Joe Carollo v. Luigi Boria , 833 F.3d 1322 ( 2016 )


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  •               Case: 15-11512     Date Filed: 08/17/2016    Page: 1 of 24
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-11512
    ________________________
    D.C. Docket No. 1:14-cv-23980-UU
    JOE CAROLLO,
    Plaintiff -Appellee,
    versus
    LUIGI BORIA, et al.,
    Defendants - Appellants.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (August 17, 2016)
    Before MARCUS and FAY, Circuit Judges, and FRIEDMAN, ∗ District Judge.
    FRIEDMAN, District Judge:
    ∗
    The Honorable Paul L. Friedman, United States District Judge for the District of
    Columbia, sitting by designation.
    Case: 15-11512     Date Filed: 08/17/2016     Page: 2 of 24
    Defendant-appellants Luigi Boria, Sandra Ruiz, and Christine Fraga
    (collectively “appellants”), all city officials, terminated plaintiff-appellee Joe
    Carollo from his position as City Manager for the City of Doral after he reported to
    law enforcement and other agencies appellants’ alleged misconduct and made
    public disclosures about the same. Carollo brought this civil action against
    appellants under 42 U.S.C. § 1983, alleging a violation of his First Amendment
    rights. The district court denied appellants’ motion to dismiss on the basis of
    qualified immunity, finding that the First Amendment protected Carollo’s speech
    because he made the reports to law enforcement and other agencies as well as the
    public disclosures in his capacity as a citizen and not in connection with his
    ordinary job responsibilities as City Manager. The district court also found that
    precedent existing at the time of his termination clearly established Carollo’s First
    Amendment rights.
    After careful review, we affirm the district court in part and reverse it in
    part. We remand with instructions to grant Carollo leave to amend his complaint
    to cure the defects we identify and then to proceed to discovery.
    I. BACKGROUND
    In early 2013, City of Doral Mayor Luigi Boria proposed and the City of
    Doral City Council approved the appointment of Joe Carollo as City Manager.
    Appellants Boria, Christine Fraga (the City of Doral Vice-Mayor), and Sandra
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    Ruiz (a City of Doral Councilwoman) were each voting members of the City
    Council. Section 3.03 of the City of Doral Municipal Charter includes the
    following job responsibilities of the City Manager:
    (2) Direct and supervise the administration of all departments and
    offices but not City boards or agencies . . . ; (3) Attend all Council
    meetings and have the right to take part in discussion but not the right
    to vote; (4) Ensure that all laws, provisions of this Charter and acts of
    the Council, subject to enforcement and/or administration by him/her
    or by officers subject to his/her direction and supervision, are
    faithfully executed[.]
    Section 3.01 generally describes the City Manager as “the chief administrative
    officer of the City” who is “responsible to the [City] Council for the administration
    of all City affairs.”
    During his tenure as City Manager, Carollo “reported to local and federal
    agencies violations of state and [f]ederal law” by the appellants “that were
    personally communicated to him,” and “made public disclosures” at City Council
    meetings about those violations.1 Carollo’s reports to these agencies and his public
    disclosures concerned mainly three categories of alleged misconduct: (1) Boria
    and Ruiz’s violations of Florida’s campaign finance laws; (2) Boria and Fraga’s
    violations of Florida’s financial disclosure laws for elected officials; and (3)
    Boria’s corruption.
    1
    The entities to which Carollo reported alleged violations were the Miami-Dade County
    Commission on Ethics and Public Trust, the Miami-Dade Police Department’s Public Corruption
    Unit, the Doral Police Department, and the Federal Bureau of Investigation.
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    Carollo reported these three allegations of misconduct to law enforcement
    and other agencies, as well as publicly disclosed the allegations at City Council
    meetings. The first allegation was that Boria and Ruiz violated Florida campaign
    finance laws when Boria accepted illegal campaign contributions in the form of
    unreported, drastically under-market rent for his campaign headquarters, and Ruiz
    failed to report a political action committee’s spending on behalf of her campaign.
