Bruce Anderson v. State of Texas

dis- able to determine whether the able ANDERSON, Bruce M. 1 or prong

trict under court’s decision Plaintiff-Appellee 60(b)(5) prong 3 Rule would have been “shortage” the same with metric v. controlled. this Court found Given Rogelio VALDEZ, In his Individual im- flexibility considerable accorded state Capacities, and Official its plementation policies with attendant Defendant-Appellant deference, protected No. 15-40836 in Home left to courts Rule under 60(b)(5), in the first and district courts Appeals, Court of United States instance, to make that call. The deference Fifth Circuit. presiding in turn court due district 9, 2016 Filed November judge greater appreciation reflects its En and, Denying Rehearing Order operation the consent decree nu- aside, ability January Banc ances its if the decide leaving has its decree lived attend- life—

ing, ongoing political societal ills to the

processes today. argument

As for it Appellees’ relates prong they 1 that do not have the analyze part

information second (av- panel opinion’s “shortage” metric

erage client of the class of load relevant

provider), Like disagree. parties we Hawkins,3 v.

Frew Gilbert2 Frew v. witnesses, parties may here use and/or

develop retrieving other methods for information,

necessary district should the inquiry find the necessary.

court arguments par-

The other raised petitions rehearing for panel

ties their unpersuasive. 2002), grounds independently relief sufficient sub Frew rev'd nom. ex Hawkins, may relief be rel. 540 U.S. therefore that warranted Frew v. (2004). orig petitioners even if not 'satisfied' the 157 L.Ed.2d 855 have order.”). inal (E.D. F.Supp.2d 3. 401 656-57 Tex. (E.D. 2000), 2005), Ladd, F,Supp.2d 2. 109 Tex. 'dsub v. 457 F.3d nom. Frazar aff Gilbert, vacated sub nom. F.3d Frazar II, I. Morales, Esq., Allison Sa- Lawrence P.C., Firm, Hartry, San rah Morales Law Pkooeedings Facts & Antonio, TX, Plaintiff-Appellee. for A. FACTS Keller, Solicitor, of the A. Office Scott Anderson, has who been licensed Texas, for the State Solicitor General in the since practice law state Texas Hudson, Attorney Eric Alan Assistant as an assistant district attor- served General, Attorney of the General Office County ney Hidalgo being in hired before Texas, Joseph Hughes, David State attorney briefing as a at the Thirteenth General, Assistant Office Solicitor that, alleges Court in 1988. Anderson General, Attorney Office the Solicitor productivity and suc- [his] “[b]ecause General, Austin, TX, for Defendant-Appel- cess,” promoted to the posi- he later lant. briefing attorney tion of senior and then attorney. that of J. Bon- research JONES, WIENER, and Before Dorsey, justice ner on the Thir- another HIGGINSON, Judges. Circuit Court, hired Anderson as a staff teenth attorney. Dorsey Justice retired AVIENER, Judge Circuit after left court which Anderson Plaintiff-Appellee Bruce Anderson M. attorney, as an district serve assistant brought against Defendant-Ap- this action County. time Nueces Rogelio of the pellant, Chief Justice Valdez Vela, yet Early in Rose another (“Thir- Appeals Thirteenth Court of Texas Court, justice of the Thirteenth hired Court”), asserting teenth an individual and attorney. briefing Anderson as her He re- capacity claim under U.S.C. in that until retired in position mained she that, alleges 1983. Anderson after he alleges late as Justice sent a letter to the Texas Court briefing attorney, “job duties Vela’s disciplinary complaint and filed with the researching writing included memo- on State Commission Judicial Conduct de- appeals original proceedings randa scribing he malfea- what bеlieved be Court, pending par- before Thirteenth Valdez, pre- sance Chief Justice conferences, ticipating making case rec- justice another Thirteenth vented regarding to Justice ommendations Vela hiring “briefing from Anderson as a motions, pending performing routine viz., attorney,” law clerk. He further expressly alleg- administrative duties.” He that, alleges in so doing, Valdez retaliated es that his “official duties” did not include him against exercising right his to free judicial reporting justice malfeasance speech under the First Amendment. Val- to Supreme on that court Texas the dismiss, asserting moved to that dez Commission on the State Judicial or had failed to a claim Anderson state and Conduct. qualified that is entitled to immuni- Valdez motion, Anderson, ty. According early The district court “[i]n denied interlocutory timely filed an Justice Anderson to come into and Valdez Vela asked appeal pursuant meeting.” “During order her office for a the collateral meeting, that [she] doctrine. told Anderson she had allegations quoted language 1. The facts—and assume that those are true. —constitute allegations. posture, we Anderson's In this Court, responded to preme the conduct of ... Anderson’s let- [Chief concerns about Jefferson, Specifically, “informing] told ter to Chief Justice Valdez.” “Vela Justice] him that concerns ... [Thir- Anderson that she had examined about reported financial records concern- be the State Commission may Court’s teenth] ing Filing its ... Conduct local Fee Fund and Valdez’s Judicial law en- and/оr records, that, forcement.” A or so campaign finance concluded week after obtaining that had sent a letter to ... Valdez been double “Anderson the State Com- from mission on [Thir- reimbursements both Judicial Conduct.” letter to The Filing “nearly and his Court’s Fee Fund Commission identical” to teenth] political campaign for the same travel ex- that he sent to Chief had Justice Jefferson. penses.” explained responded that rec- The commission “[t]hese She a few weeks later, that, . “indicating] on ten that it ords demonstrated different would commence occasions, posted investigation allegations the same travel into the con- [Valdez] (that is, expenses campaign to both his and tained in Anderson’s letter” political Filing complaint). Court’s Fee Fund.” disciplinary [Thirteenth] experience in “Because LeMoine, early Royce an inves- law, criminal Justice Anderson Vela asked Commission, tigator with the contacted whether, personal opinion, in Anderson’s Vela, justice, who had since retired as a any Valdez’s conduct violated [Texas] inquire “to whether she had information told it laws.” He her he believed had. relating charging duplicate to [Valdez’s] however, Vela, nor ask report, “did expenses to both the ac- taxpayer-funded report, author- Anderson to [Valdez] po- count of the Thirteenth Court and his ities.” responded litical fund.” campaign Vela But him alleges “provided Anderson that he “was dis- LeMoine soon after and [Valdez, possibility supporting documents turbed the with various her be- law,” justice,] chief had Texas so lief that had obtained double re- [Valdez] violated sent a letter “on his The Commission re- he own initiative” imbursements.” “then Jefferson, justice attorney then the the matter” Wallace chief ferred district Court, County “for potential prosecu- Travis Texas late (As letter, early Anderson in that he the Commission’s asserts tion.” “ongoing.”) investigation told Chief Justice Jefferson “that he had was still possible ‘concerns violation of [about] the applied to Jus- Early Anderson by ... the Texas Penal Code Valdez’.... Perkes, T. Thir- tice also on the Gregory and that he ‘did not know who else to Court, to serve as his senior brief- teenth ” report it to.’ He Chief Justice Jef- asked 2,May ing attorney. On provide ferson to him the name with alleges Perkes. Anderson interviewed with entity for inves- “responsible individual him that most told “he was the Perkes tigating allegations” keep such “to qualified applicants” of all was con- [he] letter confidential because it.’” job his] “‘the [was [he] want[ed] against that he cerned would be retaliated says “quickly replied,” that he Anderson ... anyone the Thirteenth Court that he “take it.” telling Perkes would revealing possible learned that he ‘was that and [he] Anderson stresses “Perkes damaging about ... Valdez’s information May agreed that start on [he] then would ” handling of the court’s finances.’ agreed compensation. 12” also on his and that, afterward, later, soon About one Jennifer L. Caf- He also indicates week “to justices the other in- ferty, general counsel to the Texаs Su- Perkes e-mailed decision, stating following ‘I on The hiring form them of [Anderson].” his decision hiring my day, May “Justice Perkes texted former am Bruce Anderson as Senior ” Vela, to Attorney.’ Justice went war over ‘[Valdez] Staff all of the rest of the Bruce and [Anderson] [Thirteenth] asserts that “the Anderson ” justices wishes.’ [his] cowtowed to When al- practice procedure Court’s and reason, “Justice Perkes asked Vela justice to [their all lowed] mak[e] each responded only thing I that ‘the can think hiring related to their indi- own] decisions of is got he [Anderson] that wind there no chambers” and had been vidual ” investigation.’ [justice] per- occasion when one “other [justice]’s to interfere another mitted with B. Proceedings hiring decisions.” further asserts Anderson against Anderson filed this suit Valdez that, this, despite told all “[Valdez] capacities his individual and un- justices not to to work allow Anderson alleging der 42 that he U.S.C. for Justice Perkes.” He said he did so right to speech. violated Anderson’s free complaint “because Anderson had filed a specifically alleged Anderson that Valdez’s against Commission [him] with State to Perkes to hire him consti- refusal allow on Judicial Conduct.” After became Valdez complaints for tuted retaliation he had Anderson,” aware “Perkes had hired to the Texas “began searching for to excuses Valdez on State Commission Judicial Conduct. hiring.” interfere Anderson’s This in- with “ask[ing] a em- [Thirteenth Court] cluded to Valdez then moved dismiss. Anderson ployee opinions” research [the] responded in opposition requested and also Anderson written “while he worked had complaint. op- leave to his amend Valdez for the Thirteenth Court” to “look into posed request. The district court position” the other for applicants with granted leave to amend and de- Anderson meeting, Perkes. “Valdez convened a [also] nied motion to as moot. Valdez’s dismiss justices on wherein he asked all six then Valdez moved dismiss amended Appeals Thirteenth Court of on vote complaint, again responded and Anderson permitted to whether Anderson be should opposition. granted The district court work Justice Perkes.” motion request as Anderson’s Valdez’s relief, for declaratory but otherwise denied that, 8, May Anderson contends sev- timely it on its merits. filed a notice Valdez days eral before Anderson was start of interlocutory appeal. Perkes, working for he a call “received agent Court, from an of the Thirteenth II. him despite accep-

