We must determine whether Steve Cooley, Steven Sowders, Curt Livesay, Anthony Patchett, and Curtis Hazell (collectively, the “Defendants”) are entitled in their *1064 individual capacities to qualified immunity in this § 1983 First Amendment retaliation case. 1 Resolving this question involves, in part, David Eng’s claim that he was retaliated against by the Defendants for an interview given by his lawyer on his behalf to the press. Concluding that we lack jurisdiction to address whether Eng has third party standing to vindicate the constitutional rights of his lawyer, but that he may nevertheless claim a personal First Amendment interest in his lawyer’s advocacy on his behalf, we affirm the district court’s partial denial of qualified immunity.
I. FACTUAL AND PROCEDURAL BACKGROUND
“Assuming that [Eng]’s version of the material facts is correct, as we must in the context of an interlocutory appeal of a qualified immunity decision,”
CarePart-ners, LLC v. Lashway,
A. Factual Background
Eng, a Los Angeles County Deputy District Attorney, was assigned to the Belmont Task Force (“Task Force”) to investigate allegations of fraud and environmental crimes related to the planning and construction of the Los Angeles Unified School District’s Belmont Learning Complex (“Belmont”). The Task Force was established by newly-elected District Attorney Steve Cooley, who had campaigned on a promise to reform the Belmont project. The Task Force was headed by Special Assistant Anthony Patchett, who emphasized from the beginning that the Task Force would deliver “slam dunk” indictments against prominent individuals involved with the Belmont project.
Following an extensive seven-month investigation, the Task Force concluded that the building site was and had always been environmentally safe and that no indictments should issue. Hours before the Task Force presented its findings and recommendations to Cooley and his executive staff, Eng briefed Patchett about the report. Patchett threatened Eng with “severe [personal] consequences” if the Task Force did not say what Patchett believed Cooley “wanted to hear.” Eng nevertheless presented his report recommending that no criminal charges be brought. Following Eng’s discussion of the Task Force’s findings, Patchett made his own presentation opposing Eng’s report and distributed proposed indictments against several prominent individuals. Cooley’s executive staff considered both recommendations and declined to adopt Patchett’s.
In the same meeting, the Task Force also discussed a Los Angeles Times article reporting that the Los Angeles Unified School District’s (the “School District”) lease-purchase agreements used to finance the Belmont project were being canceled and that the School District would have to refinance the project at a substantially higher interest rate. According to Eng, the agreements were cancelled because Patchett had improperly leaked to the IRS that the School District had committed fraud in purchasing the Belmont property. *1065 Eng argued that the lease-purchase agreements had been legal and that Patchett’s contrary report to the IRS was “wrong and should be rectified.” Cooley, who had become angry with Eng, told him to “shut up.”
Over the next several months, Cooley and members of his staff met frequently to discuss “a method of forcing David Eng out of the District Attorney’s Office.” First, a few months after the presentation, John Zajeck (who replaced Patchett as head of the Task Force) informed Eng that he was under investigation for sexual harassment of a Task Force law clerk with whom Eng had previously engaged in a consensual “private relationship.” The relationship was not unusual and was not in violation of any office policy.
Patchett and Zajeck had approached the law clerk earlier to inquire about the relationship. She told the pair that Eng had not sexually harassed her, nor had she told anyone he had. After learning that Zajeck had initiated a sexual harassment investigation against Eng, moreover, she expressly advised the department that Eng had not sexually harassed her. The investigation nevertheless proceeded without the law clerk’s knowledge or participation. Eng was told to work from home until further notice and not permitted to return to work until the following month.
Next, in what Eng asserts was a “clear demotion,” Cooley reassigned him to the Pomona Juvenile Division, even though Eng was a senior attorney in the office, and the Juvenile Division is “considered to be the first stop for beginning attorneys.” (Eng had served in the Juvenile Division in the mid-1980s.) Eng was also interviewed by three District Attorney investigators regarding the alleged sexual harassment charge. During the interview, the investigators falsely claimed that the law clerk had not disavowed the alleged harassment. No harassment charges were ever brought against Eng.