    The second allegation was that Boria and Fraga failed to list their secondary
    sources of income on Florida’s “Form 6” financial disclosures for public officials
    in 2011 and 2012. The third and final allegation was that Boria engaged in various
    forms of corruption such as, for example, refusing to recuse himself from a City
    Council zoning vote on a residential development project in which the developers
    were his two children and “a long time business associate of Boria with whom
    Boria has a debtor-creditor relationship.” On Carollo’s allegation, Boria sought to
    advantage this project by pressuring the City of Doral Director of Zoning and
    Planning to drop his support for a competing residential development project and
    making burdensome demands upon the developer of the competing project. 2
    On April 23, 2014, the City Council voted to terminate Carollo as City
    Manager with appellants providing the only three votes in favor of termination.
    2
    In addition to these allegations of corruption, which involve interference with city
    zoning decisions and self-dealing, Carollo also alleges that Boria engaged in corruption because
    he interfered with city contract decisions, filed false police reports against Carollo, used public
    money inappropriately, and violated the City’s cone of silence law.
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    On October 24, 2014, Carollo filed a complaint in the United States District Court
    for the Southern District of Florida against appellants and the City of Doral,
    alleging three claims: (1) retaliation in violation of the First Amendment; (2)
    violations of Florida’s Whistle-blower’s Act, FLA. STAT. ANN. § 112.3187 et seq.;
    and (3) violations of the City of Doral Municipal Charter. 3 Carollo attached the
    Municipal Charter as an exhibit to his complaint and pled that the First
    Amendment protects each of his reports and public disclosures. As relevant here,
    appellants moved to dismiss the First Amendment retaliation claim on the basis of
    qualified immunity. They argued that they did not violate Carollo’s First
    Amendment rights because he made his reports and public disclosures in his
    capacity as City Manager and not as a citizen, and that, even if that was not the
    case, those First Amendments rights were not clearly established in this Circuit at
    the time appellants voted to terminate Carollo as City Manager.
    The district court denied appellants’ motion to dismiss. First, it held that
    Carollo spoke as a citizen and not pursuant to his official duties, and that his
    complaint therefore stated a plausible First Amendment retaliation claim. The
    court based that conclusion on the fact that Carollo’s ordinary job responsibilities
    as enumerated in the Municipal Charter did not include enforcing Florida’s
    campaign finance laws, Florida’s financial disclosure laws for elected officials, or
    3
    Carollo later agreed to dismiss the individual defendants from the Whistle-blower’s Act
    claim, leaving only the City of Doral as a defendant for that claim.
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    laws relating to public corruption. The district court also rejected appellants’
    reliance on Section 3.03(4) of the Municipal Charter — which empowers the City
    Manager to “[e]nsure that all laws . . . are faithfully executed” — because that
    provision limits the City Manager’s duties to “all laws” that are “subject to
    enforcement and/or administration by” him. Second, the district court held that
    Carollo’s First Amendment rights were clearly established at the time appellants
    voted to terminate him because appellants “have been on notice” since the
    Supreme Court’s decision in Pickering v. Bd. of Ed. of Township High School
    Dist., 205, 
    391 U.S. 563
    (1968), “that a public employee may be protected under
    the First Amendment when the employee learns of matters of public concern
    through his or her employment and the employee speaks out as a citizen on those
    matters.” The district court also noted that the Supreme Court’s decision in
    Garcetti v. Ceballos, 
    547 U.S. 410
    (2006), reaffirmed Pickering.
    Appellants filed this interlocutory appeal from the district court’s denial of
    qualified immunity, challenging both its merits determination that Carollo’s
    complaint stated a plausible First Amendment retaliation claim and its immunity
    determination that precedent in this Circuit at the time of the alleged violation
    “clearly established” Carollo’s First Amendment rights.
    II. DISCUSSION
    Our jurisdiction is limited to appeals from “final decisions” of the district
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    court, 28 U.S.C. § 1291, and a district court’s denial of a motion to dismiss
    ordinarily is not a “final decision[].” See In re Hubbard, 
    803 F.3d 1298
    , 1305
    (11th Cir. 2015). But there exists a “small class of collateral rulings that, although
    they do not end the litigation, are appropriately deemed ‘final.’” Royalty Network,
    Inc. v. Harris, 
    756 F.3d 1351
    , 1355 (11th Cir. 2014) (citing Mohawk Indus., Inc. v.
    Carpenter, 
    558 U.S. 100
    , 106 (2009)). The Supreme Court “has been careful to say
    that a district court’s order rejecting qualified immunity at the motion-to-dismiss
    stage of a proceeding is a ‘final decision’ within the meaning of § 1291.” Ashcroft
    v. Iqbal, 
    556 U.S. 662
    , 672 (2009). We thus have jurisdiction to review appellants’
    interlocutory appeal.