who informed May tance Justice Perkes’s offer on Analysis job [he] did have a with the Court.” A. JURISDICTION Although agent provide any “[t]he did ..., reason clear” contends in resolv [i]t [was] that Valdez Valdez dismiss, knowledge ing “had his motion to filed the district [had] court against determining complaint with State erred that Anderson [him] had him against ‍​​‌‌​‌​​‌‌‌​‌​​​‌‌‌‌​‌​​​​‌‌​​‌​‌​‌​‌‌​‌​​​​​​‌‌‍Commission Judicial Conduct stated a claim and that he and that hiring qualified interfered in could not avail of a [Valdez] himself immu [disciplinary] nity jurisdiction because of the over an complaint.” defense. We have e-mail, interlocutory told Thir- appeal staff at the a district court’s qualified immunity pursuant teenth Court to “call [him] denial [Ms] address

589 action, of supported by the collateral order doctrine.2 We have cause mere conclu- statements, jurisdiction sory pendant appellate “in rare do not Al- [sic] suffice.”7 unique appeal- though complaint a final a circumstances where “does need detailed ‘inextricably allegations,” “allegations factual able order is intertwined’ with must enough order or of a unappealable right an where review be raise relief above necessary unappealable speculative order is to en- level.”8 “[C]onclus[ional] meaningful appealable allegations legal sure review the masquerad- conclusions ing Because district court’s deter- as factual order.”3 conclusions will not suffice to regarding prevent Further, mination a Valdez’s defense de- motion dismiss.”9 pended reviewing on its determination qualified that Anderson a “[w]hen denial im- adequately munity a claim for retalia- interlocutory appeal, had stated an we are tion, jurisdiction question[s] we exercise over both. ‘of restricted to determinations issues,’ ‘legal

of law’ and and we do not B. STANDARDOF REVIEW plaintiffs ‘the correctness of consider ”10 version the facts.’ “Only a court’s these issues We review district rul qualify appealable as novo, law ‘final on motion decisions’ ing a to dismiss de “ac judgment.”11 before a final cepting well-pleaded all facts as true and viewing in light those facts most favor C. Claim plaintiffs.”4 against

able to the To рrevail matter, a defendant’s motion to under As preliminary dismiss a Val 12(b)(6), of Civil suggests Federal Rule dez Procedure Anderson’s claim is complaint subject plaintiffs heightened pleading “must contain suffi to a standard matter, true, 12(b)(6) factual as accepted cient because Rule motion [if] Valdez’s to ‘state a claim to plausible qualified relief that is dismiss a defense of im asserts ”5 But, “A plausibil munity. correctly notes, its face.’ claim has facial as ity plaintiff pleads prece when the factual con Valdez misconstrues court’s explained tent that allows the court in v. draw dent Schultea Wood.12We when, here, qualified reasonable inference the defendant is Schultea that alleged.”6 immunity liable misconduct defense an is asserted an dismiss, of the “Threadbare recitals elements swer or motion “the district Falls, Tex., 555, City Twombly, See 2. Zarnow v. Wichita 8. 550 127 1955 U.S. S.Ct. 401, (5th 2007) (“Denial (citation omitted). 500 F.3d 406 Cir. qualified immunity grounds typically falls doctrine, excep the collateral within order Co., 9. v. Metro. 566 F.3d Beavers Ins. Life rule.”). judgment tion the final (5th 2009) (quoting 439 Cir. Femandez- Ass'n, Montes Allied Pilots 987 278 v. F.2d Corp., 3. Thornton v. Gen. Motors 136 F.3d (5th 1993)). Cir. (5th 1998). 450, 453 Cir. Inc., Equities, Dorsey 4. v. 540 F.3d Atteberry Hosp., 10. Nocona Gen. 430 F.3d Portfolio v. (5th 2008) (internal quotation 338 Cir. 2005) (second 245, 251-52 alteration omitted). marks original) (quoting Forsyth, Mitchell 472 v. 511, 528, 105 U.S. S.Ct. L.Ed.2d 662, 678, Iqbal, 5. v. U.S. Ashcroft (1985)). (2009) (quoting S.Ct. L.Ed.2d Corp. Twombly, Bell Atl. 550 U.S. at 252. Id. (2007)). 167 L.Ed.2d 929 Id. Wood, 47 F.3d 1427 Schultea v. 590 applying general pleading In always no more than

court must”—as —do standard, plaintiff has whether Anderson whether we consider determine of his plain has, fact, statement a short and such a “To stated claim. estab “file[d] that rests on more complaint, a statement employment retalia lish a 1983 claim doing, In so we than сonclusions alone.”13 speech, plaintiff-employee tion a related court expressly required the district (1) he an must show: suffered adverse 8(a)(2)’s plain’ ‘short and apply “Rule (2) action; spoke as a citi employment he complaint.14 apply After standard” concern; (3) public zen on a matter of to the ing general pleading standard speech outweighs gov interest [then], may in its complaint, “the court provision in the efficient ernment’s interest discretion, plaintiff a file a re insist that (4) services; speech pre public of and answer defendant’s] tailored to ply [the employment the adverse ac cipitated pleading motion to the de dismiss] [or tion.” immunity.”15 qualified fense Even insist, the district court does so Schultea begin addressing We 8(e)(l)’s requires apply it the Rule viz., element, fourth whether Anderson’s reply, emphasizing that it standard to employ the adverse speech precipitated only governs ... Rule that “[t]he proceed action. then to the sec ment We replies.” Rule content Unlike elements, viz., ond and third whether 8(e)(1) 8(a)(2), Rule that ‘[e]ach “demands spoke as a citizen a matter of Anderson simple, of a shall pleading averment be in concern and —if so—whether his ”16 concise, direct.’ further Schultea outweighed gov in that speech terest heightened pleading clarifies interest. We need not ernment’s address from Rule 9 does not standard derived element, viz., the first whether Anderson complaint any reply or to apply action, an employment suffеred adverse merely or motion to because answer because does not contest it.20 Valdez qualified imm dismiss asserts defense unity.17 apply general therefore We 1. Fourth Element pleading standard derived from Rule 8(a)(2) argues that has considering plaintiff whether has retaliation claim.18 the fourth element of his re- stated a satisfied tag applies when the defense of Id. at 1433. standard asserted, immunity qualified relying however, argument, [His] Schultea v. Wood. 14. Id. opinion this Court’s in that case.’’ misreads (citation omitted)). added). (emphasis 1433-34 15. Id. at Houston, City 511 F.3d Nixon v. 8(e)(1)). (quoting 16. Id. at 1433 Fed. R. P. Civ. 2007) (citations omitted) (inter- (5th Cir. omitted). quotation marks nal Id, differently, though at 1434. Stated even subject complaint any reply event, any employment ac- "[a]dverse standards, altered distinct neither standard is demotions, discharges, tions are refusals to responsive pleading when a defendant files a hire, reprimands.” promote, refusals to asserting qualified immunity defense. Garland, City 205 F.3d Breaux (5th 2000) (quoting Dep’t Cir. Pierce v. Tex. Kaelin, Justice, Div., Fed.Appx. 312- 18. See Coxv. Criminal Institutional 37 F.3d 2014) 1994)). (“Regarding (unpublished) The action here qualified claimed qualifies [the defense Valdez blocked Anderson's defendant’s] because argues immunity, heightened plead- being he that a hired. allege failing] allege claim because he failed to confidential and to taliation that his anyone written a letter to that knew Anderson had was known than Valdez other Chief or had Justice Jefferson and [the letter to the Texas Texas] Counsel,” Supreme Court’s disciplinary complaint a with the General he filed consequentially that admits Valdez not on Judicial Conduct did State Commission know about the letter. Valdez further as- mal- purported discussed Valdez’s which possibility serts that “the mere that Yet, cursory reading a feasance. even could [he] [have] learn[ed] Anderson’s complaint demonstrates that Anderson [disciplinary] complaint to the State Com- adequately alleged that knew of has Valdez mission on Judicial is not Conduct suffi- fact, complaint. letter and In Anderson’s nudge allegations cient to Anderson’s over expressly alleged that Valdez Anderson possibility plausibility.” the line from to knowledge that filed a com- “had Anderson Anderson, course, disputes all of this. plaint against Com- [Valdez]with the State mission on Judicial He fur- Conduct....” Valdez mark. regard misses the With to that, according ther to Justice pleaded letter, allegation Anderson’s is that he Perkes, “because Anderson had filed a keep asked Chief Justice to Jefferson complaint against with State [Valdez] confidential, letter not that Chief Justice Conduct, on Commission Judicial [Valdez] fact, actually so. In Jefferson did Anderson all of the not to told Justices allow alleged that Chief Justice Jefferson did not to work for He also Anderson [Perkes].”21 himself, establishing answer the letter that that, justice alleged though even each the letter confidential. had remained staff, entitled to hire his or own Valdez her regard disciplinary With to the com- to interfered with Perkes’s decision do so plaint, that contends Texas law re- Valdez and that this was dеcision alone. Valdez’s quires on the Commission Judicial Conduct accepted When all these contentions are keep complaints to such confidential. But true, they clearly that demonstrate Although pa- this misstates that law. “the disciplin- Chief Justice Valdez knew the pers proceedings filed with and before the ary complaint. required Anderson is prior commission are confidential knew, allege only hmv Valdez that he filing charges,” subject to of formal this is knew.22 specified exceptions.23 exception One such this, Despite Valdez also contends that filing of a request states: “On the written that the allegations when Anderson’s letter may by judge, the commission release disciplinary complaint were confiden- person request, in- designated true, they number, nature, tial are taken as foreclose the cluding judge, possibility disposition complaint against Valdez could have known of a filed In particular, about them. states judge with the commission....”24 “[T]he “admitting] may” required asked commission is not [Anderson] —but identity of a keep Chief Justice Jefferson his letter to—“refuse release the Cox, ("[The alleges: May Fed.Appx. em- 21. Anderson also "On 22. See at 312 Vela, 'known,' [speech] Perkes texted former Justice ployee] pleads Justice his "Roy went war over Bruce [Valdez] plausible [speech] and thus it is his moti- justices and all of rest of the [Anderson] termination.”). vated his eventual (alterations Roy's cowtowed to wishes.” true, suggests original). merely Taken as this 33.032(a). § 23. Tex. Gov’t Code Ann. knew about that Perkes assumed that Valdez complaint May Anderson’s letter and 33.032(e). specifically that ethical request made.25 more complainant” such a Likewise, may” lawyer including duty “the commission duties as —but — “keep complainant’s required incorporated report malfeasance —were to— complainant if the so identity confidential” a public employee. into his official duties as most, pro- requests.26 At establishes disputes this. Commission Judicial

