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Anderson v. Valdez

United States Court of Appeals, Fifth Circuit

January 10, 2017

BRUCE M. ANDERSON, Plaintiff - Appellee
v.
ROGELIO VALDEZ, In his Individual and Official Capacities, Defendant-Appellant

         Appeals from the United States District Court for the Southern District of Texas

          Before JONES, WIENER, and HIGGINSON, Circuit Judges.

          WIENER, Circuit Judge

         Plaintiff-Appellee Bruce M. Anderson brought this action against Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals ("Thirteenth Court"), asserting an individual and official capacity claim under 42 U.S.C. § 1983. Anderson alleges that, after he sent a letter to the Texas Supreme Court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by Chief Justice Valdez, Valdez prevented another justice on the Thirteenth Court from hiring Anderson as a "briefing attorney, " viz., a law clerk. He further alleges that, in so doing, Valdez retaliated against him for exercising his right to free speech under the First Amendment. Valdez moved to dismiss, asserting that Anderson had failed to state a claim and that Valdez is entitled to qualified immunity. The district court denied the motion, and Valdez timely filed an interlocutory appeal pursuant to the collateral order doctrine.

         I. Facts & Proceedings

         A. Facts

         Anderson, who has been licensed to practice law in the state of Texas since 1984, served as an assistant district attorney in Hidalgo County before being hired as a briefing attorney at the Thirteenth Court in 1988. Anderson alleges that, "[b]ecause of [his] productivity and success, "[1] he was later promoted to the position of senior briefing attorney and then to that of research attorney. In 1996, J. Bonner Dorsey, another justice on the Thirteenth Court, hired Anderson as a staff attorney. Justice Dorsey retired in 2002, after which Anderson left the court to serve as an assistant district attorney, this time in Nueces County.

         Early in 2007, Rose Vela, yet another justice of the Thirteenth Court, hired Anderson as her briefing attorney. He remained in that position until she retired in late 2012. Anderson alleges that, as Justice Vela's briefing attorney, his "job duties included researching and writing memoranda on appeals and original proceedings pending before the Thirteenth Court, participating in case conferences, making recommendations to Justice Vela regarding pending motions, and performing routine administrative duties." He expressly alleges that his "official duties" did not include reporting judicial malfeasance by a justice on that court to the Texas Supreme Court or to the State Commission on Judicial Conduct.

         According to Anderson, "[i]n early 2012, Justice Vela asked Anderson to come into her office for a meeting." "During this meeting, [she] told Anderson that she had concerns about the conduct of . . . [Chief Justice] Valdez." Specifically, "Vela told Anderson that she had examined the [Thirteenth] Court's financial records concerning its Filing Fee Fund and . . . Valdez's campaign finance records, and concluded that . . . Valdez had been obtaining double reimbursements from both the [Thirteenth] Court's Filing Fee Fund and his political campaign for the same travel expenses." She explained that "[t]hese records demonstrated that, on ten different occasions, [Valdez] posted the same travel expenses to both his political campaign and the [Thirteenth] Court's Filing Fee Fund." "Because of Anderson's experience in criminal law, Justice Vela asked Anderson whether, in Anderson's personal opinion, Valdez's conduct violated any [Texas] laws." He told her that he believed it had. Vela, however, "did not report, nor ask Anderson to report, [Valdez] to the authorities."

         But Anderson alleges that he "was disturbed by the possibility that [Valdez, the chief justice, ] had violated Texas law, " so he sent a letter "on his own initiative" to Wallace Jefferson, then the chief justice of the Texas Supreme Court, in late 2012. Anderson asserts that, in that letter, he told Chief Justice Jefferson "that he had 'concerns [about] the possible violation of the Texas Penal Code by . . . Valdez' . . . . and that . . . he 'did not know who else to report it to.'" He asked Chief Justice Jefferson to provide him with the name of the individual or entity "responsible for investigating such allegations" and "to keep the letter confidential because [he] was concerned that he would be retaliated against if anyone at the Thirteenth Court . . . learned that he 'was revealing possible damaging information about . . . Valdez's handling of the court's finances.'"