    “We review de novo a district court’s denial of qualified immunity. The
    determination of whether a complaint sufficiently alleges a constitutional violation
    also is a matter of law reviewed de novo. In reviewing a complaint, we accept all
    well-pleaded factual allegations as true and construe the facts in the light most
    favorable to the plaintiff.” Cottone v. Jenne, 
    326 F.3d 1352
    , 1357 (11th Cir. 2003).
    “In order to receive qualified immunity, the public official ‘must first prove
    that he was acting within the scope of his discretionary authority when the
    allegedly wrongful acts occurred.’” Lee v. Ferraro, 
    284 F.3d 1188
    , 1194 (11th Cir.
    2002) (quoting Courson v. McMillian, 
    939 F.2d 1479
    , 1487 (11th Cir. 1991)).
    There is no dispute here that appellants acted within the scope of their
    7
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    discretionary authority when they voted to terminate Carollo from his position as
    City Manager.
    “After the defendant has established that he was acting in a discretionary
    capacity, ‘the burden shifts to the plaintiff to show that qualified immunity is not
    appropriate.’” Brooks v. Warden, 
    800 F.3d 1295
    , 1306 (11th Cir. 2015) (quoting
    
    Lee, 284 F.3d at 1194
    ). To meet this burden, a plaintiff must establish that (1) his
    complaint pleads a plausible claim that the defendant violated his federal rights
    (the “merits” prong), and that (2) precedent in this Circuit at the time of the alleged
    violation “clearly established” those rights (the “immunity” prong). See Saucier v.
    Katz, 
    533 U.S. 194
    , 201 (2001), overruled in part by Pearson v. Callahan, 
    555 U.S. 223
    , 234-35 (2009); see also 
    Brooks, 800 F.3d at 1306
    .
    We are free to address the merits or the immunity prong of the qualified
    immunity analysis in any order, see 
    Pearson, 555 U.S. at 236
    , and choose to begin
    with the merits here in order to clarify the First Amendment rights of public
    employees.
    A. Merits of Carollo’s First Amendment Claim
    Rule 8(a)(2) of the Federal Rules of Civil Procedure demands that a
    complaint “must contain . . . a short and plain statement of the claim showing that
    the pleader is entitled to relief,” and Rule 12(b)(6) allows a defendant to move to
    8
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    dismiss the complaint if it “fail[s] to state a claim upon which relief can be
    granted.” “To survive a motion to dismiss under Federal Rule of Civil Procedure
    12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true, to
    state a claim to relief that is plausible on its face.’” Bowen v. Warden Baldwin
    State Prison, --- F.3d ----, 
    2016 WL 3435501
    , at *4 (11th Cir. June 22, 2016)
    (quoting 
    Iqbal, 556 U.S. at 678
    ); see also Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007). “It is established law in this circuit that ‘the Twombly-Iqbal
    plausibility standard” applies equally to ‘[p]leadings for § 1983 cases involving
    defendants who are able to assert qualified immunity as a defense.’” Bowen, ---
    F.3d ----, 
    2016 WL 3435501
    , at *4 (quoting Randall v. Scott, 
    610 F.3d 701
    , 707
    n.2, 709 (11th Cir. 2010)); see also Hoefling v. City of Miami, 
    811 F.3d 1271
    ,
    1276 (11th Cir. 2016). “Determining whether a complaint states a plausible claim
    for relief will . . . be a context-specific task that requires the reviewing court to
    draw on its judicial experience and common sense.” 
    Iqbal, 556 U.S. at 679
    ; see
    also Adinolfe v. United Techs. Corp., 
    768 F.3d 1161
    , 1175-76 (11th Cir. 2014).
    Here, Carollo’s claim is that appellants voted to terminate his employment
    as City Manager in retaliation for him exercising his federal constitutional rights
    under the First Amendment. The Supreme Court in Garcetti v. Ceballos, 
    547 U.S. 410
    (2006), explained that its decision in Pickering “identif[ies] two inquiries to
    guide interpretation of the constitutional protections accorded to public employee
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    speech”:
    The first requires determining whether the employee spoke as a
    citizen on a matter of public concern. If the answer is no, the
    employee has no First Amendment cause of action based on his or her
    employer’s reaction to the speech. If the answer is yes, then the
    possibility of a First Amendment claim arises. The question becomes
    whether the relevant government entity had an adequate justification
    for treating the employee differently from any other member of the
    general public.