cess that State follow, not the is instructed Conduct Pickering v. Board Edu it As the that did follow. with process cation, that Supreme the noted letter, alleged not that the Anderson has any in is to problem case arrive a “[t]he did, Commission on Judicial Conduct State [pub the interests of balance between the fact, complaint confidential.27 in the keep citizen, employee], commenting lic as in a upon of the required allege public not matters concern and

Anderson com- of the letter and [public employer], how knew an Valdez interest the as Having only that knew. plaint,28 Valdez promoting efficiency in the employer, so, sufficiently pleaded that he has done public performs through the it its services disciplinary complaint letter and his his in employees.”29 balancing those Before allegedly precipitated Valdez’s untoward terests, however, necessary engage it is conduct. inquiry regarding in a threshold whether spoke a public employee the as citizen at Thikd Elements

2. Second & question all. This is resolved with refer is next asserts Anderson Valdez Ceballos,30in v. the ence Garcetti which satisfy ele- unable the second and third that, adjured public Supreme Court “when claim, viz., of his retaliation whether ments employees [speak] to their offi as citizen on a matter of spoke a duties, [they] speaking cial as are citi in- public concern and—if so—whether “[j]ob-required ....”31 is zens Such speech outweighed gov- in that the terest irrefutably protected,” even when it that, by interest. claims ernment’s Valdez public addresses a matter concern.32 filing sending complaint, the letter and the begins by recognizing that Garcetti acting pursuant to his offi- Anderson was “public all employees do surrender public employee, as a so his cial duties unprotected. suggests rights their First Amendment reason of speech was 568, added). (emphasis 391 U.S. (1968). L.Ed.2d added). (emphasis Id. 33.0321 30. 547 U.S. alleged (2006). if 27. Even Anderson had L.Ed.2d 689 kept on Judicial Conduct State Commission confidential, complaint al- Id. at 126 S.Ct. 1951. Anderson also Vela, Perlces, including leges that Caf- others — Dist., Lemoine, Indep. 32. Williams v. Dallas Sch. County ferty, Travis District and the 2007) ("Pickering, F.3d 692-93 Attorney’s Office—were aware of it. Valez however, inapposite. is now The may any have become aware of it from them, pronouncement Court's recent in Garcetti as well. layer threshold Picker- Ceballos added a Garcetti, Cox, (“[The ing balancing Fed.Appx. 28. See at 312 em- test. Under we must 'known,' pleads [speech] from the ployee] that his shift our focus content plausible [speech] speaker occupied when he thus it is that his moti- to the role the said (citation omitted)). termination.''). vated his it.” eventual explains employee’s It employment.”33 their then own interests: citizen “[A] guide interpre- inquiries government there “two for who works is nonethe- protections ac- citizen,” of the constitutional tation a “[t]he less First Amend- (1) public employee speech”34: corded to of public employer ment limits the ability spoke as citizen employee “whether restrict, incidentally or intentional- and, so, on a matter concern”35 ly, employees enjoy liberties their (2) [public employer] had an “whether capacities private citizens.”40 adequate justification treating the em- princi- Garcetti these “[w]ith holds ployee differently any from other member mind,” ples employer may restrict general public.”36 of the only it when Garcetti notes the “overarch “pursuant employee’s] to [the objectives” inquiries “are evid ing these limit, noted, justified duties.”41 it Such govern ent.”37 a citizen enters “When employer’s disciplining, interest service, by necessity must ment citizen viz., controlling, employees.42 its Stated or her accept certain limitations his differently, Garcetti with re- decided public freedom.”38 This is em because gard speech pursuant to public made to a ployer, any principal, like an interest has duties, employee’s public em- official controlling agents. in the activities its ployer’s automatically outweighs interest employee’s Those activities include the unpro- the employee’s, is thereforе which necessarily A speech. public employer has tected. (1) requiring speech by an in its interest Garcetti noted that itself employees pro that enables “the efficient is not (2) scope holding its limitless. For services,” public prohibit vision of instance, public employee speak a does not not, ing speech including does pursuant merely to official his duties be public employ which “contravene^] [the Likewise, speaks cause he while at work.43 policies impair[s] proper per er’s] pursuant public employee speak a does not formance functions.”39 Even [its] interest, however, merely employer to his official duties because he has such an against speaks contrary, still To the that interest must be balanced about work. Gar- Garcetti, 417, 126 40. 33. 547 U.S. at S.Ct 1951. Id. 420-21, (citing Pickering, (emphasis

34. Id. at 41. Id. at 126 S.Ct. added). 391 U.S. at 88 S.Ct. ("We 35. Id. 42. hold that Id. at 126 S.Ct. public employees pur- make when statements ... the Constitu- official 36. Id. suant their duties not insulate their communications tion does employer discipline.”); Discipline, from Id. Mer- http://www.merriamwebster. riam-Webster, (defining com/dictionary/discipline "disci- Id. gained by enforcing pline” obedi- as "control system ence or "a rule or of rules or order” justi- Id. at 1951. The latter activity”). governing conduct or appears prevent over fication confusion public employee routinely whether a who 420-21, is, fact, While 126 S.Ct. 1951. such government speaks on behalf of the might very employ- government well relate to the speaking speech or on on behalf of the duties, necеssarily infra, official it is not made his or her As ee’s own behalf. discussed pursuant expounds to those duties. Garcetti on this. citizen, ... speaks a the First Amend cetti reiterated First Amend “[t]he [speech] balancing related to the protects requires ment some ment delicate further, Garcetti speaker’s job.”44 Still surrounding competing interests not public employee noted that does Picke consequences” speech and its under to his official duties when speak pursuant “When, however, ring.48 employee is analogous is to that of a citi speech duties, job his or simply performing her Garcetti stated particular, speech. zen’s degree is for a similar there no warrant public employee speaks that “[w]hen scrutiny,” and Garcetti may supplant ‍​​‌‌​‌​​‌‌‌​‌​​​‌‌‌‌​‌​​​​‌‌​​‌​‌​‌​‌‌​‌​​​​​​‌‌‍anal responsibilities pursuant employment ysis Pickering.49 under analogue ... no relevant [will be] there reason, scope For this Garcetti’s is obvi- [public] citizens who not are ously suggests. not as broad as Valdez there is Accordingly, employees.”45 when Instead, Garcetti merely public allows the analogue speech by citizens an who employer employee’s to control an employees, employee does public pursuant employee’s if made to the official duties, pursuant to his official speak say, is within duties.50 That an Speech as a citizen.46 “outside but made pursuant control if it is employer’s made performing em the course [the employee’s official duties. official ployee’s] duties thе kind Garcetti repeatedly “speech and, used activity engaged there citizens” fore, subject inquiry to the threshold Therefore, Garcet- though employee duties” formulation.51 Even “[w]hen