About five months later, Eng was suspended with pay and instructed not to return to work without further notice, at which time he retained attorney Mark Geragos. Eng was subsequently served with a Notice of Intent to Suspend, which stated that misdemeanor charges had been filed against him for using an office computer to access private information. Head Deputy Steven Sowders subsequently informed Eng that he was being suspended without pay. Eng and Geragos argued that, because the allegations were baseless, his suspension should be with pay. That request was denied. Sowders terminated Eng’s pay and benefits and also refused to allow him to “cash out” his vacation time, as was ordinarily allowed.
When the misdemeanor charges against Eng went to trial some two months later, they were dismissed when the only potential witness against Eng invoked his Fifth Amendment right to remain silent, evidently having misused office computers himself. Sowders still refused to allow Eng to return to work. Eng and Geragos appealed to the County Civil Service Commission, which ordered that Eng be allowed to return to work and that his lost pay and benefits be restored. Sowders refused to follow the order and extended Eng’s suspension without pay for an additional thirty days.
Around the same time, the Los Angeles Times published a prominent article on Eng’s case, titled “D.A. Accused of Payback Prosecution.” The article, which included an interview with Geragos, detailed Eng’s allegations that he had been prosecuted because he refused to file criminal charges against individuals involved in the Belmont School project, and because he complained that it was improper for members of the Task Force to contact the IRS.
*1066 Shortly after the article went to press, Sowders informed Eng and Geragos that Eng would “never be allowed to come back” to the District Attorney’s Office and that “they would come up with additional things to charge Eng with so that he would remain on suspension or be terminated.” Ironically, the day after the article was published, the District Attorney’s office released the final Belmont Report, which mirrored the conclusions originally presented by Eng.
Two weeks after the Los Angeles Times article appeared, Sowders met with Eng and served him with a second Notice of Intent to Suspend, realleging the same facts as in the original notice and recounting additional allegations “stemm[ing] from acts which purportedly occurred years prior.” During the meeting, Sow-ders asked Eng why he had allowed Gera-gos to give an interview to the Los Angeles Times. In a subsequent meeting among Eng, Geragos, Sowders, and Chief Deputy District Attorney Curt Livesay, Sowders offered to “resolve matters” if Eng agreed to “tell the Los Angeles Times that Gera-gos’s comments were unauthorized and inaccurate, and if he would publicly apologize to Cooley.”
Without agreeing to the retraction, Eng returned to work one week later at the Padrinos Juvenile Court. The following week, however, the District Attorney’s office issued a second Notice of Suspension without Pay, evidently again ignoring the Civil Service Commission’s order and the dismissal of the criminal charges against Eng. In a second hearing before the Civil Service Commission, the Commission resolved all outstanding allegations in Eng’s favor, including the sexual harassment charges. Eng later returned to work once again but discovered that he was not receiving full benefits. He has since been passed over for promotion.
B. Procedural Background
Eng filed suit under 42 U.S.C. § 1983 asserting, in addition to a range of state law claims, that the Defendants had retaliated against him for exercising his First Amendment right to comment on the Belmont School Project and the leaks to the IRS, and to speak through his attorney to the press, in violation of the First and Fourteenth Amendments.
Following discovery, the Defendants moved for summary judgment, asserting in part qualified immunity from suit. The district court granted summary judgment with respect to Eng’s recommendation that no criminal charges be filed against individuals associated with the Belmont project. According to the court, “Eng was merely fulfilling his job duties when he gave his Task Force recommendation,” and therefore those statements were “not protected under the First Amendment.”
The district court denied the remainder of the Defendants’ motion for summary judgment. The court first addressed whether Eng had asserted a constitutional right. With respect to his comments about the leaks to the IRS, it concluded that “there is a genuine factual dispute between the parties as to whether this statement by Eng was made as part of his Task Force duties or as a private citizen speaking on a matter of public concern.” With respect to Eng’s attorney’s interview with the Los Angeles Times, the district court concluded that “[t]he attorney made the statements on Eng’s behalf, in his role as counsel. Consequently, the two have a sufficiently close relationship that Eng will be able effectively to assert his attorney’s rights.”