    
    Garcetti, 547 U.S. at 418
    (internal citations omitted). Our focus in this
    interlocutory appeal is entirely on the first inquiry because appellants acknowledge
    that Carollo spoke on a matter of public concern and do not argue that they had an
    adequate justification for terminating him other than his speech. They dispute only
    whether Carollo spoke “as a citizen” when he made the reports and disclosures
    identified in the complaint. Whether a public employee spoke as a citizen is a
    “question[] of law for the court to resolve.” Alves v. Bd. of Regents of the Univ.
    Sys. of Ga., 
    804 F.3d 1149
    , 1159 (11th Cir. 2015).
    The Supreme Court in Garcetti explained that the line between speaking as a
    citizen or as a public employee turns on whether the speech “owes its existence to
    a public employee’s professional 
    responsibilities.” 547 U.S. at 421-22
    . If the
    speech does, then “[r]estricting [it] . . . does not infringe any liberties the employee
    might have enjoyed as a private citizen. It simply reflects the exercise of employer
    control over what the employer itself has commissioned or created.” Id.; see also
    Boyce v. Andrew, 
    510 F.3d 1333
    , 1342-43 (11th Cir. 2007) (collecting cases
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    “[f]ollowing Garcetti” in which we interpreted the phrase “owes its existence to”).
    In Lane v. Franks, 
    134 S. Ct. 2369
    (2014), the Supreme Court clarified what it
    meant in Garcetti when it used the phrase “owes its existence to”:
    [T]he mere fact that a citizen’s speech concerns information acquired
    by virtue of his public employment does not transform that speech
    into employee — rather than citizen — speech. The 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 concerns
    those duties . . . .
    
    Id. at 2379.
    4 We subsequently explained that “[a]fter Lane,” Garcetti’s phrase
    “owes its existence to . . . must be read narrowly to encompass speech that an
    employee made in accordance with or in furtherance of the ordinary
    responsibilities of her employment, not merely speech that concerns the ordinary
    responsibilities of her employment.” 
    Alves, 804 F.3d at 1162
    .
    1. Reports About Violations of Florida’s Campaign Finance Laws
    Appellants do not argue that it was one of Carollo’s ordinary job
    responsibilities as City Manager to ensure that other public officials complied with
    Florida’s campaign finance laws. Their only argument with respect to Carollo’s
    statements concerning Florida’s campaign finance laws is that all of Carollo’s
    4
    The fact that the Supreme Court’s decision in Lane post-dates appellants’ decision to
    terminate Carollo does not foreclose us from applying it to the merits prong of our qualified
    immunity analysis because, like any motion to dismiss under Rule 12(b)(6), we assess the facial
    plausibility of Carollo’s claims under current precedent. See 
    Pearson, 555 U.S. at 232
    (“[A]
    court must decide whether the facts that a plaintiff has alleged . . . make out a violation of a
    constitutional right.”).
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    allegedly protected speech “fall[s] squarely within” the scope of the City
    Manager’s duty in Section 3.03(4) of the Municipal Charter to “[e]nsure that all
    laws . . . subject to enforcement and/or administration by him/her . . . are faithfully
    executed[.]” But this language begs the question of which laws are “subject to
    enforcement and/or administration” by the City Manager. The Municipal Charter
    elsewhere describes the City Manager as “responsible to the [City] Council for the
    administration of all City affairs.” But the scope of those affairs is a mystery.
    It is not appropriate at the motion to dismiss stage for us to interpret the
    Municipal Charter’s ambiguous job description for the City Manager. See
    
    Garcetti, 547 U.S. at 424-25
    (“The proper inquiry is a practical one” wherein
    “[f]ormal job descriptions often bear little resemblance to the duties an employee
    actually is expected to perform.”). Discovery will illuminate exactly which laws
    Carollo had the responsibility to enforce or administer and, in fact, enforced or
    administered in the ordinary course of his job responsibilities. Nonetheless, with
    respect to the only question before us under Rules 8(a) and 12(b)(6) — whether,
    taking the factual allegations in the complaint as true, the complaint states a claim
    — we find it plausible under Iqbal and Twombly that Carollo spoke as a citizen
    and not pursuant to his ordinary job duties as City Manager when he made
    statements to law enforcement and other agencies about how Boria and Ruiz
    violated Florida’s campaign finance laws. “[A]t this stage and on the pleadings
    12
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    alone, [appellants] are not entitled to the protections of qualified immunity” on this
    claim. Bowen, --- F.3d ----, 
    2016 WL 3435501
    , at *9.