Garcetti47 421, it, ering not 44. Id. at 126 S.Ct. 1951. we do also consider whether the spoke employee public on a matter of con- 424, 45. Id. at 126 S.Ct. 1951. Dist., Indep. cern. v. Dallas Sch. 480 Williams 689, F.3d 693 Reilly City City, In v. the Third Atlantic explained when an individual’s Circuit 51.See, Garcetti, 413, e.g. 547 U.S. 126 S.Ct. at public employee overlap official duties as a ("The question presented by 1951 the instant citizen, with his duties a as individual protects First case is whether the Amendment 216, (3d speaks as citizen. 532 F.3d 231 a government employee discipline a from based 2008) ("That employee’s responsi- an official pursuant speech employee's made to the impetus [speak] provided the initial to bilities added)); (emphasis duties.” id. at official independent is immaterial to obli- his/her ("The controlling factor in [the S.Ct. gation government as a citizen.... When a employee’s] [speech public case is that his truthfully, employee testifies is not ‘sim- s/he (em- pursuant to his duties....” was] made rather, duties,’ ply performing job his or her ("We added)); phasis pub- id. hold that when acting (quoting employee is as a citizen.” employees pursuant lic make statements to Garcetti, 1951)). 547 U.S. at In duties, employees are their not official Franks, Supreme "re- Lane speaking pur- as citizens for First Amendment discord” solve[d] between the Eleventh and poses, and the not Constitution does insulate Reilly. Third favor of Lane v. Circuits employer their cоmmunications from disci- — Franks, U.S.-, added)); pline.” (emphasis id. at (2014). 189 L.Ed.2d 312 ("The suggested S.Ct. 1951 it [below] court compel public be em- would inconsistent to Garcetti, 547 U.S. at S.Ct. 1951. ployers employee speech tolerate certain publicly speech pursuant but not made made 48. Id. assigned objec- employee’s to an duties. This underpin- tion misconceives the theoretical (citation omitted) nings of our decisions.” added)); public employee spoke (emphasis pursuant a id. at 126 S.Ct. 1951 Whether duties, viz., ("When job pursuant public employee public employee speaks as or a his citizen, however, inquiry. employment responsibilities, is as a a threshold In consid- there is Williams, began In it means to we with broad ti itself “did explicate not what the extent inquiry: to’ ‘official must determine ‘pursuant “[W]e one’s speak ”52 Garcetti, which, duties,’ public employ- what it under clearly it did establish protected by Amendment [public employee’s not “The ee is the First mean: does necessarily required by is not subject speech his speech] concerned the matter .,. related job is is nondis- his but nevertheless employment, duties [his] but Yet, protects job eventually his we positive. The First Amendment duties.”56' speaker’s adopted holding: a much narrower expressions to the “We some related reaffirmed, disrupted, public employee’s that” job.”53 thus hold This was Franks,54 per- was made “in the course by Lane v. speech (This his forming job.., .”57 formulation Independent v. Dallas Williams Garcetti, well.58) is It used in is there- District, public School explained that a we Williams, Garcetti “[u]nder fore clear speech pursuant is to his employee’s ... employee’s speech] public [a is “made speech official duties when that First it protected by the Amendment [if] performing employment,” his the course during per- was made ... course specifically or not whether forming job.”59 not, of him.”55 as the “demanded We did Court revisited Gar- suggests, this to expand include dissent When Lane, cetti related it criti merely “[t]he reiterated duties, under Garcetti whether the cal question official muddying ordinarily in Garcetti. speech at issue is itself within instruction analogue speech by employee’s] employment,’ because First '[t]he no citizens relevant government employees.” (empha- protects expressions who Amendment some relat added)); ("It expres- only job.’ sis id. relates speaker's ... "The critical ed to the employee an to his or sions makes question is whether the Garcetti under responsibilities, not to statements her ordinarily scope within the is itself issue complaints that are made outside duties, merely employee's not whether it added)); employment.” (emphasis id. duties Garcetti, (quoting duties.” concerns those precedents ("Proper application of our thus 1951)). 421, 126 S.Ct. U.S. at First Amend- leads to the conclusion that the prohibit managerial discipline ment does not Williams, F.3d at 694. 55. 480 expressions pur- employee’s on an made based (emphasis responsibilities.” to suant official added). (emphasis 56. Id. at 693 ("Our added)); 126 1951 id. precedents support of a do not the existеnce added); (emphasis v. at 694 see Nixon 57. every cause of constitutional behind action (5th Houston, 498 Cir. 511 F.3d City of public employee statement a makes in the Williams, 2007) that, (noting in we "ultimate- job.” doing (emphasis or her course his of ly undertaken in '[a]ctivities concluded that added)). job performing are activi- of one's the course ” Williams, (quoting 52. 480 F.3d at 692. pursuant to official duties’ ties Williams, 694)). F.3d at 480 Garcetti, 421, 126 U.S. at S.Ct. 1951. 547 Garcetti, S.Ct. 1951. U.S. at — -, Franks, U.S. 134 S.Ct. 54. Lane v. (2014) (“But 189 L.Ed.2d Houston, City 511 F.3d v. 59. Nixon simply nothing speech that Garcetti said about of 2007); McKinney, v. see Davis public in employment or concerns relates to 2008) (reiterating 518 F.3d public em in the course of formation learned of in the course undertaken holding explicit that its ployment. made [It] "Activities job pursuant to performing one's are activities [speech] at did not turn on the fact the duties_"). [public official subject 'concerned the of issue matter duties, subject employer’s con- conduct to the employee’s not scope of an the relates merely it concerns trol.” [read: whether Although Lane added those duties.”60 to] therefore, employee, might A in used “ordinarily” to the formulation to official speak pursuant his duties when Williams, not we have since Garcetti and subject he does so in a course of conduct change jurispru in the ed “whatever control, employ- if employer’s the even the ‘ordinary1may augur, arewe unable dence speak, him to actually er has not directed in rule any change Garcetti’s to discern speak. If speak, not to or the how ..., change resulting any for from Lane to exercise employer entitled such was said to been from Lane cannot be have control, pursuant to the speech the is made ”61 ‘clearly established.’ duties; employer employee’s the official instances, state law some control, not to exercise such was entitled plain the as it describes “relevant insofar pursuant not speech the the made including his and the position, tiffs duties employee’s official duties. the em- Whether hired, way supervised he is and fired.”62 employ- ployer entitled to control the was here, insight it offers some believe We ee’s whether determines instance, Texas, adopted for has the well. employ- pursuant was made the (Third) Agency, which ex Restatement of ee’s official duties. employee acts plains that within “[a]n in itself il- The circumstances Garcetti scope employment performing when employ- lustrate this focus whether assigned by employer engag or work There, er control. was entitled exercise to the ing subject in a course conduct employer disciplined employee an for an employer’s provides It control.”63 likewise employee’s pursuant made not employee’s act is within “[a]n prosecutor. speech, duties as a The scope employment it occurs with when memorandum, the benefit was independent an course conduct was, essence, employer. of the It employee any to serve intended employer’s speech, not purpose employer.”64 of the em When employer, employee, own. The was ployee actually “performing work employer to control Just as the assigned by employer,” he entitled it. nonetheless it, employee had to create might have within the directed scope acted employer employee direct the employment could also his official —or refused, “engaging employee If duties —if he a course alter it. discard — Franks, -, Agency U.S. 7.07. The (Third) Lane Restatement L.Ed,2d 2369, (2014) 2379, Employment (empha- ed). duty” That refers to an Garcetti (1983)). "official 75 L.Ed.2d 708 mean, suggests it should be read to not all duties, but those duties derived from the of- Id. at S.Ct. 1951. (that is, itself, position) fice the not some duty. extrinsic laws_”77 instance, public employer the And, further, “addi- Garcetti there are of, disciplined employee its permissibly form for exam- had safeguards the tional employees public speech of for that was made ple, rules conduct” for because impera- lawyers.78 “These are also appropriate who to and official pursuant lawful arising tives, obligations as well as [other] differently, it lawful duties. Stated of applicable mandates any from other employer for to control the appropriate the laws, employ- protect civil criminal and speech through that employee’s [public employ- on provide checks ees and pursu- duty. holding or other- would order unlawful who ers] employees’ official duties is public ant to to actions.”79 is inappropriate This wise alter, not not did but protected, Garcetti employer An is entitled repeat the obvious: embraced, law re- clearly established an to control over exercise concerning malfeasance. garding speech only appropriate it is lawful and if instruc- In the context Garcetti’s clear If it not for it to do so. is lawful tion, disciplinary letter and Anderson’s employer for the to appropriate exercise to his complaint were created control, is, employee quite simply, to It is useful note official duties. official duties. speaking pursuant to his Vela, not ask supervisor, did of those criminal and civil The mandates him, him, require to send the much less protect employees from disci- do laws disciplinary complaint. or to file the letter arising perform from their failure to pline alleged that so duties; expressly he did inappropriate or otherwise unlawful alleged also instead, “on his initiative.” He they protect employees from the own “keep Justice Jefferson to very begin duties to he asked Chief existence those that no one “at duty duty is not a at all.80For letter confidential” so Such a with. lawyers. Lawyers plied who exercise their 77. Id. to knowledge deprive so as to others skill rights legal system or to obstruct the their calling.”); justifications of their subvert the § see also Williston 19:40 425-26, Id. at 126 S.Ct. 1951. Contracts 2010) (“[A] illegal thing promise to do an ed. unenforceable, legal for a consideration is 8.09, Agency § See Restatement (Third) promise equally improper to to do a and it is ("An agent’s duty comply c with in- cmt. legal thing illegal for an consideration. If agent An has no structions is not absolute. agreement promise on is bilateral and the comply may duty to with instructions that unlawful, promises is both either side criminal, civil, subject agent or admin- unenforceable, promise for one is itself un- legal istrative sanctions or that exceed limits given for lawful and the other is unlawful right principal's on the to direct action taken (footnotes omitted)); Restate- consideration.” Thus, agent by agent. duty an has no 178(a) (1981) § (Second) comply or with a directive to commit a crime ment of Contracts (“A agreement promise or term of an other agent will be an act the has reason to know grounds public policy unenforceable agent An is a member of a who tortious. legislation provides that it is unenforceable or duty profession does not have to follow clearly in its enforcement is out- the interest given by expose principal instructions public weighed in the circumstances violating agent discipline profes- policy against of such the enforcement provision sional rules.... A contract which terms.”); 179(a) ("A public policy § id. agent promises perform an unlawful act an promises unenforceable.”); against or the enforcement other (Third) of the Restatement (a) (2000) may by the court from be derived Governing cmt. c terms Lawyers Law (b) ("A policy, legislation to such a agent help principal relevant cоntract an aspect protect need to some perform unlawful act is unenforcea- welfare....”). ap- special force when ble. ... The rule has