Having “established that Eng has legitimate First Amendment claims with regard to his protected speech,” the district court concluded that “First Amendment protection is a clearly established constitutional *1067 right” and the Defendants therefore were not immune from liability. The Defendants appeal.
II. JURISDICTION AND STANDARD OF REVIEW
We have interlocutory appellate jurisdiction pursuant to 28 U.S.C. § 1291 to review the partial denial of qualified immunity in this 42 U.S.C. § 1988 action.
See Mitchell v. Forsyth,
The district court granted qualified immunity with respect to certain of Eng’s statements, which it determined were constitutionally unprotected. Generally, “a challenge to the
grant
of qualified immunity [is] not independently interlocutorily appealable.”
Krug v. Lutz,
Our interlocutory jurisdiction to review a denial of qualified immunity is limited exclusively to questions of law, which we review de novo.
Lee v. Gregory,
III. DISCUSSION
The qualified immunity inquiry involves two sequential questions: (1) “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the[official’s] conduct violated a constitutional right?” and (2) “if a violation could be made out on a favorable view of the parties’ submissions, ... [was] the right ... clearly established ... in light of the specific context of the ease[?]”
Saucier v. Katz,
A. Whether Eng Alleged a Violation of a Constitutional Right
1. Whether Eng May Assert a Claim for his Attorney’s Speech
Before addressing whether Eng has demonstrated that the Defendants violated his constitutional rights, we must first decide as a threshold matter whether he has a first person interest, or third-party standing to vindicate Geragos’s interest, in Geragos’s interview with the Los Angeles Times.
Both the parties and the district court frame this question as one of third-party standing. The Defendants argue that Eng cannot pursue a “vicarious” First Amendment retaliation claim for statements made by Geragos because Eng has not demonstrated that Geragos was hindered from protecting his own interests. Eng counters that because Geragos was not himself injured, his ability to protect his own First Amendment interests was indeed hindered because he has no standing to bring his *1068 own lawsuit. The district court agreed, concluding that “Eng should be granted third-party standing to assert a claim based, in part, upon the violation of his attorney’s right to free speech.”
We lack jurisdiction, however, to consider whether Eng may assert third-party standing to vindicate Geragos’s First Amendment interests. Our interlocutory review of the denial of qualified immunity in this case is limited to the narrow question whether the allegations indicate the Defendants violated Eng’s clearly established constitutional rights. The question of standing, however, is relevant only to whether Eng may ultimately
recover
for the alleged violation and is collateral to the inquiry whether the violation has been sufficiently plead.
See, e.g., Davis v. Federal Election Comm’n,
— U.S. — —,
We therefore agree with the Seventh Circuit that “the appropriate focus in a qualified immunity analysis is the legality of the conduct of the public official, not ... his liability to the ultimate plaintiff.”
Triad Associates, Inc. v. Robinson,
It is well settled that when a lawyer speaks on behalf of a client, the lawyer’s right to speak “is almost always grounded in the rights of the client, rather than any independent rights of the attorney.”
Mezibov v. Allen,
In invalidating the restrictions,
Velazquez
reasoned that “an LSC-funded attorney speaks on the behalf of the client” and is the client’s “speaker.”
Id.
at 542,
This conclusion is a natural corollary of the long-recognized First Amendment right to hire and consult an attorney.
See, e.g., Mothershed v. Justices of the Supreme Court,
The further corollary of that interest, as
Velazquez
recognized, is that “[cjounsel [must] be free of state control” and unfettered in the exercise of “independent judgment on behalf of the client.”
