at
143-46. These criteria represent the culmination of years of decisions that
whittled away the “unchallenged dogma . . . that a public employee had
no right to object to conditions placed upon the terms of employment—
including those which restricted the exercise of constitutional rights.” Id.
at 143. The Court’s intent was to safeguard public employees’ rights to
speak on matters of public concern.
11
Similarly, in Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d
147, 151-52 (2d Cir. 2006), the Second Circuit discussed the standards to
be used to evaluate a nursing home’s claim that state and federal regula-
tors retaliated against it because of its complaints, protests, and lawsuits
regarding regulations, but did not mention the public concern requirement
or the Pickering balancing test.
13644 CAREPARTNERS v. LASHWAY
The rationales for the public concern requirement as well
as the Pickering balancing test weigh against their application
to retaliation claims by regulated entities. In discussing the
public concern test, the Third Circuit stated:
The “public concern” test was formulated by the
Supreme Court in addressing speech restrictions
placed by governmental entities on their own public
employees. Regulation of public employee speech
presented two features not present in other forms of
speech control. First, acting as an employer, the gov-
ernment has some authority to impose conditions
upon those who seek jobs, including conditions that
limit the exercise of otherwise available constitu-
tional rights. Second, “[w]hen someone who is paid
a salary so that she will contribute to an agency’s
effective operation begins to do or say things that
detract from the agency’s effective operation, the
government employer must have some power to
restrain her.”
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 283 (3d Cir.
2004) (citations omitted).
[8] The Fifth Circuit has similarly noted that, “[i]n general,
courts have invoked two reasons for applying the [public con-
cern requirement and the Pickering balancing] test outside of
the employment context: [first,] that the relationship involved
was analogous to an employer-employee relationship[; and,
second,] that the principle underlying Connick warranted its
application,” i.e., the need to balance between the interests of
the employee, as citizen, in commenting upon matters of pub-
lic concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees. See Blackburn v. City of Marshall, 42
F.3d 925, 932-34 (5th Cir. 1995) (collecting cases where pub-
lic concern requirement was extended to cover relationships
analogous to government employer-employee relationship).
CAREPARTNERS v. LASHWAY 13645
Here, the relationship between CarePartners, a licensee, and
the State of Washington does not resemble an employment
relationship, and CarePartners’s grievances do not resemble
ordinary workplace grievances.12
[9] Other circuits have also cautioned against extending the
criteria beyond the public employment context, noting the ori-
gins and limited nature of the public concern requirement and
the Pickering balancing test. See Jenkins v. Rock Hill Local
Sch. Dist., 513 F.3d 580, 586-87 (6th Cir. 2008) (alleged
retaliation by school board against student for mother’s
speech); Van Deelen v. Johnson, 497 F.3d 1151, 1156-57
(10th Cir. 2007) (declining to apply criteria to alleged retalia-
tion against taxpayer for bringing tax assessment challenges);
Campagna v. Mass. Dep’t of Envtl. Prot., 334 F.3d 150, 154-
55 (1st Cir. 2003) (declining to apply criteria to alleged retali-
ation against state employee, who also was a private certified
septic system inspector, for filing previous lawsuit against
county); Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir.
2000) (declining to apply criteria to alleged retaliation against
prisoner for having sought public assistance benefits); Vickery
v. Jones, 100 F.3d 1334, 1346 n.1 (7th Cir. 1996) (declining
to apply criteria to alleged retaliation by Illinois State officials
and Illinois Republican Party against applicant for appoint-
ment to a “temporary highway maintainer” position because
of political affiliation). We find our colleagues’ reasoning
persuasive and accordingly do not apply the public concern
requirement and Pickering balancing test to CarePartners’s
retaliation claim.
[10] Finally, we distinguish Brentwood Academy, 127
S. Ct. 2489, upon which the State employees rely for their
12
In contrast, in Havekost v. U.S. Department of the Navy, 925 F.2d 316,
317-18 (9th Cir. 1991), we noted that the Connick/Pickering standards
were not directly on point, but applied public employee standards to the
retaliation claim of a grocery bagger licensed to work in a military facility
where the speech at issue was “nothing more than a workplace grievance.”
13646 CAREPARTNERS v. LASHWAY
requested extension of the law governing First Amendment
retaliation claims by public employees. Brentwood Academy
involved the regulation of speech rights that the high schools
at issue contracted away in exchange for participation in a pri-
vate athletic league deemed by the Court to be a state actor.
Where an entity specifically contracts with a government
entity for a benefit which directly flows from some limitation
of speech, a challenge to the contracted-for limitation raises
concerns similar to the public employee context: whether the
speech is on a matter of public concern, and whether the gov-
ernment has an employer-like interest in the controversy.
Those concerns are not present here. Nothing in Brentwood
Academy suggests that these additional criteria should be
applied to all entities that are to a greater or lesser extent regu-
lated by a government. Rather, consistent with our colleagues
from other circuits and with the shifting of burdens that
occurs once a showing of protected activity has been made,
we hold that the State employees have failed to show that
their relationship with CarePartners is sufficiently analogous
to the public employee context to allow the imposition of the
additional criteria. We conclude that Brentwood Academy
does not compel this court to extend the public employee
retaliation analysis beyond its current moorings in this circuit.