         About one week later, Jennifer L. Cafferty, general counsel to the Texas Supreme Court, responded to Anderson's letter to Chief Justice Jefferson, "inform[ing] him that his concerns about . . . Valdez may be reported to the State Commission on Judicial Conduct and/or local law enforcement." A week or so after that, "Anderson sent a letter to the State Commission on Judicial Conduct." The letter to the Commission was "nearly identical" to that he had sent to Chief Justice Jefferson. The commission responded a few weeks later, "indicat[ing] that it would commence an investigation into the allegations contained in Anderson's letter" (that is, the disciplinary complaint).

         In early 2013, Royce LeMoine, an investigator with the Commission, contacted Vela, who had since retired as a justice, "to inquire whether she had information relating to [Valdez's] charging duplicate expenses to both the taxpayer-funded account of the Thirteenth Court and his political campaign fund." Vela responded to LeMoine soon after and "provided him with various documents supporting her belief that [Valdez] had obtained double reimbursements." The Commission "then referred the matter" to the district attorney in Travis County "for potential prosecution." (As of early 2015, the Commission's investigation was still "ongoing.")

         Early in 2014, Anderson applied to Justice Gregory T. Perkes, also on the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 2014, Anderson interviewed with Perkes. Anderson alleges that Perkes told him that "he was the most qualified of all the applicants" and that "'the job [was his] if [he] want[ed] it.'" Anderson says that he "quickly replied, " telling Perkes that he would "take it." Anderson stresses that "Perkes and [he] then agreed that [he] would start on May 12" and also agreed on his compensation. He also indicates that, soon afterward, Perkes e-mailed the other justices "to inform them of his hiring decision, stating 'I am hiring Bruce Anderson as my Senior Staff Attorney.'"

         Anderson asserts that "the [Thirteenth] Court's practice and procedure . . . allow[ed] each justice to mak[e] all [their own] hiring decisions related to their individual chambers" and there had been no "other occasion when one [justice] was permitted to interfere with another [justice]'s hiring decisions." Anderson further asserts that, despite this, "[Valdez] told all of the [j]ustices not to allow Anderson to work for Justice Perkes." He said that he did so "because Anderson had filed a complaint against [him] with the State Commission on Judicial Conduct." After Valdez became aware that "Perkes had hired Anderson, " Valdez "began searching for excuses to interfere with Anderson's hiring." This included "ask[ing] a [Thirteenth Court] employee to research [the] opinions" Anderson had written "while he worked for the Thirteenth Court" and to "look into the other applicants for the position" with Perkes. "Valdez [also] convened a meeting, wherein he asked all six justices on the Thirteenth Court of Appeals to vote on whether Anderson should be permitted to work for Justice Perkes."

         Anderson contends that, on May 8, several days before Anderson was to start working for Perkes, he "received a call from an agent of the Thirteenth Court, who informed him that despite his acceptance of Justice Perkes's offer on May 2, [he] did not have a job with the Court." Although "[t]he agent did not provide any reason . . ., [i]t [was] clear" that Valdez "had knowledge that Anderson [had] filed a complaint against [him] with the State Commission on Judicial Conduct and that [Valdez] interfered in Anderson's hiring because of the [disciplinary] complaint." In an e-mail, Valdez told staff at the Thirteenth Court to "call [him] to address [his] decision on [Anderson]." The following day, May 9, "Justice Perkes texted former Justice Vela, '[Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to [his] wishes.'" When Vela asked the reason, "Justice Perkes responded that 'the only thing I can think of is that he got wind of [Anderson] and the investigation.'"

         B. Proceedings

         Anderson filed this suit against Valdez in his individual and official capacities under 42 U.S.C. § 1983, alleging that he violated Anderson's right to free speech. Anderson specifically alleged that Valdez's refusal to allow Perkes to hire him constituted retaliation for the complaints he had made to the Texas Supreme Court and the State Commission on Judicial Conduct.

         Valdez then moved to dismiss. Anderson responded in opposition and also requested leave to amend his complaint. Valdez opposed the request. The district court granted Anderson leave to amend and denied Valdez's motion to dismiss as moot. Valdez then moved to dismiss the amended complaint, and Anderson again responded in opposition. The district court granted Valdez's motion as to Anderson's request for declaratory relief, but otherwise denied it on its merits. Valdez timely filed a notice of interlocutory appeal.