    Carollo’s status as a supervising public official does not alter our conclusion
    that he has plausibly alleged that he spoke as a citizen about violations of Florida’s
    campaign finance laws. In Moss v. City of Pembroke Pines, 
    782 F.3d 613
    (11th
    Cir. 2015), we expressed a reluctance to conclude that “a high-ranking employee”
    who has “broad administrative responsibilities” could speak as a citizen and not
    pursuant to those responsibilities. See 
    id. at 620.
    The plaintiff in that case was an
    Assistant Fire Chief whom we concluded spoke pursuant to his ordinary job
    responsibilities because he testified at trial about his “self-described duties,”
    including a statement that his supervisory position “gave his statements
    legitimacy.” 
    Id. at 620
    & n.1. We read Moss, like Garcetti, to stand for the
    proposition that a supervising public official’s ordinary job responsibilities often
    extend beyond what is written in a formal job description. 
    Id. at 618-19.
    Appellants, however, offer no plausible argument that Carollo’s broad
    administrative responsibilities included enforcing Florida’s campaign finance laws,
    nor could they in the absence of discovery that better reveals Carollo’s ordinary job
    responsibilities as City Manager.
    Finally, appellants advance two arguments that Lane expressly rejected:
    (1) Carollo bore the “implied duty of public employees to report suspected
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    misconduct,” rendering all of his speech a part of his ordinary job responsibilities
    as City Manager; and (2) Carollo’s reports to law enforcement and other agencies
    were necessarily pursuant to his ordinary job responsibilities as City Manager
    because law enforcement “would [not] contact an ordinary citizen.” Taking these
    arguments in turn, the Supreme Court in Lane considered and rejected an “implied
    duty” as follows:
    It would be antithetical to our jurisprudence to conclude that the very
    kind of speech necessary to prosecute corruption by public officials —
    speech by public employees regarding information learned through
    their employment — may never form the basis for a First Amendment
    retaliation claim. Such a rule would place public employees who
    witness corruption in an impossible 
    position[.] 134 S. Ct. at 2380
    . We agree that appellants’ suggested implied duty would
    eviscerate the role of the First Amendment in protecting public employees who act
    as whistleblowers and therefore disavow it here. The Supreme Court also
    explained in Lane that the “mere fact that a citizen’s speech concerns information
    acquired by virtue of his public employment does not transform that speech into
    employee — rather than citizen — speech.” 
    Id. at 2379.
    Our focus is on whether
    Carollo as City Manager ordinarily made reports to law enforcement and other
    agencies about violations of Florida’s campaign finance laws, not whether an
    “ordinary citizen” could make those reports.
    It is plain that Carollo’s ordinary job duties as City Manager did not include
    anything to do with enforcing Florida’s campaign finance laws – such matters as
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    how Boria and Ruiz ran and financed their campaigns. We therefore conclude that
    Carollo has pled a plausible First Amendment claim under Iqbal and Twombly that
    he spoke as a citizen and not pursuant to his ordinary job duties as City Manager
    when he made reports to law enforcement and other agencies about Boria and
    Ruiz’s violations of Florida’s campaign finance laws.
    2. All of Carollo’s Remaining Speech
    As to Carollo’s other claims, we conclude that Carollo’s poorly-drafted
    complaint does not state plausible claims that he spoke as a citizen and not
    pursuant to ordinary job responsibilities when he made (1) reports to law
    enforcement and other agencies about Boria and Fraga’s violations of Florida’s
    financial disclosure laws for elected officials; (2) reports to law enforcement and
    other agencies about Boria’s corruption; and (3) public disclosures at City Council
    meetings. We will remand the case to the district court with instructions that it
    permit Carollo to amend his complaint in order to attempt to cure the defects that
    we identify. The case should then proceed to discovery, after which appellants
    may again raise qualified immunity on a motion for summary judgment, if
    appropriate. See Bowen, --- F.3d ----, 
    2016 WL 3435501
    , at *9 (“This case may
    look very different as it moves beyond the pleadings and the record is developed
    more fully [and] . . . ‘defendants [are] not precluded from asserting the qualified
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    immunity defense throughout the proceedings as the facts develop[.]’” (quoting
    Oladeinde v. City of Birmingham, 
    230 F.3d 1275
    , 1289 (11th Cir. 2000))).