B. Clearly established rights
[11] Having established a constitutional violation based on
the facts alleged by CarePartners, we next turn to the question
of whether the First Amendment rights violated were “clearly
established” at the time of the alleged violations, i.e., “[t]he
contours of the right must be sufficiently clear that a reason-
able official would understand that what he is doing violates
that right.” Saucier, 533 U.S. at 202 (citation and internal
quotation marks omitted). “This inquiry . . . must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Id. at 201. However, the injured
party “need not establish that the Defendants’ ‘behavior had
been previously declared unconstitutional.’ ” Hydrick v.
CAREPARTNERS v. LASHWAY 13647
Hunter, 500 F.3d 978, 989 (9th Cir. 2007) (quoting Blueford
v. Prunty, 108 F.3d 251, 254 (9th Cir. 1997)). The dispositive
inquiry is “whether it would be clear to a reasonable [official]
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202.
[12] As the district court properly concluded, the relevant
law was clearly established at the time of the alleged viola-
tion. In Soranno’s Gasco, decided in 1989, we held that it is
unlawful for the government to deliberately retaliate against
a citizen for exercising his right to comment on (and publicly
criticize) government officials’ actions and his right to access
the courts and administrative appeals process for redress of
grievances. 874 F.2d at 1314-15 (citing Mt. Healthy, 429 U.S.
274). As discussed above, the facts in Soranno’s Gasco
closely resemble the facts in the present appeal—both cases
involve a regulated entity claiming intentional retaliation by
government officials because of the exercise of speech and
petition rights. Notably, in discussing a qualified immunity
defense, we stated that “[i]t could hardly be disputed that at
the time of the permit suspension an individual had a clearly
established right to be free of intentional retaliation by gov-
ernment officials based upon that individual’s constitutionally
protected expression.” Id. at 1319. Accordingly, based on the
allegations of CarePartners before the court on summary judg-
ment, we conclude that it would have been “clear to a reason-
able [official] that his conduct was unlawful in the situation
he confronted.” Saucier, 533 U.S. at 202. Therefore, the First
Amendment rights advanced by CarePartners were clearly
established for the purpose of evaluating the State employees’
qualified immunity defense.
The State employees argue, however, that the question of
whether to apply a “matter of public concern” requirement
from the public employee context to regulated entities’ speech
is unsettled and thus the law is not clearly established. They
contend that Soranno’s Gasco does not resolve the issue
because the parties in that case did not raise the “public con-
13648 CAREPARTNERS v. LASHWAY
cern” argument that the State employees have raised here,
and, therefore, the court made no determination on that more
particularized question.
[13] However, the assertion of an unsuccessful defense to
a violation of a constitutional right does not render the right
“unsettled” or not “clearly established.” Notwithstanding the
fact that the Soranno’s Gasco court did not make a specific
holding regarding the application of the “public concern”
requirement and Pickering balancing test beyond the public
employee context, that panel addressed a regulated entity’s
precise claim of retaliation by government officials as a result
of the entity’s owners’ public comments and petition to the
courts to challenge a regulatory act. The scope of the rights
at issue here were particularized enough at the time of the vio-
lation to satisfy the Saucier test for “clearly established” law.
The State employees also argue that this court should not
rely on Soranno’s Gasco because that decision relied in part
on a causation test from the public employee context, Mt.
Healthy, 429 U.S. 274. Far from being persuasive, this tends
to bolster the argument that the public concern should not be
grafted onto the regulated entity context because the Soran-
no’s Gasco court knew of the causation test and yet decided
not to apply it to the regulated entity’s retaliation claim.
Finally, we reject any suggestion that the State employees
could have believed, “reasonably but mistakenly,” that their
conduct did not violate a clearly established constitutional
right. Inouye, 504 F.3d at 712 & n.6; Skoog, 469 F.3d at 1229.
The speech and petition rights at issue have been clearly
established in this circuit since 1989. At least at the summary
judgment stage, absent some type of extraordinary showing
that is not present here, a court could hardly find that the gov-
ernment officials “reasonably but mistakenly” believed that
they could retaliate against a regulated entity and its owners
for exercising their First Amendment rights.
CAREPARTNERS v. LASHWAY 13649
IV. Conclusion
The district court correctly concluded that a grant of quali-
fied immunity would be premature because CarePartners
could potentially establish a prima facie case of retaliation
given the opportunity to conduct full discovery. Taking Care-
Partners’s allegations as true, it established that Kilkelly
engaged in protected speech and petition activities, and that
such activities may have been a substantial or motivating fac-
tor for the State employees’ disparate enforcement action.
Moreover, the State employees failed to show that the consti-
tutional rights at issue were not clearly established. Finally,
we hold that the public concern requirement and Pickering
balancing test do not apply to First Amendment retaliation
claims in the regulated entity context. Accordingly, the dis-
trict court’s denial of summary judgment on qualified immu-
nity is AFFIRMED.