599 to qualified immunity the Thirteenth Court” would know about entitled nei- because Anderson, briefing attorney, If as it. Vela’s ther Garcetti nor contempo- other relevant duty to or an official send the letter had rary clearly cases that speech established why then complaint, file the he would have pursuant professional (here, made to a from purposely doing concealed his so ethical) duty speech pursuant is not made her?81 to an duty. Anderson counters that nothing As the in Garcetti did Supreme Court stated more than create a “[mjatters Connick, public concern are presumption limited made a fairly those can ‘be which considered as public employee pursuant to an official social, relating any political, matter of or duty unprotected; is it not disrupt did ”82 community.’ other concern presumption by public made a “Speech any whieh discloses evidence employee presumptively protected, in- corruption, impropriety, or other malfea cluding speech pursuant made ethical officials, part sance on the in terms duty. content, clearly concerns matters And, public import.”83 as § A person may assert a 1983 explained Pickering, “statements against claim anyone who “under color of by public officials on matters of ordinance, statutе, custom, any regulation, concern must be accorded First Amend or usage, any per violates that State” protection despite ment fact that the rights son’s To under Constitution.85 statements are directed their nominal (1) claim, person state such such “must superiors.”84 allege right a violation of a secured We convinced Anderson suffi- Constitution or laws of the United States ciently pleaded each of the of his elements (2) alleged depri demonstrate speech, retaliation claim. His which was by a person acting vation was committed to his official duties said, color of That under state law.”86 Next, public employee, protected. was we qualified immunity pro doctrine of “[t]he right protec- must consider whether his government from civil tects officials dam tion clearly for such estab- ages liability then' actions when could rea lished. sonably legal.”87 have believed to be been Immunity D. Defense immunity protects plainly “This ‘all but the Qualified incompetent knowingly who vio that, those urges even ”88 claim, (Valdez) Accordingly, stated a retaliation he late the law.’ we “do not herself, Hanna, 631, (5th lawyer subject Whitley 81. As a Vela 86. v. 726 F.3d 638 duty disciplinary complaint, yet 2013) same file (quoting Cnty., Cir. James v. Collin 535 circumstantially, may At 365, 2008); she did not. least (5th F.3d 373 Cir. see v. Moore suggest that she believed she had such no Dist., 871, Indep. 233 Willis Sch. F.3d fact, duty duty no such existed. (5th 2000)). Cir. Dallas, City 82. Branton v. 272 F.3d v, Swanson, Morgan 87. 659 F.3d (5th 2001) Connick, (quoting Cir. 2011). 103 S.Ct. U.S. at Smith, Conaway 83. v. 853 F.2d Malley (quoting Briggs, at 371 1988); Branton, see F.3d at 739. 1092, 89 U.S. L.Ed.2d 271 (1986)). Pickering, 391 U.S. at 88 S.Ct. 1731. 42 U.S.C. 600 precedents on and the relied ‘existing precedent tions between

deny immunity unless Court, long so statutory or. then before the placed constitu- the cases the must have warn- beyond prior gave “The decisions reasonable question debate.’”89 tional qualified-immu- at violated steps ing of that conduct then issue [this court’s] basic plaintiff rights.’”94 “That this court nity inquiry are well-known: constitutional immunity must qualified an identical seeking previously defeat has not considered ‘(1) litigant’s the official violated a statu- that not mean that a fact does pattern show: (2) that right, and or constitutional But tory rights clearly established.”95 were right “clearly at was established” not be defined “at a right also should ”90 This challenged conduct.’ And, time generality.”96 even high level of court, court, has “discre- like district immunity, “the qualified the context prongs tion to which the two light decide alleged” in the facts must be “[t]aken analysis to tackle qualified-immunity party asserting the most favorable first.”91 injury.”97 2014, By clearly it estab- right contours of the least

“The that an sufficiently clear that a reasonable lished must be “externally” concerning “an event that what he is official would understand requirements” right.”92 job not to doing [his her] “This is within violates protec- to First Amendment protected an official action is was entitled say that allegations as immunity very Taking action tion.98 Anderson’s qualified unless true, stage of the previously un as we must at has been held question lawful, light litigation, alleges exactly ‍​​‌‌​‌​​‌‌‌​‌​​​‌‌‌‌​‌​​​​‌‌​​‌​‌​‌​‌‌​‌​​​​​​‌‌‍what say is to in the Anderson but it First, alleges requires. Anderson pre-existing law unlawfulness must be Cutter concerns about Jus- concept reported “The central is that that he apparent.”93 viz., to warning*: clearly externally, The law can be tice Valdez State ‘fair Second, ‘despite on Judicial Conduct.99 factual distinc- Commission established notable v, Luna,-U.S,-, al-Kidd, 136 (quoting 563 96. Mullenix v. S.Ct. U.S. Ashcroft 2074, 305, 308, (2015) 731, (quoting 193 L.Ed.2d 255 179 L.Ed.2d 1149 131 S.Ct. 742, 2074). Ashcroft, 131 563 U.S. at S.Ct. (2011)). — 735, -, Cotton, (quoting Ashcroft, 563 U.S. at 131 S.Ct. 90. Id. 97. Tolan v. U.S. 134 2074). 1861, 1865, (2014). S.Ct 188 L.Ed.2d 895 2074; 735, Ashcroft, Univ., 131 563 U.S. at S.Ct. Stephen State 98. Cutler v. F. Austin 767 Callahan, 223, 236, 2014) 462, (5th see v. 555 U.S. Pearson (finding Cir. F.3d 472-73 808, (2009). Garcetti, L.Ed.2d 565 129 S.Ct. 172 the combination of Davis, Williams, Grief, v. Charles (5th 2008), Creighton, 483 92. Anderson v. U.S. F.3d 508 had resulted (1987). law). 97 L.Ed.2d 523 clearly established (citations omitted). 93. Id. complaint to Jus- 99. Even if Anderson’s Chief arguably up complaint tice Jefferson was Weaver, command, Kinney F.3d complaint v. the chain of Pelzer, 2004) (quoting Hope 536 U.S. Cir. 730, 740, v. to the State Commission on Judicial Conduct L.Ed.2d 666 complaint out of the chain of com- was a And, alleges (2002)). Anderson that it was the mand. complaint Judicial Conduct Com- to the State alleged precipitated re- Aguilar, mission that Valdez’s 666 F.3d Juarez knowledge pleading; had taliation "Defendant is, alleges complaint mgs qualified immunity. that his That Garcet- judicial conduct commission was outside of plainly ti all did establish First job Accepting Anderson’s alle- his duties. Nonetheless, Amendment retaliation law. true, gations appeal. Cutler decides Garcetti, it apparent Cutler makes jurisprudence and this court’s interpreting that, say is not to our law That it, clearly ques- some established law. The applying spoke loudly regarding Garcetti Indeed, tion every just factual is how much. circumstance. spoke, Supreme after Anderson the Court allegations here, the Based on at issue Lane, in clarified Garcetti Lane. In the Howell v. Town Ball quеst answers that