         II. Analysis

         A. Jurisdiction

         Valdez contends that, in resolving his motion to dismiss, the district court erred in determining that Anderson had stated a claim against him and that he could not avail himself of a qualified immunity defense. We have jurisdiction over an interlocutory appeal of a district court's denial of qualified immunity pursuant to the collateral order doctrine.[2] We have pendant appellate jurisdiction "in rare and unique circumstances where a final appealable order is 'inextricably intertwined' with an unappealable order or where review of the unappealable order is necessary to ensure meaningful review of the appealable order."[3] Because the district court's determination regarding Valdez's defense depended on its determination that Anderson had adequately stated a claim for retaliation, we exercise jurisdiction over both.

         B. Standard of Review

         We review a district court's ruling on a motion to dismiss de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs."[4] To prevail against a defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff's complaint "must contain sufficient factual matter, [if] accepted as true, to 'state a claim to relief that is plausible on its face.'"[5] "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."[6] "Threadbare recitals of the elements of a cause of action, supported by mere conclusory [sic] statements, do not suffice."[7] Although a complaint "does not need detailed factual allegations, " the "allegations must be enough to raise a right to relief above the speculative level."[8] "[C]onclus[ional] allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."[9] Further, "[w]hen reviewing a denial of qualified immunity on an interlocutory appeal, we are restricted to determinations 'of question[s] of law' and 'legal issues, ' and we do not consider 'the correctness of the plaintiff's version of the facts.'"[10] "Only these issues of law qualify as appealable 'final decisions' before a final judgment."[11]

         C. Claim

         As a preliminary matter, Valdez suggests that Anderson's claim is subject to a heightened pleading standard because Valdez's Rule 12(b)(6) motion to dismiss asserts a defense of qualified immunity. But, as Anderson correctly notes, Valdez misconstrues this court's precedent in Shultea v. Wood.[12] We explained in Shultea that when, as here, a qualified immunity defense is asserted in an answer or motion to dismiss, "the district court must"-as always-do no more than determine whether the plaintiff has "file[d] a short and plain statement of his complaint, a statement that rests on more than conclusions alone."[13] In so doing, we expressly required the district court to apply "Rule 8(a)(2)'s 'short and plain' standard" to the complaint.[14]After applying this general pleading standard to the complaint, "the court may [then], in its discretion, insist that a plaintiff file a reply tailored to [the defendant's] answer [or motion to dismiss] pleading the defense of qualified immunity."[15] Even if the district court does so insist, Shultea requires it to apply the Rule 8(e)(1)'s standard to the reply, emphasizing that it is "[t]he only . . . Rule that governs the content of . . . replies." Unlike Rule 8(a)(2), Rule 8(e)(1) "demands that '[e]ach averment of a pleading shall be simple, concise, and direct.'"[16] Shultea further clarifies that the heightened pleading standard derived from Rule 9 does not apply to the complaint or to any reply merely because an answer or motion to dismiss asserts a defense of qualified immunity.[17] We therefore apply the general pleading standard derived from Rule 8(a)(2) in considering whether a plaintiff has stated a retaliation claim.[18]

         In applying that general pleading standard, we consider whether Anderson has, in fact, stated such a claim. "To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government's interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action."[19]

         We begin by addressing the fourth element, viz., whether Anderson's speech precipitated the adverse employment action. We then proceed to the second and third elements, viz., whether Anderson spoke as a citizen on a matter of public concern and-if so-whether his interest in that speech outweighed the government's interest. We need not address the first element, viz., whether Anderson suffered an adverse employment action, because Valdez does not contest it.[20]