    With respect to the first two categories, the Municipal Charter offers no
    guidance about whether the City Manager ordinarily makes reports to law
    enforcement and other agencies. Unlike Florida’s campaign finance laws, we find
    it plausible that at least some of Boria’s alleged corruption, such as interfering with
    City zoning matters, is within the scope of the City Manager’s ordinary job
    responsibilities. Cf. Adler v. Deegan, 
    167 N.E. 705
    , 711 (N.Y. 1929) (Cardozo,
    C.J., concurring) (“A zoning resolution in many of its features is distinctively a
    city affair, a concern of the locality, affecting, as it does, the density of population,
    the growth of city life, and the course of city values.”). And at this stage we have
    no basis on which to determine whether the City Manager ordinarily deals with
    Florida’s financial disclosure laws for public officials. Are they or are they not the
    kind of laws that are “subject to enforcement and/or administration” by him or by
    others subject to his direction or supervision? We simply do not know, and
    Carollo’s complaint does not tell us, for example, whether Carollo did or did not
    ordinarily involve himself in zoning or financial disclosure issues as City Manager.
    Carollo therefore has not pled a plausible claim that the First Amendment protects
    either (1) his reports to law enforcement and other agencies about Boria and
    Fraga’s alleged violations of Florida’s financial disclosure laws for public officials,
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    or (2) his reports to law enforcement and other agencies about Boria’s alleged
    corruption.
    As for Carollo’s public statements at City Council meetings that publicly
    disclosed the alleged misconduct, section 3.03(3) of the Municipal Charter
    empowers the City Manager to “[a]ttend all Council meetings and have the right to
    take part in discussion.” It is unclear from the complaint, however, whether it was
    part of Carollo’s ordinary responsibilities to speak at City Council meetings about
    matters such as violations of Florida’s campaign finance laws, Florida’s financial
    disclosure laws, or political corruption. In light of the plain language of Section
    3.03(3) of the Municipal Charter, we find it implausible that Carollo was speaking
    as a citizen when he made public disclosures concerning those matters at City
    Council meetings, and Carollo does not assert that he was. Carollo therefore has
    not pled a plausible claim that the First Amendment protects his public disclosures
    at City Council meetings.
    Nonetheless, we will remand the case to the district court with instructions
    for it to allow Carollo to amend his complaint to add allegations based on any facts
    or evidence that might make some or all of these claims plausible. A district court
    should freely give leave to amend “when justice so requires.” FED. R. CIV. P.
    15(a)(2); see Perez v. Wells Fargo N.A., 
    774 F.3d 1329
    , 1340 (11th Cir. 2014).
    Here, the district court set a “[c]ut-off date for adding parties or amended
    17
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    pleadings” of May 8, 2015, but stayed the proceedings before the cut-off date until
    the resolution of this appeal. Under these circumstances, we believe that justice
    requires giving Carollo an opportunity to file an amended complaint that resurrects
    those portions of his complaint that we dismiss by pleading facts that support the
    claim — if true — that he spoke as a citizen and not pursuant to his ordinary job
    responsibilities.
    The district court should then proceed directly to discovery, which will
    reveal, among other things, what precisely were Carollo’s ordinary job
    responsibilities. Indeed, each of the relevant cases from the Supreme Court and
    this Circuit to undertake Garcetti’s “practical inquiry” concerning whether a
    plaintiff spoke pursuant to ordinary job responsibilities or as a citizen did so at the
    summary judgment stage or later in the life of the case. See, e.g., 
    Lane, 134 S. Ct. at 2379-80
    (summary judgment); 
    Garcetti, 547 U.S. at 424-25
    (summary
    judgment); 
    Alves, 804 F.3d at 1158
    (summary judgment); 
    Moss, 782 F.3d at 620
    (judgment as a matter of law); D’Angelo v. Sch. Bd. of Polk Cty., Fla., 
    497 F.3d 1203
    , 1210 (11th Cir. 2007) (judgment as a matter of law); Vila v. Padron, 
    484 F.3d 1334
    , 1339 (11th Cir. 2007) (judgment as a matter of law); 
    Boyce, 510 F.3d at 1343-47
    (summary judgment); Phillips v. City of Dawsonville, 
    499 F.3d 1239
    ,
    1241 (11th Cir. 2007) (summary judgment). Development of the record through
    discovery will illuminate exactly what laws are “subject to enforcement and/or
    18
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    administration by” the City Manager and whether Carollo ordinarily made reports
    to law enforcement and other agencies like those at issue here.