plaintiff alleged that he was retaliated There, plaintiff alleged ion.105 the that he against giving testimony for to a federal job been from his had fired aas town grand jury investigating employ- another for police cooperating officer FBI with an that, ee.100The Eleventh Circuit concluded investigation into public corruption.106The Garcetti, plaintiff under testified as an that, plaintiff “emphasize[d] under Su citizen, employee, not as a he tes- because Lane, preme Court’s recent decision in to an tified event that he learned question relevant [was] whether reversed, job.101 Supreme The not- Court ordinarily at issue [was] within the ing that “the Eleventh Circuit read Garcet- scope And, of an duties.”107 so, broadly.”102 ti far too doing In job “ordinary” what duties were was criti public employees’ clarified holding. cal to the court’s The protected by plaintiff is not the First they speak Amendment when the course “offered evidence that his involvement job “ordinary” their duties.103Nonethe- FBI investigation was the ordi outside less, quali- Court ruled that nary scope professional [of] duties.”108 proper immunity fied was because the pointed “general” The defendants concerning Eleventh Circuit’s case law duty police all officers “detect and testimony an employee’s whether sworn prevent crime.”109We found that de protected by was the First Amendment inadequate fendants’ evidence because deeply conflicted.104 general “fail to broad duties describe with day-to-day Thus, that, sufficient detail duties plainly Lane demonstrates is, Garcetti, public employee’s job.”110 That in as following First some Amendment sessing summary judgment retaliation cases would still result find- evidence against complaint that Anderson filed a De- 102. Id. at 2379.

fendant with the Commission on Judi- State cial Conduct and that interfered in 103. Id. at 2378. Defendant hiring complaint. because of the Specifically, May Justice Perkes 104. Id. at 2381. that, told Anderson because Anderson had complaint against filed a Defendant with the F.3d 515 105. 827 Conduct, State De- Commission on Judicial told of the Justices not allow fendant all 106. Id. 519. Anderson to work for Perkes." Accord- Justice ingly, alleges he was retaliated 107. Id. at 523. against complaints outside his chain of command. Id.

100. 134 S.Ct. at 2375-77. Id. at 524. Id. at 2376-77. sides, duty part of their duty speak, both we concluded

presented by duties, may so their although “ordinary” the defendants have spoke pursuant duty protected plaintiff general that the to that asserted duties, job their evidence “general” to his by the First Amendment. spoke that he with not demonstrate could clear, however, Equally is that neither “ordinary” job duties.111