         1. Fourth Element

         Valdez argues that Anderson has not satisfied the fourth element of his retaliation claim because he failed to allege that Valdez knew Anderson had written a letter to the Texas Supreme Court or had filed a disciplinary complaint with the State Commission on Judicial Conduct which discussed Valdez's purported malfeasance. Yet, even a cursory reading of the complaint demonstrates that Anderson has adequately alleged that Valdez knew of Anderson's letter and complaint. In fact, Anderson expressly alleged that Valdez "had knowledge that Anderson filed a complaint against [Valdez] with the State Commission on Judicial Conduct . . . ." He further pleaded that, according to Justice Perkes, "because Anderson had filed a complaint against [Valdez] with the State Commission on Judicial Conduct, [Valdez] told all of the Justices not to allow Anderson to work for [Perkes]."[21] He also alleged that, even though each justice was entitled to hire his or her own staff, Valdez interfered with Perkes's decision to do so and that this was Valdez's decision alone. When all of these contentions are accepted as true, they clearly demonstrate that Chief Justice Valdez knew of the disciplinary complaint. Anderson is not required to allege how Valdez knew, only that he knew.[22]

         Despite this, Valdez also contends that when Anderson's allegations that the letter and disciplinary complaint were confidential are taken as true, they foreclose the possibility that Valdez could have known about them. In particular, Valdez states that, by "admit[ing] that [Anderson] asked Chief Justice Jefferson to keep his letter confidential and fail[ing] to allege that his letter was known to anyone other than Chief Justice Jefferson and [the Texas] Supreme Court's General Counsel, " he consequentially admits that Valdez did not know about the letter. Valdez further asserts that "the mere possibility that . . . [he] could [have] learn[ed] of Anderson's [disciplinary] complaint to the State Commission on Judicial Conduct is not sufficient to nudge Anderson's allegations over the line from possibility to plausibility." Anderson, of course, disputes all of this.

         Valdez misses the mark. With regard to the letter, Anderson's allegation is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so. In fact, Anderson alleged that Chief Justice Jefferson did not answer the letter himself, establishing that the letter had not remained confidential.

         With regard to the disciplinary complaint, Valdez contends that Texas law requires the Commission on Judicial Conduct to keep such complaints confidential. But this misstates that law. Although "the papers filed with and proceedings before the commission are confidential prior to the filing of formal charges, " this is subject to specified exceptions.[23] One such exception states:

"On the filing of a written request by a judge, the commission may release to the person designated in the request, including the judge, the number, nature, and disposition of a complaint filed against the judge with the commission . . . ."[24] "[T]he commission may"-but is not required to-"refuse to release the identity of a complainant" if such a request is made.[25] Likewise, "the commission may"-but is not required to-"keep the complainant's identity confidential" if the complainant so requests.[26] At most, this establishes a process that the State Commission on Judicial Conduct is instructed to follow, not the process that it did follow. As with the letter, Anderson has not alleged that the State Commission on Judicial Conduct did, in fact, keep the complaint confidential.[27]

         Anderson was not required to allege how Valdez knew of the letter and complaint, [28] only that Valdez knew. Having done so, he has sufficiently pleaded that his letter and his disciplinary complaint precipitated Valdez's allegedly untoward conduct.

         2. Second & Third Elements

         Valdez next asserts that Anderson is unable to satisfy the second and third elements of his retaliation claim, viz., whether Anderson spoke as a citizen on a matter of public concern and-if so-whether his interest in that speech outweighed the government's interest. Valdez claims that, by sending the letter and filing the complaint, Anderson was acting pursuant to his official duties as a public employee, so his speech was unprotected. Valdez suggests more specifically that Anderson's ethical duties as a lawyer-including his duty to report malfeasance-were incorporated into his official duties as a public employee. Anderson disputes this.

         In Pickering v. Board of Education, the Supreme Court noted that "[t]he problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer], as an employer, in promoting the efficiency of the public services it performs through its employees."[29] Before balancing those interests, however, it is necessary to engage in a threshold inquiry regarding whether the public employee spoke as a citizen at all. This question is resolved with reference to Garcetti v. Ceballos, [30] in which the Supreme Court adjured that, "when public employees [speak] pursuant to their official duties, [they] are not speaking as citizens . . . ."[31] Such "[j]ob-required speech is not protected, " even when it irrefutably addresses a matter of public concern.[32]