Here, the district court concluded that when Geragos spoke to the press about Eng’s First Amendment retaliation case, Geragos “made the statements on *1070 Eng’s behalf, in his role as counsel.” The Defendants do not dispute this characterization. Because Geragos spoke on Eng’s behalf in his capacity as Eng’s lawyer, his words were Eng’s words as far as the First Amendment is concerned. Eng himself therefore had a personal First Amendment interest in Geragos’s speech.
2. The First Amendment Retaliation Test
Having determined that Eng had a personal constitutional interest in his own speech about the leak to the IRS and in Geragos’s interview with the Los Angeles Times, we turn now to the question whether Eng has alleged a violation of that interest.
It is well settled that the state may not abuse its position as employer to stifle “the First Amendment rights[its employees] would otherwise enjoy as citizens to comment on matters of public interest.”
Pickering v. Bd. of Educ.,
In the forty years since Pickering, First Amendment retaliation law has evolved dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history reveals a sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Analysis of these questions, further complicated by restraints on our interlocutory appellate jurisdiction, involves a complex array of factual and legal inquiries requiring detailed explanation.
First,
the plaintiff bears the burden of showing that the speech addressed an issue of public concern.
See Connick v. Myers,
The public concern inquiry is purely a question of law, which we review de novo.
Berry v. Dept. of Soc. Servs.,
Second,
the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.
See Garcetti v. Ceballos,
While “the question of the scope and content of a plaintiff’s job responsibilities is a question of fact,” the “ultimate constitutional significance of the facts as found” is a question of law. Id. at 1129-30. In evaluating whether a plaintiff spoke as a private citizen, we must therefore assume the truth of the facts as alleged by the plaintiff with respect to employment responsibilities. If the allegations demonstrate an official duty to utter the speech at issue, then the speech is unprotected, and qualified immunity should be granted.
Third,
the plaintiff bears the burden of showing the state “took adverse employment action ... [and that the] speech was a ‘substantial or motivating’ factor in the adverse action.”
Freitag,
This third step is purely a question of fact. Once again, in evaluating whether the government’s adverse employment action was motivated by the employee’s speech, we must assume the truth of the plaintiffs allegations. If the plaintiff does not sufficiently allege that the state retaliated for the employee’s exercise of First Amendment rights, there can be no recovery, and qualified immunity should be granted.
Fourth,
if the plaintiff has passed the first three steps, the burden shifts to the government to show that “under the balancing test established by
[Pickering
], the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”
Thomas v. City of Beaverton,
Although the
Pickering
balancing inquiry is ultimately a legal question, like the private citizen inquiry, its resolution often entails underlying factual disputes.
See, e.g., Rivero v. City & County of San Francisco,
Fifth
and finally, if the government fails the
Pickering
balancing test, it alternatively bears the burden of demonstrating that it “would have reached the same [adverse employment] decision even in the absence of the [employee’s] protected conduct.”
Thomas,
The
Mt. Healthy
but-for causation inquiry is purely a question of fact.
Wagle v. Murray,
S. Whether Eng Passes the First Amendment Retaliation Test
Applying this five-step First Amendment retaliation test, we conclude the allegations here demonstrate that Eng’s First Amendment rights were violated with respect to both Eng’s comments about the leak to the IRS and Geragos’s statements on Eng’s behalf to the press.
a. Whether Eng’s Speech Addressed Matters of Public Concern
The Defendants did not argue below and have not argued on appeal that Eng’s statements did not address a matter of public concern. Accordingly, any such argument is waived.
See, e.g., Butler v. Curry,
In any event, there is little doubt that Eng’s speech did address matters of public concern. “ ‘[C]ommunication[s] on matters relating to the functioning of government’ ... are matters of inherent public concern.”
Johnson v. Multnomah County, Or.,
Speech that is “ ‘relevan[t] to the public’s evaluation of the performance of governmental agencies’ ” also addresses matters of public concern.