    B. Whether Carollo’s First Amendment
    Rights Were Clearly Established
    “A Government official’s conduct violates clearly established law when, at
    the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
    clear’ that every ‘reasonable official would have understood that what he is doing
    violates that right.’” Ashcroft v. al-Kidd, 
    563 U.S. 731
    , 741 (2011) (quoting
    Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987)). “So conceived, the object of
    the ‘clearly established’ immunity standard is not different from that of ‘fair
    warning,’” United States v. Lanier, 
    520 U.S. 259
    , 270 (1997), and “ensure[s] that
    before they are subjected to suit, [public officials] are on notice their conduct is
    unlawful.” 
    Saucier, 533 U.S. at 206
    ; see also Moore v. Pederson, 
    806 F.3d 1036
    ,
    1046 (11th Cir. 2015) (“The touchstone of qualified immunity is notice.”). Any
    cases decided after April 23, 2014 — including the Supreme Court’s June 19, 2014
    decision in Lane — are not relevant to this analysis because they could not have
    provided appellants fair warning that their conduct was unconstitutional on April
    23, 2014. We therefore decline to consider the many cases decided after Lane to
    which appellants direct us.
    19
    Case: 15-11512      Date Filed: 08/17/2016    Page: 20 of 24
    “Our Circuit uses two methods to determine whether a reasonable official
    would understand that his conduct violates a constitutional right.” 
    Moore, 806 F.3d at 1047
    . The first asks whether “binding opinions from the United States
    Supreme Court, the Eleventh Circuit Court of Appeals, and the highest court in the
    state where the action is filed . . . gave [the defendant] fair warning that his
    treatment of [the plaintiff] was unconstitutional.” Merricks v. Adkisson, 
    785 F.3d 553
    , 559 (11th Cir. 2015). The second asks whether a public official’s “‘conduct
    lies so obviously at the very core of what [federal law] prohibits that the
    unlawfulness of the conduct was readily apparent to [the public official],
    notwithstanding the lack of fact-specific case law’ on point.” 
    Moore, 806 F.3d at 1047
    (quoting Fils v. City of Aventura, 
    647 F.3d 1272
    , 1291 (11th Cir. 2011)
    (internal quotation marks omitted)). Our concern here is with the first method
    because it is not “so obvious[]” that appellants violated the First Amendment in
    light of the close merits question of whether Carollo spoke as a citizen or pursuant
    to ordinary job responsibilities. 
    See supra
    § II(A).
    Under the first method, we determine whether existing law provides fair
    warning and notice “in light of the specific context of the case, not as a broad
    general proposition.” 
    Saucier, 533 U.S. at 201
    . Fair warning and notice do not
    require “a case directly on point, but existing precedent must have placed the
    statutory or constitutional question beyond debate,” that is to say, there must exist
    20
    Case: 15-11512     Date Filed: 08/17/2016    Page: 21 of 24
    a “robust ‘consensus of cases of persuasive authority.’” 
    al-Kidd, 563 U.S. at 741
    -
    42 (quoting Wilson v. Layne, 
    526 U.S. 603
    , 617 (1999)); see also Keating v. City
    of Miami, 
    598 F.3d 753
    , 766 (11th Cir. 2010) (“There need not . . . be a prior case
    wherein the very action in question has previously been held unlawful.” (internal
    quotation marks omitted)). At the same time, the Supreme Court has “repeatedly
    told” courts not to define clearly established law “at a high level of generality.” al-
    
    Kidd, 563 U.S. at 742
    ; see Doe v. Braddy, 
    673 F.3d 1313
    , 1319 (11th Cir. 2012)
    (“[Q]ualified immunity’s ‘clearly established’ test does not operate at a high level
    of generality.”). At base, “[i]f reasonable public officials could differ on the
    lawfulness of a defendant’s actions,” then the defendant did not have fair warning
    and notice, and “is entitled to qualified immunity.” Storck v. City of Coral
    Springs, 
    354 F.3d 1307
    , 1314 (11th Cir. 2003).