in his meaningfully nor Howell altered Lane Nonetheless, in- determined that the we required by and Cutler analysis Garcetti quali- were entitled to dividual defendants not con- employee’s allegations when do so, immunity.112 doing we noted fied “ordinary” cern the between distinction empha- not Supreme Court did that “the job “non-ordinary” and duties.116 in only speech that furtherance size Here, at there not—and employee’s ‘ordinary’ job duties is of an stage motion to there сan never dismiss nearly years until three after protected not meaningful dispute im be—a factual that discharged.”113 support In [plaintiff] was Lane’s rule.117 plicates ordinariness ob- proposition, of that we cited Gibson’s alleges that his Anderson that, “although Lane’s insertion servation on Judicial Conduct was State Commission meaning- qualifier ‘ordinary’ of did not and made outside his chain command test, original it does fully alter Garcetti’s job Perhaps at the outside duties. guidance regarding provide additional will summary judgment phase trial facts offi- falls within an what light implicate Lane. Until come cial duties.”114 then, however, the ordinariness rule sim in Reading Howell the framework right issue ply implicate does at effect properly synthesizes Lane’s Cutler here. Namely, our on Garcetti. Garcetti and Cutler, Accordingly, under Anderson has pre-Lcme jurisprudence court’s established clearly of a estab- pleaded the violation employees speak that when outside right. Qualified immunity thus lished does chain of their command and outside least, yet. apply —at they First job their duties are entitled to Lane How protection.115 Amendment III. however, ell, indicate that some cases are Conclusion to be too difficult determined reasons, forgoing For the AFFIRM though that rule. Even in some cases em we employment holding of the court and RE- ployees might general have a district currently any way ap- that would render the 111. Id. clearly plicable law not established under (internal omitted)). these facts.” citation 112. Id. at 525-26. rule, at 525. Lane 117.In addition to the ordinariness qualified immunity proper be- found that Gibson, (citing F.3d eleventh law 114. Id. 773 at cause of conflicted circuit case concerning protection Amendment for First Cutler, testimony. resolves the need to sworn Cutler 115. See 767 F.3d 472-73. engage inquiry here because Cutler such 668-69; Gibson, 2010 this case law had found circuit 116. See 773 F.3d at see also Cochran, clearly Hardesty Fed.Appx. established the contours of the First 780- Garcetti, 2015) (“The provided by (unpublished) protections Amendment Su- respect preme Court’s recent decision in Lane ... did at least with to the violations jurisprudence alleges. First Amendment Anderson not alter to a proceedings particular public employ- MAND further on untethered against workplace yield claim in his in- ee’s insight. will also little event, any capacities. majority cites ref- dividual official these absolutely nothing erences does but with JONES, Judge, dissenting: Circuit analysis them in further of Anderson’s dicta, pure are simple. duties. These agree I majority with the that even after Ceballos, Garcetti v. U.S. helpful Much more than treatises in illu (2006), L.Ed.2d minating the practical scope of Garcetti plausibly alleged has a violation court’s our decisions that evaluated of his First rights. Amendment Unfortu- employees’ whether compre duties nately, that is agreement, the end our they hended the for which claimed I disagree majority’s because with the rea- Thus, First protection. Amendment soning grant to this conclusion and would Independent v. Dallas Williams School qualified immunity. District, 2007), 480 F.3d 689 high court school cоncluded athletic A. First Amendment Retaliation director’s principal communications to the In discussing the course expressing concern about the use of funds claim, First Amendment retaliation the appropriated for athletic activities were majority has two made errors. The first made “in the of performing” ‍​​‌‌​‌​​‌‌‌​‌​​​‌‌‌‌​‌​​​​‌‌​​‌​‌​‌​‌‌​‌​​​​​​‌‌‍job course his error constitutes dicta not that need be sufficiently preclude duties to First majority followed hereafter: the irrelevant- protection. Amendment See at id. 693-94. ly of Agency invoke the Restatement and McKinney, Davis v. 518 F.3d 304 state law of agency “explain” scope the 2008), question any was whether public employee’s of a official The duties. complaints by of several made a former implication any second error is university “up auditor of a state the chain speech by public “whistleblower” em- of to the FBI command” and and EEOC ployee, pursuant even when made to his problems, staffing about internal audit is duties, official employee’s takes the retalia- potential sues and racial discrimination tion inqui- claim out of Garcetti’s threshold “in of performing” were the course mistakes, ry. explaining After these I write at job auditor’s duties. See id. 312-16. The why, proper analysis, under a Garcetti job focus on the relation between for Anderson has stated a claim relief. (as speech, duties and the on whether here) paragraph majority opinion majority One of the “the employer states circumstances, begins stating, controlling” “In some speech, had an interest in ethics, state law is insofar professional relevant as it describes or an auditor’s or plaintiffs position, including alleged his duties status. Davis ulti whistleblower hired, way supervised, mately and the he and found some the communications (The Amendment, majority protected by fired.” reinforce this idea in the First while at lengthy citing agency footnote and con- others were not. Id. 315-16. See also hornbooks.) Garcetti, Hous., City tract law to the con- Nixon v. F.3d 2007) trary, defining (holding police that a offi inquiry describes the scope employee’s prac- of an “a cer’s media critical duties as volunteered statement one,” job descrip- Department’s high- tical such formal of the Houston Police policy employers. speed tions will not suffice to insulate chase nevertheless was made 424-25, during “pursuant 547 U.S. at 126 S.Ct. at 1961-62. It to his official duties and job.”). of performing stands to reason that the course his reference treatises to “control” at- torney’s office Garcetti implication, second majority’s The speech pursuant his torney is consti- Ceballos’s “whistleblower”-type any The benign. duties, this tutionally is semantics. Ce- protected, but “is employee police miscon- majority reporting asserts-that about ballos was duties” his official speaking pursuant duct, misrepresentations specifically, pro- First Amendment gains affidavit; and therefore opinion his in a warrant unlawful, in- exposes he tection whenever superiors who overruled continued con- government or inefficient аppropriate prosecution. Supreme The the criminal from support Purporting draw duct. on the merits explicitly did not rule refer point, majority Garcetti memos and of Ceballos’s internal held para- penultimate Court’s they simply were authored that because begin by stating, “Exposing graphs, which duties, they to his official receive inefficiency and governmental misconduct Yet, protection. un- no First Amendment significance.” of considerable is a matter misplaced analysis, majority’s Ce- der 1962. The at 547 U.S. might just easily memos be ballos’s the Court’s discus- majority misconstrue as those characterized “whistleblow- enumerates various merely sion—which police prosecutorial and exposing er” both concomi- public officials limitations therefore, majority, The misconduct. have employees protections tant —as Garcetti’s smuggled back into threshold distinguish lower courts an invitation an evaluation job issue of duties appropriate” employer control “lawful “in- employer’s on the speech itself based speech from that of the which controlling” employee speech, terest in This is not inappropriate.” is “unlawful revelations. whistleblower says. The Court finishes its the Court what disagreement the Despite my with ma rejecting notion the “the discourse I discipline jority’s reasoning, concur Anderson First shields from Amendment Amendment retali expressions employees pursuant a claim for First make stated Vela, boss, professional prece- to them Our duties. The faсt that his Justice ation. support the existence a incriminating dents do information to conveyed the every cause of action behind speech constitutional that the Anderson means “related” employee in the public statement a makes duties, job pleads that to his but Anderson (empha- doing job.” his or her course of he the letters under her did write added). sis or with supervision or on her orders even — Franks, knowledge.1 Lane v. her (a) gratuitous on majority’s The focus Cf. -, U.S. S.Ct. (b) gov- of the and the nature (2014) (First Amendment re L.Ed.2d control” employer’s “interest ernment proceed taliation under Garcet- claim could clear line that Garcetti’s threshold muddle testimony in employee’s ti criminal where an holds undertaken “concern[ed] court related informa job categorically un- duties employ in the of’ his tion course by the First Amendment. The learned protected duties, itself, rather generally that it ment but majority assert “was law- duties, falling those for At- than within appropriate” ful and the District balance, ering but Valdez did not Contrary both Chief Chief Justice to what Justice assert, challenge application of majority profes- the district court’s and the Pickering have no attorney nor balance and thus we duties as an neither sional add argu- waived analysis. Arguably con- occasion or need to address that from this such detract might be relevant Pick- ment. siderations under the citizen). every A obligation careful Judicial Conduct anal fell outside Anderson’s job ysis Anderson’s duties indicates that employment duties.2 complaints about Chief Justice Valdez reasons, For these it is consistent with “pursuant to not made his duties” were Garcetti, Williams, and Davis to conclude “in of performing” the course his work as a pled, the facts under Anderson was briefing attorney to Justice Vela. employed to investigate report judge’s briefing attorney A paid by judicial beyond malfeasance his response normally the court but is accountable to Further, inquiry. Justice his com- Vela’s (or judge judges) directly for whom he plaints “up protected reflect chain” judge works. The a relation between and a speech as a citizen on a matter of clerk is sensitive law both and confidential. concern. Further, scope of the clerk’s duties for judge widely judi- “his” within the varies Qualified Immunity B. ciary, in part because a judge takes advan- question qualified On the immunity, tage briefing attorney’s particular of each majority rightly concerned that a experience expertise. hardly It is un- judicial officer should not be able to shield briefing range usual clerk’s duties to himself from the consequences of action memoranda, beyond writing legal conduct- able retaliation clearly law held cases, ing pending research and advis- clerk speaking law “as a citizen” ing on before the court. motions reported he alleged judicial when mis accordingly responsible for advis- became justice conduct the chief of the Texas ing she of him inquired Justice Vela when Supreme Court and the State Commission legality of the justice’s abоut chief case, Conduct. But in Judicial as in travel Based on reimbursements. their cases, immunity qualified all the law must relationship, confidential Anderson would “clearly have been established” at the time duty also have had the to inform Justice of the official’s factually conduct under if he independently Vela had discovered analogous circumstances. See Brosseau v. possible judiciary. malfeasance within the 194, 198-201, Haugen, 543 U.S. Justice Vela either case shouldered 599-600, (2004) (per 160 L.Ed.2d duty pursue allegations, but curiam). Only “plainly the incompetent” work ended ren- with public officials or those dering “knowingly his confidential who advice Justice Vela; justice protection no the are denied the asked more of him. violate law” Reporting “up qualified immunity. Creigh chain” to Chief of Anderson v. Justice ton, 635, 638, 3034, on Jefferson and State Commission U.S. S.Ct. 107 483 Rules, any special obliged by 2. Garcetti does not accord First and thus his em- duties, ployment report alleged publicly employed pro- miscon- Amendment shield to duct, then his was not entitled to con- by fessionals of their codes. virtue ethical Nor, protection. stitutional suggests, as Chief Justice Valdez are ethical codes a Garceiiz-fashioned sword. He aptly district court summarized its The re- argues Anderson a that is licensed Texas at- argument; way jection "In no of this does torney by Disciplinary bound the Texas Rules permit employer refuge Garcetti an take of Professional See Tex. Loc. Gov't Conduct. profes- employees’ under the broad net its 81.072(d); Meador, § Code In re 968 S.W.2d obligations happen sional ethical to im- that (Tex. 1998). concern, 350 Chief plicate speech public Justice on matters arguable profes- contends that it is at that fol- apply least to members of the and that all lowing Disciplinary part they Rules regardless publicly is a are sion whether briefing employed.” If clerk's official duties. Anderson (1987) lie,4 against a proposed sanctions (quoting Mal but its L.Ed.2d 523 judge ultimately S.Ct. reviewable ley Briggs, v. 475 U.S. (1986)). 1092,1096, judicia- L.Ed.2d 271 Supreme Court.5 The Texas Texas may thus be considered its own self- ry correctly post- note that majority The situation, regulator. In this Chief Justice Chief Justice Valdez and before Garcetti far from argument frivolous Valdez’s Anderson, our court’s de- against acted complaint up that Anderson’s went public distinguished a cisions between judiciary. “chain of command” within the chain of speech within the constitutional Consequently, ultimate (speech of his office command speech, thus his status of Anderson’s unprotected) constitutionally against to a First Amendment shield right citizen,” is directed outside which “as consequences, employment are debatable. responders like third-party (and constitutional violations demand constitutionally pro- Debatable may be EEOC Davis, officials, tected). See, immunity at for even e.g., qualified 518 F.3d complaints (holding 315-16 some within is bound to conclude that when court unprotected See, while System the UT to be e.g., Morgan violation in fact occurred. to the EEOC were con- Swanson, those accorded v. F.3d 389-90 protection).3 my banc) stitutional Based 2011) (en (holding defendants “[t]he employment that Anderson’s view immu- qualified in this are entitled case duty judge, “his” centered on existing precedent nity because failed necessarily outside his went place constitutionality of conduct their reported “chain of command” when he ”); ‘beyond Noyola Dep’t v. Tex. debate’ about Chief Justice Valdez on his own Res., 1021,1026 Human 846 F.2d Commission on State Judicial 1988) qualified immunity (granting because argu- logic suggests This Conduct. Noyola’s rights the ‘contours’ “neither denying immunity. qualified ment clearly nor was the ‘un- were so outlined ‘ap- Nevertheless, terminating Noyola lawfulness’ of so complex the issue is more Appellants should forfeit their majority’s analysis acknowledges parent’ than the Anderson, because, Constitution, qualified immunity” (quoting under the Texas 3039)). 640,107 pub- includes members of the 483 U.S. at S.Ct. Commission clearly arguendo, dispositive 3.I assume as the Court be a source established law”). arguendo, right may be has assumed clearly precedent established circuit alone Const, V, l-a(2) though Supreme precedent (stating even has Tex. art. See clearly right. Taylor See established be the thirteen-member Commission shall of; Barkes,-U.S. ——, appeals justice; 2044- comprised one court of (2015) curiam) (twice (per judge; two members of the state 192 L.Ed.2d one district noting practiced that decision of this Court” was who have law for ten consecu- "[n]o bar Taylor "[a]ssuming years; five who are not licensed similar to before tive citizens right 'clearly practice public employees; argument law not one sake of that a can be precedent justice peace; municipal by despite circuit dis- of the one court established' judge; county judge; one court at law and one agreement appeals”); courts in the Reichle 2088, Howards, county judge). court constitutional U.S. 132 S.Ct. 2093-94, (2012) (noting 182 L.Ed.2d 985 V, l-a(9) ("A Justice, Judge, has never held that there is such 5. See art. "[t]his Court id. Master, retaliatory Magistrate may appeal right arrest a decision be free from ['to ['ordering] supported by public cen- probable of the review tribunal that is otherwise sure, arguendo ''[a]ssuming removal’] that retirement or cause']” before rule.”). authority controlling Appeals’ the substantial evidence Court of could Court under reasons, clearly even if Anderson’s For these established time of his true, Rather, I con- proven speech. to be on allegations we relied Cutler v. Ste- visited un- phen that Chief Justice Valdez F. University1 only clude Austin State as upon retaliation confirming constitutional 2010” “by post-Garcei- our not “clearly but the law was established” ti clearly v. Ceballos2 case law had estab- any [judicial] such that “reasonable principles lished various of First Amend- speech understand” that would Anderson’s ment retaliation law.3 constitutionally protected it was because Importantly, panel in Cutler was “chain of occurred outside law clerk’s deciding qualified immunity itself quest Anderson, command.” See 483 U.S. at Specifically, panel ion.4 the Cutler asked at 8089. what First Amendment retaliation law was respectfully I dissent. clearly in established 2010—well before the acts taken in this case.5 That panel PETITION FOR ON REHEARING “[sjeveral pre-2010 then explained that de EN BANC clearly cisions” established that “speech WIENER, Judge: Circuit ... externally participat made about ing in an that was not [an event within Treating Rehearing the Petition for En employee’s] job requirements” speech was Rehearing, Banc as a Petition for Panel citizen, speech made as a DE- Rehearing the Petition for Panel employee.6 panel The Cutler concluded panel judge NIED. member of nor No in “reasonable officials the Defen regular active service of the court hav- position dants’ should have known on the ing requested polled court on be Grief, basis of 522 F.3d [v. Charles (FED Rehearing En Banc P. R. APP. (5th 2008)] McKinney, Davis [v. Cir. 35), 5TH R. CIR. the Petition for Rehear- 2008)] that Cutler’s F.3d 304 ing En Banc is DENIED. speech protected was as the of a Rehearing his Petition for citizen that their decision to terminate Banc, En Defendant-Appellant, Chief Jus on of that citizen Cutler the basis Rogelio of the Thir tice Texas would violate Cutler’s First Amendment Appeals, teenth Court of that the contends right.”7 holding of Cutler The therefore panel majority improperly relied cases concerns the of the law well state challenged speech to decided after the de speech. before Anderson’s It right. fine the First Amendment is true rely Neither we on Cutler to deter- did post-conduct that the use of cases to estab right already mine what was established right lish existence or of a contours Instead, we discussed Cutler em- qualified-immunity would run afoul our only it We, phasize clear- jurisprudence. majority, did panel however, not, ly like rely post-conduct cases to established Amendment, protected First Plaintiff-Appellee show that Bruce was right but also that a reasonable official in Chief Anderson’s First Amendment Cutler, 1. 767 F.3d 472-73 767 F.3d at 470-73. 5. Id. at 472-73. 410, 1951,