         Garcetti begins by recognizing that "public employees do not surrender all their First Amendment rights by reason of their employment."[33] It then explains that there are "two inquiries to guide interpretation of the constitutional protections accorded to public employee speech"[34]: (1) "whether the employee spoke as a citizen on a matter of public concern"[35] and, if so, (2) "whether the [public employer] had an adequate justification for treating the employee differently from any other member of the general public."[36]

         Garcetti notes that the "overarching objectives" of these inquiries "are evident."[37] "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom."[38] This is because the public employer, like any principal, has an interest in controlling the activities of its agents. Those activities include the employee's speech. A public employer necessarily has an interest in (1) requiring speech by its employees that enables "the efficient provision of public services, " and (2) prohibiting speech that does not, including that which "contravene[s] [the public employer's] policies or impair[s] the proper performance of [its] functions."[39] Even if the employer has such an interest, however, that interest must still be balanced against the employee's own interests: "[A] citizen who works for the government is nonetheless a citizen, " and "[t]he First Amendment limits the ability of a public employer . . . to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens."[40]

         Garcetti holds that, "[w]ith these principles in mind, " an employer may restrict the employee's speech only when it is made "pursuant to [the employee's] official duties."[41] Such a limit, it noted, is justified by the employer's interest in disciplining, viz., controlling, its employees.[42] Stated differently, Garcetti decided that, with regard to speech made pursuant to a public employee's official duties, the public employer's interest automatically outweighs the employee's, which is therefore unprotected.

         Garcetti itself noted that the scope of its holding is not limitless. For instance, a public employee does not speak pursuant to his official duties merely because he speaks while at work.[43] Likewise, a public employee does not speak pursuant to his official duties merely because he speaks about work. To the contrary, Garcetti reiterated that "[t]he First Amendment protects some [speech] related to the speaker's job."[44] Still further, Garcetti noted that a public employee does not speak pursuant to his official duties when his speech is analogous to that of a citizen's speech. In particular, Garcetti stated that "[w]hen a public employee speaks pursuant to employment responsibilities . . . there [will be] no relevant analogue to speech by citizens who are not [public] employees."[45] Accordingly, when there is an analogue to speech by citizens who are not public employees, the employee does not speak pursuant to his official duties, but as a citizen.[46] Speech made "outside the course of performing [the public employee's] official duties . . . is the kind of activity engaged in by citizens" and, therefore, not subject to the threshold inquiry in Garcetti.[47] Therefore, "[w]hen an employee speaks as a citizen, . . . the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences" under Pickering.[48] "When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny, " and Garcetti may supplant analysis under Pickering.[49]

         For this reason, Garcetti's scope is obviously not as broad as Valdez suggests. Instead, Garcetti merely allows the public employer to control an employee's speech if made pursuant to the employee's official duties.[50] That is to say, speech is within an employer's control if it is made pursuant to the employee's official duties.

         Garcetti repeatedly used the "speech made pursuant to the employee's official duties" formulation.[51] Even though Garcetti itself "did not explicate what it means to speak 'pursuant to' one's 'official duties, '" [52] it did clearly establish what it does not mean: "The [public employee's speech] concerned the subject matter of [his] employment, but this . . . is nondispositive. The First Amendment protects some expressions related to the speaker's job."[53] This was reaffirmed, not disrupted, by Lane v. Franks.[54]

         In Williams v. Dallas Independent School District, we explained that a public employee's speech is made pursuant to his official duties when that speech is "made in the course of performing his employment, " whether or not that speech was specifically "demanded of him."[55] We did not, as the dissent suggests, expand this to include speech that merely related to the public employee's official duties, muddying the instruction in Garcetti.