Freitag,
b. Whether Eng Spoke as a Private Citizen
The Defendants expend great effort arguing that Eng’s speech with respect to the IRS leak was “inextricably related to his work,” and therefore that his speech was not protected because it was uttered in his capacity as public employee. But the district court determined that there is a genuine factual dispute between the parties regarding whether Eng’s speech about the IRS leaks was made as part of his Task Force duties or as a private citizen. The district court’s determination that the parties’ evidence presents genuine issues of material fact is not reviewable on interlocutory appeal.
Lee,
Here, there can be no doubt that Eng’s version of the facts plausibly indicates he had no official duty to complain about any leak to the IRS or to authorize Geragos to speak to the press about the retaliation being taken against him.
c. Whether the Adverse Employment Action Was Motivated By Eng’s Speech
As a threshold matter, we must consider the full range of adverse employment actions alleged in the complaint. Although the Defendants correctly note that the district court determined Eng was barred by the statute of limitations from recovering for any adverse employment actions taken before January 1, 2003, 4 whether any specific acts complained of are time-barred is (like the third-party standing question) collateral to the limited, interlocutory qualified immunity inquiry. Whether a plaintiff brings an action in time to challenge certain conduct is irrelevant, that is, to the logically independent question whether the state violated the plaintiffs clearly established rights. The applicability of the statute of limitations is therefore not before us, and we will consider the full range of adverse employment actions stated in Eng’s complaint.
The Defendants do not dispute that the initial investigations and first suspension were motivated by Eng’s protected speech. They argue only that Eng’s transfer to the juvenile division “was not motived by any subject speech” and that “any argument by [Eng] that the 2003 suspension was *1074 motivated by his attorney’s statements [to the press] was unsupported by the evidence.” These assertions ignore, however, that we must assume resolution of the disputed facts in Eng’s favor. Eng’s account of the meeting with Livesay and Sowders, for example, plainly undermines the Defendants’ contrary assertion that the systematic investigations, prosecution, suspensions, and demotion of Eng were not motivated by his speech. Eng’s further accounts of Cooley’s meetings with his staff to discuss “a method of forcing David Eng out of the District Attorney’s Office,” and Sowders’s threats to both Eng and Geragos following publication of the Los Angeles Times article, all also indicate that Eng’s speech was a “substantial or motivating” factor in the adverse employment action.
d. Pickering Balancing
Eng having passed the first three steps of the First Amendment retaliation test, the burdens of evidence and persuasion now shift to the Defendants to show that the balance of interests justified their adverse employment decision. But the Defendants did not argue before the district court, and do not argue before us now, that their interest in regulating Eng’s speech was sufficient to outweigh Eng’s free speech interest. They have therefore waived this argument.
See, e.g., Butler,
In any event, Eng’s allegations show that the District Attorney lacked adequate justification for treating Eng differently from other members of the public. The Defendants have neither alleged nor offered any evidence to support a conclusion that investigating, suspending, prosecuting, or transferring Eng for his speech was “necessary for [the District Attorney’s office] to operate efficiently and effectively.”
Garcetti,
e. Mt. Healthy Bub-For Causation
Rather than addressing
Pickering,
the Defendants argue that they “would have reached the same [adverse employment] decision even in the absence of [Eng]’s protected conduct.”
Thomas,
The Defendants further assert that Eng’s performance on a promotability review undermines a but-for connection between his speech acts and his having been passed over for promotion. But Eng alleges he received a low score on the promotion review in part because his record contained accusations of sexual harassment and misuse of office computers— accusations themselves motivated by his exercise of his First Amendment rights.
Taking Eng’s version of the facts as true, the Defendants have therefore not met their burden to show that Eng’s protected speech was not a but-for cause of the adverse employment actions taken against him. In sum, Eng has properly alleged a violation of his constitutional rights.