2. 547 U.S. 126 S.Ct. 164 L.Ed.2d (2006). 689 6. Maj. Op.

3. at 600 n.98. 7. Id. at 473.

608 of this position panels at least are not. Other court have Justice Valdez’s would—or he was qualified-im- understood that what in should—have noted even likewise clearly estab- doing cases, violated often not munity Lane does alter right.8 con- Amendment We lished First analysis required by post-Garcetti our alleged a viola- that Anderson had cluded case law.14 that demonstrates was tion law Cutler differently, not Put we did use Howell And, as clearly by 2010. that established right or to either define show 2014, change 2010 and not between law did right clearly was established at the qualified not immu- entitled Instead, spoke. time Anderson the discus- nity.9 only sion of Howell was included to cabin Howell v. Town also discussed We holding rights clearly our that were opinions other issued after Ball10 and just making established 2014: wereWe clear, the very Lane v. Franks.11 To be opinion implicate our not clear that does (also post-conduct of Lane discussion rule. Our Lane’s ordinariness discussion Lane, case), interpreting of cases deciding bearing that rule had no Val- quali- necessary to decide the strictly qualified-immunity dez’s claim. As we went fact, fied-immunity question here. we lengths explain, right that Cutler Cutler, the citation to explicit were clearly held was established 2010 de- cited, quali- the cases it resolved appeal.15 cides this fied-immunity issue.12 The discussion included to Lane instead was ensure over-establishing by un-

we law were

necessarily that Lane had no im- implying post-Garcetti on our law:

pact whatsoever recognized that Lane indicated that

We post-Garcetti speak law did not

our case circum-

“loudly regarding every factual

stance.”13 a discussion of We included situa-

Howell illustrate which factual implicated by Lane and which

tions are Creighton, 8. See U.S. 10. 827 F.3d 515 Anderson v. 483 (1987). L.Ed.2d 523 -U.S.-, 11. 189 L.Ed.2d Cochran, 9. See Fed.Appx. Hardesty (2014). curiam) (“In 2015) (per Cutler ... we whether First considered Amendment Maj. Op. ("Accepting 12. at 601 Anderson's regarding principles public em- retaliation true, allegations ap- decides Cutler clearly prior ployees were established peal.”). We concluded that numerous gave and Fifth Circuit decisions Maj. Op. at 601. warning clear when a defendants engages employee of his outside See, Hardesty, e.g., Fed.Appx. at 780- duties, employment employee directs ("The Supreme Court’s recent decision in speech externally within rather than juris- Lane ... did not alter First Amendment command, employer may chain prudence any way that would render the discipline employee engaging in the currently applicable clearly law not estab- question. The law was therefore (citation omitted)). lished under these facts.” clearly established when the Defen- Board employment dants took adverse actions 2012.”). against Hardesty Maj. Op. in 2011 and at 600-01. notes 189 312 Law Restatement of added). "general employee requires, sis test of status” part, employer controls the man- "the 661, by ner ren- and means which individual 61. Gibson v. Kilpatrick, 669 773 F.3d services, 2014). (5th employer othеrwise ders or the effec- Cir. tively prevents rendering from the individual 271, [independently].” those services Cnty., 62. Calderon v. Martin F.2d 639 Restatement test, (5th 1981); § Law 1.01. "Under that Employment it 273 Cir. see v. Dallas Muhammad generally principal is with the Cmty. Supervision the case that a Cnty. Dep’t, & 479 Corr. F,3d 377, 2007). right agent’s ability how an work or to control 380 ‘employer’ agent performed is an ” ‘employee.’ d. Id. cmt. Agency § 63. Restatement 7.07 (Third) added); (2006) (emphasis see v. Var Bohnsack Agency co, L.P., 262, 668 F.3d 273 65. Restatement 7.07. (Third) 597 employer discipline was entitled to In employer contrast Garcetti, no “Restricting “heightened Valdez had him. that owes its ex- inter controlling speech.”72 ] [Anderson’s] to public employee’s professional istence est! was not an “[official responsibilities any does not infringe liber- ] [that had] official conse communication! employee might enjoyed ties the have as a quences,” anyone requiring at the Thir Instead, private simply citizen.”66 “[i]t re- teenth Court to ensure that it was “accu flects the exercise employer control over rate, judgment, sound demonstrate^] employer what itself has commissioned promote[d] employer’s mission.”73 In or created.”67 stead, it of activity was “the kind engaged explained, As controlling Garcetti “[t]he in by including licensed law citizens”— is that public employee’s] yers factor [the govern do not work —“who 74 expressions just were ment.” All pursuant lawyers, lawyers made to his who have a [prosecutor].”68 employees, duty as a to re employ duties “[The port malfeasance. dispositiоn wrote his ee] memo because part that is employed what he ... was notably, Most Garcetti expressly public employee] to do.”69 [the “When went applies “only to expressions an em performed work and the tasks he was ployee pursuant makes or offi her paid perform, [public] acted as a [he] cial responsibilities duties], not [read: employee,” private not as a citizen.70“That (such statements or complaints as those at consideration —the fact that employ [the Connick) issue in Pickering cases like spoke as a prosecutor fulfilling ee] a re that are made outside the duties em sponsibility duty] [read: to advise em [his ployment pursuant to his or [read: her about ployer] proceed how best with a duties as a Such citizen].”75 is nev pending distinguishes er case to an employee’s [his] case— instances, from those in duties. such inap which the Garcetti is First Amendment plicable. provides protection against discipline.”71 The duties were created and owed emphasizes Garcetti that “[e]xposing employer. Only prosecutor, acting on governmental inefficiency and misconduct created, employer, behalf of his could have significance,”76 is a matter of considerable altered, destroyed memorandum; judgment “The dictates of sound are rein- citizen could not have done so. protection forced ... whistle-blower Garcetti, 421-22, 422, 66. 547 U.S. at 72. 126 Id. at S.Ct. 1951. 1951. 422-23, 73. Id. ‍​​‌‌​‌​​‌‌‌​‌​​​‌‌‌‌​‌​​​​‌‌​​‌​‌​‌​‌‌​‌​​​​​​‌‌‍at S.Ct. 1951. 67. Id. 74. Id. 68. Id. at 126 S.Ct. 1951. (emphasis Id. at S.Ct. add- v, ed) Ed., (citing Pickering Bd. 391 U.S. Id. at 126 S.Ct. 1951. 563, 574, L.Ed.2d 811 (emphasis Id. at (1968); S.Ct. 1951 add- Myers, Connick v. U.S.

Case Details

Case Name: Bruce Anderson v. State of Texas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 9, 2016

Citation: 845 F.3d 580

Docket Number: 15-40836

Court Abbreviation: 5th Cir.