         In Williams, we began with a broad inquiry: "[W]e must determine the extent to which, under Garcetti, a public employee is protected by the First Amendment if his speech is not necessarily required by his job duties but nevertheless is related to his job duties."[56] Yet, we eventually adopted a much narrower holding: "We thus hold that" the public employee's speech was made "in the course of performing his job . . . ."[57] (This formulation is used in Garcetti, as well.[58]) It is therefore clear "[u]nder Garcetti and Williams, . . . that [a public employee's speech] is not protected by the First Amendment [if] it was made . . . during the course of performing his job."[59]

         When the Supreme Court revisited Garcetti in Lane, it reiterated that "[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns [read: relates to] those duties."[60] Although Lane added "ordinarily" to the formulation used in Garcetti and Williams, we have since noted that, "whatever change in the jurisprudence 'ordinary' may augur, we are unable to discern any change in Garcetti's rule from Lane . . ., for any change resulting from Lane cannot be said to have been 'clearly established.'"[61]

         In some instances, state law is "relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised and fired."[62] We believe it offers some insight here, as well. Texas, for instance, has adopted the Restatement (Third) of Agency, which explains that "[a]n employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control."[63] It likewise provides that "[a]n employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer."[64] When an employee was not actually "performing work assigned by the employer, " he nonetheless might have acted within the scope of his employment-or pursuant to his official duties-if he was "engaging in a course of conduct subject to the employer's control."[65]

         A public employee, therefore, might speak pursuant to his official duties when he does so in a course of conduct subject to the employer's control, even if the employer has not actually directed him to speak, not to speak, or how to speak. If the employer was entitled to exercise such control, the speech is made pursuant to the employee's official duties; if the employer was not entitled to exercise such control, the speech is not made pursuant to the employee's official duties. Whether the employer was entitled to control the employee's speech determines whether that speech was made pursuant to the employee's official duties.

         The circumstances in Garcetti itself illustrate this focus on whether the employer was entitled to exercise control. There, an employer disciplined an employee for speech made pursuant to the employee's official duties as a prosecutor. The speech, a memorandum, was made for the benefit of the employer. It was, in essence, the employer's speech, not the employee's own. The employer, not the employee, was entitled to control it. Just as the employer had directed the employee to create it, the employer could also direct the employee to alter or discard it. If the employee refused, the employer was entitled to discipline him. "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen."[66] Instead, "[i]t simply reflects the exercise of employer control over what the employer itself has commissioned or created."[67]

         As Garcetti explained, "[t]he controlling factor . . . is that [the public employee's] expressions were made pursuant to his duties as a [prosecutor]."[68]"[The employee] wrote his disposition memo because that is part of what he . . . was employed to do."[69] "When [the public employee] went to work and performed the tasks he was paid to perform, [he] acted as a [public] employee, " not as a private citizen.[70] "That consideration-the fact that [the employee] spoke as a prosecutor fulfilling a responsibility [read: duty] to advise [his employer] about how best to proceed with a pending case-distinguishes [his] case from those in which the First Amendment provides protection against discipline."[71] The duties were created by and owed to the employer. Only a prosecutor, acting on behalf of his employer, could have created, altered, or destroyed the memorandum; a citizen could not have done so.

         In contrast to the employer in Garcetti, Valdez had no "heightened interest[ ] in controlling [Anderson's] speech."[72] Anderson's speech was not an "[o]fficial communication[ ] [that had] official consequences, " requiring anyone at the Thirteenth Court to ensure that it was "accurate, demonstrate[d] sound judgment, and promote[d] the employer's mission."[73] Instead, it was "the kind of activity engaged in by citizens"-including licensed lawyers-"who do not work for the government."[74] All lawyers, not just lawyers who are public employees, have a duty to report malfeasance.

         Most notably, Garcetti expressly applies "only to the expressions an employee makes pursuant to his or her official responsibilities [read: duties], not to statements or complaints (such as those at issue in cases like Pickering and Connick) that are made outside the duties of employment [read: pursuant to his or her duties as a citizen]."[75] Such speech is never made pursuant to an employee's official duties. In such instances, Garceetti is inapplicable.