*1075 B. Whether Eng’s Rights Were Clearly Established
1. The Clearly-Established Standard
Passing the First Amendment retaliation test is only a plaintiffs first hurdle before defeating a motion for summary judgment on qualified immunity. In addition to showing the violation of a constitutional right, a plaintiff must also demonstrate that the constitutional rights at issue were clearly established at the time of the violation. The “clearly established” requirement “operates ‘to ensure that before they are subjected to suit, [government officials] are on notice their conduct is unlawful.’ ”
Hope v. Pelzer,
2. Whether Eng’s Rights Were Clearly Established
a. Eng’s Speech about the Leak to the IRS
The Defendants did not argue before the district court, and do not argue before this court now, that Eng’s rights were not clearly established with respect to any speech not spoken pursuant to his official employment duties. Relying on Garcetti (decided in 2006), the Defendants assert only that “the law was not clearly established [in 2001] as to the nature of First Amendment protection for public employee speech expressed pursuant to official job duties.” This observation is beside the point.
Garcetti
makes clear that if Eng’s comments about the leaks to the IRS
were
spoken pursuant to his official job duties, then he cannot recover regardless of the state of the law in 2001, since there is no private First Amendment interest in “speech that owes its existence to a public employee’s professional responsibilities.”
Nor could they.
Garcetti
concluded only that “work product” that “owes its existence to [an employee]’s professional responsibilities” is
not
protected by the First Amendment.
Id.
at 422,
b. Eng’s Attorney’s Speech to the Press
Geragos’s and Eng’s respective First Amendment interests in Geragos’s speech to the press were also clearly established at the time of the alleged retaliation. The clarity of Geragos’s interest in his own speech (regardless of Eng’s standing to vindicate that interest) is beyond dispute.
With respect to Eng’s personal interest, by 2003, the right to retain and consult an attorney “implicate[d] ... clearly established First Amendment rights of association and free speech.”
DeLoach,
Velazquez
had also been decided two years prior to Geragos’s interview with the
Los Angeles Times.
That decision recognized that a federal law seeking to prevent lawyers from making certain arguments on behalf of their clients implicated the client’s First Amendment rights. As the Sixth Circuit later concluded,
“Velazquez
[did not] recognize a First Amendment right personal to the attorney independent
al
his client,” and lawyers’ free speech interests when advocating on behalf of clients “[are] almost always grounded in the rights of the client, rather than any independent rights of the attorney.”
Mez-ibov,
Although we have not previously addressed a case precisely like this one, “ ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’ ”
Porter v. Bowen,
IY. CONCLUSION
The district court’s partial denial of qualified immunity is affirmed in full.
AFFIRMED.
Notes
. Eng’s complaint also identifies as defendants the County of Los Angeles and the named defendants in their official capacities. Qualified immunity is not available, however, to municipalities or individuals in their official capacities.
See, e.g., Hallstrom v. City of Garden City,
. District courts may, of course, address standing when passing on Rule 12(b)(6) and 56 motions predicated on qualified immunity, but any ruling on such issues will generally be independent of the qualified immunity inquiry itself and cannot be raised on interlocutory appeal. Except in the rare circumstance that the standing decision is "inextricably intertwined” with the qualified immunity decision,
Swint v. Chambers County Com’n,
. Although both Velazquez and Mezibov addressed attorneys’ representation of their clients in the courtroom, we see no reason to limit recognition of a client's constitutional interest in an attorney's representation to in-court speech only. There can be little doubt that zealous representation extends far beyond the confines of brief-writing, examination of witnesses, and oral argument. This case itself demonstrates that fact.
. We are skeptical that the district court was correct to apply the “discrete acts” rather than "repeated conduct” analysis to, for example, the ongoing investigations and prosecutions at issue in this case.
See Amtrak v. Morgan,
. Whether it was "clear” that Eng spoke pursuant to his job duties is a question of fact and not law; the only question here is whether Eng’s free speech right was "clearly established” as a matter of law, assuming his version of the facts to be true.
. We have previously characterized the
Pickering
balancing test as "a context-intensive, case-by-case balancing analysis,” the outcome of which is rarely clear; thus "the law regarding [First Amendment retaliation] claims will rarely, if ever, be sufficiently 'clearly established’ to preclude qualified immunity.”
Dible v. City of Chandler,