    The district court held that Carollo’s First Amendment rights were clearly
    established at the time appellants voted to terminate him based on Pickering v. Bd.
    of Ed. of Township High School Dist., 205, 
    391 U.S. 563
    (1968), and Garcetti v.
    Ceballos, 
    547 U.S. 410
    (2006). The court found that Pickering and Garcetti put
    appellants “on notice . . . that a public employee may be protected under the First
    Amendment when the employee learns of matters of public concern through his or
    her employment and the employee speaks out as a citizen on those matters.”
    Appellants argue, however, that the district court erred in relying on Pickering
    21
    Case: 15-11512      Date Filed: 08/17/2016   Page: 22 of 24
    because our prior decisions applying its balancing test — i.e., whether the
    employer “had an adequate justification for treating the employee differently from
    any other member of the general public,” 
    Garcetti, 547 U.S. at 418
    — often find
    against First Amendment protection. See, e.g., Hansen v. Soldenwagner, 
    19 F.3d 573
    , 576 (11th Cir. 1994) (collecting cases). Our decisions applying Pickering’s
    balancing test are irrelevant, however, because here appellants do not advance an
    argument that they had an adequate justification for terminating Carollo, only that
    Carollo spoke pursuant to his official job responsibilities. Understood in that
    context, we conclude that Pickering and Garcetti gave reasonable public officials
    fair warning that it violates the First Amendment to terminate a colleague in
    retaliation for speaking about matters of public concern that are outside the scope
    of his ordinary job responsibilities.
    A robust consensus of our precedent confirms that the district court was
    correct to rely upon Pickering and Garcetti as a basis for fair warning to appellants.
    For example, in Akins v. Fulton Cty., Ga., 
    420 F.3d 1293
    (11th Cir. 2005), we held
    that a defendant had “fair warning . . . that speech whose main thrust is to report
    bidding irregularities to a public official in a meeting requested for that purpose is
    protected by the First Amendment.” 
    Id. at 1308
    (internal quotation marks
    omitted); see also Bryson v. City of Waycross, 
    888 F.2d 1562
    , 1566-67 (11th Cir.
    1989) (“[A] core concern of the first amendment is the protection of the ‘whistle-
    22
    Case: 15-11512     Date Filed: 08/17/2016    Page: 23 of 24
    blower’ attempting to expose government corruption.”); cf. Camp v. Corr. Med.
    Servs., Inc., 400 F. App’x 519, 521-22 (11th Cir. 2010) (per curiam) (citing Akins
    for the proposition that a public employee’s First Amendment right to speak to law
    enforcement about public corruption and misconduct was clearly established).
    Likewise, in Walker v. Schwalbe, 
    112 F.3d 1127
    (11th Cir. 1997), we considered a
    state employee who was terminated for participating in a state investigation of his
    supervisor’s alleged misconduct and held that, “[a]t the time the defendants acted
    in 1991, clearly established law informed reasonable government officials that [the
    plaintiff] could not be punished for his First Amendment speech.” 
    Id. at 1133.
    Against the backdrop of this Circuit’s precedents and the Supreme Court’s
    guidance in Pickering and Garcetti, we conclude that reasonable public officials
    would have known at the time of Carollo’s termination that it violated the First
    Amendment to terminate a colleague for speaking about matters of public concern
    that are outside the scope of his ordinary job responsibilities. Carollo has plausibly
    pled that at least some of his speech was about matters of public concern and
    outside the scope of his ordinary job responsibilities, and with respect to the
    remainder of his speech, we are remanding to the district court to permit Carollo to
    amend his poorly-drafted complaint to cure the defects that we identify. 
    See supra
    § II(A). The district court therefore did not err in concluding that Carollo’s First
    23
    Case: 15-11512   Date Filed: 08/17/2016   Page: 24 of 24
    Amendment right to such speech was clearly established at the time of his
    termination.
    III. CONCLUSION
    For the foregoing reasons, the district court’s order denying appellants’
    motion to dismiss Carollo’s First Amendment retaliation claim is AFFIRMED IN
    PART and REVERSED IN PART. For those portions of Carollo’s complaint
    where he fails to allege a plausible First Amendment claim, however, we
    REMAND with instructions to the district court to afford Carollo an opportunity to
    amend his complaint to cure the defects that we identify and then to proceed to
    discovery.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    24