         Garcetti emphasizes that "[e]xposing governmental inefficiency and misconduct is a matter of considerable significance."[76] "The dictates of sound judgment are reinforced by . . . whistle-blower protection laws . . . ."[77] And, further, there are "additional safeguards in the form of, for example, rules of conduct" for public employees who are also lawyers.[78] "These imperatives, as well as [other] obligations arising from any other applicable . . . mandates of the criminal and civil laws, protect employees and provide checks on [public employers] who would order unlawful or otherwise inappropriate actions."[79]This is to repeat the obvious: An employer is entitled to exercise control over an employee's speech only if it is lawful and appropriate for it to do so. If it is not lawful and appropriate for the employer to exercise control, the employee is, quite simply, not speaking pursuant to his official duties. The mandates of those criminal and civil laws do not protect employees from discipline arising from their failure to perform unlawful or otherwise inappropriate duties; instead, they protect employees from the very existence of those duties to begin with. Such a duty is not a duty at all.[80] For instance, in Garcetti the public employer had permissibly disciplined its employee for speech because that speech was made pursuant to lawful and appropriate official duties. Stated differently, it was lawful and appropriate for the employer to control the employee's speech through that official duty. In holding that speech made pursuant to public employees' official duties is not protected, Garcetti did not alter, but embraced, the clearly established law regarding speech concerning malfeasance.

         In the context of Garcetti's clear instruction, Anderson's letter and disciplinary complaint were not created pursuant to his official duties. It is useful to note that Anderson's supervisor, Vela, did not ask him, much less require him, to send the letter or to file the disciplinary complaint. Anderson expressly alleged that he did so "on his own initiative." He also alleged that he asked Chief Justice Jefferson to "keep the letter confidential" so that no one "at the Thirteenth Court" would know about it. If Anderson, as Vela's briefing attorney, had an official duty to send the letter or to file the complaint, then why he would have purposely concealed his doing so from her?[81]

         As the Supreme Court stated in Connick, "[m]atters of public concern are those which can 'be fairly considered as relating to any matter of political, social, or other concern to the community.'"[82] "Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of . . . officials, in terms of content, clearly concerns matters of public import."[83]And, as the Supreme Court explained in Pickering, "statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors."[84]

         We are convinced that Anderson sufficiently pleaded each of the elements of his retaliation claim. His speech, which was not made pursuant to his official duties as a public employee, was protected. Next, we must consider whether his right to protection for such speech was clearly established.

         D. Qualified Immunity Defense

         Valdez urges that, even if Anderson stated a retaliation claim, he (Valdez) is entitled to qualified immunity because neither Garcetti nor other relevant contemporary cases clearly established that speech made pursuant to a professional (here, ethical) duty is not speech made pursuant to an official duty. Anderson counters that Garcetti did nothing more than create a limited presumption that speech made by a public employee pursuant to an official duty is unprotected; it did not disrupt the presumption that speech made by a public employee is presumptively protected, including speech made pursuant to an ethical duty.

         A person may assert a § 1983 claim against anyone who "under color of any statute, ordinance, regulation, custom, or usage, of any State" violates that person's rights under the Constitution.[85] To state such a claim, such person "must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law."[86] That said, "[t]he doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal."[87] "This immunity protects 'all but the plainly incompetent or those who knowingly violate the law.'"[88] Accordingly, we "do not deny immunity unless 'existing precedent must have placed the statutory or constitutional question beyond debate.'"[89] "The basic steps of [this court's] qualified-immunity inquiry are well-known: a plaintiff seeking to defeat qualified immunity must show: '(1) that the official violated a statutory or constitutional right, and (2) that the right was "clearly established" at the time of the challenged conduct.'"[90] This court, like the district court, has "discretion to decide which of the two prongs of the qualified-immunity analysis to tackle first."[91]

         "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."[92] "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent."[93] "The central concept is that of 'fair warning': The law can be clearly established 'despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.'"[94] "That this court has not previously considered an identical fact pattern does not mean that a litigant's rights were not clearly established."[95] But the right also should not be defined "at a high level of generality."[96] And, even in the context of qualified immunity, "the facts alleged" must be "[t]aken in the light most favorable to the party asserting the injury."[97]

         By at least 2014, it was clearly established that an employee's speech made "externally" concerning "an event that was not within [his or her] job requirements" was entitled to First Amendment protection.[98] Taking Anderson's allegations as true, as we must at this stage of the litigation, Anderson alleges exactly what Cutler requires. First, Anderson alleges that he reported his concerns about Justice Valdez externally, viz., to the State Commission on Judicial Conduct.[99] Second, Anderson alleges that his complaint to the judicial conduct commission was outside of his job duties. Accepting Anderson's allegations as true, Cutler decides this appeal.

         That is not to say that, by 2014, our law applying Garcetti spoke loudly regarding every factual circumstance. Indeed, just after Anderson spoke, the Supreme Court clarified Garcetti in Lane. In Lane, the plaintiff alleged that he was retaliated against for giving testimony to a federal grand jury investigating another employee.[100] The Eleventh Circuit concluded that, under Garcetti, the plaintiff testified as an employee, not as a citizen, because he testified to an event that he learned on the job.[101] The Supreme Court reversed, noting that "the Eleventh Circuit read Garcetti far too broadly."[102] In doing so, the Court clarified that public employees' speech is not protected by the First Amendment when they speak in the course of their "ordinary" job duties.[103]Nonetheless, the Supreme Court ruled that qualified immunity was proper because the Eleventh Circuit's case law concerning whether an employee's sworn testimony was protected by the First Amendment was deeply conflicted.[104]

         Thus, Lane plainly demonstrates that, following Garcetti, some First Amendment retaliation cases would still result in findings of qualified immunity. That is, Garcetti did not plainly establish all First Amendment retaliation law. Nonetheless, Cutler makes it apparent that Garcetti, and this court's jurisprudence interpreting it, clearly established some law. The question is how much.

         Based on the allegations at issue here, Howell v. Town of Ball answers that question.[105] There, the plaintiff alleged that he had been fired from his job as a town police officer for cooperating with an FBI investigation into public corruption.[106] The plaintiff "emphasize[d] that, under the Supreme Court's recent decision in Lane, the relevant question [was] whether the speech at issue [was] ordinarily within the scope of an employee's duties."[107] And, what job duties were "ordinary" was critical to the court's holding. The plaintiff "offered evidence that his involvement in the FBI investigation was outside the ordinary scope [of] his professional duties."[108] The defendants pointed to the "general" duty of all police officers to "detect and prevent crime."[109] We found that the defendants' evidence was inadequate because broad general duties "fail to describe with sufficient detail the day-to-day duties of a public employee's job."[110] That is, in assessing the summary judgment evidence presented by both sides, we concluded that, although the defendants may have asserted that the plaintiff spoke pursuant to his "general" job duties, their evidence could not demonstrate that he spoke within his "ordinary" job duties.[111]

         Nonetheless, we determined that the individual defendants were entitled to qualified immunity.[112] In doing so, we noted that "the Supreme Court did not emphasize that only speech made in furtherance of an employee's 'ordinary' job duties is not protected until nearly three years after [plaintiff] was discharged."[113] In support of that proposition, we cited Gibson's observation that, "although Lane's insertion of the qualifier 'ordinary' did not meaningfully alter Garcetti's original test, it does provide additional guidance regarding what speech falls within an employee's official duties."[114]

         Reading Howell in the framework of Cutler properly synthesizes Lane's effect on Garcetti. Namely, Garcetti and our court's pre-Lane jurisprudence established that when employees speak outside of their chain of command and outside of their job duties they are entitled to First Amendment protection.[115]Lane and Howell, however, indicate that some cases are too difficult to be determined pursuant to that rule. Even though in some cases employees might have a general employment duty to speak, that duty is not part of their "ordinary" official duties, so their speech pursuant to that general duty is protected by the First Amendment.

         Equally clear, however, is that neither Lane nor Howell meaningfully altered the analysis required by Garcetti and Cutler when an employee's allegations do not concern the distinction between "ordinary" and "non-ordinary" job duties.[116]

         Here, there is not-and at the motion to dismiss stage there can never be-a meaningful factual dispute that implicates Lane's ordinariness rule.[117]Anderson alleges that his speech to the State Commission on Judicial Conduct was made outside of his chain of command and outside of his job duties. Perhaps at the summary judgment or trial phase facts will come to light that implicate Lane. Until then, however, the ordinariness rule simply does not implicate the right at issue here.

         Accordingly, under Cutler, Anderson has pleaded the violation of a clearly established right. Qualified immunity ...


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